The New York herald., 1871-04-24

having bought bait tan article, no doubt very male
rial II not necessary. for successful shng) rom the
inhabitants OF Cambobello Assuming that the fact
OF such purchase establishes preparing to fish,"
before a forfeiture could be incurred IL must be
shown that the preparation was for an illegal hshing
In British waters. Here Tor aught which appears,
the intention OF the master may have been Co prose-
cute his fisheries outside Of the three miles, limits,
IN con ormy with thu statutes; and II IL not for the
Court 10 lpuLe fraud intention TO infringe the
provisions 0r our statute to any person British or
lorcignl IN the absence OF evidence OF sucn fraud.
He had right, IN common with oil other persons,
to pass with his esse through the three miles from
our coasts 10 the nshing grounds outside which he
there Is no evidence Of any intention to fish before
pc reached such grounds. The construction sought
pears to be this:"A foreign vessel being in British
waters ami purchasing from British subject any
article when may be used III prosecuting the nshe.
ries, without It's being shown tat such article Ia to
be used In illegal nsning In Brush waters Is liable
to forfeiture as preparing to tlsh IN British wates
! cannot adop! such construction. think 1t
harsh ana unreasonable and not warranted by the
words OF the statutes. 1t would subject foreign
sent case, to forieue with her cargo and outfits,
ior purchasing twhle she was pursuing her voyage
mes he sSu Bsg ngn gsabeS
hne or ne. for instance without its being
Using using sucs afticie in n illesSlp isin asSiDa II
British waters before she reached The fishing grounds
the terms OF the statutes. l conslrue the statutes
simply thus:-
" q foreign VeSScl tS 10unu-
Ftfst-having taken fish. -"
Second Fishina, atlous no fsh have been taken.
Tnsrd-"Preparillg to FISH," re-, with her crew ar
ranslng her nets lines aud ashng tackle for lishlng,
though not actually applied to tsning in British wa
tera.
In either OF the cases specified in the statutes the
think the words preparing to Dish" were intro
duCei Tor The purpose preventing the escape OF
iorel1n vessel which, though with the intent Of le-
galiy snns III BRUSH waters had not taken fish or
engaged IN nshng by setting n t. or lines, but was
ult n npr
nets &c, lnto the water and SO preparing to sn."
| Without these vessel SO situated would escape
seizure nasmucll as Inc crew had neither caught
hsh nor been t0und fishing. Taxing this view OF
these satutcs am Of opinion That the facts dis
cl sed by tc aildtvts do not furnish legal grounds
for the seizure of the American schooner Wnioe
Fawn by captain Belts. the ollcsr commanding the
D0mlnlun vessel Water Lily, and do not make out a
prfla Jucie case lor Condemnation IN the court Of
the schooner. her tackle anl cargo.
may ada that, as 1.-THE construction have put
upon the statutes differs from that adopted by the
Crown officers Of the dominion, II is satisfactory
know that the jud -ment Of the Supreme Court may
be obtained BY Information filed there, as the im-
pcra act gave concurrent jurisdiction to that Court
! In Cases Oh this nature"
STILL ANOTHER PROPER DOMINION VIEW OF THE
TREATY.
This construction of the treaty by Judge Hazen-
so clearly IN har.nuny with common sense and with
the interests both Ol the people OF the proyu
the Unl,el States-ha3 also been concurrel in by
other British gentlemen OF acknowledged ability.
III the Of lne schooner NicKersoa talso nom
Massachusetts port, and seized for attempting to
purchase bait, which was argued before the Vice
Admiralty CodrI III this Guy, the same sructlun
OF the treaty III reference 10 supplies was ably and
firmly 1 sisted upon by lion. James Mcdonald and
Hon. Samuel l.. shannon. two OF the aDlesL lawyers
IN this province and boLn supporters OF the Dominion
government, they canned tnat the treaty OF lsls
must Oe construed strictly; anu as the words ''prc
paring 10 lsh' are not Contained in IT, DuG nrst
used III the imperial act OF 1919. and subsequently,
aGopted ny The colonial acts, American citizens are
therefore bound by them, and their vessels can
not be made subject 70 forfeiture for offence
Which, though contained In the acts, Is not The
treaty. TAey iurtier insisted that procuring bait is
merely obtaining supplies. which cannot under the
provisions of the act OF 1919, subject the vessel to
Iorie.tuic; also Jlat 1t mas been the practice for
nearly haH a century to allow supplies 10 be pur-
chased by American vessels. which il strong pre-
suInptoa OF Tie acknowledged legality OF the prac-
tice; and further, that procuring bait not TOR the
purpose Of 1snins within three marine miles Of the
land, but Tor tue purpose OF ocean hslnga fishing
open to all tue worlds q ic sal act ana cannot
subject ON American fishing vessel to condemna-
ton.
