Government, the United States recognized in the tenor of these instructions" a generous spirit of amity." But subsequently, during the same season, it was learned that the colonial authorities were asserting the right to exclude American fishermen from entering the ports of the Dominion, either for the purpose of obtaining bait or supplies or of transshipping their cargoes of fish under the system of bonded transit which had long been in existence.' Action of colonial authorities. "During the conferences which preceded the negotiation of the convention of 1818, the British commissioners proposed to expressly exclude the fishermen of the United States from the privilege of carrying on trade with any of his Britannic Majesty's subjects residing within the limits assigned for their use; and also that it should not be lawful for the vessels of the United States engaged in said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated with her cargo.' "This proposition, which is identical with the construction now put upon the language of the convention, was emphatically rejected by the American commissioners, and thereupon was abandoned by the British plenipotentiaries, and Article I, as it stands in the convention, was substituted." President Grant, Second Annual Message, Dec. 5, 1870. This article is criticised by Pomeroy, in an article on the Northeastern The allusion made by President Grant to the negotiations of the conven- a For. Rel. 1870, 421-422. For. Rel. 1870, 422–434. “Information furnished by various United States consuls in Canada shows that for a number of years past our fishing vessels have been permitted to carry merchandise, enter at the custom-houses, and buy supplies other than wood and water, but that this practice has recently been stopped." (Article by Prof. Pomeroy on the Northeastern Fisheries, Am. Law Rev. 1870-71, V. 389, 411, citing II. Ex. Doc. 1, 41 Cong. 3 sess. 422–434.) "Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts toward our fishermen, I recommend you to confer upon the Executive the power to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandise in bond across the territory of the United States to Canada; and, further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States." (President Grant, Second Annual Message, 1870.) tion of the right to fish within three marine miles of the coasts, bays, creeks, and harbors, was followed by the proviso that the American fishermen should be permitted to enter those places "for the purpose only of obtaining shelter, wood, water, and bait, but under such restrictions as may be necessary to prevent their drying or curing fish therein, or in any other manner abusing the privilege hereby reserved to them." The British plenipotentiaries on October 6 presented a counter project, in which, after stipulating that United States fishing vessels should have the liberty to enter bays and harbors for the purpose of shelter or of repairing damages therein, and of purchasing wood and obtaining water, and for no other purpose," and that 'all vessels so resorting to the said bays and harbors should be " under such restrictions as may be necessary to prevent their taking, drying, and curing fish therein," they proposed to declare that it was "further well understood" that the "liberty of taking, drying, and curing fish" inshore, where it was granted by the article, should “not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits hereinbefore assigned to the use of the fishermen of the United States for any of the purposes aforesaid; " that, in order the more effectually to guard against smuggling, it should "not be lawful for the vessels of the United States engaged in the said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of their voyages to and from the said fishing grounds," and that any United States vessel which contravened this regulation might be seized, condemned, and confiscated, together with her cargo. On the 7th day of October the American plenipotentiaries replied that, whatever extent of fishing ground might be secured to American fishermen, they were not prepared to accept it on a tenure or on conditions different from those on which the whole had previously been held, and that making vessels liable to confiscation, in case any articles not wanted for carrying on the fishery should be found on board, would expose the fishermen to endless vexations. The British plenipotentiaries, in turn, on October 13, presented a draft of an article which was accepted by the American plenipotentiaries, and which was textually embodied in the first article of the convention. It differs little, so far as the present discussion is concerned, from the article submitted by the American plenipotentiaries on the 17th of September, except in the omission of the word "bait." The United States subsequently contended that the "bait" referred to was bait for cod, which was then caught in the waters in question, and that it was not intended to prevent the purchase in British ports of bait for the mackerel fishery, which did not begin in those waters till several years afterward. (Papers relating to the Treaty of Washington, VI. 280–282.) "The right of our fishermen under the treaty of 1818 did not extend to the procurement of distinctive fishery supplies in Canadian ports and harbors; and one item supposed to be essential, to wit, bait, was plainly denied them by the explicit and definite words of the treaty of 1818, emphasized by the course of the negotiation and express decisions which preceded the conclusion of that treaty." (Message of President Cleveland to the Senate, Feb. 20, 1888, S. Ex. Doc. 113, 50 Cong. 1 sess. 130.) November 25, 1870, the American fishing vessel White Fawn was seized at Head Harbor, New Brunswick, for having Bait question. obtained there a quantity of herrings to be used as bait for fishing. She was taken to St. John, where she was afterwards libelled for forfeiture. Judgment was rendered by Judge Hazen, in the vice-admiralty court. He cited, first, the Imperial statute, 59 Geo. III. cap. 38, which declared that if any foreign vessel, or person on board thereof, "shall be found to be fishing, or to have been fishing, or preparing to fish within, such distance [three marine miles] of the coast, such vessel and cargo shall be forfeited; and also the Dominion statute of 1868 (31 Vic. c. 61), as amended by the statute of 1870 (33 Vic. c. 15), which enacts: "If such foreign vessel is found fishing, or preparing to fish, or to have been fishing in British waters, within three marine miles of the coast, such vessel, her tackle, etc., and cargo, shall be forfeited." With reference to these statutes Judge Hazen said: "I think, before a forfeiture could be incurred, it must be shown that the preparations were for an illegal fishing in British waters. . . . The construction sought to be put upon the statutes by the Crown officers would appear to be thus: ‘A foreign vessel, being in British waters and purchasing from a British subject any article which may be used in prosecuting the fisheries, without its being shown that such article is to be used in illegal fishing in British waters, is liable to forfeiture as preparing to fish in British waters.' I cannot adopt such a construction. I think it harsh and unreasonable and not warranted by the words of the statutes. It would subject a foreign vessel, which might be of great value, as in the present case, to forfeiture, with her cargo and outfits, for purchasing (while she was pursuing her voyage in British waters, as she lawfully might do, within three miles of our coast) of a British subject any article, however small its value (a cod line or net, for instance), without its being shown that there was any intention of using such articles in illegal fishing in British waters before she reached the fishing ground to which she might legally resort for fishing under the terms of the statutes. I construe the statutes simply thus: If a foreign vessel is found, 1st, having taken fish; 2d, fishing, although no fish have been taken; 3d, preparing to fish, i. e., with her crew arranging her nets, lines, and fishing tackle for fishing, though not actually applied to fishing, in British waters, in either of those cases specified in the statutes the forfeiture attaches. I think the words preparing to fish' were introduced for the purpose of preventing the escape of a foreign vessel which, though with intent of illegal fishing in British waters, had not taken fish or engaged in fishing by setting nets and lines, but was seized in the very act of putting out her lines, nets, etc., into the water, and so preparing to fish.... Taking this view of the statutes, I am of the opinion that 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. H. 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 Halifax Daily Reporter and Times, Nov. 15, 1871, Documents and Proceedings of the Halifax Commission, III. 33953398. "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." ་་ Note of Dr. Wharton, Int. Law Dig. 2d ed. III. 52, § 304. He also added: |