No. 167.
Mr. Bayard to Mr. Phelps.

No. 303.]

Sir: With reference to my instruction No. 289 of the 11th instant, transmitting to you a copy of my note of the 10th of this month to Sir Lionel West, Her Britannic Majesty’s minister at this capital, concerning the fishery question, I now inclose for your information a copy of a further note on the same subject, which I addressed to Sir Lionel West yesterday, inclosing also a copy of the report of the United States consul-general at Halifax, which is referred to in my note to Sir Lionel West.

I am, &c.,

[Inclosure 1 in No. 303.]

Mr. Bayard to Sir Lionel West, May 20, 1886.*

[Page 336]
[Inclosure 2 in No. 303.]

Mr. Phelan to Mr. Porter

No. 82.]

Sir: As instructed by message from the honorable Secretary of State to personally report, fully and carefully, all the facts and proceedings connected with the seizure of the American schooner David J. Adams by armed men from the Canadian steamship Lansdowne, I left Halifax for Saint John May 10 as soon after receiving the message as the means of travel would permit. After leaving I learned that the vessel had been taken back to Digby, where I proceeded, and found her anchored close to the Lansdowne in Digby Harbor. Shortly after my arrival Captain Scott, of the Lansdowne, formally transferred the custody of the vessel to the collector of the port of Digby, to be held on a charge, as the collector informed me, of violating the customs act of 1883, the penalty being $400. He said if this sum was paid and the vessel not claimed by the minister of fisheries he would release her. On the following morning, in order to get at the facts in connection with the seizure, I addressed a note to the collector asking him to furnish me a copy of the charges against the vessel. He replied verbally that the vessel passed out of his possession, and was again in Captain Scott’s custody. I then addressed Captain Scott a communication asking him to state in writing, fully and specifically, with as little delay as possible, why he detained this vessel. (A copy marked A attached.)

Captain Scott replied by referring me to the deputy minister of fisheries in Ottawa. (Reply attached marked B.) The refusal of Captain Scott to give this information, which I had a right to have, even without asking for it, was not only discourteous to me, but an indignity to the nation whose vessel he seized. The next morning I heard that a process in an admiralty suit against the schooner was served on the vessel. I went on board and found that the process was served by affixing to the mast with nails what I supposed to be a warrant or summons; no part of which, except the indorsement, was visible. I requested permission from the person in charge of the schooner to take down this process so that I might read, and, if possible, ascertain from its contents what offenses were charged against this vessel. My request was refused; and right here I may remark that it seems a strange course of procedure to serve a party with a process to appear and defend a suit, and then prohibit that party and those interested in his protection and defense in respect to that suit from seeing or inspecting the process thus served. The frequent changes as to the custodians of this vessel, the mysterious, secret, and unexplained movements of these officials, and their refusal to set forth any of the alleged offenses charged to the vessel, was most aggravating.

All the parties to the controversy were on the ground, and want of knowledge could not be urged as a reason why this information was withheld. Not until after my arrival in Halifax, on the 14th of May, did I receive the slightest intimation of the charge against the vessel, but on the contrary every effort was made to conceal it. All I could do under the circumstances was to serve Captain Scott, and the person in charge of the schooner, with protest (marked C). Captain Scott arrived in Halifax on the 12th. On the 14th he sent me a second reply (marked D), in which he stated that the vessel was seized for a violation of the imperial statutes in entering a port for other than a legal purpose.

The facts in this case, as I obtained them from Captain Kinney, are as follows:

The David J. Adams entered Digby Bay on Wednesday evening, May 5, 1886. Her captain purchased from a fisherman named Ellis, residing at the entrance of Digby Bay, nearly five barrels of bait. On Thursday he purchased from several fishermen, whose names he did not know, nearly seven barrels of bait. He then brought his vessel to anchor. It appears that this man Ellis had promised to sell this bait to a Canadian captain named Sproule for 75 cents per barrel, but getting $1.25 from the captain of the David J. Adams, sold it to him. The Canadian captain reported the sale to the collector, who telegraphed for the Lansdowne, which arrived during the night. On Friday morning the David J. Adams in sailing out of the basin was hailed by a boat from the Lansdowne and came alongside, the commander of which asked the name of the vessel and that of her owner, where she was from, and her business in the basin. Being answered by the captain in his own way, the boat returned to the Lansdowne without ordering the vessel to sea. The schooner continued her course, but ran aground, and while in this position she was boarded a second time. The officer in charge stated that he had orders from Captain Scott to search the vessel, and immediately proceeded to carry out the order, and found some herring. The captain was asked how old they were. He replied about ten days. The boat again returned to the Lansdowne and brought to the schooner a new officer, who examined the vessel and returned to the Lansdowne. The fourth visit to the vessel brought Captain Scott, who, in the name of the Queen, seized her. On Saturday [Page 337] morning the vessel was taken to St. John, N. B., and on Sunday she was returned to Digby, the place of capture.

