PERIOD FROM 1854 TO IS^l. 155 



the Court, in which it was held that the facts presented did not 

 make out a prima facie case for condemnation. The opinion of the 

 Court is printed in full in the Appendix, and the portions of it relating 

 to this feature of the case are covered by the follownnj? extract: 



By the Imperial Statute, 59 George III., cap. 38, it is declared that 

 if any foreign vessel, or person on board thereof, "shall be found to 

 be fishing, or to have been fishing, or preparing to fish within such 

 distance (three marine miles) of the coast, such vessel and cargo shall 

 be forfeited." 



The Dominion Statute, 31 Vic, Cap. 61, as amended by 33 Vic, 

 Cap. 15, enacts: "If such foreign vessel is found fishing, or preparing 

 to fish, or to have been fishing in British waters, within three marine 

 miles of the coast, such vessel, her tackle, etc., and cargo, shall be 

 forfeited." 



The White Fawn was a foreign vessel in British waters; in fact, 

 within one of the Counties of this Province when she was seized. It is 

 not alleged that she is subject to forfeiture for having entered Head 

 Harbour for other purposes than shelter or obtaining wood and water. 

 Under Section III, of the Imperial Act, no forfeiture but a penalty can 

 be inflicted for such entry. Nor is it alleged that she committed any 

 infraction of the Customs or Revenue Laws. It is not stated that she 

 had fished within the prescribed limits, or had been found fishing, but 

 that she was "preparing to fish," having bought bait (an article no 

 doubt very material if not necessary for successful fishing) from the 

 inhabitants of Campobello. Assuming that the fact of such purchase 

 establishes a "preparing to fish" under the Statutes (which I do not 

 admit), I think, before a forfeiture could be incurred, it must be shown 

 that the preparations were for an illegal fishing in British waters: hence, 

 for aught which appears, the intention of the Master may have been 

 to prosecuting his fishing outside of the three-mile limit, in conformity 

 with the Statutes; and it is not for the court to impute fraud or an 

 intention to infringe the provisions of our statutes to any person, 

 British or foreign, in the absence of evidence of such fraud. He had a 

 right, in common with all other persons, to pass with his vessel through 

 the three miles, from our coast to the fishing grounds outside, which he 

 might lawfully use, and, as I have already stated, there is no evidence 

 of any intention to fish before he reached such grounds. 



The construction sought to be put upon the statutes by the Crown 

 officers would appear to be thus: — ''A foreign vessel, being in British 

 waters and purchasing from a British subject any article which may 

 be used in prosecuting the fisheries, without its being sho^vn that such 

 article is to be used in illegal fishing in British waters, is hable to for- 

 feiture as preparing to fish in British waters." 



I cannot adopt such a construction. I tliink it harsh and unrea- 

 sonable, and not warranted by the words of the statutes. It would 

 subject a foreign vessel, which might be of great value, as in the pres- 

 ent case, to forfeiture, with her cargo and outfits, for purchasing (while 

 she was pursuing her voyage in British waters, as she lawfully might 

 do, witliin three miles of our coast) of a British subject any article, 

 however small in value (a cod-line or net for instance) without its 

 being sho^\Ti that there was any intention of using such articles in 

 illegal fisliing in British waters before she reached the fishing ground 



