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Telegraphic correspondence respecting seal fishing in Behring's Sea during the season of 1892 Great Britain. Foreign Office 1892

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 Great Britain.
Telegraphic correspondence respecting
seal fishing in Behring's sea during
the season of 1892 ...      London.
    UNITED STATES.    No. 1 (1892).
SEASON  OF  1892.
Presented to both Houses of Parliament by Command of Her Majesty.
March 1892.
And to be purchased, either directly or through any Bookseller, from
and  SPOTTISWOODE. East Harding Street, Fleet Street,
32, Abingdon Street, Westminster, S,W.; or
JOHN MENZIES & Co., 12, Hanover Street, Edinburgh, an
90, West Nile Street, Glasgow; or
HODGES, FIGGIS, & Co., 104, Grafton Strmt, Dublin.
[0.—6633.]    Price 2d.
Sir J. Pauncefote' •
Feb.    1 1892
Modus vivendi pressed for by Mr. Blaine
To Sir J. Pauncefote..
Cannot express  opinion as to modus vivendi
until informed of its provisions.    Prohibition
of sealing does not seem necessary
Sir J. Pauncefote     ..
Mr.   Blaine   urges   consideration   of   modus
vivendi by Joint Commission.     Can necessary authority be given ?
To Sir J. Pauncefote..
1 a,,-,.,;
Joint Commission may consider modus vivendi,
but Her Majesty's Government must reserve
right of action
Lord Stanley of Preston
to Lord Knutsford
Canadian   Government   have   no  information
showing necessity  of  modus  vivendi.     If
Her Majesty's Government have such information, Canada would not object to zone of
25 miles if accompanied by restrictions as to
sealing on land
,Sir J. Pauncefote
Communication made to Mr. Blaine in sense of
No. 2.    Substance of his reply, pressing for
modus vivendi               ..                .              .,
Sends verbatim paragraph from Mr. Blaine's
note referred to in above .            •••"A^fllli
j fit
Opinion of British Commissioners as to modus
vivendi.   No serious- risk of depletion this
year, but limited temporary measure recom-
j  'mended           -.
To Sir J. Pauncefote..
Her Majesty's Government have no information to show necessity of modus vivendi two
years running.    Compromise   suggested  by
Behring's Sea Commissioners in No. 8 may
be proposed   ..
Sir J. Pauncefote      ..
Mr. Blaine learns that forty-six sealers have
cleared for Behring's Sea
Mar.   8,
Reply of United States' Governraent to proposal in No. 9.     Urges necessity for modus
vivendi, in order to preserve value of property
pending arbitration       ..              ..             ..
To Sir J. Pauncefote..
To repeat above to Canada
Sir G. Baden-Powell..
Expresses   opinion   that   renewal   of   modus
vivendi, thougli   not   necessary,   would   be
beneficial       ..
To Sir J. Pauncefote..
To repeat above to Canada
Answers No. 11.    Renewal of modus vivendi
may give ground of complaint by British
sealers if Arbitrators decide in their favour.
Suggests that sealing should be permitted to
vessels   giving   security  for   any  damages
awarded by Arbitrators..7»fe§|   ..
Lord    Knutsford     to
To direct port authorities on  Pacific to warn
Lord     Stanley    of
owners of vessels who have cleared or are
clearing for Behring's Sea that they do so at
their own risk                ..            ..             ..
Sir J. Pauncefote
Communication made to United States' Govern
ment in sense of No. 15.    Reply received,
stating that renewal of modus vivendi is the
least that, can be accepted, and that United
States'   Government   must   maintain   their
Two alternative  proposals by  Her Majesty's
To Sir J. Pauncefote..
Government a3 to the conditions on which
sealing might be prohibited this season
19          .,               „       ..
Proposed form of reference to Arbitrators of
question of damages
 Telegraphic Correspondence respecting Seal Fishing in Behftftfj$iB
Sea during the Season of 1892.
