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THE differences between the United States of America and Qreat Bribiin, the subject of this Arbitration, arise out of claims by the United States of America to limit and interfere vith Bri^h vessels fishing in the waters of Behring Sea other than the territorial waters thereof. Prior to the year 1886 British vessels had, m otAnmon with the vessels of the United States and those of other nations, navigated and fished in the cn-territorial waters of Behring Sea without interference. In 1880 the British schooner " Thornton " was arrested when fishing 70 miles south-east of 8t. George Island, the nearest land. The vessel wus libelled in a District Court of 'the United States by the District Attorney, the charge formulated being that the vessel was "found engaged in killing fur-seals within the limits of Alaska Territory and in the waters thereof, in viohition of Section 1966 of the BeYuod.St}tUites of the United States." 8..ifc.d«i««vW-'-''^''':^'?^^'''*°'^ "^- ^ Sayward" .!_ A 11- -'. ' ^gjg jiW MixedVlmfl were condemned in 1887 by th^'Dtsti;^)t ^iKt ,4^, Alaska, upon the ground iiflt" BuJgia' £taJ'int- ment or to fill a varancy as above provided, then in such case tho appointment shall be made or the vacancy shall Iw filled in such manner as the High Contracting Parties shall agree. "ARTICLE II. "The Arbitrators nhall meet at Paris within twenty days after the delivery of the countcr-caaes mentioned in Article IV, and s'all proceed impartially and carefully to examine and decide the questions that have lieen or shall be .^aid before tliem as herein provided o.i the part of the Oovemmenta of Her Britannic Majesty and the United States respectively. All questions considered by the Tribunal, including the final decision, shall be determined by a majority of all the Arbitrators. " Each of the High Contracting Parties shall also name one person to attend the Tribunal as its Agent to represent it generally in all matters connected with the arbitratioa " ARTICLE III. " The printed Case of each of the two parties, accom- panied by the documents, the official correspondence, and other evidence on which each relics, bIiaH lie delivered in duplicate to each of the Arbitrators anil to the Agent of the other party us soon as may be after tho appointment of tlie members of the Tribunal, but within a period not exceeding four months from the date of the exchange of the ratifications of this Treaty. "ARTICLE IV. •„ !' .Willi^' tjiie^' iitonths after the delivery on both sides ^(k''tliA',pri|itfed'-C}toe/ fjither party may, in like manner, dclivil'i'inp.djuplicate to each of the said Arbitrators, and to t}ie-Agcnt:qffhe.other (!artv,a counter-case, and additional .{(GieumiiDU,:o4rt^})r what waton sucli ICegnla- tiona ahould extend, and to aid them in that deieniiiuation, the llepott of a Joint Commiasion, to be appointed by the teapective Ooremmenti, shall be laid before them, with ■uch other evidence aa either QoTenunent may submit. "The High Contracting Parties furthermore agree to oo^perate in securing the adhesion of other Powo;'; to •uoh Itegulations. "ARTICLE VIIL "The fli '' upon a refcicnce which shall include the question ' r tuo liability of each Tor the injuries alleged to hav' o«n su >. 'ongor delay the snlimissioii aud deter- minatiuii oi uio main questions, do agree timt either may ■ubmit to '.'no Arbitrators any ([ucntion of I'&ct invoiv\:d in laid claims, a. ^. uk for a tinding thereon, the question of the liability of either (>over":"eut iii)on tlio facts found to be the subject uf further negotiatiou. " ARTICLE IX. "TheHig*. Contracting Parties having agreed to .'ijipoint two Commissionvn on t!;e part of each Govemmi'nt to moke the joint iuvu::tti);.ition aud Jteport c(>ut«mi)latod in the precixliut; Article VII, and to include the temui of the said Agreement in the present Convention, to the i-iid that the j<>ir;t uud several lieports and recnmmcndations of said ConiniiaRioncrs may be in duo form submitted to the Arbitrators, should the contingency therefor arise, tin- sfiiil Agreement is accordingly herein included as follows : — " Eoch Government sholl apiwinl two ConimiMsionem lo investigate, conjointly with tlio Commissioners of the other Government, all the facts having relation to seal life in Beluing Sea, and tlio measures necessary for its proper protection and prcscrvatiou. " The four Commissioners shall, so far as they may be able to agree, make n joint Report to each of the two Governments, and they sluill also rt'])ort, either jointly or severally, to each Government on any points upon which they moy lie unable to agree. " These Reports shall not l>e made public until thcy shc!' be submitted tu the Arbitrators, or it sliall uppciir th.it ' e contingency of their being used by the Arbitrators oannot arise. "ARTICLE X "Each Government shall pay the expen.ses of its members of the Joint Couunis.sion in the investigation referred tu in the preceding Article, "ARTICLE XI. " Tlie decision of tlie Tribunal Khali, if jwsiilJe, be made within three nion.hs from the clo.se of the iirgumcnt oii both sides. [B22] C PWPi^WW 6 " It shall bo made in writing and dated, and shall be signed by the Arbitra'ton who may assent to it. " The decision shall be in duplicate, one copy whereof shall be delivered to the Agent of Great Britain for hia Government, and the other copy shall be delivered to the Agent of the United States for his Government " ARTICLE XII. " Kach Government shall pay its own Agent, and pro- vide for the proper remimeration of the counsel employed by it and of the Arbitrators appointed by it, and for the expense of preparing and submitting its case to the Ti'ibunaL All other expenses connected with the Arbitra- tion shall be defrayed by the two Govemmedts in equal moieties. "ARTICLE XIIL " The Arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessary ofiicers to assist them. " ARTICLE XIV. " The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration as a full, perfect, and tinal settlement of all the questiona referred to the Arbitrators. 'ARTICLE XV. " The present Treaty shall be duly ratified by Her Britannic Majesty and by the President of the United States of America, by and with the odvicc and consent of the Senate thereof ; and the ratifications shall he exchanged eitlier at Washington or at London within six months from the date hereof, or earlier if possibla " In fnith wliereof, we, the respective Pler.ipotentiaries, have signed this Treaty, and have hereunto afHxed our seals. " Done in duplicate, at Wasliington, the 29th day of February, 1892. (LS.) "JULIAN PAUNCEFOTE. (L.S.) "JAMES a. BLAINE." Arrangement of Case. The first three points of Article VI are as follows : — " 1. Wliat exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia a.ssert and exercise prior and up to tlie time of the cession of Alaska to the United States ? " 2. How far where these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain 1 Points of Argoment " 3. Was the 'ix)dy of water now known as the Behrinf^ Sea included in the phrase ' Pacitic Ocean,' as used in the Treaty of 1825 between Great Britain luid Russia ; and what rights, if any, in the Beliring Sen, were lield and exclusively exorcised by Russia after said Treaty ?" It is proposed in the iirst instance to deal with thesb points, which relate to Russia's claim to certain rights in Behring Sea, the alleged recog- nition and concession of these rights by Great Britain. The questions therein raised will be considered under tho following heads : — (A.) Tho user up to the year 1821 of Behring Sea and other waters of tho North Pacific. (B.) The Ukase of 1821 and the circumstances connected therewith leading up to the Treaties of 1824 and 1826. (C.) The question whether the body of water now known as Behring Sea is included in the phrase " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia. (D.) The user of the waters in question from 1821 to 1867. It is then proposed to consider point 4 of Article VI, which is as follows : — " 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea cast of the water boundary, in tho Treaty between the United States and Russia of the 30th March, 1867, pass ^inimpaired to the United States under that Treaty ?" This point will be considered under the follow- ing heads : — (E.) Whpt rights passed to the United States under tho Treaty of March 30, 1867 ? (F.) The user of a legislation affecting tho waters in question from 1867 to 1886. (G.) The contentions of the United States since the year 1886. Point 5 of Article VI will then be considered. The subject of Article VII The questions arising under Article VIII will be dealt with separately. Miiihfeiiliiiiiiill •JP.IIWH ■ Chapteb I. Hkab (,A).—Tht User, up to the year 1821, of the Waters of Behrinrj Sea and other Waters of the North Pacific. It is showa in the following chronological seriea of historical notes that the vatcrs subse- quently included in the claim made by Russia under the Ukase of 1821, had been freely navigated over, and employed for purposes of trade and for other piurposes, by ships of various nations, from the earliest times. Further, that the discovery and exploration of these waters and the coasts and islands washed by them, was largely due to the navigators of several nations, and in particular to those of Great Britain. The waters in question include the entire area of what is now known as Behring Sea, though that sea is not specifically mentioned under any name, either in the Ukase of 1821 or in the antecedent Ukase of 1799. In dealing with the user of these waters, the entire area of waters covered by the Ukase of 1821 is therefore rightly included, the facts relating to any part of this area having equal force. It will be noted in this Convention that the limit claimed under the Ukase extended south- ward to the 51st parallel; and that, therefore, any events occurring to the north of ^54" 40', which is the southernmost part of the territory now known as Alaska, ai-e well Avithin this limit. The Pacific Ocean as a whole was in the last century and in the earlier part of the present century variously named the Pacific, or Great Ocean or South Sea, the last name arising from the circumstance that it had been reached by sailing southward round the Cape of Good Hope or Cape Ilorn. Behring Sea is, and was at the time of the negotiations which arose immediately on the promulgation of the Ukase of 1821, recogrJzed by geographers as a part of the Pacific Ocean. The name by which it is now known is that of the navigator Behring, but in earlier times it was often uumed the Sea, of Kamtcbatka. [622] D ■mipi 10 This sea wftshcs the northern ports of the coasts of North America and of Asia, and is re^rded as extending from fiehring Strait on the north to the Aleutian and Comouindor Islands on the south. Its area is at least two-thirds as great as that of the Mediterranean, and more than twice that of the North Sea, while its extreme width is 1,260 miles. From north to south it extends over about 14 degrees of latitude, or more than 800 miles. From the south it is approached by numerous open sea-ways, one of which is 175 miles wide, another 96 miles, five more from 66 to 22 miles, and very many of smaller width. On the north, it opens by Behring Strait, ■48 miles wide, to the Arctic Ocean. Behring Sea is thus the common highway to the Arctic Ocean with its valuable fisheries. It is Great Britain's highway to her possessions in the north viA the Tv.kon River, (of which the free navigation is guntsuteed by Treaty), as well as tlie route for such communication as may be held or attempted ivitli the northern parts of the coasts of North .America to the east of Alaska, and wth the estuary of tlio great Mackenzie Biver. In 1728 and 1729, Behring, in his first expe- dition, outlined, somewhat vaguely, the Asiatic coast of Behring Sea, and practically proved the separation of the Asiatic and American continents. In I74il Behring's second expedition, which sailed from Okhotsk, resulted in the discovery of the American coast. Unsatisfactory as the voyages of Behring un- Bancroft, Uitory doubtedly were fi-om a geographical point of view, °^ Alaik*, p. 88. it was upon their results that Russia chiefly based her subsequent pretensions to the ownership of the north-western part of North America. Himters and traders followed Behring's lead, and Behring Island, and other islands, of the Aleutian chain, were visited from the Eam- tchatkan coast. In 1763, Glotof, on a trading voyage, ventured as ihr east as Eadiak Island. In 1764 to 1768, Synd, a Lieutenant of the Russian navy, made an expedition along the coast to Behring Strait. 