Grotius, b. 2. c 3. $18.

Puff. b. 4. c. 5. §. 8.

66

GROTIUS treating of Rivers says-" Though in case of any doubt, the jurisdictions on each side reach to the middle "of the River, yet it may be, and in some places it has actually "happened, that the River wholly belongs to one party, "either because the other nation has not got possession of "the other bank till later, and when their neighbours were "already in complete possession of the whole River, or else, "because matters were so stipulated by some Treaty. GROTIUS does not proceed expressly to state what the law is in the latter case, but it is a fair and necessary inference, that in such case the nation to whom the whole River belongs must retain its jurisdiction over the whole.

Puffendorf is more explicit." The Gulphs and Chan"nels or Arms of the Sea, are," says he, " according to the "regular course, supposed to belong to the People with "whose lands they are encompassed; but in case different "nations border on the same channel, the sovereignty of "each shall be conceived to reach into the middle of the "water, from every part of their respective shores, unless "either all the estates have agreed, by covenant, to use the "whole water promiscuously among themselves, and to ex"ercise a general undivided sovereignty over it, against "foreigners, or else if one particular people has obtained a

dominion over the whole by pact, or the tacit confession "of the rest, or by the right of conquest, or because they "fixed their station near it, and immediately took it into "full possession, exercising acts of sovereignty over the "people of the opposite shore. In which latter case never"theless, the other neighbouring States their fellow bor"derers shall be supposed to be lords of each of their par"ticular ports, and of so much of the sea as the convenient "access to the shore requires."

In the present case it has been shown that the islands in question, and the whole of the waters between them, formed a part of the Province of Nova-Scotia before and at the time of the Treaty of Peace.

It has been shown that by that Treaty it was not intended that any part of the Province of Nova-Scotia should be thereby ceded to the United States, and consequently the United States can by the law of nations claim only to be lords of their particular ports on their shores, and such a right only in those waters as the convenient access to their shores requires. This inference is further confirmed by the

rules laid down by VATTEL in the interpretation of Treaties that have been already cited," that the Proprietor cannot

be deprived of his right, except so far, precisely, as he 66 relinquishes it on his part," and that the "cession of a right or of a Province to obtain peace is to be in"terpreted in its most confined sense."

The right of passage or water-way which may in the present instance be claimed by the United States, is founded upon the same reason with that of the maxim in our municipal law, "Quando ali quid cui conceditur; conceditur "et id, per quod pervenitur ad illud;" and can be extended no farther.

The same reasoning upon which the right in the present instance is founded will also confine that right to a waterway through the Western passage, as being competent to the enjoyment of every privilege and advantage that the United States are entitled to, as being the only passage they have been accustomed to use, and as being least liable to objection on account of carrying on any clandestine trade with the neighbouring part of His Majesty's dominions.

this

But to go farther. It is laid down by MARTENS in his Marters Compendium of the Law of Nations, a work of acknow- b. 4. c. 3. §4 ledged authority, that "a Nation is fully authorized to "prescribe the manner in which the commerce with its "dominions shall be carried on;" and in a note upon passage he says, "The famous Navigation Act," (for a breach of the provisions of which the present prosecution is instituted) "passed under CROMWELL and confirmed by "CHARLES the 2d, contained nothing contrary to the law "of nations, notwithstanding it was very embarrassing to "other Countries."

The Bet

Sir William Scott in pronouncing sentence, in the High 1 Ro Court of Admiralty of England, in a case of appeal from a con- ad. Rep. demnation on the Revenue laws in the Vice-Admiralty Court 200. of Jamaica, speaking of the same act with others on the same ty Cath subject, says, "The Revenue and Navigation Laws are cer- cart, Gi lespie, "tainly to be construed and applied with great exactness: Master. "they are framed for the security of great national interests; " and the effect of such laws, founded on great purposes of "public policy, must not be weakened by a minute tender"ness to particular hardships."

Can it for a moment be contended or imagined that under cover of a right of passage or navigation, which is all

that the United States can pretend to in the waters in question, they can have any such right as is contended for in the claim which has been interposed in the present cause, to go with their vessels and anchor them in these waters, and there, in open defiance and violation of all these laws, to take their cargoes on board from British vessels? On the other hand, is it not a manifest violation of the faith of Treaties, and a most unwarrantable invasion of His Majesty's rights, for the subjects of the United States to be guilty of such practices under so frivolous a pretext? All the rules laid down by the most approved writers upon the law of nations reprobate the principles upon which such conduct is attempted to be justified. As well might the American vessels, or the vessels of any other power in amity with Great-Britain, because they have a right of navigation in the British Channel, claim also a right to lie at anchor off Torbay, or Weymouth, or any other British port in the channel, and there take on board from British vessels cargoes of articles prohibited to be exported from Great-Britain, or carry on any other species of illicit and clandestine trade, as the Claimant in the present instance be justified in the conduct which he avows in his answer to the information.

