MISCELLANEOUS. 1101 



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 words " preparing to fish " were introduced for the 

 purpose of preventing the escape of a foreign vessel which, though 

 with intent of illegal fishing in British waters, had not taken fish 

 or engaged 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 

 preparing 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 ground for the seizure 

 of the American schooner White Fawn by Captain Betts, the com- 

 mander 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 statute 

 differs from that adopted by the crown officers of the Dominion, it 

 is satisfactory to know that the judgment 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. 



OPINION OF UPHAM, UNITED STATES COMMISSIONER, IN CASE 

 OF SCHOONER "WASHINGTON." 



UPHAM, United States Commissioner: 



In 1843 the fishing schooner Washington was seized by her Britan- 

 nic Majesty's cruiser, when fishing, broad, as it is termed, in what is 

 called the Bay of Fundy, ten miles from the shore. 



This seizure was justified on two grounds: 



1. That the Bay of Fundy was an indentation of the sea, extending 

 up into the land, both shores of which belonged to Great Britain, 

 and that for this reason she had, by virtue of the law of nations, the 

 exclusive jurisdiction over this sheet of water and the sole right of 

 taking fish within it. 



2. It was contended that, by a fair construction of the treaty of 

 October 20, 1818, between Great Britain and the United States, the 

 United States had renounced the liberty, heretofore enjoyed or 

 claimed, to take fish on certain bays, creeks, or harbors, including, as 

 was contended, the Bay of Fundy, and other similar waters within 

 certain limits described by the treaty. 



The article containing this renunciation has various other pro- 

 visions, supposed to throw some light on the clause of renunciation 

 referred to. I therefore quote it entire, which is as follows: 

 "Whereas differences have arisen respecting the liberty claimed by 

 the United States to take, dry, and cure fish on certain coasts, bays, 

 harbors, and creeks of His Britannic Majesty's dominions in America, 

 it is agreed that the inhabitants of the United States shall have, in 