1741. 1768. ' ("^ 11 1769. Bancroft, Hiitory of Aluka, p. 174. Of the period from 1760 to 1779, Banoroft writes in his niatory of Alaska:— " From this time to thu visit of Captain Cook, single tmdcra and HiiiitU Companies continued tlio traSic with the islands in much the same manner on l)efotu, though a general tendency to consolidation was perceptible." 1774. 1776. 177a 68. 1779 Tho oxtension of llussian influence did not pass unnoticed by Spain, and in 1774 Perez was dispatched from Mexico on a voyai;o of explora- tion, in which he nuichcd the southern part of Alaska. In 1775, Heeata, also instructed by the Viceroy of Mexico, explored the coast of America as far north as 67° or 58° of latitude, taking possession of tliat part of the continent in tho name of Spain. In 1778 Captain Cook, sent by the English GoTemment, reached tho American coast of tho North Pacific with two vessels. In pursuance of his instructions, he explored the coast from about ■ii° of north latitude as far as tho region of Prince William Sound and Cook River or Inlet, taking possession of tho coasts there. At Cook Inlet ho found evidence of Russian trade but no Russians. At Unalaska, one of the Aleutian Islands, he again heard of the Russians, and on tlie occasion of a second visit met Russian traders. From Unalaska he sailed eastward to Bristol Bay, landing and taking possession. Prom this iie explored, and defined the position of the American coast northward as far as Icy Cape, beyond Bchring Strai^. Cook was killed in the following winter at tho Sandwich Islands, but his ships under Clarke returned in 1779 and made further explorations in Behring Sea and tho Arctic Ocean. Under this expedition, and for the first time, tho main outlines of the north-western part of tho Continent of America, an'1 particularly those of the coast about Prince W ;. m Sound and Cook Inlet, with the eastern coast of Behring Sea, were correctly traced. This expedition also opened up the trade by sea in fiirs from the north-western part of America to China. Cook's surveys still remain in many eases the most authentic ; and these, with other results of tho expedition were published in full in 1781. In 1779 another oflBoially accredited Spanish B 13 expedition under Arteaga and Quadra, explored part of the coast northward from about lati- tude 55°, and westward to Mount St. Elias. In 1783 the first attempt was made, following Cook's discoveries, to establish a Russian trading post on the American mainland, at Prince William Sound. It ended disastrously. Owing to this reverse, for some years only one small vessel was dispatched from Siberia for trading purposes; but in 1784, Shelikof visited ' lalaska and reached Kadiak Island, with *he intention of effecting a permanent occupation there. In 1785 and 1786, Captain Hanna, in the " Sea Otter," entered into the trade between the north-west coast of America and China, for which Captain Cook's expedition had shown, the way. He made a second voyage in the following year, but appears to have confined his trading opera- tions to the vicinity of the northern part of Vancouver Island. Other commercial adventurers were, however, practically contemporaneous with Hanna, and this year is an important one in connection with the whole region. The " Captain Cook " and " Experiment," from Bombay, traded at Nootka and at Prince William Sound. An English vessel, the " Lark," Captain Peters, Sauer'§ account of from Bengal viii Malacca and Canton, after London', *ii^,' trading at Petropaulovsk in Kamtchatka, sailed PP- 'T9> '81- for Copper Island with the supposed purpose, as alleged, of obtaining a cargo of copjier there. She was wrecked on Behring Island. In the same year, 1786, Portlock arid Dixon, and Mearcs ai'rived upon the American coast, and traded and explored far to the northward. 'Ihese voyages are important, because detailed accounts of both were published, in 1789 and 1790 respectively, while the voyages of other traders have generally not been recorded. Portlock and Dixon, who had sailed from " A Voyage round London in 1785 in the " Kong George " and "Queen Charlotte," in 1786, first visited Cook Inlet, where they found a party of Russians encamped, but with no fixed establishment. Trade w"w carried on with the natives there, and Kubsequently at various other places on what is now the Alaskan coast, and Revoral harbours were surveyed. In the following year, Portlock and Dixon returned to the vicinity of Prince 178a 178S. 178«i the World. &c.," LundoD, 1769. 12 ▲ Mnarei' ToyagM 1790. Sm«1io "AnniulRegiiter," 1790, Tol. xiir.il, p. 387. William Sound, where they found Meares, who had spent the pt«vious winter there. They subsequently called at a number of places on the Alaskan coattt, as well as at parts now included in the coast line of British Columbia, making very substantial additions to (geographical knowledge. Meares sailing from Bengal in the " Nootka " early in the year, and reached the Islands of Atka and Amlia of the Aleutian chain, staying two days at the last-named island, and holding communication with the natives and Russians found there. He then proceeded eastward along the Aleutian Islands, and was piloted into TJnalaska by a Russian who came off to the ship. He describes the Russian Establish- ment as consisting of imdergroimd huts like those occupied by the natives ; but being anxious to leave the vicinity of the Russian traders, he continued his voyage eastward, and eventually entered in Prince William Sound, as above stated. Meares later voyages, in 1788 and 1789, which is better known than his first vcntm^, was directed to that part of the coast lying to the southward of the limits afterwards included by the Ukase of 1799. In 1788, Meares built at Nootka, in the northern part of Vancouver Island, the first vessel ever constructed on the coast of the north-western part of America. She was intended for use in the fur trade, and was appropriately named the " North- West America. Meares then coasted from TJnalaska to Cook Inlet and Prince Willitim Sound. Also in 1786 La Perousc, on his voyage round the world, under instructions of the French Government, first made land near Mount St. Ellas. Thence he sailed eastward and southward, calling at places on the Alaskan coast. At Lituya Bay he obtained in trade 1,000 sea^ otter skins. In the same year the Russian Pribyloff discovered the islands in Bohring Sea, now known by his name. In 1788 a Spanish expedition, in the vessels " Princess " and " San Carlos," under Martencz and Haro, set out. It visited Prince William Sound, but found no Russians. Haro, however, discovered a Russian colony ot Three Saints, on Kadiak Island. [622] D« wmmm ■n 12b This was the easternmost place which had at' this time a permanent Russian settlement. The voyagers took possession of Unalaska for Spain, but afterwards found a Russian post on the island. In the same year, a Russian vessel explored Prince William Sound, Yakutat, and Lituya Bays, all of which had previously been examined by English or French voyagers. In 1788 vessels from the United States first Bancroft, HUtory traded on the north-west coast. cout. p. issT** Upon the conflict of interests at this time along this part of the Alaskan coast, and the rival claims to territory there, Bancroft makes the following remarks : — " The events of 1787-88 must have been puzzling to the BMcroft, Aluka, natives of Prince William Sound. Englishmen under the P- '*'• English flag, Englishmen under the Portuguese flag, Spaniards and Bussiaus, were cruizing about, often within a few miles of each other, taking possession, for one nation or the other of all the land in sight" Referring to Billing's Russian scientific ex- ploring expedition, by which several voyages were made from 1787 to 1791 in the Behring Sea region, Bancroft says : — " The geographical results may be set down at noxt to Baneroft, Alttk^ nothing, with the exception of the thorough surveys of P" Captain Bay in Illiuliuk Harboui' on Unalaska Island. Every other part of the work hod already been done by Cook." The complaints of natives, against the practices of independent traders and adventurers, brought back by this expedition, had much to do with the subsequent grant of a monopoly of the trade to the Russian-American Company. In 1789 twelve vessels at least are known to North-wMt Cout, have been trading on the north-west coast.* ^^' "" *" The well-known "Nootka" seizures by the Spaniards occurred in this year. • Vttj ineomplela records, and in many eases no rwmrds at all, eiiit of tha trading voya^^s mad* to the north-west coast. It Is in some cases known (hat these traders extended tlieir operations to the north of the limit mentioned in the Ukase of 1799, or that of the Ukase of 1891. In other eases tha extent of the Tojages made n unknown. The traders went, in fact, whercTer skins coold be purchased, aud, if disappointed or fore* stalled at one plact, at once departed for another. ..J 12 1790. Baaeraft, AUika, p. 378. IUiL,p.S38. AlMka,p.985. 179L 1792. IU&. p. 374. Ib!(L,p.275. North-weit Cout, pp. 850-SS7 Aluka, p. 344. VaneouTcr, iS, p. 498. Aluki, p. 396. 179. genia," was in Cool', Inlet in this year. Besides the above vessels, at least eight trading- vessels are known to I^ave been on the coast, of which seven were from the United States. In 1792 Caamano, setting out from Nootka, explored Port Bucarelli, in South-eastern Alaska ; and it is reported that in this year fully twenty- eight vessels were upon the coast, at least half of them being engaged in the fur trade. Vancouver gives a list of 21 vessels for the same year, divided as follows : From England, 6; from East Indies, 2; &om China, 3; from United States, 7 ; from Portugal, 2 ; from France, 1. The "Halcyon," Captain Barclay, visited Potro- paulovsk for purposes of trade, and a French vessel, " La Flavia," wintered there. In 1793 Vancouver, who had been dispatched by the English Government with the "Dis- covery" and "Chatham" for the purpose of finally deciding the existence or otherwise of a communication between the Pacific and Atlantic, by the exploration of all remaining inlets on the north-west coast, was occupied in surveying operations on what now constitutes the south- eastern Alaskan coast. In 1794 he surveyed Cook Inlet to its head, and Prince William Sound, Eadiak, and the coast extending to Yakutat Bay, were in turn carefully laid down in detail. He ascertained that the easternmost Russian Establishment at this time was at Port Etches on Prince William Sound. 12 D Toaohing the Bussiana here and there met VtneonTw, Ui^ with, VanoouTer "clearly understood that thtP-*"- Russian GoTemment had little to do with these Settlements; that they were solely under the direction and support of independent mercantile Gompanies Not the least attention ■Wbs.t. ever is paid to the cultivation of the land or to any other object but that of collecting furs, which is principally done by the Indians." Near Yakutat Bay he fell in with the "Jackal," an English trading-vessel, wbioh was then upon tie coast for the third consecutive season ; and further to the south-eastward he met with the "Arthur," Captain Barber, from BengaL Vancouver took possession of the coast south* ward from Cross Sound (latitude 68*) in the name of Great Britain. The results of his surveys were published in 1798. The names of four trading-vessels on the North-wMt Cout, north-west coast, including the "Jaclud," are ^ known for this year. In 1795 a trader, named the " Fhceniz," from ibid^ p. S04. Bengal, was on the north-west coast. In 1796 at least three trading-vessels are known lUd.. p. sos. to have been on the north-west coast. In 1797 the names of four trading-vessels on ibid., p. see. this coast are known, but these were probably ' but a small part of the fleet. 