If we look into the articles of the Treaty of Amity, Commerce and Navigation, between His Majesty and the United States, we shall find that provision is made for every species of commerce that may be lawfully carried on by either nation within the territories of the other.

By the eleventh article it is provided, "that there shall "be a reciprocal and entirely perfect liberty of Navigation "and Commerce between their respective people, in the "manner, under the limitations, and on the conditions spe"cified in the subsequent articles." In the 12th article the trade between the United States and the British WestIndies is permitted under certain limitations; in the 13th article their trade with the territories of Great-Britain in the East-Indies is also permitted under certain conditions and limitations; in the 14th article it is provided, "that there "shall be, between all the dominions of His Majesty in Eu

rope, and the Territories of the United States, a recipro"cal and perfect liberty of Commerce and Navigation;" but no provision is made in any of the articles for carrying on any trade between the United States and His Majesty's Sea-ports in his North-American Colonies.

Would it not be sufficient that this trade is entirely left out in the enumeration of the places in which the Treaty provides for the liberty of Navigation and Commerce between the two Nations, in order to determine that no such trade can be justified under the Treaty? The maxims, “expressum facit cessare tacitum," and "expressio unius "est exclusio alterius," are as just and as applicable in the interpretation of public Treaties, as of the municipal law; and it is to be observed here that the right of passage or navigation now under discussion, in the waters in question, does not respect any right of Navigation between the Territories of the two Nations, but only a right of passage or Navigation between different parts of the Territory of the United States, through a part of the British territory, and even this merely that the moiety of the river St. Croix, ceded to them by the Treaty, may not prove a useless acquisition for want of a convenient communication with or access to it by water.

But the inference I am now contending for does not arise merely from the omission above mentioned in the enumeration of the places in which the Treatý provides for the liberty of Navigation and Commerce between the two Nations; so important an object was it to prevent an infringement of the Navigation Act under any pretence, in His Majesty's Colonies upon the continent, that in the 3d article of the Treaty which provides for the communication by land, and "the inland navigation between the territo"ries and countries of the two parties on the continent of "America," and gives liberty " to navigate all the-Lakes, "Rivers and Waters thereof, and freely to carry on trade "and commerce with each other;" an express clause is added, "that this article does not extend to the admission of "vessels of the United States into the Sea-ports, Harbours, "Bays or Creeks of His Majesty's said Territories, or into

any parts of the Rivers in His Majesty's said Territo"ries below the highest port of entry from the Sea." Thus careful was the Treaty to prevent and prohibit the infraction of the Navigation Act, and that illicit trade which is now claimed as a right on the part of the United States.

By the Treaty of Peace no provision whatever was made for the carrying on of any Commerce between His Majesty's territories and those of the United States, and in the instructions to Mr. LEONARD, accompanying His Majesty's

commission to him as superintendent of the trade and fisheries carried on, on the coast of His Majesty's NorthAmerican Colonies, originally given in the year 1788, and confirmed in the year 1797, three years after the Treaty of Amity, Commerce and Navigation, he is directed, "upon no account to permit any commerce or traffic of any na"ture or kind to be carried on between the subjects of His "Majesty and the citizens of the United States, who may "come within the limits of his district, in contradiction to "the laws and regulations which have been established.". Such is the opinion of His Majesty's Government respecting the right claimed in the present instance, on the part of the United States, to contravene and violate the laws and regulations referred to in these instructions. But by way of protestation it is said in this claim, that Mr. LEONARD as superintendent of trade and fisheries had no right to make any seizure for a breach of the laws of trade: this is an assertion that may be well doubted, but it is unnecessary to go into this discussion at present, as the difficulty is obviated by his having a Commission from the Customs, authorizing him to make seizures in those cases; and as his appointment was made for the sole purpose of attending to the due execution of the Treaties between the two countries, his having such commission to confirm his authority to make seizures, forms another ground of argument in favour of the legality of the present seizure, and of the liability of the Sloop and Cargo to confiscation.

From the foregoing premises it is presumed that an inference may be safely drawn, that a right of water-way, passage or navigation only, can be claimed by the United States from the main channel of the Bay of Fundy, through the waters in question to that moiety of the river St. Croix which is nearest to the Ame. rican territory; and further that such right of navigation is so far from authorizing the carrying on of any commerce or traffic of any nature or kind, between the subjects of His Majesty and the Citizens of the United States in those waters, that any such commerce or traffic is not only prohibited under the penalty of forfeiture of the vessel and cargo by the navigation laws of Great-Britain, but is contrary to the express provision of the Treaties existing between the two Countries.

II. This brings me to the second ground of defence set