A suit has been begun in the supreme court of Nova Scotia at Halifax in the name of the Queen against Alden Kinney, master, in which the following claim is made, namely, for £200 sterling, equal to $973.33, for violation of a certain convention between his late Majesty, George the Third, King of Great Britain and Ireland, of the one part, and the United States of America of the other part, made on the 20th day of October, A. D. 1818, and for violation of the act of Parliament of Great Britain and Ireland, made and passed in the fifty-ninth year of the reign of his late Majesty, George the Third, King of the United Kingdom of Great Britain and Ireland, being chapter 38 of the acts of the said last Parliament, and passed in said year. In addition to the above, an action has been instituted in the vice-admiralty court at Halifax to have the vessel and cargo forfeited. The charges are (1) that she violated the treaty of 1818; (2) that she violated the provisions of the act 59, George the Third; (3) that she violated the provisions of chapter 61 of the Canadian acts of 1870, and chapter 23 of the acts of Canada, 1871. Also a suit was instituted later for violating the customs act of Canada for 1883. Under this act it is charged that the vessel did not report her arrival at Digby to the customs officer. Digby is a fishing village without a corporation, and, so far as I could learn, and I made special inquiry, the harbor is not defined, and the practice has been that only vessels having business at Digby entered at the custom-house. The records of the office will show, and the collector admitted, that during his forty years’ service fishermen went in and out the bay at pleasure and were never required to report. It is very plain that this suit was not instituted to vindicate the law, as the vessel was not apprehended on that charge, but institued to annoy and harass our fishermen. The other suits are for violating the treaty of 1818, and statutes made under it. I confidently report that the only charge against the vessel that can be sustained, or that she is guilty of, is purchasing fish in British waters.

My conclusions are therefore as follows:

That the David J. Adams was not fishing, had not fished, and was not preparing to fish in British waters.
She did not conceal her name nor attempt to conceal her name.
She did not report to the custom-house at Digby, because she did not enter the harbor of Digby, but only Digby Basin.
She purchased twelve barrels of fish for bait in British waters for deep-sea fishing, and not to fish in such waters.

I am, sir, your obedient servant,

[Inclosure 1 in Mr. Phelan’s No. 82.]

Mr. Phelan to Captain Scott.

Captain Scott, Fishery Officer,
Commanding S. S. Lansdowne:

Sir: It has been been brought to my knowledge that certain officers and men of the S. S. Lansdowne boarded the American schooner David J. Adams on the coast of Nova Scotia, and by force took therefrom the master and crew of said schooner, and that the said American shooner, David J. Adams, is now in your possession and custody, and held by you as commander of the Canadian marine police against the owners and master thereof.

Therefore, it becomes my duty, as consul-general of the United States for the maritime provinces, to ask you to state in writing, fully and specifically, with as little delay as possible, why you detain such vessel, and refuse to restore her to the lawful owners and master.

I am, &c.,

Consul-General United States.
[Page 338]
[Inclosure 2 in Mr. Phelan’s No. 82.]

Captain Scott to Mr. Phelan.

Sir: I am in receipt of your letter of this day’s date, requiring to know why I have detained the American fishing schooner D. J. Adams, and in reply would beg of you to apply to the deputy minister of fisheries in Ottawa for an answer, as I am acting under instruction.

I have, &c.,

Captain Commanding the Marine Police.

The Hon. M. H. Phelan,
Consul-General for the United States.

[Inclosure 3 in Mr. Phelan’s No. 82.]

Protest of Captain Kenney, of the David J. Adams.

To Captain Scott, commanding the Marine Police, and all other persons whomsoever seizing, holding, or detaining the schooner David J. Adams:

Take notice that the undersigned hereby protest and object against the illegal seizure and detention of said vessel and her appurtenances, and demand the immediate restoration of said vessel to the undersigned, the lawful master.

And further take notice that the owners of and parties interested in said vessel intend to hold the parties who seized said vessel, as well as those who may have her in their custody, or who may detain her, liable for all damages consequent upon their seizure and detention.

Master David J. Adams.

Countersigned and concurred in by
M. H. Phelan,
Consul-General of the United States.

[Inclosure 4 in Mr. Phelan’s No. 82.]

Deposition of the captain and crew of the David J. Adams.

In the matter of the seizure of the United States schooner David J. Adams, of Gloucester, now held by the Dominion of Canada.