1796, 1796. 1797. 13 1798. 1799. North-weit Oout, p. Buerofk, Aluka, p. 889. NoTtli-«Mt Cout, p. ao7. 1798-1801. AUbIcs, p. 384. Ibid., p. 19S, 111 1798 the names of six traders are known. In 1799 the "Caroline," Captain Cleveland, from Boston, arrived at Sitka shortly after a Russian post had been established there. Several other American vessels, among them the brig " Eliza," under Captain Rowan, visited Sitka during the summer and absorbed the trade while Russians were preparing to occupy the field in the Tuturo. The names of seven vessels trading on the north-west coast are recorded in this year. Nothing approaching to a complete record of the names or nationalities of vessels trading upon " this part of the coast in the years about the close of the last century can now be obtained, and, in the absence of explorations of which the results were published, from the time of Vancouver's departure, even incidental allusions to the presence of such traders are scarce. That such trade was, however, continuously practised is evident from the general complaints made by the Russians as to its effe on their operations, and perhaps the best mode of making this clear is to quote from Bancroft's " History " a few allusions to such complaints referring particularly to these years. Writing of enterprises of Baranoff, Governor of Sitka, Bancroft says : — "At every point eastward of Eadiak where he had endeavoured to open trade, he found himself forestalled by English and American sliips, which had raised the prices of skins ahnost beyond his limited means." Again, referring specially to the nascent Establishment at Sitka, Baranoff himself writes : — " I thought there would bo no danger with proper pro- tection from the larger vessels, though the natives there possess large quantities of fire-arms and all kinds of ammunition, receiving new supplies annually from the English and from the Eepublicans of Boston and America, whose object is not permanent settlement on these shores, but who have been in the habit of making trading trips to chese regions." On another page Bancroft writes : — Ibid., p. 398.J " Baranoff's complaiuts of foreign encroachment appear to have been well grounded. Within a few leagues of Sitka the captains of three Boston ships secured 2,000 skins, though payuig very high prices, each one trying to outbid the other." Ibid., p. 399. Further on Baranoff is quoted to the effect that the Americans had been acquainted with the [622] E u tribos in this region for two or throo yean, and sent there annually from six to eight vessels. These vessels from the United States were just beginning to supplant the English traders, who had in earlier years been the more numerous. Onco more Bancroft quotes Baranoff aa follows : — " The reaources of thia region ore such that millioiu AUika, p. 399. may be made there (or our country with proper manage- ment in the future, but for over ten years from six to ten English and American vessels have called here every year, It is safe to calculate an average of 2,000 flkins on eight, or say six vessels, which would make 12,000 a-year, and if we even take 10,000 as a minimum, it would amount in ten years to 100,000 skins, which, at the price at Canton of 46 roubles per skin, would amount to 4,500,000 roubles." It will be convenient at this point to consider the circumstances which led up to the Ukase of 1799, the terms of that Ukase, and its effect. As early as 1786, the idea became dominant with Grigor Shelikof, who had lately established the first permanent B.U8sian Colony at Kadiak, of a Company which should hold a monopoly of trade in the Russian possessions on the Pacific, and over all that part of the American Continent to which Russian traders resorted. Shelikof obtained but a partial success in the ChiU'ie;* issued for the United American Company; h:;t :!ter his death at Irkutsk in 1795, his ^ Ejicious schemes wcra taken up by his scti-in-law Rezanof, who succeeded in carrying them to comple- tion, and, in 1799, a Ukase was issued which granted the wished-for exclusive privileges to the new Russian-American Company. Before this time, in 1798, a consolidation of the Shelikof Company with several smaller concerns had been olfected under the name of the United American Company ; and at the date of the issuance of the Ukase there were but two rival Companies of importance in the field, the Shelikof or United American Company, and the Lebedef Company, and these engaged in active competi- tion and hostility. Bancroft, the historian of the Pacific Coast, ums up the situation about 1791 and 1792 in the following words : — " Affairs were assuming a serious aspect. Not only were Bancroft, the Shelikof men excluded from the greater pott of the PP- 838, 389, inlet [Cook Inlet], but they were opposed in their advance 16 Bancroft, p. sai. IbiiL, pp. SOS, 391, 393. Ibid,, p. 301. Ibid., p. 299. round Prince William Sound, which wiw also rlaimed Uy the Lobedef faction, ti;ough the Oreithof and other Com- panies wore hunting thert .... " Thus thii history of Ca->k Inlet during tlm liwt decudo of the eighteenth century ia replete with romantic inci- dents — midnight niil.t, amhuscailc!, and oj«;n warfare — resembling the doings of mediaival rauMtten, rather than the exploits of peaceable traders .... "Robbery and briitnl outrage.s continued to be tho order of tho day, though now committed chiefly for the purpose of obtaining Hole control of the inlet, to the neglect of legitimate [mrsuit*." Again, in another place, tbe saiu"' author writes, with regard especially to the position of Baranoff, Qovcrnor of Sitka, wlicn he took charge of the Shelikof Colony of Kiidiak : — " Thus, on every aide, rival establishments and traders were draining the country of the valuable staple upon which rested tho very existence of the scheme of coloniza- tion. To the east and nortli there were IJussians, but to the south-cast the ship.s of Englishmen, Americans, and Frenchmen were ilready traversing tiie tortuous channels of the Alexandei Vrchipelago, reaping rich harvests of sea- otter skins, in the very region where Baninofl' liacl decided to extend Bussian dominion in connection with Company sway." It was only in the later years of the com- petition between tho rival E,us«ian Companies that they began to assume hostile attitudes to one another. The growing power of some of them favoured aggression, and the increasing scarcity of the soa-otter, which was already beginning to be felt, accentuated it. At first, and for many years after Bchring's initial voyage, the traders from Siberia contented themselves with i-obting the natives of the islands and coasts visited by them in very conceivable \vay. Tributf; in furs was exacted from the Aleuts on various pretexts, and whenever the traders came in sufficient force those people were virtually en- slaved. Not only were the companies of traders under no sufficient or recognized control by the Russian Government, but they even di^'iked and resented in some measure the advent or presence among them of commissioned officers of the Government. The effect of the reports of the subordinate members of Billings' expedition, as to the unsa- tisfactory state of affairs in the Aleutian Islands and on the American coast, tended to favour the project of the establishment of a monopoly, by disclosing the abuses which existed by reason 16 of the existing competition. Bancroft more than hints that bribery closed the mouths of the superior officers ; and Billing's Report, -whatever its tenour may have been, was never published. In the end it became in a degree imperative for the Russian Government to put a stop to the scandals and abuses which flourished in this remote and scarcely more than nominally con- trolled portion of the Empire, und the easiest way in which this could be done, and the least expensive, was to vest exclusive rights in the hands of the most powerful of the existing rival Companies. This, being also in the interests of the Company in question, was not found dii&cult of achievement, and, as a consequence of the Ukase of 1799, the absorption of the smaller concerns appears to have followed without any great difficulty, Baranofl', as the executive head of the new Corporation on the American coast, coming to the front as the natural leader. When Shelikof presented at St. Petersburg his Bancroft, Aluka. original petition for the right to monopolize the trade, a Report was asked for on the subject from Jacobi, the Governor- General of Eastern Siberia, and in Jacobi, Shelikof found an able advocate. Jacobi stated that it would be only just to Shelikof to grant his request, and that it woxild be unfair to allow others to enjoy the benefits of the peace which Shelikof had established at Kadiak. The Empress then ordered the Imperial ^^id., p. 309. College of Commerce to examine the question, and a Committee of this body endorsed Jacobi's Report and recommended that tlio request of Shelikof and Golikof for exclusive privileges should be granted. Though, among the arguments naturally ad- vanced in favour of the grant of a monopoly, we find it urged that the benefits of trade accruing would thus bo reserved to Russian sub- jects, the history of the occupation of the coasts and the records concerning it, show conclusively that this object was not that wliich to auy great extent induced S\elikof to apply for such a monopoly. His Company had the utmost diffi- culty in sustaining its position against hostile natives, while not less serious were the difficulties arising from the competition, and sravcely veiled hostility of rival Russian traders. The increasing trade by foreigners, together with the numerous exploring and surveying expeditions dispatched ^^> 17 to the north-west coast of America by various Powers, were no doubt distrusted by the Russian traders ; but at the same time these traders were often obliged to dpj;end on such foreigners for support and assistance. Nowhere in the annals of the times previous to, and during the operation of the Ukaso of 1799, do we find any reference to attempts to interfere with or restrict the operations of foreigners upon the American coasts or in the Aleutian Islands. Even the scientific expeditions of the period were often largely interested in trade as well as in exploration, but all vessels meeting with the Russians report a favourable, if not a hospitable, reception. Such an attitude on the part of the traders and the Company is, in fact, strictly in accord with the Ukase of 1:99, which is purely domestic in its character, and in which no exclusive rights against foreigners are asserted. Ukase of 1799. UkiMofPauII, The following is a literal translation of the 17119. Ukase in question, taken from Golovnin, in " Materialuidla Istoriy Russkikh Lasseleniy," i., 77-80:— Bancroft'* works, " By tbe grace of a merciful God, we, Paul I, Emperor to!, xiiiii. History and Autocrat of All tlio Russias, &c. To the Eussiaii- 1886 pp.S79.380 A^<"'ican Company, under our highest protection, the benefits and advantages resulting to our Empire from the hunting and trading carried on by our loyal sub- jects in tlio north-eastern seas and along the coasts of ' America have attracted our Royal attention and considera- tion ; therefore, having taken under our immediate protec- tion a Company organized for the above-named purpose of cairyiag on hunting and trading, wo allow it to assume the appellation of ' EuBsian-Amorican Company under our highest protection;' and for the purpose of aiding the Company in its enterprises, we allow the Commanders of om' land and sea forces to employ said forces in tlie Company's aid if occasion re p. 14, Ko. a84, p. 454. Anitriotn Suta PiMri, Foiwign Rauliimi, toI. ▼. Amci^eu Suto Papen, toI. t, pp. 438-443. Buwroft, AUilu, p. SS8. "Tikhmenief," liter. Obos. I, cited in note to Bancroft, p. 533. See alto Bancroft, Tol. uxiil, p. 446; Beienori com- plaint in 1 806. Ukase of Alexander, 1821. For Kegulations, >ee Appendix. HiAD B. — Tha Ukaae of 1821, and the cireum' itaneei