DESPATCHES, REPORTS, CORRESPONDENCE, ETC. 295 



178 No. 8. 1817, August 29: Decree pronounced by the Honour- 

 able Michael Wallace, Judge of the Vice- Admiralty Court 

 at Halifax, Nova Scotia, in the case of American fishing- 

 vessels, seized and detained by His Majesty's ships of war. 



This case involves a question of great national importance : Under 

 that impression, it has had as much consideration on my part, as my 

 humble talents are capable of giving it. 



I entirely accede to the principle laid down by the Advocate- 

 General, that the American Government when it commenced hos- 

 tilities against Great Britain, cut the cord on which their Treaty of 

 1783, with our Government, hung, and thereby dissolved every condi- 

 tion, obligation and privilege, it contained. But, as American sub- 

 jects have long enjoyed, under that Treaty, the privilege of fishing 

 on our coasts, and there being no specific notification from our Gov- 

 ernment, that I know of, since the Treaty of Ghent, published on the 

 subject, for me to have recourse to ; I cannot adopt so serious a meas- 

 ure as the condemnation of the property of individuals who seem 

 to have been generally ignorant of the intentions of our Government 

 with respect to the prohibition; besides, it does not appear to the 

 Court, that any of them were found in the act of catching fish, or 

 trading with the inhabitants in any of our bays or harbours, but 

 merely seeking a little fresh water, which under existing circum- 

 stances, I cannot view in the light of an infringement of our rights. 



Independent of this consideration, were I inclined to enforce the 

 principle of national law against the claimants in this case, I should 

 be at a loss what penalty to pronounce upon the aggressors. 



In other cases in which foreigners are seized for unlawful traffic, 

 there are positive Acts of Parliament, inflicting a forfeiture of the 

 property and other penalties, for the offence : is it a matter of course 

 in this instance, that these vessels are to be condemned, and forfeited 

 to His Majesty ? I cannot think so. 



I have no law to guide me in my judgment; no proclamation, or 

 Orders of Council ; no instructions of any kind, by which I can 

 measure the punishment to be inflicted for this infringement of our 

 Colonial rights. 



It is a totally new question, and one that I conceive to be involved 

 in much doubt and difficulty, in consequence of the silence of the 

 Treaty of Ghent on this very important subject. 



I am not ignorant that negotiations have been carried on respecting 

 the fishery in question, between our Government and that of America : 

 those negotiations were broken off in January last, it is true; but 

 it is equally true, that they have been renewed, and are still pending. 



Under such circumstances, therefore, I do not consider myself 

 justified in condemning this property to His Majesty; but shall 

 decree the vessels, and property belonging to them, to be restored to 

 the claimants, on paying costs from which decree, if the seizors are 

 dissatisfied, they are at liberty to appeal to a superior Court; where 

 it is probable the subject has been under the discussion of able minds, 

 and where the intentions of our Government, with respect to it, can 

 be fully ascertained. 



