The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-05-08


We have recently met with the judgment de-
On the Gath Of August, 1918, in the case Of the
schooner Nabby, which led to the convention Of
that year, under which the British government
claim the right Of excluding American fishing vessels
from the extensive bays and harbors Of the North
American coast, that previous to the war Of 1919
they were permitted to frequent, . notice Of which
at the present moment, when negotiations are pond
ing on the subject, will doubtless DO perused with
interest.
1t was commended by the capton that the Nabby
having been taken while engaged in the fishery on
the coasts Of Nova Scotia, had violated the terri
toria rights Of Great Britain and should, therefore
be condemned and, secondly, that having entered
one Of the harbors OF the province, without any
ust6able cause, she had infnged the laws Of trade
and navigation, which prohibited foreigners from
trsdin with the colonies, and had, therefore, in
CURED the penalty Of those laws.
The Court, >" said the Judge, !" il called upon in
this case, during q period Of profound peace, to
enter into the consideration Of . subject which
involves the interests Of foreign nation, and to
apply in their utmost strictness those general prin
ciples of abstract and universal law which are
appealed to in questions between contendng nations.
Is is presented to the Court in its most grand and
imposing aspect, not IS collateral point, growing
out Of private interests and arising ont Of consdsra
tons Of municipal law, but as a direct and solemn
question in which the high and important rights Of
one nation are to be defined and supported, and the
claims and privileges Of another to be confirmed or
annihilated The violated rights Of Great Britain
represented seeking, in the dignity Of insulted
greatness the protection Of its sacred tribunals and
claiming, in the time Of peace, from public justice,
that defence which they have found in war beneath
the arms Of their brave defenders. Certain acts Of
citizens Of the United States are held up to the
Court the infringement of territorial rights, made
under the pretext OF privileges become obsolete and
now unac knowledged, and the coniscation Of pro-
perty is demanded as the just and unavoidable
penalty Of the offence
The Nabby was seized by the sloop of war Saracen,
under the orders of the Admiral Of the station for
having entered one Of the ports Of Nova Scotia %
the master stated on his examination, for the pur
pose Of obtaining supply Of water, Of which he was
deficient But the Judge decided, that without in
structions from the British government the Court
had no power to condemn the vessel for any viola-
ton Of treaty stipuatons and could do no more than
to order the detention of the vessel until its decision
should be received and commission had been issued
authorizing the condemnation Of this vessel and
others similarly situated and he cites the decision of
the Judge Of the same court in 1872 in cases where
vessels had been seized and detained in consequence
Of declaration Of war made by the United States
given by the King in Council for general reprisals and
before any orders had been issued to require the
court to judge and condemn such ships, vessels and
goods shall belong to the United States; which he
until the British government had declared the citI-
gems Of the United States to be enemies by its
order for general reprisals, and by warrant to
denim their goods.
alleged that the citizens Of the United States have
violated the rights of Great Britain by entering its
territory and fishing therein and therefore, that the
vessel 30 found should be condemned But he added,
II they had captured and destroyed the property Of
British subjects both by and land this court would
not be authorized to condemn until it should be COM
handed to do SO by the Sovereign" He therefore
but ordered her to be detained in custody until direc
tions should be received from England. He subso-
quently, however, pronounced the vessel and the
goods laden on board of her to be liable to consca-
ton for violation of the laws of trade and navga-
tion for having entered port Of the province for
the given it had not been proved that the
deficiency of water did not arise either from design
or an unjustiiabe neglect; and, let it have arisen
to place the crew in imminent danger of perishing"
But it was boldly asserted by the claimants in this
case, that, as citizens Of the United States, they
had right to engage in the fisheries on the coasts
and in the habors of the province, under the treaty
Of 1885," and who commended that +" the right to
take fish on its coasts and in its harbors and bays
and to cure the same on Its shores, was absolutely
acknowledged and given by the third article Of that
the treaty itself had not been annulled.'
1t might be sufficient" observed the Judge, "for
me to say, on this point that his Majesty's govern
ment, having determined that the privileges granted
to the citizens Of the United States by the treaty Of
17S3 to carry the fishery upon the coasts of the
province and to fish in the harbors thereof had
ceased, and that determination having been made
known, it would not be necessary to consider this
right entitled to any attention. But" he added,
las it will require but little reasoning to show the
weakness Of such pretensons shall take cursory
view Of the grounds upon which this extraordinary
right seems to have been placed"
He then referred to the third article alluded TO- in
which, he said, two objects seem to have been in
view. The first was the fishery on the Grand Bank,
in the Gulf of St. Lawrence and other places in the
sea- and the second was the privilege which was in
tended to be granted to the people Of the United
States to take and cure fish the coast, and in the
bays creeks and harbors Of the British dominions in
North America. That this was received as privi-
lege at the time, and has been exercised as such
such privilege, that government acknowledged the
right to exist in Great Britain; and the only question
left for the slightest consideration is whether that
treaty is now in force OF not
We quote at length the reasoning Of the Judge
in favor Of the negative of this proposition. 1t has
been ingeniously argued" he observes, " on the
part of the claimants this cause that the treaty Of
l7s3 is in force because the late war being for
cause entirely new and distinct from the subjects
Of contention which terminated by that treaty,
the declaration Of by the United States was not
violation of any of its articles. And the words Of
some eminent writer's would seem to support such q
doctrine; but little attention to this subject will
explain the grounds upon which the true and sound
doctrine firmly rests Grotius book 8, chap. TO- has
these words-'It is also daily dispute when peace
may be said to be broken for it is not the thing
to give new occasion Of war and to break peace.
But there is great difference between them, q well
in regard to the penalty which the breaker ncurs
with respect to the liberty of thenjured party to dis
engage his word the other articles Of the treaty
In o note, however, to these words, the principle
- received in modern times, and the reason upon
which they are founded, are clearly laid down
and explained: When a new occasion of war
il given in this manner, the treaty of peace ia