cnnected therewith leading up to the Treatiea of 1824 and 1825. Shortly before the date of the renewal of the Charter of the BosBian-American Company in 1821, the aspect of affairs had considerably changed. The Company had long before folly sucoeeded in getting rid of its Russian rivals, but trading- vessels from England and from the ITnited States frequented the coasts and everywhere competed with the Company. Goods were brought by the.se vessels at prices which the Company could not successfully meet, and furs were taken by them direct to Chinese sea-ports, while the Company, as a rule, had still to depend on the overland route from Okhotsk to Kiachta on the Amoor. Domestic competition had in fact ceased, and the most serious drawback to the success of the Company consisted in the competition from abroad. The difficulties resulting to the Company on account of foreign competition appear pro- minently in the complaints made by its agents at this time, and the new claim of the right to exo^'iclc foreigners from trade is embodied iii the Ukase of 1821. The following is the translation of the Ukase : — " £dict of His Imperial Majesty, Autocrat of All tlie " Husaiaa. " The Directing Senate luaketh known to all men : Whereas, in an Edict of His Imperial Majesty, issued to the Directing Senate on the 4th day of September [1821], and signed by His Imperial Majesty's own hand, it is thus expressed : — " ' Observing from Keports submitted to us that the trade of our subjects on the Aleutian Islands and on the north-west coast of America appertaining unto Russia is subjected, because of secret and illicit traffic, to oppression and imi>ediraents, and finding that the principal cause of these difficulties is the want of Rules estabhshing the boundaries for navigation along these coasts, and the order of naval communication, as well in these planes as on the whole of the eastern coast of Siberia and the Kurile Islands, we have deemed it necessary to determine these communications by specific Regulations, which are hereto attached. [622] I 30 '"In forwarding these BegulatioiM to the Directing Senate, we command that the same be published far universal information, and that the proper meuures be taken to carry them into execution. (Countersigned) '"Codst de Gukkf, "' Minister of Finances. " ' It is therefore decreed by the Directing Senate that His Imperial Majesty's Edict be published for the infor- mation of all men, and that the same be obeyed by all whom it may concern.' (L.S.) " The original is signed by the Directing Senate. On the original is written in the handwriting of His Imperial Majesty, thus ; Be it accordingly, Alex^noeh. " Rules established for the Limits of Navigation and Order of Co7)imunication along tin Coast of the Eastern Siberia, tlu: Nortli-west Coasf of America, and the Aleutian, Kurile, and other Islands. " ' Section 1. The pursuits of commerce, whaling, and See Appendix. fishery, and of all other industry, on all islands, ports, and gulfs, including the whole of the north-west coast of America, beginning from Behring Straitti to the 51st of northern latitude ; also from the Aleutian Islands to the eastern coast of Siberia, as well aa along the Kurile Islands, from Behring Straita to the south cape of the Island of Urup, viz., to the 45° 50' northern latitude, is exclusively granted to Russian subjects. "'Section 2. It is therefore proliibited to all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles. Tliu transgressor's vessel is subject to confiscation, along with the whole cargo.' " February 28, 1822. By this Ukase Russia first attempted to assort, Bmcroft, *" as against other nations, exchisivc jurisdiction or rights over the shores of America and Asia bounding the Pacific Ocean, certain islands therein, and over a portion of the Pacific Ocean including what is now known as Behring Sea. As to the motive and purpose of this Ukase Poleiica to Adams the letter of M. do Poletica, hereinafter sot out, dated the 28th Fehruary, 1822, defines the main, if not the sole, object which prompted it. The Russian-American Company had been encouraged to push forward discoveries and Settle- ments on behalf of Russia, south and north of rj.5° north latitude. Up to this time, and, in fact, up to tho year 1807, with the exception of Indians inhabiting the coasts who hunted seals in their canoes, seals \vcre killed and taken on the rookeries only, i.e., the " rucks and recesses," as Mr. Sumner terms them. 31 Poletiea to Adanu, February 28, 1823. Baron Micolai to LotJ Londonderry, to the 8aiT?n effect, October 31 (Novembrr 12), 1831. The fur trade which Russia desired to control, was, however, interfered with by the vigorous competition of foreigners. That Russia's aim was to acquire an enormous North American Territory appears by the con- struction put by M. de Poletiea on tlie Ukase of Paul, and the grant to the Russian-American Company of a territorial concession down to the 55th degree of latitude, and his justification of its further extension to the 51st degree. He proceeds to defend the policy of exclusion contained in the Ukase of 1821 by explaining that, as Russian possessions extend from Beliring Strait to the 51st degree north latitude on the north- west coast of America, and on the opposite side of Asia and the islands adjacent to tlie 45th degree, the sea within those limits, viz., that part of the Pacific Ocean, was a close sea, over which Russia might exercise exclusive jurisdiction, but he goes on to say that Russia preferred asserting only its essential right without " taking any advantage of localities," and on these grounds the limit of 100 Italian miles is justified. The measure ho declares to be directed : — " Against the culpuble onterprise"! of f'oieiijii aiiveiiturers, who, not content with exercising upon the coast above mentioned an illicit traile, very prejudicial to the rights reserved entirely to the I 'ussian- American C'oniputiy, take upon theui besides ti) furnisli anna ami amoiunition to the natives iu the Kussian possessions in AintTica, inciting them likewise in every manner to resist ami revolt agiiinst the authorities there established." The purpose of the Ukase, so far as the attempted exclusion of foreigners from 100 miles of the coasts, from .01° north latitude to Behring Stmit is concerned, is further explained by Rarou de Nicol.ni iu his note to Lord Londonderry, the 31st October (12tb November). 1821. lie insists that tiic operations of " smugglers " and " adventurers " on the coast — " Have for their object not oidy a fraudulent commerce in furs and other articles which are oxclusiicly rosiuvtd to the Ku.ssian-American Com|)any. but it nppeai-s that they often betray a hostile tendency. "It was," he contimics. " tliercfom nceessaiy to tako severe measures against these intri^^ios, and to piDtcct the Company a|,'aiust the consid'^ndjle injtiry that resulted, and it «V(S u>ith (hat ind in fitio that tin' annexed Kogululion lm. taining the following words :— 8«e Appendix. " Objecting, aa we do, to tliis claim of exchisive sovereignty on tho part of Russia, I might save myself tho trouble of diacuasint; the i ;icular mode of its exorcise as set forth in this llkiiso, In. .vu object to the mode in which tlut sovereignty is proposed to be exercised under this Ukase, not less tliau we do to the claim of it We cannot admit the right of any Power posnesniu/ tlif. sovcrtiijntij of a country to ejcliulf the rea-vts of oDitrs from the seas on iti eoculs to the distance of 100 Italian milet." Again, on the 28th November, 1822, tho Duko of Wellington addressed a note to Count Lieven, containing tho following words : — Sm Appendix, " The second ground on which we object to tho Ukase is that His Imperial Majesty thereby cxcbides fiotii a certain considerable extent of the open sea vessels of other nations. We contend that tho assumption of this power is contrary to the law of nations, lun' o cannot found a negotiation upon n paper in whicii it . again broadly assetted. We contend that no Power whatever can exclude anotlier from tho use of the open sea. A Power can exchulc itself from the navigation of a certain coast, sea, &c. Ny its own act or engagement, but it cannot by right be r Uidod by another. This we consider as tlie law of nntimis, and we cannot negotiate upon a ]iaper iu which a right is asserted inconsistent with this principle." On tho 15th January, 1824, Mr. G. Canning writes Sir C. Bagot, the British Minister at St. Petersburg : — See Appendix. " . . . . The (luostions at issue between Great IJritain and Russia are short and simi)le. The Itussian Ukase contains two objectionable pretensions : l"'irst, an extra- vagant assumption of umritinie supremacy; secondly, an unwarranted claim of territorial dominions. " As to the first, the disavowal of Russia is, in substance, all that we could desire. Xotliing remains fur negotiation on that head but to clothe that disavowal in precise and satisfactory terms. Wo would ranch rather that those terms sliould bo suggested by Russia liersclf tliun have tho air of ])retonding to dictate them ; you will therefore request Cimnt Nesselrode to furnish you witli his notion of such a declaration on this point as may be satisfactory to your Government. That declaration may be made tho preamble of tho convention of limits." .... Again, in a despatch, 21th July, 1824, to Sir C. Bagot, Mr. G. Canning says : — See Appendix. " . . . . Your Excellency will observe that there are but two jwints which have struck Count Lieven as susceptible of any question. The first, the assumption of the base of the mountains, instead of the summit as the lino of boundary ; the second, the extension of the right of the 36 navigation of the Pacific to tho aea beyond Bebring Straits. » • « « " As to the second point, it is, p -"rhaps, as Count Lieven remarks, now. But it is to bo rfimaiVcd, in return, that the circumstances under whicli this auiitional security is ruquiied will bo new also. " By the territorial demarcation rgroed to in this ' projet,' liussia will become possessed, in acknowledged sovereignty of both sidtj, of Behring Straits. " The I'owcr which could think of making the Pacific a marc dntisitm may not unnaturally bo supposed capable of 11 di.sp(isitioii to apply the same character to a strait comprehended between two shores nf which it becomes the undisputed owner ; but the shutting up of Behring Straits, or tho power to shut them up hereafter, would bo a thing not to be tolerated by England. " Nor could we submit to be excluded, cither positively or constnictivoly, from a sea in which the skill and science of our seaaeu litis been and is .still employed in enterprises interesting not to this country alone, but to the whole civilized world. " The protection given by the Convention to the American coasts of each rower may (if it is thought necessary) Ijo extended in terms to the coasts of the Russian Asiatic territory ; but iu sjme way or other, if not in tho form now prescribed, the free navigation of Behring Straits and of the seas beyond them must be secured to us." Mr. George Canning in a despatch to Mr. Stratford Canning, who bad succeeded Sir C. Bagot as British Minister at St. Petersburg, under date the 8tli December, 1824, after giving a summary of the negotiations up to that date, goes on to say : — " It is comparatively indifferent to us whether we hasten or postpone all ([uostions respecting tho liiiiiti ot territorial possession on the continent of America, bt t tlie preten- sions of the Kussiau Ukase of 1821 to exclusive dominion over the Pacific could not continue longer unrepealed without compelling us to take some measure of public and effectual remoiistraueo against it. " You will tliereforo take care, in tlie first instance, to repress any attempt to give tlii.s change to the cliaracter of the negotiation, and will declare without reserve Hint the j)oint to which alone the solicitude of the Briisli Ooven iiiciit and tlie jealon.sy of tho British nation attu-'h any great importance is the doing away (in a maniier as little disagreealile to Russia as possible) of the effect of tho Ukase of 1821. "The right of the