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the facts disclosed by the affidavits do not furnish legal grounds for the seizure... and do not make out a prima facie case for condemnation. ... I may add that as the construction I have put upon the statute differs from that adopted by the Crown officers of the Dominion, it is satisfactory to know that the judgment of the Supreme Court may be obtained by information, filed there."

Documents and Proceedings of the Halifax Commission, III. 3381.

It does not appear that further action in the case was taken.

In June, 1870, the American fishing vessel J. II. Nickerson was seized in the North Bay of Ingonish, Cape Breton, on the charge of having entered to procure bait and of having procured or purchased it. She was libelled in the vice-admiralty court at Halifax for forfeiture, the libel setting out the imperial acts of 1819 and 1867 and the Dominion statutes of 1868 and 1870. Judgment was delivered by Sir William Young November 15, 1871. After reciting the facts and commenting upon the circumstance that the case had, by reason of the conclusion of the treaty of Washington of May 8, 1871, “lost much of its importance," he quoted the convention of 1818, and said: "The defendants allege that the Nickerson entered the Bay of Ingonish and anchored within three marine miles of the shore for the purpose of obtaining water and taking off two of her men who had friends on shore, neither the master nor the crew on board thereof, in the words of the responsive allegation, fishing, preparing to fish, nor procuring bait wherewith to fish, nor having been fishing in British waters within three marine miles of the coast.' Had this been proved, it would have been a complete defense, nor would the court have been disposed to narrow it as respects either water, provisions or wood. But the evidence conclusively shows that the allegation put in is untrue. The defendants have not claimed in their plea what their counsel claimed at the hearing, and their evidence has utterly failed them. The vessel went in, not to obtain water or men, as the allegation says, nor to obtain water and provisions, as their witness says; but to purchase or procure bait (which, as I take it, is a preparing to fish), and it was contended that they had a right to do so, and that no forfeiture accrued on such entering. The answer is, that if a privilege to enter our harbors for bait was to be conceded to American fishermen, it ought to have been in the treaty, and it is too important a matter to have been accidentally overlooked. We know, indeed, from the state papers that it was not overlooked,—that it was suggested and declined. But the court, as I have already intimated, does not insist upon that as a reason for its judgment. What may be justly and fairly insisted on is that beyond the four purposes specified in the treaty-shelter, repairs, water and wood,-here is another purpose or claim not specified; while the treaty itself declares

that no such other purpose or claim shall be received to justify an entry. It appears to me an inevitable conclusion that the J. H. Nickerson,' in entering the Bay of Ingonish for the purpose of procuring bait, and evincing that purpose by purchasing or procuring bait while there, became liable to forfeiture, and upon the true construction of the treaty and acts of Parliament, was legally seized. I direct, therefore, the usual decree to be filed for condemnation of vessel and cargo, and for distribution of the proceeds according to the Dominion act of 1871."

Extract from the Halifar Daily Reporter and Times, Nov. 15, 1871, Documents and Proceedings of the Halifax Commission, III. 3395– 3398.

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"The right to enter Canadian bays or harbors for the purpose of shelter and of repairing damages therein includes in itself the right to procure whatever supplies are necessary for the successful continuance of the voyage. The statute 3 and 4 Vict., c. 65, s. 6, gives the admiralty court jurisdiction to decide all claims and demands whatsoever . . . for necessaries supplied to any foreign ship or seagoing vessel. In The Riga (L. R. 3 Ad. and Ec. 516, 522), Sir R. Phillimore said: I am unable to draw any solid distinction (especially since the last statute) between necessaries for the ship and necessaries for the voyage. . . . I am of opinion that whatever is fit and proper for the service on which a vessel is engaged, whatever the owner of that vessel, as a prudent man, would have ordered if present at the time, comes within the meaning of the term “necessaries" as applied to those repairs done or things provided for the ship by order of the master, for which the owners are liable.' Under this ruling obtaining supplies necessary for the continuance of the voyage would be obtaining necessaries, and, a fortiori, repairing damages. See remarks of Chambre, J., in Fennings . Grenville, 1 Taunt. 248.”

6

Note of Dr. Wharton, Int. Law Dig. 2d ed. III. 52, § 304. He also added:
"Careful search has failed to supply a single case in which British
courts have sustained the confiscation of American fishing vessels on
the ground of purchase of supplies in Canadian ports. Yet, as is
shown in the proceedings of the Halifax commission, the running, by
American fishing vessels, into Canadian ports to obtain supplies has
been in conformity with ancient usage; a usage which still continues:
and this usage is recognized in the Canadian adjudications."
"Almost the very last witness we had on the stand told your honors that
before the reciprocity treaty was made we were buying bait in New-
foundland, and several witnesses from time to time have stated that
it is a very ancient practice for us to buy bait and supplies and to
trade with the people along the shore, not in merchandise as
merchants, but to buy supplies of bait and pay the sellers in money
or trade, as might be most convenient. Now, that is one of those

natural trades that grow up in all countries; it is older than any treaty; it is older than civilized states or statutes. Fisheries have but one history. As soon as there are places peopled with inhabitants fishermen go there." (Mr. Dana, Halifax Com. II. 1573.)

4. TREATY OF WASHINGTON, 1871.

§ 166.

