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British protection : Behring Sea seizures Ewart, John S. (John Skirving), 1849-1933 1913

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Array KINGDOM PAPERS.   No. 13.
The second edition of volume one of the Kingdom Papers is now ready.   Price, in cloth
binding, postage paid, sixty cents.
Mr. Ewart's earlier book of essays and addresses The Kingdom of Canada is also on sale.
Price, postage paid, one dollar.
THORBURN & ABBOTT, Publishers, Ottawa.
Present and future Papers will be sent free of charge to all applicants.
Previous Papers of volume two will be sent on receipt of postage—ten cents.
(In order to draw attention to the purpose for which quotations are employed,
italics, not appearing in the original, are sometimes made use of.)
In the preceding Paper, I made the assertion that the United
Kingdom had not only never defended Canada, but, with the exception of the 1888 episode, she had never even effectively sympathized with her in her international difficulties. And I promised
to give an illustration of what I meant, by narrating the facts connected with the seizure, by United States cruizers, of our sealing-ships
in Behring Sea.
Behring Sea has an area of 873,128 square miles. It is 800
miles from north to south, and 1200 from east to west. In it, at
about 57° north latitude, are the Pribyloff Islands, of which an
enormous seal-herd make annual use as a breeding-ground. During
the rest of the year, the animals spread themselves in the Pacific,
going as far south as California. The United States own the islands,
and they lease to a company the right to kill seals there. The
process is very simple—a blow on the head with a club. The
industry produces large profits, and the United States receive
comfortable annual rents.
For some time prior to 1886, Canada had been capturing some
of the seals in the open sea. That too was profitable; the industry
prospered, and the number of ships employed rapidly increased,
although the hunting process was much more difficult than the
Naturally enough, neither the United States nor the company
approved the interference of the Canadians. They pretended
that pelagic operations would exterminate the seal species. Canada
said that it might reduce the number; but that extermination could
(a) The documents quoted in this Paper may be found in one or other of the following
publications: British: Blue Book 1890, U.S. No. 2; Blue Book Ï891, U.S. No. 1; Blue
Book 1891, U.S. No. 2; Blue Book 1892, U.S. No. 3. United States: 50th Cong., 2nd Sess.,
Sen. Ex. Doc, No. 106; 51st Cong., 1st Sess., House Ex. Doc. No. 450; 51st Cong., 2nd Sess.,
House Ex. Doc, No. 144; 51st Cong., 2nd Sess., House Ex. Doc. For. Rel. pp. 358-508; 52nd
Cong., 1st Sess., House Ex. Doc, For. Rel. pp. 530-643; 52nd Cong., 1st. Sess., Sen. Ex. Doc,
No. 55; 53rd Cong., 3rd Sess., Sen. Ex. Doc, No. 67. Canadian: Sess. Pap., 1887, Vol. 20,
Nos. 48. 48 (a); Sess. Pap., 1888, Vol. 21, Nos. 65 (a), (6); Sess. Pap. 1898, Vol. 32, No. 39.
-^~ ~ j
- 60 The Behring Sea Seizures
be accomplished on land only—as the seals became scarcer, pelagic
operations would become unprofitable, and therefore cease. There
was a "tendency towards equilibrium". Everybody now agrees
that the Canadian view was the right one (a).
Taking the law into their own hands, United States' cruizers,
during a series of years (1886, 7 and 9) seized and threatened Canadian vessels. In 1886 and 7, masters and mates of the seized vessels
were fined and imprisoned. Negotiations, temporary arrangements, reference to arbitration, further negotiations, etc., ensued,
with the result that to-day the whole British Columbia sealing fleet
is out of commission, and as compensation Canada receives fifteen
per cent, of the skins taken on the islands.
A preliminary statement of the headings under which the
facts will be presented, and a short indication, under each, of the
argument, will aid the understanding of what is to follow:
I. British protection with reference to the seizures:
Seizures, fines and imprisonment in 1886 and 7. Further seizures
in 1889. Meanwhile, British indifference and United States contempt. No explanation or justification attempted until 1890, and
the contention then advanced, manifestly absurd.
II. British protection with reference to United States'
proposals for voluntary renunciation of Canadian rights:
The proposals favored by the British government, and on two occasions (1888 and 1889-90) tentatively acquiesced in. Canadian
protests saved the situation for the time; but the effect of the
British admissions afterwards disastrous.
III. British protection with reference to United States'
proposals for voluntary temporary renunciation: The proposals cordially concurred in by the British government and enforced, in 1891 and 2, by the joint activity of the British and United
States' navies. Canadian opinion and objection fruitless. The
British government itself declared that the renunciation of 1891
was \ I a friendly act towards a friendly Power"—not one of Î ' absolute right or justice"; and that the renunciation of 1892 could not
be "reasonably demanded".
IV. British protection with reference to arbitration
respecting voluntary renunciation: Canada had no objection
to arbitrate the question of her right to take seals on the open sea.
She did object to submit to anybody the extent to which she ought
to renounce or forego the exercise of her rights—especially when
United States' action on land and that of all other nations at sea
(a) See the unanimous report of the British and American Commissioners of 1897, in the
nnual Report of the Canadian Minister of Marine and Fisheries for 1897. The Behring Sea Seizures 61
was left unregulated. Canada was over-ruled. Before the arbitrators, Canada was handicapped by previous British admissions.
Partial prohibition was imposed upon Canada, and thus, the United
States acquired, by British assent, that to which—by the seme
award—she was declared to have no legal right. I
V. Subsequent History.—Canadian influence sufficiently
strong to prevent further concessions to the United States, with
result that United States agreed to pay, reasonably well, for total
The Trent Affair.—Before commencing the narrative, it
will be convenient to refer, very shortly, to the Trent affair, as
indicative of the attitude which the United Kingdom assumes when
one of her own ships meets with unauthorized interruption on the
high seas. It will give us a sort of standard by which to estimate
her action with reference to the seizure of Canadian sealing-ships in
Behring Sea.
Shortly after the commencement of the war of secession in the
United States, the Confederacy of the Southern States sent two
envoys to the governments of the United Kingdom and France to
plead for recognition of their independence.
"These two gentlemen having run the blockade of Charleston by night,
embarked at Havana in the British mail steamer Trent. The San Jacinto, a
Federal sloop of war . . . ran across the Trent . . . fned a couple of
shots across her bows, boarded her, and made prisoners of Messrs. Mason &
Slidell When the news reached England it caused tremendous excitement. The flag had been insulted; instant reparation must be demanded.
Russell drafted a vigorous despatch to the Federal Government, at the same
time directing Lord Lyons, British Embassador at Washington to require the
release of the Confederate envoys, and to come away if his request were not fulfilled in seven days. Simultaneously 8,000 troops were embarked to be ready
for emergency on the Canadian frontier, and preparation was made for immediate hostilities. In all probability the country was only saved from a fratricidal
war by the prudent counsel of the Prince Consort ' (a)
—by the tactful action of the British Ambassador, also, who made
as easy as possible the submission of the United States.
The following are extracts from the despatches of Lord Russell
to the British Ambassador at Washington (30 November 1861) :
"It thus appears that certain individuals have been forcibly taken from on
board a British vessel, the ship of a neutral Power, while such vessel was pursuing
a lawful and innocent voyage: an act of violence which was an affront to the
British flag and a violation of international law."
Lord Russell demanded:
"the liberation of the four gentlemen, and their delivery to your Lordship, in
(a) Maxwell:   A Century of Emp. 1833-68, pp. 307, 8. 62 The Behring Sea Seizures
ortffi   that they may again be placed under British protection, and a suitable
apv ffi ; i for the aggression which has been committed."
' : xi ~>uld Mr. Seward ask for delay in order that this grave and painful
matter si.-uld be deliberately considered, you will consent to a delay not exceeding seven days. If at the end of that time, no answer is given, or if any
other answer is given except that of a compliance with the demands of Her
Majesty's government, your Lordship is instructed to leave Washington with
au the members of your Legation, bringing with you the archives of the
Legation, and to repair immediately to London" (a).
No explanation is asked. No explanation will be received.
The Union Jack has been insulted. Reparation and an apology
are the only possible appeasements. Meanwhile British business
and finances are upset, consols go down, and marine insurance goes up.
And all this because of the arrest by Americans of other Americans,
on a British ship.    The men were very soon released, and thereupon
'•to funds received a sensible increase .... The highest price at which
consols were quoted in that day was 931, or 3J per cent, higher than the lowest
pch * to which they had fallen during the interval of suspense and anxiety" (b).
That was in 1861-2. It was a case of the United States taking
from a British vessel, two American citizens engaged in rebellion
against United States' authority. Compare now, what the British
government did when (1886-9) not only Canadian subjects were
taken on the high seas from Canadian vessels and subjected to
fine and imprisonment, but when the vessels themselves and their
equipment—Union Jacks and everything else—were seized and taken
into United States' territory.
Behring Sea, 1886.—In this year (about 1 August) three sealing-
vessels were seized and taken to a United States' port—the Onward,
the Carolina, and the Thornton (c). The masters were each sentenced to pay a fine of $500, and to be imprisoned for thirty days;
while the mates escaped with fines of $300 and thirty days in gaol.
One of them (James Ogilvie) an old man, after his trial but before
sentence, took to the woods where he died from want and exposure.
The crews were taken to San Francisco and left to find their way
home as best they could. The vessels were condemned and appropriated. And the only ground upon which the judgments of condemnation proceeded was the silly, and afterwards abandoned (d)
pretence that all of Behring Sea east of the 193° of west longitude—
a stretch of about seven hundred miles—belonged to the   United
(a) Ann. Reg. 1861, pp. 290, 1.
(6) Ibid. 1862, p. 6.
(c) A fourth ship, the Favorite, was compelled to quit her operations and leave Behring
(d) Perhaps repudiated would be more correct than abandoned:    See Mr. Blaine's letter
of 14 April 1891. The Behring Sea Seizures 63
States (a). None of the seizures took place within fifty miles of
the land.
But there was no excitement in the United Kingdom. The
compilers of the Annual Register probably never heard of the seizures,
for they do not mention them. Nobody became furious over the
insult to the flags, or asked for their return. Nobody ever suggested
a demand for an apology. There was not even a cabinet meeting
on the subject. Why ? For the simple reason that it was a f \ colonial
episode", and that "we cannot be expected to go to war over a few
For my own part I do not complain of that attitude. The
British government is responsible to British electors, and must do
as the electors wish. The Trent affair appealed to the British
public. The Behring Sea seizures did not. The later (1904) Dog-
gerbank episode—the firing by Russian warships (through foolish
mistake) upon British fishermen near at home—drove Englishmen
wild, and the government had the greatest difficulty in refraining
from war. Not one man in a million gave a second thought to the
Behring Sea proceedings. I make no complaint. That is human
nature. But do not tell me at the same time, that thé British forces
protect us from wrongful assault.    They do not.
Instead of drafting a vigorous despatch as soon as the seizures
were heard of, the British Foreign Minister wrote (9 September)
a note of five lines directing a communication to be sent to the
United States government—
"asking to be furnished with any particulars which they may possess relative
to this occurrence".
The Canadian government took a much more serious view
of the subject. An Order-in-Council (24 September) after detailing
the facts, concluded as follows—
"In view of the unwarranted and arbitrary action of the United States'
authorities, the undersigned recommends that a copy of this Report be sent to
Her Majesty's Government to the end that immediate reparation be demanded from the Government op the United States, and that in the meantime the facts contained therein be telegraphed to the Secretary of State for
the Colonies and to the British Minister at Washington."
Thus moved the Foreign Secretary eased his conscience by
writing to the British Ambassador (20 October) as follows—
"I request that you will lose no time in protesting against these proceedings
in the name of Her Majesty's Government; and you will at the same, time reserve FOR CONSIDERATION HEREAFTER ALL RIGHTS TO COMPENSATION "WHICH
That was all that Heed be done in the case of Canadians in
(a) See the findings of fact of the arbitrators. r
64 The Behring Sea Seizures
gaol! No satisfaction having been received, the Canadian government, two months after their first demand, forwarded to London
(27 November) a further and more urgent protest, declaring that
the captains and mates
"have been dragged before a foreign court, their property confiscated, and
themselves thrown into prison where they still remain" (a).
That protest was not forwarded by the Colonial Office to the Foreign
Office until 4 January, 1887! And all that it produced was a letter
to the United States (9 January)—
"Such proceedings therefore, if correctly reported, would appear to have
been in violation of the admitted principle of international law. Under these
circumstances, Her Majesty's Government do not hesitate to express their concern at not having received any reply to their representations, nor do they wish
to conceal the grave nature which the case has thus assumed, and to which I
am now instructed to call your immediate and most serious attention."
The letter closed with an expression of assurance that—
1 'the Government of the United States will, with their well-known sense of justice,
admit the illegality of the proceedings resorted to against the British vessels
and the British subjects above mentioned, and will cause reasonable reparation
to be made for the wrongs to which they have been subjected, and for the losses
which they have sustained."
More than three weeks afterwards (and six months after the seizures)
the United States replied (3 February 1887) promising an early
investigation of the subject, and adding—
"In this connection, I take occasion to inform you that, without conclusion
at this time of any questions which may be found to be involved in these cases of
seizure, orders have been issued by the President's direction, for the discontinuance of all pending proceedings, the discharge of the vessels referred to,
and the release of all persons under arrest in connection therewith."
The ships were never delivered to their owners. In 1891, they were
still on the beach at Ounalaska (6). The seized seal-skins were
never returned. Reparation was not even referred to in United
States letters.
Thus ended the events of the first years seizures. Three Canadian vessels taken off the high seas. A fourth vessel driven from
her work. Five Canadian sailors shut up in gaol. One sailor
dead from want and exposure. Three Canadian crews carried off
to San Francisco. The only pretence of justification: the ownership
by the United States of the open sea.    Gentle protests made, but
(a) In reality, some if not all the men had been released before that date.     They were
''turned loose," literally destitute and left to get home (1,500 miles) as best they could.
(6) In the Canadian departmental report of 1891, is the following:
"Those seized in 1886, after being condemned, were laid up on the beach at Ounalaska,
and after everything saleable had been disposed of, they were offered to their owners. Their
deterioration from exposure to the action of time and weather rendered them practically
worthless, and the distance at which they lay from their owners precluded their being removed
except at a loss."
IL S|^— . M.
The Behring Sea Seizures 65
no explanation given; no reparation offered; the seal-skins kept;
the ships furnishings sold; the ships left rotting at Ounalaska.
What would have happened, had these vessels and men been
British? What, if from off a British vessel on the Atlantic two
American citizens had been forcibly taken?
