Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1886

No. 194.
Sir L. West to Mr. Bayard.

British Legation,
Washington , June 18, 1886. [Received June 19.]

Sir Lionel West presents his compliments to Mr. Bayard, and has the honor to transmit to him herewith the accompanying acts, which have been forwarded to him, at the request of Sir John McDonald, by the deputy minister of marine and fisheries, for his information.

[Inclosure in note of June 18, 1886.]

Cap. XIV.

AN ACT relating to the fisheries, and for the prevention of illicit trade in Prince Edward’s Island, and the coasts and harbors thereof.

Whereas by the convention made between his late Majesty King George the Third and the United States of America, signed at London, on the twentieth day of October, in the year of our Lord one thousand eight hundred and eighteen, and the statute made and passed in the Parliament of Great Britain, in the fifty-ninth year of the reign of his late Majesty King George the Third, all foreign ships, vessels, or boats, or any ship, vessel, or boat, other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland, found fishing, or to have been fishing, or preparing to fish, within certain distances of any coasts, bays, creeks, or harbors whatever, in any part of His Majesty’s dominions in America, not included within the limits specified in the first article of the said convention, are liable to seizure; and whereas the United States did, by the said convention, renounce forever any liberty enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America, not included within the above-mentioned limits: Provided, however, That the American fishermen should be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purposes whatever, but under such restrictions as might be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges thereby reserved to them; and whereas no rules or regulations have been made for such purpose, and the interests of the inhabitants of this island are materially impaired; and whereas the said act does not designate the persons who are to make such seizure as aforesaid, and it frequently happens that persons found within the distances of the coasts aforesaid, infringing the articles of the convention aforesaid, and the enactments of the statute aforesaid, on being taken possession of profess to have come within said limits for the purpose of shelter and repairing damages therein, or to purchase wood and obtain water, by which the law is evaded, and the vessels and cargoes escape confiscation, although the cargoes may be evidently intended to be smuggled into this island, and the fishery carried on contrary to the said convention and statute:

I. Be it therefore enacted by the lieutenant-governor, council, and assembly, That from and after the passing of this act, it shall be lawful for the officers of Her Majesty’s customs, the officers of imposts and excise, the sheriffs and magistrates throughout this island, and any person holding a commission for that purpose from his excellency the lieutenant-governor, for the time being, to go on board any ship, vessel, or boat within any port, bay, creek, or harbor in this island, and also to go on board any ship, vessel, or boat hovering within three marine miles of any of the coasts, bays, creeks, or harbors thereof, and in either case freely to stay on board such ship, vessel or boat, as long as she shall remain within such port or distance, and if any such ship, vessel, or boat be bound elsewhere, and shall continue so hovering for the space of twenty-four hours after the master shall have been required to depart, it shall be lawful for any of the above enumerated officers or persons to bring such ship, vessel, or boat into port, and to search and examine her cargo and to examine the master upon oath, touching the cargo and voyage, and if there be any goods on board prohibited to be imported into this island, such ship, vessel, or boat, and the cargo laden on board thereof, shall be forfeited; and if the said’ ship, vessel, or boat shall be foreign, and not navigated according to the law of Great Britain and Ireland, and shall have been found fishing or preparing to fish, or to have been fishing, within such distance of such coasts, bays, creek, or harbors of this island, such ship, vessel, or boat, and their respective cargoes shall be forfeited, and if the master or person in command thereof shall not truly answer the questions which shall be demanded of him in such examination, he shall forfeit the sum of one hundred pounds.

II. And be it further enacted. That all goods, ships, vessels, and boats liable to forfeiture under this act shall, and may be, seized and secured by any such officer of Her Majesty’s customs, officer of imposts and excise, sheriffs, magistrates, or other person holding such commission as aforesaid; and every person who shall in any way oppose, molest, or obstruct any officer of the customs, officer of impost and excise, sheriff, magistrate, or other person so commissioned and employed as aforesaid, in the exercise of his office, or shall in any way oppose, molest, or obstruct any person acting in aid or assistance of such officer of customs, officer of imposts and excise, sheriff, magistrate, or other person so commissioned and employed as aforesaid, shall, for every such offense, forfeit the sum of two hundred pounds.