No-*• J&gfe^
Sir J. Pauncefote to the Marquis of Salisbury.—(Received February B.):.../A>!'
(Telegraphic.) Washington, February ^ 1892.
I EORWABDED, by bag, on the 5th instant, for your Lordship's ^pjoyal, a
draft Behring's Sea. Arbitration Convention' which has been proposed by Mr. Blaine.
The Joint Commission is embodied in it, and Mr. Blaine insists that the proceedings
of the Joint Commissioners shall be informal until it is signed. After much delay,
they meet to-day for the first time. A modus vivendi during the next fishery season
is pressed for by. Mr. Blaine, and he-hopes that Her Majesty's Government will be
prepared to put into force any Regulations which may be recommended ,^|Hfe^dmt
Commission for immediate application.
No. 2. ^®5S?%yw?
The Marquis of Salisbury to Sir J. Pauncefote.   '^^^^r^^^^S^
(Telegraphic.) Foreign Office, February 16, 1892.
THE draft Convention, inclosed in your despatch of the 5th instant, for referring
to arbitration the questions at issue between Her Majesty's Government and that of
the United States in connection with the seal fisheries in Behring's Sea, has been
referred to the Law Officers of the Crown, who have been asked to furnish a B-eporfc
on its terms at their earliest convenience.
Her Majesty's Government cannot express an opinion upon Mr.'Blaine's proposal
for a fresh modus vivendi during the present year until they are further informed
as to what the provisions of the modus vivendi are to be. It does not seem to be at
all necessary for the preservation of the fur-seal species that sealing should be entirely
prohibited.    ^fe$& W^^j^
No. 3.
Sir J. Pauncefote to the Marquis of Salisbury.—(Received February 18.)
(Telegraphic.) ;        Washington, February 17, 1892.
WITH reference to your Lordship's telegram of the 16th instant, Mr. Blaine
presses that the question of the modus vivendi should be considered and reported on by
the Joint Commission. I have informed him that, in my opinion, it has no power to
do so under its present mandate. "Will your Lordship inform me whether you are
willing that the necessary authority shall be given to the Commission, provided that
no obligations are imposed upon either Government by its report ?
B 2
 No. 4.
The Marquis of Salisbury to Sir J. Pauncefote.
(Telegraphic.) Foreign Office, February 18, 1892.
HER Majesty's Government have had under .their consideration Mr. Blaine's
proposal, reported in your telegram of yesterday, that the Joint Commission should
examine and report on the question of arranging a fresh modus vivendi during.the next
seal-fishing season in Behring's Sea.
.They have no objection to its being considered by the Commission whether, in
case the decision of the Arbitrators is not obtained before June on the points to be
submitted to them, any modus vivendi will be necessary, and, in that case, what should
be its provisions.
Her Majesty's Government must, however, reserve absolutely their right of action
in respect to any recommendations that may be made by the Commissioners.
In the present state of Parliamentary business, it seems unlikely that it would be
possible to obtain any fresh powers from Parliament.
"The Seal Eishery (Behring's Sea) Act, 1891," is still in force, but it only gives
power to prohibit sealing in Behring's Sea by Order in Council within limits and for
a period to be specified in the Order itself.
You should communicate to the Canadian Government the substance of your
telegram of the 17th instant, and of my reply.
No. 5.
Lord Stanley of Preston to Lord Knutsford.*—(Received February 24.)
(Telegraphic.) Ottawa, February 23, 1892.
WITH reference to your telegram of the 16th instant respecting the modus vivendi
in Behring's Sea, my Ministers do not possess any information to show that a modus
vivendi is necessary, or that it can be reasonably demanded. If, however, such
information has reached Her Majesty's Government, the Government of the Dominion
would not oppose such a modus vivendi provided that it were confined to a zone of
moderate limits, say, 25 miles, around the seal islands, and provided that it is
accompanied by stringent restrictions against the killing of seals on land, with better
supervision than during the modus vivendi of last year. Any arrangement of a
more extended character would involve compensation to the sealing-vessels, and for
this, of course, Canada could not be expected to make provision from the funds of the
No. 6.
