Mr. Olney to Mr. Roosevelt.
Washington, June 18, 1895.
Sir: Among the correspondence transmitted with the Department’s instructions, Nos. 7131 of May 23, and 7401 of the 12th instant, you will find mention of the cases of the British sealing schooners Wanderer and Favorite, the seizure of which, according to Sir Julian’s note of May 11, affords grounds for Her Majesty’s Government to reject for the current year the provision of last year’s regulations concerning the sealing up of arms on board of vessels traversing the award area during the closed season.
I am informed by the United States consul at Victoria, British Columbia, that the Wanderer having been seized June 9, 1894, in the North Pacific Ocean by the commander of the U. S. cruiser Concord and formally delivered to the commander of H. M. S. Pheasant, was subsequently taken to Victoria and released by Admiral Stephenson of H. M. S. Royal Arthur.
The consul states that upon investigation it was found that all the guns of the Wanderer, except one, were secured under seal; that her master had no knowledge that there was a gun on board unsealed in violation of last year’s regulations; and further, that Admiral Stephenson “after careful investigation, and acting under legal advice, ordered the release of the schooner, the conclusion having been reached that no case could be made out against her.”
I am also advised by the Secretary of the Treasury that his Department understands that the British sealing schooner Favorite, seized in Bering Sea, August 24, 1894, by the commanding officer of the U. S. S. Mohican, was similarly released upon being turned over to the British naval authorities.
I have to instruct you to represent to Her Majesty’s Government that this action of the British naval authorities is not in accord with the evident intent and spirit of the legislation enacted by the respective Governments for carrying out the provisions of the Paris award.
These vessels were seized under authority of the order in council of Her Majesty’s Government, dated April 30, 1894, whereby United States officers, duly commissioned and instructed by the President, were authorized to seize any British vessel which had violated the Paris award regulations as contained in the act of Parliament, known as “the Bering Sea award act, 1894,” and bring her for adjudication before any British court of admiralty, or in lieu thereof to deliver her to any British officer for adjudication before said court.
The plain purpose of the law necessarily required judicial proceedings for the condemnation and forfeiture of every vessel seized for violation of the award provisions, especially those seized by United States officers and delivered to the British authorities as aforesaid, or conversely. In the case in question, however, it would appear that Admiral Stephenson, in discharging said vessel, took upon himself to decide a question which undoubtedly could properly be decided only by the competent British court of admiralty.
By no process of reasoning can it be inferred from the terms of the Paris award or of the concurrent legislation of the two countries thereunder, that conviction or acquittal of any offense thereby contemplated could be reached by other than due process of law. No concurrent authority of the naval commanders to decide the question of guilt or [Page 648] innocence appears, and certainly it was never: contemplated that the naval commander of the vessel’s nationality should alone and on his own account revise and overrule the action of the seizing commander.
The evidence in the case of the Wanderer seems clearly to justify the suspicion and belief that some, at least, of the 400 seal skins found on board had; been taken during the prohibited season by means of shotguns in violation of the award regulations and of the British and American laws. The master gave his arms and ammunition to the commander of the U. S. cruiser Yorktown to be secured under seal. Later in the same day he was boarded by the commander of the cruiser Concord and stated that the arms and ammunition sealed up by the Yorktown were all he had on board. Upon search, however, a breech-loading shotgun and a bag of loaded shells were found concealed in the extreme forward part of the vessel under a pile of iron cans, between decks. While the officer was making an entry in the log book as to this weapon, the master of the vessel was heard to say to the mate, “God damn it, I told you you ought to have had that put in with the others,” or words to that effect. This deception of the master, together with the concealment of the weapon and the presence on board of seal skins and other suspicions evidence revealed on search, clearly should have been submitted to a court of admiralty as evidence in condemnation proceedings.
In the case of the Favorite, 1,230 seal skins were found on board, together with a shotgun, whose barrels were cut off to 12 inches. It was found that it would shoot accurately for the distance of 50 yards; its use was prohibited by the award regulations.
The cause particularly assigned for these seizures, namely, the carrying of firearms unsealed, taken in connection with the fact that such weapons were forbidden then and there to be used, and that there were also found seal skins on board, would plainly justify the belief that said firearms had been used in violation of article 6 of the award as contained in the British Bering Sea award act of 1894, and the American act of Congress of April 6, 1894.
That the notices of seizure, as prepared by the United States seizing officers, do not with particularity specify the illegal use of these weapons, but rely chiefly upon their presence on board unsealed, clearly would not prevent such use being proved in subsequent proceedings in court for condemnation and forfeiture, the effect of said notices being merely to acquaint the authorities to whom the ships are turned over of the fact of the seizure, and of the particular offenses relied upon for maintaining a libel in condemnation proceedings. It would seem perfectly clear that additional breaches of the law could be assigned and made the subject of condemnation proceedings at any time before the trial.
The instructions issued by the British Government to the commanders of its cruising vessels for the season of 1894, would, it is submitted, have imposed upon such officers under similar circumstances the duty of seizing these vessels. Said instructions, in part, were as follows:
If you are satisfied that a vessel has hunted contrary to the act, you will seize her. * * * Whether the vessel has been engaged in hunting, you must judge from the presence of seal skins or bodies of seals on board, and other circumstances and indications.
The preceding facts and considerations justify the formal protest of this Government against the aforesaid action of the British naval authorities, as reported, in releasing the seized vessels, without due judicial process, and constrain it to request that in future every vessel seized by United States officers under the provisions of the award and the concurrent legislation and regulations in regard thereto shall [Page 649] be proceeded against for condemnation in the admiralty court having jurisdiction in the premises.
You will communicate the foregoing to the Earl of Kimberley by reading this instruction and, should he so desire, furnishing him with a copy.
I am, etc.,