1100 MISCELLANEOUS. 



alleged by Captain Betts, for a violation of the terms of the conven- 

 tion and the laws of Canada ; her voyage was broken up and her crew 

 dispersed at the time of the seizure. 



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 Statutes, 31 Vic., cap. 61, as amended by 33 Vic., 

 cap. 15, enacts : " If such foreign vessel is found fishing, or pre- 

 paring 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 Harbor 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," hav- 

 ing bought bait (an article no doubt very material if not necessary 

 for successful fishing) from the inhabitants of Campobello. As- 

 suming 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 shown that such 

 article is to be used in illegal fishing in British waters, is liable to 

 forfeiture as preparing to fish in British waters." 



I cannot adopt such a construction. I think 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 

 present case, to forfeiture, with her cargo and outfits, for purchas- 

 ing (while she was pursuing her voyage in British waters, as she 

 lawfully might do, within three miles of our coast) of a British sub- 

 ject any article, however small in value (a cod-line or net, for in- 

 stance), without its being shown that there was an intention of us- 

 ing such article in illegal fishing in British waters before she reached 

 the fishing ground to which she might legally resort for fishing under 

 the terms of the statutes. 



