Mr. Uhl to Sir Julian Pauncefote.
Washington, May 10, 1895.
Excellency: On the 23d of January last the Secretary of State had the honor to address you an important communication1 respecting the President’s deep solicitude with regard to the future of the Alaskan seal herd and suggesting to Her Majesty’s Government that a commission [Page 611] be appointed on behalf of Great Britain, Russia, Japan, and the United States to investigate and report touching the effects of pelagic sealing and the proper measures needful to regulate such sealing so as to protect the herd from destruction and permit it to increase in such numbers as to permanently furnish an annual supply of skins; and, furthermore, proposing that during the deliberations of such a commission a modus vivendi be agreed upon extending the area embraced in the regulations of the Paris Tribunal along the line of the thirty-fifth degree of north latitude to the Asiatic shore, and absolutely prohibiting sealing in Bering Sea pending the report of such commission.
At the date of that proposition but little time remained available for reaching an agreement between the two Governments, parties to the Paris award, which could be made effectual during the present sealing season, and for obtaining the concurrence of the other Governments interested, Russia and Japan; and early action upon the subject was naturally expected. This Department is, however, yet without information as to whether Her Majesty’s Government is prepared to take effective steps as suggested to check the appalling diminution of the Alaskan seal herd within the area of the award and avert the imminent destruction of the important industries to which the seal fisheries give rise.
At this late day the proposition for a quadruple investigation and report can scarcely be executed during the present year, and while it remains a matter for urgent consideration in prevision of next year’s needs, the delay brings into more immediate and urgent prominence the second branch of the proposal, and especially the imperative need of agreeing upon the absolute closure of Bering Sea to pelagic sealing until the four Governments may reach a convenient accord on the general features of the problem.
Extended consideration of the subject, since Mr. Gresham’s note of January 23 was written, has not only confirmed the grave apprehensions then expressed, but has forced upon this Government the conviction that further suggestions designed to expand by mutual agreement the scope of the Paris award, in order to make it more effective for the purpose of preserving the fur-seal herd, are warranted by the information now in possession of this Government.
The sealing season of 1894 was the first during which the provisions of the Paris award were applicable, and the pelagic catch of seals, both without and within the area defined in the award, proved to have been the largest ever known.
The statistics of the seal catch, as estimated in another note addressed to you by the Secretary of State on the same day, January 23, are confirmed by later knowledge. Reliable information discloses that 138,323 skins taken by pelagic sealers in the North Pacific and in Bering Sea, from the American Russian, and Japanese herds during the season of 1894, were sold in London. Careful estimates show that about 3,000 were retained in the United States for dressing and dyeing, making a total of 141,323. To this should be added about 800 which were known to have been on a vessel believed to have been lost, making the total catch about 142,000, of which 56,686 were taken within the area covered by the Paris award.
The following table gives the number of skins taken by pelagic sealers within said area during the years 1890–1894, inclusive:
| 1890 | 40,809 | 1893 | 28,613 |
| 1891 | 45,941 | 1894 | 55,686 |
| 1892 | 46,642 |
It may be estimated within moderate bounds that these figures represent only about one-third of all the seals killed, the bodies of the greater part not being recovered.
An examination of these figures must satisfy the most skeptical mind that the fur-seal herd will be speedily exterminated unless the scope and the details of the award shall be supplemented by enlarged regulation.
So far as the articles of the award relating to the North Pacific Ocean, exclusive of Bering Sea, are concerned, whereby all seal fishing from May to August is forbidden, much good has been accomplished, and favorable results were apparent on the breeding islands early in the season. The fatal defect in the scope of the award, however, was in opening Bering Sea during August and September to pelagic sealing and prohibiting only the use of firearms. It has been claimed—and there is evidence in support of the claim—that the spear is as destructive in Bering Sea as the shotgun, and some experts believe that even greater destruction is accomplished by the use of the spear than by guns, for the reason that the noise of the latter frightens away many seals which may be easily killed while sleeping on the water by spearsmen. While the herd is traveling in the North Pacific Ocean, away from the islands, it is very difficult to kill seals with spears, as they are constantly swimming and rarely found asleep on the surface. In Bering sea, however, the females leave their pups on the islands and go out for a distance of 100 or 200 miles, far beyond the inhibited 60-mile zone, to feed. They are there found in large numbers asleep on the water and can easily be killed by the silent and skillful spearsman. The large number of pups found dead from starvation on the islands during the latter part of September and October, 1894 (12,000 by actual count on the accessible parts of the rookeries and 20,000 in all by careful estimates), shows the destructive effect of permitting any pelagic sealing whatever in Bering Sea.
