418 APPENDIX TO BRITISH CASE. 



A judge may sometimes intimate a desire that the enactments he is 

 called upon to enforce should be modified or changed ; but until they 

 are repealed in whole or in part, they constitute the law, which it is 

 his business and his duty to administer. 



******* 



It being, then, clearly established that the " J. H. Nickerson " en- 

 tered a British port, and was anchored within three marine miles of 

 the coast off Cape Breton, for the purpose of purchasing or procuring 

 bait, and did there purchase or procure it in June, 1870, the single 

 question arises on the Treaty of 1818 and the Acts of the Imperial 

 and Dominion Parliaments. Is this a sufficient ground for seizure 

 and condemnation? This was said at the hearing to be a test case, 

 the most important that had come before the Court since the termina- 

 tion of the Reciprocity Treaty of 1854. But it has lost much of its 

 importance since the hearing in February, and the present aspect of 

 the question would scarcely justify the elaborate review which might 

 otherwise have been reasonably expected. If the law should remain 

 as it is, and the instructions issued from Downing Street on the 30th 

 of April and by the Dominion Government on the 27th June, 1870, 

 as communicated to Parliament, were to continue, no future seizure 

 like the present could occur; and if the Treaty of 1818 and the Acts 

 consequent thereon are superseded, this judgment ceases to have any 

 value beyond its operation on the case in hand. 



The first article of the Convention of 1818 must be construed, as all 

 other instruments are, with a view to the surrounding circumstances 

 and according to the plain meaning of the words employed. The 

 subtleties and refinements that have been applied to it will find little 

 favor with a Court governed by the rules of sound reason, nor will 

 it attach too much value to the protocols and drafts or the history of 

 the negotiations that preceded it. We must assume that it was drawn 

 by able men and ratified by the governments of two great powers, who 

 knew perfectly well what they were respectively gaining or conceding, 

 and took care to express what they meant. After a formal renuncia- 

 tion by the United States of the liberty of fishing, theretofore enjoyed 

 or claimed, within the prescribed limits of three marine miles of any 

 of our bays or harbors, they guard themselves by this proviso : " Pro- 

 vided, however, that the American fishermen shall be admitted to 

 enter such bays or harbours for the purpose of shelter and repairing 

 damage therein, of purchasing wood and of obtaining water, and for 

 no other purpose whatever. But they shall be under such restrictions 

 as may be necessary to prevent them taking, drying or curing fish 

 therein, or in any other manner whatever abusing the privileges 

 hereby reserved to them." 



These privileges are explicitly and clearly defined, :ind to make 

 assurance doubly sure, they are accompanied by a negative declara- 

 tion excluding any other purpose beyond the purpose expressed. I 

 confine myself to the single point that is before me. There is no 

 charge here of taking fish for bait or otherwise, nor of drying 

 249 or curing fish, nor of obtaining supplies or trading. The de- 

 fendants allege that the " Nickerson " entered the Bay of 

 Ingonish and anchored within three marine miles of the shore for 

 the purpose of obtaining water and taking off two of her men who 

 had friends on shore. Neither the Master nor the crew on board 

 thereof, in the words of the responsive allegation, " fishing, preparing 



