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Sir Julian Pauncefote to Mr. Wharton.
Washington, March 19, 1892. SIR: On receipt of your note of the 8th instant I immediately telegraphed to the Marquis of Salisbury the substance of its contents in accordance with the request which you expressed on behalf of the President, and I have now the honor to inform you that I have this day received a reply from his lordship, by telegram, to the following effect:
Lord Salisbury again points out that the information in the possession of Her Majesty's Government does not lead them to believe that another year's suspension of sealing is necessary to prevent an undue diminution of the seal herds.
His lordship, however, proceeds to observe that beyond this question it is considered by your Government that they have a right to be protected from the loss which they may incur from free sealing being permitted this year, in the event of their claim to Behring Sea being upheld by the Arbitrators. He states that Her Majesty's Government do not dispute that after the ratification of the convention there will be some foundation for this contention; but he adds that the prohibition of all sealing
as a remedy has this defect, that the British sealers excluded from Behring Sea would have an undoubted ground of complaint if the British claim should be upheld by the Arbitrators. Moreover, there is no security that the Arbitration will be concluded before the sealing season of 1893. Thus an arbitration between Great Britain, the United States, and Portugal, which has already occupied four years, is still pending. Serious damage would be caused to the industry by a suspension of sealing for a long period.
In view of all the above considerations it appears to Her Majesty's Government that it would be more equitable to provide that sealing in Behring Sea shall continue on the condition that the owner of every sealing vessel shall give security for satisfying any damages which the Arbitrators may adjudge.
I shall be glad to learn that the above suggestions meet with the concurrence of your Government. I have the honor, etc.,
Mr. Wharton to Sir Julian Pauncefote.
DEPARTMENT OF STATE,
Washington, March 22, 1892. SIR: I am directed by the President to say that your note dated the 19th instant and delivered on the 20th instant (Sunday) has had his immediate attention in view of what he deems to be the extreme urgency and gravity of the matter under discussion. The urgency grows out of the fact that much further protraction of this discussion will make any modus that may be agreed upon ineffectual to protect the interests of the United States and will give to the Canadian sealers practical immunity, by reason of the impossibility of communicating to them the agreed restrictions. It is known to this Government that the sealers have hastened their departure to escape notice of a possible modus and that every day almost adds to the fleet tbat must now be overhauled at sea. Already forty-seven Canadian vessels have cleared for the sealing grounds (as against thirty-one at the same date last year), and are engaged in following up and destroying the seal herdis. These vessels will, if not stopped and turned back at the passes, go into the Behring Sea and pursue to the very shores of our islands the slaughter of the mother seals seeking the accustomed rookeries to be delivered of their young. This is a crime against nature. This Government expects to show, if the Arbitration proceeds, that female seals constitute the larger per cent of the catch of the pelagic sealers.
That in view of this serious and confident contention of this Government his lordship should assume that another year's suspension of such sealing is not necessary “to prevent an undue diminution of the seal herds” and should insist that pending an arbitration it shall go on, precisely as if no arbitration had been agreed upon, is as surprising as it is disappointing. If Her Majesty's Government so little respects the claims and contentions of this Government as to be unwilling to forbear for a single season to disregard them, the President can not understand why Lord Salisbury should have proposed and agreed to give to those claims the dignity and standing which a reference to a bighi court of arbitration implies. From the moment an arbitration was agreed upon neither party was at liberty to disregard the contentions of the other.
