3394 AWARD OF THE FISHERY COMMISSION. 



the A. J. Franklin, or any of her crew been fishing or preparing to fish, 

 or had fished, within three marine miles of the Xorth West coast of Cape 

 Breton. On the morning of the llth they sailed from Port Hood 

 towards Broadcove. After hoisting their jib to go to East Point, and 

 having got outside of the fleet, a gun was tired from the Ida E. They 

 continued on their course, and after running about half a-mile, a second 

 gun was fired, when the A. J. Franklin hove to, and was boarded, and, 

 after enquiry, was let go. This is the substance of Captain Nass's affi- 

 davit, who states also that Captain Tory was doubtful or reluctant to 

 serve him, and in his statement of what occurred on the llth he is con- 

 firmed by Morash and Mitchell. 



"These three deponents, in fact, are in direct conflict with the six men 

 who have given evidence from Luneuburg. All the minute circumstan- 

 ces they have detailed the first, that the A. J. Franklin was in the 

 centre of the fleet, that, within 100 yards of the Nova Scotia vessels 

 she was in the position for fishing, throwing bait to attract the mack- 

 erel, and with her lines down, her hasty retreat on the approach of 

 the cutter all are to be rejected as fabrications, and the six witnesses 

 from Lunenburg, who have no interest in the matter, to be disbelieved. 

 I need not say that no Court could come to such a conclusion, and for 

 all the purposes of this suit, the evidence of these Lunenburg men must 

 be taken as substantially true. 



"To what result, then, does it tend. On the charge of preparing to 

 fish a phrase to be found in all the British and Colonial Acts, but not in 

 the treaty I shall say little in .this judgment, because it will be the 

 main enquiry in the judgment I am to pronounce in a few days in the 

 far more important case of the J. H. Xickerson. Had 1 considered the 

 facts in this case to amount to nothing more than a preparing to fish, I 

 would have postponed my decision until the other was prepared and 

 delivered. But I look upon the throwing of bait the heaving to with 

 sheets off, and the jib down, and the vessel thus lying in the position to 

 catch mackerel, with the mackerel lines out, and hauled in on the ap- 

 proach of the cutter these circumstances, coupled with the declaration 

 and actions of Captain Xass, bring the case clearly, as I think, within 

 the meaning of the Dominion Acts of 1868 and 1870, as a fishing, and 

 subject the vessel and her cargo to forfeiture, although no mackerel are 

 proved, except by the declarations of the crew, to have been taken. If 

 1 am wrong in this conclusion, an appeal to the High Court of Admi- 

 ralty, under the Imperial Act of 1863, will afford the Defendants redress, 

 and I shall not be sorry to see such appeal prosecuted. Or the Domin- 

 ion Government may see fit to relieve from the penalty in whole or in 

 part, as they have a right to do, under the Act of 1868, Sec. 19. Per- 

 sonally, I may say if a Judge has a right to express anj" personal feel- 

 ing as the vessel was appraised at $800, and the cargo, in which the 

 crew were largely interested, at a much larger sum, 1 woild be well 

 pleased to see the penalty in this case largely mitigated. 



" Jt is not the policy, as I take it, of the Dominion Government, nor 

 is it the disposition of this Court, to press with undue severity upon the 

 American fishermen, even when they trench upon our undoubted rights. 

 The Court has been accused, I am told, of condemning the Wampatuck, 

 because the steward, in the absence of the master, had caught seven 

 codfish within the limits, for the purposes of cooking. Such, it is true, 

 was the defence that was et up, and, had it been established, there 

 would certainly have been no condemnation. But the evidence showed 

 that there was a fishing by three or four men, having lines overboard, 

 as was admitted by the master, and several codfish caught for the pur- 