When the Joint High Commission, which negotiated the treaty of The Joint High Washington, met on February 27, 1871, the dispute Commission. as to the fisheries was one of the subjects that had been placed within its cognizance.

Instructions of

sioners.

The British commissioners were instructed that the two chief questions were: "As to whether the expression three British commis-marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominions' should be taken to mean a limit of three miles from the coast line, or a limit of three miles from a line drawn from headland to headland; and whether the proviso that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever, is intended to exclude American vessels from coming inshore to traffic, transship fish, purchase stores, hire seamen, etc." While a preference was expressed for the conclusion of a definite understanding upon the disputed interpretation of the convention of 1818, the British commissioners were authorized to propose that "the whole question of the relations between the United States and the British possessions in North America, as regards the fisheries," should be "referred for consideration and inquiry to an international commission, on which two commissioners, to be hereafter appointed, in consultation with the government of the Dominion, should be the British representatives." As it was not probable that such a commission would be able to report, and that a treaty could be framed, before the commencement of the fishing season of 1871, the British commissioners were authorized to agree upon some means, by licenses or otherwise, by which disputes might in the meantime be avoided."

In the instructions to the American commissioners, the following grounds were taken:

Instructions of

missioners.

1. That the acquisition of the inshore fisheries for American com- the American fishermen was of more importance as removing danger of collision than on account of its money value, the latter, probably, being overestimated by the Canadians.

a Lord Granville to Her Majesty's High Commissioners, February 9, 1871. (Papers relating to the Treaty of Washington, VI. 373-374.)

2. That the headland doctrine had no foundation in the convention of 1818, and had been decided against Great Britain in the case of the schooner Washington, under the claims convention of February 8, 1853.

3. That the assumption to prevent American fishermen from purchasing bait, supplies, ice, etc., and from transshipping their fish in bond, under color of the convention of 1818, was never acquiesced in by the United States, and was carrying out in practice provisions which the American plenipotentiaries declined to insert in that convention.

4. That as the mackerel fishery, out of which the trouble mostly arose, had come into existence since 1818, it was a subject for consideration whether the convention was fairly applicable to it.

For the adjustment of these questions it was suggested that provision might be made, either—

1. By agreeing on the terms upon which the whole of the reserved fishing grounds might be thrown open to American fishermen, all obnoxious laws to be repealed, and the disputed reservation as to ports, harbors, etc., to be abrogated; or,

2. By agreeing upon the construction of the disputed renunciation, and upon the principles on which a line should be run by a joint commission to mark the territory from which the American fishermen were to be excluded; and by repealing the obnoxious laws, and agreeing on the measures to be taken for the protection of the colonial rights, such measures to prescribe the penalties for the violation of those rights, and to provide for a mixed tribunal for their enforcement. It might also, said the American instructions, be well to consider whether it should be further agreed that the fish taken in the waters open to both nations should be admitted free of duty into the United States and the British North American colonies." The results of the deliberations of the Joint High Commission on the subject of the fisheries were embodied in certain Treaty of May 8, articles of the treaty concluded at Washington May

1871.

8, 1871.

By Article XVIII. it was provided that, in addition to the liberty secured by the convention of 1818 of taking, drying. and curing fish on certain coasts of the British North American colonies, the inhabitants of the United

Restoration of fishing liberties.

States should have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article

a Papers relating to the Treaty of Washington, VI. 287–288.

For the deliberations of the Joint High Commission on this subject, see Moore, Int. Arbitrations, I. 716-719.

XXXIII. of the treaty, "to take fish of every kind, except shellfish, on the sea-coasts and shores, and in the bays, harbors and creeks, of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coasts in their occupancy for the same purpose." And it was provided that the liberty thus defined applied solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, were reserved exclusively for British fishermen.

On the other hand, it was agreed by Article XIX. that British subjects should have, in common with the citizens of the United States, and subject to such terms, conditions, and limitations as were expressed in the preceding article, the liberty to take fish, and to land for the purpose of drying nets and curing fish, on the eastern seacoast and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the adjacent islands, and in the bays, harbors, and creeks of such seacoasts and islands.

By Article XX. it was provided that the places designated by the commissioners appointed under Article I. of the recReservations. iprocity treaty of June 5, 1854, upon the coasts of the two countries, as places reserved from the common right of fishing under that treaty, should in like manner be regarded as reserved from the common right of fishing under the present article; and that, in case any question should arise as to the common right of fishing in places not thus designated as reserved, a commission should be appointed to designate such places, in precisely the same manner as under the treaty of 1854.

In addition to these stipulations, it was agreed by Article XXI. Free admission of that, for the term of years mentioned in Article fish and fish oil. XXXIII. of the treaty, "fish-oil and fish of all kinds, (except fish of the inland lakes, and of the rivers falling into them, and except fish preserved in oil,) being the produce of the fisheries of the United States, or of the Dominion of Canada, or of

a This article provided that Articles XVIII. to XXV., inclusive, and Article XXX. should go into operation as soon as the necessary laws should have been passed to give them effect, and remain in force for ten years thereafter, and further until the expiration of two years after either party should have notified the other of its wish to terminate them, each party being at liberty to give such notice at the end of the period of ten years or at any time afterward.

H. Doc. 551—51

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