Navigating the Lower Saint Lawrence in the 19th Century.
| Mr. R. Uniacke opened the case for the consideration of the Court, by observing, that it was a subject of considerable importance, in which were involved the leading interest of the inhabitants of the Province. America had assumed a participation in the fishery of these shores, on no law or principle, but what her own choice had violated, and on no treaty or negotiation but what her own ingratitude had swept away. The allegation in this case, after pleading several statutes and other matters, assigns five distinct cases for the seizure of this vessel. |
| 1st. | An unlawful importation by foreigners in a foreign ship, contrary to 28 Geo. 3. | ||
| 2nd. | An unlawful hovering on this coast, contrary to the 4 Geo. 3. | ||
| 3rd. | An unlawful importation, contrary to the 7 & 8 William. | ||
| 4th. | An unlawful exportation, contrary to the same statute. | ||
| 5th. | A general charge, that this vessel had transgressed the laws of trade and navigation, by entering within the colonial territory of his Majesty, and taking and curing fish, and executing other purposes connected with the fishery which is a trade in this colony, by foreigners in a foreign ship contrary to the letter and spirit of the laws of trade. |
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His Majesty's Advocate General stated, that it became his
duty to state to the Court, the grounds of the prosecution.
However little was the value of the vessel in question, it
involved in its nature, the rights and interests of the people,
and was of such commercial importance as to interfere with the
vital interests of the Province. The various branches of the
commerce of Great Britain have greatly been deranged by the
course the Americans have taken, to fish upon our grounds. The
time was come, he observed, when it was necessary to ascertain
the fact, how the law stands on this important subject, and it
was this important consideration that induced him to bring the
case forward here, that it might be carried further if desired,
that a final end may be put to the question. The commerce of the ocean has been thoroughly discussed in England and in every other country. Every nation has claimed maritime dominion, as we read, both in modern and ancient history. In the fabulous ages, the Dominion of the Sea was given to Neptune, but whether a great or imaginary person he could not presume to say. We find in ancient history, that the Carthaginians and the Romans, each claimed the dominion of the sea. If we look to modern history, the Venetians, the French, &c., we find that all in their turns have exercised maritime jurisdiction. Let us now consider what the writers on the Law of Nations, say as to sea dominion. All agree that a nation should protect the rights of its people as far as its power extends to protect it. Such being the case, he should be glad to know what power but Great Britain could be entitled to it, and if we look at it at this present time, we see Britain attempting to extend her power where the breath of man never drew. There then is a manifest power of Great Britain, that she is capable of defending her rights, and of repelling the thunder of the united world. As to a limited power of the ocean, most writers agree that the land of a country extends in a great measure into the sea; some say it should only extend to the distance of a cannon-shot; some to the distance of 3 leagues, and other, that foreigners should not come in sight of the land, because their appearance might create suspicion by their hovering about, which has a tendency to disturb the people. The Dutch and the Hanseatic towns were the only ones that claimed to enjoy maritime rights, which Great Britain exclusively demanded. By the Treaty of Utrecht, 30 leagues were laid down as the maritime boundary. Vattel confirms this opinion. Great Britain holds Newfoundland as the first discoverers of it, and by solemn treaties with all nations, and no country except France and America, are favoured upon stipulations founded between the two countries. This claim on the part of Great Britain extends to the shore fishery of Nova Scotia. France, it is true, claimed it, but the Treaty of Utrecht, fixed it completely, and limits the Atlantic shore fishery of Nova Scotia to the eastern extend of the Isle of Sable, and which has ever since been considered as a part of the territorial rights of Great Britain. The Americans it seems, now set up a claim of a qualified right to enjoy what Great Britain, as a boon, had granted them, but they have cut the cord asunder, and now demand in peace what in war they have destroyed. It is confessed that this vessel took fish within sight of the Isle of Sable, which he contended, was as much the territory of Great Britain as the spot he stood upon. As concerns an illegal trade and navigation, the Act of 28 Geo. III, expressly prohibits anything being brought from America to this country, but confirms the bringing of articles in British ships alone, but here is an American vessel bringing certain articles. She is found in one of our harbours, and what is the excuse made? A case of distress. If the claimants can establish that fact, then their case is made out, but I say there was no distress. The next excuse is, she came in for provisions for a lawful purpose, they must show that to be the case, or the vessel is liable to forfeiture. His Majesty's Advocate General then enlarged upon the statute of William and Mary, as respects prohibiting the importation of articles into this colony; also on the case of the Eleanor, the Paisly, the Vixen, and the Dart, to illustrate his able and ingenious argument. |
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Mr. Johnson for the claimants, stated it was incumbent on the
part of the prosecution to have produced orders from the
Admiralty, or warning to the vessel, which in this case, should
have been given. If it could be proved these men were fishing
only, it never was the intention of the British government to
include those within the meaning of their navigation laws, and
that all the points which His Majesty's Advocate General would
wish to bring to bear must ultimately fail. Very different will
stand the case of a vessel coming in like the Nabby, and a vessel
coming in with goods, that it was the particular object of the
legislature to guard against, there was nothing on board from
which such an inference could be drawn. When he looks at the
allegations, it is stated they entered for the purpose of
fishing, and therefore it is inferred that a different object
from an importation was in view. The learned counsel cited
several cases to show that a foreign vessel may enter into a
prohibited port in distress. That it was distress that caused
