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Government would make their efforts most effective, the sealing in the North Pacific Ocean should be forbidden."
After pointing out “the great need of an effective modus,” you state that "holding an arbitration in regard to the rightful mode of taking seals, while their destruction goes forward, would be as if, while an arbitration to the title to timber land were in progress, one party should remove all the trees."
I have the honor to inform you that I have received a reply from Lord Salisbury to the following effect: In the first place his lordship states that he can not in any degree admit that the delays have been greater on the part of Great Britain than on the part of the United States,
As regards the necessity for another modus rirendi, Her Majesty's Government consented to that measure last year, solely on the ground that it was supposed that there would be danger to the preservation of the seal species in Behring Sea, unless some interval in the slaughter of seals were prescribed both at sea and on land. But Her Majesty's Government have received no information to show that so drastic a remedy is necessary for two consecutive seasons. On the contrary, the British Commissioners on the Behring Seit Joint Commission have informed Her Majesty's Government that, so far as pelagic sealing is concerned, there is no danger of any serious diminution of the fur-seal species, as a consequence of this year's hunting.
Nevertheless, Lord Salisbury would not object, as a temporary measure of precaution for this season, to the prohibition of all killing at sea within a zone extending to not more than 30 nautical miles around the Pribilof Islands, such prohibition being conditional on the restriction of the number of seals to be killed for any purpose on the islands to a maximum of 30,000. Lord Salisbury, referring to the passage in your note in which you compare the case to an arbitration about timber land, from which the trees are being removed by one of the parties, observes that he hardly thinks the simile quite apposite. His lordship suggests that the case is more like one of arbitration respecting the title to a meadow. While the arbitration is going on, he adds, we cut the grass; and quite rightly, for the grass will be reproduced next year, and so will the seals. I have, etc.,
Sir Julian Pauncefote to Mr. Blaine.
Washington, March 7, 1892. SIR: With reference to my note of the 29th ultimo, in which I had the honor to inform you that the Marquis of Salisbury had received no information to show the necessity for renewing, during the approaching fishery season, the modus rivendi of last year in Behring Sea as proposed in your note to me of the 24th ultimo, I think it opportune to remind you of the following fact in connection with that modus vicendi which may have escaped your attention, as you were absent from Washington at the time of its negotiation.
In the course of the correspondence which then took place it was distinctly notified to your Government that the modus rirendi would not be renewed for the following season. You will tind that, at the close of the memorandum inclosed in my note to Mr. Wharton of June 6, 1891, I stated under instructions from my Government that “the suspension of sealing was not a measure which they could repeat another year.”
Her Majesty's Government consented to that measure in corsequence of the rumors widely circulated of impending danger to the seal species. But since then the conditions of the tur-seal fishery have been investigated on the spot by experts appointed for that purpose by Her Majesty's Government. Those experts have advised that there is no danger of any serious diminution of the fur-seal species from pelagic sealing during the present year, and that to renew the prohibition of pelagic sealing for another season would be going far befond the necessities of the case.
Lord Salisbury's proposal of a 30-mile radius around the Pribilof Islands within which no sealing should be allowed is a judicious temporary measure of precaution pending the establislıment of permanent regulations for the fishery as a whole. It is a somewhat larger proposal than that which you originally made to me on the 16th of March, 1891, and which was for a similar radius of 2.5 miles only.
The reason why you subsequently abandoned that " radius" proposal is stated in your note to me of 4th May, 1891. That reason was not that such a radius would be ineffectual, but that “it might possibly provoke conflict in the Behring Sea."
At that time no act of Parliament had been passed in England to empower Her Majesty's Government to enforce such a measure on British vessels, and no doubt there was some danger on that account of it giving rise to difficulties. But it is otherwise now. By the seal fishery (Behring Sea) act of 1891 (54 Vic., c. 19), Her Majesty is empowered by Order in Council to prohibit under severe penalties the catching of seals by British ships in any part of Belring Sea defined by the order, and therefore the enforcement of the new moilus vivendi now proposed by Lord Salisbury would present much less difficulty than was experienced last season in putting the existing one into operation.
I trust that the above observations which I venture to offer in further elucidation of the proposal contained in my note of the 29th ultimo will satisfy your Government that it is, iinder the circunstances, a reason. able proposal, and one which will, if acceded to, sufficiently safeguard the interests of both nations during the few months comprised in the next tishery season, and pending the decision of the Arbitrators. I have, etc.,
Mr. Wharton to Sir J. Pauncefote.
