Mr. Wharton to Sir Julian Pauncefote.
Washington, March 8, 1892.
Sir: I am directed by the President to say, in response to your two notes of February 29 and March 2, that he notices with the deepest regret the indisposition of Her Majesty’s Government to agree upon an effective modus for the preservation of the seals in the Behring Sea, pending the settlement of the respective rights of that Government and of the Government of the United States in those waters and in the fur-seal [Page 622] fisheries therein. The United States claims an exclusive right to take seals in a portion of the Behring Sea, while Her Majesty’s Government claims a common right to pursue and take the seals in those waters outside a 3-mile limit. This serious and protracted controversy, it has now been happily agreed, shall be submitted to the determination of a tribunal of arbitration, and the treaty only awaits the action of the American Senate.
The judgment of the arbitration tribunal can not, however, be reached and stated in time to control the conduct of the respective Governments and of their citizens during the sealing season of 1892; and the urgent question now is, what does good faith, to say nothing of international comity, require of the parties to the arbitration? If the contention of this Government is sustained by the arbitrators, then any killing of seals by the Canadian sealers during this season in these waters is an injury to this Government in its jurisdiction and property. The injury is not measured by the skins taken, but affects the permanent value of our property. Was it ever heard before that one party to such a controversy, whether a nation or an individual, could appropriate the whole or any part of the income and profits, much less the body of the contested property, pending the litigation without accountability? Usually a court of chancery would place a receiver or trustee in charge and hold the income of the property for the benefit of the prevailing party.
You say that Lord Salisbury, rejecting the illustration used by Mr. Blaine, “suggests that the case is more like one of arbitration respecting title to a meadow. While the arbitration is going on we cut the grass; and quite rightly, for the grass will be reproduced next year and so will the seals.” He can hardly mean by this illustration that, being in contention with a neighbor regarding the title to a meadow, he could by any precedent in the equity courts or by any standard of common honesty be justified in pocketing the whole or any part of the gains of a harvest without accountability to the adverse claimant whose exclusive title was afterwards established. It is no answer for the trespasser to say that the true owner will have an undiminished harvest next year. Last year’s harvest was his also. If by the use of the plural pronoun his lordship means that the harvest of the contested meadow is to be divided between the litigants, I beg to remind him that the title of the United States to the Pribyloff Islands has not yet been contested, and that our flag does not float over any sealing vessel. The illustration is inapt in the further particular that the seals not taken this year may be taken next, while the grass must be harvested or lost.
This Government has already been advised in the course of this correspondence that Great Britain repudiates all obligations to indemnify the United States for any invasion of its jurisdiction or any injury done to its sealing property by the Canadian sealers. The attempt to make a damage clause one of the articles of the arbitration agreement failed, because Her Majesty’s Government would not consent that the question of its liability to indemnify the United States for the injuries done by the Canadian sealers should be submitted. Two extracts from the correspondence will sufficiently recall the attitude of the respective Governments:
In my note of July 23, I said:
The President believes that Her Majesty’s Government may justly he held responsible, under the attendant circumstances, for injuries done to the jurisdictional or property rights of the United States by the sealing vessels flying the British flag, at least since the date when the right of these vessels to invade the Behring Sea and to pursue therein the business of pelagic sealing was made the subject of diplomatic intervention by Lord Salisbury. In his opinion justice requires that Her Majesty’s [Page 623] Government should respond for the injuries done by those vessels, if their acts are found to have been wrongful, as fully as if each had borne a commission from the Government to do the act complained of. The presence of the master, or even of a third person, under circumstances calculated and intended to give encouragement, creates a liability for trespass at the common law, and much more if his presence is accompanied with declarations of right, protests against the defense which the owner is endeavoring to make, and a declared purpose to aid the trespassers if they are resisted. The justice of this rule is so apparent that it is not seen how in the less technical tribunal of an international arbitration it could be held to be inapplicable.
The United States might well insist that Her Majesty’s Government should admit responsibility for the acts of the Canadian sealers, which it has so directly encouraged and promoted, precisely as in the proposal the United States admits responsibility for the acts of its revenue vessels. But, with a view to remove what seems to be the last point of difference in a discussion which has been very much protracted, the President is willing to modify his proposal and directs me to offer the following:
“The Government of Great Britain having presented the claims of its subjects for compensation for the seizure of their vessels by the United States in Behring Sea, and the Government of the United States having presented in its own behalf, as well as of the lessees of the privileges of taking seals on the Pribyloff Islands, claims for compensation by reason of the killing of seals in the Behring Sea by persons acting under the protection of the British flag, the arbitrators shall consider and decide upon such claims in accordance with justice and equity, and the respective rights of the high contracting powers, and it shall be competent for the arbitrators to award such compensation as, in their judgment, shall seem equitable.”
