and from the 1st of October to the 30th of December, that, during the intervening period, in order to prevent the raiding of the breeding islands, vessels engaged in the fur-seal fishery should be prohibited from approaching such islands within a radius of ten miles; that vessels found engaged in the fur-seal fishery contrary to the prohibitions of the convention should be liable to confiscation, and their masters and crews to fine and imprisonment; that every offending vessel or person might be seized and detained by the naval or other duly commissioned officers of any of the high contracting parties, but that they should be handed over as soon as practicable to the authorities of the nation to which they respectively belonged, for trial and punishment.'

Rejection of the
Proposal.

On the 11th of May Sir Julian Pauncefote, after an interview with Mr. Blaine, reported to his government that the latter would within a week send a communication in which he would explain why the United States could not accept the draft in its original form, though he thought a basis of arrangement was offered by the proposal. On the 22d of May, however, a statement appeared in the newspapers to the effect that it had been decided at a meeting of the Cabinet to reject the proposal, and that instructions had been issued to the United States revenue cutter Bear to arrest pelagic sealers in Behring Sea. Sir Julian Pauncefote personally remonstrated against the publication of the statement in the press before any response had been made to the pending proposal and against the issuance of such instructions while negotiations were in progress. Mr. Blaine did not deny the truth of the statement, but replied that the press could not be controlled; that an answer to the proposal had been delayed in order to return a joint reply with Russia, and that the draft convention was quite inadequate to the necessities of the case. He especially protested against that part of the draft which contemplated the prescription of regulations on land, and explained that his former expression of opinion that the draft offered a basis of negotiation by saying that he then had in mind the question of arbitration. On the following day Sir Julian addressed to Mr. Blaine a formal note, in which he referred to the statement in the newspapers, and said that, as it had been confirmed by

1 For Rel. 1890, 410-417.

"Case of Great Britain, Fur Seal Arbitration, V. 515–516.

Mr. Blaine on the preceding day, he was instructed by Lord Salisbury to state that a formal protest by Her Majesty's government against any such interference with British vessels would be forwarded without delay. On the 29th of May Mr. Blaine replied that he was 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 Sea, but which are doing violence as well to the rights of the civilized world." Mr. Blaine declared that prior to April 23, 1888, Lord Salisbury had "in every form of speech assented to the necessity of a close season for the protection of the seals," and that the "change of policy made by Her Majesty's government” in offering instead a mixed commission of experts to determine the questions at issue, and in the mean time a limited zone of protection around the islands, was, in the President's belief, the cause of all the differences that had followed. Nevertheless, he said that he was instructed by the President to state that, while the proposal of April 29 for a convention could not be accepted, the United States would continue negotiations in the hope of reaching an agreement that might conduce to a good understanding and leave no cause for future dispute, and to propose that, as it was too late to conclude the negotiation in time to apply its results to the current season, Her Majesty's government agree not to permit British vessels to enter Behring Sea during that season, in order that time might be secured for negotiation without the risk of its disturbance by untoward events.1

Seizures.

On the 2d of June Mr. Blaine again wrote to Formal Protest Sir Julian Pauncefote, stating that he had hac Against Further a prolonged interview with the President in relation to the fur-seal question, and that as an arbitration could not be concluded in time for the pending season the President most anxiously desired to know "whether Lord Salisbury, in order to promote a friendly solution of the question, will make for a single season the regulation which in 1888 he offered to make permanent."2 Replying to this inquiry, Sir Julian Pauncefote, in a note of the following day, said he had no doubt that the words used by Mr. Blaine had reference "to the proposal of the United States that British sealing vesFor. Kel. 1890, 424-429. 2 Id. 429.

sels should be entirely excluded from the Behring Sea during the seal fishery season." He should not, he said, attempt to discuss whether what took place "in the course of the abortive negotiations of 1888" amounted to an offer on the part of Lord Salisbury "to make such a regulation permanent;" but it would suffice for his present purpose to state that further examination of the question had satisfied his lordship "that such an extreme measure as that proposed in 1888 goes far beyond the requirements of the case." Her Majesty's government were, said Sir Julian Pauncefote, willing to adopt all measures which should be satisfactorily proved to be necessary for the preservation of the fur-seal species, and to enforce such measures on British subjects by proper legislation; but they were not prepared to agree to such a regulation as that which had been suggested in 1888, for the pending season, since, apart from other considerations, there would be no legal power to enforce 'its observance on British subjects and British vessels. To this note Mr. Blaine replied on the 4th of June, maintaining that the most extreme measure proposed in 1888 came from Lord Salisbury himself, and that a larger measure of protection than that which had lately been offered by Great Britain was requisite. He declared that the President sincerely regretted "that his considerate and most friendly proposal for adjustment of all troubles connected with the Behring Sea should be so promptly rejected." On the 6th of June Sir Julian Pauncefote wrote that, pending further instructions, he would abstain from pursuing the discussion on the various points with which Mr. Blaine's last note dwelt, and would only observe that, as regarded the sufficiency or insufficiency of the ten-mile radius which he had proposed on behalf of his government, no opportunity was afforded him of discussing the question "before the proposals of Her Majesty's government were summarily rejected."2

