AWARD OF THE FISHERY COMMISSION. 1731 



in an extract taken from a judgment rendered by the distinguished 

 chief justice of Nova Scotia, Sir William Young, in December, 1870, In 

 re schooner Minnie, court of vice-admiralty : 



It must be recollected that custom-house laws are framed to defeat the infinitely varied, 

 unscrupulous, and ingenious devices io defraud the revenue of the country. In no other 

 system is the party accused obliged to prove his innocence the weight of proof is on him, re- 

 versing one of the first principles of criminal law. Why have the legislatures of Qreat Britain, 

 of the United States, and of the Dominion alike, sanctioned this departure from the nn r > 

 humane, and, as it would seem at the first blush, the more reasonable rulet From a ne- 

 cessity, demonstrated by experience the necessity of protecting the fair trader and counter- 

 working and punishing the smuggler. 



Mr. DANA. That is a British decision which you have read T 



Mr. DOUTRE. Yes ; a British colonial one. 



The provisions of the Nova Scotia statute were intended to apply to 

 a class of cases belonging to something similar to customs regulations, 

 and are inseparable from them, and if ever our American friends desire 

 to enforce on their coasts the three-mile limit, which their answer and 

 brief recognize as resting on the unwritten law of nations, they will 

 have to extend to this matter their customs law above cited, as did the 

 legislature of Nova Scotia. 



The learned Agent of the United States went very far from any dis- 

 puted point to gain sympathy, by a reference to what, in the United 

 States answer to the case, is called an inhospitable statute. He says : 



A Nova Scotia statute of 1836, after providing for the forfeiture of the vessel found fishing, 

 or preparing to fish, or to have been fishing within three miles of the coast, bays, creeks, or 

 harbors, and providing that the master, or person in command, should not truly answer the 

 questions put to him in such examination by the boarding officer, he should forfeit the sum 

 of one hundred pounds, goes on to provide that if any goods shipped on the vessel were 

 seized for any cause of forfeiture under this act, and any dispute arises whether they have 

 been lawfully seized, the proof touching the illegality of the seizure shall be on the owner or 

 claimant of the goods, ship, or vessel, but not on the officer or person who shall seize and 

 stop the same. 



These are the very expressions which the learned Agent for the United 

 States employed when he animadverted on that statute. He also states 

 that he is not aware whether a statute similar to this one, which existed 

 in Nova Seotia in 1868, has been repealed. In 1867, however, Nova 

 Scotia, New Brunswick, and the two Ganadas were confederated to- 

 gether, and the matters relating to the fisheries and customs were then 

 transferred to the Dominion of Canada, which has ever since exercised 

 the sole power of legislation over those subjects. The best answer that 

 can be given to Mr. Foster and his colleagues on this point may be 

 quoted from high authority. The Agent for the United States, about 

 the period of his arrival here to attend to his duties before this Commis- 

 sion, published in the "American Law Review," a journal which speaks 

 with quasi-judicial authority in Massachusetts, an article on the Fran- 

 conia, having a prominent bearing on this case now before the Cominis 

 sion. I only mention this fact in order to show the high character of 

 the Review. This journal, alarmed at the views proclaimed by Presi 

 dent Grant, published a very able article on the subject, the wn 

 being an eminent and able lawyer ; and this article deals with the ques- 

 tion of preparing to fish, as well as with the question of trade, both 

 which have been discussed by my learned friend, the Agent for the I 

 States. In dealing with the claim of the right on the part ot Am 

 fishermen to lie at anchor, clean and pack fish, and purchase bait, pn 

 pare to fish and transship cargoes, the writer says- 

 Mr. DANA. Will you have the kinduess to state by whom tues 

 are set forth ! 

 Mr. DOUTRE. I am riot quite sure of the name. 