subjects of His Majesty to navigate freely in tho Pacific cannot lie held as a matte, of indul- gence from any Power, llaving once been publicly questioned, it must be publicly acknowledged. " We do not desire that any distinct reference should For despatch in full, see Appendiju 37 be made to the Ukase of 1821 ; but we do feel it necessary that the statement of our liyht sliould be clear nuil posi- tive, and tbat it should stand forth in the Convention ia the place whicii properly belongs to it, as a pliiin and sub- stantive stipulation, and not be brought in as an incidental consequence of other arrangements to which we attach c j'T'.iratively little importance. • Tuis stipulation stands in the front of the Convention concluded between Russia and the [Jnited States of America ; and we see no reason why upon similar claims wo should not obtain exactly the like satisfaction. "For reasons of the same nature we cannot consent that the liberty of navigation through Bering Straits should bo stated in the Treaty as a boon from Russia. "The tendency of such a statement would le to give coimtouance to those claims of exclusive jurisdiction against which we, on our own behalf, and on that of the whole civilized world, protest. * * ♦ * " It will of course strike the Russian Plenipotentiaries that, by the adoption of the American Article respicting navigation, &e., the provision for an exclusive lishjry of 2 leagues from the coasts of our respective posseisiona falls to tlie ground. " But the omission is, in truth, immaterial. "Tlie law of nations assigns the exclusive sovereignty of 1 league to each Power on its own coasts, without any specilic stipulation, and though Sir Charles liagot was authorized to sign the Convention with the specific stipu- lation of 2 leagues, in ignorance of what had been decided in the American Convention at the time, yet, after that Convention has been some months beiore the world, and after the opportunity of consideration has been forced upon us by the act of Russia herself, we cannot uo\v consent, in negotiating (h novo, to ii stipidation which, while it is absolutely uniniportanl to any practical good, would appear to establisii a contrast between the United States and us to our disadvantage." The Treaty (Great Thcsc negotiations resulted in a Convention Brit»inan(IUu.5ia), .^i^j^ q^^^^ Britain, signed on Die 18th February, February 28, 1825. 1825, hereinafter refon'ed to. United State.^' F^otc^t against Ukase of 1821. Protest of the United States. On the SOtli January (lltli February), 1822, M. Pierre do I'oletica, tbc Envoy Extraordinary and Minister Flenipotentiary of the llussian Emperor, transmits tlic Edict to Mr. Adams, Secretary of State for the United States, Or the 25th Februaiy, 1822, Mr. Adams wrote to M. Polelica :— "Department of State, WnfJiiiigton, " Sir, " Fdruary 2u, 1822. " I have the honour of receiving your note of the 11th instant, inclo.^iug a printed copy of the Reg\dations adopted by the Russian-American t'ompany, and sanc- [622] L S8 tioucd by His Imperial Majesty, .elating to the commerce of foreigners in the waters bordering on the establishments of that Company upon the north-wtst coast of America. " I am directed by the President of the United States to inform you that he has seen with surprise, in this Edict, the assertion of a territorial claim on the part of Russia, extending to the Slat degree of north latitude on thia continent, and a Regulation interdicting to all commercial vessels otlier than Russian, upon tlie penalty of seizure and oontiscation, the approach upon the Iiigh seas within 100 Italian miles of tlie shores to which that claim is made to apply. The relations of the United States with His Imperial Majesty have always hqpn of the most friendly character; and it is tlie earnest desire of this Government to preserve them in that state. It was expected, before any Act which should define the boundary between the territories of tlie United States and Russia on this continent, that the same would have been arranged by Treaty between the parties. To exclude the vessels of our citizens from tlie shore, beyond the ordinary distance to which the territorial jurisdiction extends, has excited still jjreater surprise. " This Ordinance affects so deeply the rights of the United States and of their citizens, tliat I am instructed to inquin; wlietlier you are authorized to give explanations of the grounds of right, upon principles generally lecognized by the lawa and usages of iintions, wliicli can warrant the c'i.im3 and Regulations contidned in it. " I avail, &c. (Signed) "John Qdincy Adams." It will be observed that both the Ukase and the protest apply to tlic waters from Bchriug Strait soutlnvafd a.s far as the Tilst degree of latitude ou the coast of America. On the 28th of the same month the Russian Russian defence of UkasA Representative replied at length, defending the territorial claim on grounds of discovery, lirst occupation, and undisturbed possession, and explaining tl'.c motive " which determined tlie Imperial Government to proliibit foreign vessels {?*^el!*,*'?,*4-, from fipjiroaching the north-west coast of America belonging to Russia, within the distance of at least 100 Italian miles." Further on he observed : — M (ie Polnlka to Mr. J, Q. Adams, Kebnui7 28, 1833 United States' Papers relating to lienring Sea '"l ought, in the last place, to request you to consider, i;kasc baaed on Sir, t'.int llie Russian pa^sesaions in the I'acific Ocean doctrine of mar* extend, on the north-west coast of America, from Bchring Strait to the 51st ermitted by the preceding Articli' ; and the two Powers engage reciprocally neither to sell, or sufler theiu to bo .sold to the natives, by their respective citizon.i and subjects, nor by any person who may Iw under their authority. It is likewise stipiihted that this restriction shall never nlTord a iiret*'"', iku' be advanced, in any cone, to authorize either search or deten- tion of the vessels, seizure of the merchandize, or, in tine, any measures of constraint whatever towards the mer- 44 chants or the crews wlio may carry on this commetca ; the Uigh Contracting Powers reciprocally reserving to tliemselves to dctcrmino upon the penalties to Ihj incur ed, and to inflict the punishments in case of the contra- vention ol this Article, by their respective citizens or subjects. "ABTICLE VI. " When this Convention shall have been July ratified by the President of thn United States, with the advice and consent of the Senate on the one port, and on the other, by His Majesty the Kmperor of all the Kiissias, tlie ratificatijus sltall bo exchanged at Washington in the space of ten months from the date below, or sooner if possible." " In faith wliereof the respective Plenipotentiaries have signed this Convention, and thereto affixed the seals of their arms. " Done at St. Petcrsburgh the &th (17th> April in the year of Grace 1824. (LS.) "tiE.VKY MlDDLKTON. (LS.) "Le Comto C. Be Nesselkode. (LS.) "PlIEKE De POLETICA." Convention between Orent Britain and Ruatia. The negotiations between Great Britain and Tratty, GtMt Russia resulted in the Convention of the 18th ?^|i,^^"jUJS; February, 1825. The following is the English translation of this Convention : — "AltTlCLE I. " It is agreed that the respective subjects of the High Contracting Parties shall not be troubled or molested in any part of tliu ocean, commonly called the Pacific Ocean, either in navigating tlie same or tisiung therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions ond conditions specified in the fol- lowing Articles. "AlfTICLE II. "In order to prevent the right of navigating and fishing exercised upon the ocean by the subjects of tbo High Contracting Parties, from becoming the pretext for an illicit commerce, it is agreed that the subjects of His Sritannic M^esty shall not land at any place where there may be a Russian establishment without the permission of the Governor or Commandant; nnd, on the other band, flitt Busaian subjects shall not land without permission St any British establishment on the north-west coast "ABTICLE in. "The line of demarcation between the possessions •f the High Contracting Parties upon the coast of the continent and tks islands of America to the notth>wes^ ahall be dnwn in the manner following :— 4Ak "Oommendng from the MatheniBuwt pitt of the isknd ealled Prinoe of Wain' laland, which point lies in the penlM of 64" 40' north Utitude, end between the ISlet end 'he ISSid degree of weat Icmgitade (meridian of Oieenirich), the aaid line ahall aaeend to the north along the channel called Portland Channel, aa Car aa the point of the continent where it atrikea the 66th degree of north latitude; from this last - mentioned point, the line of demamation shall follow the summit of the monntains sitoated parallel to the ooe^ aa far as the point of inters section of the 14l8t degree of west longitude (of the same meridian) ; and, finally, from the said point of inteneotion, and the said meridian-line of the 14lBt degree, in its pro- longation as far as the Frozen Ocean, shall form the limit between the Russian and British poasessions on the conti- nent of America to the north-weitk -AETICLE IV. " With reference to the line of demarcation laid down in the preceding Article, it is understood ; "let That the island called Prince of Wales' Ishkrd shall belong wholly to Russia. "2nd. That wherever the summit of the mountains which extend in a direction parallel to the coasts from the 66th degree of north latitude to the point of intersection of the 14l8t degree of west longitude, shall prove to be at the distance of more than 10 marine leagues from the ocean, the limit between the British poesessioDi and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom, "ARTICLE V. "It is moreover agreed that no establishment shall be formed by either of the two parties within the limits assigned by the two preceding Articles to the poesessions of the other; consequently British subjects shall not form fany establishment either upon the coast or upon the border of the continent comprised within the limits of the Russian possessions, as designated in the two preceding iirtides ; and, in lihe manner, uo establishment shall be formed by Russian subjects beyond the said limits. "ARTICLE VL "It is ttnderstood that the subjects of His Britannic Mtgesty, from whatever quarter they may arrive, whether from the ocean or from the interior of the continent, shall for ever e^joy the right of navigating freely, and without any hindrance whatever, all the rivers and stteanu which, in their course towan*" the Pacific Ocean, may croaa the line of demarcation upon the line of coast described in Article III of the present Convention. "ARTICLE VIL is also understood that, for the 'It is also understood that, for the space of ten yean horn the signr'ure of the pnesent Convention, the [622] M* :'^X::^''4vxi'^w\''}!. .' .AMTt^ 441 TtmU of the two Pow«i«, or thow belonging to thdi tMpectire lubjecU. shtU mutually be at liberty to frequent, without any hindrance whatever, all the inland eoaa. the gulfs, hayena. and cteeki on the ooact menUonod in Article III. for the purpoeea of flahing and of trading with the natives." "ABTICLE Vin. <• The port of Bitka, or Novo Archangolsk, shall be open to the oommetoe and vessels of British subjecto for the space of ten yem ttam the date of the exchange of the mtificationa of the present ConvenUon. In the event ol an extension of this term of ten years being granted to any other Power, the like extension shaU be granted also to Great Britaia r, > ~^ w/ jl, mi< *«n.iwi5,-»»Jiy-s-- "ASnCLF EX. "The aboye-mentioiiwl lilwriy of commerce ahalt not Apply tu the Inula in N|iiriliiciU'i lii|Unni, in flni-ariuii, or other ann*, guri|iow(lor, or otiier wnrliko Rtoros ; tlio High Contracting I'urtics ruciprocuUy ougaging not tu (icrmit the alwvo-muntionod articlu.i t'l Iw hoM or dulivcrod, iu iiny maunor whatever, to the natives of the country, • ARTICLK X. " Every Dritixh or Rii.uiiin vuimel navigating tlie rnciflo Ocean which luay 1)e comitvlkHl by Htumis or by occideut to take shelter in the ])ortg uf tlie resiicctivo Parties, shall