No. 241.
Mr. Woodbury to Mr. Bayard.
Boston
May 21, 1886. [Received May
24.]
Sir: In behalf of Jesse Lewis, esq., I inclose
a statement by him and the crew of the D. J. Adams of the damages
inuring to them by the seizure of that schooner by the British
authorities near the Gut of Annapolis, and her detention at Digby, for
ap alleged violation of the
[Page 494]
convention of 1818 between the United States and Great Britain. Mr.
Lewis employed counsel at Halifax, who has informed him that there are
“two suits pending, one in rem, under section 2,
imperial act 1819, for alleged violation of the treaty 1818, act of
1819, and the Canadian fishery acts of 1868, 1870, 1871; no proceedings
taken yet for violation of customs act other than seizure and detention
by customs officer at Digby. The charge in this respect, I believe, is
under sections 25 and 29, Canada customs act, chap. 12, 1883. The other
suit against captain personally, and is for a penalty under section 4,
imperial act, 1819.”
The information I have from the master is that the Adams was arrested
some miles from the town of Digby and ordered into the Lansdowne by an
armed boat, she being at that time beating out of the gut against a head
tide from an anchorage five or six miles up the basin beyond Digby, and
was in the possession of the captors from the Lansdowne before she
changed her course, and headed by their command into Digby. No seizure
was made by any custom-house officer whilst the master controlled the
vessel, and the owner and master are in profound ignorance of any such
proceeding, or of the grounds, except the telegram which I cite above,
and his counsel in Halifax has not yet been able to be more definite.
Mr. Lewis, through his friends, has furnished security for costs to
enable him to interpose a defense in the admiralty court against the
libel in rem, based on the treaty of 1818. His
vessel had been lately extensively repaired, and he has no means to bond
her. Indeed, as it is in the power of the authorities there to seize her
over and over, it would be impossible to know in what amount he would
need to find security before he could get the vessel out of the hands of
the provincial authorities—out of their local jurisdiction.
The only cause of seizure avowed is that the master “bought bait”
somewhere along the coast and received it on the vessel. The undersigned
has not discovered any statute forbidding a master to buy bait or
anything else in a British Canadian port, nor one that subjects a vessel
of the United States to forfeiture for exporting bait from such ports.
It is supposed the provincials assert the doctrine that trading in their
ports either is a violation of the treaty of 1818 or of the act of 1819.
It cannot be that a private person can in the inferior courts of a
foreign country undertake to defend the American construction of that
treaty against the suit of the Crown, who alone is imperative in its
courts of admiralty as to matters of treaty or maritime privilege; nor
can it be that in such inferior courts the consonance of the act of
1819, with the principles of the treaty of 1818, or the law of nations,
can be put in issue by the citizen of the United States defending his
property; it is only the United States in its sovereignty that can
arraign before the sovereignty of Great Britain the question whether the
act of 1819 conflicts with or impairs the American right under the
convention or the law of nations. My client would not humiliate his
native land so much as to ask its Executive to appear by counsel before
a local inferior tribunal of the other party to the convention of 1818
and submit to its decision any question affecting the sovereignty of the
contracts it had made with Great Britain. It seems, then, to my perhaps
imperfect understanding of the principles of national law, that my
client must rely upon his own Government for defense and redress for the
outrage upon his property, and he requests the intervention of the
Executive as the only adequate protection he can have against the
aggressive spoliations of his property by subordinate British officials.
It is proper also that I should invite your attention to the evident
fact that the cause put forth is the alleged
shortcoming of the United States in not living up to its convention,
[Page 495]
but that the incident is the
exercise over the persons and property of private citizens of the United
States of an absolute control to forfeit the one and punish the other
without the consent of the United States, and without even this country
having agreed to the interpretations shadowed or expressed by the
imperial act of 1819.
I have, &c.,
CHAS. LEVI WOODBURY,
Counsel for Jesse
Lewis, at Boston.
[Inclosure 1 in Mr. Woodbury’s letter
of May 21, 1886.]
Deposition of crew of the David J.
Adams.
In re schooner David J. Adams,
of Gloucester.
We, the undersigned, on oath declare and say that we were members of
the crew of the fishing schooner David J. Adams, belonging to Mr.
Jesse Lewis, of Gloucester, Essex County, Massachusetts, when she
was seized at Digby, N. S., May 7, 1886, by the Canadian Government;
that we had on board said schooner David J. Adams at the time of
said seizure as follows:
| 5,000 pounds of cod, at cents |
$100 00 |
| 500 pounds of halibut, at 10 cents |
50 00 |
| 11¼ barrels bait |
12 50 |
| 8 tons ice |
20
00 |
| Total |
182 50 |
of the value of $182.50; that one-half of the same
belonged to us, of the value of $91.25. That we have lost by reason
of said seizure, one additional trip, making two trips lost to each
of us, of the value of $25 each trip, or $50 for the two trips.
Witness our hands at
Gloucester, May 18,
1886.
- Aldon Kinney, Master
- Isaiah Roberts.
- James Swanesburg.
- Elroy Prior.
- John Beaton.
- Bath Maen.
