Mr. Wharton to Sir Julian Pauncefote.
Washington, March 22, 1892.
Sir: I am directed by the President to say that your note dated the 19th instant and delivered on the 20th instant (Sunday) has had his immediate attention, in view of what he deems to be the extreme urgency and gravity of the matter under discussion. The urgency grows out of the fact that much further protraction of this discussion will make any modus that may be agreed upon ineffectual to protect the interests of the United States and will give to the Canadian sealers practical immunity, by reason of the impossibility of communicating to them the agreed restrictions. It is known to this Government that the sealers have hastened their departure to escape notice of a possible modus and [Page 626] that every day almost adds to the fleet that must now be overhauled at sea. Already forty-seven Canadian vessels have cleared for the sealing grounds (as against thirty-one all the same date last year), and are engaged in following up and destroying the seal herds. These vessels will, if not stopped and turned back at the passes, go into the Behring Sea and pursue to the very shores of our islands the slaughter of the mother seals seeking the accustomed rookeries to be delivered of their young. This is a crime against nature. This Government expects to show, if the arbitration proceeds, that female seals constitute the larger per cent of the catch of the pelagic sealers.
That, in view of this serious and confident contention of this Government, his lordship should assume that another year’s suspension of such sealing is not necessary “to prevent an undue diminution of the seal herds” and should insist that pending an arbitration it shall go on, precisely as if no arbitration had been agreed upon, is as surprising as it is disappointing. If Her Majesty’s Government so little respects the claims and contentions of this Government as to be unwilling to forbear for a single season to disregard them, the President can not understand why Lord Salisbury should have proposed and agreed to give to those claims the dignity and standing which a reference to a high court of arbitration implies. From the moment an arbitration was agreed upon neither party was at liberty to disregard the contentions of the other.
It must be assumed that the sincere purpose of the two Governments was to promote peace and good will, but if, pending the arbitration, either deals with the subject of it solely upon the basis of its own contention and in utter disregard of the claims of the other, this friendly end is not only not attained, but a new sense of injury and injustice is added, even if it should be found possible to proceed with an arbitration under such conditions. For it must not be forgotten that if Her Majesty’s Government proceeds during this sealing season upon the basis of its contention as to the rights of the Canadian sealers, no choice is left to this Government but to proceed upon the basis of its confident contention that pelagic sealing in the Behring Sea is an infraction of its jurisdiction and property rights. His lordship will hardly fail to see this. Herein, in the opinion of the President, consists the gravity of the present situation, and he is not willing to be found in any degree responsible for the results that may follow the insistence by either Government during this season upon the extreme rights claimed by it. In his opinion, it would discredit in the eyes of the world the two great Governments involved if the paltry profits of a single season should be allowed to thwart or even to disturb the honorable and friendly adjustment of their differences, which is so nearly concluded; but if his lordship shall adhere to his refusal to unite with us in prompt and effective measures to stop pelagic sealing, and shall insist upon free sealing for British subjects, the question, as it affects this Government, is no longer one of pecuniary loss or gain, but one of honor and self-respect.
This Government, notwithstanding the fact that its right to take seals upon the Pribyloff Islands is undisputed and wholly uninvolved in the arbitration, has proposed to take no profit from the island catch, but to limit the taking of seals to the necessities of the natives of those islands, and it can not consent that, with indemnity or without, the contested rights of British subjects to catch seals in the Behring Sea shall be exercised pending the arbitration. The President finds it difficult to believe that Lord Salisbury is serious in proposing that this Government shall take separate bonds from the owners of about [Page 627] one hundred Canadian sealing vessels to indemnify it for the injury they may severally inflict upon our jurisdiction or property, and must decline to discuss a suggestion which only his respect for Lord Salisbury and his belief that his lordship has a due appreciation of the gravity of this discussion enable him to treat with seriousness.
We should doubtless have to pursue and capture upon the sea many of the owners of those vessels to secure the bonds suggested, and as the condition is to be that the obligors shall pay “any damages which the arbitrators may adjudge,” while the treaty gives the arbitrators no power to adjudge any damages, the transaction would be without risk to the obligors and of no value to us.
This Government can not consent to have what it believes to be its rights destroyed or impaired pending their determination by an agreed tribunal, however adequate the security offered. The reference in my last note to the inconsistency of Her Majesty’s Government in denying responsibility for the acts of the Canadian sealers was not intended to suggest a willingness on our part under any circumstances to see our property converted into a claim for damages, and particularly as such a claim can not now be heard or determined by the arbitrators without a reformation of the treaty, for his lordship must remember that while he now offers what he mistakenly calls “security for satisfying any damages which the arbitrators may adjudge,” he has already carried his point in the treaty that the arbitrators shall have no jurisdiction to award any damages.
As to his lordship’s suggestion, that Canadian sealers may have some claim for compensation if Great Britain shall restrain pelagic sealing, the President directs me to say that he is not able to see how the citizens or subjects of either of the treaty powers can by any rule of law or equity support any claim against their respective Governments growing out of such necessary trade restraints as the Governments may lawfully impose to promote the larger considerations of the public good and international peace.
The suggestion that the conclusions of the board of arbitration may not be reached and announced in time to govern the conduct of the parties during the season of 1893 is, I think, fully provided against by the treaty itself.
His lordship is mistaken as to the time that has elapsed since the signing of the Delagoa Bay agreement with Portugal. It is not four years old, but less than one, the date of signing being June 13, 1891.
If the present treaty is promptly ratified and exchanged, our mutual interest would be an ample guaranty against delay. The President has found no obstacle in the way of such a consummation, except the belief now unfortunately very prevalent here that the refusal of Great Britain to agree to the preservation of the status quo of the property during the arbitration, and her insistence that pelagic sealing shall go on, to the injury, if not destruction, of our rights, largely defeats the object of the treaty.
The President directs me to say, in conclusion, that the modus of last year is the least that this Government can accept. In reason, the restraints, after a treaty of arbitration, should be more absolute, not less. He does not desire to protract this discussion, and having now in the most friendly spirit submitted the considerations which support the just demand of this Government that the property which is the subject of an agreed arbitration shall not be subject to spoliation pending the arbitration, he expresses the hope that Lord Salisbury will give a prompt and friendly assent to renew the modus.
[Page 628]The President will hear with regret that Her Majesty’s Government continues to assert a right to deal with this subject precisely as if no provision had been made for a settlement of the dispute; and, in that event, this Government, as has already been pointed out, will be compelled to deal with the subject upon the same basis, and to use every means in its power to protect from destruction or serious injury property and jurisdictional rights which it has long claimed and enjoyed.
I have, etc.,
Acting Secretary.