Sir J. Pauncefote to the Marquis of Salisbury.—(Received February 25.)
(Telegraphic.) Washington, February 25, 1892.
BEHRING'S SEA modus vivendi.
With reference to your Lordship's telegram of the 16th instant, I have informed
Mr. Blaine that your Lordship could not give an opinion until you learned what
modus vivendi was proposed.
Following is the substance of a note which I have received in reply:—
The arbitration cannot possibly be concluded within the period of time which was
contemplated originally. The delays which have occurred have been. much more by
Great Britain than by the United States.
The President suggests that the modus should be similar in terms to that of last
| year, but that it should be more fully executed. More efficient measures on the part
of Her Majesty's Government will be practicable this year owing to the earlier date.
More seals than ever were taken last year, the departure of the sealing-vessels having
taken place previous to the agreement as to the modus vivendi. The prevention of
sealing in the North Pacific Ocean would be the most effective measure for Her
Majesty's Government to adopt. The large number of sealers preparing to go forth
from British Columbia would have to receive notice of this. The number of sealers is
* Repeated to Sir J. Pauncefote.
 reported to be larger than ever, and without regulations there will be an immense
destruction of females heavy with young.
Mr. Blaine urgently requests me to send the contents of the note to your Lordship
by telegraph. I have not yet mentioned the question of authorizing the Joint Commission to report on the modus vivendi on the conditions mentioned in your Lordship's
telegram of the 18th instant.
No. 7.
Sir J. Pauncefote to the Marquis of Salisbury.—(Received February 26.)
(Telegraphic.) Washington, February 26, 1892.
MY telegram of yesterday. ^^*'^^'Wil^'^pOSV:§
Mv. Blaine specially desires me to telegraph to your Lordship verbatim the following
paragraph contained in his note of the 24th instant-respecting the-modus-vivendi:—   I
"Holding an arbitration in regard to the rightful mode of taking seals, whi]L<e
their destruction goes forward, would be as if, while ah;v;the title to
timber-land were in progress, one party were to cut and remove all the. trees.''    ^/wsjiA:
He attaches much importance to this illustration.
.No..8..   *x
Sir J. Pauncefote to the Marquis of Salisbury.—(Received February 27.)
(Telegraphic.) Washington, February 26, 1892.
WITH reference to your Lordship's telegram of the 25th instant, the opinion of
the British Behring's Sea Commissioners as to a modus vivendi may be convenient to
your Lordship at this juncture.    They report as follows:—
1 We do not apprehend any. danger of serious further depletion of the fur-seals
resorting to. the Pribyloff Islands, as the result of hunting this year, unless- excessive
killing be permitted'on the breeding islands. As a judicious temporary measure of
precaution, however, for the season, and looking to permanent regulations for the
fishery as a whole being established in time for the season of 1893, we would recommend the prohibition of all killing at sea during this season, within a zone extending
to, say, not more than 30 nautical miles around the Pribyloff Islands, such prohibition
being conditional on the restriction to a number not to exceed 30,000 as a maximum
of the seals killed for any purpose on the islands."
I believe that the necessity for the total cessation of pelagic sealing will be insisted
on by the American Commissioners, if the question be referred to the Joint Commission;
but I submit that it is not necessary for us to go beyond the opinion of our own e
pending arbitration.
No. 9. C^WP|»I{'
The Marquis of Salisbury to Sir J. Pauncefote.  ^Jp||l|   srl^'V^
(Telegraphic.) Foreign Office, February.m,X89%.