1887—Meanwhile the owners of other Canadian vessels wanted
to know if they were to be liable to seizure during the operations
of the following season (1887) and, as early as 6 December 1886,
the British Ambassador at Washington was instructed to obtain
from the United States the necessary assurance. No reply having
been received, the instruction was repeated (2 April), and on 12
April the United States' Secretary wrote that
"The remoteness of the scene of the fur-seal fisheries, and the special peculiarities of that industry, have unavoidably delayed the Treasury officials in
"The question of instructions to government vessels in regard to preventing
the indiscriminate killing of fur seals is now being considered, and I will inform
you at the earliest day possible what has been decided, so that British and
Could contempt go further? No further communication took
place. The "instructions" were not communicated. They were
not asked for.
Noting the indifference of the Foreign Office, the Canadian
government sent a further protest to the Colonial Secretary (16 May)
calling attention to—
"the grave injustice done by the United States' authorities to British subjects,
peaceably pursuing their lawful occupations, on the high seas, and to the great
delay which has taken place in inquiring into and redressing the wrongs committed; to the severe, inhospitable, and unjustifiable treatment of the officers
and crews of the vessels seized; and to the serious loss inflicted upon owners of
the same, in order that full and speedy reparation may be made by the United
States' government."
Nothing further being done, the seizures (as was expected)
re-commenced. On 9, 12 and 17 July, and 6 and 25 August, six
more ships (a), and about one hundred and fifty men were seized,
when more than forty miles from land ; and again some of the men
were sent to gaol because being "devoid of funds necessary for
their subsistence" they could not provide bail. From a seventh
vessel, 1386 seal-skins were forcibly taken—as also the ship'i papers
(a) The Anna Beck, the Say ward, the Dolphin, the Grace, the Alfred Adams, and the Ada.
J 66 The Behring Sea Seizures
and fishing apparatus. What that would have meant, had a single
ship or a single seaman been British we know. Being Canadian only,
Lord Salisbury contented himself with writing to Mr. West (10 August) as follows:—
"I request that you will at once communicate to the United States' Government the nature of the information which has reached them in regard to these
further seizures of British vessels by the United States' authorities. You will
at the same time say that Her Majesty's Government had assumed, in view of
the assurances conveyed to you in Mr. Bayard's note of the 3rd February last (a),
that pending a conclusion of the discussion between the two Governments on the
general question involved, no further seizures of British vessels would be made
by order of the United States' Government."
Lord Salisbury knew quite well that there were no ' ' assurances
in the letter referred to ; that he had subsequently asked for them ; that
in reply he had been told that he would be informed of the
nature of the instructions to be issued to the cruizers; that
he had not received these instructions; and that he had never asked
for them.   The reply of Mr. Bayard (13 Aug.) was that he could
" discover no ground whatever for the assumption by Her Majesty's Government
that it contained assurances" such as referred to.
Although London was unaffected by these new seizures, the
indignation of British Columbia was intense, and the "Victoria
Daily Colonist" reflected the general feeling when it said of the
ship-owners (6 August)—
"They are beginning to wonder if, indeed, England is mistress of the seas,
when such high-handed piratical acts as those perpetrated last year, and again
repeated this, are allowed to occur without some protection being given to
British subjects or redress secured for damage done to property and interests
at the hands of Americans."
"Redress secured!" The claims were still in a British ^pigeonhole!    §i§f pit   n
After a month's delay, Lord Salisbury sent a long argumentative despatch to Mr. West (10 Sept.) and, without entering a protest,  concluded with these words:—
"Her Majesty's Government feel sure that, in view of the considerations
which I have set forth in this despatch, which you will communicate to Mr.
Bayard, the Government of the United States will admit that the seizure and
condemnation of these British vessels, and the imprisonment of their masters
and crews, were not warranted by the circumstances, and that they will be ready
to afford reasonable compensation to those who have suffered in consequence,
and issue immediate instructions to their naval officers which will prevent a
After another fortnight (and seven weeks after he had been
(a) The passage referred to is quoted ante, p. 63.
X. The Behring Sea Seizures 67
informed of three of the seizures Lord Salisbury went so far as to
instruct the British Ambassador  (27 September)  to
' ' make a representation to the United States' Government on the subject of the
seizure and detention of these vessels in connection with the representations
which I instructed you to make in the cases of the "Onward," the "Carolina"
and the "Thornton," and that you will reserve all rights to compensation
Meanwhile the Canadian Government continued to urge the
Foreign Office to action, and on 26 September a protest containing
the following was forwarded—
" It is respectfully submitted that this condition of affairs is in the highest
degree detrimental to the interests of Canada, and should not be permitted to
continue.    For nearly two years Canadian vessels have been exposed
TO ARBITRARY SEIZURE AND CONFISCATION IN THE PURSUIT OF A LAWFUL OCCUPATION upon the high seas, and Canadian citizens subjected to imprisonment and
serious financial loss; while an important and remunerative Canadian industry
has been threatened with absolute ruin."
' \ The Minister advises that Her Majesty's Government be again asked
to give ITS SERIOUS and immediate attention to the repeated remonstrances of the Canadian Government against the unwarrantable action of the
United States in respect to Canadian vessels in Behring's Sea, with a view to
obtain a speedy recognition of its just rights, and full reparation for the losses
sustained by its citizens."
The Colonial Ofiice forwarded the protest to the Foreign Office,
and added (17 October)—
"These papers appear to Sir H. Holland to point to a serious state of things,
which seem to make it necessary that some decided action in the matter should
be taken by Her Majesty's Government. And he would suggest, for the consideration of Lord Salisbury, whether it would not be desirable to instruct Sir
L. West, unless he has already done so, formally to protest against the right '
assumed by the United States of seizing vessels for catching seals beyond the
territorial waters of Alaska.
The only effects of this communication were (1) a telegram from
Lord Salisbury to the British ambassador (19 October)—
"I have to request that you will forthwith address a protest to the Government of the United States against this seizure, and against the continuance of
similar proceedings on the high seas by the authorities of the United States."
and, (2), instructions (26 October) to hand to the United States a
copy of the Canadian document!
We are now at the end of the second year of the seizures. Six
ships have been taken from the high seas into a United States port,
condemned and forfeited.* Canadians have been fined and imprisoned. The schooners seized in 1886 had been diplomatically
(only) released, but having met with so little real opposition, the
United States declined to release those seized in 1887.  No pretence 68 The Behring Sea Seizures
of justification has yet been offered by the United States, and
no piessure for explanation has been applied by the United Kingdom. Requests for assurances of future immunity from seizure
have been treated with contempt by the United States ; and remonstrances from Canada have been treated with indifference by the
United Kingdom.
1888.—The first seizures had been made about 1 August 1886,
and down to the month of March 1888 (with which we are now to
deal) no effective or even earnest step had been taken by the Foreign
Ofiice. Vessels of the British navy, in overwhelming force, had been
at anchor in Esquimalt harbour, but the efforts of the Admiral were
confined to ascertaining, at the end of the season, what had happened,
and to sending in reports of what he had heard. The Canadian claims
had never been presented to the United States for payment, Lord
Salisbury's first excuse being (14 Feb. 1887) that he wanted to have
an opportunity
'of examining the statements as to the circumstances under which the seizures
took place;
his second excuse (8 July 1887) being that it was desirable that he
"should be in possession of the records of the judicial proceedings in the District
Court of Alaska";
and, when the records had been obtained for him (12 July 1887),
his third excuse was—nobody knows what. Despairing of any help
from British diplomacy or the British navy, the sealers determined
to defend themselves, and for that purpose arranged to take large
crews of armed Indians in their vessels. News of the intention
reached London, but Lord Salisbury was unmoved. In a letter to
the Colonial Office, in reply to the suggestion of a direction to the
"to disarm any British sealing schooners sailing with such intention as is alleged
in the report,"
he said (24 March)—
"With reference to the latter part of Mr. Gourley's question, I am to request
that you will state to Lord Knutsford that, although some delay is inevitable
in pressing for an immediate settlement of the questions which have arisen
between this country and the United States in connection with the fur-seal
fisheries in Behring's Sea, there is no reason to believe that any further illegal
seizures of British vessels will take place, especially as the United States' Government have invited Her Majesty's Government to negotiate a convention for a
close time, thereby admitting their claim to exclusive rights in those waters to
be untenable (a). Lord Salisbury, however, will again endeavour to obtain
assurances on the subject from the Government of the United States.
(a) If Lord Salisbury had really believed that he had such an admission, he would have
urged it when protesting against the ssizures of the following year.    He did not. The Behring Sea Seizures 69
As regards the rumours which have reached this country by telegraph from
Victoria, British Columbia, of the clearance of Canadian vessels for Behring's
Sea, manned with armed Indian crews, I am to state that Lord Salisbury will
be prepared to submit the matter to the Law Ofiicers of the Crown, should the
rumours in question be confirmed, but that if the vessels are armed, not for
purposes of attack, but for purposes of resistance to illegal seizures on the high
seas, it would seem difficult to justify any interference with them on the part of
Her Majesty's cruizers."
Canadians might undertake their own defence if they so desired Î
and having thus comfortably, but not quite frankly, got rid of the
matter (for the time), Lord Salisbury wrote to Mr. West the following
short note (30 March)—
"I enclose, for your information, a copy of a letter from the Colonial Ofiice,
inclosing a telegram from the Governor-General of Canada, from which it appears that the British vessels and crews now fitting out for the approaching seal-
fishing season in Behring's Sea are being armed with a view to offering resistance
to their capture by American cruizers when so occupied.
Lord Lansdowne also reports that it is rumoured in Victoria that orders
have been issued by the United States' Government for the seizure of all sealers
found this season in Behring's Sea.
I request that you will inform Mr. Bayard of the report in question, and that
you will earnestly represent to him the extreme importance that Her Majesty's.
Government should be enabled to contradict it."
Meanwhile the Governor General had telegraphed (27 March)
as follows:—
"I am informed by Lieutenant-Governor of British Columbia that sealers
on the point of departure for Behring's Sea are arming the vessels and crews to
resist capture by American Revenue cutters. We think it desirable that Admiral should be instructed to watch proceedings on the spot. I have telegraphed
to Lieutenant-Governor to issue notice cautioning sealers to refrain from any
assertion of right by force of arms, and pointing out grave results which might
ensue from resort to arms whilst negotiations still in progress. It seems to us
impossible to prevent fishermen taking on board the arms and ammunition
usually required for their own protection and for use in seal-fishing. Reports
reach us from Victoria that United States' Government has issued orders for
the seizure of all sealers found this season in Behring's Sea.    Let me again
For some months prior to this time Mr. Phelps (United States'
Ambassador) had been pressing Lord Salisbury to agree to what he
called ' ' a close season" for seals in Behring Sea.. Lord Salisbury
without any consultation with Canada, expressed himself as being
favorably disposed towards the suggestion. And the United States,
believing that they were on the point of obtaining, under the name of
' * a close season," the complete exclusion of Canadians from sealing
operations in Behring Sea, verbally agreed that no actual seizures 70 The Behring Sea Seizureà
should be made in the ensuing season. Lord Salisbury, in a letter
(3 April) recounting the interview, after referring to the negotiations,
said thatMr. Phelps thought it
"to be of great importance that no steps should be neglected that could be taken
for the purpose of rendering the negotiations easier to conclude, or for supplying the
place of it until the conclusion was obtained. He informed me, therefore, unofficially, that he had received from Mr. Bayard a private letter, from which he
read to me a passage to the following effect:
JI shall advise that secret instructions be given to American cruizers not
to molest British ships in Behring's Sea at a distance from the shore, and this
on the ground that the negotiations for the establishment of a close time are
going on.'
"But, Mr. Phelps added, there is every reason that this step should not
become public, as it might give encouragement to the destruction of
In other words, the United States' cruizers intended to threaten
and frighten the Canadian sealers, but would not actually seize them.
That was what happened. Lord Salisbury was a consenting party
to the programme, and the British fleet remained inactive at Esqui-
1889.—The negotiations for a close season had ceased (owing to
Canadian intervention as hereinafter related), and at the commencement of the next sealing-year the President of the United States (22
March) issued a proclamation threatening arrest of all sealing ships
found within 'c the dominion of the United States in Behring Sea." Lord
Salisbury (no doubt displeased with Canadian obduracy) declined
(11 April) to take any action, upon the ground that the proclamation
did not refer to that part of the sea over which the United States
had no dominion. That, of course, was mere excuse, and the
Canadian government sent him (14 June) strong complaint,—
"Three years have now almost passed since the American Government
were apprised of the remonstrance on the part of the British Government against
the claim set up to exclusive jurisdiction in the Behring's Sea, with practically
no result other than the virtual and continual' exclusion of canadian
sealers from those open waters by the government of the united
Constant enquiry has been made of the Canadian Government as to the
present condition of the claims of British subjects in Canada for the damage
and loss sustained by the unjustifiable action of the United States' authorities.
The Minister regrets that he has been able to give no other answer to these
inquiries than to say that the claims are still being pressed upon the attention
of the United States' Government (a), but that no settlement has been arrived at.
% The Minister of Marine and Fisheries is informed that the failure to obtain
satisfaction has already resulted in the financial embarrassment and failure
(a) An answer that was quite inaccurate.    They were still in Lord Salisbury's pigeonholes. J The Behring Sea Seizures 71
of Captain Warren, of Victoria, British Columbia, one of the owners most
largely interested in the seized vessels; while the sealing industry, so far as
Canada is concerned, which was heretofore prosecuted with considerable advantage to labour and capital, has become entirely paralyzed.
He further observes that while the argument advanced by the British Government touching the rights of British subjects in the open waters of Behring's
Sea has not been met, recent expressions and actions on the part of officials
and of the authorities in the United States touching the Behring's Sea, taken
with the seizures of British vessels already referred to, afford a reasonable
ground for the belief that the Revenue-cutters of the United States' Government
in the waters in question will continue to treat these waters as closed.
Great damage has therefore not only been sustained, but is now being suffered,
by British subjects in consequence of their not daring to risk their persons and
property in these waters in the absence, not only of a settlement of the claims
already existing but without any positive assurance from the British Government
that, in the event of loss or damage again occurring to them in the open waters
of the Behring's Sea at the hands of the United States' authorities, ample redress
will be obtained therefor."
" It is to be regretted that some of the leading Representatives in the Canadian Parliament have already been induced to express the opinion that the
British Government would not actively protect the rights of British
subjects resident in Canada in cases wherein the United States were
concerned, and while he, the Minister, believes such opinion to be entirely
erroneous and unfounded, he desires to express the hope that these extreme
views may be in nowise strengthened by any unnecessary delay in vigorously
and effectively pressing the Canadian claims against the American Government
for the illegal and unjustifiable action now under consideration.