III. And be it further enacted. That all goods, ships, vessels, and boats which shall be seized as being liable to forfeiture under this act shall be taken forthwith and delivered into the custody of the collector of customs at the custom-house next to the place where the same was seized, who shall secure and keep the same in such manner as other vessels and goods seized are directed to be secured by the commissioners of Her Majesty’s customs.

IV. And be it further enacted, That all goods, ships, vessels, boats, or other things which shall have been condemned as forfeited under this act shall, under the direction of the principal officer of the customs or excise, where such seizure shall have been secured, be sold by public auction to the best bidder, and the produce of such sale to be applied as follows, that is to say, the amount chargeable for the custody of said goods, ship, vessel, boat, or any other thing so seized as aforesaid, shall be first deducted and paid, and the residue divided into two equal moieties, one of which shall be paid to the officer or other person or persons legally seizing the same without deduction, and the other moiety to the Government, and paid into the treasury of this island, all costs incurred having been first deducted therefrom: Provided always, That it shall be lawful for the lieutenant-governor, in council, to direct that any of such things shall be destroyed, or reserved for the public service.

V. And be it further enacted, That all penalties and forfeitures, which may be hereafter incurred under this act, shall and may be prosecuted, sued for, and recovered in the court of vice-admiralty having jurisdiction in this island.

VI. And be it further enacted. That if any goods, or any ship, vessel or boat shall be seized as forfeited under this act, it shall be lawful for the judge or judges of any court having jurisdiction to try and determine such seizures, with the consent of the person seizing the same, to order the delivery thereof, on security, by bond, with two sufficient sureties, to be first approved by such seizing officer or person, to answer double the value of the same in case of condemnation, and such bond shall be taken to the use of Her Majesty, in the name of the collector of the customs, in whose custody the goods, or ship, vessel, or boat may be lodged, and such bond shall be delivered and kept in the custody of such collector; and in case the goods, or ship, vessel, or boat shall be condemned, the value thereof shall be paid into the hands of such collector, who shall cancel such bond, and distribute the money paid in such manner as is above directed.

VII. And be it further enacted, That no suit shall be commenced for the recovery of any penalty or forfeiture under this act, except in the name of Her Majesty, and shall be prosecuted by Her Majesty’s advocate or attorney general, or in his absence, by the solicitor-general for this island; and if any question shall arise, whether any person is an officer of the customs, excise, sheriff, magistrate, or other person authorized to seize as aforesaid, viva voce evidence may be given of such fact, and it shall be deemed legal and sufficient evidence.

VIII. And be it further enacted, That if any goods, shin, vessel, or boat shall he seized for any cause or forfeiture under this act, and any dispute shall arise whether the same have been lawfully seized, the proof touching the illegality thereof shall be on the owner or claimant of such goods, ship, vessel, or boat, and not on the officer or person who shall seize and stop the same.

IX. And be it further enacted, That no claim to anything seized under this act, and returned into Her Majesty’s court of vice-admiralty for adjudication, shall be admitted, unless such claim be entered in the name of the owner, with his residence and occupation; nor unless oath to the property in such thing be made by the owner, or by his attorney or agent, by whom such claim shall be entered, to the best of his knowledge and belief; and every person making a false oath thereto shall be deemed guilty of a misdemeanor, and shall be liable to the pains and penalties to which persons are liable for a misdemeanor.

X. And be it further enacted, That no person shall be admitted to enter a claim to anything seized in pursuance of this act and prosecuted in this island until sufficient security shall have been given in the court where such seizure is prosecuted, in a penalty not exceeding sixty pounds, to answer and pay the costs occasioned by such claim, and in default of giving such security, such things shall be adjudged to be forfeited, and shall be condemned.

