PERIOD FROM 1871 TO 1905. 777 



even if well founded, be the source of any serious controversy. It 

 would be at most, under the circumstances, only an accidental and 

 purely technical breach of a custom-house regulation, by which no 

 harm was intended, and from which no harm came, and would in 

 ordinary cases be easily condoned by an apology, and perhaps the 

 payment of costs. 



But trivial as it is, this charge does not appear to be well founded 

 in point of fact. Digby is a small fishing settlement and its harbor 

 not defined. The vessel had moved about and anchored in the outer 

 part of the harbor, having no business at, or communication with 

 Digby, and no reason for reporting to the officer of customs. It 

 appears by the report of the consul-general to be conceded by the 

 customs authorities there that fishing vessels have for forty years been 

 accustomed to go in and out of the bay at pleasure, and have never 

 been required to send ashore and report when they had no business' 

 with the port, and made no landing; and that no seizure had ever 

 before been made or claimed against them for so doing. 



Can it be reasonably insisted under these circumstances that by the 

 sudden adoption, without notice, of a new rule, a vessel of a friendly 

 nation should be seized and forfeited for doing what all similar ves- 

 sels had for so long a period been allowed to do without question ? 



It is sufficiently evident that the claim of a violation of the cus- 

 toms act was an afterthought, brought forward to give whatever 

 added strength it might to the principal claim on which the seizure 

 had been made. 



Recurring, then, to the only real question in the case, whether the 

 vessel is to be forfeited for purchasing bait of an inhabitant of Nova 

 Scotia, to be used in lawful fishing, it may be readily admitted that 

 if the language of the treaty of 1818 is to be interpreted literally, 

 rather than according to its spirit and plain intent, a vessel engaged 

 in fishing would be prohibited from entering a Canadian port " for 

 any purpose whatever " except to obtain wood or water, to repair 

 damages, or to seek shelter. Whether it would be liable to the extreme 

 penalty of confiscation for a breach of this prohibition in a trifling 

 and harmless instance might be quite another question. 



Such a literal construction is best refuted by considering its pre- 

 posterous consequences. If a vessel enters a port to post a letter, or 

 send a telegram, or buy a newspaper, to obtain a physician in case of 

 illness, or a surgeon in case of accident, to land or bring off a passen- 

 ger, or even to lend assistance to the inhabitants in fire, flood, or 

 pestilence, it would, upon this construction, be held to violate the 

 treaty stipulations maintained between two enlightened maritime and 

 most friendly nations, whose ports are freely open to each other in 

 all other places and under all other circumstances. If a vessel is not 

 engaged in fishing she may enter all ports ; but if employed in fishing, 

 not denied to be lawful, she is excluded, though on the most innocent 

 errand. She may buy water, but not food or medicine; wood, but 

 not coal. She may repair rigging, but not purchase a new rope, 

 though the inhabitants are desirous to sell it. If she even entered 

 the port (having no other business) to report herself to the custom- 

 house, as the vessel in question is now seized for not doing, she would 

 be equally within the interdiction of the treaty. If it be said these 

 are extreme instances of violation of the treaty not likely to be 



