AWARD OF THE FISHERY COMMISSION. 339 T 



crew of the " Nickerson " say that they had bought seven barrels of 

 fresh herring bait that morning and that they wanted more. Four of 

 the seamen testify to another conversation with Captain McDonald, in 

 which he said he would not have come in a second time had he known 

 the cutter was at hand, that all the bait he had would not bait his 

 trawls once, and that it was not worth while for him to go oft' to the 

 Banks with that much. These depositions were taken on the 1st of 

 September, 1870, and the only reply is the examination of John Wills, 

 the steward of the " Nickerson," taken in October under a commission 

 at Boston, which undertakes to deny altogether the purchasing or pro- 

 curing bait, nullifying the numerous admissions in proof and support- 

 ing the responsive allegation as a whole. Neither the master nor any 

 ot the crew of the "J. H. Nickerson" were examined, and I need 

 scarcely say that the evidence of the steward alone, as opposed to the 

 mass of testimony I have cited, is unworthy of credjt. 



" It being, then, clearly established that the " J. H. Xickerson" entered 

 a British port and was anchored within three marine miles of the coast 

 oft' Cape Breton, for the purpose of purchasing or procuring bait, and 

 did there purchase or procure it in June, 1870, the single question arises 

 on the Treaty of 1818 and the Acts of the Imperial and Dominion Par- 

 liaments. -Is this a sufficient ground for seizure and condemnation? 

 This was said at the hearing to be a test case, the most important that 

 had come before the Court since the termination of the Reciprocity 

 Treaty of 1854. But it has lost much of its importance since the hear- 

 ing in February, and the present aspect of the question would scarcely 

 justify the elaborate review which might otherwise have been reasonably 

 expected. If the law should remain as it is, and the instructions issued 

 from Downing street on the 30th of April and by the Dominion Govern- 

 ment on the 27th June, 1870, as communicated to Parliament, were 

 to continue, no future seizure like the present could occur; and if the 

 Treaty of 1818 and the 'Acts consequent thereon are superseded, this 

 judgment ceases to have any value beyond its operation on the case ia 

 hand. 



"The first Article of the Convention of 1818 must be construed, as all 

 other instruments are, with a view to the surrounding circumstances 

 and according to the plain meaning of the words employed. The sub- 

 tleties and refinements that have been applied to it will find little favor 

 with ,a Court governed by the rules of sound reason, nor will it attach 

 too much value to the protocols and drafts or the history of the negotia- 

 tions that preceded it. We must assume that it was drawn by able men 

 and ratified by the governments of two great powers, who knew per- 

 fectly well what they were respectively gaining or conceding, and took 

 care to express what they meant. After a formal renunciation by the 

 United States of the liberty of fishing, theretofore enjoyed or claimed, 

 wi bin the prescribed limits of three marine miles of an.v of our bays or 

 harbors, they guard themselves by this proviso: ' Provided, however, 

 that the American fishermen shall be admitted to enter such bays or 

 harbors for the purpose of shelter and repairing damage therein, of pur- 

 chasing wood and of obtaining water, and for no other purpose whatever. 

 But they shall be under such restrictions as may be necessary to pre- 

 vent them taking, drying or curing fish therein, or in any other manner 

 whatever abusing the privileges hereby reserved to them." 



"These privileges are explicitly and clearly defined, and to make as- 

 surance doubly sure, they are accompanied by a negative declaration 

 excluding any other purpose beyond the purpose expressed. I confine 

 myself to the single point that is before me. There is no charge here 



