[Inclosure.]
Mr. Harmon to Mr.
Olney.
Department of Justice,
Washington, D. C., December 9, 1895.
Sir: I have the honor to transmit herewith
a copy of a letter of the United States attorney for the southern
district of California, of December 3, with relation to the Wahlberg, about which you wrote me under date
of November 20 last.
I have directed the attorney to transmit the papers in his possession
to the United States attorney for the northern district of
California for proper action.
Very respectfully,
Judson Harmon,
Attorney-General.
[Subinclosure.]
Mr. Denis to Mr.
Harmon.
Los
Angeles, Cal., December 3, 1895.
Sir: I have the honor of acknowledging
receipt of your letter of November 27, 1895 (A. G. 3068–95),
together with its inclosures; a letter from the honorable Secretary
of State, of date November 20, 1895, and a copy of a letter of the
Hon. William Castle, Hawaiian minister to the United States, in
which you instruct me to investigate
[Page 876]
and report whether a case can be made against
the schooner Wahlberg for violation of
sections 4337 and 4364 of the Revised Statutes.
I take the liberty of reviewing briefly the case of the Wahlberg as presented to me: The collector of
customs for the San Diego customs district seized the Wahlberg for violation of the neutrality
laws, under sections 5281 and 5283, Revised Statutes, and reported
the seizure to me, with a request that I proceed against the vessel.
I gave as my opinion that, under the authority of The United States
v. The Itata, a case arising in this
district and which had been affirmed by the circuit court of
appeals, the seizure of the Wahlberg was not
authorized by law. After communication with the Secretary of the
Treasury, as I am informed, the collector of customs then requested
that proceedings be had against the Wahlberg
by libel for violation of section 4197, Revised Statutes. Upon this
request I advised the collector that the penalty denounced by
section 4197 was a personal penalty, recoverable by an action
against the master or owner, and that the vessel was not subject to
an action in rem for its collection, and I relied upon the case of
The Strathairly, reported in 124 U. S.,
at page 558. My opinion, as I am informed, was approved by the
honorable Attorney-General, your predecessor.
Replying to the instructions contained in your letter of above date,
I have the honor to state that if section 4337, or 4364, of the
Revised Statutes has been violated, the prosecution should be
instituted in the northern district of California, whithin which is
situated the port at which the vessel complained of was registered
or enrolled. I have the honor to suggest, further, if it will not be
considered an impertinence by you, that the master of the Wahlberg should be prosecuted for perjury in
that district, of which crime he was unquestionably guilty, if the
facts submitted by the officers of the Hawaiian Government and the
collector of customs at San Diego can be relied upon. I made this
suggestion both to the Hawaiian consul and to the collector of
customs at San Diego as early as March last.
I do not believe that the vessel in question, or her master, is
within the jurisdiction of this district.
If the conclusion reached by me does not meet with your approval, I
beg that you will instruct me what further steps you require in the
premises, and I will very cheerfully obey instructions.
Very respectfully,
George J. Denis,
United States Attorney.
