The Marquis of Salisbury to Sir Julian Pauncefote.
[Left at the Department of State on June 5 by Sir Julian Pauucefote.]
Sir: I received in due course your dispatch No. 9, of the 23d January, inclosing copy of Mr. Blaine’s note of the 22d of that month, in answer to the protest made on behalf of Her Majesty’s Government on the 12th October last, against the seizure of Canadian vessels by the United States revenue-cutter Rush in Behring Sea.
The importance of the subject necessitated a reference to the Government of Canada, whose reply has only recently reached Her Majesty’s Government. The negotiations which have taken place between [Page 420] Mr. Blaine and yourself afford strong reason to hope that the difficulties attending this question are in a fair way towards an adjustment which will be satisfactory to both Governments. I think it right, however, to place on record, as briefly as possible, the views of Her Majesty’s Government on the principal arguments brought forward on behalf of the United States.
Mr. Blaine’s note defends the acts complained of by Her Majesty’s Government on the following grounds:
- 1.
- That “the Canadian vessels arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos mores—a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States.”
- 2.
- That the fisheries had been in the undisturbed possession and under the exclusive control of Russia from their discovery until the cession of Alaska to the United States in 1867, and that from this date onwards until 1886 they had also remained in the undisturbed possession of the United States Government.
- 3.
- That it is a fact now held beyond denial or doubt that the taking of seals in the open sea rapidly leads to the extinction of the species, and that therefore nations not possessing the territory upon which seals can increase their numbers by natural growth should refrain from the slaughter of them in the open sea.
Mr. Blaine further argues that the law of the sea and the liberty which it confers do not justify acts which are immoral in themselves, and which inevitably tend to results against the interests and against the welfare of mankind; and he proceeds to justify the forcible resistance of the United States Government by the necessity of defending not only their own traditional and long-established rights, but also the rights of good morals and of good government the world over,
He declares that while the United States will not withhold from any nation the privileges which they demanded for themselves, when Alaska was part of the Russian Empire, they are not disposed to exercise in the possessions acquired from Russia any less power or authority than they were willing to concede to the Imperial Government of Russia when its sovereignty extended over them. He claims from friendly nations a recognition of the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations always conceded to the Empire of Russia.
With regard to the first of these arguments, namely, that the seizure of the Canadian vessels in the Behring’s Sea was justified by the fact that they were “engaged in a pursuit that is in itself contra bonos mores—a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States,” it is obvious that two questions are involved: first, whether the pursuit and killing of fur-seals in certain parts of the open sea is, from the point of view of international morality, an offense contra bonos mores; and secondly, whether, if such be the case, this fact justifies the seizure on the high seas and subsequent confiscation in time of peace of the private vessels of a friendly nation.
It is an axiom of international maritime law that such action is only admissible in the case of piracy or in pursuance of special international agreement. This principle has been universally admitted by jurists, and was very distinctly laid down by President Tyler in his special message to Congress, dated the 27th February, 1843, when, after acknowledging the right to detain and search a vessel on suspicion of piracy, he goes on to say: “With this single exception, no nation has, [Page 421] in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, outside the territorial jurisdiction.”
Now, the pursuit of seals in the open sea, under whatever circumstances, has never hitherto been considered as piracy by any civilized state. Nor, even if the United States had gone so far as to make the killing of fur-seals piracy by their municipal law, would this have justified them in punishing offenses against such law committed by any persons other than their own citizens outside the territorial jurisdiction of the United States.
In the case of the slave trade, a practice which the civilized world has agreed to look upon with abhorrence, the right of arresting the vessels of another country is exercised only by special international agreement, and no one government has been allowed that general control of morals in this respect which Mr. Blaine claims on behalf of the United States in regard to seal-hunting.
But Her Majesty’s Government must question whether this pursuit can of itself be regarded as contra bonos mores, unless and until, for special reasons, it has been agreed by international arrangement to forbid it. Fur-seals are indisputably animals ferœ naturœ, and these have universally been regarded by jurists as res nullius until they are caught; no person, therefore, can have property in them until he has actually reduced them into possession by capture.
It requires something more than a mere declaration that the Government or citizens of the United States, or even other countries interested in the seal trade, are losers by a certain course of proceeding, to render that course an immoral one.
Her Majesty’s Government would deeply regret that the pursuit of fur-seals on the high seas by British vessels should involve even the slightest injury to the people of the United States. If the case be proved, they will be ready to consider what measures can be properly taken for the remedy of such injury, but they would be unable on that ground to depart from a principle on which free commerce on the high seas depends.
The second argument advanced by Mr. Blaine is that the “fur-seal fisheries of Behring Sea had been exclusively controlled by the Government of Russia, without interference and without question, from their original discovery until the cession of Alaska to the United States in 1867,” and that “from 1867 to 1886 the possession, in which Russia had been undisturbed, was enjoyed by the United States Government also without interruption or intrusion from any source.”
I will deal with these two periods separately.
First, as to the alleged exclusive monopoly of Russia. After Russia, at the instance of the Russian-American Fur Company, claimed in 1821 the pursuits of commerce, whaling, and fishing from Behring Straits to the 51st degree of north latitude, and not only prohibited all foreign vessels from landing on the coasts and islands of the above waters, but also prevented them from approaching within 100 miles thereof, Mr. Quincy Adams wrote as follows to the United States minister in Russia:
The United States can admit no part of these claims; their right of navigation and fishing is perfect, and has been in constant exercise from the earliest times throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions.