With the closure of that sea to pelagic sealing, and with the enforcement of the closed season in the North Pacific Ocean as established by the award, it is believed that the seals would receive no more than a fair degree of protection, whereby seal fishing might continue to be profitable both on land and sea for a long time to come. Unless such a restriction in the scope of the award be made the fur seals will be exterminated for all commercial purposes within a very few years at the most, and the dependent industries be destroyed. These considerations, joined to the official figures of last season’s catch, which are now definitely known, fully bear out the wisdom and necessity of the proposals made in Mr. Gresham’s note of January 23, making it more than ever the President’s imperative duty to recall to the attention of Her Majesty’s Government the defects in the form and scope of the Paris award, and in the legislation thereunder for carrying out its provisions, especially that enacted by the British Government; and I am directed by the President to earnestly renew, through you, the endeavors already set on foot to secure by mutual arrangement appropriate legislation on both sides, in order that the object of the award—to wit, the preservation of the fur-seal fisheries for the mutual and lasting benefit of the citizens and subjects of the two countries—may be effectually accomplished.
The contention Her Majesty’s Government that regulations framed for the purpose of carrying out the award should be coextensive with and limited by the terms of the award would seem to be sound, but this circumstance makes it the more incumbent upon the two parties to consider [Page 613] certain aspects in which the award fails to provide for contingencies which one brief year’s experience has shown should be promptly met. No adequate remedy seems effective except through concurrent action, for Her Majesty’s Government, by insisting on following the strict terms of the award, only emphasizes the glaring defects therein and demonstrates the need of an agreement to cure them. One of the most radical infirmities of this character, so conspicuous as to amount to a miscarriage of the undoubted purpose of the award itself, is found in Article VI, which prohibits the use of firearms and explosives in fur-seal fishing, the only exception being shotguns when used outside of Bering Sea. This prohibition is directed simply against the use of these weapons for one particular purpose—that of killing fur seal—leaving the possession and use lawful for all other purposes, such as killing whales, walrus, sea otter, hair seal, and other animals found within Bering Sea.
Experience has shown it to be almost a practical impossibility to detect a sealing vessel in the act of using firearms for this one prohibited purpose. Although the searching officer may be morally certain that firearms have been used, and may properly consider the mere presence of firearms on the vessel, if accompanied with bodies of seals, seal skins, or other suspicious evidence, sufficient justification (even apart from the provisions of section 10 of the act of Congress of April 6, 1894, which is applicable only to American vessels) for the seizure of such a vessel, it must be apparent that in proceedings for condemnation brought in a court thousands of miles away from the place of seizure it will be almost impossible to secure conviction and forfeiture on the ground of illegal use of weapons. Furthermore, under the procedure necessarily following the seizure of a British vessel the United States officer delivers the vessel, with such witnesses and proof as he can procure, to the senior British naval officer at Unalaska. At the trial no representative of our Government is present, and the British Government must conduct the prosecution and must trust to such proofs and witnesses as the American officer could collect and furnish at the time. Under such circumstances forfeiture of the vessel could not be secured except in the clearest cases of guilt.
The prohibition of the use of firearms in seal fishing in Bering Sea can be effectually accomplished only by prohibiting the possession of firearms in that sea adapted to the killing of seals.
The provision of section 10 of the act of Congress of April 6, 1894, by which a presumption of a legal use from the possession of implements forbidden then and there to be used is raised, aids materially the enforcement of the award in the case of American vessels, to which, as I have said, our act alone applies. It is greatly to be regretted that no equivalent provision is found in the British act of Parliament enacted April 18, 1894, for carrying out said award; and in this connection it is significant that in the prior act carrying out the modus vivendi of June 15, 1891, for the prohibition of all sealing in Bering Sea (54 and 55 Victoria, chap. 19), a provision similar to that in the act of Congress above cited was inserted as follows:
If a British ship is found within Bering Sea having on board thereof fishing or shooting implements or seal skins, or bodies of seals, it shall lie on the owner or master of such ship to prove that the ship was not used or employed in contravention of this act.
The principle thus enunciated is so evidently just and necessary that it is not easy to understand why the latter British act, legislating upon the same subject, should have contained no similar provision in terms conforming to the intendment of the award. The Secretary of the [Page 614] Treasury is of the opinion that although an amendment bringing the present British act into harmony with the prior act and with the American statute in this regard would render the task of enforcing the award much easier, and give more effectual results, the most satisfactory amendment would consist in common legislation rendering a vessel subject to forfeiture if found in Bering Sea with firearms on board adapted to the killing of seal.
