Mr. Bayard to Mr. Olney.
London, September 3, 1895. (Received Sept. 12.)
Sir: Having reference to the Department’s No. 780, of July 9 last (by Mr. Adee, Acting Secretary), relating to the release by the British naval authorities of the sealing schooners Wanderer and Favourite in advance of and without judicial proceedings to test the legality of the action, I have now the honor to transmit, herewith inclosed, copy of a [Page 667] note just received (and of my acknowledgment thereof dated this day) from the Marquis of Salisbury, under date of August 30, which is intended as a reply to the case of the seizure of the two sealing vessels above referred to, and which was presented to the foreign office by Mr. Roosevelt under your instruction No. 749, of June 18 last.
Before making reply to Lord Salisbury’s note I conceive it better to transmit, for your consideration, an expression of my own views, which are respectfully submitted, on the case as it appears in the correspondence.
Two points are conceded in his lordship’s communication, and which form the basis of the claim put forward by the United States: First. “It is not disputed that, in the case of a vessel arrested upon an alleged breach of the English act of Parliament bearing on the question, additional breaches may be assigned;” and, second, that “it was never intended that the naval authorities should take upon themselves to decide questions which undoubtedly could only be decided by a British court of admiralty.”
But it is sought to qualify and impair both of these propositions by assuming, in connection with the conceded admissibility of supplementary evidence and “the assignment of additional breaches of the British act,” that the naval officers making such seizures “should be in a position to adduce evidence of such additional breaches;” and this is followed by the allegation that “there was, up to the time of release, no allegation of any such charge.”
It can not be doubted that the date of the judicial hearing is the date up to which evidence authorizing the seizure and assigning additional breaches relates, and not the date when the accused vessel was handed over to the naval officer of her own nationality for the express purpose of having her seizure (as provided by the British act) subjected to examination and adjudication in the civil court, and that the assumption of judicial functions by such naval officer, and his decision that no case has been then adduced or will be made out by the time of trial, is wholly without warrant and is in violation of the British act as well as of the spirit and letter of the award.
It is therefore begging the question to allege that, because vessels can not be condemned for any other offenses or “upon any other charges than those which were the subject of the Bering Sea award and consequent legislation,” that British naval officers are justified, when receiving accused vessels from American captors for the sole and express purpose of sending them for trial in the civil courts, in anticipating the date of such trial and the evidence which may then and there be forthcoming, either under the original charge or under such additional breaches of the British act as may then be assigned; for this would be the assumption of judicial functions by a ministerial officer, in plain violation of the provisions of the British statute, and of the award, whose execution it was intended to enforce.
As to the concluding paragraph of Lord Salisbury’s note it would seem sufficient to say that, while we admit that the authority for the arrest by a naval officer of the United States of a British sealing vessel is restricted by the terms of the British statute and the award it recites and professes to carry into execution, yet the mere allegation by such officer that he was proceeding under the authority of the act of Congress (both acts being in pari materia, although not identical in terms and in cooperative execution of an award by which each Government was equally and honorably bound) should not of itself be held to be conclusive, and to warrant the summary release of the vessel [Page 668] without such hearing and trial as were stipulated in the award and the laws of both nations, or to prevent the condemnation of Her Majesty’s judicial courts, should evidence be then and there adduced of an infraction of the British statute and violation of the award.
I have, etc.,