140 CASE OF THE UNITED STATES. 



different times insisted upon by Great Britain, and uniformly op- 

 posed by the United States, if not actually abandoned, has been 

 held in abeyance, and it is not probable that any questions will 

 hereafter arise in relation to it between the two countries. 



In regard to fishing supplies, the practice which has so long pre- 

 vailed of procuring them in colonial ports, with the full knowledge 

 and consent of both governments, whose citizens have mutually 

 shared in the benefits resulting from such practice, must be regarded 

 as a practical construction given to the treaty which concludes all 

 parties. 



Transshi'pment in lond. — Since the abrogation of the reciprocity 

 treaty until within a few weeks past, it has been the practice of the 

 colonial authorities to permit the transshipment in bond of American- 

 caught fish. The practice was founded upon no statutory enact- 

 ment, but was adopted as a commercial regulation, mutually bene- 

 ficial to our fishermen and the people of the provinces. It afforded 

 facilities to the former in the prosecution of a lawful and useful 

 avocation, and increased the trade and contributed to the prosperity 

 of the latter. ^Vhile its discontinuance, in itself, violates no estab- 

 lished commercial usage between friendly nations, as in the case 

 of the prohibition of supplies to our fishermen, yet the time of its 

 discontinuance, in the midst of the fishing season, without previous 

 notice, and when much greater and more important bonding privileges 

 were, and still are, extended by the United States to the British colo- 

 nies, is a just cause of complaint. 



Fresh fish. — Wliile fresh fish, the product of the British North 

 American fisheries, is admitted into the United States duty fi^ee, our 

 fishermen are prohibited from procuring ice for fresh fish caught 

 while fishing side by side with British fishermen on the same banks. 



Pilotage. — To subject fishing vessels coming in to colonial ports, as 

 is now the case, to the compulsory regulations respecting pilotage 

 applied to merchant vessels, and at the same time to deny them when 

 in port the ordinary privileges extended to such merchant vessels, 

 is manifestly unjust. 



Burden of proof changed. — The Dominion act framed in 1868 re- 

 verses, in violation of the principles of common law, the ordinary 

 modes of proof, and declares, in section ten, that ''in case a dispute 

 arises as to whether any seizure has or has not been legally made, or 

 as to whether the person seizing was or was not authorized to seize 

 under the act, the burden of proving the illegality of the seizure shall 

 be upon the owner or claimant." Under tlris section an American 

 fishing vessel coming into port in the exercise of a conceded and un- 

 restricted treaty right, either for the purpose of shelter, of repairing 

 damages therein, of purchasing wood, and obtaining water, and un- 

 lawfully seized, instead of being presumed to be in port for a lawful 

 purpose, is presumed by the act of seizure itself, however unauthor- 

 izeci, to be guilty of a violation of the fishery laws. Thus the pre- 

 sumption of guilt, which is to subject a fishing vessel to seizure and 

 confiscation, is made, in the first instance, to depend upon the caprice 

 of the seizing officer, and not upon the conduct of the officers and 

 crew of the captured vessel. It is obvious that such a rule of action 

 must be instrumental in inflicting wrong and injury upon innocent 

 and unoffending parties. 