It should further be provided by concurrent legislation that sealing vessels having implements or seal skins on board desiring to traverse the area covered by the award during the closed season if licensed, and during any season if unlicensed, should have such implements duly sealed and their catch noted on the log book (a privilege now accorded at the option of the master under the regulations of 1895, Article IV), under the penalty of forfeiture for violation of this privilege.
This privilege, however, as above stated, should not be accorded to vessels having firearms in Bering Sea.
It is further to be noted that under the British act of Parliament the provisions of the merchant shipping act (1854), with respect to official logs (including the penal provisions) are made applicable to sealing vessels. Said penal provisions, however, do not appear in the schedule attached to the copy of the act in the possession of the Department.
I have therefore to request that you will ascertain and inform me whether such penalties include the forfeiture of the vessel and cargo. Section 8 of the act of Congress expressly provides that any violation of the award or regulations will render the vessel and cargo liable to forfeiture. It is feared that because of the specific reference in the British act to the penal provisions of the merchant shipping act of 1854 as to official logs the failure of a vessel to keep log entries might not bring her within the general liability to forfeiture contained in the British act unless said merchant shipping act, now made a part thereof, contains similar provisions. During the past season log-book entries were duly made by United States sealing vessels in Bering Sea and were transmitted to Congress.
The Department is also informed that similar entries were made by British vessels in Bering Sea, which entries have been duly transmitted by the British Government. Many vessels, however, had cleared for the coasts of Japan and Russia as early as January, long before the passage of either the act of Congress of April 6, 1894, or the act of Parliament of April 18, 1894. Inasmuch as the award was not self operative and contained no penalties for its violation, the Treasury Department considered that the penalties provided in the subsequent legislation were not retroactive, and could not properly be applied to the failure to make the log entries required by the award before the passage of such legislation. Entry was, therefore, permitted for the catch of seals on receipt of the master’s oath that he cleared in ignorance of the provisions as to log-book entries. During the coming season collectors have been instructed rigidly to enforce the law as to log-book entries; and the exact status of the British law, therefore, becomes of great importance, so that an early answer to the present inquiry is very desirable.
While upon this subject of so amending the concurrent legislation of the two countries as to secure uniformity, I may invite attention to the fact that under the British act it is nowhere made the duty of the British naval officers to seize ships when found in violation of the law. Section 11 of the United States act imposes that duty on United States officers duly designated by the President. You will recall that Mr. Gresham adverted to this point in his note to you of April 10, 1894; [Page 615] and in your reply of April 11 you observed that, in your opinion, the word “may” would be construed as imperative and that, in any case, the instructions to the naval officers would probably remove all doubt on the point. It is now submitted, however, that this detail is too important to be left to mere administrative interpretation of a statute which in terms omits to prescribe this most essential duty; and in the judgment of the President this discrepancy in the concurrent legislation of the two countries should no longer continue.
Besides advancing these considerations in regard to the concurrent legislation for regulating sealing in the North Pacific and Bering Sea, the Secretary of the Treasury has asked me to ascertain, through you, whether during the past season the British Government has employed inspectors to verify the log-book entries of British vessels as to the number and sex of seal skins landed, in like manner as provided by the legislation of this country. All skins entered during the past season at United States ports, except Port Townsend, were duly examined by expert inspectors as to number and sex. By an error, however, the skins entered at Port Townsend, although duly examined and counted, were not classified as to sex.
The Secretary of the Treasury further suggests that the British Government be requested to consent to the stationing of United States inspectors at British Columbian ports for the purpose of verifying said log entries of British vessels and examining the skins as to sex, reciprocally according the British Government a like privilege in United States ports. I have, therefore, the honor to make such a request, and to invite as early a response thereto as may be practicable.
In thus communicating to you, by direction of the President, the proposals and suggestions of this Government, I desire, by way of recapitulation, to lay especial stress upon (1) the necessity of immediate agreement to close Bering Sea absolutely to pelagic sealers pending consideration of the proposition for extending the protective area of the North Pacific Ocean along the thirty-fifth parallel to the Asiatic coast, with the concurrence of Bussia and Japan; (2) the proposal for a modus vivendi whereby the effective concurrence of Great Britain, Russia, Japan, and the United States shall be lent to the protection of the fur-seal herds; (3) the appointment of a joint commission, as suggested in Mr. Gresham’s note of January 23, 1895, and (4) the advisability, if not the proven necessity, for amending the concurrent legislation of the two countries for the expansion and more precise definition of the scope of the Paris award, and the duty of the two Governments thereunder.
I have, etc.,
Acting Secretary.
- Printed in Foreign Relations, 1894, Appendix 1, p. 228.↩