Mr. Wharton to Sir Julian Pauncefote.
Washington, June 9, 1891.
Sir: I am directed by the President, in response to your note of June 8, delivered this morning, to say that he regrets that, at the moment when the two Governments seemed to have reached an agreement in this matter (which is one calling for the utmost promptness of action), new conditions should be suggested by Lord Salisbury. With the acceptance of the proposition submitted in my last note, relating to permission to British agents to visit the seal islands, an agreement had been reached upon all the conditions that had been previously discussed or suggested in this connection. The President does not object to the modification of his proposal suggested in the first article submitted by you, for he assumes that the terms used, while not as strong, perhaps, as those suggested by this Government, do fully commit the Government of Great Britain to prompt and energetic measures in the repression of the killing of seals by the subjects and vessels of that nation.
The proposal submitted by you on June 3 contained this clause: “During the period above specified the United States Government shall have the right to kill 7,500 seals.” Now, his lordship adds a most extraordinary, and not altogether clear, condition (I quote), “to be taken on the shores and islands as food skins, and not for tax or shipment.”
This new condition is entirely inadmissible and, in the opinion of the President, inconsistent with the assent already given by Her Majesty’s Government to the proposition of the United States in that behalf. It had been particularly explained in the correspondence that the lessees of the privilege of taking seals upon the islands assumed obligations to supply to the natives the food and other things necessary for their subsistence and comfort, and that the taking of the limited number of seals was not only to supply flesh to the natives, but, in some part, to recompense the company for furnishing other necessary articles of food, clothing, and fuel. The President is surprised that it should now be suggested that none of these skins should be removed from the island, and he can not understand how British interests can be promoted by allowing them to go to waste.
The previous communications of Her Majesty’s Government had, in the opinion of the President, concluded this matter.
As to the third clause of your proposition, I am directed to say that the contention between the United States and Great Britain has relation solely to the respective rights of the two Governments in the waters of Behring Sea outside of the ordinary territorial limits, and the stipulations for the coöperation of the two Governments during this season have, of course, the same natural limitation. This is recognized in articles 1 and 2 of your proposal, for you will observe that the obligation assumed by Her Majesty’s Government is to prohibit seal-killing in a certain part of Behring Sea, whereas the obligation assumed in the second article by the Government of the United States is to prohibit seal-killing in the same part of Behring Sea and the shores and islands thereof, the property of the United States. The killing, therefore, of seals on the islands or within the territorial waters of the United States falls only within the prohibition of this Government. His lordship will also see that it is altogether beyond the power of the President to stipulate that an offense committed in the undisputed territory of the United States against its laws shall be triable only in the courts of another nation. [Page 566] The extension of this clause to the territory and territorial waters of the United States, therefore, involves an insuperable legal difficulty on our part and a concession which no independent Government could be expected to make. The mutual police, which is to be stipulated for, could not, in the nature of things, apply to the territorial waters within the undisputed and exclusive jurisdiction of either.
To the fourth clause, which is in substance the same as the proposition made by this Government, no objection is interposed.
As to the fifth clause, I am directed to say that the President regards the proposition to appoint a joint commission to investigate and report as to what regulations or international agreements are necessary to preserve the seal fisheries to be one of the incidents of the agreement for arbitration and to have no proper place here. This distinction seems to have been recognized by his lordship, and his proposal of such a commission was made part of the separate note discussing the terms of arbitration presented by you on June 3, and has never until now appeared in the correspondence relating to a modus vivendi. The President thinks the fourth clause, which has been accepted, makes ample present provision, but will give a full consideration to the suggestion of a joint commission in connection with the negotiation for arbitration.
To the sixth and last clause the President directs me to say that, so far as he is aware, no vessel bearing the Russian flag has at any time intruded into the waters described in the proposed agreement. He is entirely in sympathy with the expressed desire of Lord Salisbury to secure such limitations as to the hunting of seals in the whole of Behring Sea as will preserve to mankind this valuable industry; but he does not think that an agreement to unite in any joint note to Russia should be interposed here and at this time. Moreover, Lord Salisbury will perceive that, in the present state of the American law, if Russia should ask for reciprocal action by this Government west of the treaty line, the President would be confronted with the same difficulty that prevented him from extending the agreement with Her Majesty’s Government to the whole of Behring Sea.
As the President understands, the adhesion of the two Governments has been given in this correspondence to the following proposition:
For the purpose of avoiding irritating differences and with a view to promote friendly settlement of the questions pending between the two Governments touching their respective rights in Behring Sea and for the preservation of the seal species, the following agreement is made without prejudice to the rights or claims of either party:
- (1)
- Her Majesty’s Government will prohibit, until May next, seal-killing in that part of Behring Sea lying eastward of the line of demarcation described in article No. 1 of the treaty of 1867 between the United States and Russia, and will promptly use its best efforts to insure the observance of the prohibition by British subjects and vessels.
- (2)
- The United States Government will prohibit seal-killing for the same period in the same part of Behring Sea and on the shores and islands thereof, the property of the United States (in excess of 7,500 to be taken on the islands for the subsistence and care of the natives), and will promptly use its best efforts to insure the observation of this prohibition by United States citizens and vessels.
- (3)
- Every vessel or person offending against this prohibition in the said waters of Behring Sea, outside of the ordinary territorial limits of the United States, may be seized and detained by the naval or other duly commissioned officers of either of the high contracting parties, hut they shall he handed over as soon as practicable to the authorities of the nation to which they respectively belong, who shall alone have jurisdiction to try the offense and impose the penalties for the same. The witnesses and proofs necessary to establish the offense shall also be sent with them.
- (4)
- In order to facilitate such proper inquiries as Her Majesty’s Government may desire to make with a view to the presentation of the case of that Government before arbitrators and in expectation that an agreement for arbitration may be arrived at, it is agreed that suitable persons designated by Great Britain will be permitted at any time, upon application, to visit or to remain upon the seal islands during the present sealing season for that purpose.
The President directs me to inform you that the Government of the United States is ready to conclude this agreement, if it can be put into force immediately. The value of such an agreement to the United States is daily lessening, and the President therefore feels that he must ask that the negotiations be brought to a speedy determination.
I have, etc.,
Acting Secretary.