the Nabby to put in, and the weather was foggy, with respect to
the entrance into Pope's Harbour, it will be found that they had
only a small quantity of water with a strong wind against them,
and although there might have been sufficient water for a short
voyage home, every day's experience shows us how necessary it is
not to trust to the uncertain issue of a sea voyage. By the
treaty of Ghent, it makes it legal for any vessel to harbour
about the coasts of His Majesty's Dominions, and requires a
notice of 48 hours to be given for their departure. Under this
statute the offence is not committed, because the notice so
required was not proved or given, but it was attempted to be
supplied by a general notice given to all American vessels, not
to fish there. It is a principle laid down, that no nation
should possess more territory than its population was liable to
take good possession of. But it was not so as to the ocean, the
fruits of it are inexhaustible, all nations may fish upon it, and
therefore all nations have a right to fish upon it. But there
are particular parts of the sea which are not inexhaustible, in
this case it is necessary to show they have appropriated them to
their own use and right. Mr. Johnson dwelt with much force on the article in the treaty of 1783, wherein it was stipulated "That the Americans shall continue to enjoy unmolested the right to take fish on the coasts, and in the bays on the shores of this Province". Under this act, he considered it gave to citizens of the United States a species of property which were conveyed to them by a solemn Treaty. Vattel, he observed, says that a subsequent war does not wan.. take away the validity of a previous treaty. If every wan.. war an infraction of former treaties, there could be no making a permanent treaty of peace, and he contended that the cession made in the treaty of 1783, was a permanent right granted to the citizens of the United States which they can demand. He said he felt all the delicacy which a British subject should feel upon the occasion, and in deciding upon it, he must suppose that His Majesty's ministers entered into it for wise and proper purposes. Court adjourned to Monday. Crofton Uniacke, Esquire, Judge of the Court decreed the following: |
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| JUDGMENT in the case of the Nabby. | ||
|
This vessel was seized by His Majesty's ship Saracen, John
Gore, Esquire, commander, and has been brought into this court
for adjudication. An allegation has been filed on behalf of His
Majesty, containing several charges, and a claim has been made
by Thomas Standley, the master, a citizen of the United States
of America, on behalf of himself, Joseph Standley, and Samuel
Hadlock, also citizens of the United States, as the owners of
this vessel. In considering the case which is submitted to the court in the allegation and claim, it will be found to rest upon two grounds, which have been brought forward and supported, with great learning and ability, on the part of the prosecution. First, it is contended that this vessel, having been taken while engaged in the fishery on the coasts of Nova Scotia, has violated the territorial rights of Great Britain, and should therefore by condemned, and secondly, that having entered one of the harbours of this Province without any justifiable cause, she has infringed the laws of the trade and navigation, which prohibit foreigners from trading with the Colonies, and has, therefore, incurred the penalties of those laws. The Court is called upon in this case, during a period of profound peace, to enter into the consideration of a subject which involves the interests of a foreign nation, and to apply, in their utmost strictness, those general principles of abstract and universal law, which are appealed to in questions between contending nations. It is presented to the Court in its most grand and imposing aspect, not as a collateral point growing out of private interests, and arising out of considerations of municipal law, but as a direct and solemn question, in which the high and important rights of one nation are to be defined and supported, and the claims and privileges of another to be confirmed or annihilated. The violated rights of Great Britain are represented as seeking, in the dignity of insulted greatness, the protection of its sacred tribunals and as claiming, in the time of peace, from public justice, that defence which they have ever found in war beneath the arms of their brave defenders. Certain acts of the citizens of the United States are held up to the Court as the infringement of territorial rights, made under the pretext of privileges become obsolete and now unacknowledged, and the confiscation of property is demanded as the just and unavoidable penalty of the offence. |
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In this view of the subject it becomes one on the highest
importance, and it will require the most serious attention on the
part of the Court, neither to shrink from its duties, from an
apprehension of consequences, not to exert its authority beyond
its proper limits, from the influence of feelings which the
subject may be supposed to excite. As it is the clear duty of
the Court to take cognizance of all questions legally within its
jurisdiction, and to administer the law to contending parties,
so it is highly improper in it to entertain and determine those
which belong to other tribunals, or which are not within the
settled limits of its own authority. The jurisdiction of the Court of Admiralty in former times was a subject of much controversy, and many very violent and unbecoming contentions have at different periods existed, as to the nature of the subjects to which its authority extended. Those discussions, which have so repeatedly laid open the subject to the investigation of the most able lawyers, have removed many of the errors which once prevailed, and little doubt can now be entertained as to the subject of its ordinary jurisdiction. It will be necessary, however, for the satisfaction of those who have urged the Court to take cognizance of this subject, and to proceed to adjudication on the merits of this case, to consider, in the fullest manner, whether the Court of Vice Admiralty has, within its ordinary jurisdiction and power to proceed to the adjudication of foreign vessels charged with the violation of territorial rights. The Court of Admiralty takes cognizance of matters arising either within its civil or its prize jurisdiction. The Instance Court embraces all matters of a private nature, arising out of maritime affairs, but does not extend to subjects which grow out of a state of war, nor can it sustain questions in which the political interests of