Appendix to the Memorial. 123 



Canadian statutes up to 1886 appear to cover by way of penalty 

 all the acts prohibited by the convention of 1818. Although they 

 penalize other acts with a view to its enforcement they appear to 

 have dealt only with "fishing" or "preparing to fish." The treaty 

 forbade the drying or curing of fish, and contained a proviso that 

 an American fishing vessel might enter bays and harbours for the 

 purpose of shelter and repairing damages, of purchasing wood and 

 of obtaining water, but for no other purpose zuhatever. The ques- 

 tion had arisen as to whether the purchase of bait was a "preparing 

 to fish" within the meaning of the statutes. It had been decided 

 in the affirmative in Nova Scotia in the case of the /. H. Nicker son, 

 and in the negative in New Brunswick in the case of the White 

 Faivn, the first decision having been subsequently followed in the 

 Nova Scotia case of the David J. Adams. In order to set at rest 

 this question the statute law in force in that year was changed by 

 the Act 49 Vict, ch., 114 (1886), which expressly provided in 

 addition that if a foreign vessel (unlicensed) has entered within 

 three marine miles of any of the coasts, bays, creeks or harbours 

 of Canada for any purpose not provided by treaty or convention, 

 or of any law of the United Kingdom, or of Canada for the time 

 being in force, such vessel should be forfeited. It is worth noting 

 that this statute is in a special sense an enactment of Her Majesty, 

 carrying with it all the dignity and prestige of Imperial law. It 

 was an Act, not assented to by the Governor General, but reserved 

 for the signification of Her Majesty's pleasure, and it was subse- 

 quently, by Imperial order in council, solemnly and after due con- 

 sideration approved by Her Majesty. 



If, therefore, the Gerring, at the time of the seizure, was "un- 

 lawfully" where she was, she became liable to forfeiture. The 

 Canadian Act. it will be noted, does not in this relation apply to 

 bays and harbours only, but coasts as well. The convention 

 specifies the circumstances and all the circumstances under which 

 a foreign fishing vessel may enter into our territorial waters, viz., 

 for wood, water, shelter or repairs, and for no other purpose zvhat- 

 ever. For what purpose was the Gerring where she was when 

 seized? Certainly for none of these purposes, but for the sole 

 purpose of securing the fish inclosed by her seine. She was there, 

 therefore, clearly in contravention of the terms of the convention. 

 Is there any law either in the United Kingdom or in Canada which 