HER Majesty's Government have had under their consideratio^^^A^eSr^lris P
the 25th and 26th instant, dealing with the question of the modus vivendi proposed by
Mr. Blaine for the approaching seal-hunting season.- r -7.r;7?zb:»   '
They cannot admit in any degree the correctness of Mr. Blaine's sta^||eni, that
there have been greater delays on the part of this country in the negotiations
for settling the Behring's Sea difficulty than there have been, on that of the United
States. ^^^^^-2fei^S|^s^fC ^~i l£
The consent of Her Majesty's Government was given last year to a modus .vivendi
solely on the ground that the preservation of the seal species in those f waters .was
supposed to be endangered unless some interval were given during which there, would
be a cessation of hunting both on land and sea. :%i^W^$$M$m$^
No information has reached Her Majesty's Government to lead them to suppose
that so drastic a measure is requisite for two successive seasons.
 Indeed, they are informed by the British members of the Joint Commission now
sitting at Washington that there is no danger, so far as the sea fishery is concerned, of
any serious diminution of the numbers of the fur-seal species as a consequence of
hunting them during the approaching season.
You are, however, authorized to offer to the Government of the United States the
compromise suggested by the British Commissioners, and reported in your telegram
of the 26th instant, viz., that during the present year the killing of seals at sea
should be prohibited within a given radius not exceeding 30 nautical miles round the
Pribyloff Islands, on condition that the number of seals to be killed for any purpose
on the islands shall be restricted to a definite amount, not exceeding 30,000 at the
utmost. A speedy decision is necessary, as we are informed that the sealing-vessels
are already leaving port.
Mr. Blaine's comparison of the present situation to a question of ownership of
timber-land does not appear to me to be applicable. The case resembles rather an
arbitration on the title to a meadow. While the arbitration is pending the party in
actual possession cuts the grass, and rightly so, inasmuch as next year the grass will
be reproduced.    This will equally be the case with the seals.
No. 10.
Sir J. Pauncefote to the Marquis of Salisbury.—(Received February 27.)
(Telegraphic.) Washington, February 26, 1892.
I AM requested by Mr. Blaine to inform your Lordship that he has received the
following Report from the United States' Consul at Victoria :-r~" Eorty-six sealing-
vessels cleared to date. Six or seven more to go. At the same date last year only
thirty-one cleared."
No. 11.
Sir J. Pauncefote to the Marquis of Salisbury.—(Received March 9.)
(Telegraphic.) Washington, March 8, 1892.
THE Acting Secretary of State has to-day delivered to me on behalf of Mr. Blaine
(who is unwell) a note on the subject of the renewal of the modus vivendi, with a
request from the President that I should telegraph it to your Lordship. I accordingly
send .a full summary :—
[The text having since been received, is given in full.]
Sir, Department of State, Washington, March 8, 1892.
I AM directed by the President to say, in response to your two notes of the
29th February and 7th March, 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's Sea pending the settlement of the respective rights of that
Government and of the Government of the United States in these waters and in the fur-
seal fisheries therein.
The United States claims an exclusive right to take seals in a portion of the
Behring's 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 cannot, 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 neighbour
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 Avhole 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
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 f
attitude of the respective Governments.
In my note of the 23rd July I said : "
Government may justly be held responsible
injuries done to the jurisdictional or property
vessels flying the British flag, at least since
invade the Behring's Sea and to pursue there
the   subject of  diplomatic   intervention   by
requires that Her Majesty's Government
vessels, if their acts are found to have
commission from the Government to d<
master, or even of a third pe
sufficiently recall the
encouragement, creates a liability for trespass £
his presence is accompanied with declarations
which  the   owner   is   endeavouring  to  make,
ers if they are resisted.    The justice of this nil
believes that Her Majesty's
attendant  circumstances,   for
ights of the United States by the sealing-
le date when the right of these vessels to
i the business of pelagic sealing was made
Lord Salisbury.    In  his  opinion,  justice
ihould respond for the injuries done by those
been wrongful, as fully as if each had borne a
the act complained of.    The presence of the
circumstances calculated and intended to give
nd much more, if
ght, protests against the defence
a  declared   purpose   to   aid   the
apparent that it is not seen
how, in the less technical Tribunal of an international arbitration, it could be held to be
" 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 j—
"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's Sea; and
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 Paibyloff Islands, claims for compensation by reason of the killing of seals in the Behring's 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
Powers, and it shall be competent for the Arbitrators to award
their judgment, shall seem equitable."
