568 APPENDIX TO BRITISH CASE. 



In view of these seizures and of this decision it is difficult to under- 

 stand the following passages in the letter of Mr. Phelps : 



The practical construction given to the Treaty, down to the present time, has 

 been in entire accord with the conclusions thus deduced from the Act of Par- 

 liament. The British Government has repeatedly refused to allow interference 

 with American fishing vessels, unless for illegal fishing, and has given explicit 

 orders to the contrary. 



Judicial authority upon the 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 



339 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 Fishery 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 limits. 



Although Mr. Phelps is under the impression that " in the hearing 

 before the Halifax Fishery Commission in 1877 this question was 

 discussed and no case could be produced of any such condemnation," 

 the fact appears in the records of that Commission, as published by 

 the Government of the United States, that on a discussion which 

 there arose, the instances above mentioned were nearly all cited, and 

 the judgment of Sir William Young in the case of the " J. H. Nicker- 

 son ' was presented in full, and it now appears among the papers of 

 that Commission (see Vol. III., Documents and Proceedings of 

 Halifax Commission, page 3398, Washington Edition). The de- 

 cision in the case of the "J. H. Nickerson " was subsequent to that in 

 the case of the " White Fawn " mentioned to the exclusion of all the 

 other cases referred to by Mr. Phelps. Whether that decision should 

 be re-affirmed or not is a question more suitable for judicial deter- 

 mination than for discussion here. 



RIGHT OF THE DOMINION PARLIAMENT TO MAKE FISHERY ENACTMENT. 



Mr. Phelps deems it unnecessary to point out that it is not in the 

 power of the Canadian Parliament to alter or enlarge the provisions 

 of the Act of the Imperial Parliament, or to give to the Treaty a 

 construction or legal effect not warranted by that Act. 



No attempt has ever been made by the Parliament of Canada or 

 by that of any of the Provinces to give a "construction" to the 

 Treaty, but the undersigned submits that the right of the Parliament 

 of Canada, with the Royal Assent given in the manner provided in 

 the constitution, to pass an Act on this subject to give that Treaty 

 effect, or to protect the people of Canada from the infringement of 

 the Treaty provisions, is clear beyond question. An Act of that 

 Parliament duly passed, according to constitutional forms, has as 

 much the force of law in Canada and binds as fully offenders who 

 may come within its jurisdiction, as any Act of the Imperial Par- 

 liament. 



The efforts made on the part of the Government of the United 

 States to deny and refute the validity of Colonial statutes on this 

 subject have been continued for many years, and in every instance 

 have been set at naught by the Imperial authorities and by the 

 Judicial tribunals. 



In May, 1870, this vain contention was completely abandoned. A 

 circular was issued by the Treasury Department at Washington, in 

 which circular the persons to whom it was sent were authorised and 