bo ot lilierty to refit therein, to provide itself with oil necessary stores, umt t^) put to sen again, withoat paying any other than port and lighthouse dues, which shall lie the same as tliose paid by national vessels. la case, how- ever, the tnnster of such vcsecl should be under the neces- ■ity of disposing of a part of his merchandize in order to defray las expenses, he shall conform himself to the liegulatiuus and Tariffs of the place where he may have landed. "ARTICLE XL " In every case of coniplniut on account of an infraction of the Articles of the present Convention, the civil and military authorities of the High Contracting Parties, with- out previoiuly acting or taking any forcible measure, sltall make an exact and circumstantial report of the matter to their rcsi)octive Courts, who engage to settle the same in 8 friendly manner and \ according to the principles of justice. "ARTICLE XIL "The present Convention shall Ix; ratified, and the ratifications shall bo exchanged ut London within the space of six weeks, or sooner if |>08aible. " In witness whereof the resiiective rienipotentiaries have signed the same and have alHxed thereto the seal of their arms. " Done at St Petersburg!! the 16th (28th) day of February, in the year of our liord One thousand eight hundred and twenty-five. (LS.) "Stratford Cannixg. (L.S.) " The Count De Nksselbodb. (LS.) " PlEBRE DE POUTICA." Contemporary ventions. iut«iptetations of the Con- SwAppeodts. Mr. Stratford Uanning to Mr. G. Cannlug, in hJB despatch of the Ist March, 1826, inclosing the Conrention as signed, says :-> " Witli respect to fiehring Straits, I am happy to have it in my power to assure you, on the joint authority of the Bussian Plenipotentiaries, that the Emperor of Russia has no intention whatever of maintaining any exclusive claim to the navigation of those straits, or of the seas to the north of theokT [622] ■ H I #" 46 Mr. S. Canning, in a further despatch to Mr. G. Canning, 3rd (16th) April, 1826. said:^ "... With respect to the right of fishing, no explana- 8m Appead2& tion whatever took place between the Plenipotentiaries and myself in the course of our negotiations. As no objection was started by them to the Article which I offered in obedience to your instructions, I thought it unadviaable to raise a discussion on the question ; and the distance from the coast at which the right of fishing is to be exorcised in common passed without specification, and consequently rests on the law of nations as generally received. " Conceiving, however, at a later period that you might possibly wish to declare the law of nations thereon, jointly with the Court of Busaio, in some ostensible shape, I broached the matter anew to Count Neaselrode, and suggested that he should authorise Count Lieven, on your invitation, to exchange notes with you declaratory of the law as fixing the distance at 1 marine league from the shore. Count Nesselrode replied that he should feel em- barrassed in submitting this suggestion to the Emperor just at the moment when the ratifications of the Conven- tion were on the point of being dispatched to London ; and he seemed exceedingly desirous that nothing should happen to retard the accomplishment of that essential formality. He assured me at the same time that his Gfovemraent would be content, in executing the Conven- tion, to abide by the recognized law of nations ; and that, if any question should hereafter be raised upon the subject, he should not refuse to join in making the suggested declaration, on being satisfied that the general rule under the law of nations was such as we supposed. " Having no authority to press the point in question, I took the assurance thus given by Count Kesselrode as sufficient, in all probabUily, to answer every national purpose. . . ." In ruference to the Convention of 1824, United Sutte' Wharton, in his "Digest of the International S^'^HSl^eiJ Law of the United States o ' America," section 159, Tiwuy. vol. ii, p. 226, cites President Monroe's commu- nication to Mr. Madison on the 2nd August, 1824, to the effect that— "Uy this Convention the claim to the mare davtum is given up, a very high northern latitude is established for our boundary with Russia, nnd our trade with the Indiads placnd for ten |)-ear8 on a perfectly free footing, aud after tliot term left open for negotiation. . . . England will, nf course, have a similar stipulation in favour of the free navigation of the Pacific, but we shall have tlic cir-dit of having taken the lead in the affair. Tlio claim of Russia attraf^ted much attention at the time. Monroe:— 47 Mr. Madison wrote to President " The CouTention ■mth Russia is a propitious event, as substituting amicable adjustment for the risk of hostile collision. But I give the Emperor little credit, however, for his assent to the principle of ' mare liierum ' in the North Pacific. His pretensions were so absurd and so disgusting to the maritime world, that he could not do better than retreat from them through the form of nego- tiation. It is well that the cautious, if not courteous, policy of England towards Russia has had the effect of making us, in the public eye, the leading Power in arresting her expansive ambition." The Ukase never enforced. See letter of S. Canning to G. Canning, April 23, 1833. In the year 1822 the Russian authorities attempted to enforce the provisions of the Ukaso of 1821 and seized the United States' hrig " Pearl," when on a voyage from Boston to Sitka. The circumstances of this case are stated in the next Chapter. It is sufficient for tho present purpose to note that the United States at once protested, the " Pearl " was released and compenBation paid for her arrest and detention. This is believed to bo the only case in which any attempt was, in practice, made by Eussia to interfere with any ship of another nation in the waters in question outside of territorial limits. himmfr 49 Chaftbb III. Hbad C— TTkff question whether the body of water now known at the Behring Sea is included in the phrase " Pacific Ocean," as used in the Treaty of 1 825 between Oreat Britain and Russia P It will be remembered that the Ukase of 1821 included the Pacific from the Straits southward to the 61° parallel, and that this claim was protested against tn loto, on the ground that the coast was almost entirely unoccupied, and that maritime jurisdiction, even where the coast was occupied, could not extend beyond 3 miles. In the first Articles of the Conventions of 1824 and 1825 the claim to an extraordinary jurisdiction ai sea is definitely abandoned, and it is submitted that the abandonment was a com- plete withdrawal of the claim made. It was principally against this very claim that the protests of Oreat Britain and the United States were directed, and its relinquishment was there- fore, and purposely, placed at the head of each of the resulting Conventions. Article I of the Convention between Russia and the United States is as follows : — "It is ngreed thnt in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, tiic respective citizens or subjects of the High Contracting Powers shall be ueitlier disturbed nor restrtined, either in navigation or in Ashing, or in the power of resorting to the coasts, upon ^Kiints which may not already have been occu- pied, for the purpose of trading with the natives, saving always the restrictiocs and conditions determined by the following Articles." Article I of the Convention between Great Britain and Russia is as follows : — "I. It is agreed that the respective subjects of the High Contracting Parties shall not bo troubled or molest«d in any part sf the ocean, commonly called the Pacilic Ocean, either in navigating the same, or fishing, therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the fol- lowing Articles." It has been contended, however, on the part of the United States, that the renunciation of claims contained in the Articles above quoted [622] O 60 did not extend to what is now known as Behring Sea. On this point Mr. Blaine, Secretary of State for the United States, writes : — " The United States contends that the Behring Sea was j^,, BUiac to CHr not mentioned, or even referred to, in either Treaty, and '• Paunotfcte, Btu* was in no sense included in the phrase 'Pacific Ocean.' gl^^^D. i imi If Great Britain can maintain her position that the p. S7. Behring Sea at the time of the Treaties with Bussia of 1824 and 1825 was included in the Pacific Ocean, tbe Government of the United States has no well-grounded complaint against her." Ibid., p. 38. In order to uphold the contention thus advanced hy the United States, it is, howeTer, farther found necessary to maintain that the words "north-west coast" and "north-west coast of America," which frequently occur in the correspondence connected with those Conven- tions, refer only to a portion of the coast of the continent south of Behring Sea. This portion of the coast Mr. Blaine is at pains to endeavour to define precisely in his letter, wliich has just been quoted, illustrating his meaning by Maps, and endeavouring to restrict the application of the term to that part of the coast which runs south- ward continuously from the 60th parallel. The meaning of the phrase "Pacific Ocean" and that of the term " north-west coast " are thus intimately associated in the contention of the United States, and it will be convenient to treat them together. It will be found, however, that tliis argument m. de PoltUwta cannot be reconciled with the correspondence. In the first place, it has been shown that Russia's object was not the acquisition of the control of the sea between Behring Strait and latitude 51° — this she distinctly denied — but to exclude from her coasts in Asia and America, and on the islands, the tniders - whose ventures threatened the success of the Bussian-American Company. No claim had been advancd by Bussia which could possibly render a distinction between Behring Sea and the main Pacific of the slightest importance. Bussia was endeavouring to assert a title to the whole coast from Behring Stitjit to 51° north latitude on the American, and latitude 45° 50' on the Asiatic coast. tenour of the Mr. Adam., February 38, 1823. "wpwipssijffr SI AppmdU. Her claim to an extraordinary maritime juris- diction over the waters of the ocean other than territorial waters was dcfinitiTely abandoned at the outset of the negot .ttions, and tho discussion was thenceforward confined to the protection of her rights within territorial limits. Russia's object was the recognition and pro- tection of the Russian Settlements in America. Accordingly, the Conventions provide against " illicit conunercc," landing " at any place " (from Behring Strait to tho southernmost boundary) "where there may be a Russian Establishment without the permission of the Governor or Com- mandant," and against the formation of Establish- ments by either Power (in the respective Con- ventions) on territory claimed by, or conceded to, the other. With the same object rules were made by Russia, headed " Rules established for the Limits of Navigation and Order of Communication along the coast of the Eastern Siberia, the north-wesl- coatt of America, and tho Aleutian, Kurile, and other Islands." This obviously included the coast of Behring Sea in the term " north-west coast." Baron Nicolai to Lord Londonderry, 31st October (12th November), 1821, says : — " Le nouveau R^glement n'interdit point aux bitiments strangers la navigation dans les mers qui baignent Ics possession^) Busses sur les cdtes nord-ouest de rAmuriquo et nord-est de I'Asie." "D'un autre cdtd en cousid^rant les possessions Busses qui s'dtendent, tant sur la cote nord-ouest de I'AnidriiiUH, dopuis le Detroit de Behring jusqu'au 51° de 1hi(itude'8eptoi|trionalfl, que sur la cote opposiSe de I'Asic et Us'.il^s adjacentes, depuis le mSme ddtroit jusqu'au 46°.'''*6.;';.; ... ,,, .., ,; "',• ";.. »:.