The records of the claims having been completed on the 12th day of January 1888, and then forwarded to the Imperial authorities, the Minister recommends that Her Majesty's Government be urged to take such further
steps as will promptly secure from the government of the united states
not only full and ample reparation for the loss and damage sustained,
but also a complete and immediate retraction of the claim of that country to exercise exclusive jurisdiction over the waters of the behring's
No action of any kind was taken, and, as the President had
announced, the seizures were proceeded with. On 1 August, the first
of them (the Black Diamond) was brought to Lord Salisbury's notice,
but, stolid and indifferent as ever, he cooly and sagely replied (5
August)  that
"everything seemed to depend, in this case, on the precise position of the Black
'Diamond' at the time of the seizure."
Being in Canada, the Governor General took the matter more
seriously, and wrote (8 August) :
"In transmitting to your Lordship such information as I have been able
to.procure up to the present time respecting the recent seizure of the schooner
'Black Diamond', and the detention of the schooner 'Triumph," in Behring's
Sea, I deem it my duty to bring to your notice the very strong feeling which
is arising throughout the Dominion consequent upon the continued seizures of 72 The Behring Sea Seizures
Canadian vessels upon the open sea, and their condemnation in the United
States' Courts of law.
A sense of irritation is growing up in the public mind not only against the
Government of the United States, but against the Imperial Government, which
may at any moment result in serious trouble, and there is reason to apprehend
that, if the supposed inaction of the Home Government continues, the sealers
may be driven to armed resistance in defence of what they believe to be their
lawful calling, and it would be difficult, if not impossible, for the Dominion
Government to prevent such a state of affairs."
The Canadian government also sent fprmal complaint (9 August)
"The Minister represents that four years have elapsed since the seizure
of British sealing-vessels was commenced by the United States' authorities in
the Behring's Sea, and the strong representations of Her Majesty's Ministers
to the United States have only resulted in a continuance of the policy,
and a declaration that such policy will be systematically pursued.
The Committee advise that copies of the annexed telegrams be transmitted
to the Right Honourable the Secretary of State for the Colonies with the request
that the attention of Her Majesty's Government be invited thereto, and with
Meanwhile a dallying idea occurred to Lord Salisbury.    He
said (17 August) that it would be
"very desirable .... that steps should be taken to proceed at once with
the appeals to the Supreme Court of the United States in the cases of the British
vessels whose sealing operations were stopped under similar circumstances in
I am to request, therefore, that you will suggest, for Lord Knutsford's
consideration, that a telegram should be sent to the Governor-General of Canada
to the effect that, it being very unusual to press for diplomatic redress for a
private wrong, so long as there is a reasonable.chance of obtaining it from the
TRIBUNALS OF THE COUNTRY UNDER WHOSE JURISDICTION THE WRONG COMPLAINED of has occurred, Her Majesty's Government consider that they
would be in a stronger position for dealing diplomatically with the Behring's
Sea cases if appeals on the cases of seizure which 4ook place in 1886 were pushed
Than that letter, nothing could be more exasperating. What
we complained of was that the seizures had been made upon the
high seas, and therefore not within the jurisdiction of the United
States. Lord Salisbury knew that; and he had (10 September
1887) presented a cogent argument in support of the contention
to the United States. It was the only point about which there
was any dispute. Of what use was an appeal to the United States'
courts if Behring Sea was within the jurisdiction of the United
States?  (a)   Moreover, Lord Salisbury knew, for he had been told
(a) The appeal was useh ss in any case. When, at last, it did come on, it was dismissed
"upon the well-settled principle, that an appUcation to a court to review the action of the
political department of the government upon a question pending between it and a foreign
Power, and to determine whether the government was right or wrong, while diplomatic négociations were still going on, should be denied.    Re Cooper, 143 U.S. 472. B
The Behring Sea Seizures 73
(26 April 1889) that the only case appealed—the Sayward case
"not be reached for call for some three years, the business of the Supreme Court
of the United States being, as I am told, nearly or quite four years in arrear."
Why was not an action for damages brought in the United
States' courts in connection with the Trent affair? Why? Because
that was a British ship. The sealers and their crews were only
" colonial".
The Canadian Government dealt with Lord Salisbury's suggestion by adopting as an Order-in-Council (16 September) a long
report of its Minister of Marine and Fisheries (9 September),
in which Mr. (now Sir Hibbert) Tupper showed that the appeal
"has been duly inscribed in the Supreme Court of the United States for nearly
a year, and, on enquiry, the undersigned learns that it will not be reached in
its turn for argument for another year from this date."
He expressed the hope
"that Her Majesty's Government will not consider that the just demands of
the Canadian Government should not be pressed until the case of the 'W. P.
Sayward' is disposed of" ;
and he concluded with some earnest and pointed language—
"With deference, the undersigned further submits that the intimation in
the cable despatch above mentioned is somewhat unusual under the circumstances which attended the seizure of the ships in question.
"If the alleged infraction of the laws of the United States had occurred
in the waters over which that country is or was entitled to exercise jurisdiction,
the courts of the United States could, with propriety, be first resorted to before
pressing any claim for the immediate attention of the Executive.
"In view of the firmness with which the rights of British subjects on the
high seas have been maintained in the past, the undersigned fails to appre-
Possessions. Moreover, the undersigned would call attention to the imminent
danger of loss of life, not to speak of the physical suffering already sustained,
since it requires no argument to show that the lawless violence on the part of
the Revenue-cutters of the United States' Government may at any time lead
t i
The undersigned, therefore, recommends that his Excellency the Governor-
General be moved to acquaint the Right Honourable the Secretary of State for
the Colonies with these views, and to urge that no further time be permitted to
elapse without securing for British subjects in Canada the same freedom in the
navigation and enjoyment of the waters of the Behring's Sea which the United
States claimed for the seamen of all nations when the territory adjacent to that
part of the Pacific Ocean belonged to the Empire of Russia." 74 The Behring Sea Seizures
Meanwhile the seizures went on: the Minnie on 15 July; the
Pathfinder on 29 August; the Juanita on 31 July, and the Lily
on 6 August; while the Ariel on 30 July, and the Kate on 7 August
were ordered out of Behring Sea.
Not until 22 August, did Lord Salisbury take the first diplomatic step, and then all he did was to telegraph the British Ambassador at Washington—
"Her Majesty's Government are in receipt of repeated rumours that
British vessels have been searched and even seized in Behring's Sea, outside
the 3-mile distance from any land.
No official confirmation of these rumours has yet reached Her Majesty's
Government, but they appear to be authentic.
I have to instruct you to inquire of the United States' Government whether
any similar information has reached them.
You will also request that stringent instructions may be issued as soon as
practicable to the officials of the United States to prevent the possible recurrence
of such incidents".
The "rumours" were the official communications from the
Colonial Office. In a letter of the same date, to the Ambassador,
Lord Salisbury said that he Ï ' must necessarily protest" against the
seizures, and he had recourse to his former complaint of breach of
assurances declaring that—
' I clear though unofficial assurances were given last year by Mr. Bayard that,
pending the general discussion of the questions at issue between Her Majesty's
Government and that of the United States, no further interference should take
place with British ships in Behring's Sea at a distance from the shore."
The "assurances" to which Lord Salisbury referred were the
"secret instructions" which Mr. Phelps told him were to be given
to the United States' cruizers in the previous year—
' ' on the ground that the negotiations for the establishment for a close time
are going on" (a).
But those negotiations had long since ceased; the United
States' President had issued his prohibitory proclamation; and
the Canadian government had asked for protection. The
assertion of "assurance" was the same pretence as in 1887,
and of the same dallying quality as the suggestion of an
appeal to the United States' Supreme Court. Mr. Blaine replied
(24 August) to Lord Salisbury's letter, in the usual contemptuous
style—making no reply to the request for "stringent instructions",
or to the allegation of assurances—saying, indeed, nothing in effect
but this—
"It has been, and is, the earnest desire of the President of the United States
to have such an adjustment as shall remove all possible ground of misunder-
(o) See Lord Salisbury's letter of 3 April, 1888, ante, p. 69.
■**■ The Behring Sea Seizures 75
standing with Her Majesty's Government concerning the existing troubles in
Behring's Sea, and the President believes that the responsibility for delay in that
adjustment cannot be properly charged to the Government of the United States."
An additional sentence indicated that he would be prepared
"to discuss the whole question" when the new ambassador was
ready. And to that, the British representative made the following
obsequious reply (25 August)—
"I shall lose no time in bringing your reply to the knowledge of Her Majesty's
Government, who, while awaiting an answer to the other inquiries I have had the
honour to make to you, will, I feel confident, receive with much satisfaction
Seizures of Canadians and Canadian vessels affected that
representative as little as Lord Salisbury, and he received, from
Lord Salisbury (9 September) formal approval of what he had done.
Meanwhile an indignation meeting had been held in Victoria,
B.C., and, from-the Colonist of 1 September, the following extracts
are taken.    Mr. E. Crow Baker, M.P., said—
"It was a matter that concerned not only the individual, but the entire
province, the Dominion at large, Vnd the whole British Empire. The matter
was one deserving of consideration, not only because it touched the individual
pockets and the province our home, but because it touched our hearts. The
view taken by the people of British Columbia was that the grand old flag
"Matters of losses were expected by every one in business: but every
British Columbian felt that he was protected by the flag of England, under
which many present were born, and thought it strange that he was not sheltered BY THE FLAG WHOSE PROTECTION HE HAD A RIGHT TO EXPECT."
"It was impossible for the Government of Canada to protect its citizens
outside of the coast limit of a marine league. When the citizens of British
Columbia sailed for the northern seas they passed beyond the protection of the
Federal Government, fondly hoping that wherever they went they were
Col. Prior, M.P., said—
"If France set up a claim of jurisdiction over some particular part of the
ocean, and seized a German sealer therein, do you think that it would have
taken three years to settle the question? Possibly, but they would be three
very bad years for some one. (Cheers). If Beaconsfield had lived, would it
have taken England three years and a half to settle this question ? No ! (Cheers).
He had pleasure in seconding the Resolution introduced by his colleague."
The Honorable Robert Beaven, M.P.P.:
"touched upon the various treaties dealing with Behring's Sea, and referred to the manner in which   British subjects were taught that they
The Behring Sea Seizures
Mr. R. P. Rithet
"acknowledged that it was humiliating to be compelled to make an appeal for
protection to our own nation while pursuing a lawful avocation on the high seas.
The matter was of no moment whether the insult had been offered to one humble
subject or to many. The principle was the same. British subjects had been
illegally made prisoners of on the high seas, and had been fined and imprisoned.
Like good subjects, they had waited long for action to be taken without their
demanding it as their right. This action not having been made, however,
it was necessary now to emphasize the representations that had been made to
the Imperial Government."
The Mayor of the City (Mr. Grant) said—
(loud applause), and true loyalty required that we should employ every legitimate means to put a stop to it. Long enough had Brother Jonathan been allowed with impunity to twist the tail of the British lion, and now it remained
for the 'simple fishermen of Victoria' to strike a lucifer under the lethargic OLD ANIMAL'S NOSE, AND AROUSE IT TO A PROPER SENSE OF DUTY.      (Applause).
One speaker had said the Provincial Government had nothing to do with this
matter, while another said it had. Perhaps in the strict official sense it had
not ; but he conceived that in a very important sense it had to do with whatever
concerned the welfare of the country, and he felt it to be due to the Provincial
Government to say that this matter had received its most earnest attention
(Applause). It had prepared and transmitted no fewer than sixteen
Orders-in-Council and telegrams, and he could assure the meeting that
these were couched in as strong language as was consistent with State
Among the resolutions, the following was "put and carried
with loud applause"—
"Resolved,—That, as loyal British subjects, we resent the insult
to our flag, and respectfully claim for our vessels and citizens on the
high seas that protection by the british government which for centuries has been the right and pride of even the meanest subject of the
Empire, but which now seems to be denied us, causing great loss to the
commerce of our city, and financial ruin to our fellow-citizens engaged
in the sealing-industry."
The Canadian government forwarded (19 September) a copy
of the resolution to the Colonial Office and a Mr. Clarke (Rugby,
England) handed in (24 September) a copy of the Colonist. These
were sent (5 October) to Lord Salisbury, who took no notice of
Urged by a previous communication from Canada and a request from the Colonial Office, Lord Salisbury directed (2 September)
that Office to reply to Canada—
"that Her Majesty's Government are in communication with that of the United
States with the object of procuring instructions which will prevent any further
seizures. The Behring Sea Seizures 77
I am, at the same time, to request that you will point out to Secretary Lord
Knutsford that as yet no authentic and detailed information has reached this
Department as to the circumstances attending the seizure and searching of
these or other British vessels by the United States' authorities during the present
fishing season."
The excuse was flimsy and inaccurate. Lord Salisbury had
the Canadian Order-in-Council of 2 August stating that the Black
Diamond had been seized "seventy miles from land", and that the
Triumph had been searched "in the same locality". What more
did he want. Moreover he had all the details of the seizures
Of the previous years, and had done nothing with them. The
claims for compensation had never yet left his pigeon-holes.
Indeed upon one occasion (19 April 1888) the United States' Secretary said that "he had been led to believe that these claims
would be held over."   They were.
Fighting off Canada in this lofty and exasperating way, Lord
Salisbury, in dealing with the United States, was willing to undergo
one humiliation after another. His official, communications had
been treated with contempt. No pretence of justification of the
seizures had ever yet been attempted, and requests for assurances
of cessation of seizures had never been treated seriously. Under
those circumstances, what must be thought of the following letter
which Lord Salisbury wrote to the British representative at Washington (11 September) directing him to—■
"write privately to Mr. Blaine, saying that Her Majesty's Government were
earnestly expecting an answer to their request that the United States' Government would send to Alaska such instructions as would put a stop to the seizures
of British vessels."
Do please Mr. Blaine. Will you not be good enough? You
have seized fourteen British vessels—Union Jacks included. Are
you not satisfied? Do you really mean to seize any more? You
will ruin a lot of good British subjects, Mr. Blaine. It is too bad,
too bad. I really must take the liberty of assuring you, Mr. Blaine,
that it is altogether too bad.
