Mr. Uhl to Lord Gough .
Washington , June 8, 1895 .
My Lord: I have the honor to acknowledge the receipt of the ambassador’s note of May 20, 1895, in continuation of previons correspondence concerning the scope of the arrangements entered into between the two Governments with regard to seal hunting in the award area.
Sir Julian takes the ground, first that no “arrangements,” in the sense of an agreement, had been entered into between himself and the Secretary of the Treasury except that Mr. Carlisle’s draft of the proposed regulations for 1895 should be submitted to Her Majesty’s Government for approval and concurrence; and second, in effect, that the order in council for 1895 in terms excluded, as did the orders of previous years, any arrangement for the sealing up of arms on board sealing vessels in transit through the award area during the closed season.
As expressly declared in my note of May 18, it was not understood that the ambassador had authority to bind his Government, or had undertaken definitively to do so, without a formal transmission of the proposed regulations. The fact remains, however, as already stated by me, that an understanding or agreement was reached between Sir Julian and the Secretary of the Treasury as to the form and substance of the regulations in question, which agreement, in the form of regulations prepared by them respectively and reduced to writing, was to be submitted to the President and to Her Majesty’s Government for approval. Not only was a formal counter draft of those regulations submitted by the ambassador to the Secretary of the Treasury, but the final form agreed upon between them contained many changes suggested by him; and indeed, after the agreed draft had been sent to the President for signature, Sir Julian’s letter of January 20 to Mr. Carlisle pointed out certain words evidently inserted by mistake, and referred to the draft as an “arrangement.”
Further, Sir Julian is pleased to say that it appears to have entirely escaped the observation of this Government that the “arrangements” mentioned in the order in council of 1895, as well as in all previous British orders in council, as having been made between the two Governments, are expressly stated to be arrangements for giving effect to Articles IV and VII of the regulations prescribed by the Bering Sea award, which relate to the form of license, the distinctive flag, and the fitness of the men employed; wherefore his excellency asserts that no inference could possibly arise from the language of the order in council that the “arrangements” therein mentioned extended to the proposed renewal of an arrangement respecting the sealing up of arms. I beg to submit that the point to which his excellency refers was not overlooked by this Government in view of the identity of the provisions of the order of 1895 with those of the previous orders in council to which his excellency adverts. Knowing that the order of 1894 referred to arrangements agreed upon between the two Governments as stated in Sir Julian’s note to Mr. Gresham of May 10, 1894, and knowing also that those arrangements expressly included regulations for the sealing up of fishery implements at the request of the masters of the sealing vessels, it was not obvious that by repeating the same provisions Her Majesty’s Government intended in 1895 to exclude a part of the regulations which were included in the order of 1894. Otherwise a conclusion (entirely untenable) follows that the slightly varied recital of the order of February 2, 1895, must have concealed a positive decision reached [Page 634] by Her Majesty’s Government at that early date, to reject the provisions of the arrangement of January relative to the sealing up of arms, which decision was not announced to this Government until the 11th of May following.
So far as touches his excellency’s assertion that no inference could properly be drawn that the “arrangements” mentioned in the order of 1895 embraced also the securing under seal of the equipment of sealing vessels as provided for in sections 4, 5, and 6, of the draft regulations of 1895, I have the honor to reply that no arrangements whatever have been entered into between the respective Governments during this year on the subject in question, other than the “arrangements” contained in the draft from which were phrased the regulations of 1895, promulgated by the President on January 18, and that the reference in the order in council of 1895 could only have related to the draft of regulations prepared by the ambassador and Mr. Carlisle. That the effect of the order in council in limiting the word “arrangements” to articles IV and VII of the award (thus by necessary implication ratifying the corresponding articles 1, 2, and 3, of the draft of regulations) was not regarded by the British Government as a refusal to concur in the remaining articles of said regulations, is made evident by the fact that formal notification of such refusal was deemed necessary by the ambassador’s note of May 11.
Until that refusal was thus tardily communicated to this Government, I repeat that we had every reason to believe that the order in council of February 2, 1895, as communicated by Sir Julian to Mr. Gresham on the 6th March last, related to the antecedent “arrangements” of January last, precisely as did the order in council of 1894 relate to the earlier “arrangements” of that year. Either an arrangement was entered into this year on the basis of the draft of regulations of January last, including the securing under seal of the outfit of vessels as well as the form of the distinguishing flag, special license, and fitness of seal hunters, or there was no arrangement whatsoever made this year. Her Majesty’s Government can not, without manifest inconsistency, rely on the first three articles of the draft while at the same time repudiating the remainder.
I note the ambassador’s suggestion that the cause of the delay on the part of Her Majesty’s Government in communicating its conclusions in regard to the draft regulations of January last is due to the careful inquiry entered into as to the working of the “arrangements” during 1894, as a result of which inquiry it appeared that the masters of sealing vessels objected to the practice of having their outfit secured under seal after the experience of last season. The only two cases mentioned in Sir Julian’s note upon which to base the contention of Her Majesty’s Government that the agreement between the two Governments of May 4, 1894, was violated had occurred long prior to the date of the negotiations between Sir Julian and Mr. Carlisle. Correspondence in regard to the Wanderer had been exchanged some weeks before between your embassy and this Department without suggestion of complaint on this particular score. On February 2, 1895, the date of this order in council, Her Majesty’s Government, as stated in my previous note of May 18, presumably had in its possession the draft of regulations of January. It also presumably had the report of the Canadian minister of marine and fisheries to the Governor-General in council, dated January 9, 1895, in which full statistics of the catch of 1894 were given, as also log-book entries of vessels entering Bering Sea, in which report no mention [Page 635] whatsoever is made of any dissatisfaction with the regulations of 1894. At the time this report was published all the sealing vessels had returned from the cruise of 1894, and on February 2, 1895, the date of the passage of said order in council, a large number of them had already left for the cruise of 1895.
Under all these circumstances it becomes my duty to again express the deepest regret that Her Majesty’s Government could have allowed such a space of time to elapse before giving to this Government notice of its refusal to concur in the regulations drafted by the ambassador and the Secretary of the Treasury in January last, and this delay is all the more to be regretted for the reason that the majority of the vessels of the United States patrolling fleet have sailed under instructions that the regulations of 1895 apply to British as well as to American vessels. I must therefore again express the judgment of this Government that it was entitled to prompt notice respecting the acceptance or rejection of those arrangements, adding that it was in nowise bound to regard the tardy communication to it of the order in council of the 2d of February, 1895, as a notice of the refusal, in whole or in part, to accept those draft regulations.
Under all these circumstances this Government must disclaim in advance any imputable responsibility for any consequences of the delay in making known such refusal, not conceding, however, that any would otherwise exist.
I have, etc.,
Acting Secretary.