•■ ' '• •' ' '■ •• • • " Car, s'il est ddmontrd que le Gouvemetnent Imperial e{it eu b, la rigueur la faculty de fermer enti^remeut aux Strangers cette partie de VOcian Padfique, que bordent nos possessions en Amdriquo et en Asie, h, plus forte mison lo droit en vertu daquel il vient d'adopter une mesure beau- coup moins gdndrolemcnt restrictive doit ne pas etre rdvoqud en doute." • • • • " Los officiers commandant les bfltiments de guerre Busses qui sont destinds h, veillor dans TOcdan Pacitique au maintien des dispositions stismentionndes, ont regu I'ordre do commeucer iV les mettre en vigueur envers ceux des navires dtraugors," &c. 59 In this note "north>Tro8t coast of America" 18 mentioned three times, and in each case the coast of Bchiing Sea is included in the term. Pacific Ocean appears twice, and in both includes the llohring 8ea. Tlio Map, of which a copy is included among the documents annexed to this Cose, was for- warded by Sir Charles Bagot to Lord Tiondon- derry, in a despatch dated the 17tli November, 1820, in which it is thus described : — " I have tlie honour to transmit to your Lordship, under a separate cover, un English translation of the Ukase, and I nt the same time inclose a Map of the north-west coasts of America, and the Aleutian and Kurile Islands, which has Iwen published iu the Quartermaster-General's Depart- ment here, and upon which I have marked all the prin- cipal Russian Settlements." It will be seen on reference to this Map that the words " part of the north-west coast of America " include the whole coast Imo from a point nortli of Behring Straits down to latitude 51° north. Again Lord Londonderry writes to Count Lieven : — " The Undersigned has the honour hereby to acknow- Lord Londonderry ledge the note, nrldressed to him by Baron de Nicolai of ^ ''•"°'.V*Tt^» . .« , .T , , . „ »„ Janniry 18, 1823. the 12th NovcraiMjr last, covering a copy of an Ukase issued by His Imperial Majesty the Emperor of All the Bussios, and beiiriiig date the 4th September, 1821, for various purposes, therein set forth, especially connected . with tlie territorial rights of his Crown on the north- western coast of America, bordering upon the Pacific, and the commerce and navigation of His Imperial Majesty's subjects in the seas adjacent thereto." And Mr. 8. Canning writing in February 1822 to Lord Londonderry from Washington, whore he was then British Minister, observes : — " I was informed this morning by Mr. Adams that the Mr. Stratford Kussian Envoy has, \rithin the last few days, communi- Canning to the cated officially to the American Government an Ukase of landonderrr the Emperor of Russia, which has lately appeared in the February 19, 1633. .public prints, appropriating to the sovereignty and ex- clusive use of His Imperial Majesty the north-west coaiit of America down to the Slst parallel of latitude, together with a considerable portion of the opposite coasts of Asia, and the neighbouring seas to the extent of 100 Italian miles from any part of the coasta and intervening islands so appropriated. In apprizing me of this circumstance, Mr. Adams gave mo to understand that it was not the intention of the American Cabinet to admit the claim thus Bft notified on the part of Runin. Hia objection appeua to lie more particularly against the excltuion of foreign veiaela to so great a diBtance from the shore," Again M. de Poletiua, writing to Mr. Adams on the 28th February, 1822 .— " Tlie first diacoveries of tlie Rauiana on the north-west continent of America go back to the time of the Emperor Peter I. Thejr belong to the attempt, made towards the end of the reign of this great Monarch, to find a passage from the icy tea into the Paeifie Ocean." • • • • " When, in 1799, the Emperor Paul I granted to the present American Company its first Charter, be gare it the exclusive possession of the north-west coast of America, which belonged to Russia, from the S5th degree of north latitude to Behring Straits." « • • • " From this faithful exposition of known facts, it is easy, Sir, aa appears to me, to draw the conclusion that the rights of Russia, to the extent of the north-webt coast, specified in the Regulation of the Russian-American Company, rest," &c. • • • • " The Imperial Government, in assigning for limits to the Rustian pottessiont on tJu north-wett coast of America, on the one side Behring Straits, and on the olJier the 5lst degree of north latitude, has," &c. • • • • " I ought, in the last place, to request you to consider, Sir, that the Russian possessions in tlu Pacific Ocean extend on the north-west coast of America from Behring Straits to the 51st degree of north latitude, and on the opposite side of Asia and the islands adjacent from the same strait to the 45th degree." Hiidion'i Dfty r - "s-v to the Marquii of Londonderry, March 27, 1S«3. Throughout this note the phrase " north>west coast " includes the coast of Behring Sea, and the last passage shovs unmistakably that the Russians at that time regarded the Pacific Ocean as ex- tending to Behring Strait. The attention of the British GoTeranient was called to the Ukase in the following terms : — " It has fallen under the observation of the Governor and Committee of the Hudson's Bo C Jipany that the Russian Government have made a ci. a to the north-west coast of America, from Behring Straits to the Slst degree cf north latitude ; aud in on Imperial Ukase have pro- hibited foreign vessels from approaching the coast within 100 mUes, i:nder penalty of confiscation. Mr. Adimi to Mr. Adams, in 1823, dealt with the Russian isasf "Ameri?."' "^"^ ^ °^^ °^ exolusive territorial right on the 8uie Pamrt, north-wcst cosst of America, extending, as he said, f °,"7° p/Jj""""' from the "northern extremity of the continent." [6;:2] ' P ■"g^^S^^Pf^ - ^^m ^ M Articles in the "North American Review" (voL iVr Article 18), and " Quarterly Eeviow " (1821-22, Tol. xxvi, p. B4A), published at the time of the controversy, and already referred to as mentioned by approbation by Mr. Adams, of 1824-25, so treat the words " north-west coast." Mr. Adams in hb despatch of the 22nd July, Americ«n state 1823, referred to the Ukase of the Emperor Tufd iuutiJu,,''T"l*» as purporting to grant to the American Company P- *'*• the " exclusive possession of the north-west coast of it 'nerica, which belonged to Russia, from the 55tu aegree {_sic] of north latitude to Bekring Strait." The fact that the whole territorial and mari- time claim of the Ukase was in question, and was settled by the Treaties of 1824 and 1825, also appears from the Memorial laid by Mr. Middleton, on the part of the United States, before the Russian Government on the 17th December, 1823:— " With all the respect which we owe to the declared American Su-tv intention and tn the determination indicated by the Ukase, ^*^"' "**" ' p. 4511. it is necessary to examine the two points of fact ; (1.) If the country to the south and east of Behring Strait, as far a* the 51st degree of north latitude, is found strictly unoccupied. (2.) If there has been, latterly, a real occnpatiou of this vast territory ? . . . . The conclusion which must necessarily result from these facts does not appear to establish that the territory in question had been legitimately incorpo- rated with the Russian Empire. " The extension of tei ritorial rights to the distance of 100 miles from the coasts upon two opposite continents, and the prohibition of approaching to the same disUmce from these coasts, or from those of all the intervening islands, are innovations in the law of nations, and measures unexampled." In an earlier part of the same paper, Me. Middleton observes : — " Tl a Ukase even goes to the shutting up of a strait which has never been till now shut up, and which is at present the principal object of discoveries, interesting and useful to the sciences. " The very terms of the Ukase bear that this pretension has now been made for the first tima' The &ame appears from Mr. G. Canninge despatch to Sir C. Bagot of the 21th July, 1824 :— " Your Excellency will observe that tbeii ere but two points which have struck Count Lieven as scHceX'iible oi any question. Tht first, the assumption of the base of the mountains, insteai' rf tue summit as the line of boundary ; 55 the second, the extension of the right of navigation of the Pacific to the tea heyond Behring Slraiti. • • • • " Ab to the second point, it is perhaps, as Count Xieven tentarks, new. But it is to be remarked, in return, tliat the circumstances under which this additional security is required will be new also. " By the territorial demarcation agreed to in this ' Projet,' Bussia will become possessed, in acknowledged sovereignty of both sides, of Behring Straits. " The Power which could think of making the Pacific a mare claiuam may not unnaturally be supposed capable of a dispo8itj.o& to apply the same character to a strait com- prehended between two shores of which it becomes the undisputed owner ; but the shutting up of Behring Straits, or the power to shut them up hereafter, would be a thing not to be tolerated by Finland. " Nor eould vie submit to be excluded, either positively or constnietivdy, from a sea in which the skill and science of our seamen has been and is still employed in enterprises itUerestivg not to this country alone, but to the whole civilized world. "The protection* given by the Convention to the American coasts of each Power may (if it is tliought necessary) bo extended in terms to the coasts of the Bussian Asiatic territory ; but in some way or other, if not in the form now prescribed, the free navigation of Behring Straits, and of the seas beyond them, must be secured to us." 8m Appendix It would have been of little use securing the right to navigate through Behring Strait luiless the right to navigate the sea leading to it was secured, which would not have been the case if the Ukase had remained in full force over Behring Sea. The frequent references to Behring Strait and the sens beyond it show that there was no doubt in the minds of the British statesmen of that day that, in securing an acknowledgment of freedom of navigation and fishing throughout the Pacific, they had also secured this right as far as Behring Strait. As corroborative proof of the usual practice of the British naval authorities, reference may be made to the instructions given in 1825 by the Lords Commissioners of the Admiralty, which will be found in the " Narrative of e Voyage to the Pacific and Behring Strait, &c.," under com- mand of Captain F. W. Beechey, R.N., in the * (t.«.) By the eiteniion of tcrritoriil juritdiction to two iMguM, u origiullf propoMd in ih* oouiM of the negoiiationt bolwMn Gnat Britain ud Ruwi* mmm S6 Memoir Ubtorlal 'ind PoIIUnl of thi north-mat eoMt ol North America (nd the iiykcest territoriee, illoatiatod by A Mip end a geographical view of these cooDtries. by l(ot)ert Grveohow, Translator and Librariin to the Depart- ment of State." Senate, 2t» v3uc& has taken place between ns on the subject of a. SotUe published by our CothuI at Yokohama relating to biaaf, hunting, and to trn in the RiiMian icattn of the Ptxifue, and in reply to the note which yoj a^ldreaneti %a x-^, yo«r mat* of the 15th March wap, in fact, published by oar Cm^hI at Yokohama, and our Consul-General at Sk-^ Tnadtm n also authorized to publish it. " This measure refers only to prohibited iadrnttim and to the trade in contraband ; the reatrietiABS wtikJt it establishes txtend striethj to the territorial ycaUrs ef T^amix only. It was required by the numeroaa »kmm» fumi m laf« years, and which feU with all their wci^bt oa the population of our sea-shore and of cor iskadi^ «fcaae only means of support is by fishing and hunting: TkcM alMHB inflicted also a marked injury on the interola «f He Company to which the Ir.perial Gcvenment liaiameeiti the monopoly ofjishiny and hi iting{' exportatiem''), i called tht ' Commodore ' and the ' Seals' "Beyond this now Regulation, of whicb the point is the obligation imposed upon captaina of ri wr 1i who desire to fish and to hunt in the Riama* wattn «f Ok* Paeijic to provide themselves at Yladiraatiidc mSh the permission or licence of the Govemor-Gencial of Coeatal Siberia, the right of fishing, hunting, and! of trnile bjr foreigners in our territorial waters is rcgnlxsed bjr Article 560, and those following, of voL xii, Bnt II, of the Code of Laws. " Informing you of the preceding, I hare, 4a.