The British representative wrote his letter, marking it "Personal", and added a request for a reply to his former protest against
the seizures. This is Mr. Blaine's reply (14 September, without any
confidential indication)—
Referring more particularly to the question to which you repeat the desire
of your Government for an answer, I have the honour to inform you that a
CATEGORICAL RESPONSE WOULD HAVE BEEN AND STILL IS IMPRACTICABLE, UNJUST to this Government, and misleading to the Government of Her
Majesty. It was, therefore, the judgment of the President that the whole subject could more easily be remanded to the formal discussion so near at hand r
78 The Behring Sea Seizures
which Her Majesty's Government has proposed, and to which the Government
of the United States has cordially assented."
Could anything be more contemptuous? Seizures had been
made more than two and three years before; protests had been
made and replies asked; and now Lord Salisbury is told that "a
categorical response ... . is impracticable". How would that reply
have suited the temperament of Lord Palmerston in the Trent
affair ?
The letter reached Lord Salisbury dn 30 September. It made
not the slightest impression. Indeed two days afterwards in writing to the British representative at Washington he spoke as though
he had never seen it (a) :
"In a despatch to Sir L. West dated the 10th September 1887, which was
communicated to Mr. Bayard, I drew the attention of the Government of the
United States to the illegality of these proceedings, and expressed a hope that
due compensation would be awarded to the subjects of Her Majesty who had
suffered from them. I have not since that time received from the Government of the United States any intimation of their intentions in this
respect or any explanation of the grounds upon whiich this interference
with the British sealers had been authorized."
' ' But, in view of the unexpected renewal of the seizures of which Her Ma-
jesty's Government have previously complained, it is my duty to protest
Once again (14 September) the Canadian government adopted
an Order-in-Council—this time with reference to the Pathfinder—
"that the circumstances which characterize this seizure are no less irritating and
unjustifiable than those which have preceded it."
The two Canadian Orders-in-Council of 14 and 16 Septmeber
above referred to (mailed 23 September) were not forwarded by the
Colonial office to the Foreign Office until 24 October; and, on 2
November, this was all that Lord Salisbury had to say—
' ' In reply, I am directed by his Lordship to request that you will state to
Lord Knutsford that copies of all these papers will be forwarded at once to Her
Majesty's Minister at Washington.
I am to suggest that the Governor-General of Canada should be informed
tnat Sir Julian Pauncefote before leaving for his post, was instructed to take
the earliest opportunity of discussing the question with Mr. Blaine.
Lord Salisbury proposes to await Sir Julian's Report before deciding AS TO WHAT FURTHER STEPS SHOULD BE TAKEN IN THE MATTER."
The Canadian Government now determined upon a new method
of procedure, namely the active personal persistence of its London
(a) Whether he ever saw it, I cannot say.   He never alludes to it.
m I 1
The Behring Sea Seizures 79
Commissioner, Sir Charles Tupper.    On 18 October, the government
adopted the following Order-in-Council—
"The Minister, with reference to the information supplied from time to time
to the Imperial Government on the subject of the seizure of British vessels in
the Behring's Sea, and to the great national importance of the earliest possible
settlement of the question, owing not only to the continuation of the outrages
during the past season by United States' Revenue-cutters, but to the growing
doubt on the part of the canadian people as to whether her majesty's
Government will actively support the demands of the Dominion of
Canada in consequence of the long delay which has taken place in arriving at a
satisfactory adjustment of the question, recommends that the High Commissioner for Canada in London be directed to place himself in personal communication with Her Majesty's Government, with the object of expediting, in any way
he may be able to do, a speedy and satisfactory settlement of the question."
1890—The period between early in December 1890, and the
end of May 1891, was occupied in negotiations for settlement. As
in 1888, Lord Salisbury was willing to concede, to the United States,
all that was asked, but Canada again (with Mr. C. H. Tupper at
Washington) objected and, once more, the concession was prevented.
It was during this period that the United States (22 January)
for the first time since the commencement of the correspondence
deigned to indicate the ground upon which
"this government rests its justification for the action complained of by Her
Majesty's Government."
The position assumed was that lawless pelagic sealing would
exterminate the species ; that the United States had a special interest
in its preservation; that wanton destruction could surely be prevented as contra bonos mores; and that Russia always exercised a
protective jurisdiction over the seals in Behring Sea.
"The forcible resistance to which this Government is constrained in the
Behring's Sea is, in the President's judgment, demanded not only by the necessity of defending the traditional and long-established rights of the United States, £^
but also the rights of good morals and of good government the world over."     çK,
Probably such rubbish does not appear elsewhere in the diplomatic interchanges of history. Absurd, as it was, Lord Salisbury's
reply was not dated until four months afterwards (22 May), and was
not delivered to the United States until 14 June.
Meanwhile the sealing time again approached and the President
issued the usual proclamation, giving instructions; however, not to
capture vessels but to dismantle them only, and to take their logbooks and skins as evidence of their operations.
At last Lord Salisbury made up his mind to do something, even
if it was only to send a protest that had the appearance of having
been dictated by some appreciation of the importance of the situation 80 The Behring Sea Seizures
Accordingly he telegraphed (23 May) the British Ambassador as
"I have to instruct you to inform the Secretary of State that a forma'
protest against any such interference with British vessels is now being prepared»
and that no time will be lost in forwarding it to him."
On the 29th he forwarded the draft of a note to be handed to
Mr. Blaine.    Its important clause was as follows—
"The undersigned is in consequence instructed formally to protest against
such interference, and to declare that Her Majesty's Government must hold the
Government of the United States responsible for the consequences which may
ensue from acts which are contrary to the principles of international law."
To the first of these intimations, the United States replied (29
May) as follows—
' 'Your note of the 23rd instant, already acknowledged, informs this Government that you 'have been instructed by the Marquis of Salisbury to state that
Her Majesty's Government would forward, without delay, a protest' against the
course which this Government has found it necessary, under the laws of Congress, to pursue in the waters of the Behring's Sea.
In turn, I am instructed by the President to protest against the course of
the British Government in authorizing, encouraging, and protecting vessels
which are not only interfering with American rights in the Behring's Sea, but
which are doing violence as well to the rights of the civilized world."
The letter proceeded to remind Lord Salisbury of the negotiations of 1888 and 1889, in which he had agreed to the necessity for
a close season covering the ensuing months—an unpleasant reminder.
And in conclusion the suggestion was made that the British
government should prohibit Canadian vessels entering Behring Sea.
Lord Salisbury rejected this proposal (31 May) saying that legislative
authority would be necessary, to which the United States replied
(11 June)—
"The President instructs me to say that it would satisfy this Government
if Lord Salisbury would, by public Proclamation, simply request that vessels
sailing under the British flag should abstain from entering the Behring's Sea
for the present season. If this request shall be complied with, there will be full
time for impartial negotiations, and, as the President hopes, for a friendly conclusion of the differences between the two Governments."
To this the reply was (27 June)—
"that the President's request presents constitutional difficulties which would
preclude Her Majesty's Government from acceding to it, except as part of a
general scheme for the settlement of the Behring's Sea controversy, and on
certain conditions which would justify the assumption by Her Majesty's Government of the grave responsibility involved in the proposal."
No agreement was arrived at. The cruizers went out, and, as
in 1888, contented themselves with warnings and threatenings.
VI *a».
The Behring Sea Seizures
Lord Salisbury's protest has sometimes been referred to by Imperialists as an instance of the occasions upon which the United
Kingdom has afforded protection to Canada. To that the following
replies may be made—
1. It is not an "instance."   If it is a case, it is the only one.
2. There is not the slightest evidence that Lord Salisbury
intended his protest as a threat, or that it was so regarded by the
United States.
3. I have reason for believing that Lord Salisbury would not
have sent his protest at all, but for something very like a threat
which he received from Canada; and that no amount of further
threatening would have moved him to action. Those who remember
how meekly he ate his Venezuelan humble pie in 1895-6 will agree
with me.    I give five reasons for the opinion which I express :
A.—We need not go outside the humiliating record of the present
case, in order to agree with Mr. Chamberlain when he said that preservation of cordial relations with the United States has been—
*'something more than a desire; it is almost a religion" (a);
and that Lord Salisbury was the most devout of its votaries.
B.—Sir Charles Tupper was Canada's High Commissioner in
London and had charge there of the very matter which we are now
discussing.   He knew, therefore, whereof he spoke when he said—
"I now come to a very important question, and that is the reluctance on
the part of Her Majesty's Government to do that with the United States that
they would do with any other country in the world. I speak from intimate*
knowledge, and from my personal acquaintance and official association with
both the great governing parties in England—because there were many changes
of government while I held the position of High Commissioner, and I was necessarily thrown in relation to these matters, into intimate association with both—
when I say that from 1868, when I had occasion to deal with an important
question relating to Canadian interests with Her Majesty's government, down
to the present hour, I have been struck very forcibly with the unwillingness on
the part of Her Majesty's government to allow any circumstances whatever
even to threaten a collision with the United States" (b).
C.—There is not a word in the correspondence between Lord
Salisbury and the British Ambassador at Washington that indicates,
in the most remote way, that the protest was intended to be anything
but a protest. Most certainly the Ambassador was not informed of
any belligerent intention, and conceived no such idea. All that he
had in mind was that the Canadian threat of armed resistance would
be carried into execution. Complaining (10th June—eighteen days
after delivery of the intimation of intended protest) to the United
States' Secretary, of the delay in the negotiations for a modus Vivendi,
(a) Jebb:   The Imperial Conference, p. 318»
(6) House of Commons, February 22, 1899. \
82 The Behring Sea Seizures
the Ambassador suggested, not that the British navy might meanwhile become active, but
"the danger of some untoward event."
He was apprehensive of Canadian self-defence. He had no notion
that the British navy would have been foolish enough to interfere.
D.—If Lord Salisbury had intended to afford protection to the
sealers, instructions to that effect would have been sent to the
Admiral at Esquimalt—and the Admiral would have convoyed the
sealers. But all that the Admiral did was to bob at anchor in his
comfortable harbor, and transmit such news as he could get.
Reporting (6 August), he told of the threatenings of the American
cruizers, and added that—
c ' there will probably be no more news from the sealers until their return, about
the end of September, and they are so scattered while sealing that it is very
unlikely, if any seizures do take place, that I should hear of them until some
time after."
The instructions to the Admiral were to report what happened.
A newspaper man could have done as much.
E.—Two years afterwards (1892) when Lord Salisbury objected
to renewing the modus vivendi of 1891, saying (18 March) that he
did not believe that
' I any necessity exists for the suspension of sealing for another year."
Mr. Blaine replied that in that case
"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 rights."
That was enough.    Lord Salisbury agreed to the modus.
Summary—The story of the next two years (1891-2)—how the
Canadians were excluded from Behring Sea by the action of the
British parliament, and the co-operation of the British with the
United States war-vessels—"will be related under a separate heading ;
and it will be convenient, at this point, to summarize the events
of the years 1886-90.
In 1886, three vessels were seized and one turned out of Behring
Sea. In 1887, six were seized, and one not permitted to enter the
sea. In 1888, no seizures, only threats. In 1889, five were seized
and two turned out of the sea. In all—fourteen vessels seized, and
four stopped. Fines and imprisonments moreover of some of the
officers, and transportation of the crews to United States' ports—
the Union Jacks carried away with the crews.
During all this period, only one serious protest was made, and The Behring Sea Seizures 83
that was not delivered until 14th June 1890—nearly four years after
the first  of the seizures.
There was never any insistance upon explanation or justification
of the seizures. Mild requests, at long intervals, were made; but
the first answer came only on the 14 September 1889 (three years
after the first of the seizures) and that was to the effect that )
"a categorical response would have been and still is impracticable, unjust to
this government, and misleading to the government of Her Majesty."
—a palpable evasion of which Lord Salisbury took no notice. It
was not until 22 January 1890, that the United States formulated
its defence, and to it Lord Salisbury made no reply until 22 May.
During all this period, the claims of the Canadian sealers remained in their pigeon-hole in Lord Salisbury's office. On one
flimsy excuse after another, and finally without any excuse, Lord
Salisbury declined to present them for payment.
During the years 1887-90, Lord Salisbury (at the urgent instigation of Canada) requested assurances of cessation of the seizures.
He received none. He forebore to press for them. And the only
direct reply which he ever got was (12 April 1887) to the effect that
when the instructions to the cruizers had been prepared, he would be
"so that British and other vessels visiting the waters in question can govern
themselves accordingly."
In truth, the United States treated the British communications
with the lightness and indifference which they rightly believed to
have actuated the sending of them. The United States were astute
enough to see that her difficulty was with Canada; that any interest
which the United Kingdom had in the matter was that of the fur-
dealers in London who were constantly plying Lord Salisbury with
arguments in favor of the United States' view; and that all Lord
Salisbury wanted was, while conceding all that was asked, to escape
(as far as possible) censure for the surrender.
During all this period the Canadian government urged, pressed,
appealed, remonstrated, in vain. To the British government, the
seizures, fines and imprisonments were nothing but "regrettable
That is the sort of "British protection" that Canada received on one of the two occasions on which she asked for it.
Before leaving the subject let us recall the Trent affair. In
that case two American citizens were taken from a British vessel.
The vessel itself was not taken, and no damage was done to anybody
I— The Behring Sea Seizures
or anything British. The flag had been insulted, and that alone
was enough to bring sharp demand for the liberation of the men
"and their delivery to your Lordship, in order that they may again be placed
under British protection, and a suitable apology for the aggression which has
been committed."
That had to be done within seven days, and if not, then, peremptorily—
"Your Lordship is instructed to leave Washington with all the members of
your Legation, bringing with you the archives of the LegatiOh, and to repair
immediately to London."
The Trent was a British vessel. s The seal-ships were Canadian.
It is extremely probable that from the very commencement of
the dispute, the United States felt that the seizures of Canadian
vessels on the high seas could not be justified, and that, very astutely,
her statesmen applied themselves to the task of securing from the
British Government, by friendly absent, such, prohibition of pelagic
sealing as would, in effect, give them all that they desired. It wad
for this purpose that they postponed discussion upon the mexits (a),
and instead, plied Lord Salisbury so successfully with arguments as
to the necessity for What they called a close season at sea (really prohibition) that they obtained from him-—without any previous reference to Canada—concurrence in their views.
Premising that the contention of Canada always was that, for the
preservation of the seal species, any prohibition of pelagic sealing was
unnecessary; that the partial depletion of the herd had been caused by
the land operations—(1) by marauders whose depredations were not
sufficiently guarded against, (2) by the reckless cruelties of the
American lessees; and that if any restriction were to be placed upon
Canadian pelagic sealing, it ought to be accompanied (1) by the same
restriction upon the operations of other nations, and (2) by proper
restrictions upon operations on the islands—premising that these
were the Canadian contentions, let us see how Lord Salisbury,
without Canada's consent or, indeed, without any consultation with
her, accepted the American view, and made such admissions as to
render Canadian success, either in diplomacy, or, afterwards, in arbitration, almost impossible.
