690 APPENDIX TO BRITISH CASE. 



taken not only to the interpretation which Canadian authorities have 

 placed upon the law which they were called upon to administer, but 

 apparently to the allowance of any discretion whatever to Canadian 

 officials in dealing with acts of trespass committed by American ves- 

 sels in Canadian waters. Of this a conspicuous illustration is 

 afforded by the language used in the report recently presented to 

 Congress by Mr. Edmunds, from the Committee on Foreign Bela- 

 tions, which contains the following passage: 



On the 12th May, 1870, the Dominion Act, 33 Vic., chap. 15, was passed, repeal- 

 ing the third section of the last-mentioned Act on the subject of bringing vessels 

 into port, &c., and provided, in lieu thereof, that any of the officers or per- 

 411 sons before mentioned might bring any vessel being within any harbour 

 in Canada, or hovering in British waters, within three miles of the coast 

 into port, search her cargo, examine her master on oath, &c., without any 

 previous notice to depart, which had been required by the former Act. So that 

 an American vessel fishing at sea, being driven by stress of weather, want of 

 wood or water, or need of repairing damages, which should run into a Canadian 

 harbour, under the right reserved to it by the Treaty of 1818, the moment her 

 anchor was dropped or she was within the shelter of a headland was, at the 

 discretion of the Canadian official, to be immediately seized and carried into 

 port, which might be, and often would be, many miles from the place where she 

 could have her safe shelter or could obtain her wood and water or repair her 

 damages. 



The Committee thinks it is not too much to say that such a provision is in 

 view of the treaty and of the common principles of comity among nations, 

 grossly in violation of rights secured by the treaty and of that friendly conduct 

 of good neighbourhood, that should exist between civilised nations holding rela- 

 tions such as ought to exist between the United States and Her Majesty's 

 Dominions. * * * 



From all this it would seem that it is the deliberate purpose of the British 

 Government to leave it to the individual discretion of each one of the numerous 

 subordinate magistrates, fishery officers, and custom officers of the Dominion of 

 Canada to seize and to bring into port any American vessels, whether fishing or 

 other, that he finds within any harbour in Canada, or hovering within Canadian 

 waters, 



7. It is, I venture to submit, impossible to contrive any system for 

 enforcing regulations for the protection of the Canadian Fisheries, or 

 for the prevention of smuggling along the Canadian coast, no matter 

 how liberal the spirit in which those regulations might be conceived, 

 under which the initiative to be taken in each case should not be left 

 to " the individual discretion " of Canadian officials. If no such dis- 

 cretion is allowed to these, if every intruding vessel is to be free after 

 committing an act of trespass to depart without hindrance from the 

 place in which that act was committed, subject merely to the chance 

 of her being made liable for subsequent legal proceedings, the protec- 

 tion which it was intended to afford to the interests of the Dominion 

 would become illusory and valueless. 



8. The same argument applies to the enforcement against the 

 American fishing vessels of the Canadian Customs Law. The acts of 

 vessels which have been proceeded against under this law are con- 

 stantly represented, as for instance on page 10 of the Eeport already 

 quoted to be " merely formal or technical violations of some Canadian 

 Customs Statute or Regulation," The Statute which has been en- 

 forced in these cases is, as I have more than once had occasion to point 

 out, one which is consistently put into operation against all vessels 

 resorting to Canadian waters nor it would it be possible to cease en- 

 forcing it against a particular class of vessels without giving to them 

 opportunities for systematically, and with complete impunity, evad- 



