EXHIBIT J.
January 9 (21), 1897.
Your Excellency: Referring to the note of the Imperial ministry of May 18 (30), 1896, I have the honor to present to your excellency certain views of my Government regarding the seizure by the Russian cruiser Aleut of the James Hamilton Lewis in the North Pacific Ocean.
I am instructed to say that my Government does not regard the justification offered for the seizure of the James Hamilton Lewis, namely, that she had been taking seals on Russian territory or in Russian waters, as established in point of fact, but, on the contrary, maintains that all the facts offered in evidence of this theory against the James Hamilton Lewis by the Imperial Government are consistent with the lawful pursuit of her calling upon the high seas.
The Imperial Government has alleged that the seizure and confiscation of this vessel was made because she had violated, within Russian jurisdiction, the laws of the Empire for the protection of fur seals in Russian territory and waters. My Government considers that to justify the act the Imperial Government should show an invasion of Russian territory or territorial waters by this vessel, and the taking of seals by its master and crew on Russian shores or within one marine league thereof. In its reply, the Imperial Government has made no contention for jurisdiction over American vessels fishing in the North Pacific Ocean (or Bering Sea) beyond ordinary jurisdiction waters.
In the memorandum of the Imperial ministry of marine on the subject of her capture, a copy of which was inclosed in the ministerial note referred to, no evidence of an affirmative character is adduced in support of the contention that the James Hamilton Lewis or her crew ever entered Russian waters; while, on the other hand, the original log book showing the vessel’s daily position during the voyage, which is now in the archives of this legation, together with the original affidavit of the master, shows clearly that, during that voyage at least, she had not been in Russian waters.
The action of the captain in retaining, after the seizure of his vessel, this log book, showing his position from day to day, has been alluded to in the memorandum of the ministry of marine as damaging to his statements, and its authenticity has been discredited in the same document. As this book formed an important piece of evidence in his case, it is not surprising that the master of the James Hamilton Lewis desired to retain it in his own possession. As regards its authenticity, not only is it supported by the sworn affidavits of the master and two members of the crew, but it bears upon its face every evidence of being a genuine document, as I will take an early opportunity of exhibiting to your excellency. All of the entries are made in due order, followed by the protest of the captain upon the reverse page of the last entry, and this in turn is consecutively followed by the statement subscribed to by every member of the crew over his signature at Vladivostock. As the crew separated after leaving Vladivostock, their signatures to the log book is strong corroborative evidence of the fact that it was in its present condition before they left that place. A plotting of the course of the James Hamilton Lewis as indicated by this log book shows a voyage entirely consistent with the assertion that she had been sealing outside Bering Sea; and all the documents, including the affidavits of the captain and several of the crew, attest to this, as well as to the fact that the seal skins found on board were taken outside of Russian jurisdiction. On the other hand, not only is it not contended in the memorandum of the ministry of marine that the vessel was within a marine league of Copper Island when sighted by the Aleut, but no evidence has been adduced that any seals had been taken within Russian jurisdiction or that the vessel had ever been within its limits. An early entry in the log book of the voyage states that on June 28 the American gunboat Thetis was spoken, and warned the captain of the James Hamilton Lewis against going into the Bering Sea seal hunting, and the master adds, “which I abide by,” thereby indicating a law-abiding disposition not likely to run counter to the laws of a foreign nation which would necessarily involve more serious consequences for him than the infraction of those of his own country could involve.
The evidence of the statement in the memorandum of the ministry of marine is that the James Hamilton Lewis was seen moving toward Copper Island, but more than a marine league away; that on sighting the Aleut she turned and fled, and threw something overboard; that when pursued and overhauled the master said he was engaged in fishing and hunting birds; that the log book did not show where the vessel had been; that a large number of seal skins were found on board, with a complete [Page 193] sealing outfit, and that two of the seal skins had been taken from pups which were too young to swim.
It is the opinion of my Government that this is a chain of circumstances which might have served the purpose of connecting the James Hamilton Lewis with any depredations in Russian waters otherwise established by direct evidence, when it was only a question of who was the culprit. But the Imperial Government has not shown any corpus delicti, that any seals were taken in Russian waters or jurisdiction by this or any other vessel. The evidence simply shows that she had come into the neighborhood of Copper Island, where, by Russian acknowledgment, she had a perfect right to come, and that she had taken somewhere a large number of seals, which, so far as the Imperial Government is concerned, she had a perfect right to take, provided they were not taken within Russian jurisdiction, and that the master evinced a disposition to escape and evade inquiries made of him. The evasion of search and inquiry is, in the opinion of my Government, circumstantial evidence only when an obligation to submit to investigation and to answer questions truly is first established. If the master of the James Hamilton Lewis was overhauled and subjected to interrogation which the interrogator had no lawful authority to make, his reticence and indisposition to make a full disclosure can not be given the construction put upon them by the Imperial Government, and my Government is unable to recognize that, from the evidence adduced, such authority existed on the part of the captain of the Aleut. But I beg to point out to your excellency that the master of the James Hamilton Lewis denies these allegations as to the evasion of inquiries, as is shown by his affidavit which I have referred to above; but, admitting them to be true, they do not, in the opinion of my Government, even tend to connect the master with any unlawful act in Russian jurisdiction. He explains in a reasonable and credible manner his movements and occupation up to the time and place of his capture, and also the presence of the two skins of young seals which at that age could not have been swimming in the ocean. They were taken from the dead bodies of their mothers, as is duly sworn to by two of the hunters of the James Hamilton Lewis.. It is a well-known fact that many of the female seals killed on the high seas are pregnant with young, ready to be born on reaching the rookeries.
While my Government does not wish it to be understood as defending the practice of killing mother seals pregnant with young on the high seas from an economic point of view, still it maintains that such an act is not in violation of any law which the Imperial Government is justified in enforcing against the James Hamilton Lewis.
My Government feels itself bound to dissent from the inference which the Imperial Government has drawn from the circumstances set forth, and maintains that Russia has taken an American vessel on the high seas at least twelve miles distant from Russian territory, and confiscated that vessel, her equipment, and cargo. That she also arrested and imprisoned the master and crew of this vessel, and after they were released they were left to make their way home, penniless, as best they might. My Government contends that such an act can only be justified on proof of infraction of Russian law, and it confidently believes that when the Imperial Government reconsiders the case upon the facts as they now stand, it will readily acknowledge that the James Hamilton Lewis was unlawfully taken and confiscated. In this belief it would seem that nothing remains but to ascertain what reimbursement is due to the owners, the master, and the crew of the confiscated vessel.
I avail myself of this occasion to renew to your Excellency the assurance of my most distinguished consideration.
Chargé d’Affaires ad interim.
To His Excellency Count Lamsdorff,
Adjoint of the Imperial Ministry of Foreign
Affairs.