It must be assumed that the sincere purpose of the two Governments was to promote peace and good will, but if, pending the Arbitration, either deals with the subject of it solely upon the basis of its own contention and in utter disregard of the claims of the other, this friendly end is not only not attained, but a new sense of injury and injustice is added, even if it should be found possible to proceed with an arbitration under such conditions. For it must not be forgotten that if Her Majesty's Government proceeds during this sealing season upon the basis of its contention as to the rights of the Canadian sealers, no choice is left to this Government but to proceed upon the basis of its confident contention that pelagic sealing in the Behring Sea is an infraction of its jurisdiction and property rights. His lordship will hardly fail to see this. Herein, in the opinion of the President, consists the gravity of the present situation, and he is not willing to be found in any degree responsible for the results that may follow the insistence by either Gov. ernment during this season upon the extreme rights claimed by it. In his opinion it would discredit in the eyes of the world the two great Governments involved if the paltry profits of a single season should be allowed to thwart or even to disturb the honorable and friendly adjustment of their differences, which is so nearly concluded; but if his lordship shall adhere to his refusal to unite with us in prompt and effective measures to stop pelagic sealing, and shall insist upon free sealing for British subjects, the question, as it affects this Government, is no longer one of pecuniary loss or gain, but one of honor and self-respect.
This Government, notwithstanding the fact that its right to tako seals upon the Pribilof Islands is undisputed and wholly uninvolved in the Arbitration, has proposed to take no protit from the island catch, but to limit the taking of seals to the necessities of the natives of those islands, and it can not consent that, with indemnity or without, the contested rights of British subjects to catch seals in the Behring Sea shall be exercised pending the Arbitration. The President tinds it difficult to believe that Lord Salisbury is serious in proposing that this Government shall take separate bonds from the owners of about one hundred Canadian sealing vessels to indemnify it for the injury they may severally inflict upon our jurisdiction or property, and must do
cline to discuss a suggestion which only his respect for Lord Salisbury and his belief that his lordship has a due appreciation of the gravity of this discussion enable him to treat with seriousness.
We should doubtless have to pursue and capture upon the sea many of the owners of those vessels to secure the bonds suggested, and as the condition is to be that the obligors shall pay any damages which the Arbitrators may adjudge,” while the treaty gives the Arbitrators no power to adjudge'any damages, the transaction would be without risk to the obligors and of no value to us.
This Government can not consent to have what it believes to be its rights destroyed or impaired pending their determination by an agreed tribunal, however adequate the security offered. The reference in my last note to the inconsistency of Her Majesty's Government in denying responsibility for the acts of the Canadian sealers was not intended to suggest a willingness on our part under any circumstances to see our property converted into a claim for damages, and particularly as such a claim can not now be heard or determined by the Arbitrators without a reformation of the treaty, for his lordship must remember that while he now offers what he mistakenly calls "security for satisfying any dainages which the Arbitrators may adjudge,” he has already carried his point in the treaty that the Arbitrators shall have no jurisdiction to award any damages.
As to his lordship's suggestion, that Canadian sealers may have some claim for compensation if Great Britain shall restrain pelagic sealing, the President directs me to say that he is not able to see how the citi. zens or subjects of either of the treaty powers can by any rule of law or equity support any claim against their respective governments growing out of such necessary trade restraints as the governments may lawfully impose to promote the larger considerations of the public good and international peace.
The suggestion that the conclusions of the Board of Arbitration may not be reached and announced in time to govern the conduct of the parties during the season of 1893 is, I think, fully provided against by the treaty itself.
His lordship is mistaken as to the time that has elapsed since the signing of the Delagoa Bay agreement with Portugal. It is not four years old, but less than one, the date of signing being June 13, 1891.
If the present treaty is promptly ratified and exchanged our mutual interest would be an ample guaranty against delay. The President has found no obstacle in the way of such a consummation, except the belief now unfortunately very prevalent here that the refusal of Great Britain to agree to the preservation of the status quo of the property during the Arbitration, and her insistence that pelagic sealing shall go on, to the injury, if not destruction, of our rights, largely defeats the object of the treaty.
The President directs me to say, in conclusion, that the modus of last year is the least that this Government can accept. In reason, the restraints, after a treaty of arbitration, should be more absolute, not less. He does not desire to protract this discussion, and having now in the most friendly spirit submitted the considerations which support the just demand of this Government that the property which is the subjert of an agreed arbitration shall not be subject to spoliation pending the arbitration, he expresses the hope that Lord Salisbury will give a prompt and friendly assent to renew the modus.