On the 9th of June Sir Julian Pauncefote communicated to Mr. Blaine an extract from a telegram which he had just received from the Marquis of Salisbury, in which the latter expressed regret that the President should think him wanting in conciliation, but observed that he could not refrain from thinking that the President did not appreciate the difficulty arising from the law of England. It was, said Lord Salisbury,

For. Rel. 1890, 430-432. 2 Id. 432.

entirely beyond the power of Her Majesty's government to exclude British or Canadian ships from any portion of the high seas, "even for an hour, without legislative sanction." Mr. Blaine then suggested that Lord Salisbury might "by public proclamation simply request that vessels sailing under the British flag should abstain from entering the Behring Sea for the present season." Sir Julian Pauncefote cabled this suggestion to Lord Salisbury, but again pressed for an assurance that British vessels would not be interfered with in Behring Sea while negotiations continued; and on the 14th of June, having failed up to that time to obtain such an assurance, and having learned from statements in the public press and other sources that the revenue cutters Rush and Corwin were about to be dispatched to Behring Sea, he communicated to Mr. Blaine the formal protest of his government against the renewal by the United States of "acts of interference with British vessels navigating outside the territorial waters of the United States." The protest concluded with the declaration "that Her Britannic Majesty's government must hold the Government of the United States responsible for the consequences that may ensue from acts which are contrary to the established principles of international law." 3

On the 27th of June Sir Julian Pauncefote Conditions Pro- communicated to Mr. Blaine the formal reply posed by Lord Sal- of the Marquis of Salisbury to the suggestion isbury. that he should issue a proclamation requesting British vessels to abstain from entering Behring Sea. Lord Salisbury's answer was that such action presented 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 Sea controversy, and on certain conditions which would justify the assumption by Her Majesty's government of the grave responsibility involved in the proposal. These conditions were: (1) That the two governments agree forthwith to refer to arbitration the question of the illegality of the seizures of the British vessels engaged in taking seals in Behring Sea outside of territorial waters during the years 1886, 1887, and 1888; (2) that, pending the award all interference with British sealing vessels should ab

For. Rel. 1890, 433.

2 Mr. Blaine to Sir Julian Pauncefote, June 11, 1890, For. Rel. 1890, 433. 3 For. Rel. 1890, 434-436.

solutely cease; (3) that the United States, if the award should be adverse to them on the question of legal right, should compensate British subjects for the losses which they might have sustained by reason of their compliance with the British proclamation.'

gument on Questions of Right.

While these negotiations were going on the Lord Salisbury's Ar- discussion of questions of legal right was also proceeding. On the 5th of June 1890 Sir Julian Pauncefote left at the Department of State a copy of an instruction from the Marquis of Salisbury of May 22, 1890, in answer to Mr. Blaine's note of the 22d of the preceding January. With regard to the argument advanced in that note, Lord Salisbury said it was obvious that two questions were involved: First, whether the pursuit and killing of fur seals in certain parts of the open sea were, from the point of view of international morality, an offense contra bonos mores, and, secondly, whether, if such were the case, this fact justified the seizure on the high seas and subsequent confiscation in time of peace of the private vessels of a friendly nation. Referring to a special message of President Tyler to Congress of February 27, 1843, Lord Salisbury said it was an axiom of international maritime law that such action was admissible only in the case of piracy or in pursuance of special international agree ment. The pursuit of seals in the open sea had never been considered as piracy by any civilized state. Even in the case of the slave trade, a practice which the civilized world had agreed to look upon with abhorrence, the right of arresting the vessels of another country could be exercised only by special international agreement, and no one government had been allowed that general control of morals in this respect which Mr. Blaine claimed on behalf of the United States in regard to seal hunting. But Her Majesty's government, said Lord Salisbury, must also question whether the killing of seals could of itself be regarded as contra bonos mores, unless and until for special reasons it had been agreed by international arrangement to forbid it. Fur seals were indisputably animals fera naturæ, and these had universally been regarded by jurists as res nullius until they were caught, and no person, therefore, could have property in them until he had actually reduced them to possession by capture. As to the argument that the fur seal fisheries had been exclusively controlled by Russia and

For. Rel. 1890, 436.