- E. D. Simmons.
- Joseph Boucher.
- John Brown.
- Frank Arnesen.
- Joseph Hanley.
- Fred Fischer
- Samuel Hooper.
- Calvin Cook.
State of Massachusetts, County
of Essex,
Office of the Police Court
of Gloucester, Mass.:
I, Sumner D. York, clerk of the police court of Gloucester, the same
being a court of record, in the county of Essex, State of
Massachusetts, having a seal, do certify that William W. French,
esq., was at the date of the certificate of the annexed instrument
in writing a justice of the peace in and for said county duly
authorized; that I am well acquainted with the handwriting of such
officer, and verily believe that the signature to said certificate
is genuine; and that the annexed instrument is executed according to
the laws of this State.
In testimony whereof I have hereunto set
my hand and affixed the seal of said court this 18th day of May,
A. D. 1886.
[
l. s.]
SUMNER D.
YORK,
Clerk.
Gloucester, May 18,
1886.
Commonwealth of
Massachusetts,
Essex, ss:
Personally appeared the said Aldon Kinney, Isaiah Roberts, James
Swanesburg, Elroy Prior, John Beaton, E. D. Simmons, Joseph Boucher,
John Brown, Frank Arnesen, Joseph Hanley, Fred Fischer, Samuel
Hooper, and on oath declared the foregoing statement by them
subscribed to be true.
Before me
WILLIAM W. FRENCH,
Justice of the
Peace
[Page 496]
[Inclosure 2 in Mr. Woodbury’s letter
of May 21, 1886.]
Affidavit of Capt, Jesse Lewis, of the David J.
Adams.
I, Jesse Lewis, of Gloucester, Essex County, and State of
Massachusetts, declare and say that I am the sole owner of the
fishing schooner David J. Adams, seized by the Canadian Government
May 7, 1886, at Digby, N. S.; that the said schooner is worth
$5,000; that the provisions on board at the time of seizure were
worth $200; that there was on board 40 tons ballast, worth $80; that
the ice-house platform and gurry pens on board were worth $150; that
the 35 hogsheads of salt on board were worth $60; that the stores
and furniture for same on board were worth $125; that the boxes and
fishing knives and forks were worth $25; that the side lanterns,
binnacle lights, and signal torches were worth $50; that 2
water-casks, 5 barrels, and 15 liver barrels were worth $25; that
one dory and oars were worth $15; that the fishing-gear, 6 dozen
lines, leads, snoods, and gear were worth $75; that the
medicine-chest was worth $20; that all the above-named goods were on
board the Adams at the time of seizure aforesaid; that by reason of
said seizure I have lost the profits of said voyage, of the value of
$650; that I claim as loss, interest from the date of the seizure,
May 7, 1886, on the vessel and outfits, and interest on the loss of
the voyage from June 7, 1886; that I have paid J. H. Murray, United
States consul, on account of the crew of said Adams, $202.96; that
the estimated expenses of the admiralty court are $240; that my
traveling expenses (advice and services incurred) are $120; the
probable legal services to be paid for are estimated at $1,000.
I was born in Kittery, Me., and have lived in Gloucester, Mass.,
forty years; that there was on board 1 compass, worth $40.
Gloucester, May 18,
1886.
Commonwealth of
Massachusetts,
Essex, ss:
Personally appeared the above-named Jesse Lewis, and on oath declared
the above statement by him subsribed to be true.
Before me.
WILLIAM W. FRENCH,
Justice of the
Peace.
[Inclosure 3 in Mr. Woodbury’s letter
of May 21, 1886.]
Depositions showing nationality of the crew of
the David J. Adams.
Gloucester, May 18,
1886.
I declare and say that I am a native of Gloucester, Mass.
I declare and say that I am a citizen of the United States; that
I have fished from said country for the past twenty years.
ISAIAH ROBERTS.
I declare and say that I am a native of Novia Scotia, and have
been fishing fro American ports for two years.
JAMES SWANESBURG.
I declare and say that I am a native of Breme, Me.
ELROY PRIOR.
I declare and say that I am a native of Bath, Me.
JOHN BEATON.
I declare and say that I am a native of Breme, Me.
E. D. SIMMONS.
I declare and say that I am a native of Booth Bay, Me.
JOSEPH BOUCHER.
I declare that I am a native of St. George, N. B.; that I have
fished from American ports during the past eight years.
JOHN BROWN.
[Page 497]
I declare that I am a native of Norway, and have fished from
American ports for the last seven or eight years.
FRANK ARNESEN.
I declare and say that I am a native of St. George, N. B.; that I
have fished from American ports for the last seven years.
JOSEPH HENLEY.
I say that I am a native of Germany; that I have fished from
American ports for the last five years.
FRED FISCHER.
I declare that I am a native of St. George, N. B.; that I have
fished from American ports for the last seven years.
Gloucester, May 18,
1886.
Commonwealth of
Massachusetts,
Essex, ss:
Severally subscribed and sworn to before me.
WILLIAM W. FRENCH
,
Justice of the Peace.
I declare and say that I was born in Maine, and am a citizen of
the United States.
