156 CASE OF THE UNITED STATES. 



to which she might legally resort for fisliing luider the terms of the 

 Statutes. 



I construe the Statutes simply thus : — If a foreign vessel is found — 

 1st, having taken fish; 2nd, fishing, although no fish have been taken; 

 3rd, ''preparing to fish," (i. e.), with her crew arranging her nets, 

 lines, and fishing tackle for fishing, though not actually applied to 

 fishing, in British waters, in either of those cases specified in the 

 statutes the forfeiture attaches. 



I think the vvords "preparing to fish" were introduced for the pur- 

 pose of preventing the escape of a foreign vessel which, though with 

 intent of illegal fishing in British waters, had not taken fish or en- 

 gaged in fishing by setting nets and lines, but was seized in the very 

 act of putting out her lines, nets, etc., into the water, and so prepar- 

 ing to fish. Without these a vessel so situated would escape seizure, 

 inasmuch as the crew had neither caught fish nor been found fishing. 



Taking this view of the Statutes, I am of the opinion that the 

 facts disclosed by the affidavits do not furnish legal grounds for the 

 seizure of the American schooner Wliite Fawn, by Captain Betts, the 

 commander of the Dominion vessel Water Lily, and do not make out 

 a prima facie case for condemnation in this Court, of the schooner, 

 her tackle, &c., and cargo. 



I may add that as the construction I have put upon the Statutes 

 differs from that adopted by the Crown Officers of the Dominion, it 

 is satisfactorj" to know that the judgement of the Supreme Court 

 may be obtained by information, filed there, as the Imperial Act 59, 

 George III., Cap. 38, gave concurrent jurisdiction to that Court in 

 cases of this nature. '^ 



It does not appear that any further action in the case was taken. 



A further statement of the position of the United States on the 

 question of "preparing to fish" as v,^ell as on the several other ques- 

 tions under consideration at that time relating to the fisheries, will 

 be found in the following extract from President Grant's Annual 

 Message of December 5, 1870: 



The course pursued by the Canadian authorities toward the fisher- 

 men of the United States during the past season has not been marked 

 by a friendly feeling. By the first article of the convention of 1818 

 between Great Britain and the United States it was agreed that the 

 inhabitants of the United States should have forever, in common 

 with British subjects, the right of taking fish in certain waters therein 

 defined. In the waters not included in the limits named in the con- 

 vention (within 3 miles of parts of the British coast) it has been the 

 custom for many years to give to intruding fishermen of the United 

 States a reasonable warning of their violation of the technical rights 

 of Great Britain. The Imperial Government is understood to have 

 delegated the whole or a share of its jurisdiction or control of these 

 inshore fishing grounds to the colonial authority known as the 

 Dominion of Canada, and this semi-independent but irresponsible 

 agent has exercised its delegated powers in an unfriendly way. Ves- 

 sels have been seized without notice or warning, in violation of the 



o Appendix, p. 1099. 



