Mr. Olney to Sir Julian Pauncefote.

No. 363.]

Excellency: Your note of the 19th ultimo preferring, on behalf of Her Majesty’s Government, certain complaints in regard to the proceedings of the United States revenue cruisers in searching and seizing British sealing vessels in Bering Sea and the North Pacific without, it is alleged, sufficient cause appearing therefor, heretofore acknowledged by me on the 25th ultimo, having been referred to the Secretary of the Treasury for consideration, I am now in receipt of Mr. Carlisle’s reply, the substance of which I have the honor to embody herein as expressing the views of this Government in regard to the matter.

Three general grounds of complaint are specified in your communication concerning the patrol by the Treasury Department, during the past season, of the North Pacific Ocean and Bering Sea, under the [Page 263] Paris award and the legislation enacted by Great Britain and the United States, respectively, for enforcing the same. These complaints may be summarized as follows:

That the seizures of vessels for alleged offenses were made by officers of this Government on evidence obviously insufficient.
That the right of search was exercised in cases where there was no just ground to suspect that an offense had been committed.
That the interference of United States revenue cutters in the operations of British sealing schooners was vexatious and inquisitorial.

As to the first ground of complaint, that British sealing schooners were seized for alleged offenses on evidence obviously insufficient, it appears that three British sealing vessels were seized by American cruisers during the past season—namely, the Shelby, in the North Pacific Ocean, May 11, and the Beatrice and the E. B. Marvin on August 20 and September 2, respectively, in Bering Sea. Of these vessels the Shelby was condemned by British court; the E. B. Marvin was acquitted, but without costs, the court deciding that there was reasonable cause to believe that she had violated the law and that the seizure, therefore, was justifiable; and the Beatrice was acquitted on the ground that the failure of the master to make the log entries required by the Paris award was not a violation of the Bering Sea award act for which the vessel could be forfeited.

These facts, it is believed, will satisfactorily indicate the discretion and good judgment shown by our revenue-cutter officers in making these seizures, and will demonstrate that the evidence of guilt was not “obviously insufficient.”

As to the second ground of complaint, that the right of search was resorted to when no just suspicion existed that an offense had been committed, it appears that information was received by the Treasury Department that during the season of 1894 the law was violated systematically by pelagic sealers, by having shotguns concealed on board of the vessels and using them in killing seals in Bering Sea; also that the log entries showing the sex of seals killed were systematically falsified.

Under such circumstances commanding officers of revenue vessels could satisfy their suspicions only by making a thorough search of the sealing vessels met with during the patrol. It would plainly be almost impossible to detect a vessel actually in the act of violating the law by killing seals in the closed season or by firearms in Bering Sea. It therefore became necessary to board the vessel, to break out the cargo, and to inspect the, skins thoroughly to ascertain whether they appeared to have been shot, if in Bering Sea, or whether they appeared to have been freshly killed, if in the closed season.

In view of the dissatisfaction expressed in the communication of your excellency, this Government can only repeat the expression heretofore made of its deep regret that the regulations for the season of 1894, agreed upon by Great Britain and the United States, as to sealing up arms and equipments, could not have been continued during the season of 1895. Those regulations provided an easy and simple mode of satisfying the searching officer that no breach of law had been or could have been committed. By sealing up the arms and equipments much annoyance, which otherwise would be inevitable, was avoided both by the master of the schooner and by the searching officer. Inasmuch, however, as Her Majesty’s Government refused to agree for the season of 1895 upon a continuance of the regulations permitting this sealing up of arms and equipments, or, in fact, upon any regulations, the only recourse left to the Treasury Department was to order its officers in [Page 264] all cases to make careful and thorough search as to infractions of the law, whether by the use of contraband weapons or in forbidden seasons.

In this connection it may be proper to state that during the past season the masters of twenty-eight British vessels at Unalaska applied to the officers of the Treasury Department to have their firearms sealed up, and expressed great dissatisfaction at the refusal of the officers to accede to their requests.

