Mr. Uhl to Sir Julian Pauncefote.
Washington, May 18, 1895.
Excellency: I have the honor to acknowledge receipt of your note of the 11th instant, communicating the declination of your Government to agree upon concurrent regulations for carrying out the provisions of the Paris award during the present season. The reason assigned therefor is that the provisions of the award relating to the special license and distinguishing flag are already provided for in the British order in council of February 2, 1895; and that concurrent regulations similar to those agreed upon for last season by the respective Governments as to outfit and arms of sealing vessels are not considered necessary for the present season, inasmuch as within the award area, and during the closed season, the possession by vessels of said outfit and arms is nowhere forbidden by the terms of the award. As regards the regulations of last season, you are instructed to inform me that in the opinion of Her Majesty’s Government “the arrangement in question has not in practice been worked for the protection of British sealers from interference, as Her Majesty’s Government had hoped would have been the case;” and in this connection specific reference is made to the seizure by United States officers of the British sealing vessels Wanderer and Favorite.
You further call attention to the statement drawn from the correspondence laid before Congress (Senate Ex. Doc. No. 67, pp. 341–386), that the United States naval officers who effected the seizures were under the erroneous impression that they were empowered to apply the legislation of the United States of April 6, 1894, to those vessels; whereas those officers have no authority to seize British vessels except under the British order in council of 1894 (No. 1) for offenses against the British act of Parliament of 1894, which embodies the Paris award regulations; and you therefore request that United States officers engaged in patrolling the award area during the present season be instructed accordingly.
Your present note is the first intimation received from Her Majesty’s Government that the jointly drafted concurrent regulations for the season of 1895 have not been accepted by your Government.
The original draft of those regulations was transmitted by the Secretary of State to you on December 15, 1894, for the approval of your Government. Subsequently, an understanding having been reached whereby you were to confer directly with the Treasury authorities on the subject, a number of interviews were had by you with Secretary Carlisle and Assistant Secretary Hamlin upon the matter. In the course thereof, as I am informed, you submitted a counter draft of proposed concurrent regulations containing certain suggested improvements over the drafts submitted by Mr. Carlisle; and after preliminary negotiations covering a considerable period, a final draft was agreed upon satisfactory to you and to him, the understanding being that one copy thereof should be submitted to the President for his approval and promulgation, while you, for your part, should forward a copy for the approval of Her Majesty’s Government, and for inclusion in an order in council shortly to be passed—you having stated that it would be necessary to embrace the regulations in a new order in council, for the reason that the last order bearing upon the subject was limited in its operations to the sealing season of 1894.
[Page 625]The President approved and signed these regulations on January 18, 1895, understanding that they had received your approval and would be forwarded by you to your Government as above stated.
While it was not understood that you had authority to bind your Government or had undertaken definitively to do so without a formal transmission of the proposed regulations, yet the Secretary of the Treasury had every reason to believe that the draft agreed upon by him and you would be promptly accepted by the British Government or its declination as promptly communicated. In point of fact this Government has had excellent reason to suppose that the draft regulations had been actually accepted as an arrangement made between the two Governments, its authority for this supposition being the formal terms of the British order in council mentioned in your note (Bering Sea order in council, 1895), which bears date February 2, 1895. On that date a copy of those proposed regulations must have been in the possession of Her Majesty’s Government, it having been given to you on the 17th of January for transmission.
The preamble of this order recites that:
Whereas arrangements have been made between Her Majesty’s Government and the Government of the United States for giving effect to articles 4 and 7 of the scheduled provisions, and it is expedieut that effect should be given to those arrangements by an order in council. * * *
The word “arrangements” as thus used can only refer to the proposed regulations for the season of 1895, which had been framed by yourself and Secretary Carlisle, for no other agreement or regulation than that contained in such regulations has been entered into this year between the respective Governments as to any of the provisions of the award, and the arrangements for the last season were obsolete and nonexistent, having been in terms limited to the sealing season of 1894. It may be suggested that the word “arrangements” in the order in council of February 2, 1895, can not refer to the draft of regulations approved January 18, 1895, by the President, for the reason that no specific mention is made in said order as to the provisions of said draft of regulations for securing under seal the outfit and arms of sealing vessels. The special license and distinguishing flag, however, were the only matters covered by said draft of regulations which depended, as regards British vessels, for their validity upon, and received their binding force from, said order in council.
It will be noted in this connection that the order in council of June 27, 1894, likewise contained no reference to the duty of securing the outfit and arms under seal, although the mutual agreement upon which said order and the regulations of 1894 were based contained a similar provision imposing upon sealers said duty.
