The “James Hamilton Lewis.”

With regard to the second case, the defendant party states, first, that the party claimant insists upon the distance from the coast at which the seizure occurred. But it is a point which the defendant party believes can not be disputed, that if a wrong is committed in waters over which the jurisdiction of a State extends, pursuit can be continued onto the high seas, the common property of all nations. The limit of permissible pursuit ends where the border jurisdiction of another State begins. The application of this principle was particularly necessary when it was question of exercising supervision over a great extent of coast with a very limited number of vessels and in view of the audacity of the poachers. The defendant party dismisses, therefore, discussion as to the exact spot where the seizure occurred, and refers to the documents previously submitted by it.

With regard to the point at which the James Hamilton Lewis was sighted by the Russian war ship Aleout, the defendant party, while maintaining that the American schooner was then at least 5 miles from the coast, believes it is warranted in invoking in this case all of the arguments submitted above in this rejoinder. In maintaining the necessity of admitting an exceptional modification of the generally admitted rule regarding the extent of territorial waters, the defendant party might possibly have encounted a more conservative view on the part of England, which, however, had by the agreement of 1893 admitted that the situation justified such modification, thus consenting by contract; but the defendant party could not have supposed that the party claimant would one day contest the right of seizure exercised under these conditions. Besides, even from a theoretical point of view, the limit of marine jurisdiction is to-day considered by authorities on questions of international law as extending beyond 3 miles.

Undoubtedly the James Hamilton Lewis was not surprised in the act of sealing when she was sighted, but she was violating the terms of the notice of 1881, which had also been published at San Francisco (see above Case 1), giving to the term “Russian waters” a meaning so broad that it could not be mistaken by the American Government, and which the situation warranted.

The defendant party may also refer to certain understandings proposed previous to 1892 between the two Governments, but which did not result, it is true, in an agreement with England, which had participated in these negotiations. At the time when the arrangement known as the Blaine Memorandum was being negotiated, the Cabinets of St. Petersburg and Washington, in 1889, incidentally agreed upon the following point: They deemed it proper to make seizures in cases flagrante delicto as well as those where it could be shown that a vessel had engaged in prohibited hunting before being sighted by a [Page 399]cruiser. (Exhibits G and H.) A proclamation by the President of the United States was issued in that sense on March 21, 1889,a in conformity with the law passed by Congress the 2d March, 1889. (Exhibit I.)

The defendant party believes that that arrangement between the two Governments may be justly taken into consideration, although it did not result in a definite agreement. As for Exhibit A of the rejoinder of the party claimant, it could not be applicable to the present case. It is question of a certified translation of clause 21 of the Imperial Marine Prize Laws, wherein is set forth the limit of marine jurisdiction, claimed by Russia to be 3 miles. It might be argued in the first place that the term “cannon range” used in this document as alternative to that of “3 miles,” implies moreover a much greater extent in view of modern technical progress. But in the present case there is no question of prize of war, properly speaking, but of the necessary protection of an industry of great importance to Russian interests in the Pacific Ocean, an industry for which was invoked the principles of legitimate defense. They were confronted with marauders, with whom they must deal severely.

Furthermore, it appears from the contents of the document itself cited by the party claimant that it was not intended to deal definitely with the subject. The regulations of 1869 had to be submitted to another examination, and to legislative steps of a definite nature, to date only from the publication of the Regulations of Marine Prizes of March 21, 1895. By virtue of article 16 of this regulationb the idea of “open sea” was left without express meaning, for the reasons set forth briefly in the counter memorandum of the defendant party.

The defendant party points out in the rejoinder of the party claimant that the latter characterizes sealing in open sea as an industry legitimately prosecuted at that time. The inconveniences of that operation at certain distances from the coast were, however, well known by the party claimant. The use of nets for sealing was then considered by the party claimant as extremely injurious to the legitimate sealing industry, yet there was a net aboad the James Hamilton Lewis. Annex II to the present rejoinder sufficiently shows the injury done by killing female seals; the defendant party, on this point, can not do better than to refer to the argument advanced by the American delegate before the tribunal of arbitration at Paris in 1893, as also to the interdiction of the United States Government itself, which has been legalized as shown by a legislative act to that effect passed by Congress.

The defendant party maintains that the proceedings of the hunt in question being contrary to what was then the United States law, the party claimant is not warranted in submitting them as being justified.

So far as the authenticity of the log book is concerned, the defendant party maintains the opinions it expressed in the counter memorandum and declares itself ready to admit all the expert testimony that the arbitrator may deem necessary.

The defendant party continues of the opinion that the flight before the Russian man-of-war constitutes in itself an acknowledgment of [Page 400]guilt on the part of the American vessel. It rejects in the present case all allegations as to ill-treatment inflicted on the members of the crew of the James Hamilton Lewis, as also all damages on account of their arrest.

