FAWN. the statute; and it is not for the Court to impute fraud or 1871 an intention to infringe the provisions of our statutes to any THE WHITE 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 statute. 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 (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 statute. I construe the statute simply thus: If a foreign vessel is found, 1st, 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 these cases specified in the statute 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 1871 FAWN. lines, but was seized in the very act of putting out her lines, THE WHITE nets, etc., 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 statute, I am of the opinion that 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, etc., 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 Geo. III, cap. 38, gave concurrent jurisdiction to that Court in cases of this nature. The following is clause 1 of the Convention of 1818: "ART. 1.- Whereas, differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall have, forever, in common with the subjects of His 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 Monition refused. 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, harbors, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle; and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be 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. or "And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's dominions in America not included within the above mentioned limits, provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. 66 But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." The Imperial Statute 59 Geo. III, c. 38, was passed to enable the authorities to enforce the stipulations of the treaty of 1818. By section 1 His Majesty in Council was authorized to make all necessary regulations, and sections 2 and 3 are as follows: 1871 FAWN. "2. And be it further enacted, That from and after the passing THE WHITE of this Act, it shall not be lawful for any person or persons, not being a natural born subject of His Majesty, in any foreign ship, vessel or boat, nor for any per son in any ship, vessel or boat, other than shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland, to fish for, or to take, dry, or cure any fish of any kind whatever, within three marine miles of any coasts, bays, creeks or harbors whatever, in any part of His Majesty's dominions in America not included within the limits specified and described in the first article of the said Convention, and hereinbefore recited; and that if any such foreign ship, vessel or boat, or any persons on board thereof, shall be found fishing, or to have been fishing, or preparing to fish, within such distance of such coasts, bays, creeks or harbors, within such parts of His Majesty's dominions in America, out of the said limits, as aforesaid, all such ships, vessels and boats, together with their cargoes, and all guns, ammunition, tackle, apparel, furniture and stores, shall be forfeited, and shall and may be seized, taken, sued for, prosecuted, recovered and condemned by such and the like ways, means and methods, and in the same Courts as ships, vessels or boats may be forfeited, 1871 THE WHITE FAWN. seized, prosecuted and condemued for any offence against any laws relating to the Revenue of Customs, or the laws of Trade and Navigation, under any Act or Acts of the Parliament of Great Britain or of the United Kingdom of Great Britain and Ireland; Provided that nothing in this Act contained shall apply, or be construed to apply, to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying, or curing fish on the coasts, bays, creeks or harbors, or within the limits in this Act described. "3. Provided always, and be it enacted, That it shall and may be lawful for any fisherman of the said United States to enter into any such bays or harbors of His Britannic Majesty's dominions in America as are last mentioned, for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever; subject, nevertheless, to such restrictions as may be necessary to prevent such fishermen of the said United States from taking, drying or curing fish in 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 any 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 Order in Council as aforesaid." The Canadian Parliament in 1868 (31 Vic. c. 61) passed a law to prevent illegal fishing on the part of foreign fishermen, and in 1870 (33 Vic. c. 15) amended section 3 of the first named Act so as to read as follows: "3. Any one of such officers or persons as are above mentioned may bring any ship, vessel or boat, being within any harbor in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks or harbors in Canada, into port, and search her cargo, and may also examine the master upon oath touching 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 have 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 harbors 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 by sec. 7 of 31 Vic. c. 61, any penalty or forfeiture under the Act might be prosecuted and recovered in any Court of ViceAdmiralty within Canada. The jurisdiction formerly exercised by the Vice-Admiralty Courts is now vested in the Exchequer Court under the terms of "The Admiralty Act, 1891. In the case of The J. H. Nickerson, Young's Ad. Dec. 96, Nov. 14, 1871, Sir William Young, C. J., sitting in Admiralty, decided contrary to the judgment of Hazen, J. In this case The J. H. Nickerson entered the Bay of Ingonish, in Cape Breton, for the alleged purpose of obtaining water, etc.; but the evidence clearly showed that the real object of her entry was to obtain bait, and that a quantity of bait was so procured. She was seized by the government cutter, after she had been warned off, and while she was still at anchor within three marine miles of the shore. Held, that she was guilty of procuring bait and preparing to fish within the prescribed limit, and must therefore be forfeited. See these cases cited and commented on in 3 Wharton's International Law Digest, sec. 304, p. 52. The White Fawn is also cited at large in 3 Halifax Com. 3,382. 1871 THE WHITE FAWN. |