Mr. Wharton to Sir Julian Pauncefote.
Washington, June 25, 1891.
Sir: The correspondence between this Government and that of Her Majesty has happily resulted in an agreement upon the first five propositions, which are to constitute the basis of a proposed arbitration relating to the controversy which has arisen as to the respective rights of the two Governments in the Behring Sea. In the note of Lord Salisbury of the 21st of February last he states his objection to the sixth proposition, as presented in the letter of Mr. Blaine of December 17, 1890, in the following words:
The sixth question, which deals with the issues that will arise in case the controversy should he decided in favor of Great Britain, would, perhaps, more fitly form the substance of a separate reference. Her Majesty’s Government have no objection to referring the general question of a closed time to arbitration, or to ascertain by that means how far the enactment of such a provision is necessary for the preservation of the seal species; but such reference ought not to contain words appearing to attribute special and abnormal rights in the matter to the United States.
I am now directed by the President to submit the following, which he thinks avoids the objection urged by Lord Salisbury:
(6) If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of regulations for the proper protection and the preservation of the fur seal in, or habitually resorting to, the Behring Sea, the arbitrators shall then determine what concurrent regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such regulations should extend; and, to aid them in that determination, the report of the joint commission, to be appointed by the respective Governments, shall be laid before them, with such other evidence as either Government may submit. The contracting powers furthermore agree to cooperate in securing the adhesion of other powers to such regulations.
In your note of the 3d instant you propose, on behalf of Her Majesty’s Government, the following additional article:
It shall be competent to the arbitrators to award such compensation as in their judgment shall seem equitable to the subjects and citizens of either power who shall be shown to have been damnified in the pursuit of the industry of sealing by the action of the other power.
The President can not give his assent to this form of submitting the question of compensation. It entirely omits notice of the important fact that the Government of the United States, as the owner of the seal fisheries on the Pribyloff Islands, has interests which have been injuriously affected by the pelagic sealing, of which complaint has been made in this correspondence.
This Government has derived a very large annual income from this property, and this income has, in the opinion of the President, been very seriously impaired and imperiled by the destruction of the seal in the sea while passing to and from the breeding grounds on these islands. The Government of Her Majesty has directly interposed to support the Canadian sealers, and will not, the President assumes, desire to avoid responsibility for any damages which have resulted to the United States or to its citizens if it shall be found by the arbitrators that the pursuit of seals by these Canadian vessels in the sea was an infraction of the rights and an injury to the property of this Government. The proposal submitted by you distinctly limits the liability of Her Majesty’s Government, [Page 575] in case of a decision in favor of the United States, to compensation to the citizens of this country. It will be apparent to Lord Salisbury that whatever damages have resulted from pelagic sealing as pursued by vessels flying the British flag have accrued to the United States or to its lessees. The President does not doubt that the purpose of Her Majesty’s Government, in the proposal under discussion, was to secure to the party injured equitable compensation for injuries resulting from what may be found by the arbitrators to have been the unlawful and injurious act of either Government.
From the note of Lord Salisbury of February 21, to which reference has been made, I quote the following:
There is one omission in these questions which I have no doubt the government of the President will be very glad to repair, and that is the reference to the arbitrator of the question what damages are due to the persons who have been injured, incase it shall be determined by him that the action of the United States in seizing British vessels has been without warrant in international law.
I am directed by the President to propose the following seventh and final clause in the basis of arbitration:
(7) It shall be competent to the arbitrators to award such compensation as, in their judgment, shall seem equitable to the subjects or citizens of Great Britain whose vessels may have been seized by the United States in the Behring Sea, if such seizures shall be found by the arbitrators to have been unwarranted, and it shall also be competent to the arbitrators to award to the United States such compensation as, in their judgment, shall seem equitable for any injuries resulting to the United States or to the lessees from that Government of the privilege of taking seals on the Pribyloff Islands by reason of the killing of seals in the Behring Sea by persons acting under the protection of the British flag, outside of the ordinary territorial limits, and since the 1st day of January, 1886, if such killing shall be found to have been an infraction of the rights of the United States.
It being understood that an arrangement for a joint commission is to be made contemporaneously with the conclusion of the terms of arbitration, I am directed by the President to propose the following separate agreement:
Each Government shall appoint two commissioners to investigate conjointly with the commissioners of the other Government all the facts having relation to seal life in Behring Sea and the measures necessary for its proper protection and preservation. The four commissioners shall, so far as they may be able to agree, make a joint report to each of the two Governments; and they shall also report, either jointly or severally, to each Government on any points upon which they may be unable to agree. These reports shall not be made public until they shall be submitted to the arbitrators, or it shall appear that the contingency of their being used by the arbitrators can not arise.
I have, etc.,
Acting Secretary.