644 APPENDIX TO BRITISH CASE. 



The Canadian enactment of 1868 came next, the second and third 

 sections of which say : 



2. Any commissioned officer of Her Majesty's navy serving on board of any 

 vessel of Her Majesty's navy cruising and being in the waters of Canada for 

 purpose of affording protection to Her Majesty's subjects engaged in the fish- 

 eries, or any commissioned officer of Her Majesty's navy, fishery officer, or 

 stipendiary magistrate on board of any vessel belonging to or in the service of 

 the Government of Canada and employed in the service of protecting the 

 fisheries, or any officer of the customs of Canada, sheriff, magistrate, or other 

 person duly commissioned for that purpose, may go on board of any ship, vessel 

 or boat within any harbour in Canada, or hovering (in British waters) within 

 three marine miles of any of the coasts, bays, creeks, or harbours in Canada, 

 and stay on board so long as she may remain within such place or distance. 



3. If such ship, vessel, or boat be bound elsewhere, and shall continue within 

 such harbour or so hovering for twenty-four hours after the master shall have 

 been required to depart, any one of such officers or persons as are above men- 

 tioned may bring such ship, vessel, or boat into port and search her cargo, and 

 may also examine the master upon oath touching the cargo and voyage; and if 

 the master or person in command shall not truly answer the questions put to 

 him in such examination, he shall forfeit $400; and if such ship vessel or boat 

 be foreign, or not navigated according to the ]aws of the United Kingdom or 

 of Canada, and have been found fishing, or preparing to fish, or to have been 

 fishing (in British waters) within thi'ee marine miles of any of the coasts, 

 bays, creeks or harbours of Canada, not included within the above-mentioned 

 limits, without a licence, or after the expiration of the period named in the 

 last" licence granted to such ship, vessel or boat under the first section of this 

 Act, such ship, vessel or boat, and the tackle, rigging, apparel, furniture, stores, 

 and cargo thereof shall be forfeited. 



The treaty stipulates that the fishermen shall be under " necessary 

 restrictions " to prevent the doing of the things forbidden by the 

 treaty, but what may be " necessary " to prevent the prohibited fish- 

 ing is a political and diplomatic question for the two signatory 

 Governments to decide. The treaty permits American fishermen to 

 enter and remain for 



1. " Shelter," which includes a refuge from fogs, winds, storms, 

 and whatever may imperil fishing. 



2. " liepairing damages," which includes every damage to fishing 

 boat or fishing gear. 



3. " Purchasing wood." 



4. " Obtaining water." 



Conceding that Canada can place an officer on every arriving fish- 

 erman as soon as found, the treaty does not even then authorise a 

 twenty-four hour limit with the result of forfeiture. Nor does the 

 treaty authorise forfeiture for " preparing to fish." 



The Customs circular issued at Ottawa on 7th May, 1886, and 

 called a " Warning," recited the first article of the treaty of 1818. 

 together with the two sections of the law of 1868 just quoted, and 

 adds: 



Having reference to the above, you are requested to furnish any foreign 

 vessels, boats, or fishermen found within three marine miles of the shore, 

 within your district, with a printed copy of the warning enclosed herewith. 



If any fishing vessel or boat of the United States is found fishing, or to have 

 been fishing, or preparing to fish, or hovering within the three-mile limit, does 

 not depart within twenty-four hours after receiving such warning, you will 

 please place an officer on board of such vessel, and at once telegraph the facts to 

 the Fisheries Department at Ottawa, and await instructions. 



J. JOHNSON, 

 Commissioner of Customs. 



To the Collector of Customs at . 



