554 APPENDIX TO BRITISH CASE. 



alleged by those on whose testimony the Government of Canada can 

 rely to sustain the seizure and detention. 



The Offence as to the Treaty and Fishery Laws. 



The " David J. Adams " was a United States' fishing vessel, 

 whether, as alleged in her behalf, her occupation was deep sea fish- 

 ing or not, and whether, as suggested, she had not been engaged, nor 

 was intended to be engaged, in fishing in any limit proscribed by the 

 Treaty of 1818 or not, are questions which do not, in the opinion of 

 the undersigned, affect the validity of the seizure and of the proceed- 

 ings subsequent thereto, for reasons which will be hereafter stated; 

 but in so far as they may be deemed material to the defence, they are 

 questions of fact which remain to be proved in the Vice-Admiralty 

 Court of Halifax, in which the proceedings for the vessel's con- 

 demnation are pending, and in respect of which proof is now being 

 taken, and inasmuch as the trial has not been concluded (much less 

 a decision reached) it is perhaps premature for Mr. Phelps to claim 

 the restoration of the vessel, and to assert a right to damages for her 

 detention, on the assumption of the supposed facts above referred to. 



It is alleged in the evidence on behalf of the prosecution that the 

 " David J. Adams," being a United States' fishing vessel, on the 

 morning of the 5th of May, 1886, was in what is called the " Annapo- 

 lis Basin." which is a harbour on the north-west coast of Nova Sco- 

 tia. She was several miles within the Basin, and the excuse sug- 

 gested (that the captain and crew may have been there through a 

 misapprehension as to the locality) by the words of Mr. Phelps' 

 letter, "Digby is a small fishing settlement and its harbour not 

 defined," Js unworthy of much consideration. 



Digby is not a fishing settlement, although some of the people on 

 the neighbouring shores engage in fishing. It is a town, with a 

 population of about two thousand persons. Its harbour is formed 

 by the Annapolis Basin, which is a large inlet of the Bay of Fundy, 

 and the entrance to it consists of a narrow strait marked by con- 

 spicuous headlands which are little more than a mile apart. The 

 entrance is called " Digby Gut " and for all purposes connected with 

 this enquiry, the harbour is one of the best defined in America. 



The "David J. Adams" was. on the morning of the 5th day of 

 May, 1886, as has already been stated, several miles within the Gut. 

 She was not there for the purpose of " shelter " or " repairs " nor to 

 41 purchase wood " nor " to obtain water." She remained there dur- 

 ing the 5th and on the 6th May, 1886, she was lying at anchor about 

 half a mile from the shore, at a locality called " Clements West." 



On the morning of the 6th May, 1886, the captain made applica- 

 tion to the owners of a fishing weir, near where he was laying for 

 bait, and purchased four and a-half barrels of that article. He also 

 purchased and took on board, about two tons of ice. While waiting 

 at anchor for these purposes the name of the vessel's "hailing 

 place" was kept covered by canvas, and this concealment continued 

 while she afterwards sailed down past Digby. 



One of the crew represented to the persons attending the weir 

 that the vessel belonged to the neighbouring province of New Bruns- 

 wick. The captain told the owner of the weir, when the Treaty was 

 spoken of by the latter, that the vessel was under British register. 



