3386 AWARD OF THE FISHERY COMMISSION. 



we shall presently see, it is utterly at variance with the acts and the 

 admissions of the parties on board. 



" It is a remarkable circumstance that neither the master nor crew of 

 the vessel have been examined, nor any evidence adduced on the de- 

 fense, although a Commission was granted on the 7th September for 

 that purpose. At the hearing, indeed, two papers were tendered by 

 the Defendant's counsel one an ex parte examination of Forrest E. 

 Eolliu, one of the crew, taken on the 27th September, in the State of 

 Maine; the other, a deposition of Daniel Goodwin, the master, made 

 on the 2nd of July neither of which I could receive by the rules that 

 govern this Court, and neither of which I have read. The latter, in- 

 deed, had never been filed, nor had the deponent been subjected to 

 cross-examination. 



" The case, therefore, was heard solely upon the evidence for the pros- 

 ecution, consisting of the depositions of Captain Tory, Martin Sullivan, 

 his second mate, and five others of the crew of the Ida E. From these 

 it appears that the latter entered Aspy Bay about 10 o'clock on the 

 morning of June 27th, and was engaged all day in boarding the vessels 

 lying there ; and what seems very strange, but is plainly shown, that 

 her presence and character were known to the master and crew of the 

 Wampatuckj and as one would have thought, would have made, them 

 cautious in their proceedings. She had entered the Bay on the same 

 morning, and remained hovering about the shore all that day, about 4 

 or 5 miles from the Ida E. Gibson, one of the crew, states that Captain 

 Tory and four of his crew, including the witness, left the Ida E., be- 

 tween 6 and 7 o'clock in. 1 the evening to go to the Wampatuck, which 

 latter vessel was then about 1 miles or a little more from the shore. 

 When they reached her they saw several cod-fish about 15 or 20, on 

 deck, very lately caught some of which were alive, jumping on the 

 deck. They also saw some codfish lines on deck, not wound up, appar- 

 ently just taken out of the water. Captain Tory states that several of 

 the crew were engaged in fishing codfish that they saw several codfish 

 unsplit, very recently caught, on her deck, some of which were alive. 

 In his cross-examination he says that he saw thrf e or four men with 

 lines overboard, apparently in the act of fishing, and that there were 

 more than 8 or 10 newly caught fish on the deck, he judged from 15 to 

 20. Graham states that they saw several codfish very recently caught, 

 on the deck, some of which wore alive, saw also several codfish lines on 

 deck, and one of the crew of the Wampatuck haul a line in there were 

 5 or 6 men on board of her at the time. These statements are generally 

 confirmed by the other four witnesses, and being uncontradicted, leave 

 no doubt of the fact of a fishing within the reserved limits, for the pur- 

 pose of curing and not of procuring food only, as was averred. 



" The admissions of Captain Goodwin are equally emphatic. He came 

 on board immediately after the seizure, and Sullivan heard him say that 

 he could not blame Captain Tory, his crew was so crazy to catch fish 

 that they would not stop. Graham heard Captain Goodwin say that he 

 knew he had broken the rules and was inside of the limits, and that the 

 vessel was a lawful prize, that Captain Tory had done no more than his 

 duty, that he could not blame him. This witness, in his cross-examina- 

 tion, says that about an hour after Captain Goodwin came on board he 

 heard him say that he told the crew not to catch fish inside while he was 

 away, but it was no use to talk, that fishermen would catch fish wher- 

 ever they would get them to bite. The same witness says that he asked 

 the crew, as they knew it was the cutter's boat coming, why they did 

 not throw the fish overboard, and one of them said they might have 



