3396 AWARD OF THE FISHERY COMMISSION. 



The libel sets out in separate articles tbesetwo acts with the treaty, and 

 the Imperial Acts of 1819 aud 1867, all of which are admitted without any 

 ^questions raised thereon in the responsive allegation. I must take them, 

 ^therefore, both on general principles and on the pleading, as binding on 

 this court; and it is of no consequence whether the judge approves or 

 ^disapproves of them. A judge may sometimes intimate a desire that the 

 enactments he is called upon to enforce should be modified or changed ; 

 but until tbey are repealed in whole or in part, they constitute the law, 

 \vhich it is his business and his duty to administer. 



41 Our present enquiry is, what was the law as it stood on the Statute 

 Book on the 30th of June, 1870, when the seizure was made ? The 

 court, as I take it, has nothing to do with the instructions of the gov- 

 ernment to its officers, and which, if in their possession on that day, 

 might have induced them to abstain from the seizure of this vessel, or 

 may induce the government now to exercise the power conferred on 

 them by the 19th section of the Acts of 1868. 



" But before pursuing this inquiry, let us first of all ascertain the facts 

 as they appear in evidence. For the prosecution, there were exhibited 

 the examinations duly taken under the rules of 1859, of Capt. Tory 

 and thirteen of his crew, all of whom were examined on cross-interrog- 

 atorks. 



" Capt. Tory testifies that he boarded the vessel at Ingonish, on the 

 25th of June, and the master being on shore, that he asked the crew 

 then on board, what they were doing there, and they said they were 

 after bait, and had procured some while they were there after coming 

 in, and wanted more. About an hour after he saw the master, aud told 

 liim he had violated the law, that he had no power to allow the vessel 

 to remain, and that he had better leave. On the 26th the vessel was 

 still there in the harbor, and Capt. Tory boarded her and saw fresh her- 

 ring bait in the ice house ; and Capt. McDonald, the master, admitted that 

 he had procured said bait since his arrival ; and he afterwards admitted 

 that he had violated the law, and hoped that Captain Tory would not 

 be too severe with him ; aud as he promised to leave with hisvesstl, 

 <Japt. Tory did not then seize her. She went to sea the same night, but on 

 the 30th was found again at anchor in the same place where Capt. Tory 

 boarded her; and judging from the appearance of her deck, that she 

 had very recently procured more bait, which he saw the next morning, he 

 seized her. In his cross-examination, he says that the herrings he saw 

 on the first occasion in the ice-house on board were fresh, but had been 

 a, night or two in the nets, which caused them to be a little Damaged; 

 #nd were large, fat herring, and similar to those caught in the vicinity 

 of Ingonish at that season of the year. The herrings he saw on the sec- 

 ond occasion were also fresh, newly caught, with blood on them, of the 

 same description, except that they were sound. 



"This evidence, in its main features, is confirmed by several of the 

 crew. Grant went into the ice-house by order of his captain, and there 

 saw about five or six barrels of fresh herring bait and a few fresh mack- 

 erel. There were scales of fresh fish on the rails, from which witness 

 judged that they had taken fish that morning. Capt. Tory then seized 

 the " Nickerson " and placed witness on board as one of the crew, to 

 take her to Xorth Sydney, the captain of the " Nickerson" remaining on 

 board. Witness, on the passage, heard said captain say (and this sev- 

 eral of the other men confirm in words to the like effect) that he had 

 purchased 700 or 800 herrings that morning. He also said that he 

 wanted more bait, that it was of no use going out with that much. 

 McMaster says that on the passage to Sydney, he heard some of the 