(a) Although the first seizures took place in August 1886, it was not until 22 January 1890 '
that the United States first attempted justification.
f= The Behring Sea Seizures 85
The story must be told m three parts: (1) Lord Salisbury's
negotiations for permanent renunciation of Canadian rights; (2)
Lord Salisbury's agreement to a temporary renunciation of Canadian
rights (1891-2), and the co-operation of British with United States
war-ships for the purpose of enforcing that agreement as against the
Canadian sealers; and (3) Lord Salisbury's agreement to submit to
arbitration, the question whether, and to what extent, Canadian
vessels ought to give up their rights to take seals in the open sea—
the vessels of all other nations being left free to do as they
pleased, and the United States being permitted to slaughter all the
seals, if they so wished, on land. The facts relating to the first of
these subjects will be stated under the present heading.
1886-7.—The earlier advances of the United States are hinted
at, only, in the printed correspondence, but we are able to see that
the London fur trade, through Lampson & Co., almost at the inception of the difficulties (12 November 1886), and constantly afterwards, urged upon the British government the loss to British industries.
"should Great Britain deny the right of the United States' government to
protect the fishery in an effectual manner."
1887.—The correspondence shows that Mr. Phelps officially presented the matter of a closed season for pelagic sealing to Lord Salisbury on 11 November 1887, in an interview which he reported the
next day—
' ' His Lordship promptly acquiesced in this proposal on the part of Great
Britain, and suggested that I should obtain from my government and submit to
him a sketch of a system of regulations which would be adequate for the purpose."
1888.—The next United States letter to Mr. Phelps (7 Feb.)
directed submission to Lord Salisbury (as the requested sketch) the
necessity for
"concerted action to prevent their citizens or subjects from killing fur seals
with firearms, or other destructive weapons, north of 50 degree of north latitude,
and between 160 degree of longitude west and 170 degree of longitude east from
Greenwich, during the period intervening between 15th April and 1st November."
This area covers 30 degrees of longitude—not only in Behring
Sea (covering the whole eastern part of it), but in the north Pacific
Ocean also, and that the purpose of the suggestion was absolute
exclusion, appears from the fact (noted in the letter) that the period
mentioned included the whole time during which the seals are at the
islands. The letter does not omit to remind the British government
of British interests in the fur trade.
Mr. Phelps, thereupon, had an interview with Lord Salisbury and
of what passed between them there are two records.   Mr. Phelps's 86 The Behring Sea Seizures
letter to Washington (25 February) was as follows :—
"Lord Salisbury assents to your proposition to establish by mutual arrangement between the governments interested, a close time for fur-seals between
April 15th and November 1st in each year, and between 160 degrees of longitude
west and 170 degrees of longitude east in the Behring Sea.... He will also join
the United States government in any preventive measures it may be thought best
to adopt by orders issued to the naval vessels of the respective governments in
that region.  .
Lord Salisbury's letter of 22 February is as follows :—
"I expressed to Mr. Phelps the entire readiness of Her Majesty's Government to join in an agreement with Russia and the United States to establish
a close time for seal-pishing north of some latitude to be fixed" (a).
For present purposes, these statements are identical, for, according to either of them, Lord Salisbury had practically conceded the
contention of the United States as to the necessity for a close season
for pelagic sealing. As to the line of latitude " to be fixed," the subsequent correspondence shows that the only question was whether
it was to be the 47th or the 50th degree. Both of them are well to the
south of Behring Sea.
Having thus completely committed himself and Canada to a perfectly absurd proposal, Lord Salisbury asked the Colonial Secretary
(3 March) for—
"any observations he may have to offer on the subject."
Very properly, but probably much to the surprise of Lord Salisbury, the Colonial Office replied (12 March) that—
"it will be necessary to consult the Canadian Government on the proposal
to establish a close time for seals in Behring's Sea before expressing a final opinion
upon it."
Not content with the acceptance of proposals from the United
States for the voluntary surrender of Canadian rights, Lord Salisbury
suggested (without a word to Canada) that Russia should be brought
into the negotiations. The United States was interested in the eastern part of Behring Sea only (within the above mentioned limits), it
was Lord Salisbury who suggested that his renunciation should cover
the western part also. On the same day that he asked the Colonial Office
for its ' ' observations" (3 March), he wrote to the Russian ambassador
"I informed you a short time ago that the government of the United States
had proposed negotiations with the object of regulating the catching of fur seals
in Behring Sea. It would be a source of satisfaction to me if the Russian government would authorize your Excellency to enter into a discussion of the matter
with Mr. Phelps and myself.
(a) The same   words appear in Lord Salisbury's letter to the British Ambassador of 22
October 1890.
" The Behring Sea Seizures 87
Hard to believe, is it not? Russia having assented, a tripartite
conference was held (16 April) of which Lord Salisbury advised the
British Ambassador at Washington, on the same date:
"At this preliminary discussion it was decided, provisionally, in order to
furnish a basis for negotiations, and without definitely pledging our governments,
that the space to be covered by the proposed convention should be the. sea between America and Russia north of the 47th degree of latitude ; that the
close time should extend from the 15th April to the 1st November and
that as soon as the three Powers had concluded a convention, they should join
in submitting it for the assent of the other maritime Powers of the Northern Seas.' '
How could Canada hope to do anything after that ? The account
of the interview given by the American Ambassador (20 April) shows
that it was Lord Salisbury himself who proposed the 47th parallel—
"With a view to meeting the Russian government's wishes respecting the
waters surrounding Robben Island, he suggested that besides the whole of
Behring Sea, those portions of the Sea of Okhotsk and of the Pacific
Ocean north of north latitude 47 degree should be included in the
Lord Salisbury made that preliminary agreement without
States' Secretary (1 May) accepted the proposed terms, and an
agreement, though informal, was thus arrived at. That is what is
called "British protection"!
Canada's reply was dated 9 April—
"Such a close time could obviously not be imposed upon our fishermen
without notice or without a fuller discussion than it has yet undergone."
' ' It would appear to follow that, if concurrent regulations based upon the
American law were to be adopted by Great Britain and the United States, the
privileges enjoyed by the citizens of the latter Power would be little if at all curtailed, while British fishermen would find themselves completely excluded from
the rights which until lately they have enjoyed without question or molestation."
' ' In making this observation I do not desire to intimate that my government
would be averse to entering into a reasonable agreement for protecting the fur-
bearing animals of the Pacific Coast from extermination, but merely that a onesided RESTRICTION SUCH AS THAT WHICH APPEARED TO BE SUGGESTED IN TOUR
That seems to be clear enough, but the Colonial Office did not
like it. The negotiations for renunciation had been almost completed. Canadian sealing was to be stopped—to the satisfaction of
the United States—and Lord Salisbury was to be freed from all further trouble. Was Canada to upset all that ? Not if a little pressure
from the Colonial Office could help it, and so the following telegram 88 The Behring Sea Seizures
wa3 sent to the Governor General (21 April)—
"I have the honour to acquaint you that I have this day telegraphed to you,
with reference to your despatch of the 9th instant, that negotiations are proceeding between Russia, the United States, and Great Britain with regard to the
establishment of a close time, during which it would be unlawful to kill seals at
sea, in any manner, to the north of the 47th parallel of latitude between
the coasts of Russia and America, and inquired whether your Government WAS AWARE OF ANY OBJECTION TO THE PROPOSED ARRANGEMENT."
All that Canada could do was to repeat (25 April) what she had
already said—
"If proved to be necessary, Canadian government will be ready to join other
governments in adopting steps to prevent extermination of fur-seals in Northern
Pacific Ocean, but, before final agreement, desires full information and opportunity for considering operation of proposed close time.
Establishment of close time at sea only, would give virtual monopoly
of seal fisheries to Russia and United States; the latter Power owns the
most important breeding places, in which close time would not operate."
Was it stupidity, or ignorance, or indifference, or mere pressure
for assent, that dictated the following reply (9 May)—
"With reference to your telegram 25th April, would objections of your
government be met if proposal to take 50th degree north latitude be reverted to
instead of 47th?"
Of course they would not, and Canada answered (11 May)—
"The objections of the Canadian government would not be removed by the
substitution of the 50th instead of the 47th. parallel. A report on close time
question is in course of preparation. My government hopes that no decision
will be taken until you are in possession of it,"
The Canadian report is dated 7 July—
' ' The time proposed as close months deserves consideration, viz., from the
15th April to the 1st November. For all practical purposes, so far as Canadian
sealers are concerned, it might as. well read from the 1st January to the
31st December.
It is a well-known fact that seals do not begin to enter the Behring's Sea
until the middle or end of May; they have practically all left those waters by the
end of October. The establishment of the proposed close season, therefore,
prohibits the taking of seals during the whole year. Even in that case, if it
were proposed to make this close season operative for all, on the islands of St.
Paul and St. George as well as in the waters of the Behring's Sea, it could at least
be said that the close time would bear, equally on all.
But the United States' government propose to allow seals to be killed by their
own citizens on the rockeries, the only places where they haul out in Alaska
during June, July, September and October, four of the months of the proposed
close season. The result would be that while all others would be prevented from
killing a seal in Behring's Sea, the United States would possess a complete monopoly, and the effect would be to render infinitely more valuable, and maintain
in perpetuity, the seal fisheries of the North Pacific for the sole benefit of
the United States." The Behring Sea Seizures 89
" It is to be borne in mind that Canada's interest in this industry is a vitgl
and important one, that she has had a very large capital remuneratively employed
in it, and that while by the proposed plan the other Powers chiefly interested
have their compensations, Canada has none.   To her it would mean ruin so
That document put an end (for the moment) to the negotiations
for a voluntary permanent renunciation of Canadian rights. But
the effect of the British admissions—the nearly completed agreements
—remained, ancj were made good use of by the United States on three
subsequent occasions: (1) As justification for the seizures in the following year—1889 ; (2) As a reason for the temporary renunciations of
1891-2; and (3) Before the arbitrators, as evidence of what the United
Kingdom had thought to be reasonable restrictions upon Canadian
Lord Salisbury's account of the dropping of the negotiations is
to be found in his letter of 3 September—
"I pointed out the diniculties felt by the Canadian government, and said
that, while the scheme was favourable to the industries of the mother country, considerable apprehension was felt in Canada with respect to its possible effect on
colonial interests.
In other words: "I am very sorry that Canada declines to agree
to an arrangement that would be beneficial for you and me, but give
me time and all will come right." It did. Lord Salisbury and the
United States had their way.
1889.—Negotiations being at an end, the United State/ President
issued (22 March)-his proclamation threatening further seizures, and
Lord Salisbury, probably out of temper with the Canadians, declined
to take the smallest step. The Canadian Government (ante, p 69)
appealed unavailingly for protection. Lord Salisbury treated the
seizures with indifference—telling the Canadians to appeal to the
United -States' courts for redress (ante, p 71). And, probably feeling
that the seizures of their vessels would have produced, among Canadians, a more submissive state of mind, Lord Salisbury (without any
further communication with Canada) proposed (2 October) resumption of negotiations with the United States for a voluntary and
permanent renunciation of Canadian rights. The indispensable
' I time' ' had elapsed.
It is almost incredible that about seven weeks before he made
that proposal, Lord Salisbury had received from Canada a copy of A
report which had been made to the united states' house op
Representatives, by a committee specially appointed to con- w
90 The Behring Sea Seizures
Canadian view.    Part of that report is as follows—
' ' Let the Government take charge of this reservation, and, instead of killing
100,000, take 50,000 seals; and in doing this, let the selection be more thorough,
so that the 50,000 skins shall be strictly choice skins, that would average the
highest possible price. Then abandon the present policy of claiming the
Behring's Sea as an inland sea, which cannot be made to stand in the end.
Restrict the killing of seals within the 3-mile or 6-mile limit, whatever is decided
to be the limit of what a nation can hold authority over the high seas, and in
Lord Salisbury had not only received that report, but, in the
letter sending it to him (9 August), the Colonial Secretary had said—
"Lord Salisbury will observe that the last sub-inclosure to this despatch
tends to show that the shooting of seals in the open sea is not the wanton and
wasteful destruction of seal life which it is alleged to be by the authorities of the
United States."
Of that document Lord Salisbury took not the slightest notice,
and, having agreed to re-open the negotiations for voluntary renunciation, pressure was again applied upon Canada in order to obtain
her consent. On 23 November, the Colonial Secretary wrote to the
Governor General—
< c
T think I am right in concluding that the Dominion government is now
prepared to concur in any reasonable arrangement for the establishment of a
close season in Behring's Sea, and I therefore anticipate that your advisers will
agree with Her Majesty's Government in thinking it expedient to commence the
suggested negotiation at an early date, Her Majesty's Minister being assisted
during the negotiations by an officer or officers of the Canadian Government."
The negotiations had already been commenced. Canada renlied
(6 December) holding to her former opinion, but (foolishly, as I think)
.submitting, to some extent to be overrated by the Colonial Ofiice (a)—
"In reply to your telegram, Privy Council, at a meeting held to-day, recommend a reply to be sent as follows:—
1. Satisfactory evidence is held by Canada that the danger of extermination
does not really exist.
2. That if United States' Government holds different opinion the proposal
should be made by them.
If it is deemed expedient by Her Majesty's Government to initiate proceedings, Canadian authorities consent to a reopening of negotiations on the following
(a) That the United States abandon its claim to consider Behring's Sea
as a mare clausum, and repeal all legislation seeming to support that claim.
(b) That as in   the cases of the Washington Treaty 1871, the Fishery
Commission under that treaty, and the Washington Treaty 1888, Canada shall
have direct representation on the British Commission.
(a)    Canada  had a short time before (11 November) sent to the Colonial Ofiice another
argument against the proposal for close season. The Behring Sea Seizures 91
(c) The approval of Canada to any conclusions arrived at shall be necessary.
(d) Russia to be excluded from the negotiations in reference to compensation and seizures."
Mr. Blaine'o reply to this was reported by the British Ambassador (12 December)—
"Mr. Blaine at once expressed his absolute objection to such a
course. He said the question was one between Great Britain and the United
States, and that his Government would certainly refuse to negotiate with the
Imperial and Dominion Government jointly, or with Great Britain, with the
condition that the conclusions arrived at should be subject to the approval of
This and other points having been intimated to Canada, she sent
a reply (14 December)—
"Canada expects British Government not to conclude arrangement unless
Behring's Sea declared in it to be free. She adheres to opinion that agreement as
to close season and preservation of seals should be subject to her approval as one
of the parties chiefly interested in the question.