With regard to the similarity which the party claimant undertakes to set up between the present case and those of marine prizes in alleging that an admiralty court was not instituted, the defendant party again declares that it does not come under the head of marine prize cases, properly speaking. The seizures were made in consonance with the Russian law according to the notice published in San Francisco; it is for the Imperial Government to determine whose shall be the authority to decide as to the legitimacy of the seizure.

For all of the above-mentioned reasons the defendant party repeats its request that the demands of the party claimant on all the points be rejected.

EXHIBIT G.

Telegram from the Minister of Foreign Affairs of Russia to the Chargé d’Affaires at Washington, dated May 25 (June 7), 1889.

According to your opinion, that our cruisers should proceed on the high seas to inspect and seize vessels in flagrante delictu regarding prohibited sealing, it seems to us improbable that seizures can be made under these conditions, and besides, the proclamation of the President of the United States announcing that all persons and vessels engaged in or having engaged in prohibited hunting shall be liable to arrest and seizure. The term “having engaged in” implies according to us the idea that seizure will result not only in cases of vessels taken in flagrante delictu, but will also extend to vessels convicted of having engaged in sealing, which may be proved by the presence on board of sealing equipments, skins of animals, etc.

Seeing the necessity of avoiding all misunderstandings and of insuring the efficacy of protective measures, I advise you to clear up this point without delay.

EXHIBIT H.

Telegram from the Chargé d’Affaires of Russia at Washington to the Minister of Foreign Affairs at St. Petersburg of May 26 (June 8), 1889.

Your interpretation of the proclamation of the President is perfectly correct, and Blaine has just repeated to me that American cruisers have instructions to carry it out to the letter.

We certainly may seize vessels convicted of having practiced prohibited sealing without fear that the Americans will not do likewise on their part. The terms “engaged in sealing,” or, according to the English, “engaged in hunting fur seals,” used in paragraph 9 of the memorandum draft, are sufficiently general to include the cases of flagrante delictu, as well as those wherein can be shown by conclusive proofs that a vessel had engaged in prohibited hunt before being sighted by a cruiser. It appeared to us, in discussing terms, inopportune and superfluous to further particularize even in the text of the memorandum, the proclamation of the President being very explicit in this respect and our executive administrative orders issued since 1882 being of the same tenor.

[Page 401]

EXHIBIT I.

A Proclamation by the President.—Violators of the Alaska Seal Laws to be Vigorously Punished.

The following proclamation was issued late this afternoon:

By the President of the United States of America.

A PROCLAMATION:

The following provisions of the laws of the United States are hereby published for the information of all concerned:

Section 1956, Revised Statutes, chapter 3, title 23, enacts that:

“No person shall kill any otter, mink, martin, sable, or fur seal, or other furbearing animal, within the limits of Alaska Territory, or in the waters thereof, and every person guilty thereof shall, for each offence, be fined not less than $200 nor more than $1,000, or imprisoned not more than six months, or both, and all vessels, their tackle, apparel, furniture, and cargo, found engaged in violation of this section shall be forfeited, but the Secretary of the Treasury shall have power to authorize the killing of any such mink, martin, sable, or other fur-bearing animal, except furseals, under such regulations as he may prescribe, and it shall be the duty of the Secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions of this section until it is otherwise provided by law, nor shall he grant any special privileges under this section.” * * *

Section 3 of the act entitled “An act to provide for the protection of the salmon fisheries of Alaska,” approved March 2, 1889, provides that:

“Section 1956 of the Revised Statutes of the United States is hereby declared to include and apply to all the dominion of the United States in the waters of Bering Sea, and it shall be the duty of the President at a timely season in each year to issue his proclamation, and cause the same to be published for one month at least in one newspaper (if any such there be), published at each United States port of entry on the Pacific coast, warning all persons against entering such waters for the purpose of violating the provisions of said section, and he shall also cause one or more vessels of the United States to diligently cruise said waters and arrest all persons and seize all vessels found to be or to have been engaged in any violation of the laws of the United States therein.”

Now, therefore, I, Benjamin Harrison, President of the United States, pursuant to the above-recited statutes, hereby warn all persons against entering the waters of Bering Sea, within the dominion of the United States, for the purpose of violating the provisions of said section 1956, Revised Statutes, and I hereby proclaim that all persons found to be, or to have been engaged in any violation of the laws of the United States in said waters, will be arrested and punished as above provided, and that all vessels so employed, their tackle, apparel, furniture, and cargoes will be seized and forfeited.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed.


Benjamin Harrison.

By the President:
James G. Blaine,
Secretary of State.

  1. It is to this proclamation that reference is made in Exhibit H.
  2. Arrest, inspection, and seizure of enemy or suspected vessels and cargoes is permitted over the whole extent of sea and other waters, except such as are under control of a neutral power, or else have been set aside from war operations by virtue of special diplomatic agreement.