nations are involved. Without determining the precise boundaries of the Instance Court, which in many cases may, even at this day, be difficult to ascertain, as respects subjects of a private nature, it is sufficient in this case to show, that the subject now submitted to it does not come within its jurisdiction. By the special provisions of an Act of Parliament, the important interests of trade and navigation are placed within its jurisdiction, and full power is given to confiscate the property of individuals found violating any of the positive regulations of British trade. Under those laws the interests of foreigners may be involved, and their property condemned, but all such cases are confined to private interests, and the offenses as well as the consequent penalties, are expressly settled and defined, by those very laws with the violation of which they may be charged. This vessel has been seized by one of His Majesty's ships, under an order from the Lords Commissioners of the Admiralty, for fishing within the territory of Great Britain, and I am not informed of any municipal law which gives the Court cognizance of such a subject, or which could justify it in confiscating property so employed. It has been urged, that an order from the Lords Commissioners of the Admiralty having been given to the Commander in Chief of the North American squadron, to seize and detain all vessels found fishing within the British territory, this Court is bound to give effect to it by condemning this vessel and her appurtenances, but however high the authority may be, from which such order may have emanated, and however strictly bound the Commander in Chief may be to carry it into execution, this Court must wait until its powers, as to matters of prize, are called forth in the regular and legal manner. That those powers are inherent in its commission there can be no doubt, and it may be proper for me to state, in what manner they are brought into full operation. In the first place, a commission, under the great seal of the United Kingdom, goes directed to the Lords Commissioners of the Admiralty, authorizing the seizure and detention of the vessels of any country, saving such exceptions as may afterwards be declared, and authorizing the same to be brought to judgment in any of the Courts of Admiralty within the dominions, which shall be duly commissioned, and the Lords Commissioners of the Admiralty are thereby authorized and enjoined, to will and require the High Court of Admiralty of England, and also the several Courts of Admiralty within the dominions, which shall be duly commissioned, to take cognizance of, and judicially proceed upon, all ships, vessels, and goods as shall be seized and claimed, and to adjudge and condemn the same, saving such exceptions as may be, at any time, after declared. In consequence of this commission, a warrant issues, under the seal of the office of Admiralty, with a copy of such commission usually annexed, requiring His Majesty's Vice Admiralty Court at Halifax, (or whatever place it may be) to take cognizance of and judicially to proceed upon all ships and goods, that are or shall be taken within the limits of said Court, and to hear and determine the same, and according to the course of Admiralty and law of nations, to adjudge and condemn the same, saying always, such exceptions as His Majesty may, at any time, be pleased to declare. |
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Thus the Court of Admiralty becomes fully authorised to take
cognizance of, and to proceed judicially upon, all vessels seized
jure belli, or under any orders His Majesty's government may have
deemed it expedient to issue. But, until the Court receives
authority to act through the regular and legal channel, it cannot
undertake to administer the law as applicable to prize, and to
settle the conflicting interests of nations. The Court cannot
penetrate into the secrets of the British Cabinet to ascertain
what the political views of His Majesty's Government may be on
this subject, but as no regular steps have been adopted, to give
the Court a power to proceed to adjudication and to condemn these
vessels, it might be inferred, that it was not the intention to
confiscate them at present, but merely to detain them until
further instructions should be given. It must be well known to
those who administer the British government, advised as they are
by the most learned civilians of the age, that the Court of Vice
Admiralty has not power, in the exercise of its ordinary
jurisdiction, to take cognizance of subject of such a nature.
Uninfluenced, therefore, by any considerations, arising from the
necessity or expedience of what has been proposed, and paying
every respect to the order which has been proposed, this Court
will endeavour to perform its duty with firmness, within the
proper limits prescribed to its jurisdiction, but will not allow
itself to be led, by any plausible view of the subject into a
vague, irregular and unjustifiable exercise of its power. That these opinions are not merely the result of my own unassisted deliberations, but that they are supported by the decisions of the most learned and able judges, both of the civil and common law Courts, I shall proceed, in the next place, to show. The first case I shall notice on this subject is the Curlew, (Stewart's Report 312) in which Sir Alexander Croke, in speaking of vessel detained in consequence of a declaration of war, but before any commission to condemn, uses these words, "This then is property which has been seized and detained, in consequence of a declaration of war made by the United States against Great Britain, but before any orders have been given by His Majesty in Council for general reprisals, and before any commission has been issued to require this Court to adjudge and condemn such ships, vessels, and goods as shall belong to the United States. And till the British Government has declared the subjects of the United States to be enemies, by its order for general reprisal, and by a warrant to condemn their goods, this Court cannot consider them as enemies' property. Even an order from the British government to seize and detain vessels would not have that effect. That might be only provisional and must depend upon subsequent explanation, having a retroactive power. Seizures made may be declared, to have been only on the footing of a temporary sequestration." |
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| To be continued. |
| Quebec Mercury #44, Page 348. Tuesday, November 3, 1818. | ||
|---|---|---|
| Halifax, August 18, 1818. | ||
| Judgment in the case of the American fishing vessel Nabby, Standley, master. | ||
| (Continued.) | ||
|
How much stronger was that case than the one before the Court.