Agreement as to close season should be terminable by each of the parties
to the treaty. Canada fails to understand objection of the United States of
America to a Canadian being direct representative of Her Majesty's Government;
but to avoid delay will defer without further protest to course decided on by Her
Majesty's Government."
Mr. Blaine was quite right from his point of view, in objecting
to a Canadian representative. He knew that, but for Canada, he
could have obtained in the previous year all that he wanted; and he
knew what trouble Sir John A. Macdonald had made for one of his
predecessors in the negotiations of 1871. The British Ambassador,
too, did not wish that his proceedings should be embarrassed by the
necessity for obtaining the assent of Canada, and consequently when
the Colonial Office proposed (16 December) to say to Canada—
"that Her Majesty's Government is glad to find that the Dominion Government consents to the negotiations in the form proposed, and will consult that
Government at stages, and conclude no agreement as to a close time without their
approval, and requests that a representative of the Dominion Government may
be ready to proceed to Washington as soon as Sir J. Pauncefote has received his
the Ambassador urged (18 December) that
"It would be desirable that proposed communication of Colonial Ofiice to
Canada, as to her consent to close season agreement, be deferred."
1890.—Accordingly, without waiting for any concurrence on the
part of Canada, and although he knew perfectly well the Canadian
view of the situation, the British Ambassador, proceeded to discuss
the question of a close season with Mr. Blaine and the Russian
Ambassador.    On the 22 February, he wrote to Lord Salisbury— m
92 The Behring Sea Seizures
Mr. Blaine, M. de Struve, the Russian Minister, and I, held a preliminary
and informal meeting this morning, at which question of the area of the possible
arrangement was discussed.
Mr. Blaine and M. de Struve then proposed the following area: "From a
point on the 50th parallel north latitude, due south from the southernmost point
of the Peninsula of Kamtchatka; thence due east on the said 50th parallel to the
point of the intersection with the 160 meridian of longitude west from Greenwich;
thence north and east by a straight line to the point of intersection of the 60th
parallel of north latitude with the 140th meridian of longitude west from Greenwich (a).
The 50th parallel, as your Lordship is aware, was the southernmost limit
proposed by Mr. Bayard, and it need only be extended on the west to the Kamtchatka Peninsula, as M. de Struve states that there is no seal fishery in the Sea
of Okhotsk.
Bayard, and is quite sufficient for the necessities of the case."
That was all that he objected to. It was a wholly immaterial
point. And of the extent of his acquiescence Mr. Blaine afterwards
reminded him (29 May) when he was- objecting to the United States
intended interference with Canadian sealers.
"You will not forget an interview between yourself, the Russian minister,
and myself, in which the lines for a close season in Behring Sea laid down by Lord
Salisbury were almost exactly repeated by yourself, and were inscribed on
maps which were before us, a copy of which is in the possession of the
Russian Minister, and a copy also in my possession."
We have here, therefore, almost an exact repetition of the proceedings of the previous year—negotiations opened; then Canada's
assent asked; and, prior to her reply, an understanding that was
known to be objectionable to her, and, in. her opinion, quite unnecessary, arrived at. Canada afterwards did object, and fought the
matter out both in Washington and before the arbitrators in Paris.
Her case was a good one, and she succeeded in modifying very considerably the arrangements which Lord Salisbury and the British Ambaj-
jador had tentatively agreed to, but, weighted with their admission^
and the opposition at Paris of the English judge, she could not hope
for very great success.
Mr. C. H. (now Sir Hibbert) Tupper arrived at Washington, 25
February 1890 (three days after the above conversation), and from
that moment the negotiations took on a completely different aspect.
Henceforth the question for discussion is not one of area or time,
but whether there is any necessity for a close season of any kind. In
his next letter (1 March), reporting an interview with Mr. Blaine,
the British' Ambassador said that he had pointed out that it was
(a)    These limits take in, not only the whole of Behring Sea—from Russia to America—
but part of the Pacific Ocean to the south of the Aleutian islands. The Behring Sea Seizures 93
' ' Essential, in the first place, to examine the evidence on which the United
States' Government base their contention as to necessity for a close season."
No sufficient evidence (in Mr. Tupper's opinion) being offered,
the British Ambassador reported (18 March)—
"With reference to my despatch of the 1st instant, I have the honour to
report that the Behring's Sea negotiations have come to a deadlock, owing to a
conflict of evidence in regard to the necessity for a close season for the fur-seal
fishery. Mr. Blaine and M. de Struve both agree that the preservation of the
fur-seal species is the sole object in view; but they insist, at the same time, that
it will necessitate the total exclusion of sealing vessels from Behring's Sea during
the close season. Mr. Tupper, on the other hand, maintains that no close season
is necessary at all; but I believe the Canadian Government are ready to give way
to some extent on this point. Mr. Blaine says that the arguments on his proposal are exhausted, and has called upon me to put forward a counter-proposal.
I have accordingly prepared a draft convention, which, I venture to state, offers
the only prospect of a possible arrangement. Mr. Tupper left for Ottawa last
night, taking with him a copy of it, which he will submit for the consideration of
the Canadian Government."
The Ambassador further reported that Mr. Tupper
ROOKERIES AGAINST THE DESTRUCTION OF SEALS ON SHORE BY MARAUDING PARTIES. This would be effectually carried out by the United States' Government
by the employment of additional cruiaers, without necessitating the exclusion of
all sealing vessels from the Behring's Sea for any period."
That Mr. Tupper did good work when in Washington is evidenced
by the change wrought in the opinion of the Ambassador. Writing
on 24 July the latter said that the effect of the evidence produced
"was to satisfy my own mind that, while measures are called for to protect
female seals with young from slaughter during the well-known periods of their
migration to and from the breeding islands, and also to prohibit the approach of
sealing-vessels within a certain distance of those islands, the inquiry had failed
And yet, without that evidence, Lord Salisbury and the Ambassador had been negotiating for prohibition ! Mr. Tupper subsequently
(19 November) criticized the Ambassador's modified view as to the
necessity for the sort of protection he referred to.
After Mr. Tupper's return, the Ambassador reported (11 April)
that he (Mr. Tupper)—
"informed me that the Canadian Government objected to my proposed
draft of a Convention for the settlement of the Behring's Sea question in so far
as it admitted the necessity of a close season, and provided, although provisionally, for the exclusion of sealers within a certain radius round the breeding islands. 4S
94 .The Behring Sea Seizures
I understand that the principal objection of the Canadian.Government to
the radius clause is that it would practically have the effect of an admission that
it was necessary for the preservation of the fur-seal species; and they maintain
The Ambassador made another draft (29 April) which was approved by Canada. It proposed an inquiry as to the propriety of
regulations both on land and at sea, and meanwhile—
1. No seals to be taken (north of 50 degree of latitude) in May,
June, October, November or December, either on land or sea. July,
August and September were to be open.
2. As protection against marauders on the land, vessels not to
approach within 10 miles of islands.
Mr. Blaine objected, saying very effectively, amongst other
things, that—
"Lord Salisbury's proposition of 1888 was that, during the same months
for which the 10-mile privilege is now demanded, no British vessel hunting seals
should come nearer tothe Pribyloff Islands than the 47th parallel of north latitude
about 600 miles."
With Mr. Tupper at Washington (even as an assistant) Mr.
Blaine could do nothing, and the negotiations terminated {a). He
then tried to get Lord Salisbury to forbid the sailing of the Canadian
vessels, but Lord Salisbury had no sufficient legal authority. He
asked (11 June) that at least a proclamation might be issued requesting that the vessels
"should abstain from entering Behring Sea for the present season."
To this Canada had no objection (25 June) provided that, if the
vessels did go, there should be no interference with them; but that
did not suit Mr. Blaine's purpose, and so that proposal dropped.
When in 1871, the United States' plenipotentiaries made unreasonable demands (as Sir John A. Macdonald thought) the British
negotiators gave in, having (as Sir John said) —
' ' only one thing in their minds—that is to go home to England with a treaty
in their pockets settling everything, no matter at what cost to Canada"    (6).
When Sir Wilfrid Laurier and Sir Louis Davies found the United
States unreasonable in 1899, they came home without a settlement.
Mr. Tupper did the same in 1890. And he lost nothing. The United
States' cruizers indeed patrolled the sea during the ensuing season but, beyond warnings and threatenings, they refrained from interference.    Had Mr. Tupper submitted, we could not have hoped
(a)    Mr. Blaine   resented and complained (29 May) of the interference of Canada, as a
sufficient reason for Lord Salisbury's change of policy.
(6)    Pope, Life   of Sir John A. Macdonald, Vol. 2, p. 105. 1
The Behring Sea Seizures 95
for even the modicum of comfort which eventually we got out of
the subsequent arbitration.
Here we finish part two of the story, namely the relation of the
facts with reference to British protection in connection with the negotiations of 1888-90, for voluntary permanent renunciation of Canadian
right3. Lord Salisbury had, from the outset, either (1) accepted the
view of the United States as to the necessity for prohibition, or else
(2) he had determined to sacrifice the interests of Canada in order to
propitiate the United States—to sweep Canadian sealers from the
open ocean, not (as the leader of the British House of Commons
afterwards, 1 June 1891, said)—
' ' on the ground of absolute right or justice, but on the ground that it is a
friendly act towards a friendly Power"    (a).
The former of these suggestions cannot be the true one. There
is not the slightest evidence, or probability, that Lord Salisbury ever
examined the subject. If he had, and if he thought Canada in the
wrong, he ought to have given her some intimation of that fact. He
never did.
Whatever his reason, there is, unfortunately, no doubt that Lord
Salisbury was twice (1888 and 1890) on the point of making an agreement with the United States for prohibition of Canadian sealers not
only in Behring Sea but in the north Pacific Ocean; that the first
negotiations were terminated because of Canadian protest; that Lord
Salisbury then told the United States that he regarded the proposal
as "favourable to the industries of the mother country," and that he
"was still sanguine of coming to an arrangement, but that time was indispensable" ;
that he stood by, indifferent, while the seizures were renewed in
the following year; that, believing Canada, after such chastizing,
to be in more complacent humor, he decided (without communicating with Canada) to re-open the negotiations; that both he and
the British Ambassador at Washington arrived at a tentative understanding for prohibition, and that, once more, Canada (through
Mr. Tupper) succeeded in preventing the consummation of the
All attempts at permanent prohibition by consent being now
frustrated, we^have yet to see how, by the help of temporary renunciations and arbitration; the saine object was to some extent
achieved. Time, as Lord Salisbury had said was indispensable.
Time being taken, the thing Was done.
(a)    Hans. p. 1402. 96 The Behring Sea Seizures
1891.—Thus far we have been able to relate almost all of the
incidents of the negotiations. Lord Salisbury has been anxious to
accomodate himself to the wishes of the United States, but Canada
has declined to be sacrificed, and by her expostulations and pluck
has kept her sealers at work. From the narrative of the proceedings
of 1891, however, Canada must be almost entirely eliminated. Not
because she was inactive, but because almost all the papers which
would show what she said and did have been suppressed. British
blue-books have been printed containing some of the correspondence
between Lord Salisbury and the British Ambassador, and between
the United Kingdom and the United States, but, prior to the date
of the passage of a British act of parliament authorizing the British
government to prohibit sealing in Behring sea, only a simple, unintelligible telegram from Canada has been permitted to see the light.
The Canadian government, at one time, actually set the correspondence in type, but at the last moment (no doubt in "the interest
of the Empire as a whole") determined to conceal it. How do I
know that? Because the officials in charge of the printing of the
Canadian sessional papers forgot to alter the Table of Contents of
the volume in which the correspondence was to appear. Look at
the "List of Sessional Papers" at the beginning of volume 9 of 1891
and you will see—
8 b. Correspondence relative to the seizure of British vessels in Behring
Sea by United States' authorization in 1886-91. Printed both for distribution
and sessional papers."
But there is no such correspondence in the book, and we shall
have to get on as best we can without it. When we read the documents which we have, we shall, aided by what we now know of
Canada's attitude, and by gleanings of information here and there,x
be able to form some opinion as to the reason for the suppression
of the correspondence.
Early in April (1891) Mr. Blaine proposed, as a modus vivendi
for the coming season, cessation of killing both on land and sea.
Lord Salisbury replied enthusiastically (17 April), and the British
Ambassador thereupon told Mr. Blaine (20 April) that Lord Salisbury seemed to approve and wanted to know whether
"you would prefer that the proposal should come from them."
Mr. Blaine, finding that he was getting on so well, then proposed as The Behring Sea Seizures 97
an amendment (27 April, 5 May) that killing upon land, to the extent
of 7,500 should be permitted. That was forwarded to Lord Salisbury, and was ultimately agreed to.
Did Canada agree that her sealing should be stopped? All that
we know is as. follows, but it is probably enough: On 16 May (after
the proposal had been accepted) Lord Salisbury telegraphed the
British Ambassador—
"As soon as the Government of Canada have answered communication addressed to them I will reply to your telegram".
On 21 May, Lord Salisbury again telegraphed the Ambassador—•
"No definite reply has yet been received from Canada with regard to the
proposed modus vivendi in Behring's Sea".
On 27 May, Canada telegraphed (a)—
' ' With reference to your telegrams of the 17th and 23rd instant, the Government of the Dominion accede to the proposition of Her Majesty's Government,
provided that compensation be given to the sealers who may be prevented from
prosecuting their avocation, and that the authorities of the United States accept
at once the terms suggested by Her Majesty's Government, and concurred in by
the Dominion Government in August last, as an essential part of the same agreement."
On June 1, the Right Honorable W. H. Smith (leader of the
House) introduced into the British House of Commons a bill, the
principal clause of which (afterwards amended) was as follows:
"Her Majesty the Queen may, by Order-in-Council prohibit the catching
of seals by British ships in Behring Sea, or such part thereof as is denned by the
said Order, during the period limited by the Order."
Mr. Smith in opening said that Canada's consent to the bill
? * only reached us late last week."    And in reply, he said—
"The painful circumstances in which the government of the Dominion are
placed render it impossible for us to hold regular official communication with them,
and those which had passed were sufficient to satisfy us that the Dominion government were consenting parties to the proposals we had made to parliament subject
to the concession of compensation to British subjects for any loss they could be
shown to have sustained by reason of the prohibition, and to the acceptance of
the terms of arbitration by the United States' government" (b).
He further said—
" I do not urge the House to accept this bill on the ground of absolute right
or justice, but on the ground that it is a friendly act towards a friendly
Power" (c).