XI. And be it further enacted, That no writ shall be sued out against nor a copy of any process served upon any officer of the customs, excise, sheriff, magistrate, or other person authorized to seize as aforesaid, for anything done in the exercise of this office until one calendar month after notice, in writing, shall have been delivered to him or left at his usual place of abode by the attorney or agent of the party who intends to sue out such writ or process, in which notice shall be clearly and explicitly contained the cause of action, and the name and place of abode of the person who is to bring such action, and the name and place of abode of the attorney or agent, and no evidence of the cause of such action shall be produced, except of such as shall be contained in such notice, and no verdict shall be given for the plaintiff unless he shall prove on the trial that such notice was given, and, in default of such proof, the defendant shall receive in such action a verdict and costs, or judgment of non-suit shall be awarded against the plaintiff, as the court shall direct.

XII. And be it further enacted, That every such action shall be brought within three calendar months after the cause thereof, and shall be laid and tried in Her Majesty’s supreme court of judicature for this island, and the defendant may plead the general issue and give the special matter in evidence; and if the plaintiff shall become non-suited, or shall discontinue the action, or, if, upon a verdict of demurrer, judgment shall be given against the plaintiff, the defendant shall receive treble costs, and have such remedy for the same as any defendant can have in other cases where costs are given by law.

XIII. And be it further enacted, That in case any information or suit shall be brought to trial, on account of any seizure made under this act, and a verdict shall be found for the claimant thereof, and the judge or court before whom the cause shall have been tried shall certify on the record that there was probable cause of seizure, the claimant shall not be entitled to any costs of suit, nor shall the person who made such seizure be liable to any action, indictment, or other suit or prosecution on account of any such seizure; and if any such action, indictment, or other suit or prosecution shall be brought to trial against any person on account of such seizure, wherein a verdict shall be given against the defendant, the plaintiff, besides the thing seized or the value thereof, shall be entitled to no more than twopence damages, nor to any costs of suit, nor shall the defendant in such prosecution be fined more than one shilling.

XIV. And be it further enacted, That it shall be lawful for any such officer of the customs, excise, or sheriff, or magistrate, or other person authorized to seize as aforesaid, within one calendar month after such notice, to tender amends to the party complaining, or his agent, and to plead such tender in bar to any action, together with other pleas, and if the jury shall find the amends sufficient they shall give a verdict for the defendant, and in such case, or in case the plaintiff shall become non-suit, or shall discontinue his action, or judgment shall be given for the defendant upon demurrer, then such defendant shall be entitled to the like costs as he would have been entitled to in case he had pleaded the general issue only, provided, always, that it shall be lawful for such defendant, by leave of the court where such action shall be brought, at any time before or after issue joined, to pay money into court, as in other actions.

XV. And be it further enacted, That in any such action if the judge or court before whom such action shall be tried shall certify upon the record that the defendant or defendants in such action acted upon probable cause, then the plaintiff in such action shall not be entitled to more than two pence damages nor to any costs of suit.

XVI. And be it further enacted, That all actions or suits for the recovery of any of the penalties or forfeitures imposed by this act may be commenced or prosecuted at any time within three years after the offence was committed, by reason whereof such penalties or forfeitures shall be incurred, any law, usage, or custom to the contrary notwithstanding.

XVII. And be it further enacted, That no appeal shall be prosecuted from any decree or sentence of any of Her Majesty’s courts in this island touching any penalty or forfeiture imposed by this act unless the inhibition shall be applied for and decreed within twelve months from the time when such decree or sentence was pronounced.

XVIII. And be it further enacted, That this act shall not go into force or be of any effect until Her Majesty’s assent shall be signified thereto and an order made by Her Majesty in council that the clauses and provisions in this act shall be rules, regulations, and restrictions respecting the fisheries on the coasts, bays, creeks, or harbors of the island of Prince Edward.