As to the third ground of complaint, that the officers of the patrol fleet had been guilty of vexatious and inquisitorial interference, it seems necessary only to renew the assurance that there was no interference except a careful examination of the vessel and cargo to ascertain whether the skins were shot or freshly killed in violation of the award and the British act of Parliament and orders in council. It is respectfully submitted that the right to seize and detain vessels, given to officers of the United States by the Bering Sea award act and the orders in council, confers by necessary implication the right to search; and it is further submitted that the right of search thus implied is as complete as in the somewhat analogous case of searching neutral vessels for contraband of war. Until the vessel is visited and searched it can not appear whether its purpose is legal or illegal, whether it is licensed or unlicensed, whether, in short, it has violated the law or obeyed it.

It is further claimed in the communication of your excellency that seizures under the act of Parliament can only be made in cases where the British act has been violated; that under the British act and orders in council there is no power of seizure merely because of the possession of forbidden sealing apparatus and implements.

Nothing is contained in the instructions to the revenue-cutter officers inconsistent with this claim. On the contrary, these officers have been carefully instructed that the power to seize British vessels is limited to violations of the British act, and must be exercised under British orders in council. If the officer has reasonable cause to believe that an offense has been committed, he is authorized, as this Government understands, to seize the vessel under the British law. To ascertain whether or not an offense has been committed, the officer must examine the vessel, for otherwise there could be no seizure except where the vessel is caught in the very act of violating the law, which would rarely happen.

As to the reference in your communication to an agreement with the Secretary of the Treasury in the year 1894, that the instructions to officers of the United States should be similar to those given to the officers of the British navy, your attention is invited to the following extract from the instructions to British naval officers engaged in the patrol for the year 1894, transmitted to this Department by the Hon. W. P. Roberts. The letter of Mr. Roberts also incloses a copy of a letter from the secretary of Rear-Admiral Stevenson, of the British navy, in which it is stated that the instructions for 1895 were precisely similar to those of 1894.

If the vessel which appears to be a sealing vessel is found in any waters in which at the time hunting is prohibited, the officer in command of Her Majesty’s ship should ascertain whether she is there for the purpose of hunting, or whether she has hunted, or whether she was carried through by stress of weather, or by a mistake during a fog, or is there in the ordinary course of navigation on her passage to any place. If he is satisfied that the vessel has hunted contrary to the act, he will seize her and order her to proceed to a British port hereinafter mentioned; but, if the officer is of the opinion that no offense has been committed, he should warn her and keep her as far as he thinks necessary and is practicable under supervision. He must judge from the presence of sealskins or bodies of seals on board and other circumstances and indications whether the vessel has been engaged in hunting.

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The above instructions plainly contemplate that every ship overhauled by a cruiser shall be carefully searched and examined for the purpose of ascertaining whether or not a violation of the law has been committed. Although limited in terms to areas in which seal hunting at the time is prohibited, yet clearly their spirit would seem to apply to searches in Bering Sea, where seal hunting by firearms is at all times prohibited. The right of search plainly implied by these instructions has, however, rarely if ever been exercised by British cruisers, for the reason that during the season of 1894, although the United States Government furnished twelve vessels for the patrolling fleet, at an expense, excluding pay of officers, crews, and rations, of $190,554.49, only one patrolling vessel was furnished by the British Government. Furthermore, during the season of 1895, although five United States revenue vessels patrolled the award area, at an expense of $69,064, only one, the Pheasant, was furnished for the patrol by the British Government. Furthermore, our official reports are to the effect that the Pheasant remained almost constantly in Unalaska Harbor during the season when sealing was permitted in Bering Sea, taking no part in the patrol.

The reference in the communication of your excellency to the protest annexed to the letter of Isaac A. Gould, owner of the schooner Katherine, as to the action of the United States revenue cutter with regard to the schooners Webster and Willard Ainsworth will receive most careful investigation by the Treasury Department. It may also be added that the form of clearance to be granted in the future by the revenue-cutter officers stationed at the island of Atton to British sealing vessels omits any reference to the President’s proclamation or to the legislation of Congress.

I have etc.,

Richard Olney.