The actual declaration of war, by the government of the United
States was followed immediately, by all the violence of war; the
treaty of peace between the two countries was violated and
broken; the commerce of Great Britain was assaulted and
interrupted, and all those rights which are most valuable to a
nation were infringed, in the true spirit of national hostility.
Yet, in that case, the Court could not condemn the property which
was very properly seized by His Majesty's ships. In this case
it is alleged that the citizens of the United States have
involved the rights of Great Britain, by entering its territory
and fishing therein, and that, therefore, the vessels so found
should be condemned. But if they had made an actual attack upon
our shores, if they had captured and destroyed the property of
British subjects both by sea and land, this Court would not be
authorized to condemn, until it should be commanded so to do by
the Sovereign, in whom alone such power is reposed, by the
constitution of our Country. The next case I shall produce in support of my opinion, is that of the Huldah (3rd Rob. Rep. p. 235). That ship was carried into St. Domingo and proceeded against in the Court of Admiralty. The Court there was properly constituted as a civil Court of Admiralty, and His Majesty's instructions were addressed to it as a Prize Court, but, by a mistake, no warrant had been issued to give it a prize jurisdiction against France and Holland, although there had been a prize warrant against Spain. Sir W. Scott: "In this case, there is no imputation of misconduct; the captor went to a Court which was sitting at St. Domingo, apparently with competent authority; in that Court he obtained a sentence of condemnation, and distribution has taken place in consequence of it. But that Court having no authority, those proceedings are null and of no legal effect whatsoever." Now at the time the Court of Admiralty at St. Domingo was exercising a prize jurisdiction over the ships and goods of two nations, it could not extend that power to property belonging to another nation, although actual hostilities existed, and the vessels and goods of that nation were confiscated in other Courts duly authorised. The Court of Admiralty is not to look at the state of things between Great Britain and another nation, and to infer from the existence of hostilities, or from the orders issued to the Naval Commanders, that its powers are called forth, and are to be exercised to their utmost extent. It does not sit to deliberate on the political relations of states, but to administer the law whenever it shall be so required. That the persons who have presided in the Courts of Vice Admiralty have often ventured beyond the limits of their jurisdiction, and assumed the exercise of powers with which they were not invested is well known, but this Court will select higher examples for its imitation, and will not easily be led into those gross errors, which often prove injurious to the interests of individuals, and always lessen the respect due to the tribunals of justice. |
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I shall mention one more case, on this point, which was
determined by that eminent Judge Lord Mansfield, a case in which
the jurisdiction of the Court of Admiralty was very fully
considered. In the case of Lindo vs. Rodney, Lord Mansfield,
speaking of the distinction of the civil and prize jurisdiction
of the Admiralty, says: "The Court of Admiralty is called the
Instance Court, the other the Prize Court. The manner of
proceeding is totally different. The whole system of litigation
and jurisprudence in the Prize Court is peculiar to itself, it
is no more like the Court of Admiralty than it is to any Court
in Westminster Hall". It is quite unnecessary to go farther into this subject. Here are the decisions of the most learned and eminent judges, and they fully support the general position which I must assume, that the Court of Admiralty, cannot, in the exercise of its ordinary jurisdiction, entertain any question which bears the character of prize. The first ground in this case is clearly of that nature. It is, that this vessel has been captured by one of His Majesty's ships of war, for the violation of the rights of Great Britain, and that such seizure was made under orders from the Admiralty. The whole question arises out of a proceeding of a military and not of a civil nature. And this it is that makes the distinction. But it may be asked, whether the orders that issued to the Naval Commander in Chief are to be rendered nugatory, and whether this determination is to operate to counteract the evident wishes and intentions of His Majesty's government. To this the answer is plain. The Court has the power to take the custody of the vessel, and to preserve it in the usual manner, until the final determination of government shall be made known, although it cannot proceed to adjudication upon this question. It can neither condemn nor restore. It is true no positive instructions have been sent to this Court to detain vessels of this description, but sufficient has appeared to it, to authorize the regular exercise of its ordinary care in the preservation of the property. That I am correct in this opinion I shall show by an authority directly to the point. Upon the declaration of war by the United States of America, His Majesty's ships captured American vessels and brought them into the custody of this Court. At that time no order had been made to seize American property, nor had any instructions whatever been sent to the Court of Admiralty in this Province. Sir Alexander Croke (case of the Dart, Stewart's Report 391), under such circumstances, said "They may possibly be declared to be enemies in future, but their present situation is ambiguous. Whilst this uncertainty continues the Court cannot reject the claim of the parties or condemn their property. Neither in this state of semi hostilities with the United States would it think itself justified in restoring the goods." In the present case the Court is bound to take notice of the orders which have been issued to the Commander in Chief, and to give them an operation to a certain extent. They have been communicated to the Court, and feeling itself influenced by the high respect it will ever have for the distinguished officers, to whom His Majesty may confide the command of his fleets, it cannot hesitate to hold the custody of such vessels as may be brought within its care. In another case Sir Alexander Croke recognized the orders which had been issued to detain vessels, and gave them the effect that I am willing to allow