566 APPENDIX TO BRITISH CASE. 



of the deep sea fisheries. Before concluding his remarks on this 

 subject, the undersigned would refer to a passage in the answer on 

 behalf of the United States to the case of Her Majesty's Government, 

 as presented to the Halifax Fisheries Commission in 1877: 



The various incidental and reciprocal advantages of the Treaty, such as the 

 privileges of traffic, purchasing bait and other supplies, are not the subject of 

 compensation, because the Treaty of Washington confers no such rights on the 

 inhabitants of the United States, who note enjoy them merely by sufferance, 

 and who can at any time be deprived of them by the enforcement of existing 

 laws, or the re-enactment of former oppressive Statutes. 



Mr. Phelps has made a lengthy citation from the Imperial Act, 

 59 Geo. Ill, cap. 38, for the purpose of establishing : 



1st. That the penalty of forfeiture was not incurred by any entry 

 into British ports, unless accompanied by fishing, or preparing to 

 fish, within the prohibited limits. 



2nd. That it was not the intention of Parliament, or its under- 

 standing of the Treaty, that any other entry should be regarded as 

 an infraction of the provisions of that Act. 



As regards the latter point it seems to be effectually disposed of 

 by the quotation which Mr. Phelps has made. The Act permits 

 fishermen of the United States to enter into the bays or harbours of 

 His Britannic Majesty's Dominions in America for the purposes 

 named in the Treaty, " and for no other purpose whatever," and. 

 after enacting the penalty of forfeiture, in regard to certain offences, 

 provides a penalty of 200 sterling against any person otherwise 

 offending against the Act. It cannot, therefore, be success- 

 338 fully contended that Parliament intended to permit entry into 

 the British American waters for the purchase of bait or for 

 any other than the purposes specified in the Treaty. 



As to the first point it is to be observed that the penalty of for- 

 feiture was expressly pronounced as applicable to the offence of 

 fishing or preparing to fish. It may be that forfeiture is incurred 

 by other illegal entry, contrary to the Treaty and contrary to the 

 Statute. It may also be contended that preparing within the pro- 

 hibited limits to fish in any place is the offence at which the penalty 

 is aimed, or it may be that the preparing within these waters to fish, 

 is evidence of preparing to fish within the prohibited waters under 

 the Imperial Statute, and especially under the Canadian Statute 

 which places the burden of proof on the defendant. 



The undersigned does not propose, at this time, to enter into any 

 elaborate argument to show the grounds on which ihe penalty of 

 forfeiture is available, because that question is one which is more 

 suitable for determination by the Courts, to whose decision it has 

 been referred in the very case under consideration. 



The decision in the case of the " David J. Adams " will be soon 

 pronounced, and as the Goverment of Canada will be bound by the 

 ultimate judgment of competent authority on this question, and can- 

 not be expected to acquiesce in the view of the United States' Govern- 

 ment, without such judgment, any argument of the case in diplomatic 

 form would be premature and futile. 



In order, however, to show that Mr. Phelps is in error when he 

 assumes that the practical construction hitherto given to the Treaty 

 is in accordance with his views, it is as well to state that in the year 

 1815 the commander of one of Her Majesty's ships of war seized four 