Here 1T may prope rly be remarked that this affair
OF the schooner Nickerson was
CASE or PECULIAR HARDSHIP.
She selZad in July last simply Tor purchasing
bat and the seizure was made upon an order from
tue Domnion government, winch the owners and
| master OF the vessel were entirely ignorant oi.
! Early In the same season American fishermen had
been In the habit OF putting into British ports for
the purcGasN n bait, vii nDut any interference, and
In accordance wltn practice ancient Us the treaty
/ oil 1918 ilseli. lew months after her seizure the
custom OF allowing the purchase OF bait was
restored but the Nickerson was not rciea. cd. She
was sill held, and is to-day IN the custody Of the
precisely parallel 70 that OF the White Fawn, when
was promptly restored TO her owners BY the de-
I
Scotia olgntry of The b. nc Is very slow, and pro-
! badly very reluctant to act. The case was argued
long since out the Court holds the question 1nv0yed
under advise.nent, the owners meantime being de-
! prIved OF their vessel IL appears To be generally
conceded that the vessel cannot be condemned, and.
therefore, there seems to be no clear reason why
sne should not be restored.
! VIEWS OF AN AMERICAN CONSUL ON THE coMrLIcA-
TIONs.
Judge Mortimer NJ. Jackson, the veteran American
! Consul at TINS port, has recently furnished 10
/ Slale Department. some SOUND views and Stubborn
! facts regarding tie troublesome complications The
Judge was once Chief Justice OF the Supreme
Court or Wisconsin, is thoroughly DO ted on inter.
national law, and the report which he submitted has
undoubtedly proved valuable tent Tor our members
| OF the JOINT high Commission in denning aud n.,il-
! ta,ning American rights. There have never been
anything further than brief aud imperfect abstracts
OF The document published and as It's contents
peculiarly mportant ana interesting at Just this
time have concluded to annex nearly the whole Of
II. Tne Judge begins by brel allasion and dcini-
| tion Of
| The existing laws he says. consist Of this treaty
| Britain; the I'M erial act passed June H.
1919, Tor tie purposes o carving the provisions Of
act. passed March 29 1867, giving authority to
the Canadian government over the coast and IN
land fisheries and the ss,I Dominion acts, passed
relating to fishing bv foreign vessels Ali these
acts, Canadian as well as imperial, purport to be
founded upon rhe treaty Of lsls and designed 10
enforce its provisions Some ot the provisions OF
the colonial acts respecting the fisheries are bor-
rowed from imperial statistics relating to trade aud
navigatlon and although enacted to protect the in
shore fisheries not strictly applicable to fishing
! vessels
FISHING SUPPLIES.
! In no act Is there any prohibition against
! fishing vessels visiting colonial ports for
supplies The silence OF all the acts upon
/ This point, and the practice OF more than
! han century under imperial laws, passed ex-
pressy ior the purpose Of carrying INTO eject the
provisions of the treaty, justify the CONCLUSION that
| no such prohibition was ever contemplated by IL.
This view OF the subject derives additional support
from The fact that, at the time or the adopton OF
the treaty, the mackerel iislery now carried on
! was comparatively unknown. Duting the inter-
! vening years between 1918 and 1870, throughout
ALL THE CONTROVERSIES
between the United States and Great Britain on the
subject OF the fisheries no question, until the pre-
sent had arisen IN reference to supplies Tpey
were always readily procured In colonial ports and
the trade being profitable 10 the people OF the colo
mes was facilitated bv the local author ties The
controversies which preceded the adoptiou OF The
Reciprocity Treaty related principally to our rights