those to have which have been communicated to me. In the case of the Zodiac (Stewart's Report, 333) he said, "If this was merely a claim as for American property, this Court would certainly not proceed to adjudicate upon it, because in the hostile or at least ambiguous state of the two countries, under his Royal Highness the Prince Regent's order in Council to detain, and bring into port all vessels belonging to the citizens of the United States, without giving any authority to condemn them, no property of that description could either be condemned or restored." I have given to this subject the most serious attention, and have considered fully the ingenious arguments which have been pressed upon the Court by his Majesty's Advocate General, and I am perfectly satisfied, that I should not be justified, in exercising the powers which it has been contended this Court possesses. Did the case rest, therefore, entirely upon this ground, it would be my duty to direct it to stand over until further instructions should be given by His Majesty's government, but another point has been submitted to my consideration, which may render such delay unnecessary, and I shall proceed to state the reasons which I deem sufficient to support the judgment about to be pronounced. The point now presented to the Court arises under the laws of navigation, and it is contended, that this vessel, her appurtenances and everything laden on board of her are liable to confiscation, for having illegally imported goods, wares, and merchandise into a port of this Province, she being a vessel not owned and navigated as vessels are required to be, to entitle them to the privilege of trading with the colonies. Questions arising under the laws made for the regulation of trade and navigation are not only clearly within the jurisdiction of the Court, but require its utmost attention and care, lest the ignorance of the arts of commercial speculators should interrupt the operation of a system framed for the greatest national purpose, and which has been found to realize the best hopes of those enlightened minds by which it was conceived and matured. It would seem unnecessary for me in considering a question, confined within the narrow bounds of a few clauses of an act of parliament, to take an extensive view of the whole system, but as the Court is under the necessity of seeking the rules which are to govern it, in the construction of this particular part, from an enlarged conception of the general spirit of the whole system, it must take a comprehensive view of the great designs for which it was wisely contrived. |
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Those laws took their rise in the profound and enlightened
views, which experience had offered to the acute and reflecting
mind, of the true basis on which might be erected the fabric of
a great nation. And however that system may have been extended
and improved, by the various alterations and additions, which
grew out of new relations and more complicated public interests,
the same spirit which is manifest in the provisions of the
earliest laws may be traced through every succeeding regulation.
They rise to the contemplation of the human mind with a
regularity at once clear and complicated, and may be considered
as a beautiful specimen of positive law, in which the profound,
and the comprehensive speculation of political economy, are
admirably blended with the useful and practical regulations of
mercantile experience. The wisdom of the policy which projected,
and of the care which has constantly been taken to render this
system more perfect, was very soon discovered in the beneficial
consequences which resulted to the nation. It was soon found
that those admirable regulations were adopted, to strengthen and
enrich the mother country, while they gave a permanency of
character to her distant possessions, which must have been
entirely lost in the confusion of a loose and unrestrained
commerce. As this system advanced to that perfection in which
we now find it, those nations whose interests seem to have been
neglected in the promotion of our own, did not fail to discover,
what they affected to consider a narrow and illiberal feeling,
inconsistent with those dignified and generous sentiments which
should always govern the policy of nations. But while Great
Britain increased its national greatness, and commercial
prosperity, she viewed the envy and jealousy of other nations
merely as a powerful confirmation of the wisdom of her plans. Those laws form a code which it is the duty of this Court to guard from the slightest violation, their importance cannot be fully estimated, and they, whose minds are too limited to trace the progress of our national prosperity in the rigid execution of them, might be awakened to a sense of their value by the rapid decline of our greatness, which would be the consequence of their relaxation. In viewing the subject in this light, the first object that strikes the mind, is the great design of confining to British subjects, as far it could possibly be effected, the commerce of the British colonies. For this purpose, no goods, wares or merchandise can be imported into, or exported from the colonies, unless in British built vessels owned by British subjects, and navigated by the master and three fourths of the crew subjects of Great Britain, under pain of forfeiture of ship and goods. This part of the law is as clear as the plainest terms can make it, but were the Court to adopt a construction, which should be restrained to the very precise meaning of the word, the spirit of this law as well as the whole system would be violated. If it should be said that the word "imported" means the actual landing of goods, wares or merchandise, and that no penalty could be inflicted except in a case where that fact was positively proved, or, that if the owner could make out by the evidence of himself and crew, that no articles were landed from the vessel, she ought necessarily to be restored, it would follow that a foreign vessel might enter the harbours of a colony or plantation without permission, and remain there until a suitable occasion should offer to land her cargo. But this construction would be evidently in opposition to the true spirit and meaning of this clause, and would render useless and unavailing, every provision of the laws of trade and navigation, which are clearly founded in the design, to reserve the privileges to British subjects, and to exclude foreigners from participating therein. I cannot conceive two ideas more inconsistent with each other, than a law positively declaring that foreigners shall not