311.4153 H 39/47
The Secretary of State to the British Chargé (Chilton)
Sir: I have the honor to acknowledge the receipt of your communication No. 578 of July 10, last, in relation to the recent decision of the United States Circuit Court of Appeals in the case of the schooner Henry L. Marshall, and to certain American press comments thereon. You advert to the general trend of these comments and to the inferences which are drawn from the views of many American legal experts.
I note your statement that under instructions from your Government you inform me that any attempt on the part of the United States authorities to seize a British ship outside the three-mile limit would be regarded by your Government as creating a very serious situation. With respect to the case of the Henry L. Marshall, you state that you have been instructed to explain that the absence of a protest by His Majesty’s Government against the condemnation of the vessel in no way implies any alteration in the views of your Government with respect to the principle at stake, inasmuch as the vessel was not recognized as entitled by your Government to British registry; and you add, that so far as your Government is concerned, the Henry L. Marshall remains an American vessel. The Department is pleased to receive this formal statement as to the status of [Page 166] the vessel as it is recalled that your Embassy had made protests against the seizure of the vessel in your communications No. 623, of August 11, 1921, and No. 686, of September 9, 1921,21 and that the Department had also been in receipt of communications from your Embassy in respect to the progress of the cause and the detention of certain members of the crew as witnesses.
In view of the emphasis placed in your last communication upon the principle deemed to be involved, it would seem appropriate to direct your attention to the precise import of the adjudications in the United States District Court for the Southern District of New York21a and, on appeal, in the United States Circuit Court of Appeals for the Second Circuit, from whose decrees it is not understood that the claimant has as yet sought by writ of certiorari to obtain a review in the Supreme Court of the United States. For this purpose I may refer to the pertinent facts as these have been judicially established and set forth in the statement of the case by the United States Circuit Court of Appeals. The vessel sailing under British registry in 1921 obtained clearance from West End, Bahama Islands, when actually laden with a cargo of intoxicating liquors. She received two clearances of the same date and signed by the same Collector of Revenue, one of which stated that she had cleared for Halifax with the cargo of liquor, the other that she had cleared for Gloucester, Massachusetts, in ballast. The same Collector furnished two bills of health, likewise differing as to destination. It was abundantly proved that the real object and only business of the Henry L. Marshall was to peddle liquor along the coast of the United States. “Particularly”, states the official report of the decision, “did she pursue her vocation while lying some nine or ten miles off Atlantic City and there sent liquor on shore, pursuant to previous arrangement made in the United States, by motor boats”, which, however, were not a part of the schooner’s equipment, and, so far as appears, did not belong to her owner. When the Marshall was boarded more than three miles from the New Jersey coast it was found that she had no manifest and still had on board a quantity of liquor.
The United States Circuit Court of Appeals in affirming the decrees which were passed upon the libels for forfeiture, held that the act of unlading although beginning beyond the three mile limit continued until the liquor was landed; that the Marshall’s cargo of whiskey was never manifested; that it was not unladen between the rising and setting of the sun and that no special license had been obtained for unloading at night; and that there was an unloading [Page 167] without a permit,—all in violation of provisions of the Revised Statutes of the United States. The United States Circuit Court of Appeals concluded: (a) that there was an attempt to introduce all of the Marshall’s cargo into the commerce of the United States, and that there was an actual introduction of a part of that cargo into that commerce; (b) that such attempt at introduction was by means of fraudulent practices, i.e., evasion of the provisions of the National Prohibition Act; (c) that there were wilful acts (i.e., rum running) by means whereof the United States was deprived of duties upon the merchandise (i.e., whiskey) affected by the said act.
The foregoing conclusions are deemed by this Government to be self explanatory. They relate to the conduct of a vessel which was far from exercising the normal right of passage on the high seas adjacent to American waters in the course of a voyage between two British ports. They show that the vessel and those controlling it started upon its sinister voyage with connivance and aid of British authority in British territory; that its direct and single effort was by fraudulent means to introduce the cargo, and all of it, within the territory of the United States; and that the vessel prior to and at the time of its actual seizure, even though more than three miles from the shore, was hovering off the coasts of the United States and was engaged in an attempt to violate the laws of the United States by the introduction of the liquor within its territory. It should be added that adequate judicial procedure, as already noted, was available and used, in order to determine these facts, and in these circumstances the competent judicial authority of the United States has sustained the seizure of the vessel.22
In view of this decision, and of the tenor of your communication, my Government hopes that it may be advised that His Majesty’s Government does not consider, even in the case of a vessel admittedly of valid British registry, that such a vessel pursuing the course of conduct followed by the schooner Henry L. Marshall is making proper use of the British flag and that His Majesty’s Government would not be disposed to espouse the cause of a British merchant vessel in an effort unlawfully to introduce intoxicating liquors into the territory of the United States in the manner adopted by the schooner Henry L. Marshall, or in such a case to oppose the enforcement of the laws of the United States by means of the procedure taken in the case of that vessel and judicially approved.
Accept [etc.]