416 APPENDIX TO BRITISH CASE. 



miles of the coast, such vessel, her tackle, etc., and cargo, shall be for- 

 feited." 



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 entrj 7 . 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 01 such purchase establishes a " preparing to fish " 

 under the Statutes (which I do not admit), I think, before a for- 

 feiture 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. 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 unrea- 

 sonable, 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 law- 

 fully 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 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 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 sei/ed in the 



