Mr. Phelps to Mr. Bayard.

No. 825.]

Sir: Referring to the subject of the Alaskan seal fisheries, and to the previous correspondence on the subject between the Department and this legation, I have now the honor to acquaint you with the purport of a conversation which I held with Lord Salisbury in regard to it on the 13th of August.

Illness, which has incapacitated me from business during most of the interval, has prevented my laying it before you earlier.

One of the objects of the interview I then sought with his lordship was to urge the completion of the convention between the United States, Great Britain, and Russia, which under your instructions had previously been the subject of discussion between the secretary for foreign affairs, the Russian ambassador, and myself. This convention, as I have before advised you, had been virtually agreed on verbally, except in its details; and the Russian as well as the United States Government were desirous to have it completed. The consideration of it had been suspended for communication by the British Government with the Canadian Government, for which purpose an interval of several months had been allowed to elapse. During this time the attention of Lord Salisbury had been repeatedly recalled to the subject by this legation, and on those occasions the answer received from him was that no reply from the Canadian authorities had arrived.

In the conversation on the 13th, above mentioned, I again pressed for the completion of the convention, as the extermination of the seals by Canadian vessels was understood to be rapidly proceeding. His lordship in reply did not question the propriety or the importance of taking measures to prevent the wanton destruction of so valuable an industry, in which, as he remarked, England had a large interest of its own, but said that the Canadian Government objected to any such restrictions, and that, until its consent could be obtained. Her Majesty’s Government was not willing to enter into the convention; that time would be requisite to bring this about, and that meanwhile the convention must wait.

It is very apparent to me that the British Government will not execute the desired convention without the concurrence of Canada. And it is equally apparent that the concurrence of Canada in any such arrangement is not to be reasonably expected. Certain Canadian vessels are making a profit out of the destruction of the seal in the breeding season in the waters in question, inhuman and wasteful as it is. That it leads to the speedy extermination of the animal is no loss to Canada, because no part of these seal fisheries belong to that country; and the only profit open to it in connection with them is by destroying the seal in the open sea during the breeding time, although many of the animals [Page 531] killed in that way are lost, and those saved are worth much less than when killed at the proper time.

Under these circumstances, the Government of the United States must, in my opinion, either submit to have these valuable fisheries destroyed or must take measures to prevent their destruction by capturing the vessels employed in it. Between these alternatives it does not appear to me there should be the slightest hesitation.

Much learning has been expended upon the discussion of the abstract question of the right of mare clausum, I do not conceive it to be applicable to the present case.

Here is a valuable fishery, and a large and, if properly managed, permanent industry, the property of the nations on whose shores it is carried on. It is proposed by the colony of a foreign nation, in defiance of the joint remonstrance of all the countries interested, to destroy this business by the indiscriminate slaughter and extermination of the animals in question, in the open neighboring sea, during the period of gestation, when the common dictates of humanity ought to protect them, were there no interest at all involved. And it is suggested that we are prevented from defending ourselves against such depredations because the sea at a certain distance from the coast is free.

The same line of argument would take under its protection piracy and the slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that can not be allowed to be done on the open sea with impunity and against which every sea is mare clausum. And the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon the Canadian coasts could be destroyed by scattering poison in the open sea adjacent with some small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case? Yet that process would be no more destructive, inhuman, and wanton than this.

If precedents are wanting for a defense so necessary and so proper, it is because precedents for such a course of conduct are likewise unknown. The best international law has arisen from precedents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadequate rules.

Especially should there be no hesitation in taking this course with the vessels of a colony which has for three years harassed the fisheries of our country with constant captures of vessels engaged in no violation of treaty or legal rights. The comity of nations has not deterred Canada from the persistent obstruction of justifiable and legitimate fishing by American vessels near its coasts. What principle of reciprocity precludes us from putting an end to a pursuit of the seal by Canadian ships which is unjustifiable and illegitimate?

I earnestly recommend, therefore, that the vessels that have been already seized while engaged in this business be firmly held, and that measures be taken to capture and hold every one hereafter found concerned in it. If further legislation is necessary, it can doubtless be readily obtained.

There need be no fear but that a resolute stand on this subject will at once put an end to the mischief complained of. It is not to be reasonably expected that Great Britain will either encourage or sustain her colonies in conduct which she herself concedes to be wrong and which is detrimental to her own interests as well as to ours. More than 10000 people are engaged in London alone in the preparation of seal skins. [Page 532] And it is understood that the British Government has requested that clearances should not be issued in Canada for vessels employed in this business; but the request has been disregarded.

I have, etc.,

E. J. Phelps.