trade with the colonies, and at the same time, a loose permission to enter the harbour of those colonies, and to continue there while it may suit their own convenience or favour their own views. It has been contended that the presumption, which arises from a vessel's entering an interdicted harbour, namely, that she came there with an intention to trade, may be overcome by showing circumstances which prove that no such intention existed, and that if, for instance, it were made out to the satisfaction of the Court, that the vessel was merely in ballast, the presumption of her importing goods, wares and merchandise, would be completely destroyed, and she ought to be acquitted. But it should be remembered that the laws which prohibit the importation of goods, make the exportation equally penal, and if vessels were allowed to enter the harbours of a colony in ballast, what protection could be given to the lawful trade of British subjects? Would not such permission throw open the ports and harbours of this country to the free trade of every American vessel? Under such a vague and preposterous construction of this wholesome and rigid system of laws, it would only be necessary for a foreign vessel to lie at anchor in our harbours, until an opportunity offered to ship goods for exportation, which might be done without fear of interruption in almost every harbour of this Province. To prevent the certain consequences of such a construction, it would require every inhabitant of this Province to be a custom house officer, and to be employed day and night, in preserving the trade of the country from the monopoly of the enterprising adventurers of the neighbouring country. It is well known, that even the most rigid execution of the laws of trade is not sufficient to deter the eager speculator from engaging in the commerce of these colonies. The contiguity of the harbours of the two countries makes it almost impossible, under ever restraint that human laws can impose, to prevent a system of smuggling, destructive of the interests of the honest British merchant, and productive of the most pernicious consequences, in weakening the sense of the moral obligation of the laws, and in tempting the inhabitants of this colony, to blend their interest with those of the depraved and lawless adventurer, rather than to strive by an honest and grateful allegiance to uphold the nation which protects them. Shall this Court then declare, by its solemn decisions, that the laws allow such an entry into the harbours of this Province? Shall it say it is prohibited, that you shall import and export goods, but you may come, as harmless and quiet people, to view the beauties of the surrounding scenery, and to pass you time in inoffensive indolence. |
| It has also been advanced, as a doctrine, to this Court, that although these principles may be applicable to vessels, ostensibly equipped for trade, and which are constantly engaged in commerce, yet they ought not to be carried into rigid effect against vessels of a distinct character. And an exception has been made in favour of vessels, manifestly fitted out for the fishery, and which could not be supposed to have commercial objects in contemplation. But so far from considering vessels of this description as entitled to any particular favour, or to which a relaxation of the laws might be made without any dangerous consequences, they are to be viewed with more caution by this Court, and to be watched with more jealousy, by officers of the customs than those whose character is more open and unequivocal. These vessels, it is said, leave their own ports without a cargo, ostensibly bound to their fishing stations, and as such cannot be considered as objects of suspicion, but under the sanction of such impolitic liberality, they would no doubt avail themselves of the opportunity afforded to them, of landing goods in such ports as they may be allowed to enter. A vessel avowedly engaged in trade, necessarily becomes an object of immediate attention to those who are entrusted with the execution of the laws, but a little, and apparently an insignificant vessel may, from the very character she assumes, be the most dangerous enemy to the system which this Court is bound to protect. To give full efficacy to every regulation, which the laws have prescribed for the trade of this colony, is one of its highest duties, and it is essential to be the great objects thus entrusted to it, that every barrier, which the words and spirit of the laws will permit, should be raised around them, and that a narrow, verbal construction should not operate to defeat the evident intention of them. In extending the penalty of those laws to vessels entering the harbours of this Province, without a justifiable cause, I find myself supported by the very highest authority; and I shall proceed, in the first place, to consider the various cases in which, I think, this doctrine may be found, and then, I shall take a view of the circumstances of the case before me, and of the grounds upon which the claimant has attempted to justify the entry into a harbour of this Province. | ||
| To be continued. | ||
|
The first ground then is, that the vessel came into a harbour
of this Province in distress, and without any pretence of right,
sought that relief from the inhabitants of this Province which
the people of the United States, in a recent instance, had most
generously and nobly extended to the inhabitants of a British
Colony. And most assuredly if a case of real distress is made
out, there is an end for ever of this question. It must be
buried in those feelings which, I trust, will ever be dear to
this Court, and in the exercise of which it would hope to derive
more satisfaction, than can ever arise from the rigid execution
of the laws. Real distress is a passport even through the savage
land, it appeals at once to sentiments universally felt, at its
approach, the rigour of law is softened, and the violence of war
becomes composed by the sacred influence of humanity. And where
can unaffected calamity seek a refuge if it is denied it on a
British shore? Intrepid in the defence of its rights, and
lenient in the exercise of them, Great Britain requires not its
harbours to be closed against the stranger who seeks a shelter
from the tempest, or who asks the supply of those deficiencies
which unavoidable necessity may have created. The private
contributions of that country have cheered the hearts of the
afflicted in almost every land, and its public treasures have
been exhausted in yielding protection to every nation, whose
people sought an asylum either in its bravery or its resources.