That this word “arrangements” can only refer to the agreement or understanding between Secretary Carlisle and yourself upon which said regulations were based, is made clear by the use of the same word, in identical context, in the previous orders in council of April 30 and June 27, 1894, respectively. In the first of these it was recited that:
Until arrangements for giving further effect to articles 4 and 7 of the said scheduled provisions shall have been made between Her Majesty and the Government of the United States, the following provisions should have effect. * * *
Subsequently to this order, to wit, on May 4, 1894, the President of the United States signed and approved regulations for the season of 1894, based upon an agreement made by yourself and Mr. Gresham for the respective Governments, articles 7 and 8 of which provided for a special license and distinguishing flag.
[Page 626]The order in council following, on June 27, 1894, contains this significant language:
And whereas arrangements have been made for giving further effect to the said articles and for regulating during the present year the fishing for fur seals in accordance with the said scheduled provisions. * * *
It is thus seen that the first order in council, of April 30, 1894, recites the pendency of arrangements, while the second order, of June 27, 1894, recites such arrangements (of May 4, 1894) as having been actually made; and therefore the word “arrangements,” as severally used in those orders, could only mean the preliminary agreement upon which was based the regulations of 1894, which agreement, as above stated, was expressly limited by its terms to the sealing season of 1894, and was nonexistent when the present order was issued.
By every sound principle of interpretation and precedent, therefore, this Government was entitled to regard the reference to “arrangements” in the order in council of February 2, 1895, as relating only to the agreement reached in the draft regulations furnished to you on January 17, 1895, and transmitted to your Government, which regulations were approved by the President, as above stated, and to hold that Her Majesty’s Government, by necessary implication, had ratified and recognized as subsisting the proposed regulations submitted as above, by the passage of the order in council of February 2, 1895. We are, however, constrained to accept your note of the 11th instant as a formal notification of the nonconcurrence in the same by Her Majesty’s Government.
It is my duty to express the deep regret of the President that the British Government should have communicated its declination at this late period of the season, after our consuls have been instructed and the patrolling fleet of the United States has sailed under orders based on the legitimate assumption that the privilege of sealing afforded by said regulations was to be accorded during the present season, as during last season, to British as well as to American vessels.
It is further to be regretted that what appears to be the chief reason assigned for this declination, namely, the seizure of the steamers Wanderer and Favorite, should not have prompted a timely refusal to enter upon negotiations for regulations, thus saving much trouble and uncertainty which now appear to be unavoidable.
The British fleet engaged in sealing last season numbered 60 vessels; of these the Wanderer and Favorite were the only ones seized by United States officers, and these seizures were made because of a direct infraction of the regulations of 1894, agreed upon, as above stated, by both Governments. The Wanderer was seized June 9, 1894, and the Favorite August 7, 1894. The master of the Wanderer, before the seizure, stated to the boarding officer that all his arms were sealed up, which upon examination was found not to be true. No objection has ever been made by Her Majesty’s Government because of these seizures until the present time.
The case of the Wanderer was made the occasion of the Department’s note to Mr. Goschen of November 19, 1894, communicating the full report of the naval officer in command. That seizure, like that of the Favorite, also, was made because of the direct infraction of the regulations of 1894, agreed upon as above stated by both Governments; and that being the case it is, I submit, quite immaterial whether the United States officer effecting the seizure was under an erroneous impression that the United States act of April 6, 1894, was concurrently applicable to the case.
[Page 627]No correspondence whatever between the two Governments appears of record with regard to the seizure of the Favorite, but the date upon which it was effected—August 27, 1894—justifies the supposition that the facts in regard thereto, as were certainly the facts in regard to the seizure of the Wanderer, were in possession of Her Majesty’s Government during all the preliminary negotiations between yourself and Secretary Carlisle from December 15, 1894, to January 17, 1895; and this Government is at this late date for the first time informed that those seizures are made the ground for the refusal by Her Majesty’s Government to adopt concurrent regulations for 1895.
In view of your present communication on May 11, it is presumed that no British sealing vessel now at sea has applied or will hereafter apply for the privilege of having its outfit and arms sealed up. The officers of the United States patrolling fleet will, however, be instructed that the failure of a British vessel to have her outfit and arms secured under seal is not a violation of the Paris award, or of the British act of Parliament. They will also be instructed to refuse to grant this privilege in the future to British vessels. Similar instructions will at once be given to our consuls in Japanese and British Columbia ports.
Notwithstanding this, I have the honor to request, through you, that Her Majesty’s Government shall notify its officers engaged in patrolling the award area to seal up the outfit and arms of American vessels applying for this privilege, in accordance with sections 4,5, and 6 of the regulations promulgated by the President, January 18, 1895.
With further reference to the precise complaint which your present note of May 11 appears to convey concerning the seizures of the Wanderer and Favorite, and your request based thereon, I beg to further inform you that the instructions already given to the United States officers as to patrolling the award area during the present season will not admit of any other doubt as to the proper scope and limitation of the act of Congress approved April 6, 1894.
I have, etc.,
Acting Secretary.