The President will hear with regret that Her Majesty's Government continues to assert a right to deal with this subject precisely as if no provision had been made for a settlement of the dispute; and, in that event, this Government, as has already been pointed out, will be compelled to deal with the subject upon the same basis, and to use every means in its power to protect from destruction or serious injury property and jurisdictional rights which it has long claimed and enjoyed.
ị have the honor to be, with the highest consideration, sir, your obedient servant,
WILLIAM F. WIARTON,
Sir Julian Pauncefote to Mr. Wharton.
WASHINGTON, March 26, 1892. SIR: I have the honor to inform you that I have received the reply of Her Majesty's Government to the note which you addressed to me on the 22d instant, by direction of the President, on the subject of the renewal of the modus vivendi in Behring Sea during the approaching fur-seal fishing season.
The Marquis of Salisbury states that notice has been given to the owners of ships sailing for Behring Sea that both the agreements which are at present under discussion between Great Britain and the United States, that as to arbitration and that as to an immediate agreement, may affect the liberty of sealing in Behring Sea. They have, therefore, notice of their liability of possible interruption, and will sail subject to that notice. The question of time is not, consequently, urgent.
I am to request you to inform the President that Her Majesty's Government concur in thinking that when the treaty shall have been ratified there will arise a new state of things. Until is ratified their conduct is governed by the language contained in the note which I had the honor to address to Mr. Blaine on June 14, 1890. But, when ratified, both parties must admit that contingent rights have become vested in the other, which both desire to protect.
Her Majesty's Government think that the prohibition of sealing, if it stands alone, will be unjust to British sealers, if the decision of the Arbitrators should be adverse to the United States. They are, bowever, willing, when the treaty has been ratified, to agree to an arrangement similar to that of last year, if the United States Government will consent that the Arbitrators should, in the event of a decision adverse to the United States, assess the damages which the prohibition of sealing shall have inflicted on British sealers during the pendency of the Arbitration; and, in the event of a decision adverse to Great Britain, that they should assess the damages which the limitation of a slaughter shall, during the pendency of the Arbitration, have inflicted on the United States or its lessees.
As an alternate course, Her Majesty's Government are also willing, after the ratification of the treaty, to prohibit sealing in the disputed waters, if vessels be excepted from the prohibition which produce a certiticate that they have given security for such damages as the Arbitra. tors may assess in case of a decision adverse to Great Britain; the Arbitrators to receive the necessary authority in that behalf. In this case the restriction of the slaughter on the islands will not in point of equity be necessary.
Hler Majesty's Government are unable to see any other than one of
these two methods of restricting seal hunting in the disputed waters during the arbitration which will be equitable to both parties.
I have the honor to be, with the highest consideration, your most obedient humble servant,
JULIAN PAU'NCEFOTE. The Ilon. WILLIAM F. WHARTON, etc.
Sir Julian Pauncefote to Mr. Wharton.
Washington, March 26, 1892. SIR: With reference to my previous note of this date and to the discussions which have taken place regarding the claims of our respective Governments to compensation in relation to the fur-seal fishery in Behring Sea, I have been instructed by the Marquis of Salisbury to state that he is not prepared to admit, as he gathers that the President thinks, that Her Majesty's Government have objected to the Arbitrators having jurisdiction as to damages inflicted in the past by the party against whom the award is given. He only objected to make Her Majesty's Government liable for acts which they have not committed. His lordship is ready to consent to a reference on this point in the following terms:
“ That in case the Arbitrators shall decide in favor of the British Goyernment, that Government may ask them further to decide whether the United States Government have since 1885 taken.any action in Behring Sea directly inflicting a wrongful loss on British subjects; and if so, to assess the damage incurred thereby.
66 That in case the Arbitrators shall decide in favor of the United States Government, that Government may ask them to decide further whether the British Government have since 1885 taken any action in Behring Sea directly inflicting a wrongful loss on the United States or its lessees; and if so, to assess the damage incurred thereby.”
I have the honor to be with the highest consideration, sir, your most obedient humble servant,
JULIAN PAUNCEFOTE. The Hon. WILLIAM F. WIARTON, etc.