As a British judge, therefore, I receive with every disposition
of kindness, this ground of defence; but let it not be a garb
assumed by artifice to receive and mislead. While I am ready to
acknowledge the interesting features of distress, I am vigilant
to detect the subtle contrivances of art. Now what is the truth
of this case. That this vessel was in any serious distress
cannot be pretended. That she might have wanted a little water
is very possible, but it must be made out by this Court that the
deficiency did not arise, either from design, or from an
unjustifiable neglect, and, let it have arisen from whatever
cause it might, that it was such as to place the crew in imminent
danger of perishing. The master says that they found themselves
nearer to the land then they expected, which shows that his
distress was not such as to have forced him to seek a harbour.
He expresses his distress to arise from his water being scant,
but he does not say that any inconvenience had been experienced,
or that he could not have prosecuted his voyage. Besides vessels
are bound to have a sufficient quantity of water and provisions
on board for the voyage in which they are engaged, and it would
be absurd to suppose, that a scarcity of water, arising out of
neglect, or what is more probably, design, can operate to
supersede the laws, and throw open British ports to any
adventurer who may wish to evade the regulations of British trade
and navigation. The evidence on this and other points is extremely contradictory. One says that vessels could carry on a fishing voyage without going into any harbour, and another says it would be impossible without the privilege of putting into some of the British ports for wood and water, and it is in evidence that they informed the midshipman that they expected to supply themselves with wood and water from British coasts. One of the witnesses expressly swears that they had a full supply for their voyage, but that one of the barrels of water proving bad, they put into Pope's Harbour to get a fresh supply, also, that a ten gallon cask of water was spoiled by being put into an old gin cask. Now it would be beneath the dignity of a Court to spend time in commenting on such evidence as this, brought forward to support what always requires to be made out in the most satisfactory manner, and in the proof of which such strictness has always been observed. Nothing could have induced me to give the attention I have done to it, but a great anxiety that this subject, which as already excited much public interest, should be thoroughly investigated, and that not only the principles of law, but the facts of the case should be presented to the world in the clearest point of view. I shall conclude my observations, on this point of the case, with the words of a judge, (Sir William Scott) whose decisions are not only studied by the lawyer as the sources of profound instruction, but are read with interest, by the enlightened and accomplished scholars as the finest exercises of the human intellect. "Where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself by putting on board an insufficient quantity of water or provisions for such a voyage, for there the distress is only a part of the mechanism of the fraud, and cannot be set in excuse for it, and in the next place, the distress must be proved by the claimant in a clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to this power, and probably involved in the fraud, if any fraud there be, and therefore it is liable to be rigidly examined." The last point which is to be considered by the Court, is a right which has been set up by the claimant to enter the ports and harbours of the Province, and there to cure the fish which he may have taken in the course of his fishing voyage. And certainly if such a right exists, the principles of law which I have laid down with so much care will not be applicable to this vessel, unless proof shall have been made of an actual trading. Because it would not be consistent to permit foreign vessels to enter these harbours for a certain purpose, and then to make that entry a ground upon which to raise the presumption of illicit trade. This right is asserted to belong to the citizens of the United States, under the treaty of peace entered into between His Britannic Majesty and the Government of that country, in the year 1783, and it is contended in the first place, that a right to take fish on our coasts and in our harbours and bays, and to cure the same on the shores of this Province, was absolutely acknowledged and given by the third article of that treaty, and in the second, that admitting the treaty granted only a privilege to do so, that such privilege still exists because the treaty itself has not been annulled. This question now presents itself in a way which obliges the Court to enter into the full consideration of the right here asserted. For although it has already determined that it cannot take cognizance of it as a direct charge against this vessel, having no authority so to do, yet as it becomes essential to the determination of the second point in this case, as it arises incidentally out of the consideration of the municipal laws of the country, and as it must be entertained in order to do justice to the parties whose private interests are involved, it is its duty to sustain it, and to place it in such a point of view, as may put an end to those doubts which some have affected to indulge on this point, that His Majesty's government having determined, that the privileges granted to the citizens of the United States by the treaty of 1783, to carry on the fishery on the coasts of this Province, and to cure fish in the harbours thereof had ceased, and that determination having been made known, it would not be necessary to consider this right as entitled to any attention. But as it will require but little reasoning to show the weakness of such pretensions, I shall take a cursory view of the grounds upon which this extraordinary right seems to have been placed. |
|
It will not be requisite for me, in this case, to enter into
those general considerations of the rights of nations to a
dominion of the sea, which have occupied the attention of the
gentlemen of the bar. Very able writers on abstract law have
differed, but as respects the right of dominions over particular
parts of the sea, and also as to the distance from the shore over
which a nation holding the land might exercise the right of
sovereignty. When these important points shall be submitted to
the Court, in a way which will render it incumbent on it to
determine them, it will not shrink from so arduous a task,
neither will it despair of placing them on grounds which may find
their support in the sound principles of general and universal
law, principles which flow from the reflections of enlightened
reason, corrected and confirmed by the usages and customs of the
civilized world. I will hope, that those contradictions, which
may have been observed in the best writers are to be reconciled,
