APPENDIX. 23 



The learned judge below lays great stress on Captain Spain's 

 testimony as corroborating Captain Knowlton as to the position 

 of the Gerring, but it is submitted it is no corroboration on that 

 point, because he was not there at the time, and his measurements 

 of distances were made afterwards from the cross bearings given 

 by Knowlton, and if these cross bearings were wrong all the measure- 

 ments made by Spain would be incorrect. Captain Spain took 

 no cross bearings except adopting the cross bearings of Knowlton 

 in order to place his ship in the position of those cross bearings in 

 order to make the measurements to the shore from. them. Every- 

 thing depends on the correctness of the cross bearings, and about 

 that he admitted he knew nothing. 



As to the construction of the Statutes and treaty: 



No question arises as to the Gerrimfs having been found in any 

 bay or harbour. The only question arising was whether she was 

 fishing inside of three marine miles from the shore. Was she 

 fishing? That question the learned judge below decided in the 

 affirmative. The words of the treaty are "to take dry, or cure fish 

 on or within three marine miles of the coast, etc." 



The Imperial Statute 59, George III, Ch. 38, (1819), says "it 

 shall not be lawful for any one but a natural born subject to fish 

 for or take, dry, or cure any fish of any kind whatever, within three 

 marine miles of the coast, etc.," and " that if any such foreign 

 ship, or vessel, or boat or any person on board thereof shall be 

 found fishing or having been fishing or preparing to fish within 

 such distance of such coast, etc." it shall be forfeited. 



The Dominion Act, Ch. 94 R.S., Canada, reads, "has been 

 found fishing, or preparing to fish, or have been fishing in British 

 waters, within three marine miles of any of the coasts, etc." The 

 Treaty and Acts are all the same. It must be rem.em.bered that any 

 vessel found in any bay or harbor, and within the three mile limit, 

 is not liable t() seizure unless she is found fishing or taking fish, 

 preparing to fish or has been fishing in British waters. 

 If she is found within the three mile lin\its not violating, or has 

 not violated the treaty as above set forth she cannot be seized. 

 The only thing that could be done by an officer would be to go 

 on board of her and remain on board so long as she remained within 

 such harbor, or distance and this is the only power gi\(>n undci- 

 section two of the Dominion Act. 



The only offences are fishing, taking (i.'^li, i)rci)aring to fish, or 

 having been fishing within the limils. It is evident these arc 

 separate and distinct offences, and it is submitted the mere bailing of 



-"eS 



