Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 5, 1870
Mr. Thornton to Mr. Fish.
Sir: With reference to your note of the 1st instant, I have the honor to inclose copy of a dispatch which I have received from the Governor General of Canada, forwarding a memorandum from Sir John A. Macdonald, together with a copy of the fishery act of May 22, 1868.
Sir John Young to Mr. Thornton.
Sir: With reference to your dispatch of April 2, I have the honor to transmit to you herewith a memorandum from prime minister of the Dominion, together with copies of the fishery acts, (1868,) in order to supply the Secretary of State of the United States with the information he requires.
Sir: The undersigned has the honor to acknowledge the receipt of a reference to the privy council of a dispatch from her Britannic Majesty’s minister at Washington to the Governor General, transmitting copy of a note which the former had received from the Secretary of Stale of the United States, requesting him to transmit any information he might be able to communicate concerning any official action having force of law or valid regulations on the part of the Canadian authorities, in connection with the announcement recently made that the government of the Dominion intend to issue no more licenses to foreign fishermen, and that they are taking every step possible to protect their fisheries. Upon this dispatch the undersigned has the honor to report that, by an act passed on the 22d May, 1868, (31 Vic., c. 61,) certain provisions were made respecting fishing by foreign vessels in British waters, a copy of which act is hereunto annexed. These provisions are taken very much from enactments previously existing in the late Province of Canada, (Consol. Stat., Canada, c. 62,) in Nova Scotia, (Revised Stat., c. 94,) and in New Brunswick, (Revised Stat., c. 101.)
The undersigned has the honor further to state that his excellency the Governor General in council, on the 8th January last, was pleased to order, “That the system of granting fishing licenses to foreign vessels, under the act 31 Vic., c. 61, be discontinued, and that henceforth all foreign fishermen be prevented from fishing in the waters of Canada. Also, that six suitable sailing vessels, similar to La Canadienne, in addition to the two vessels at present employed, be chartered and equipped for the service of protecting the Canadian in-shore fisheries against illegal encroachments by foreigners; these vessels to be connected with the police force of Canada, and to form a marine branch of the same.”
These police vessels will be commanded by competent officers with magisterial powers, will be stationed in Canadian waters with instructions to act with the greatest discretion, and only in cases of clear infringement of the law.
An act respecting fishing by foreign vessels. (Assented to May 22, 1868.)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. The governor may from time to time grant to any foreign ship, vessel, or boat, or to any ship, vessel, or boat not navigated according to the laws of the United Kingdom, or of Canada, at such rate, and for such period not exceeding one year, as he may deem expedient, a license to fish for, or take, dry, or cure, any fish of any kind whatever, in British waters, within three marine miles of any of the coasts, bays, creeks, or harbors whatever of Canada, not included within the limits specified and described in the first article of the convention between his late Majesty King George the Third and the United States of America, made and signed at London on the 20th day of October, 1818.
2. Any commissioned officer of her Majesty’s navy, serving on board of any vessel [Page 409]of her Majesty’s navy cruising and being in the waters of Canada for purpose of affording protection to her Majesty’s subjects engaged in the fisheries, or any commissioned officer of her Majesty’s navy, fishery officer, or stipendiary magistrate on board of any vessel belonging to or in the service of the goverment of Canada, and employed in the service of protecting the fisheries, or any officer of the customs of Canada, sheriff, magistrate, or other person duly commissioned for that purpose, may go on hoard of any ship, vessel, or boat within any harbor in Canada or hovering (in British waters) within three marine miles of any of the coasts, hays, creeks, or harbors in Canada, and stay on board so long as she may remain within such place or distance.
3. If such ship, vessel, or boat be bound elsewhere, and shall continue within such harbor, or so hovering for twenty-four hours after the master shall have been required to depart, any one of such officers or persons as are above mentioned may bring such ship, vessel, or boat into port and search her cargo, and may also examine the master upon oath touching the cargo and voyage; and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit four hundred dollars; and if such ship, vessel, or boat be foreign, or not navigated according to the laws of the United Kingdom or of Canada, and have been found fishing, or preparing to fish, or to have been fishing (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbors of Canada, not included within the above-mentioned limits, without a license, or after the expiration of the period named in the last license granted to such ship, vessel, or boat under the first section of this act, such ship, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.
4. All goods, ships, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo liable to forfeiture under this act, may be seized and secured by any officers or persons mentioned in the second section of this act; and every person opposing any officer or person in the execution of his duty under this act, or aiding or abetting any other person in any opposition, shall forfeit eight hundred dollars, and shall be guilty of a misdemeanor, and, upon conviction, be liable to imprisonment for a term not exceeding two years.
5. Goods, ships, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo seized as liable to forfeiture under this act, shall be forthwith delivered into the custody of the collector or other principal officer of the customs at the port nearest to the place where seized, to be secured and kept as other goods, ships, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo seized are directed by the laws in force in the province in which such port is situate to be secured and kept, or into such other custody and keeping as the governor in council, or a court of vice-admiralty shall order.
