APPENDIX. 33 



The easy means of evasion of the Statute, which would be caused 

 by the appellants construction of the word "fishing" must also 

 be considered. 



"It is the duty of the judge to make such construction as shall 

 "suppress all evasions for the continuance of the mischief. To 

 "carry out effectually the object of a statute, it must be so con- 

 "strued as to defeat all attempts to do or avoid in an indirect 

 "or circuitous manner, that which it has prohibited or enjoined." 



Maxwell on Statutes, 2nd Edition, page 133. 



If it is incumbent upon the Crown to prove when an American 

 fisherman is taking fish out of a net within territorial waters near 

 the high seas that the fish came into the net in territorial waters, 

 or to disprove statements of the fishermen that the fish came into 

 the net on the high seas, the punishment of violations of the law 

 in such cases would be impracticable. 



III. 



Assuming that the act of the fishermen on the Frederick Gerring Jr. 

 in taking fish out of their seine was not fishing, the vessel was never- 

 theless properly forfeited for l)eing, in violation of the Treaty and 

 statutory prohibitions, in territorial waters for a purpose not per- 

 mitted by Treaty or Convention. The Imperial Statute; and the 

 Canadian Statutes 31 Victoria, Chapter 61, (1868), and 33 Victoria, 

 Chapter 15, (1870), which hke the Imperial Statute expressly 

 authorize forfeiture, only for fishing or preparing to fish, have 

 been held to authorize such forfeiture. Upon this construction 

 of the Imperial Statute in 1839, the Java, Independence, Magnolia 

 and Hart were seized and confiscated, the principal charge being 

 that they were within British American waters without legal 

 cause. In 1840 the Papineau and Mary were seized and sold for 

 purchasing bait. In 1849 the Charles was seized and condemned 

 in the Vice Admiralty Court in New Brunswick for having resorted 

 to a harbour of that Province after warning and without authority. 

 The J. H. Nicker son was forfeited by the Vice Admiralty Court 

 at Halifax, for having on the 30th of June, 1870, entered the 

 territorial waters of Canada for a purpose not permitted by 

 TrNaty or Convention, namely, to purchase bait. 



The ./. //. Nickerson Young's Admiralty Decisions, page 56. 



The David J. Adams was also forfeited by the Vice Admiralty 

 Court at Halifax for having on the 6th day of May, 1886, entered 

 the waters of Canada for the purpose of purchasing bait. 