∴ This act received the royal allowance on the 3d of September, 1844, and an order was on the same day made by Her Majesty in council declaring that its clauses and provisions should be the rules, regulations, and restrictions respecting the fisheries on the coasts, bays, creeks, or harbors of the island of Prince Edward: and notification of said royal assent and of the said order was published in the Royal Gazette, a newspaper of this island, on the 8th day of October, 1884.

31 Victoria, Chap. 61.

AN ACT respecting fishing by foreign vessels. Assented to 22d May, 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 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 Government 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 board 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, bays, 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 24 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 $400; 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 execution of his duty under this act, or aiding or abetting any other person in, any opposition, shall forfeit $800, 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 or 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 penalty 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 vice-admiralty 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.

12. No person shall enter a claim to anything seized under this act until security has been given in a penalty not exceeding two hundred and forty dollars to answer and pay costs occasioned by such claim, and in default of 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 seizures 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 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.

33 Victoria, Chap. 15.

AN ACT to amend the act respecting fishing by foreign vessels. Assented to 12th May, 1870.

Whereas it is expedient, for the more effectual protection of the in-shore fisheries of Canada against intrusion by foreigners, to amend the act entitled “An act respecting fishing by foreign vessels,” passed in the thirty-first year of Her Majesty’s reign: Therefore, Her Majesty by and with the advice and consent of the senate and house of commons of Canada, enacts as follows:

1. The third section of the above cited act shall be, and is hereby repealed, and the following section is enacted in its stead:

3. “Any one of such officers or persons as are above-mentioned may bring any ship, vessel, or boat being within any harbor in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbors in Canada, 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 $400; 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.”

2. This act shall be construed as one with the said act “respecting fishing by foreign vessels.”

34 Victoria, Chap. 23.

AN ACT further to amend the act respecting fishing by foreign vessels. Assented to April 14, 1871.

Her Majesty, by and with the advice and consent of the senate and house of commons of Canada, enacts as follows:

1. The fifth section of the act respecting fishing by foreign vessels, passed in the thirty-first year of Her Majesty’s reign, chapter sixty-one, is hereby repealed, and the following section is hereby enacted in its stead:

“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 such fishery officer, or customs officer, or other person as the minister of marine and fisheries may from time to time direct, or retained by the officer making the seizure in his own custody, if so directed by the minister, in either case 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 the seizure is made, to be secured and kept.”

2. The sixth section of the said act is hereby repealed, and the following section is hereby enacted in its stead:

“6. All goods, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo condemned as forfeited under this act, shall be sold by public auction, by direction of the officer having the custody thereof, under the provisions of the next preceding section of this act, and under regulations to be from time to time made by the governor in council; and the proceeds of every such sale shall be subject to the control of the minister of marine and fisheries, who shall first pay therefrom all necessary costs and expenses of custody and sale, and the governor in council may from time to time apportion three-fourths or less of the net remainder among the officers and crew of any Queen’s ship or Canadian Government vessel, from on board of which the seizure was made, as he may think right, reserving for the Government and paying over to the receiver-general at least one-fourth of such net remainder to form part of the consolidated revenue fund of Canada; but the governor in council may, nevertheless, direct that any goods, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo, seized and forfeited, shall be destroyed, or be reserved for the public service.”

3. This act shall be construed as one with the act hereby amended; and the sixth section of the said act, as contained in the second section of this act, shall apply to all goods, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo, condemned under the said act before the passing of this act, and to the proceeds of the sale thereof, remaining to be applied and paid at the time of the passing of this act.

46 Victoria, Chap. 27.

AN ACT to extend to British Columbia the act relating to fishing by foreign vessels. Assented to 25th May, 1883.

Her Majesty, by and with the advice and consent of the senate and house of commons of Canada, enacts as follows:

1. The act thirty-first Victoria, chapter sixty-one, intituled “An act respecting fishing by foreign vessels,” is hereby extended to the Province of British Columbia.