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 prima 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 a 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 de

fendants 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.

You will please endeavour to bring the contents of the Circular to the attention of all parties concerned, at the same time notifying them that the provisions of the Treaty between the United States and Great Britain, proclaimed July 4, 1871, relating to the fisheries, will not go into effect until the laws required to carry them into operation shall have been passed by the various Governments mentioned in Article XXXIII, and warning them that their business must yet be carried on subject to the restrictions existing at the time of the ratification of the Treaty:

CIRCULAR.

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In compliance with the request of the Secretary of State, you are hereby authorized and directed to inform all masters of fishing vessels, at the time of clearance from your port, that the authorities of the Dominion of Canada have terminated the system of granting fishing licenses to foreign vessels, under which they have heretofore been permitted to fish within the maritime jurisdiction of the said Dominion, that is to say, within three marine miles of the shores thereof; and that all fishermen of the United States are prohibited from the use of such in-shore fisheries, except so far as stipulated in the first Article of the Treaty of October 20, 1818, between the United States and Great Britain, in virtue of which the fishermen of the United States have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands; on the Western and Northern coast of Newfoundland. from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands; and, also, on the coasts, bays, harbours, and creeks, from Mount Joly, which was, when the Treaty was signed, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly, indefinitely along the coast, without prejudice, however, to any exclusive rights of the Hudson's Bay Company; and, have also, liberty forever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, above described, and of the coast of Labrador, unless the same, or any portion thereof, be settled; in which case it is not lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground; and, also, are admitted to enter any other bays or harbours, for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever, subject to such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges reserved to them as above expressed. Fishermen of the United States are bound to respect the British laws and regulations for the regulation and preservation of the fisheries to the same extent to which they are applicable to British or Canadian fishermen.

The Canadian Law of the 22d of May, 1868, (31 Victoria, cap. 61), entitled "An Act respecting Fishing by Foreign Vessels," and the Act assented to on the 12th of May, 1870, entitled "An Act to amend the Act respecting Fishing by Foreign Vessels," among other things, enact, that any commissioned officer of Her Majesty's navy, serving on board of any vessel of Her Majesty's navy. cruizing and being in the waters of Canada, for the purpose of affording protection to Her Majesty's subjects engaged in the fisheries, or any commissioned officer of Her Majesty's navy, fishery officer, or stipendiary magistrate, on board of any vessel belonging to or in the service of the Government of Canada, and employed in the service of protecting the fisheries, or any officer of the Customs of Canada, sheriff, magistrate, or other person duly commissioned for that purpose, may go on board of any ship, vessel, or boat, within any harbour in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours in Canada, and stay on board so long as she may remain within such place or distance; and that any one of such officers or persons, as are above mentioned, may bring any ship, vessel, or boat, being within any harbour in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours in Canada, into port and search her cargo, and may also examine the master upon oath touch

ing the cargo and voyage; and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit four hundred dollars; and if such ship, vessel, or boat be foreign, or not navigated according to the laws of the United Kingdom or of Canada, and has been found fishing, or preparing to fish, or to have been fishing (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours of Canada, not included within the above-mentioned limits, without a license, or after the expiration of the period named in the last license granted to such ship, vessel, or boat under the first section of this Act, such ship, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof, shall be forfeited. And that all goods, ships, vessels, and boats, and the tackle, rigging, apparel, and furniture, stores, and cargo liable to forfeiture under this Act may be seized and secured by any officers or persons mentioned in the second section of this Act. And every person opposing any officer or person in the execution of his duty under this Act, or aiding or abetting any other person in any opposition, shall forfeit eight hundred dollars, and shall be guilty of a misdemeanour, and upon conviction be liable to imprisonment for a term not exceeding two years.

It will be observed that the warning formerly given is not required under the Amended Act, but that vessels trespassing are liable to seizure without such warning.

"On the 8th January, 1870, the Governor General of the Dominion of Canada, in Council, ordered that suitable sailing vessels, similar to the "La Canadienne," be chartered and equipped for the service of protecting the Canadian in-shore fisheries against illegal encroachments by foreigners, these vessels to be con nected with the police force of Canada, and to form a marine branch of the same. It is understood that, by a change of the boundaries between Canada and Labrador, the Canadian territory now includes Mount Joly and a portion of the shore to the east thereof, which, in the Treaty of 1818, was described as the southern coast of Labrador. This municipal change of boundary does not, however, interfere with the rights of American fishermen, as defined by the Treaty, on that portion of what was the southern Coast of Labrador, east of Mount Joly.

There is reason to apprehend that the Canadian authorities will adopt similar measures towards preventing encroachments upon the British fisheries during the season of 1872.

Very respectfully,

GEO. S. BOUTWELL, Secretary of the Treasury.

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No. 158.-1873, March 14: Letter from Mr. Fish (United States Secretary of State) to Sir E. Thornton (British Minister at Washington).

DEPARTMENT OF STATE. Washington, 14 March 1873. SIR: I have the honour to acknowledge the receipt of your note of the 8th instant inclosing copy of a Report of the Committee of the Privy Council of Canada made to the Governor General of that Dominion, recommending that American vessels should not be prevented from fishing within the three mile limit before the Act of Congress giving effect to the Articles of the Treaty of Washington relating to Canada comes into effect, on the 1st of July next.

I am instructed by the President to express his appreciation of this liberal recommendation of the Committee of the Privy Council for removing the last impediment to the friendly relations which he desires to have subsist between two peoples so near neighbours and so bound to each other by the ties of commercial interest and of personal intercourse.