In your note of the 17th October you say :—
" I. regret to inform you that Her Majesty's Government
sideration, have arrived at the conclusion that this new clause
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
f the High Contracting
uch compensation as, in
after the fullest con-
could not properly be
under their flag on the high seas, for which there is no warrant in the law of nations.
Thus it contains the following words :—
Ic 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 Pribylyff Islands, claims for
compensation by reason of the killing of seals in Behring's Sea by persons acting under
the protection of the British flag, the Arbitrators shall consider and decide upon such
"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
The President cannot 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 the 29th February 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 favour 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 subjeet of arbitration or take any profit from
the use of it without an agreement to account.
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's Sea alone, 28,763 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's 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 international arbitration.
The proposition of Lord Salisbury, to prohibit the killing of seals at sea | withiu 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 cannot 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 afterwards, 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 the 6th June 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
This was said with reference to the water boundary of our purchase from Russia,
but it 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 cannot 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-Yessels for the
 prohibited waters, and by recalling from those waters all such vessels as have already:
This Government will honourably abide the judgment of the High Tribunal which
has been agreed upon, whether that judgment be favourable or unfavourable; 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 cannot be expected to suspend the
defence, 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, &c.
No. 12.
The Marquis of Salisbury to Sir J. Pauncefote.
(Telegraphic.) Foreign Office, March 9, 1892.
I SHOULD wish you to repeat to Lord Stanley your telegram of yesterday, about
Behring's Sea.
No. 13.
Sir G. Baden-Powell to the Marquis of Salisbury.—(Received March 10.)
(Telegraphic.) Washington, March 9, 1892.
WITH reference to the modus vivendi, I am of opinion that the taking of one
season's limited crop cannot injure the seal herd, but that, although not necessary, the
renewal of last year's prohibition and the 7,500 limit would be beneficial.
As the Arbitration Convention conditions ocean rights, I hope that the Canadian
Government has warned the British Columbian sealers that the ultimate ownership of
the seals taken this year in Behring's Sea depends upon the verdict of the Arbitrators.
. The alternatives for the sealers appear to be either to incur the expense of the
catch subject to this risk, or to forego, without compensation, one season's catch of, say,
20,000 (in Behring's Sea), on condition that 7,500 instead of 30,000 are taken on the
islands, increased numbers of seals in future seasons, and enhanced prices for this
spring, being also insured by such restrictions.
No. 14.
The Marquis of Salisbury to Sir J. Pauncefote.
(Telegraphic.) Foreign Office, March 15, 1892.
I SHOULD wish you to repeat to the Governor-General the telegram I have-
received from Sir G. Baden-Powell, dated 9th March.
No. 15.
The Marquis of Salisbury to Sir J. Pauncefote.
(Telegraphic.) Foreign Office, March 18, 1892.
HER Majesty's Government have had under their consideration, and have
consulted the Governor-General of Canada in regard to, the arguments in favour of a
renewal of the modus vivendi of last year, contained in Mr. Wharton's note of the
8th instant, the substance of which is given in your telegram of that day. The necessity
of reference to Ottawa has caused a delay in returning an answer.
The information which has reached Her Majesty's Government does not lead them
to believe that, in order to prevent an undue diminution of the number of fur-seals,
any necessity exists for the suspension of sealing for another year.
Beyond this question, however, I understand that the Government of the United
[298] C
 States consider that, should free sealing be permitted this year, and the United States'
claim to jurisdiction in Behring's Sea be upheld by the Arbitrators, they have.a right
to be protected from the loss that they will have suffered by the'sealing operations.
