558 APPENDIX TO 13KITISH CASE. 



downe " requested the Consul General to make his request to the , 

 Minister of Marine and Fisheries, and if he had done so the specific 

 statement which he desired could have been furnished in an hour. 



It is hoped that the explanation already made, and the precautions 

 which have been taken against even the appearance of discourtesy 

 in the future, will, on consideration, be found to be satisfactory. 



INCIDENTS OF THE CUSTOMS SEIZURE. 



Mr. Phelps presents the following views with respect to the claim 

 that the " David J. Adams " besides violating the treaty and the 

 statutes relating to "fishing by foreign vessels," is liable to be de- 

 tained for the penalty under the Customs laws. 



1. That this claim indicates the consciousness that the vessel could 

 not be forfeited for the offence against the Treaty and Fishery Laws. 

 This supposition is groundless. It is by no means uncommon, in 

 legal proceedings, both in Canada and the United States, for such 

 proceedings to be based on more than one charge, although any one 

 of the charges would, in itself, if sustained, be sufficient for the 

 purpose of th ecomplainant. The success of this litigation, like that 

 of all litigation, must depend not merely on the rights of the parties 

 but on the proof which may be adduced as to a right having been 

 infringed. In this instance it appears, from Mr. Phelps' letter, that 

 the facts which are to be made the subject of proof are widely in 

 dispute, and the Government of Canada could, with propriety, assert 

 both its claims so that both of them should not be lost by any mis- 

 carriage of justice in regard to one of them. This was, likewise, the 

 proper course to be taken in view of the fact that an appeal might, 

 at any time, be made to the Government by the owners of the " David 

 J. Adams" for remission of the forfeiture incurred in respect of 

 the fishery laws. The following is a section of the Canadian statute 

 relating to fishing by foreign vessels : 



In cases of seizure under this Act the Governor in Council may 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 are deemed right. 31 V., c. 61, s. 19. 



It seemed necessary and proper to make at once any claim founded 

 on infraction of the Customs laws, in view of the possible termina- 

 tion of the proceedings by executive interference under this enact- 

 ment. It would surely not be expected that the Government of 

 Canada should wait until the termination of the proceedings under 

 the Fishery Acts before asserting its claim to the penalty under the 

 Customs Act. The owners of the offending vessel, and all concerned, 

 were entitled to know, as soon as they could be made aware, what the 

 claims of the Government were in relation to the vessel, and they 

 might fairly urge that any which were not disclosed were waived. 



2. Mr. Phelps remarks that this charge is " not the one on which 

 the vessel was seized," and "was an afterthought." The vessel was 

 seized by the commander of the "Lansdowne" for a violation of the 

 fishery laws before the Customs authorities had any knowledge that 

 such a vessel had come into the port, or had attempted to leave it, and 

 the commander was not aware at that time whether the " David J. 

 Adams" had made proper entry or not. A few hours afterwards, 

 however, the Collector of Customs at Digby ascertained the facts, 

 and on the facts being made known to the head of his department at 