In your note of October 17, you say:
I regret to inform you that Her Majesty’s Government, after the fullest consideration, have arrived at the conclusion that this new clause could not properly be assented to by them. In their opinion it implies an admission of a doctrine respecting the liabilities of governments for the acts of their nationals or other persons sailing under their flag on the high seas for which there is no warrant in the law of nations. Thus it contains the following words:
“The Government of the United States having presented on its own behalf, as well as of the lessees of the privilege of taking seals on the Pribyloff Islands, claims for compensation by reason of the killing of seals in Behring Sea by persons acting under the protection of the British flag, the arbitrators shall consider and decide upon such claims.”
These words involve the proposition that Her Majesty’s Government are liable to make good losses resulting from the wrongful action of persons sailing outside their jurisdiction under the British flag. Her Majesty’s Government could not accept such a doctrine.
The President can not believe that, while holding this view of its accountability, the Government of Great Britain will, pending the arbitration, countenance, much less justify or defend, the continuance of pelagic sealing by its subjects. It should either assume responsibility for the acts of these sealers or restrain them from a pursuit the lawfulness of which is to be determined by the arbitration.
In your note of February 29 you state that Her Majesty’s Government has been informed by the British commissioners “that, so far as pelagic sealing is concerned, there is no danger of serious diminution of the fur-seal species as a consequence of this year’s hunting,” and upon this ground Lord Salisbury places his refusal to renew the modus of last year. His lordship seems to assume a determination of the arbitration against the United States and in favor of Great Britain, and that it is already only a question of so regulating a common right to take seals as to preserve the species. By what right does he do this? Upon what principle does he assume that if our claims are established, any diminution of the seals, whether serious or not, during this season, or, indeed, any taking of seals, is to be without recompense?
In the opinion of the President, it is not consistent with good faith that either party to an arbitration should, pending a decision, in any degree diminish the value of the subject of arbitration or take any profit from the use of it without an agreement to account.
[Page 624]Before an agreement for arbitration had been reached the prohibition of pelagic sealing was a matter of comity; from the moment of the signing of that agreement it became, in his opinion, a matter of obligation.
During the season of 1891, notwithstanding the restrictions resulting from the modus adopted, the Canadian sealers took in the Behring Sea alone 28,768 skins, or nearly four times as many as the restricted catch upon our island. This Government is now advised that fifty-one vessels from British Columbia and sixteen from Nova Scotia have sailed or are about to sail for the Behring Sea to engage in taking seals. This large increase in the fleet engaged makes it certain, in the absence of an effective restrictive agreement, that the destruction of seal life during this season by pelagic sealing will be unprecedented, and will, in the opinion of our commissioners, so nearly destroy the value of the seal fisheries as to make what will remain of so little value as scarcely to be a worthy subject for an international arbitration.
The proposition of Lord Salisbury to prohibit the killing of seals at sea “within a zone extending to not more than 30 nautical miles around the Pribyloff Islands” is so obviously inadequate and so impossible of execution that this Government can not entertain it. In the early part of the discussion of the subject of a modus for last year, this method was tentatively suggested among others in conversation between yourself and Mr. Blaine. But it was afterward in effect agreed by both Governments to be inadequate, and was not again referred to in the correspondence. In the memorandum furnished by you with your note of June 6, you say:
Lord Salisbury points out that if seal hunting be prohibited on one side of a purely imaginary line drawn in the open ocean, while it is permitted on the other side of the line, it will be impossible in many cases to prove unlawful sealing or to infer it from the possession of skins or fishing tackle.
This was said with reference to the water boundary of our purchase from Russia, but is quite as applicable to the 30-mile zone which he now suggests. The prevalence of fogs in these waters gives increased force and conclusiveness to the point made by his lordship against an imaginary water line. The President can not agree, now that the terms of arbitration have been settled, that the restrictions imposed shall be less than those which both Governments deemed to be appropriate when it was still uncertain whether an early adjustment of the controversy was attainable. He therefore hopes that Her Majesty’s Government will consent to renew the arrangement of last year with the promptness which the exigency demands and to agree to enforce it by refusing all clearances to sealing vessels for the prohibited waters and by recalling from those waters all such vessels as have already cleared.
This Government will honorably abide the judgment of the high tribunal which has been agreed upon, whether that judgment be favorable or unfavorable, and will not seek to avoid a just responsibility for any of its acts which by that judgment are found to be unlawful. But certainly the United States can not be expected to suspend the defense, by such means as are within its power, of the property and jurisdictional rights claimed by it, pending the arbitration, and to consent to receive them from that tribunal, if awarded, shorn of much of their value by the acts of irresponsible persons.
I have, etc.,
Acting Secretary.