Her Majesty's Government do not dispute that there will be some foundation for
this contention when the Arbitration Agreement has been ratified.
But there is this defect in the prohibition of all sealing as a remedy, that if the
British contention [shall be upheld by the Arbitrators, there may be ground for
complaint on the part of the British sealers who will have been excluded from
Behring's Sea.
Further, no security exists that the Arbitrators will have given their decision
hefore the sealing season of 1893 arrives.
As you are aware, there has been an arbitration pending for four years between
this country, the United States, and Portugal, which is not yet approaching conclusion.
Serious damage would be caused to the sealing industry by a suspension of
hunting for a prolonged period.
As a more equitable arrangement, might it not be agreed that sealing-vessels shall
be at liberty to hunt in Behring's Sea on condition that security is given by the owner
of each vessel for satisfying the award of damages, if any, which the Arbitrators may
eventually pronounce ?
No. 16.
Lord Knutsford to Lord Stanley of Preston.
(Telegraphic.) Downing Street, March 18, 1892.
PLEASE direct the proper port authority at all harbours on the Pacific coast to
inform owners who are clearing or have cleared this year for Behring's Sea that Her
Majesty's Government and the United States' Government have agreed, subject to the
ratification of the Senate, to submit to arbitration the question whether sealers have
a right, without permission of the United  States, to seal  in the eastern half of
Behring's Sea, east of the Russian line, and that it is possible the sentence of the said
■ Tribunal may be given within the present fishing season.    Moreover, that both Her
' Majesty's Government and the United States' Government have made propositions for
.intermediate Regulations restraining the catch of seals in the said waters in case the
; said Arbitration Agreement should be ratified. Neither the Arbitration Agreement nor
; any intermediate Agreement have yet been definitively: adopted between the two
Governments, and whether they are adopted, and at what date, is necessarily a matter
... of uncertainty.    But notice is hereby given to all sealers proposing to seal in the said
waters that they do so at their own risk, and after warning of the liability to interruption  to which they may be  exposed   in   consequence  of   either of   the  said
Agreements. \
No. 17.
Sir J. Pauncefote to the Marquis of Salisbury.—(Received March 24.)
(Telegraphic.) Washington, March 23, 1892.
LAST night I received the reply of the United States' Government to my
note embodying the substance of your Lordship's telegram of the 18th instant on
the Behring's Sea question. The President requested that it should be telegraphed to
your Lordship.    The substance of it is as follows :—
The President had given immediate attention to my note, on account of the
extreme gravity and urgency of the matter, growing out of the fact that any modus
vivendi will be made ineffectual for the protection of"the interests of the United States
by much further protraction, and that, by reason of the impossibility of communicating with the Canadian sealers, immunity will be given to them. These vessels
have hastened their departure, as is known, in order to escape notice of any modus
vivendi being served upon them. Forty-seven vessels have already cleared, and if
' measures be not taken to stop them, they will pursue the slaughter of gravid female
seals to the very shores of the breeding islands. This is a crime against nature. If the
arbitration proceeds, the United States' Government expect to be able to show that the
larger_ percentage of. the .pelagic, qafefi consists $£ .female seals.. It .is surprising
and disappointing, in view of., the. above,that. your. Lordship should;,.assume. th$>
suspension of such sealing for Another ~yea^'^
t^e undue diminution ;- of; rthei , seal-lierds, and , tharty .you., rsi^ouM.,. insist tb&t it
should continue. If Her Majesty's Government pays so little regard to, the contentions
of the United-,mates' GFOV^n^ment as to refuse/to respect them for a.singje season, the
President is unable to understand for what reason it should have been proposed and.
agreed to by your Lordship to give them the status implied by the agreement to
submit them to arbitration. It was open to neither party to disregard the contention.' '
of- the other from the date of the signature of the above Agreement. It must be
assumed that the object which the two Governments had in view was the promotion of
good-will and peace but; if, while arbitration is pending, the subject-matter is dealt
with by either of them on the basis of its own contention only, this purpose is not
attained; on the contrary, and even if it should be possible under such circumstances,
to proceed with the arbitration, a new sense of injury and injustice is added.