(a) This telegram is not printed in the British blue book covering its date. It does not
appear, either, in the next blue book—book of March 1892. It was thought not advisable to
publish it until the book of April 1892. Meanwhile a very misleading account was, officially
given of it—as we shall see.
(6)    Hans. p. 1634.    See also the remarks of Lord Salisbury, 8 June, p. 1807.
(c)    Ibid. 1402.
t. (T
98 The Behring Sea Seizures
ffi/. I am afraid that Mr. Smith was not very frank. Sir John A.
Macdonald was, at the moment, upon his death bed, but that had
not prevented governmental action. The above quoted telegram
of 27 May (' ' late last week") was a specific and official declaration of
the government's consent upon two conditions.
Nor was Mr. Smith correct in saying that Canada's second
condition was—
" the acceptance of the terms of tile arbitration by the United States'
That would have been to impose a wholly impracticable condition
for the arbitration negotiations were not nearly concluded, and it
was not until the 29 February of the following year that the agreement to arbitrate was signed.
Moreover the words of the telegram are that the United States
should accept.
"the terms suggested by Her Majesty's Government and concurred in by
the Dominion government in August last."
But all that had happened about arbitration "in August last" was
that Lord Salisbury had said that he was willing to arbitrate, and to
this there was no reply until 19 December.
For a third reason, Mr. Smith's version of the second condition
cannot be correct, for, if it were, faith with Canada and the British
parliament was not kept; for the modus was signed on 15 June, and
the terms of arbitration were not agreed to until the following year.
It would appear to be clear that the Canadian second condition
referred, not to an arbitation agreement at all, but to the terms of
the modus proposed, and concurred in when Mr. Tupper was in
Washington in April (see ante p. 93)—not August as the printed
telegram has it. Why do I say so? Because there were no terms
of any kind under discussion in August. Because the only terms
ever proposed and concurred in are those of April. And because
the official charged with the censorship of the papers, while carefully
suppressing the documents prior to the signing of the modus, overlooked the fact that much of what he was told to conceal appeared
in a Canadian Order-in-Council of a date (25 July) subsequent to the
modus. In that important document the Canadian government
after reiterating its views as to proposals for a close season proceeded:
"The undersigned, however, would again revert to the proposal forwarded
by Sir Julian Pauncefote to Mr. Secretary Blaine, 13th April 1890, which provided for just and equitable close times for seals in Behring's Sea, covering the
migrations to and from the breeding-grounds; and which was rejected by the
United States' Government."
"The undersigned, therefore desires to impress upon your Excellency this
aspect of the matter, with a view to avoiding, in any close season which might The Behring Sea Seizures 99
ultimately be agreed upon, a practical or actual surrender of participation in the
sealing industry by Her Majesty's subjects; and establishing the fact that the
carefully considered proposal already rejected by the United States contained
That is clear enough. Canada was willing to agree in 1891 to the
terms proposed by the British government in April 1890, and concurred in, then, by Canada. She was willing to do nothing else.
But Lord Salisbury, in utter disregard of this information, agreed
(15 June) to the complete exclusion " until May next", of Canadians
from the whole eastern part of Behring Sea. And he not only agreed
to that exclusion, but he agreed that the British navy should cooperate with the United States cruizers in the enforcement of the
exclusion. The British war-ships at last cleared their decks for
It will have been observed that one of the conditions of Canada's
assent to temporary exclusion was compensation to her sealers.
Who paid that ? If the United States was wrong (as she was) in her
denial of Canadian rights, the United States ought-to have paid it;
but Lord Salisbury did not suggest that. He tried to persuade
Canada to pay it or a part of it. Canada very properly declined,
and so he agreed to pay it out of the British exchequer. It
was a case similar to Canada's claims against the United States in
respect of the Fenian raids. The United States ought to have paid
for the damage done by her citizens, but she would not, so "as a
friendly act to a friendly Power" the United Kingdom withdrew the
claims (agreeing, at the same moment, to pay the United States'
Alabama claims) and offered to pay them herself!
1892.—The arbitration proceedings being in progress, the
United States proposed a renewal of the temporary exclusion until
the award should be given. Canada was consulted and replied (23
"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
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. '
The British and Canadian members of the joint commission that
had been appointed to study the whole question, having been asked 100 The Behring Sea Seizures
their opinion, replied—
' f We do not apprehend any danger of serious further depletion of
THIS YEAR, UNLESS EXCESSIVE KILLING BE PERMITTED ON THE BREEDING ISLANDS. As a judicious temporary measure of precaution, however, for this
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."
Lord Salisbury offered these terms to the United States (27
February) saying at the same time—
"The consent of Her Majesty's Government was given last year to a modus
vivendi solely on the ground that the perservation of the seal species in those
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-
Good for Lord Salisbury! To further urging by the United States,
he replied (18 March)—
"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."
"As a more equitable arrangement, mi^ht it not be agreed that sealing-
vessels shall be at liberty to hunt in Behrhuto bea 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 ? '
This curious idea of shouldering off all responsibility on to the
sealers—the idea that the United States should busy themselves
about security from individuals, was not acceptable to Mr. Blaine,
who, knowing Lord Salisbury's indifference about the whole matter,
replied (23 March) in truculent tone—
"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
rights. This, in the opinion of the President, 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 would 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
 -— The Behring Sea Seizures 101
States in stopping pelagic sealing promptly, and insists upon the maintenance OF FREE SEALING FOR BRITISH SUBJECTS, THE QUESTION NO LONGER
As in the Venezuela affair (1895-6) at the word of President
Cleveland, so now at the word of Secretary Blaine, Lord Salisbury
at once withdrew (26 March). The arbitation treaty being nearly
ready for signature, Lord Salisbury said that when it was complete,
he would agree to the modus—Her Majesty's government (he might
have added) having now (in the shape of a letter from Mr. Blaine)
information which has \ ' lead them to suppose that so drastic a measure is requisite"—
"Inform President that we concur in thinking that when the treaty shall
have been 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 ratified 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 lessees."
That was all that Mr. Blaine wanted, and a modus (to last
during the pendency of the arbitration) in exactly the same terms
as that of 1891 (with the addition of a damage clause) was signed
(18 April) without waiting for the ratification of the arbitration treaty
(7 May). There is no reason to think that Canada was consulted
prior to that surrender. The rapidity of the retreat left little time
for reference to the only people interested. As to what Canada
thought and said about it, the blue-books are silent.
Here then we have the facts relating to the voluntary, though
fortunately only temporary, renunciation of Canadian rights in Behring Sea. It was agreed to by the British government, and enacted
by the British parliament, not because either the government or the
parliament believed that it was necessary for the preservation of the
seal species, and not—
' ' on the ground of absolute right of justice, but on the ground that it is a
Would the British government have agreed to prohibit herring fishing 102 The Behring Sea Seizures
in the North Sea for the same kindly reason?
The reference to arbitration included two main points—(1) as
to the rights of the parties, and (2) in case the United States had no
•authority to interfere with Canadian sealers, then how much of Canada's right ought to be given up. The first of these references was proper ;'
the second was unqualifiedly wrong. Canada assented to the first.
To the second, she objected. Whether, eventually, pressure produced reluctant assent, the blue-books do not say.
What class of subjects can be, and usually are referred to arbitration? The form of the many arbitration treaties agreed to by
the United States supplies the answer, namely,
"Differences which may arise of a legal nature, or relating to the interpretation of treaties."
The form recently proposed for a treaty between the United
Kingdom and the United States was as follows—
"All differences... .relating to international matters... .by virtue of a
claim of right made by one against the other under a treaty or otherwise and
which are justiciable in their nature by reason of being susceptiple of
No argument is necessary to prove that a question of the extent
to which a nation ought voluntarily to renounce the exercise of an
undoubted right—either for the benefit of herself or another nation—is not one either "of a legal nature" or "justiciable."
In relating the facts connected with the making of the arbitration agreement, we are again handicapped by the absence of the
suppressed correspondence; but probably, here also, we shall find
that we have sufficient to lead us to two correct conclusions—(1) that
Canada's objection to submit any question as to renunciation of the
exercise of her rights, and more particularly to the submission of
renunciation of her rights at sea in thé absence of renunciation by the
United States of its rights upon land, and by other nations of their
rights at sea, was overruled, disregarded, or otherwise got rid off;
and (2) that, afterwards, before the arbitrators, British and Canadian
advocates did their best, but unavailingly, to modify the effect of the
British agreement to arbitrate such a question.
Consider Canada's position: She had always contended that
regulations for the killing of seals were much more necessary in res- The Behring Sea Seizures 103
pect of the land operations than with regard to pelagic work. To
regulate the operations of the Canadians on the water, while the
operations of the Americans on the land were left unregulated, would
manifestly be very unfair. And if it were said, in reply, that the
United States would herself enact and enforce such laws as were
necessary on the land, the sufficient answer was that Canada might
just as well be trusted to enact and enforce (against her own citizens) such laws as were necessary on the water.
It was also manifestly unfair that Canadians should be prohibited from sealing at sea, unless the citizens of other countries were
subjected to similar prohibition. In fact, Canadian success on the
question of international right, accompanied by prohibition of the
free exercise of that right, was a victory rather for other nations than
for Canada; inasmuch as, while the right of everybody to take the
seals had been established, Canada alone was partially deprived of
the benefit of the right. Foreigners were not slow to appreciate that
fact, and, for years after the award, although Canadians were, by its
effect, excluded from Behring Sea, Japanese and Russians did as they
pleased there. Canada had proved that the United States had no
right to stop them, and they were not (fortunately for them) colonies
of another country which had voluntarily agreed to stop them.
Before discussing responsibility for the reference to arbitration of that which ought not to have been referred, it will be convenient to set out the language of the reference, and to state the
effect of the prohibitions which were directed by the arbitrators:
The arbitration treaty provided that in case the United States
had no right to interfere with Canadian ships—
' ' 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."
Outside the jurisdictional limits" prevented the arbitrators
considering what regulations were necessary on hand. And a provision that the parties were "to co-operate in securing the adhesion
of other Powers to such regulations" prevented the arbitrators making
Canadian obedience conditional upon the assent of the other Powers
being obtained.
The regulations established by the arbitrators were as follows :—
1. No seals to be taken at any time within -60 miles of the
2. No seals to be taken between 1 May and 31 July in the Pacific
Ocean (including Behring Sea) north of 35 degree of latitude. (Lord
Salisbury's tentative agreement had extended from 15 April to 1 104 The Behring Sea Seizures
November—ante, p. 85, 6).
3. Sailing vessels (with the usual boats) only to be used.
4. No nets, explosives or firearms at any time or place; with the
exception of shotguns outside Behring Sea during the open season.
The history of the negotiations for the arbitration treaty (so far
as relates to the prohibitions) commenced with a proposal from Mr.
Blaine (17 December 189(0- On 21 February 1891, Lord Salisbury
replied that the question would "more fitly form the subject of a
separate reference." On 14 April, Mr. Blaine—assuming, as he said,
that Lord Salisbury did not actually object to the reference as to a
close time—proposed another form of words. On June 3, Lord Salisbury proposed that the matter should be referred to four experts,
and that the question should be
" For the purpose of preserving the fur-seal race in Behring Sea from extermination, what international arrangements, if any, are necessary between
Great Britain and the United States and Russia or any other power?"
Canada would have made no objection to that proposal, for it
covered her two points—(1) enquiry as to land regulations, and (2)
other nations to be equally bound. It looks as though, at this stage,
Canada had been consulted and her wishes regarded. On 25 June,
the United States (adhering to their proposal for inclusion of the
question in the arbitration) suggested the form of words which afterwards formed part of the treaty. On 13 July, the British Ambassador replied that he had been in telegraphic communication with
Lord Salisbury with reference to the proposals as to regulations
and damages, and that the latter was
"the only one which appears to me to raise any serious difficulty"
The reference to arbitration, therefore, of the question of voluntary renunciation, without either of the Canadian conditions, was
conceded, and Mr. Donald MacMaster, K.C, wa3 undoubtedly right
when he said—
' ' From that moment, the case, in so far as regulations were concerned, was
given away" (a).
Reference as to prohibitions having thus been agreed to, the
correspondence continued upon the damage question, and it was not
until 29 February of the following year (1892) that the treaty was
signed. Meanwhile, Canada had been informed of what had taken
place, and had pressed her objections. How am I aware of
that? Because, after five months, Lord Salisbury endeavored (23
November) to secure one of the Canadian objects by adding to
the agreed words, the condition
(a)    Pamphlet, p. 32 ; and see pp. 34-5. The Behring Sea Seizures 105
f ' that the regulations will not become obligatory on Great Britain and the
United States until they have been accepted by the other maritime powers.
Otherwise, as his Lordship observes, the two governments would be simply handing over to others the right of exterminating the seals."
Mr. Blaine assumed to be ruffled (27 November)—
' ' What reason had Lord Salisbury for altering the text of the article to which
he had agreed?"
"The President regards Lord Salisbury's second reservation, therefore, as
a material change in the terms of the arbitration agreed upon by this government;
and he instructs me to say that he does not feel willing to take it into consideration. He adheres to every point of agreement which has been made between the
two powers, according to the text which you furnished. He will regret if Lord
Salisbury shall insist on a substantially new agreement."
After telegraphing Lord Salisbury, the British Ambassador
gave (1 December) his reason for the proposal—
"There is nothing to prevent such third power (Russia, for instance, as the
most neighboring nation), if unpledged, from stepping in and securing the fishery
in the very seasons and in the very places which may be closed to the sealers of
Great Britain and the United States by the regulations."
And added—
"How is this difiiculty to be met? Lord Salisbury suggests that if, after
the lapse of one year from the date of the decree of regulations, it shall appear to
either government that serious injury is occasioned to the fishery from the causes
above mentioned, the government complaining may give notice of the suspension
of the regulations during the ensuing year, and in such case the regulations shall
be suspended until arrangements are made to remedy the complaint."
In reply to a further note from Mr. Blaine, the British Ambassador said—
" I do not understand you to dispute that should such a state of things arise,
the agreement must collapse, as the two governments could not be expected to
enforce, on their respective nationals, regulations which are violated under foreign
flags to the serious injury of the fishery."
Mr. Blaine was immovable, and Lord Salisbury gave in (11
December). In doing so, however, he made a reservation which
would have covered the point—
"Her Majesty's Government of course retain the right of raising the point
when the question of framing the regulations comes before the arbitrators, and
it is understood that the latter will have full discretion in the matter, and may
attach such conditions to the regulations as they may a priori judge to be neces-
ary and just to the two Powers, in view of the difiiculty pointed out."