That the right of fishing thus asserted included the right of killing fur-bearing animals is shown by the case of the United States brig Loriot. That vessel proceeded to the waters over which Russia claimed [Page 422] exclusive jurisdiction for the purpose of hunting the sea-otter, the killing of which is now prohibited by the United States statutes applicable to the fur-seal, and was forced to abandon her voyage and leave the waters in question by an armed vessel of the Russian navy. Mr. Forsyth, writing on the case to the American minister at St. Petersburg on the 4th of May, 1837, said:
It is a violation of the rights of the citizens of the United States, immemorially exercised and secured to them as well by the law of nations as by the stipulations of the first article of the convention of 1824, to fish in those seas, and to resort to the coast for the prosecution of their lawful commerce upon points not already occupied.
From the speech of Mr. Sumner when introducing the question of the purchase of Alaska to Congress, it is equally clear that the United States Government did not regard themselves as purchasing a monopoly. Having dealt with fur-bearing animals, he went on to treat of fisheries, and after alluding to the presence of different species of whiles in the vicinity of the Aleutians said: “No sea is now mare clausum; all of these may be pursued by a ship under any flag, except directly on the coast or within its territorial limit.”
I now come to the statement that from 1867 to 1886 the possession was enjoyed by the United States with no interruption and no intrusion from any source. Her Majesty’s Government can not but think that Mr. Blaine has been misinformed as to the history of the operations in Behring Sea during that period.
The instances recorded in Inclosure 1 in this dispatch are sufficient to prove from official United States sources that from 1867 to 1886 British vessels were engaged at intervals in the fur-seal fisheries with the cognizance of the United States Government. I will here by way of example quote but one.
In 1872 Collector Phelps reported the fitting out of expeditions in Australia and Victoria for the purpose of taking seals in Behring Sea, while passing to and from their rookeries on St. Paul and St. George Islands, and recommended that a steam-cutter should be sent to the region of Ounimak Pass and the islands of St. Paul and St. George.
Mr. Secretary Boutwell informed him, in reply, that he did not consider it expedient to send a cutter to interfere with the operations of foreigners, and stated: “In addition, I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attempt within a marine league of the shore.”
Before leaving this part of Mr. Blaine’s argument, I would allude to his remark that “vessels from other nations passing’ from time to time through Behring’s Sea to the Arctic Ocean in pursuit of whales have always abstained from taking part in the capture of seals,” which he holds to be proof of the recognition of rights held and exercised first by Russia and then by the United States.
Even if the facts are as stated, it is not remarkable that vessels pushing on for the short season in which whales can be captured in the Arctic Ocean, and being fitted specially for the whale fisheries, neglected to carry boats and hunters for fur-seals or to engage in an entirely different pursuit.
The whalers, moreover, pass through Behring Sea to the fishing grounds in the Arctic Ocean in April and May as soon as the ice breaks up, while the great bulk of the seals do not reach the Pribylov Islands till June, leaving again by the time the closing of the ice compels the whalers to return.
[Page 423]The statement that it is “a fact now held beyond denial or doubt that the, taking of seals in the open sea rapidly leads to their extinction” would admit of reply, and abundant evidence could be adduced on the other side. But as it is proposed that this part of the question should be examined by a committee to be appointed by the two Governments, it is not necessary that I should deal with it here.
Her Majesty’s Government do not deny that if all sealing were stopped in Behring Sea except on the islands in possession of the lessees of the United States, the seal may increase and multiply at an even more extraordinary rate than at present, and the seal fishery on the island may become a monopoly of increasing value; but they can not admit that this is sufficient ground to justify the United States in forcibly depriving other nations of any share in this industry in waters which, by the recognized law of nations, are now free to all the world.
It is from no disrespect that I refrain from replying specifically to the subsidiary questions and arguments put forward by Mr. Blaine. Till the views of the two Governments as to the obligations attaching, on grounds either of morality or necessity, to the United States Government in this matter, have been brought into closer harmony, such a course would appear needlessly to extend a controversy which Her Majesty’s Government are anxious to keep within reasonable limits.
The negotiations now being carried on at Washington prove the readiness of Her Majesty’s Government to consider whether any special international agreement is necessary for the protection of the fur-sealing industry. In its absence they are unable to admit that the case put forward on behalf of the United States affords any sufficient justification for the forcible action already taken by them against peaceable subjects of Her Majesty engaged in lawful operations on the high seas.
“The President,” says Mr. Blaine, “is persuaded that all friendly nations will concede to the United States the same rights and privileges on the lands and in the waters of Alaska which the same friendly nations always conceded to the Empire of Russia.”
Her Majesty’s Government have no difficulty in making such a concession. In strict accord with the views which, previous to the present controversy, were consistently and successfully maintained by the United States, they have, whenever occasion arose, opposed all claims to exclusive privileges in the non-territorial waters of Behring Sea. The rights they have demanded have been those of free navigation and fishing in waters which, previous to their own acquisition of Alaska, the United States declared to be free and open to all foreign vessels.
That is the extent of their present contention and they trust that, on consideration of the arguments now presented to them, the United States will recognize its justice and moderation.
I have to request that you will read this dispatch to Mr. Blaine and leave a copy of it with him should he desire it.
I am, etc.,