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the said bays or harbors, or in any other manner whatever abusing the said privileges by the said treaty and this act reserved to them, and as shall for that purpose be imposed by an order or orders to be from time to time made by His Majesty in council under the authority of this act, and by any regulations which shall be issued by the governor or person exercising the office of governor in any such parts of His Majesty's dominions in America, under or in pursuance of any

such an order in council as aforesaid.'

"It further provides as follows:

"That if any person or persons upon requisition made by the governor of Newfoundland, or the person exercising the office of governor, or by any governor or person exercising the office of governor, in any other parts of His Majesty's dominions in America as aforesaid, or by any officer or officers acting under such governor, or person exercising the office of governor, in the execution of any orders or instructions from His Majesty in council, shall refuse to depart from such bays or harbors; or if any person or persons shall refuse or neglect to conform to any regulations or directions which shall be made or given for the execution of any of the purposes of this act; every such person so refusing or otherwise offending against this act shall forfeit the sum of £200, to be recovered, &c.'

"It will be perceived from these extracts, and still more clearly from a perusal of the entire act, that while reciting the language of the treaty in respect to the purposes for which American fishermen may enter British ports, it provides no forfeiture or penalty for any such entry unless accompanied either (1) by fishing or preparing to fish within the prohibited limits, or (2) by the infringement of restrictions that may be imposed by orders in council to prevent such fishing or the drying or curing of fish, or the abuse of privileges reserved by the treaty, or (3) by a refusal to depart from the bays or harbors upon proper requisition.

"It thus plainly appears that it was not the intention of Parliament, nor its understanding of the treaty, that any other entry by an American fishing vessel into a British port should be regarded as an infraction of its provisions, or as affording the basis of proceedings against it.

"No other act of Parliament for the carrying out of this treaty has ever been passed. It is unnecessary to point out that it is not in the power of the Canadian Parliament to enlarge or alter the provisions of the act of the Imperial Parliament, or to give to the treaty either a construction or a legal effect not warranted by that act.

"But until the effort which I am informed is now in progress in the Canadian Parliament for the passage of a new act on the subject, introduced since the seizures under consideration, I do not understand that any statute has ever been enacted in that Parliament which at

tempts to give any different construction or effect to the treaty from that given by the act of 59 George III.

"The only provincial statutes which, in the proceedings against the David J. Adams, that vessel has thus far been charged with infringing are the colonial acts of 1868, 1870, and 1883. It is therefore fair to presume that there are no other colonial acts applicable to the case, and I know of none.

"The act of 1868, among other provisions not material to this discussion, provides for a forfeiture of foreign vessels found fishing, or preparing to fish, or to have been fishing, in British waters within three marine miles of the coast,' and also provides a penalty of $400 against a master of a foreign vessel within the harbor who shall fail to answer questions put in an examination by the authorities. No other act is by this statute declared to be illegal; and no other penalty or forfeiture is provided for.

"The very extraordinary provisions in this statute for facilitating forfeitures and embarrassing defense, or appeal from them, not material to the present case, would, on a proper occasion, deserve very serious attention.

"The act of 1883 has no application to the case, except upon the point of the omission of the vessel to report to the customs officer already considered.

"It results, therefore, that at the time of the seizure of the David J. Adams and other vessels there was no act whatever, either of the British or colonial parliaments, which made the purchase of bait by those vessels illegal, or provided for any forfeiture, penalty, or proceedings against them for such a transaction, and even if such purchase could be regarded as a violation of that clause of the treaty which is relied on, no law existed under which the seizure could be justified. It will not be contended that custom-house authorities or colonial courts can seize and condemn vessels for a breach of the stipulations of a treaty when no legislation exists which authorizes them to take cognizance of the subject, or invests them with any jurisdiction in the premises. Of this obvious conclusion the Canadian authorities seem to be quite aware. I am informed that since the seizures they have pressed or are pressing through the Canadian Parliament in much haste an act which is designed for the first time in the history of the legislation under this treaty to make the facts upon which the American vessels have been seized illegal, and to authorize proceedings against them therefor.

"What the effect of such an act will be in enlarging the provisions of an existing treaty between the United States and Great Britain need not be considered here. The question under discussion depends upon the treaty and upon such legislation warranted by the treaty as existed when the seizures took place.

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"The practical construction given to the treaty down to the present time has been in entire accord with the conclusions thus deduced from the act of Parliament. The British Government has repeatedly refused to allow interference with American fishing vessels, unless for illegal fishing, and has given explicit orders to the contrary.

"On the 26th of May, 1870, Mr. Thornton, the British minister at Washington, communicated officially to the Secretary of State of the United States copies of the orders addressed by the British admiralty to Admiral Wellesley, commanding Her Majesty's naval forces on the North American station, and of a letter from the colonial department to the foreign office, in order that the Secretary might see the nature of the instructions to be given to Her Majesty's and the Canadian officers employed in maintaining order at the fisheries in the neighborhood of the coasts of Canada.' Among the documents thus transmitted is a letter from the foreign office to the secretary of the admiralty, in which the following language is contained: "The Canadian government has recently determined, with the concurrence of Her Majesty's ministers, to increase the stringency of the existing practice of dispensing with the warnings hitherto given, and seizing at once any vessel detected in violating the law.