Mr. Blaine flamed up again—
"After mature deliberation he (the President) has instructed me to say
that he objects to Lord Salisbury's making any reservation at all, and that he
cannot yield to him the right to appeal to the arbitrators to decide any point not
embraced in the articles of arbitration." The Behring Sea Seizures 106
"The President claims the right to have the seven points arbitrated, and
respectfully insists that Lord Salisbury shall not change their meaning in any
. particular.    The matters to be arbitrated must be distinctly understood before
the arbitrators are chosen."
Lord Salisbury, of course, succumbed, protesting that he had
been misunderstood—
"Lord Salisbury entirely agrees with the President in his objection to any
point being submitted to the arbitrators which is not embraced in the agreement;
and, in conclusion, his Lordship authorizes me to sign the articles of the arbitration agreement, as proposed at the close of your note under reply, whenever
you may be willing to do so."
One of the points absolutely essential (even in Lord Salisbury's
view) to the fairness of the form of the reference to arbitration, was
thus given up by Lord Salisbury; and the other one (enquiry and
directions as to regulations for killing on the land) he appears never
to have urged. I do not believe that Canada's assent was ever
obtained to the reference in the form agreed to. If it was, I am
Certain that it was given with the greatest reluctance, and for the
same old worn-out reason \ \ the interests of the Empire as a whole."
Have I any right in the absence of the suppressed documents to
say that? Yes, I have two principal grounds for the assertion—(1)
Any other conclusion would be inconsistent with what I have amply
shown to have been the position always maintained by Canada; and
(2) The Canadian Department, afterwards (1895), forgetting for the
moment the necessity for secrecy, printed as part of its annual
report, the following—
"The Canadian government earnestly- endeavored to keep the
question out of the realm of arbitration, seeking a decision on that of
right alone."
We see, then, how it came about that a question which ought
never to have been referred to arbitration, was so referred. Now let
us see how handicapped Canada was, in the discussions before the
arbitrators, by Lord Salisbury's admissions and assents.
The Arbitration.—There were five arbitrators—one British
(Lord Hannen), one Canadian (Sir John Thompson); two Americans; and three Europeans.    They, of course, declared
"that the United States has not any right of protection, or property, in the
fur seals frequenting the islands of the United States in Behring Sea, when such
seals are found outside the ordinary 3-mile limit."
And having so declared, they proceeded to provide the restrictions upon Canadian rights above mentioned. They said nothing
about land-regulations, and nothing about the concurrence or actions
of other nations.    Prohibition for Canadians on sea without any con-
\4 1
The Behring Sea Seizures 107
ditions as to anybody else (a) ; and freedom for Americans to do as
they pleased with the herd on land. That was the award, and that,
of course, is manifestly unjust. But it was the fault of the form
of the reference and not the fault of the arbitrators, for they had
nothing to do with either land operations by the United States, or
sea operations by anybody but the parties before them.
British advocates, rather cleverly but quite unsuccessfully,
endeavored to introduce into the discussion both of Canada's points.
In the British counter-case, they said—
' ' No such regulations can be just or effective unless accompanied by corres"
ponding and co-relative control over the islands and over the time, method, and
extent ol slaughter upon them by the nationals of the United States of America.
To enfcice regulations which would shut out British subjects at certain
seasons, and from prescribed areas, from the pursuit of pelagic sealing, and at
the same time would leave the slaughter of seals on the islands to be pursued
according to the mere will of the lessees of those islands or by their government,
would be o establish regulations one-sided in their character and therefore unjust,
and also ineffective, for the object in view, namely, for the preservation of seal life."
"It is submitted that if any regulations are to be prescribed, they ought
to be so framed as only to come into operation through the instrumentality of a
convent ion at which all the Powers interested shall be represented, and at which
proper provisions for their enforcement binding on the nationals of all such Powers
shall be formulated, or that they should be conditional upon the adhesion
That is all perfectly true, and being in a document delivered by
the British government to the government of the United States, must
be taken to be (as it undoubtedly was) the expression of the view of
the British government as voiced by its Attorney General. The
points are precisely those always maintained by Canada; urged by
her upon Lord Salisbury; and by him given up. Now, when too late,
they are not only adopted and advanced, officially, but British
Counsel are instructed to urge them upon the arbitrators. That
they did; but the arbitrators were bound by the form of the reference,
and could give no relief.
The discussion, therefore, was reduced to the question of the
extent to which Canada was to be forbidden to exercise her declared
right to hunt seals in the open sea. Upon that point we were hopelessly handicapped by Lord Salisbury's admissions and attempted
agreements, and the American advocates made full use of their
advantage. Mr. Phelps read to the arbitrators almost the whole of
the damaging correspondence above quoted (c) ; and when he came
to Lord Salisbury's statement that although Canada had ' ' appre-
(o) The sea-prohibition applied to Americans, but that was in accordance with America's
request and in pursuance of America's policy.    It was not an imposition.
(&)    Pp.  160,  161,  162..
(c) Proceedings pp. 1861-74. See also the reference to Lord Salisbury's provisional
agreement in the opinion read by W. Justice Harlan, one of the American Arbitrators. 108 The Behring Sea Seizures
hensions" as to the effect of the agreement which he had tentatively
agreed to, yet that he
"was still sanguine of coining to an arrangement, but that tême was indispensable" (a).
Mr. Phelps made the obvious comment
"If, as I said, he had been drawn hastily into this agreement, or had entered into some misunderstanding, or if Canada had presented some remonstrance which justified him in ac ing upon it and receding, he would have done
so, Instead op that, all through the summer he was saying "Time only
is necessary; we shall yet bring it about".
British and Canadian advocates were handicapped by Lord
Salisbury, and Sir John Thompson's efforts among the arbitrators
were embarrassed by the opposition of Lord Hannen. The arbitrators ordered perpetual exclusion from all the sea within 60 miles of
the islands; and although Mr. Blaine himself had at onetime (16 March
1891) confined his request to 25 miles, and although the United
States had never suggested the necessity for prohibition throughout
the whole year, Lord Hannen voted against Sir John Thompson's
objection to the clause.
Lord Hannen voted, also, in favor of the clause forbidding the
use of nets, firearms and explosives with the exception of shot guns
outside of Behring Sea.
He also voted for the following absurd provision—
"The two governments shall take measures to control the fitness of the men
authorized to engage in fur-seal fishing; these men shall have been proved fit to
handle with sufficient skill the weapons by means of which their fishing may be
carried on."
He also voted against Sir John's proposal to permit either
government to denounce the regulations after ten years.
But I make no charge or complaint against Lord Hannen. I
do not put him in the same category as Lord Alverstone, who (I do
not hesitate to say) played Canada (in the Alaska boundary case) a
treacherous trick. It was almost impossible that Lord Hannen
should not have come to a study of the facts with a strong prepossession in favor of the attitude assumed by Lord Salisbury. All
that I do say is that if Lord Salisbury had not shown himself so deferential and complacent, Canada would have had a better chance of
securing the support of Lord Hannen.    Indeed the question of
The reception given to the award in Canada, may fairly be judged
by the comments of the three Ottawa newspapers : The Citizen
(a)    See his letter of 3 September, 1888: ante, p. 88. The Behring Sea Seizures 109
' ' It may possibly be too early to draw these large inferences from the necessarily imperfect information conveyed by the cable, but it appears at present as
though the arbitrators had given us the shell, and handed over the kernel to
Uncle Sam."
The Journal said—
"There seems here another instance of the unsatisfactory results of Canadian
interests being in the hands of British diplomatists. Lord Hannen, the British
arbitrator, gave bis vote for the regulations in opposition to the Canadian arbitrator. The Behring Sea dispute would apparently have had little worse result
for Canada than this under any conceivable circumstances. It has been the
fashion of those opposed to Canadian independence to ask, 'How safe would
Canada be against the States without British backing?' And this question has.
constantly been asked in special connection with this Behring Sea dispute. Let
us ask now, 'Could Canada have well had the question settled more injuriously to
herself? If, undeterred by respect for Britain, the United States had said to
little Canada, ' Go to blazes, Behring Sea is ours, what do you propose to do about
it?'    Canada would have apparently been little worse off than she is now."
The Free Press said—
"From such 'protection' as that which has been accorded to our interests
by Lord Hannen, Canada may well ask to be delivered. The rights of the Dominion are once more sacrificed to placate the Americans. The lesson of the Behring Sea arbitration is that Canada should have the right to deal directly with
foreign nations."
The subsequent history was, in one important respect, unforeseen by everybody. Having found the hunting of seals to be very
remunerative, Canadians, excluded (to the extent above mentioned)
from their former resorts, crossed the Pacific and attacked the herds
that bred upon Russian and Japanese territory. That had been
foretold. On the other hand, the Japanese took advantage of the
decision of the arbitrators and operated freely in the localities from
which Canadians had been ejected. That, too, had been foretold.
But nobody had divined that the prohibition of Canadian rifles would
lead to what an American Secretary of State described as the
"marvellously increased efficiency of the pelagic seal-hunters in the use
of the shot-gun and the spear" (a) \
and to a preference for the spear, because of its non-disturbance of
other seals close by.
After the award, Mr. Phelps (one of the United States' counsel)
said that—
"the stringent regulations propounded in restriction of pelagic sealing will
amount, in my judgment, to a substantial prohibition of it and give the United
(a)    Olney to Gough, 24 June 1895. 110 The Behring Sea Seizures
States all the fruits they could have obtained by a decree in favor of the claim of
right" (a).
In other words, the United Kingdom had maintained her
principles, but the Americans had got the seals (a). A
single season's experience of the prohibitions of the award
having been sufficient to prove that the United States had miscalculated their effect—that they were not equivalent to total suppression—persistent efforts were made to obtain the assent of the British
government to increase their stringency. Canada, on the other hand,
wanted greater liberty. For years the matter was debated, and
finally (Canada now being strong enough to have her way) a reasonable agreement was made (7 July 1911) between the United Kingdom,
the United States, Japan and Russia, the principal terms of which are
as follows:—
1. No pelagic sealing north of 35 degree of latitude.
2. The United States to give to Canada 15 per cent, of the
skins taken on her territory; and 15 per cent to Japan.
3. Russia to give to Canada 15 per cent, of the skins taken upon
her territory; and 15 per cent to Japan.
4. Japan to give to Canada 10 per cent, of the skins taken upon
her territory; 10 per cent, to Russia; and 10 per cent to the United
5. The agreement to last 15 years.
That is a reasonable arrangement. Pelagic sealing is expensive,
and, to some extent (by loss of wounded animals and the killing of
females), wasteful. At the same time, it is a profitable industry and
one that Canada has a right to engage in. As against proposals for
voluntary renunciation of the exercise of that right,,she protested
and struggled. And now, although meanwhile compelled to suffer the
wanton seizures of her ships, and although handicapped by the indifference and concessions of British diplomacy, she has by her pluck and
perseverance, and by her increasing assertion of her right to control
her own foreign relations, at length succeeded in obtaining a settlement which is not only fair but which is consistent with her self-
When we remember that Lord Salisbury had agreed tentatively,
(both in 1888 and 1890) to the voluntary permanent renunciation
of Canadian rights in all the waters north of the 47th degree of north
latitude between 15 April and 1 November; that he had agreed absolutely, to temporary renunciation of those rights in 1891, 2 and 3;
that he had agreed to refer to arbitration the question of the extent to
which those rights ought to be voluntarily renounced; that he had
(a) The Empire, 17 Aug.1893. The Behring Sea Seizures 111
so handicapped Canada in the reference, that (1) the arbitrators had
no power to regulate the operations of the United States on land; (2)
that the arbitrators had no power to make Canadian exclusion conditional upon similar exclusion of other nations; and (3) that the
arbitrators were, inevitably, strongly prepossessed in favor of the
United States by the admissions and arrangements of Lord Salisbury—when all that is recalled, we must, in order to have been able
at last to force the United States to a reasonable settlement, have not
only had, originally, an extraordinarily strong case, but have had, as
well, a certain amount of good fortune.
Lord Salisbury would have voluntarily given away Canada's
rights. By the present arrangement we may get half a million a year,
and more, besides retaining our self-respect.
Conclusion—In confirmation, and as partial summation, of
gt has been said, let us listen to the language made use of by Mr.
^Bibbert Tupper, ten years after the first of the seizures— 112 The Behring Sea Seizures
have been so persistently practised. But that, also, would be too
much to expect, for the hollowness of the pretence is not apparent
to them. To British statesmen a few cod-fish on the Atlantic, or a
few seals on the Pacific, or a few thousand square miles of Canadian
territory are not of much importance. In matters of any moment
(by which they mean any interruption of their sovereignty over
Canada, or of the benefit which they derive from that sovereignty)
they would unanimously assert that "the last man and the last
shilling" etc.
I find no fault with British statesmen, but, in view of the facts
referred to in this Paper, I do object to a Canadian statesman lauding
the advantages of British protection, and talking in the following
"In time of dangerous riot and wild terror in a foreign city, a Canadian
religious community remained unafraid. Why did you not fear? they were
asked; and unhesitatingly came the answer, 'The Union Jack floated over us" (a).
I ,f ' -*^'mi ft"fc-^.*~~£i^a^w ¥o. T^n;n  mi r   in— ■y  v m   a ■ t'■ ——Bu.    <-     *3B??£$!     ■** T?P^\timfrmm^^S^^
skins taken on her territory; and 15 per cent to Japan.
3. Russia to give to Canada 15 per cent, of the skins taken upon
her territory; and 15 per cent to Japan.
4. Japan to give to Canada 10 per cent, of the skins taken upon
her territory; 10 per cent, to Russia; and 10 per cent to the United
5. The agreement to last 15 years.
That is a reasonable arrangement. Pelagic sealing is expensive,
and, to some extent (by loss of wounded animals and the killing of
females), wasteful. At the same time, it is a profitable industry and
one that Canada has a right to engage in. As against proposals for
voluntary renunciation of the exercise of that right,,she protested
and struggled. And now, although meanwhile compelled to suffer the
wanton seizures of her ships, and although handicapped by the indifference and concessions of British diplomacy, she has by her pluck and
perseverance, and by her increasing assertion of her right to control
her own foreign relations, at length succeeded in obtaining a settlement which is not only fair but which is consistent with her self-
When we remember that Lord Salisbury had agreed tentatively,
(both in 1888 and 1890) to the voluntary permanent renunciation
of Canadian rights in all the waters north of the 47th degree of north
latitude between 15 April and 1 November; that he had agreed absolutely, to temporary renunciation of those rights in 1891, 2 and 3;
that he had agreed to refer to arbitration the question of the extent to
which those rights ought to be voluntarily renounced; that he had
(a) The Empire, 17 Aug.1893.


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