If Her Majesty's Government proceeds this season on the basis of its contention as
to the rights of the Canadian sealers, no choice remains for the United States but to
proceed on the basis of their own confident contention, that pelagic sealing is an infraction
of its jurisdiction and proprietary fights.    This, in the  opinion  of the' P^eSM'SEt,"
constitutes  the   gravity   of   the   situation,   and   he   is not willing   to   be   found
responsible for such results as may follow from an insistance on the part of either
Government during this hunting season on the extreme rights claimed by it.   The two
great Governments interested in the question wrould be discredited in the eyes of the
world if the friendly adjustment of their difficulties, which is so nearly concluded,,
were to be thwarted, or even disturbed, on account of the paltry profits of a single
season.    But  if your Lordship persists in refusing to join  the Government of the ,
United States in stopping pelagic sealing promptly, and insists upon the maintenance
of free sealing for British subjects, the question no longer is one of pecuniary loss or
gain, but one of honour and self-respect, so far as it affects the Government of the
Unite 1 States.
The United States have proposed to take no profit from the island catch, notwithstanding that their right to take seals q^ the, islands is neither disputed nor involved
in the arbitration, and to engage that the take should be limited to the necessities of
the natives.    Whether with or without indemnity, they are unable to consent that, the
rights of British subjects in Behring's Sea, which are contested, shall continue to be
exercised while arbitration is pending.    The President finds it difficult to be!eve that,
your Lordship is serious in proposing that bonds against the injury which may be
inflicted on the jurisdiction or property of the United States shall be taken by the
United States' Government from the owners of about 100 Canadian vessels,'and he-—
must decline to. discuss a suggestion which only his respect for your Lordship, and his .
belief that the gravity of this discussion is fully realized by your Lordship, enables Mm
to treat seriously.
In order to secure the proposed bonds, the United States would have to pursue ,
owners  upon the sea, and as- the condition is to be that " any damages which the .
Arbitrators shall adjudge" shall be paid by the owners, while no power to adjudge ,
such damages is given to the Arbitrators by the Treaty, the transaction would be of
no value to the United States,, and without; risk to the owners.    But however adequate
the security offered, the United States' Government cannot consent to have its rights
impaired, pending their determination by a Tribunal of Arbitration.    The reference in
Mr. Blaine's last note to the inconsistency of Her Majesty's Government in denying
responsibility'for the acts of Canadian sealers was not meant to imply that the United
States would be willing to consent to the conversion of their property into a claim for1
damages, particularly as. the Arbitrators cannot determine such a claim unless the
Treaty be revised.   Your Lordship should bear in mind, whilst making your present
proposal, that the fact of the Arbitrators not having jurisdiction as to damages is the.
result of concessions made by the United States' Government to your views.
The President fails to see how claims can, by law or equity, be brought by s
of either Power against their respective Governments, on account of restraints in _
with a view to the promotion of the public good or of international peace.    There is
fffB" prtmsioTri^ that the conclusion of the*"
arbitration will not be reached before the season of 1893. As to tho Delagoa Bay
Arbitration, your Lordship is in error in thinking that it has been proceeding for four
years. It dates from a period of less than one year ago. If the Treaty is promptly
ratified, mutual interests will be a sufficient guarantee against delay. The sole obstacle
[298] D
to such a consummation is the prevalent belief, that Great Britain's refusal to preserve
Oh&-status quo of the property, and her insistance on continuance of pelagic Ise$BS|f-'
during the arbitration, to the"injury of the rights of the United Sfetesi:largelif^efem#
theobjCct forwhich the Treaty was made.' A   ■[■ ',ca   ?$m?l^\l
~t m; l*Dhe note • ends'' with - the following wordis:!![ """The1 TrtesideW 'directs r&&!it8 s#w
in conclusion, that the modus vivendi of last ygar is'the leMti^haAtMs Government !bai#
accept. In reason, the restraints after a Treaty of Arbitration should be more
absolute, not less. He does not desire to protract the discussion, and having now,
in the most friendly spirit, submitted the considerations which support the just demand
of this Government, that the property which is now the subject of an agreed arbitration
shall not be subject to spoliation pending the arbitration, he expresses the hope that
Lord Salisbury will give a prompt and friendly assent to the renewal of the modus
vivendi. The President will hear with regret that Her Majesty's Government continues
to assert a right to deal with this subject precisely as if no provision had been made
for the settlement of the dispute; and in that event, this Government, as has already
heen pointed out, will be compelled to deal with the subject upon the same basis, and
to use every means in its power to protect from destruction or serious injury property
and jurisdictional rights which it has long claimed and enjoyed."
