528 APPENDIX TO BRITISH CASE. 



Lord Granville, in transmitting to Sir John Young the aforesaid 

 instructions, makes use of the following language : 



Her Majesty's Government do not doubt that your Ministers will agree with 

 them as to the propriety of these instructions, and will give corresponding in- 

 structions to the vessels employed by them. 



These instructions were again officially stated by the British Min- 

 ister at Washington, to the Secretary of State of the United States, 

 in a letter dated the llth June, 1870. 



Again, in February, 1871, Lord Kimberley, Colonial Secretary, 

 wrote to the Governor General of Canada as follows : 



The exclusion of American fishermen from resorting to Canadian ports, except 

 for the purpose of shelter, and of repairing damages therein, 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 Geo. 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. 



And in a subsequent letter from the same source to the Governor 

 General, the following language is used : 



I think it right, however, to add that the responsibility of determining what 

 is the true construction of a Treaty made by Her Majesty with any foreign 

 Power must remain with Her Majesty's Government, and that the degree to 

 which this country would make itself a party to the strict enforcement of the 

 Treaty rights may depend not only on the literal construction of the Treaty, 

 but on the moderation and reasonableness with which these rights are asserted. 



I am not aware that any modification of these instructions, or any 

 different rule from that therein contained, has ever been adopted or 

 sanctioned by Her Majesty's Government. 



Judicial authority upon this question is to the same effect. That 

 the purchase of bait by American fishermen in the provincial ports 

 has been a common practice is well known, but in no case, so far as I 

 can ascertain, has a seizure of an American vessel ever been enforced 

 on the ground of the purchase of bait, or of any other supplies. On 

 the hearing before the Halifax Fisheries Commission in 1877-78 

 this question was discussed, and no case could be produced of any 

 such condemnation. Vessels shown to have been condemned were in 

 all cases adjudged guilty either of fishing, or preparing to fish, 

 within the prohibited limit. 



And in the case of the " White Fawn," tried in the Admiralty 

 Court at New Brunswick before Judge Hazen in 1870, I understand 

 it to have been distinctly held that the purchase of bait, unless proved 

 to have been in preparation for illegal fishing, was not a violation of 

 the Treaty nor of any existing Law, and afforded no ground for 

 proceedings against the vessel. 



But even were it possible to justify on the part of the Canadian 

 authorities the adoption of a construction of the Treaty entirely 

 different from that which has always heretofore prevailed, and 

 316 to declare those acts criminal which have hitherto been re- 

 garded as innocent, upon obvious grounds of reason and 

 justice, and upon common principles of comity to the United States' 

 Government, previous notice should have been given to it or to the 



