404 APPENDIX TO BEITISH CASE. 



they pretended to have sought shelter. The seizures were objected to 

 on behalf of the United States Government, on the ground that these 

 vessels entered from a lawful and necessary motive; but, on investiga- 

 tion, it was found that, as explained by His Majesty's Government, 

 they were in the habit of occupying, and at the time of seizure, 

 actually occupied this harbour without any legitimate excuse. The 

 fishing schooners Nobby and Washington were seized in 1818, and 

 condemned for being at anchor in, and hovering near, a settled 

 British harbour. The Java, Independence, Magnolia, and Hart, were 

 detained and confiscated in 1839, for being in harbour without lawful 

 cause, and cleaning fish on deck. In 1840, the fishing vessels Papineau 

 and Mary were seized and sold for purchasing bait ashore. 



The right of excluding American fishing vessels from the Pro- 

 vincial ports, bays, and harbours, except in case of distress, was thus 

 enforced just before the convention, and some time after, for simi- 

 larly resorting to British bays and harbours, except for the specified 

 purposes arranged in the treaty of 1818. to purchase wood and obtain 

 water, and for shelter and repairs. This right was formally and 

 continuously asserted throughout the intervening period to 1852, when 

 the distinct offence of trading for supplies and transhipping fish 

 cargoes became the subject of specific instructions. The Collectors 

 of Customs at some of the ports of Nova Scotia having granted per- 

 mits to authorize such transactions, the Provincial officers in command 

 of the fisheries protection service asked for positive instructions. 

 They were, therefore, instructed by the Government of Nova Scotia, 

 that United States fishing vessels, with or without permits, could 

 not legally land freight, or frequent such ports and harbours for any 

 purposes whatever, not described in the Treaty. The following 

 official direction, dated at Halifax, the 28th of August, 1852, is signed 

 by the then Provincial Secretary, the Honourable Joseph Howe (Vide 

 App. 4, p. 141, Nova Scotia Journals, 1853) : 



No American fishing vessels are entitled to commercial privileges in Pro- 

 vincial ports, but are subject to forfeiture if found engaged in traffic. Tbe 

 Colonial Collectors bave no authority to permit freight to be landed from such 

 vessels, which, under the Convention, can only enter our parts [ports] for the 

 purposes specified therein, and for no other. 



241 The question arose on the practise of taking on board articles 

 necessary to fishing operations, landing fish for transhipment, 

 and refitting in ports and harbours, at various places around the 

 coast of Nova Scotia, and producing a written permission from some 

 Customs' Collector. 



During the same year, Vice- Admiral Seymour applied to the Ad- 

 miralty for special instructions as to the powers of naval officers to 

 seize or interfere with United States fishing vessels resorting to ports 

 or harbors for other than the purposes defined in the Convention. 

 (Vide App. 4, pp. 138-9, Nova Scotia Journals. 1853.) The matter 

 was referred to the Law Advisers of the Crown. (Dated 25th Sep- 

 tember, 1852.) They pronounced the opinion that these officers were 

 empowered under their instructions to " seize " American fishing 

 vessels only for the offence of fishing within the prescribed limits, 

 but the vessels might be warned off and compelled to depart, and 

 could be seized by such officers or others, if so authorised by Order in 

 Council. the penalties or mode of procedure depending upon the 

 local laws and regulations of each Colony. (App. 4, pp. 139-41.) 



