Mr. Blaine to Sir Julian Pauncefote.
Washington, April 14, 1891.
Sir: The modifications which Lord Salisbury suggests in the questions for arbitration do not wholly meet the views of the President; but the President changes the text of the third and fifth in such manner, it [Page 549] is hoped, as will result in an agreement between the two Governments. While Lord Salisbury suggests a different mode of procedure from that embodied in the sixth question, the President does not understand him actually to object to the question, and he therefore assumes that it is agreed to.
The six questions as now proposed by the President are as follows:
- First. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?
- Second. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?
- Third. Was the body of water now known as the Behring Sea included in the phrase “Pacific Ocean,” as used in the treaty of 1825 between Great Britain and Russia 5 and what, rights, if any, in the Behring Sea were held and exclusively exercised by Russia after said treaty?
- Fourth. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea, east of the water boundary described in the treaty between the United States and Russia of March 30, 1867, pass unimpaired to the United States under that treaty?
- Fifth. Has the United States any right, and if so, what 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?
- Sixth. If the determination of the foregoing questions shall leave the subject in such position that the concurrence of Great Britain is necessary in prescribing regulations for the killing of the fur seal in any part of the waters of Behring Sea, then it shall be further determined: First, how far, if at all, outside the ordinary territorial limits it is necessary that the United States should exercise an exclusive jurisdiction in order to protect the seal for the time living upon the islands of the United States and feeding therefrom? Second, whether a closed season (during which the killing of seals in the waters of Behring Sea outside the ordinary territorial limits shall be prohibited) is necessary to save the seal-fishing industry, so valuable and important to mankind, from deterioration or destruction? And, if so, third, what months or parts of months should be included in such season, and over what waters it should extend?
The President does not object to the additional question respecting alleged damages to English ships, proposed by Lord Salisbury, if one condition can be added, namely, that after the issues of the arbitration are joined, if the United States shall prevail, all the seals taken by Canadian vessels during the period shall be paid for at the ordinary price for which skins are sold. This seems to the President to be the complement of Lord Salisbury’s proposition, and he doubts not that it will secure his lordship’s assent.
In the first paragraph of Lord Salisbury’s dispatch of February 21 he makes the following declaration:
It is now quite clear that the advisers of the President do not claim Behring Sea as mare clausum, and, indeed, that they repudiate that contention in express terms.
Lord Salisbury’s expression is put in such form as to imply (whether he so intended I know not) that the United States had hitherto been resting its contention upon the fact that the Behring Sea was mare clausum. If that was his intention it would have been well for his lordship to specify wherein the United States ever made the assertion. The emphatic [Page 550] denial in my dispatch of December 17 last was intended to put an end to the iteration of the charge and to eliminate it from the current discussion.
Lord Salisbury complains that I did not deal with certain protests, written by Lord Londonderry and the Duke of Wellington in 1822, which he had before quoted. If he will recur to the twenty-sixth and twenty-seventh pages of my dispatch of December 17, he will observe that I specially dealt with these; that I maintained and, I think, proved from the text that there was not a single word in those protests referring to the Behring Sea, but that they referred, in the language of the Duke of Wellington of the 17th of October, 1822, only to the lands “extending along the shores of the Pacific Ocean from latitude 49° to latitude 60° north.” In the first paragraph of Lord Londonderry’s protest of January 18, 1822, addressed to Count Lieven, of Russia, he alluded to the matters in dispute as “especially connected with the territorial rights of the Russian Grown on the northwest coast of America bordering on the Pacific Ocean, and the commerce and navigation of Sis Imperial Majesty’s subjects in the seas adjacent thereto.” From these and other pertinent facts it is evident that the protests of Lord Londonderry and the Duke of Wellington had nothing whatever to do with the points now in issue between the American and British Governments concerning the waters of the Behring Sea. They both referred, in different but substantially identical phrases, to the territory south of the Alaskan peninsula bordering on the Pacific, and geographically shut out from the Behring Sea. I regret that my arguments on a point which Lord Salisbury considers of great importance should have escaped his lordship’s notice.
In Lord Salisbury’s judgment the contention of the United States now rests wholly upon the ukase of 1821 by the Emperor Alexander I of Russia. The United States has at no time rested its argument solely on the ground mentioned, and this Government regrets that Lord Salisbury should have so misapprehended the American position as to limit its basis of right in Behring Sea to the ukase of 1821. The United States has, among other grounds, insisted, without recurring to any of its inherited and superior rights in Alaska, that this Government has as full authority for going beyond the 3–mile line in case of proved necessity as Great Britain possesses.
