PERIOD FROM 1854 TO 1871. 627 



in section ten, that " in case a dispute arises as to whether any 

 seizure has or has not been legally made, or as to whether the person 

 seizing was or was not authorized to seize under the act, the burden 

 of proving the illegality of the seizure shall be upon the owner or 

 claimant." Under this section an American fishing vessel coming 

 into port in the exercise of a conceded and unrestricted treaty right, 

 either for the purpose of shelter, of repairing damages therein, of 

 purchasing wood, and obtaining water, and unlawfully seized, instead 

 of being presumed to be in port for a lawful purpose, is presumed by 

 the act of seizure itself, however unauthorized, to be guilty of a viola- 

 tion of the fishery laws. Thus the presumption of guilt, which is to 

 subject a fishing vessel to seizure and confiscation, is made, in the 

 first instance, to depend upon the caprice of the seizing officer, and 

 not upon the conduct of the officers and crew of the captured vessel. 

 It is obvious that such a rule of action must be instrumental in in- 

 flicting wrong and injury upon innocent and unoffending parties. 



STRAIT OF CANSO. 



It has been intimated that still further restrictions will be imposed 

 upon our fishermen, and that an attempt will be made to exclude 

 them from the Strait of Canso. This appears to me incredible, in 

 view of established principles of international law and the usage 

 which has so long prevailed. 



Wheaton, in his Elements of International Law, says: "Straits 

 are passages communicating from one sea to another. If the naviga- 

 tion of the two seas thus connected is free, the navigation of the 

 channel by which they are connected ought also to be free. Even if 

 such strait be bounded on both sides by the territory of the same 

 sovereign, and is, at the same time, so narrow as to be commanded by 

 cannon-shot from both shores, the exclusive territorial jurisdiction 

 of that sovereign over such strait is controlled by tin- right of other 



nations to communicate with the sens thus eontieeted." And he holds 



that the " principle on which the rigid to navigate -traits depends is 



thai they are a© aria! to those seas which they unite, and the right 



of na\ igating which is not exclusive but common to all nations, the 

 right to navigate ti drawing after il thai of passing the strait ."' 



The Strait <d" Canso Eor more than a century bas been open a n 

 public highway to the ve el of all friendly nations. It formerly 

 separated French from English territory, and after the restoration <>f 



pe Breton to England by the capture of Louisburg in L746, through 

 the aid of troops from Ma- achu etl . it was kepi open to the < , "m 

 merce of the world. Afterward, when Cape Breton, in L812, cea ed 

 to be a separate British oolony, and wai united to ai d became a pari 

 of Nova Scotia, within whose territorial limit* it then became in- 

 cluded, the trait till remained open, as a public highway, t>» the 

 vessel of every nation, and ha ince continued withoul interruption, 

 and still continues to be used and enjoyed a • neral thoroughfare 

 by American ve -<■] in common with \ from other countm 



After such a dedication of this trail to maritime and commercial 

 ii ..... by the French, EngH h, and colonial authoritie . and after our 

 V1 . ,|' have pur ned their fi hing voyage through it for more than 

 a century, our righl to navigate i1 cannol not! be questioned. 



B. !'••• 2 41 



