the schooner and her cargo, to show cause why the White Fawn and the articles above enumerated with her tackle, etc., should not be considered as forfeited to the Crown for a violation of the Imperial Statute 59, George III., Cap. 38, and the Dominion Statutes 31 Vic., Cap. 61, and 33 Vic., Cap. 15.

The White Fawn, as it appears from her papers, was a new vessel of 64 tons, and registered at Gloucester, Massachusetts, in 1870, and owned in equal shares by Messrs. Somes, Friend, and Smith, of that place;

That she was duly licensed for one year, to be employed in the Coasting Trade and Fisheries, under the laws of the United States;

247 That by her "Fishery Shipping Paper," signed by the

master and ten men, the usual agreement was entered into for pursuing the Cod and other Fisheries, with minute provisions for the division of the profits among the owners, skipper, and crew. These papers and other documents found on board, are all in perfect order, and not the slightest suspicion can be thrown upon them. The Seamen's Articles are dated 19th November, 1870-On the 24th Nov., 1870, she arrived at Head Harbour, a small bay in the eastern end of Campobello, in the county of Charlotte, in this Province.

Captain Betts, a Fishery Officer, in command of the Water Lily, a vessel in the service of the Dominion, states that on the 25th November he was lying with his vessel at Head Harbor. Several other vessels, and among them the White Fawn, were lying in the harbor; that he went on board the White Fawn: He states a number of particulars respecting the vessel from her papers, and adds that the said vessel, White Fawn, had arrived at Head Harbor on the 24th Nov., and had been engaged purchasing fresh herrings, to be used as bait in trawl fishing; that there were on board about 5,000 herrings, which had been obtained and taken on board at Head Harbour; also 15 tons of ice, and all the materials and appliances for trawl fishing, and that the master admitted to him that the herring had been obtained at Head Harbour by him for the purpose of being used as bait for fishing. There are then some remarks as to the master being deceived as to the fact of the cutter being in the neighbourhood, which are not material; and, that deponent further understood that persons had been employed at Head Harbor to catch the herring for him; that he seized the schooner on the 2th, [sic], and arrived with her the same evening at St. John, and delivered her on the next day to the Collector of the Customs.

No reason is given for the delay which has taken place of more than two months in proceeding against the vessel, which was seized, as alleged by Captain Betts, for a violation of the terms of the Convention and the laws of Canada; her voyage was broken up, and her crew dispersed at the time of the seizure.

By the Imperial Statute, 59 George III., cap. 38, it is 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."

The Dominion Statute, 31 Vic., Cap. 61, as amended by 33 Vic., Cap. 15, 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."

The White Fawn was a foreign vessel in British waters; in fact, within one of the Counties of this Province when she was seized. It is not alleged that she is subject to forfeiture for having entered Head Harbour for other purposes than shelter or obtaining wood and water. Under section III, of the Imperial Act, no forfeiture but a penalty can be inflicted for such entry. Nor is it alleged that she committed any infraction of the Customs or Revenue Laws. It is not stated that she had fished within the prescribed limits, or had been found fishing, but that she was "preparing to fish," having bought bait (an article no doubt very material if not necessary for successful fishing) from the inhabitants of Campobello. Assuming that the fact of such purchase establishes a "preparing to fish" under the Statutes (which I do not admit), I think, before a forfeiture could be incurred, it must be shown that the preparations were for an illegal fishing in British waters: hence, for aught which appears, the intention of the Master may have been to prosecuting [prosecute] his fishing outside of the three-mile limit, in conformity with the Statutes; and it is not for the Court to impute fraud or an intention to infringe the provisions of our statutes to any person, British or foreign, in the absence of evidence of such fraud. He had a right, in common with all other persons, to pass with his vessel through the three miles, from our coast to the fishing grounds outside, which he might lawfully use, and, as I have already stated. there is no evidence of any intention to fish before he reached such grounds.

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 in 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 found1st, having taken fish; 2nd, fishing, although no fish have been taken; 3rd, 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, ets., into the water, and so preparing to fish. Without these a vessel so situated would escape seizure, inasmuch as the crew had neither caught fish nor been found fishing. Taking this view of the Statutes, I am of the opinion that 248 the facts disclosed by the affidavits do not furnish legal grounds for the seizure of the American schooner White Fawn, by Captain Betts, the commander of the Dominion vessel Water Lily, and do not make out a primâ facie case for condemnation in this Court, of the schooner, her tackle, &c., and cargo.

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, as the Imperial Act 59, George III., Cap. 38, gave concurrent jurisdiction to that Court in cases of this nature.

Sir WILLIAM YOUNG.

