No. 305.
Mr. Bayard
to Mr. Phelps.
Washington, January 27, 1887.
Sir: Your dispatch No. 416, of the 12th instant, transmitting a copy of the note, dated the 11th, received by you from the late Lord Iddesleigh, in response to your note of December 2, 1886, requesting copies of the papers in the case of the David J. Adams, has been received.
The concluding part of Lord Iddesleigh’s note seems to demand attention, inasmuch as the argument employed to justify the provisions of Article 10’ of the Canadian Statutes, cap. 61 of 1868, which throw on the claimant the burden of proving the illegality of a seizure, appears to rest upon the continued operation of Article 1 of that statute, relative to the issue of licenses to foreign fishing vessels. The note in question states “that the provisions of that statute, so far as they relate to the issue of licenses, has [have?] been in operation since the year 1870.
It appears from the correspondence exchanged in 1870 between this Department and Her Majesty’s minister in Washington (see the volume of Foreign Relations, 1870, pp. 407–411) that on the 8th of January, 1870, an order in council of the Canadian Government decreed “that the system of granting fishing license to foreign vessels under the act 31 Vic, cap. 61, be discontinued, and that henceforth all foreign fishermen be prevented from fishing in the waters of Canada.”
During the continuance of the fishery articles of the treaty of Washington Canadian fishing licenses were not required for fisherman of the United States, and since the termination of those articles, July 1, 1885, [Page 453] this Department has not been advised of the resumption of the licensing system under the statute aforesaid.
The faulty construction of the last paragraph of Lord Iddesleigh’s note, as transmitted with your No. 416, suggests the possibility of a clerical error in the preparation or transcription of that note, and that it may have been intended to state that the licensing provisions of the statute, cap. 61, 1868, “have not been in operation since 1870,” but in that case it is not easy to apply the argument advanced.
I am, etc.,