722 APPENDIX TO BRITISH CASE. 



Xext, the courts into which all the cases of these fishing vessels 

 have been brought are not provincial, but are Imperial vice-admiralty 

 courts, established and governed by the uniform rules of the Imperial 

 statute, although presided over by a local judge designated for that 

 purpose. As a consequence, all the paraphernalia and fees of Im- 

 perial courts are met, and the progress of the trial requires the early 

 disbursement of large sums of money common in all of them, but 

 unknown in our own and in the provincial courts. These are neces- 

 sarily so large that our consular correspondence shows the burden of 

 securing the costs and advancing fees was alone sufficient in some 

 instances to compel owners to abandon the defense of vessels of mod- 

 erate value. The statutes to which we have already referred, more- 

 over, stipulated that no vessel should be released on bail without the 

 consent of the seizing officer; and, although it must be admitted that 

 in practice this has not been found to create difficulty, it is annulled 

 by the treaty. While it is impossible to anticipate or prevent all 

 causes of legal delays and expenditures, yet there is no reasonable 

 ground for denying that this thirteenth article will essentially mod- 

 erate these enumerated rigors. 



The punishment for illegally fishing in the prohibited waters has 

 always been forfeiture of the vessel and the cargo aboard at the time 

 of seizure. It was not possible, nor was it for the interests of either 

 country, to demand that the penalty imposed on actual poachers 

 should not be severe; but this article provides that only the cargo 

 aboard at the time of the offense can be forfeited, and the provincials 

 can not lie back until a vessel has taken a full cargo, and then sweep 

 in the earnings of the entire trip for an offense committed perhaps 

 at its inception. Moreover, the article provides the penalty shall not 

 be enforced until reviewed by the governor-general in council, giving 

 space for the passing away of temporary excitement and for a calm 

 consideration of all mitigating circumstances. Also, from the pas- 

 sage of the statute of 1819 the penalty for illegally "preparing to 

 fish " has been forfeiture. This has at times been construed to extend 

 not only to preparing to fish illegally, but also to a preparation within 

 the Dominion waters for fishing elsewhere. The /. H. JVickerson 

 already referred to, was forfeited in A. D. 1870 on this principle, 

 without any specific protest from the United States or any subsequent 

 reclamation. 



If the plenipotentiaries had been working new ground, in view of 

 the indefiniteness of the words and of the fact that preparation is 

 ordinarily accepted as of lower grade than actual accomplishment, it 

 may be that the penalty of forfeiture under any circumstances for 

 this offense would have been surrendered; but a statute which has 

 stood for nearly seventy years without successful objection can not 

 easily be wholly overthrown. The treaty, however, clearly eliminates 

 every principle on which were based the forfeiture of the J. II. 

 Nickerson and the proceedings against the Adams and the Doughty; 

 and also, taking into consideration the other elements already re- 

 ferred to, it makes forfeiture the extreme penalty, but directs that the 

 punishment shall be fixed by the court not exceeding the maximum, 

 so that, if circumstances justify in any case, it may be reduced to a 

 minimum. In lieu of all the other penalties rising to forfeiture, 

 imposed by the Dominion statutes concerning the fisheries for tech- 

 nical offenses and offenses known and unknown, the maximum for 



