I 



390 



"Thero whs aConvcntinn mnrlf in 181R liotwpcn tlio United Stnte^ nml Hront Britain relnting to 

 the fislierifs of Lulmidnr, Ncwfcnnidliind, and His Mnjcsly'sjidssi'ssidiis In Nortli Aimricii, liy whifli it was 

 agreed that tliti lisliirnien of llir Tnitcd States >liindd lia\i' tlic ri,udil tn lisli mi pait of tlio coasts (not 

 including tlio part ol the Island of XewfuumUand vu which L'tjncejiiii'n JJay liusj." 



I may mention here that the simple question at issue was wliethcr Conception Bay 

 was a British bay, and I think that it is twenty or thirty miles wide at tiie mouth. 



" And should not enter any ' bays ' in any part of the coast except for the pmTin'Jo of shelter and 

 repairinfi and pnrehasing wood and obtainin;^ water, and fur no other purposes wiiat(:ver. It seems 

 impossible to douht that tliis (.'onveiitinn ajiplied to all bays, whether laru'e or sniall, on that, coast, and 

 consequently to Conception liay. It is true tiiat tlie Convi'iition wo\dd oidy bind the two nations who 

 were parties to it, and consequently that, tlion,i,'li a stron;^ asserlinn ol' ownership on the part of Great 

 Britain, acquiesced in by so powert'ul a state as the I'niled .States, the Convention, ihnuuh weidity, is 

 not decisive. But the Act; already refen-ed to, 50 Geo. IIT, cap. I'S, thou;.;!) passed eliielly for the 

 purpose of givinc; effect to the Convention of iSlS, jroes further. It enacts not merely that subjects 

 of the United States shall observe the restrictions ii^'reed on by the Convention, but that persons 

 not being uatural-bora subjects of the King of Great Britain, shall obser\e them under penalties." 



Now, I think in regard to this case that if my learned friend had really taken 

 time to read and consider this decision he would have seen that it goes further tlian be 

 supposes. 



Mr. Dana. — I did read it. 



Mr, Thomson, — Then you are labouring under a misconception in reference to its 

 scope. 



Before I pass to Judge Foster's argument — and in point of fact this is part of his 

 argument — I want to call your attention to a complaint that was made — it struck me, 

 very unnecessarily — by the Counsel of the United States with reference to a law of 1836, 

 contained in the Statute Book of Nova Scotia, whicli law shifts the burden of proof from 

 the Crown to the claimant of any vessel seized. At first sight it ajipeared to be unfair, but 

 I believe that the revenue laws of every countr)' — certainly the revenue laws of England 

 from time immemorial — have contained that clause, and I think that the same is true of 

 the revenue laws of the United States, as I will have the honour of pointing out hereafter. 

 These laws in efTect enact simply this : that witli regard to any seizure made by a public 

 officer in his pubUc capacity, the burden of proof must lie on the claimant, and you must 

 recollect that this provision applies not only to the seizure of a vessel, but also to the 

 seizure of any goods liable to forfeiture and condemnation. Tiic law enacts that when the 

 claimant comes into Court, ho shall be compelled to prove that all that may have been 

 done has been done legally. Well, that is fair cnougii, is it not? for within his cogni- 

 zance lie all the facts of the case. He knows whether fverylliing ha.s been fjirly done, 

 and whether he has honestly paid the duties; and he knows — if we t;ike, for instance, the 

 case of a vessel which has entered the limits iierc — very well for wliat purpose she 

 entered, and he can prove it. He knows that under tliis Convention fishing vessels can 

 enter for certain purposes Britisli waters ; that is to say, for tiic purpose of getting wood 

 and water, for the purpose of repairs, for sliclttr inca.sc of stress of weather, and for no other 

 purpose whatever. He knows tliat, and he can siiow therefore that altiiough his vessel 

 was seized within the limits, ho was really in there for no other purposes than those 

 prescribed by tiie Convention of IRIS. Tims there was no great injustice put upon him. 

 Besides this all public officers, while acting in the discharge of their duties, are supposed 

 to have no private interests involved, and it would be very hard to subject them to the 

 annoyance of actions, if even prinid /uric grounds arc shown for acting as they did ; the 

 law, therefore, declares that no iiction shall lie under such circumstances, and even if it 

 turns out that the seizure was strictly speaking illegal, ncveitbeless, if the .ludge certifies 

 that there was reasonable and probable ctiuse lor the seizure being made, the plaintiff shall 

 not recover costs. There is nothing unfair in tliiit. is there? 



Mr. Dunn. — It is iilso prohibite<l to sue. 



Mr. Thomson. — Well, they may be virtually prohii)itcd fronr suins at all, but 1 do not 

 think tliiit the Act says so. I am, iiowevt'r, tjuite willing to admit that this clause is just 

 as bad as ti ( lause prohibiting from siting at all, bcciuise as the ptiity ciuinot recover 

 damages or costs on sueli eertifntite being giviu, it pracficiilly ])reven(s him from suing 

 at all. 1 am quite satisfied, however, that he could not get the (|uestion before a Court, 

 unless he had the right to sue. 



Mr. Dunn. — 1 believe tliiit you uiv right about thtit. This j^ deeidcd by the Court of 

 First Instance. The Court tries the (iiiestion i)f seizure ami ^ivus the eertilieate. 



Mr. Thomxon. — That is it.iiml it certtiinly pructieiilly pieveiits suing at till; otherwise 

 a person acting in the discharge of his duty would not be for a moment safe from 