"In view of this change and of the questions to which it may give rise, I am directed by Lord Granville to request that you will move their lordships to instruct the officers of Her Majesty's ships employed in the protection of the fisheries that they are not to seize any vessel unless it is evident and can be clearly proved that the offense of fishing has been committed and the vessel itself captured within three miles of land.'

"In the letter from the lords of the admiralty to Vice-Admiral Wellesley of May 5, 1870, in accordance with the foregoing request, and transmitting the letter above quoted from, there occurs the following language:

"My lords desire me to remind you of the extreme importance of commanding officers of the ships selected to protect the fisheries exercising the utmost discretion in carrying out their instructions, paying special attention to Lord Granville's observation that no vessel should be seized unless it is evident and can be clearly proved that the offense of fishing has been committed, and that the vessel is captured within three miles of land."

“Lord Granville, in transmitting to Sir John Young the aforesaid instructions, makes use of the following language:

Her Majesty's Government do not doubt that your ministers will agree with them as to the propriety of these instructions, and will give corresponding instructions to the vessels employed by them.’

"These instructions were again officially stated by the British

minister at Washington to the Secretary of State of the United States in a letter dated June 11, 1870.

"Again, in February, 1871, Lord Kimberly, colonial secretary, wrote to the Governor-General of Canada as follows:

"The exclusion of American fishermen from resorting to Canadian ports, except for the purpose of shelter, and of repairing damages therein, purchasing wood, and of obtaining water, might be warranted by the letter of the treaty of 1818, and by the terms of the imperial act 59 George III, chap. 38, but Her Majesty's Government feel bound to state that it seems to them an extreme measure, inconsistent with the general policy of the Empire, and they are disposed to concede this point to the United States Government under such restrictions as may be necessary to prevent smuggling, and to guard against any substantial invasion of the exclusive rights of fishing which may be reserved to British subjects.'

"And in a subsequent letter from the same source to the GovernorGeneral, the following language is used:

“I think it right, however, to add that the responsibility of determining what is the true construction of a treaty made by Her Majesty with any foreign power must remain with Her Majesty's Government, and that the degree to which this country would make itself a party to the strict enforcement of the treaty rights may depend not only on the literal construction of the treaty, but on the moderation and reasonableness with which these rights are asserted.'

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"I am not aware that any modification of these instructions or any different rule from that therein contained has ever been adopted or sanctioned by Her Majesty's Government.

“Judicial authority upon this question is to the same effect. That the purchase of bait by American fishermen in the provincial ports has been a common practice is well known. But in no case, so far as I can ascertain, has a seizure of an American vessel ever been enforced on the ground of the purchase of bait, or of any other supplies. On the hearing before the Halifax Fisheries Commission in 1877 this question was discussed, and no case could be produced of any such condemnation. Vessels shown to have been condemned were in all cases adjudged guilty, either of fishing, or preparing to fish, within the prohibited limit. And in the case of the White Fawn, tried in the admiralty court of New Brunswick before Judge Hazen in 1870, I understand it to have been distinctly held that the purchase of bait, unless proved to have been in preparation for illegal fishing, was not a violation of the treaty, nor of any existing law, and afforded no ground for proceedings against the vessel.

"But even were it possible to justify on the part of the Canadian authorities the adoption of a construction of the treaty entirely different from that which has always heretofore prevailed, and to de

clare those acts criminal which have hitherto been regarded as innocent, upon obvious grounds of reason and justice, and upon common principles of comity to the United States Government, previous notice should have been given to it or to the American fishermen of the new and stringent instructions it was intended to enforce.

"If it was the intention of Her Majesty's Government to recall the instructions which I have shown had been previously and so explicitly given relative to the interference with American vessels, surely notice should have been given accordingly.

"The United States have just reason to complain, even if these restrictions could be justified by the treaty or by the acts of Parliament passed to carry it into effect, that they should be enforced in so harsh and unfriendly a manner without notice to the Government of the change of policy, or to the fishermen of the new danger to which they were thus exposed.

"In any view, therefore, which it seems to me can be taken of this question, I feel justified in pronouncing the action of the Canadian authorities in seizing and still retaining the David J. Adams, to be not only unfriendly and discourteous, but altogether unwarrantable. "The seizure was much aggravated by the manner in which it was carried into effect. It appears that four several visitations and searches of the vessel were made by boats from the Canadian steamer Lansdowne, in Annapolis Basin, Nova Scotia. The Adams was finally taken into custody and carried out of the province of Nova Scotia, across the Bay of Fundy, and into the port of St. John, New Brunswick, and without explanation or hearing, on the following Monday, May 10, taken back by an armed crew to Digby, Nova Scotia. That, in Digby, the paper alleged to be the legal precept for the capture and detention of the vessel was nailed to her mast in such manner as to prevent its contents being read, and the request of the captain of the David J. Adams and of the United States consulgeneral to be allowed to detach the writ from the mast for the purpose of learning its contents was positively refused by the provincial official in charge. Nor was the United States consul-general able to learn from the commander of the Lansdowne the nature of the complaint against the vessel, and his respectful application to that effect was fruitless.

"From all the circumstances attending this case, and other recent cases like it, it seems to me very apparent that the seizure was not made for the purpose of enforcing any right or redressing any wrong. As I have before remarked, it is not pretended that the vessel had been engaged in fishing, or was intending to fish in the prohibited waters, or that it had done or was intending to do any other injurious act. It was proceeding upon its regular and lawful business of fishing in the deep sea. It had received no request, and of course

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