6. All goods, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo, condemned as forfeited under this act, shall, by direction of the collector or other principal officer of the customs at the port where the seizure has been secured, be sold at public auction, and the proceeds of such sale shall be applied as follows: The amount chargeable for the custody of the property seized shall first be deducted and paid over for that service; one-half of the remainder shall be paid, without deduction, to the officer or person seizing the same; and the other half, after first deducting therefrom all costs incurred, shall be paid to the receiver general of Canada, through the department of marine and fisheries; but the governor in council may, nevertheless, direct that any ship, vessel, boat or goods, and the tackle, rigging, apparel, furniture, stores, and cargo seized and forfeited shall be destroyed, or be reserved for the public service.
7. Any penalty or forfeiture under this act may be prosecuted and recovered in any court of vice-admiralty within Canada.
8. The judge of the court of vice-admiralty may, with the consent of the person seizing any goods, ship, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo, as forfeited under this act, order the redelivery thereof, on security by bond to be given by the party, with two sureties, to the use of her Majesty; and in case any goods, ship, vessel, or boat, or the tackle, rigging, apparel, furniture, stores, and cargo so redelivered is condemned as forfeited, the value thereof shall be paid into court and distributed as above directed.
9. Her Majesty’s attorney general for Canada may sue for and recover in her Majesty’s name any penality or forfeiture incurred under this act.
10. In case a dispute arises as to whether any seizure has or has not been legally made, or as to whether the person seizing was or was not authorized to seize under this act, oral evidence may be heard thereupon, and the burden of proving the illegality of the seizure shall be upon the owner or claimant.
11. No claim to anything seized under this act and returned into any court of viceadmiralty for adjudication shall be admitted unless the claim be entered under oath, with the name of the owner, his residence and occupation, and the description of the property claimed; which oath shall be made by the owner, his attorney or agent, and to the best of his knowledge and belief.[Page 410]
12. No person shall enter a claim to anything seized under this act until security has been given in a penalty not exceeding $240, to answer and pay costs occasioned by such claim; and in default of such security the things seized shall be adjudged forfeited, and shall be condemned.
13. No writ shall be sued out against any officer or other person authorized to seize under this act for anything done under this act, until one month after notice in writing delivered to him or left at his usual place of abode by the person intending to sue out such writ, his attorney, or agent, in which notice shall be contained the cause of action, the name and place of abode of the person who is to bring the action, and of his attorney or agent; and no evidence of any cause of action shall be produced except such as shall be contained in such notice.
14. Every such action shall be brought within three months after the cause thereof has arisen.
15. If, on any information or suit brought to trial under this act on account of any seizure, judgment shall be given for the claimant, and the judge or court shall certify on the record that there was probable cause of seizure, the claimant shall not recover costs, nor shall the person who made the seizure be liable to any indictment or suit on account thereof; and if any suit or prosecution be brought against any person on account of any seizure under this act, and judgment be given against him, and the court or judge shall certify that there was probable cause for the seizure, then the plaintiff, besides the thing seized or its value, shall not recover more than three and a half cents damages, nor any costs of suit, nor shall the defendant be fined more than twenty cents.
16. Any officer or person who has made a seizure under this act may, within one month after notice of action received, tender amends to the party complaining, or to his attorney or agent, and may plead such tender.
17. All actions for the recovery of penalties or forfeitures imposed by this act must be commenced within three years after the offense committed.
18. No appeal shall be prosecuted from any decree or sentence of any court touching any penalty or forfeiture imposed by this act, unless the inhibition be applied for and decreed within twelve months from the decree or sentence being pronounced.
19. In cases of seizure under this act, the governor in council may, by order, direct a stay of proceedings, and in cases of condemnation, may relieve from the penalty in whole or in part, and on such terms as may be deemed right.
20. The several provisions of this act shall apply to any foreign ship, vessel, or boat, in or upon the inland waters of Canada; and the provisions hereinbefore contained in respect to any proceedings in a court of vice-admiralty shall, in the case of any foreign ship, vessel, or boat in or upon the inland waters of Canada, apply to, and any penalty or forfeiture in respect thereof shall be prosecuted and recovered in one of the superior courts of the province within which such cause of prosecution may arise.
21. Neither the ninety-fourth chapter of the Revised Statutes of Nova Scotia, (third series,) “of the coast and deep-sea fisheries,” nor the act of the legislature of the province of Nova Scotia, passed in the twenty-ninth year of her Majesty’s reign, chapter thirty-five, amending the same, nor the act of the legislature of the province of New Brunswick, passed in the sixteenth year of her Majesty’s reign, chapter sixty-nine, entitled “An act relating to the coast fisheries, and for the prevention of illicit trade,” shall apply to any case to which this act applies; and so much of the said chapter and of each of the said acts as makes provision for cases provided for by this act is hereby declared to be inapplicable to such cases.