DEPARTMENT OF STATE,
Washington, March 8, 1892. SIR: I am directed by the President to say, in response to your two notes of February 29 and March 2, that he notices with the deepest regret the indisposition of Her Majesty's Government to agree upon an effective modus for the preservation of the seals in the Bering Sea, pending the settlement of the respective rights of that Government and of the Government of the United States in those waters and in the fur. seal fisheries therein. The United States claims an exclusive right to take seals in a portion of the Belring Sea, while Her Majesty's Government claims a common right to pursue and take the seals in those waters outside a 3-mile limit. This serious and protracted controversy, it has now been happily agreed, shall be submitted to the determination of a tribunal of arbitration, and the treaty only awaits the action of the American Senate.
The judgment of the arbitration tribunal can not, however, be reached and stated in time to control the conduct of the respective Governments and of their citizens during the sealing season of 1892; and the urgent question now is, What does good faith, to say nothing of international comity, require of the parties to the Arbitration? If the contention of this Government is sustained by the Arbitrators, then any killing of seals by the Canadian sealers during this season in these waters is an injury to this Government in its jurisdiction and property. The injury is not measured by the skins taken, but affects the permanent value of our property.
Was it ever heard before that one party to such a controversy, whether a nation or an individual, could appro. priate the whole or any part of the income and profits, much less the body of the contested property, pending the litigation, without account. ability? Usually a court of chancery would place a receiver or trustee in charge and hold the income of the property for the benefit of the prevailing party.
You say that Lord Salisbury, rejecting the illustration used by Mr. Blaine, “ suggests that the case is more like one of arbitration respecting title to a meadow. While the arbitration is going on we cut the grass; and quite rightly, for the grass will be reproduced next year and so will the seals.” He can hardly mean by this illustration that, being in contention with a neighbor regarding the title to a meadow, he could, by any precedent in the equity courts or by any standard of common honesty, be justified in pocketing the whole or any part of the gains of a harvest without accountability to the adverse claimant whose exclusive title was afterwards established. It is no answer for the trespasser to say that the true owner will have an undiminished harvest next year. Last year's harvest was his also. If by the use of the plural pronoun his lordship means that the harvest of the contested meadow is to be divided between the litigants, I beg to remind him that the title of the United States to the Pribilof Islands has not yet been contested, and that our flag does not float over any sealing vessel. The illustration is inapt in the further particular that the seals not taken this year may be taken next, while the grass must be harvested or lost.
This Government has already been advised in the course of this correspondence that Great Britain repudiates all obligations to indemnify the United States for any invasion of its jurisdiction or any injury done to its sealing property by the Canadian sealers. The attempt to make a damage clause one of the articles of the arbitration agreement failed, because Her Majesty's Government would not consent that the question of its liability to indemnify the United States for the injuries done by the Canadian sealers should be submitted. Two extracts from the correspondence will sufficiently recall the attitude of the respective Governments:
In my note of July 23, I said: The President believes that Her Majesty's Government may justly be held responsible, under the attenılant circumstances, for injuries done to the jurisdictional or property rights of the United States by the sealing vessels flying the British flag, at least since the late when the right of these vessels to invade the Behring Sea and to pursue therein the business of pelagic sealing was made the subject of diplomatic intervention by Lord Salisbury. In his opinion justice requires that Her Majesty's Government should respond for the injuries done by those vessels, if their acts are found to have been wrongful, as fully as if each had borne a commission from the Government to do the act complained of. The presence of the master, or even of a third person, under circumstances calculated and intended to give encouragement, creates a liability for trespass at the common law, and much more if his presence is accompanies with declarations of right, protests against the definse which the owner is endeavoring to make, and a declared purpose to aid the trespassers if they are resisted. The justice of this rule is so apparent that it is not seen how in the less technical tribunal of an international arbitration it could be held to be inapplicable.
The United States might well insist that Her Majesty's Government should admit responsibility for the acts of the Canadian sealers, which it has so directly encouraged and promoted, precisely as in the proposal the United States aulmit responsibility for the acts of its revenue vessels. But, with a view to remove what seems to be the last point of vitference in a discussion which has been very much protracted, the President is willing to modify his proposal and directs me to offer the following:
“The Government of Great Britain having presented the claims of its subjects for compensation for the seizure of their vessels by the l'nited States in Bebring Sea, and the Government of the United States having presented in its own behalf, as well as of the lessees of the privileges of taking seals on the Pribilof Islanıls, claims for compensation by reason of the killing of seals in the Beliring Sea by persons acting under the protection of the British flag, the arbitrators shall consider and decide ipon such claims in accordance with justice and equity, and the respective rights of the high contracting powers, and it shall be competent for the arbitrators to award such compensation, as in their judgment, shall seem equitable.”
