1909.] ATLANTIC FISHERIES QUESTION. 333 



treaty Her Majesty's government had consented to forego the exercise of its 

 strict right to exclude American fishermen from the Bay of Fundy, and they 

 are of opinion that during the present session that right should not be 

 exercised in the body of the Bay of Fundy, and that American fishermen 

 should not be interfered with, either by notice or otherwise, unless they are 

 found within three miles of the shore, or within three miles of a line drawn 

 across the mouth of a bay or creek which is less than ten geographical miles 

 in width, in conformity with the arrangement made with France in 1839.'' 

 . . . Her Majesty's government do not desire that the prohibition to enter 

 British bays should be generally insisted on, except when there is reason to 

 apprehend some substantial invasion of British rights. And in particular they 

 do not desire American vessels to be prevented from navigating the Gut of 

 Canso (from which Her Majesty's government are advised they may lawfully 

 be excluded), unless it shall appear that this permission is used to the injury 

 of colonial fishermen, or for other improper objects.^^ 



On November 25, 1870, an American vessel, the White Fawn, 

 was seized at Head Harbor, New Brunswick, because she had bought 

 herrings intended to be used as bait for fishing. Judge Hazen, of 

 the vice-admiralty court of St. John's, before whom the case of 

 whether she was liable to forfeiture came, held that though she 

 had bought bait within the British territorial waters, she had not 

 actually proceeded to catch fish with it, and consequently that the 

 seizure could not be sustained.^* 



Previously in June, 1870, the British authorities seized in the 

 North Bay of Ingonish, on the shore of Cape Breton Island, the 

 American fishing vessel, /. H. Nickerson. They charged her with 

 entering to procure bait and of having obtained it. The case came 

 before Sir William Young in the vice-admiralty court at Halifax. 

 In his decision November 15, 1871, while he condemned the vessel 

 to forfeiture because she had bought bait in a British port preparing 

 to fish, Sir William Young admitted that had she merely entered to 

 buy bait without the intention of fishing, she would have been act- 

 ing within her rights. ^^ 



^' On this point see Westlake, " International Law," Cambridge, 1904, Part 

 I., pp. 184, 187. 



^^ " Foreign Relations of the United States, 1870," Washington, 1870, pp. 

 419-420. 



°* " Award of the Fishery Commission : Documents and Proceedings of 

 the Halifax Commission, 1877," Washington, 1878, Vol. III., p. 3381. 



^ " Award of the Fishery Commission : Documents and Proceedings of 

 the Halifax Commission, 1877," Washington, 1878, Vol. III., p. 3395. 



