AWARD OF THE FISHERY COMMISSION. 1579 



restored upon payment of the expenses, namely, the Shetland and Eliza. 

 The Washington was paid for; and in no instance, as I am informed, 

 was there a condemnation for anything except fishing or preparing to 

 fish ; and acts indicative of preparing to fish are always shown to be 

 some acts of immediate preparation, like having bait ready on board. 

 Then we come in 1871 to Sir William Young's decision, where he for- 

 feited a vessel for buying bait, holding that buying bait was a prepar- 

 ation to fish. That was the case of the Nickerson. The vessel was 

 seized in 1871, and forfeited the following year. About the same time 

 a similar case was tried in New Brunswick by Judge Hazen, who held 

 the reverse of Sir William Young's decision. Judge Hazen held that 

 the purchase of bait, unless it was proved to have been purchased to 

 use in illegal fishing, was not a preparation to fish illegally, and that a 

 vessel that came into Halifax or St. John to buy bait to fish on the 

 Banks of Newfoundland, was not violating any treaty. It was always 

 felt by the United States that the distinguished judge, Sir William 

 Young, had overlooked the fact that in the case before him the vessel 

 that bought the bait did not buy it to fish for mackerel in territorial 

 waters, but on the coast of Newfoundland. There is that one authority 

 for holding that it was contrary to law to come in here for cod and 

 buy bait for outside fishing, and, so far as I am aware, there are only 

 these two cases on the question, and opinions are equally balanced. 



Mr. THOMSON. In the case of the White Fawn, tried by Judge 

 Hazen, the vessel was libeled for taking bait in our waters, with the 

 intention of fishing there. She was not charged with the offense against 

 the treaty of purchasing bait within three miles of the shore, but she 

 was distinctly charged with obtaining bait with the view of fishing 

 there, and Judge Hazen held and I apprehend properly held, for he 

 is an able lawyer and sound judge that the evidence did not support 

 the allegation. The evidence probably showed that the intention was 

 to take the vessel and fish on the Banks of Newfoundland, where it had 

 no doubt a right to fish, and therefore the case failed, because while 

 the offense was complete, the allegation did not support it. 



Mr. FOSTEB asked for further explanations. 



Mr. THOMSON. What I say is this : that while this was a distinct 

 offense under the treaty, and while the statute expressly covered that 

 offense, and while a vessel could be libeled and condemned for buying 

 bait on our shores, yet the framer of the libel had been pleased to frame 

 it not simply for the offense of buying bait, which he might have done 

 and had the vessel condemned, but for buying bait with the intention 

 to fish in these waters, and he failed to prove the latter allegation. 



Mr. FOSTER. Our answer to that contention would be that there is 

 no statute. There is a statute to cover the cases of vessels fishing and 

 preparing to fish : 



II. And be it further enacted, That from and after the passing of this act it shall not 

 be lawful for any person or persons, not being a natural- bora subject of His Majesty, 

 in any foreign ship, vessel, or boat, nor for any person in any ship, vessel, or boat, 

 other than such as shall be navigated according to the laws of the United Kingdom of 

 Great Britain and Ireland, to fish for, or to take, dry, or cure any fish of any kind 

 whatever, within three marine miles of any coasts, bays, creeks, or harbors whatever, 

 in any part of His Majesty's Dominions in America, not included within the limits 

 specified and described in the first article of said convention, and hereinbefore recited ; 

 and that if any such foreign ship, vessel, or boat, or any persons on board thereof, shall 

 be found fishing, or to have been fishing, or preparing to fish within such distance of 

 such coasts, bays, creeks, or harbors, within such parts of His Majesty's Dominions in 

 America put of the said limits as aforesaid, all such ships, vessels, and boats, together 

 with their cargoes, and all guns, ammunition, tackle, apparel, furniture, and stores, 

 shall be forfeited. 