In your note of October 17, you say: I regret to inform you that Her Majesty's Government, after the fullest considera tion, have arrived at the conclusion that this new clause coulıl not properly be assented to by them. In their opinion it implies an admission of a doctrine respecting the liabilities of governments for the acts of their nationals or other persons sailing under their tag on the high seas for which there is no warrant in the law of nations. Thus it contains the following words:
“The Government of the l'nited States having presented on its own behalf, as well as of the lessees of the privilege of taking seals on the Pribilof Islands, claims for compensation by reason of the killing of seals in Behring Sea by persons acting under the protection of the British tlag, the Arbitrators shall consider and decide upon such claims."
These words involve the proposition that Her Majesty's Government are liable to make good losses resulting from the wrongful action of persons sailing ontside their jurisiliction under the British flag. Her Majesty's Government could not acceptsuch a doctrine.
The President can not believe that while holding this view of its accountability the Government of Great Britain will, pending the Arbi. tration, countenance, much less justify or defend, the continuance of pelagic sealing by its subjects. It should either assume responsibility for the acts of these sealers, or restrain them from a pursuit the law. fulness of which is to be determined by the Arbitration.
In your note of February 29 you state that Her Majesty's Government has been informed by the British Commissioners “ that so far as pelagic sealing is concerned, there is no danger of serious diminution of the four-seal species as a consequence of this year's hunting," and upon this ground Lord Salisbury places his refusal to renew the modus of last year.
His lordship seems to assume a determination of the Arbitration against the United States and in favor of Great Britain, and that it is already only a question of so regulating a common right to take seals as to preserve the species. By what right does he do this? Upou what principle does he assume that if our claims are established, any diminution of the seals, whether serious or not, during this season, or indeed, any taking of seals, is to be without recompense?
In the opinion of the President, it is not consistent with good faith that either party to an arbitration should, pending a decision, in any degree diminishi the value of the subject of arbitration or take any protit from the use of it without an agreement to account.
Before an agreement for arbitration had been reached the prohibition of pelagic sealing was a matter of comity; from the moment of the signing of that agreement it became, in his opinion, a matter of obligation.
During the season of 1891, notwithstanding the restrictions resulting from the modus adopted, the Canadian sealers took in the Behring Sea alone 28,768 skins, or nearly four times as many as the restricted catch upon our island. This Government is now advised that 51 vessels from British Columbia and 16 from Nova Scotia have sailed or are about to sail for the Bebring Sea to engage in taking seals. This large increase in the fleet engaged makes it certain, in the absence of an effective restrictive agreement, that the destruction of seal life during this season by pelagic sealing will be unprecedented, and will, in the opinion of our Commissioners, so nearly destroy the value of the seal tisheries as to make what will remain of so little value as scarcely to be a worthy subject for an international arbitration.
The proposition of Lord Salisbury to prohibit the killing of seals at sea within a zone extending to not more than 30 nautical miles around the Pribilof Islands" is so obviously inaulequate and so impossible of execution that this Government can not entertain it. In the early part of the discussion of the subject of a modus for last year, this method was tentatively suggested among others in conversation between yourself and Mr. Blaine. But it was afterward in effect agreed by both Governments to be inadequate, and was not again referred to in the correspondence. In the memorandum furnished by you with your note of June 6, you say:
Lord Salisbury points out that if seal hunting be prohibited on one side of a purely imaginary line drawn in the open ocean, while it is permitted on the other side of the line, it will be impossible in many cases to prove unlawful sealing or to infer it from the possession of skins or fishing tackle.
This was said with reference to the water boundary of our purchase from Russia, but is quite as applicable to the 30-mile zone which he now suggests. The prevalence of fogs in these waters gives increased force and conclusiveness to the point made by his lordship against an imaginary water line. The President can not agree, now that the terms of arbitration have been settled, that the restrictions imposed shall be less than those which both Governments deemed to be appropriate when it was still uncertain whether an early adjustment of the controversy was attainable. He therefore hopes that Her Majesty's Government will consent to renew the arrangement of last year with the promptness which the exigency demands and to agree to enforce it by refusing all clearances to sealing vessels for the prohibited waters and by recalling from those waters all such vessels as have already cleared.
This Government will honorably abide the judgment of the high tribunal which has been agreed upon, whether that judgment be favorable or unfavorable, and will not seek to avoid a just responsibility for any of its acts which by that judgment are found to be unlawful. But certainly the United States can not be expected to suspend the lefense, by such means as are within its power, of the property and jurisdictional rights claimed by it, pending the arbitration, and to consent to receive them from that tribunal, if awarded, shorn of much of their value by the acts of irresposible persons I have the honor to be, etc.,
WILLIAM F. WHARTON,