No. 18.
The Marquis of Salisbury to Sir J. Pauncefote.
-(Telegraphic.) Foreign Office, March 26, 1892.
IN reply to your telegram of the 23rd instant, notice has been given to the
owners of ships sailing for Behring's Sea, that both the Agreements which are at
present under discussion between Great Britain and the United States—that as to
Arbitration and that as to an intermediate arrangement-—may affect the liberty of
■sealing in Behring's Sea. They have, therefore, notice of their liability to possible
interruption, and wall sail subject to that notice.
The question of time is not, therefore, urgent.
Inform President that we concur in thinking that when the Treaty shall have
ibeen ratified there will arise a new state of things. Until it is ratified our conduct is
governed by the language of your note of the 14th June, 1890. But when it is
xatified both parties must admit that contingent rights have become vested in the
other, which both desire to protect.
We think that the prohibition of sealing, if it stands alone, will be unjust to
British sealers, if the decision of the Arbitrators should be adverse to the United
States. We are, however, willing, when the Treaty has been ratified, to agree to an
arrangement similar to that of last year, if the United States will consent that the
Arbitrators should, in the event of a decision adverse to the United States, assess the
■damages which the prohibition of sealing shall have inflicted on British sealers
during the pendency of the Arbitration; and, in the event of a decision adverse to
Great Britain, should assess the damages which the limitation of slaughter shall,
•during the pendency of the Arbitration, have inflicted on the United States or its
As an alternative course we are also willing, after the ratification of the Treaty,
to prohibit sealing in the disputed waters, if vessels be excepted from the prohibition
which produce certificate that they have given security for such damages as the
Arbitrators may assess, in case of a decision adverse to Great Britain; the Arbitrators
to receive the necessary authority in that behalf. In this case the restriction of
slaughter on the islands will not, in point of equity, be necessary.
Her Majesty's Government are unable to see any other than one of these two
methods of restricting seal-hunting in the disputed waters during the Arbitration, which
will be equitable to both parties.
No. 19.
The Marquis of Salisbury to Sir J. Pauncefote.
•(Telegraphic.) . Foreign Office, March 26, 1892.
WITH further reference to your telegram of the 23rd instant, I am not prepared
to admit, as I gather that the President thinks, that we have objected to the
Arbitrators having jurisdiction as to damages inflicted in the past by the party against
whom the award is given. I only objected to make Her Majesty's Government liable
for acts which they have not committed. I am ready to consent to a reference on this
point in the following terms :—
That in case the Arbitrators shall decide-in favour of the British Government,
that Government may ask them, further, to decide whether the United States'
Government have since 1885 taken any action in Behring's Sea directly inflicting
a wrongful loss on British subjects, and, if so, to assess the damage incurred thereby.
That in case the Arbitrators shall decide in favour of the Government of the
United States, that Government may ask them to decide, further, whether the British
Government have since 1885 taken any action in Behring's Sea directly inflicting a
wrongful loss on the United States or its lessees, and, if so, to assess the damage
incurred thereby.


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