"bait" should be permitted, that this was objected to by Great Britain, and abandoned by the United States. And yet Canada is now pressed to concede permission to the American fishermen to trade in "bait," although it must be apparent, to all conversant with the subject, that such a concession would afford great facilities for illicit traffic and the evasion of the treaty. It appears to the Committee of the Privy Council that the menacing tone adopted by the President of the United States, and the new demands which have been made, render it very undesirable to make any proposition at present for the settlement of the Headland question by a mixed Commission.

Far better will it be to adhere to the British construction of the treaty subject to a reference to a friendly power, as already suggested, and to act guardedly in enforcing the rights claimed by Great Britain.

The course recently adopted by the President affords, in the opinion of the Privy Council, a good opportunity for making a communication to the United States Government. It would obviously be most desirable that Her Majesty's Government should acquaint the Government of the United States that there was entire concurrence between the two Governments in the measures adopted during the last season for the protection of the fisheries, and that far from straining the interpretation of the Treaty of 1818, they had not enforced the rights secured by that treaty, as interpreted by the Crown law officers of Great Britain.

The President might be informed that the liberal course, followed since the termination of the Reciprocity Treaty, was adopted avowedly in the hope that it would lead to a free commercial intercourse between the two countries, and that it was, when all hope of obtaining from the United States concessions that would justify Canada in parting with her fisheries had been abandoned, that it was resolved to take effectual measures to protect Her Majesty's subjects in the Dominion in their rights, as acknowledged prior to 1854.

Her Majesty's Government can safely assure the President that the treaty has not in any case been enforced with greater rigour than it was prior to 1854; but that on the contrary, several temporary relaxations have been admitted, from an unwillingness to deprive the American fishermen hastily of privileges which they have lost, owing to the action of their own Government.

The Committee of the Privy Council have read the President's observations on the navigation of the River St. Lawrence with even greater surprise than those regarding the fisheries. The President refers to correspondence on the subject during the administration of the late Mr. John Quincy Adams, between forty and fifty years ago. and closes his remarks on the subject in the following words: "It is hoped that the Government of Great Britain will see the justice of abandoning the narrow and inconsistent claim to which her Canadian Provinces have urged her adherence."

The Committee of the Privy Council are not aware that any claim to the right to navigate the River St. Lawrence has been proposed by the United States since the negotiations of 1824 and 1826, on both which occasions the British Plenipotentiaries refused to enter into any negotiation, so long as the claim of right was preferred. They said, in 1824, "The American Plenipotentiary must be aware that a demand rested upon this principle, necessarily pre

cludes those considerations of good neighborhood and mutual accommodation, with which the Government of Great Britain would otherwise have been anxious to enter upon the adjustment of this part of the negotiation. A right claimed without qualification, on the one side, affords no room for friendly concession on the other; total admission, or total rejection, is the only alternative which it presents." When Mr. Clay renewed the claim of right, in 1826-7, he was answered in precisely the same way, as appears from a letter addressed to him on the 21st of September, 1827, by Mr. Albert Gallatin: "The British Plenipotentiaries will not entertain any proposition respecting the navigation of the St. Lawrence, founded on the right claimed by the United States to navigate that river to the sea." In the case of the fisheries, as well as in that of the River St. Lawrence, the United States have rendered negotiations impracticable, by advancing claims of right which cannot be recognized.

Under the Reciprocity Treaty, which the United States saw fit to abrogate, the right to use, not only the River St. Lawrence, but the Canadian ship canals, was conceded to their citizens; and since the abrogation of that treaty, all applications by the United States Government, or by American citizens, for permission to use either the river or canals, have been granted, in return for which courtesy the American authorities have recently refused to permit a British vessel to navigate the Sault St. Marie Canal without any justifiable

reason.

It is quite unnecessary to discuss the ground of the American claim to the free navigation of the River St. Lawrence, as for all practical purposes the concession of the right would be valueless unless accompanied by a permission to use the Canadian ship canals.

The Committee of the Privy Council have agreed upon a Minute which may afford Her Majesty's Government sufficient ground for making to the United States such a communication on the subject of the fisheries as they have suggested in this Report, and they respectfully submit it for your Excellency's approval.

PRIVY COUNCIL CHAMBER,

246

Certified

Ottawa, 27th December, 1870.

WM. H. LEE.

Clerk Privy Council Canada.

No. 155.-1871, February 16: Letter from the Earl of Kimberley (British Colonial Secretary) to Lord Lisgar (GovernorGeneral of Canada).

(Confidential.)

DOWNING STREET, February 16, 1871. MY LORD, You have already been informed by Telegram of the views of Her Majesty's Government upon the Fishery Questions, but I think it will be convenient, with reference to the pending negotiations, that a somewhat fuller statement of those views should now be placed on record.

It would not be possible for Her Majesty's Government to pledge themselves to any foregone conclusion upon any particular point connected with these negotiations, but they have anxiously considered

the questions which concern Canada, and they feel confident that the Canadian Government will agree with them that a satisfactory termination of the difficulties which have arisen with the United States can only be attained by taking as broad and liberal a view as is consistent with the just rights and real interests of the Dominion. As at present advised, Her Majesty's Government are of opinion that the right of Canada to exclude Americans from fishing in the waters within the limits of three marine miles of the coast is beyond dispute, and can only be ceded for an adequate consideration.

Should this consideration take the form of a money payment, it appears to Her Majesty's Government that such an arrangement would be more likely to work well than if any conditions were annexed to the exercise of the privilege of fishing within the Canadian waters.

The presence of a considerable number of cruisers would always be necessary to secure the performance of such conditions, and the enforcement of penalties for the non-observance of them would be certain to lead to disputes with the United States.

With respect to the question, What is a bay or creek, within the meaning of the first Article of the Treaty of 1818, Her Majesty's Government adhere to the interpretation which they have hitherto maintained of that Article; but they consider that the difference which has arisen with the United States on this point might be a fit subject for compromise.

The exclusion of American fishermen from resorting to Canadian ports, "except for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water," might be warranted by the letter of the Treaty of 1818, and by the terms of the Imperial Act 59 George III., cap. 38, but Her Majesty's Government feel bound to state that it seems to them an extreme measure, inconsistent with the general policy of the Empire, and they are disposed to concede this point to the United States' Government, under such restrictions as may be necessary to prevent smuggling, and to guard against any substantial invasion of the exclusive rights of fishing which may be reserved to British subjects.

In conclusion I have to state that Her Majesty fully appreciates the loyal and prompt manner in which the Canadian Government have assented to the appointment of the Commission which is about to sit at Washington. The high character and recognized ability of the British Commissioners afford ample security that the interests of Canada will be carefully protected during the forthcoming negotiations.

I am, &c., The Lord LISGAR,

(Signed)

KIMBERLEY.

&c. &c. &c.

No. 156.-1871: Judgments in the Court of Vice Admiralty of Judge Hazen in the Case of the "White Fawn," and of Sir Wm. Young in the case of the "J. H. Nickerson."

HIS HONOR JUDGE HAZEN.

At the last sitting of this Court, Mr. Tuck, B. C., Proctor for the Crown, applied, on behalf of Sir John A. McDonald, the AttorneyGeneral of the Dominion, for a monition, calling upon the owners of

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. 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.

He

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