This is an American fishing vessel of seventy tons burthen, owned at Salen, Massachusetts, and sailing under a Fishing License issued by the Collector of that Port, and dated March 25th, A. D., 1869. In the month of June 1870, she was seized by Captain Tory of the Dominion Schooner Ida E., while in the North Bay of Ingonish, Cape Breton, about three or four cable lengths from the shore; and it appeared the offense charged against her was that she had run into that Bay for the purpose of procuring bait, had persisted in remaining there for that purpose after warning to depart therefrom, and not to return, and had procured or purchased bait while there. This case, therefore, differs essentially from the cases I have already decided. It comes within the charge of preparing to fish-a phrase to be found in all the British and Colonial Acts, but not in the Treaty of 1818. In giving judgment 10th February last, in the case of the A. J. Franklin, I referred to the case in hand, and stated that I would pronounce judgment in this also in a few days, which I was prepared to do. But it was intimated to the Court that some compromise or settlement might possibly take place in reference to the instructions that had been issued from time to time to the crusiers, and to the negotiations pending between the two Governments, and I have accordingly suspended judgment until now, when it has been formally moved for.

The same asguments [arguments] were urged at the hearing of this cause as in the case of the Wampatuck on the wisdom of the Treaty of 1818, and some severe strictures were passed on the spirit and tendency of the Two Dominion Acts of 1868 and 1870. To all such arguments and strictures the same answer must be given in this as in my former judgments. The libel sets out in separate articles the-e two acts with the treaty, and the Imperial Acts of 1819 and 1867, all of which are admitted without any questions raised thereon in the responsive allegation. I must take them, therefore, both on general principles and on the pleading, as binding on this court; and it is of no consequence whether the judge approves or disapproves of them.

92909-S. Doc. 870, 61-3, vol 4- -37

A judge may sometimes intimate a desire that the enactments he is called upon to enforce should be modified or changed; but until they are repealed in whole or in part, they constitute the law, which it is his business and his duty to administer.

It being, then, clearly established that the "J. H. Nickerson" entered a British port, and was anchored within three marine miles of the coast off Cape Breton, for the purpose of purchasing or procuring bait, and did there purchase or procure it in June, 1870, the single question arises on the Treaty of 1818 and the Acts of the Imperial and Dominion Parliaments. Is this a sufficient ground for seizure and condemnation? This was said at the hearing to be a test case,the most important that had come before the Court since the termination of the Reciprocity Treaty of 1854. But it has lost much of its importance since the hearing in February, and the present aspect of the question would scarcely justify the elaborate review which might otherwise have been reasonably expected. If the law should remain as it is, and the instructions issued from Downing Street on the 30th of April and by the Dominion Government on the 27th June, 1870, as communicated to Parliament, were to continue, no future seizure like the present could occur; and if the Treaty of 1818 and the Acts consequent thereon are superseded, this judgment ceases to have any value beyond its operation on the case in hand.

The first article of the Convention of 1818 must be construed, as all other instruments are, with a view to the surrounding circumstances and according to the plain meaning of the words employed. The subtleties and refinements that have been applied to it will find little favor with a Court governed by the rules of sound reason, nor will it attach too much value to the protocols and drafts or the history of the negotiations that preceded it. We must assume that it was drawn by able men and ratified by the governments of two great powers, who knew perfectly well what they were respectively gaining or conceding, and took care to express what they meant. After formal renunciation by the United States of the liberty of fishing, theretofore enjoyed or claimed, within the prescribed limits of three marine miles of any of our bays or harbors, they guard themselves by this proviso: " Provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter and repairing damage therein, of purchasing wood and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent them taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them."

These privileges are explicitly and clearly defined, and to make assurance doubly sure, they are accompanied by a negative declaration excluding any other purpose beyond the purpose expressed. I confine myself to the single point that is before me. There is no

charge here of taking fish for bait or otherwise, nor of drying 249 or curing fish, nor of obtaining supplies or trading. 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 harbours 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."

No. 157.-1872, March 6: Circular issued by Mr. Geo. S. Boutwell.

[No. 16.]

Navigation Division, Circular No. 5.

RELATIVE TO THE FISHERIES ON THE COASTS OF THE BRITISH NORTH AMERICAN COLONIES.

To Collectors of Customs:

TREASURY DEPARTMENT, Washington, D. C., March 6, 1872.

As the season for fishing on the coast of the British Possessions in our vicinity is approaching, it is considered important that fishermen of the United States intending to pursue their business in the locality mentioned, should be thoroughly acquainted with the laws and regulations governing the matter, in order to avoid incurring the penalties for violations thereof. To that end the following Circular, issued by this Department June 9, 1870, is republished, as containing information still applicable.