154 CASE OF THE UNITED STATES. 



warranted by the letter of the Treaty of 1818, and by the terms of 

 the Imperial Act, 59, Geo. Ill, chap. 38, but Her Majesty's Govern- 

 ment feel bound to state that it seems to them an extreme measure — 

 inconsistent with the general policy of the Empire, and they are 

 disposed to concede this point to the United States Government, 

 under such restrictions as may be necessary to prevent smuggling, 

 and to guard against any substantial invasion of the exclusive rights 

 of fishing which may be reserved to British subjects.® 



Again on March 17, 1871, Lord Kimberly took occasion to write 

 to the Governor General of Canada — 



I think it right however to add that the responsibility of determin- 

 ing what is the true construction of a Treaty made by Her Majesty 

 with any foreign power, must remain with Her ■Majesty's Govern- 

 ment, and that the degree to which this Country would make itself a 

 party to the strict enforcement of Treaty Rights may depend not only 

 on the liberal construction of the Treaty, but on the moderation 

 and reasonableness with which those rights are asserted.^ 



Seizures for " preparing tojish." 



It will be remembered that in Mr. Fish's note, above quoted, of 

 May 29, 1870, to the United States Consul-General in Canada, he 

 said, in instructing him with respect to the position of the United 

 States Government on the subject of seizures for " preparing to fish" : 



In particular if the charge against any American fishing vessel 

 is only that she has been preparing to fish, without actually fishing 

 in the prohibited limits, it is to be made lvno\\Ti to the counsel of the 

 owner of the vessel that this Government is not disposed to regard 

 such mere preparation as an infraction of the obligations of our 

 citizens engaged in the outfitting and employment of fi^shing vessels, 

 and it is desirous of having the point distinctly presented and adjudi- 

 cated without being complicated with, other questions, so if adversely 

 decided, the case presenting that single issue may be made for appeal 

 to the British tribunal of last resort."" 



An adjudication on the point thus referred to by Mr. Fish was 

 soon afterwards rendered in the case of the American fishing vessel 

 WJiite Fawn, which was seized on November 25, 1870, at Head Harbor, 

 New Brunswick, charged with having obtained there a quantity of 

 herring to be used as bait for fishing. In the proceedings subse- 

 quently taken for her condemnation in the Vice-Admiralty Court 

 at St. John, the determination of the legality of the seizure turned 

 upon the cjuestion of the meaning and effect of the words "preparing 

 to fish" in the Canadian statute under which the seizure was made. 

 This question is discussed at considerable length in the opinion of 



a Appendix, p. 636. ^ Appendix, p. 637. cSupra, p. 141. 