Two or three instances of the power which Great Britain exercises beyond the 3–mile line have already been quoted, but have failed thus far to secure comment or explanation from Lord Salisbury. Another case can be added which perhaps is still more to the point. In 1889, only two years ago, the British Parliament enacted a law, the effect of which is fully shown by a map inclosed herewith. Far outside the 3–mile line the Parliament of Great Britain has attempted to control a body of water situated beyond the northeastern section of Scotland, 2,700 square miles in extent, and to direct that certain methods of fishing shall not be used within that great body of water under a prescribed penalty. It will be observed that the inhibition is not alone against British subjects, but against “any person.” I here quote the pertinent section of the Parliamentary act in question:
7 (1) The Fishing Board may, by byelaw or byelaws, direct that the methods of fishing known as beam trawling and otter trawling shall not be used within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to be defined in such byelaw, and may from time to time make, alter, and revoke byelaws for the purposes of this section, but no such byelaw shall be of any validity until it has been confirmed by the secretary for Scotland.
(2) Any person who uses any such method of fishing in contravention of any such byelaw shall be liable, on conviction under the summary jurisdiction (Scotland) acts, to a fine not exceeding five pounds for the first offense, and not exceeding
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twenty pounds for the second or any subsequent offense, and every net set, or attempted to be set, in contravention of any such byelaw may be seized and destroyed or otherwise disposed of as in the sixth section of this act mentioned.
If Great Britain may thus control an area of 2,700 square miles of ocean on the coast of Scotland, why may not the United States prescribe a space around the Pribyloff Islands in which similar prohibitions may be enforced? The following would be the needed legislation for such a purpose by Congress, and it is but a paraphrase of the act of Parliament:
The Fur-Seal Board may, by by-law or by-laws, direct that the methods of sealing known as spearing, or harpooning, or with firearms, shall not be used within a line drawn from the shores of the Pribyloff Islands, 60 miles in the Behring Sea, and said Board may, from time to time, make, alter, and revoke by-laws for the purpose of this section; but no such by-law shall be of any validity until it has been confirmed by the Secretary of the Treasury.
Second. Any person who uses any such method of sealing in contravention of such by-laws shall be liable on conviction to a fine not exceeding $100 for the first offense and not exceeding $500 for the second or any subsequent offense, and every spear, harpoon, or firearm attempted to be used in contravention of any such by-law may be seized and destroyed or otherwise disposed of as said Fur-Seal Board may direct.
It must not escape observation that the area of water outside the 3–mile line on the coast of Scotland, whose control is assumed by Great Britain, is as large as would be found inside a line drawn from Cape Cod to Portland harbor, on the New England coast.
Lord Salisbury reasserts his contention that the words “Pacific Ocean,” at the time of the treaty between Russia and Great Britain, did include Behring Sea. Undoubtedly the Pacific Ocean includes Behring Sea in the same sense that the Atlantic Ocean includes the Gulf of Mexico, and yet it would be regarded as a very inaccurate statement to say that the Mississippi River flows into the Atlantic Ocean. I think Lord Salisbury fails to recognize the common distinction between the “Atlantic Ocean” and “the waters of the Atlantic.” While the Mexican Gulf is not a part of the Atlantic Ocean, it would, I am sure, comport with general usage to say that it belonged to the waters of the Atlantic; and, while Behring Sea is not technically a part of the Pacific Ocean, it undoubtedly belongs to the waters of the Pacific.
The English Channel would not ordinarily be understood as included in the term “Atlantic Ocean.” One would not say that Dover or Calais is on the coast of the Atlantic Ocean, and yet clearly the English Channel belongs to the waters of the Atlantic. In point of fact, therefore, according to the usage of the world, there is no dispute of any consequence between the two Governments on the geographical point under consideration. The historical point is the one at issue. The explanatory note from Russia filed in the State Department of this country, specially referred to in Mr. John Quincy Adams’s diary and quoted in my note of December 17, 1890, plainly draws a distinction between the Pacific Ocean on the one hand, and the “Sea of Okhotsk, the sea of Kamsehatka, and the Icy Sea” on the other; and so long as Russia drew that distinction it must apply to, and must absolutely decide, all the contentions between the two countries as far as the waters of the Behring Sea are concerned. To discuss this point further would, in the opinion of the President, contribute nothing of value to the general contention.
In the opinion of the President Lord Salisbury is wholly and strangely in error in making the following statement:
Nor do they [the advisers of the President] rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international law, it would not otherwise possess.
The Government of the United States has steadily held just the reverse of the position which Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rearing their young thereon, that their going out from the islands in search of food and regularly returning thereto, and all the facts and incidents of their relation to the island, give to the United States a property interest therein; that this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest so far as recognition is impliedly abstaining from all interference with it during the whole period of Russia’s ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore prevailing.
I have, etc.,