PUBLIC RECORD OFFICE
minimuilm
Reference :-
C.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
14 PUBLIC RECORD OFFICE, LONDON
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having paid customs duty at a port of entry; but it will be also seen that the judg- ment admits that the transhipment of the skins, &c., took place outside the 3-mile limit.
Her Majesty's Government have from the outset protested against any claim on the part of the United States to bring foreign vessels within the jurisdiction of their municipal law by reason of anything done outside the limit of 3 miles from the coast. It therefore appears impossible for them to recognise the jurisdiction of the Supreme Court of the United States, to which an appeal would lie, in matters occurring beyond this limit.
Sir J. Pauncefote was instructed to speak to Mr. Gresham in this sense, and reported fully his action in so doing in his despatch No. 9 of the 15th January 1894 (paper I).
Sir J. Pauncefote represented the hardship of forcing the owners to continue costly and lengthy litigation to vindicate so well-established a principle of international law as the above in regard to maritime jurisdiction.
Mr. Gresham replied that it did not lie in his power to remove the case from the consideration of the Court of Appeal.
The international question would, he said, remain intact, and the appeal would proceed without prejudice to either country.
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Mr. Gresham added, in a subsequent note, that the application of the owners to surrender the ship in discharge of that bond had been refused, and that they had secuted an appeal to the Circuit Court, which was now pending, and was set down for hearing in April next. He further stated that the United States' Attorney-General was unwilling to confess error upon the record and thus terminate the judicial pro- ceedings. Mr. Gresham, therefore, suggested that the international question should be allowed to rest until the determination of the appeal, when its consideration could be resumed.
Sir J. Pauncefote reported that he saw little prospect of shaking this decision. Although the owners complained, through the Canadian Government, of the unnecessary expense of an appeal, steps were taken to warn them of the importance of preserving their right of appeal.
The Canadian Government reported, however, that the owners were not prepared to appeal on their own responsibility, and that the date for appeal expired on the 14th February.
It will be seen from the enclosure in the Colonial Office letter of the 17th instant (paper J), that the owners did take the necessary steps to preserve their appeal, but expressed the hope that an understanding would be reached which would not necessitate the further continuance of costly litigation; and also that the judgment would be stayed and the vessel released.
A despatch from the Governor-General of Canada embodying the views of his Ministers on the subject at greater length, will be found in the Colonial Office letter of the 1st March (paper L).
It will be further seen from that letter that the Canadian Government inquired whether Her Majesty's Government required the owners of the "Coquitlan" to exhaust the remedies provided by the United States' Courts.
Thence arises the first question upon which your opinion is solicited, viz., whether itis praticable or expedient that Her Majesty's Government should require the owners to proceed with the appeal.
In the second paragraph of the Colonial Office letter it is pointed out that the position taken up by Her Majesty's Government on the advice of the Law Officers of the Crown was, as set forth in Sir J. Pauncefote's note to Mr. Gresham of the 24th April last (paper E), "that where a seizure takes place outside the 3-mile limit of a British vessel engaged in an attempt to break the revenue laws of another country they "would not complain of the capture," that being the principle upon which, in the interests of the comity of nations, the Hovering Acts and similar legislation by other countries had been tacitly acquiesced in.
Lord Ripon gathers from the opinion expressed in your report of the 18th March that the provisions of the Hovering Acts are not to be regarded as a substantive part of municipal law binding on the ships of all nations coming within the specified area, but that their application is only to be recognised in cases where a vessel is engaged in proceedings preliminary or auxiliary to an offence to be consummated within the jurisdiction, and that a nation is under no obligation to recognise seizures of its vessels made in pursuance of such laws for acts begun and completed outside the 3-mile limit, and having no connexion with or relation to anything done or to be
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done in the territory or within the acknowledged territorial jurisdiction of the nation making such seizure.
Lord Rosebery would be glad to learn whether this is a correct interpretation of your report on this point.
The judgment of the United States Court in the case of the "Coquitlan" proceeds on the assumption that the provisions of the United States' Hovering Acts are substantially and entirely binding on foreign vessels, and admits, as already pointed out, that the alleged offence was committed between 3 and 7 miles from the shore, and that the goods transhipped were not intended to be landed, or dealt with in any
within the territory or jurisdiction of the United States. In these circumstances Lord Ripon, though, with a view of meeting the wishes of the United States, he would be glad if the owners would prosecute the appeal, sees no ground upon which Her Majesty's Government should require them to do so.
Lord Rosebery would desire to be informed whether you concur in the views expressed by Lord Ripon upon this point.
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In the seventh paragraph of the Colonial Office letter it is further pointed out that, as is admitted by Judge Truitt in his decision, "the United States at that time was asserting an absolute ownership over the fur-seals born and reared on the Pribyloff Islands, which composed the herd which the vessel involved in this case was hunting,' and the action of the United States' authorities in seizing the "Coquitlan" would probably never have been taken but for their desire to maintain and prosecute that claim in every possible way by hampering the proceedings of the pelagic sealers who were infringing the alleged rights of the United States.
That question has, it is added, now been closed by the decision of the Behring Sea Arbitration Tribunal, and it appears to Lord Ripon somewhat ungracious on the part of the United States to refuse to come to a friendly settlement of this case until the owners have been put to the further expense of prosecuting the appeal to the Supreme Court, the decision of which can, it is admitted, have no effect on the international grounds upon which Her Majesty's Government maintain that the seizure was illegal, and which seem a proper subject for diplomatic discussion, and not within the competence of the Municipal Tribunal, which is bound to administer the law as it is stands.
Upon this last point the attention of the Secretary of State has recently been drawn to a passage in the "American Law Review," vol. xxv, No. 4, July-August 1891, pp. 638 and 639, on "The Bebring Sea Question and the American Supreme Court," in which the position appears to be correctly and clearly summarized (see pamphlet marked K).
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The Secretary of State for the Colonies therefore suggests that Her Majesty's Ambassador at Washington should be instructed to make a furthur representation to the Government of the United States, pointing out that the decision of the appeal cannot in any way affect the grounds upon which Her Majesty's Government have from the first protested against the seizure of the vessel, and that in view of the connexion of the original seizure with the now abandoned claim of the United States, it is inconsistent with the generosity which may be expected from a great Power like the United States to delay remedying an act of injustice, and to insist on those who have already suffered so heavily by that act maintaining further a costly and uselesa litigation.
Lord Rosebery would be glad to be favoured with your opinion as to the propriety of instructing Sir J. Pauncefote in this sense.
I am accordingly to request that you will take the papers transmitted herewith into your early consideration, and that you will favour Lord Rosebery with your opinion on the questions specially submitted in this letter, as well as with any observations of a more general nature which you may have to offer on the present aspect of the case.
I have, &c. (Signed) FRANCIS BERTIE.
(A.) Law Officers
(B.) To ditto
Law Officers
(C.) To ditto
Law Officera
(D.) Ditto
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List of Papers.
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December 13, 1892.
September 13,
September 7,
·
August 25,
September 9,
11
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