Mr. Wharton to Sir Julian Pauncefote .

Sir: I am directed by the President to say, in reply to your note of the 3d instant, conveying to the Government of the United States the response of Her Majesty’s Government to the proposal of Mr. Blaine for a modus vivendi, relating to the seal fisheries in Behring Sea during the present season:

First. In place of the first and second subdivisions of the agreement, as submitted to you, the President suggests the following:

(1)
The Government of Great Britain shall prohibit, until May, 1892, the killing of seals in all that part of the Behring Sea lying east, eastwardly, or southeastwardly of the line described in article 1 of the convention between the United States and Russia, of date March 30, [Page 560] 1867, and will promptly take such steps as are best calculated effectively to insure the observance of this prohibition by the subjects and citizens of Great Britain and all vessels flying its flag.
(2)
The Government of the United States shall prohibit, until May, 1892, the killing of seals in that part of Behring Sea above described, and on the shores and islands thereof, the property of the United States (in excess of 7,500 to be taken on the islands), and the Government of the United States will promptly take such steps as are best calculated effectually to insure the observance of this prohibition by the citizens of the United States and the vessels flying its flag.

These changes are suggested in order that the modus may clearly have the same territorial extent with the pending proposals for arbitration; that the stipulation for a prohibition of seal-killing upon the islands of the United States may rest upon its own order; and that the obligation of the respective Governments to give prompt and vigorous effect to the agreement may be more clearly apparent.

Second. The pertinency of the suggestion contained in the third subdivision of Lord Salisbury’s proposal is not apparent to the President. The statutes of the United States explicitly prohibit the landing of any vessels at the seal islands and the residence thereon of any person unless specifically authorized by the Secretary of the Treasury. It is therefore obvious that no consular functions could be discharged upon the islands by any representative of Her Majesty’s Government. The President regards this law as declaring an exception as to the residence of consuls within the meaning of article 4 of the convention of commerce and navigation of December 22, 1815, between Her Majesty’s Government and the United States. If the proposal is intended to relate to the islands of St. Paul and St. George, and has for its object access for such agents of the Government of Her Majesty as may be appointed to investigate facts that may be involved in the pending proposals for arbitration or in the hearing before the arbitrators, I am directed by the President to say that, in the event of an agreement for arbitration of the questions in dispute between Great Britain and the United States, he would be willing to extend reasonable facilities to Great Britain for the investigation at the islands of any facts involved in the controversy.

Third. The fourth clause of the proposal of Her Majesty’s Government, limiting the taking effect of the modus vivendi upon the assent of Russia, presents what seems to the President an insuperable difficulty, as an adherence to that suggestion by Her Majesty’s Government will, in his opinion, prevent the conclusion of any agreement, and will inevitably cause such a delay as to thwart the purposes which he must suppose both Governments have had in view. He is surprised that this result did not suggest itself to Lord Salisbury, and does not doubt that it will be apparent to him on a reexamination. I am also directed to remind you that the contention between the United States and Great Britain has been limited to that part of Behring Sea eastward of the line of demarcation described in our convention with Russia, to which reference has already been made, and that Russia has never asserted any rights in these waters affecting the subject-matter of this contention, and can not therefore be a necessary party to these negotiations, if they are not now improperly expanded. Under the statutes of the United States, the President is authorized to prohibit sealing in the Behring Sea within the limits described in our convention with Russia and to restrict the killing of seals on the islands of the United States; but no authority is conferred upon him to prohibit or make penal the taking of seals in the waters of Behring Sea westward of the line [Page 561] referred to or upon any of the shores or islands thereof. It was never supposed by anyone representing the Government of the United States in this correspondence, or by the President, that an agreement for a modus viviendi could be broader than the subject of contention stated in the correspondence of the respective Governments.

Negotiations for an arbitration have been proceeding between the United States and Great Britain, and, if these powers are competent to settle by this friendly method their respective rights and relations in the disputed waters upon a permanent basis, it would seem to follow that no question could arise as to their competency to deal directly with the subject for a single season. If Great Britain now insists upon impossible conditions, viz, that the conclusion of the modus vivendi is to be delayed until, and made contingent upon, the assent of Russia to stop the killing of seals on its own islands and in its own waters, and upon the exercise by the President of powers not conferred by law, this would be, in his opinion, a practical withdrawal by Great Britain from the negotiations for a modus vivendi. This he would very much regret, and he confidently hopes that a reconsideration will enable Lord Salisbury to waive the suggestion of Russia’s participation in the agreement and the inclusion of other waters than those to which the contention between the United States and Great Britain relates.

In case the terms of the modus vivendi are agreed upon, the President suggests that a provision, heretofore considered in another connection in the general correspondence, by which the naval or other duly commissioned officers of either party may arrest any offending vessel and turn it over at the nearest port of the nation whose flag it carries for such judicial proceedings as the law provides, should be incorporated here, the more effectually to carry out the stipulations of the respective Governments to prohibit their citizens and vessels from taking seals in the specified waters of Behring Sea.

Having, with a view to an exigency which he has several times caused to be explained to you, promptly responded to the suggestions of your note of yesterday, the President directs me to say that he will be pleased to have from Lord Salisbury a prompt response to these suggestions.

I am further directed by the President to say that your note of the same date referring to the conditions of the proposed arbitration, and stating the objection of Lord Salisbury to some points in the proposal of Mr. Blaine, will have the early attention of the President.

I have, etc.,

William F. Wharton,
Acting Secretary.