We, the captain and crew of the schooner David J. Adams, of Gloucester, Mass., in the United States of America, depose and saith under oath, as follows: I, Captain Alden Kinney; I am 25 years old; occupation, seaman; citizen of the United States. What is your present occupation? Master of the David J. Adams. What is her tonnage! Sixty-six register. Owned by Capt. Jesse Lewis. We left Gloucester, Mass., for Eastport, Me., for bait on or about the 10th day of April last. We arrived at East-port, Me., on the following Monday, April 12, and got bait and proceeded to the Banks, we fished for several days, say about twelve days, and set out for and returned to Eastport, Me., that being a central station as a general thing for fishermen’s headquarters at this season of the year for bait and other supplies. We again left Eastport for the Banks and put into Digby Basin about 11 o’clock on the 6th day of May, and we anchored under Lower Granville. We got under way the next morning at about 5 o’clock, bound out. The reason we could not get out was on account of the wind dying away, and we drifted back with the tide. We sailed up off of Digby Town and tacked, anchoring off of or about Bear Island. This was about 10 o’clock in the forenoon. Not being satisfied with the place we layed we shifted further up the basin, say about two miles further. We again anchored there until 5 o’clock, got under way, and shifted to another part of the basin and anchored until Friday morning about 4 o’clock. We then got under way and started to go out of the basin into the Bay of Fundy. Shortly after we got under way a boat from the steamer lying off the harbor, which proved to be the steamer Lansdowne, of the Dominion service, was seen coming toward us and we continued our course as we were before we saw the boat coming. The boat caught up to us when we were about a mile and a half from our recent anchorage of the night. The officer on board the boat asked us where we hailed from, and the vessel’s name and tonnage; captain’s name and owner’s, and [Page 339] what we were there for, and if we had any bait in. Receiving my reply (captain’s) the boat rowed away. We still continued on our course until we got into St. George’s Channel (they called), and grounded at low water, and there remained aground for about two hours, and after floating the tide was too strong for us to proceed out of the basin. We were at that time again boarded by the same boat and officer of the Lansdowne, who searched our vessel. The officer, on boarding with armed men, said that he was ordered by Captain Scott to search the vessel, which they did by coming on board and examining the hold of the vessel and different parts of the deck. They stated to Captain Kinney that some herring was below in the hold, and we answered that they were ten days old. The officer of Lansdowne and boat returned to their ship. Afterwards the Lansdowne boat boarded us for the third time, and brought another officer, whom I understand was Captain Dakin, who also entered hold and examined the herring, and then returned to their vessel. Again for the fourth time the same officers and crew of the Lansdowne boarded us, who informed us that we would be held here in Digby for some time. We were ordered by the same officer to bring our vessel to Digby and to anchor as near as possible to the steamer Lansdowne, which order we obeyed. This was the morning of May 7. The same boat, after bing towed up to the town by us, cast off from us also; the officer and crew in charge went on board his vessel. Soon after an officer boarded us and ordered us to lower our sails and await further orders. About four hours afterward Captain Scott ordered the hatches removed, and he examined the cargo, and returning to the deck of our vessel Captain Scott said he had seized us in the Queen’s name. Then Captain Scott notified us that we might go on shore to the American consul, and said he would at once return with Lansdowne and the schooner David J. Adams to St. John, N. B. We remained on board our own vessel during that night under charge of five armed men of the Lansdowne’s crew. Saturday morning early all of us and our captain, with the exception of three of our men, were ordered on board the Lansdowne. We were then taken to St. John and went on shore, according to the order of the night previous to go on shore. Our captain took the papers and articles belonging to the David J. Adams with him on shore. Our vessel was towed to St. John at the same time and fastened to the Lansdowne with chain cable, both lying at the wharf at St. John. The vessel was there on Sanday morning, when I was informed by an officer of the Lansdowne that they were going to remove her to Digby. I was told that I could return to Digby in the vessel if I chose, or otherwise take out my personal effects and that of the crew. The Lansdowne and our vessel then left St. John. On Wednesday, the 12th day of May, on our arrival in Digby, Captain Scott came to me as captain of the D. J. Adams and demanded her register of said vessel before I had landed from the steamboat, which I refused to give up.

Question. Captain, there is a charge that you concealed the name of your vessel by tacking canvas or by other means of covering the name on the stern of the vessel?

Captain Kinney answers that he denies the charge; it is not true. I never concealed nor attempted to conceal the name of the vessel.

Did you ever fish or attempt to fish in British waters during this season?

Captain answers that he never did; that he never saw the land from where I fished. Deep-sea fishing is the only fishing that we are engaged.

Did you ever buy bait of attempt to buy bait for the purpose of fishing in British waters?

No, sir; I did not.

Did you come into Digby Basin to buy bait for the purpose of fishing in British waters during this season?

Answer. No, I did not.

Did you purchase bait or attempt to purchase bait while at anchor above Bear River?

Answer. No, I did not.


We, the undersigned seamen or crew of the schooner David J. Adams, of Gloucester, Mass., in the United States of America, being present and having heard the above testimony of Capt. Alden Kinney, and we all being under oath, do certify that the same is true to our best knowledge and belief and we know no other fact bearing on or in connection with this case.

  • Samuel Hooper.
  • James Swineborg.
  • John Brown.
  • E. D. Simmons.
  • Joseph Bouchin.
  • Frank Arnesen.
  • Isaiah Roberts.
  • John Beaton.
  • Elroy Prior.
  • Fred. Fischer.
  • Joseph Henley.
  • Calvin Cook.

Consul-General, United States.
[Page 340]
[Inclosure 5 in Mr. Phelan’s No. 82.]

Captain Scott to Mr. Phelan.

Sir: In reply to your letter of the 11th instant, I am directed by the minister of marine and fisheries to state to you that the David J. Adams was seized for a violation of the Canadian customs act, and also for a violation of the imperial statute for entering a port for other than legal purposes.

I am, sir, your obedient servant,

Captain and Fishery Commissioner.

The Hon. M. H. Phelan,
Consul-General, United States.

  1. See No. 185, p.