by an attention to the characteristic circumstances of the
different ages in which they thought and wrote, and by an
allowance for the influence which the fluctuating relations, the
jarring interests, and the various modifications of the claims
and pretensions of nations, cannot fail to produce, even upon the
most reflecting mind. Much of that difference found amongst
writers of this description, may be traced to the prevailing
public sentiment, to national prejudices, and even to the
eccentricity of individual opinion. But whatever the
difficulties are which those great questions might present, they
do not meet the court in this case. It is only necessary in
order to see the simplicity of this point, to read the article
of the treaty on which the claim is founded and to determine
whether that treaty exists at the present time. The words of the
third articles of the treaty are: "It is agreed that the people of the United States shall continue to enjoy, unmolested, the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland, and in the Gulf of St. Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind, on such parts of the coast of Newfoundland, as British fishermen shall use (but not to dry or cure the same on that Island), and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled, but as soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement without a previous agreement for that purpose, with the inhabitants, proprietors, or possessors of the grounds." Now it is impossible to imagine words more clear than those. Two objects seem to have been in view, the first was the fishery on the Grand Bank, in the Gulf of St. Lawrence, and other places in the sea, and the second was the privilege which was intended to be granted to the people of the United States, to take and cure fish on the coasts, and in the bays, creeks, and harbours of the British dominions in North America. It would seem that the intention of the British government at the time, was to acknowledge an absolute right in the people of America, to fish on the Grand Bank of Newfoundland, in the Gulf of St. Lawrence, and other places in the sea, but the Court is not called upon, in this case, to determine that point. As respects the latter part of this article, it would be confounding all ideas of common sense, and throwing obscurity over the ordinary perspicuity of language, to contend that the liberty, here used, can be conceived to convey an absolute unqualified right. That it was received as a privilege at the time, and has been exercised as such until the late war cannot be doubted. By accepting such privilege the government acknowledges the right to existing in Great Britain, and the only question left the slightest consideration is, whether that treaty is now in force or not? It has been ingeniously argued on the part of the claimant in the case, that the treaty of 1783 is now in force, because the late war, being for a case entirely new and distinct from the subjects of contention, which were terminated by that treaty, the declaration of war by the United States was not a violation of any of its articles. And the words of some eminent writers would seem to support such a doctrine, but a little attention to this subject will explain the grounds, upon which the true and sound doctrine firmly rests. Grotius book 3, cap. 20. section 27, has these words, "It is also a daily dispute when a peace may be said to be broken, which the Greeks call Paraspondema, for it is not directly the same thing, to give a new occasion of war and to break a peace. But there is a great difference between them as well in regard to the penalty which the breaker incurs, as with respect to the liberty of the injured party to disengage his word in the other articles of the treaty. In a note, however, to these words, the principles as received in modern times, and the reason upon which they are founded, are clearly laid down and explained. "When a new occasion of war is given in this manner the treaty of peace is thereby broken indirectly and with regard to the effect, if satisfaction for the offence be refused. For then the offended having a right to take arms in order to do himself justice, and to treat the offender as an enemy, against whom everything is lawful, he may also undoubtedly dispense with observing the conditions of the peace, though the treaty has not been formally broken with regards to its tenor." This distinction can scarce be of use in these days, because treaties of peace are conceived in such a manner, that they include an engagement to live in amity for the future in all respects, so that the least occasion of war, how new, so ever it be, may be deemed an infringement of the most important articles of the treaty. It will be found that the treaty of 1783 contained an engagement that there should be a firm and perpetual peace between the two countries, and that such engagement was violated by the declaration of the late war no human being can be permitted to doubt, I am therefore bound to declare, that the treaty of 1783, and all the privileges depending thereon have ceased. |
|
I have now fully considered the grounds of defence in this
case, and as I do not perceive either truth in the distress, or
strength in the right, set up by the claimant, I feel myself
compelled to pronounce this vessel and the goods laden on board
of her, to be liable to confiscation, for a violation of the laws
of trade and navigation. In pronouncing this judgment, I derive a consolation, from the reflection, that my errors may be corrected by an appeal to one of the most upright and learned judges the world ever saw. From the decisions of that tribunal, I have humbly endeavoured to draw the principles which should govern men, and I trust, that when the solemn scrutiny to which this decree is open shall be made, it will be found that while my labours were directed by a sacred regard to the interest of an obscure and indigent foreigner, I did not forget the rights and the claims of every British subject, nor relax by a feeble construction, that noble system of laws, upon which the wisdom of ages had reared our national prosperity and greatness. |
||
Halifax, September 30, 1818. | ||
| Tomorrow the interdiction of British vessels from Nova Scotia and New Brunswick, to an entry into the parts of the United States commences. This proceeding of the American government we cannot but consider as excessively ill-natured. Two reasons are assigned; first, that the act opening the ports of Halifax and St. John to American vessels, is limited in its duration, and secondly, that it restricts the importations in them to certain articles. Had the act been passed without the limitation and restriction alluded to, the American cabinet would, we have no doubt, have discovered, in its selfish policy, some other grounds, equally plausible, for the adoption of the harsh, unfriendly measure. | ||
| G.R. Bossé©1998-03. | Posted: Nov. 12, 1999. |
Updated: July 15, 2003. |
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