* Bancroft writes, in his " History of AiaaHa " (pp. 10, 20): "The Anadir, which empties into the Pacific." Again : " Thus the Pteific Ocean [622] & 62 yr&B first reached by the Kussians on the shore of the Okhotsk Sea." And yet again : " The ascent of the Lena brought the Bussians to Lake Baikal, and showed them another route to the Pacific, through China by way of the Amoor." So, in 1887, it is found that the American Pa^™ relating Eepresentative at St. Petersburg informed Fiih»riei,Waibiiig- Mr. Bayard (17th February, 1887) that the ">"• >889, p. 268. Notice already quoted prohibits fishing, &c., in "the Bussian Pacific coasts." Tliis corre- spondence related to a seizure which had been made in Behring Straits. Maps and Charts. In the discussion of the qusstion of jurisdic- tion between the United States and Great Britain special reference has been made by the United States to the marking of Maps, from which it has been insisted that the waters of Behring Sea had been given a name distinct from that of the Pacific Ocean. From this it was urged that the words " Pacific Ocean" in the Conventions were used with great care, so as to reserve the waters of Behring Sea under the exclusive jurisdiction of Russia. It is very noteworthy in studying any series of Maps chronologically arranged, particularly those published before the middle of the present century, that Behring Sea is frequently without any general name, while the adjoining Sea of Okhotsk is in almost every instance clearly designated. On various Charts issued by the United States' Hydrographic OflBce, including the latest and most perfect editions now in actual use, the usage of "Pacific" or "North Pacific Ocean" as including Behring Sea occiu^. Thus:— No. 909. Published March 1883 at the Hydro- graphic Office, Washington, D.C. : — " Pacific Ocean. Behring Sea, Plover Bay, from a survey by Lieutenant Maximov, Imperial Russian Navy, 1876." (Plover Bay is pltuated on the Asiatic coast, near the entrance to Behring Strait.) No. 910. Published October 1882 at the Hydrographio Office, Washington, D.C. : — " North Pacific Ocean. Anadir Bay, Behring Sea. From a Chart by Engineer Bulklcy, of New York, in 1866," &o. ■^.. 'DIctio Tom. , t'om. Lugloi " DicU( M. Oall "Oral 111 St. M mU l^-- 68 r • DicUonniin 0f* BaaabaraUa, KoA, 18M. "Grand Dictiomiialr* Ulirenal," pal M. P. LtbouNe, Parit, MM. at. Martin, ■' Noaraaa DMeuair* da Q|i >|i "The Undersigned submits that in no sense can the fourth Article be understood as implying on acknow- ledgment, on the part of the United States, of the right of liussia to the possession of the coast above the latitude of 61° 40' north." In transmitting the papers to Congress, the President of the United States ohserved ; — " The con'espondeucc herewith communicated, will show Van Buren'i Mea- the grounds upon which we contend that the citizens of *'8»> J**?*"^' '» , The United States have, independent of the provisions of state' Papers, the Convention of 1824, a right to trade with the natives vol. ixvi, p. 1830. upon the coast in question at unoccupied places, liable, however, it is admitted, to bo at any time extinguished by the creation of Russian establishments nt such points. This right is denied by the Kussian Government, which •asserts that, by the opei-ation of the Treaty of 1824, each party agreed to waive the general right to land on the vacant coasts on the respective sides of the degree of latitude referred to, and accepted, in lieu thereof, the mutual privileges mentioned in Article IV. Tlie capital and tonnage employed by our citizens in their trade with the north-west coast of America will, perliaps, on adverting to the odicial statements of the commerce and navigation cf The United States for the last few years, be deemed too inconsiderable in amount to attract much attention ; yet the subject may, in other respects, deserve the careful consideration of Confess." A recent writer. Professor J, B. Angell, dis- cussing this suhject, writes : — " The Treaty of 1824 secured to us the right of naviga- Jaj. B. Ao);eU, in tion and fishing ' in auy part of the great ocean, commonly '''• " Fofuni," called the Pacific Ocean, or South Sea, and (in Article IV) ."American Riih'ti for ten years that of frequenting the interior seas, gnlfs, in Behrin^ Sea." harbours, and creeks upon tlic coast for the purpose of lishing and trading. At the expiration of ten years Iviissia refused to renew tliis la,st provision, and it never w,x<» formally reaewed. But, for nearly fifty years at least, American vessels have been engaged in taking whales in Dehring Sea witliout being disturbed by the Itussian (Joverinni'nt. Long before the cession of Alaska to us, huudroils of our wh.iling vessels annually visited the 78 Arctic Ocean and Behring Sea, and brought home rich cai-goes. It would seem, therefore, that Bussia regarded Behring Sea as a part of the Pacific Ocean, and not aa one of the 'interior seas,' access t ^ which was forbidden by the termination of the IVth Article of the Treaty." 18 . North-weit Coait, p.84ii. 8 Aluka, pp. 669, 658. North-wMt Coast, p. 342. 1839. AUika, pp. 686, 467. 840. 1841. 1842. Aluka, p. 667. Ibid., p. 883, Ibid., p. 989. Ibid., p. 866. Ibid., p. 888. Interpreti>Uoo of Treaty by BoBsia. Eitract from •< Tikhmeniaff," pp. 34, 38. Appvndii. To return to the ohronologigal order of events : — In 1837 one foreign trading-vessel is named as having been on the north-west coast. In 1838 further c::plorations were undertaken in tbe north by Chernof and Malakhof. Three foreign trading-vessels are noted as having been on the north-west coast in this year, and one is known to have visited Alaskan waters. In 1839 a Commission met in London to arrange the dispute between the Hudson's Bay and Itussian-American Companies, arising out of the interference by Russian officials with the British vessel " Dryad." The claim for damages by the former Company was waived, on condi- tion that the latter should grant a lease of all their continental territory northward to Cape Spencer, Cross Sound (about latitude 58°), on a fixed rental. This arrangement was for ten years, but was renewed, and actually continued in force for twenty-eight years. In 1840 the British flag was hoisted and saluted at the mouth of the Stikine, the Hudson's Bay Company taking possession. A post was also estabUshed by the Company at Taku Inlet. Writing of the year 1840 Etholen reported the presence of fifty foreign whalers in Behring Sea. At this time whalers were just beginning to whale in Behring Sea; from 1840 to 1842 a large part of the fleet was engaged in whaling on the " Eadiak grounds." In the same year Etholen relieved Kuprianof as Governor at Sitka. In 1841 the Charter of the Bussian-American Company was renewed for a further term of twenty years. In 1842, according to Etholen, fifty foreign whalers were in Behring Sea in 1841, and thirty in 1842. He asks the Russian Government to send cruizers to preserve this sea as a nare elausum. Accordingly, in a letter from the Department of Manufactures and Internal Trade to the Governor of the Ruiisian- American Company of the 14th December, 1842, in reply to his com* [622] TJ ^nriM' /I • fflwO iU I (v) 74 plaint as to proceedings of American whalers in Behring Sea, the following passage occurs : — " The claim to a mare clatuum, if we wiahod to advance such a claim in respect to the northern part of the Pacific Ocean, could not be theoretically justified. Under Article I of the Convention of 1824 between Bussia and the United States, which is still in force, American citizens have a right to fish in all parts of the Pacific Ocean. But under Article IV of the same Convention, the ten years' period mentioned in that Article having expired, we have power to forbid American vessels to visit inland seas gulfs, harbours, and bays for the purposes of fishing and trading with the natives. That is the limit of our rights, and we have no power to prevent American ships from taking whales in the open sea." Inland explorations by Zagoskin, which con- ibid., pp. sss, 5S4. tinned till 1844i, began. Sir George Simpson, Ibid., pp. as8-660. Governor of the Hudson's Bay Company, reached the Stikine post just in time to prevent an Indian uprising. He also visited the Russian Establishment at Sitka and completed an arrange- ment between the Companies to interdict trade in spirits on the coast. About this time the Russian-American Com- pany became alarmed at the danger to their fur trade. Every effort was, therefore, put forward by the Company and the Governors to induce the Foreign Olhce of the Russian Government to drive off these whalers from the coasts, and by excluding them for a great distance firom shore, prevent trespasses on shore and the traffic in furs. In 1843 explorations were carried on on the Aluk*, p. 576. Sustchina and Copper Rivers. The whalers, from 1843 to 1860, landed on Bancroft, pp. 58S, the Aleutian and Eurile Islands, committing ^^*' depredations. United States' captains openly carried on a traffic in furs with the natives. Tikhmenieff writes : — " From 1843 to 1850 there were constant complaints by Tikhmeoiet. the Company of the increasing boldness of the whalers." In ■'846 the Governor-General of Eastern ^ Siberia asked that foreign whalers should not be allowed to come within 40 Italian miles of the Russian shores. likhmenieff thus describes the result of these representations : — "The exact words of the letter from the Foreign Office are as follows : — "'The fixing of a line at sea within which foreign 1843^ 1846. 'T»\*"«" !»■■«- U"*!!!"" . >W r 76 TOMela should be prohibited firoiD whaling off oxa ahorai would not be in accordance with the spirit of ,the Conven- tion of 1824, and would be contrary to the provisions of our Convention of 1825 with Great Britain. Moreover the adoption of such a measure, without preliminary negotiation and arrangement with the other Powers, might lead to protests, since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea.' " In 1847 a representation from Governor Tebenkoff ia regard to new aggressions on the part of the whalers gave rise to further correspondence. Some time before, ia June 1846, the Governor-General of Eastern Siberia had expressed his opinion that, in order to limit the whaling operations of foreigners, it would bo fair to forbid them to come within 40 Italian miles of our shores, the ports of Petropaulovsk and Okhotsk to bo excluded, and a payment of 100 silver roubles to be demanded at those ports from every vessel for the right of whaling. Ho recommended that a ship of war should be employed as a cruizer to watch foreign vessels. The Foreign Office expres.sly stated as follows, in reply : — " ' We have no right to exclude foreign ships from that part of the Great Ocean which separates the eastern shoro of Siberia from the north-western shore of America, or to maki the payment of a sum of money a condition to allowing them to toko whales.' " The Foreign Office ware of opinion that the fixing of the line referred to above would reopen the discussions formerly carried on between England and France on the subject. The limit of a cannon-shot, that is about 3 Italian miles, would alone give rise to no dispute. Tlia Foreign Office observed, in conclusion, that no Power had yet succeeded iu limiting the freedom of fishing in open seas, and that such pretensions had never been recognized by the other Powers. They were confident that the fitting; out of colonial cruizers would put an end to all diffioilties ; there had not yet been time to test the efficacy of this measure." 1847. 1848. 1849. Tikhnwnioff. In lSi7 traffic in fur-seal skins was carried on by a United States' whaler at Beliring Island in open defiance of the Bussian authorities. In 1848 foreign whaling vessels entered the Arctic Ocean by way of Behring Straits for tie first time. AUika, p. 884. ^^ 1849 the whaling fleet in the Arctic and northern part of the North Pacific numbered 299 vessels. Two-thirds of these ore said to have been United States' vessels, but others were French and English, the latter chiefly from Australasia. A Bussian Whaling Company for the North Faoifio was formed at Abo, in Finland, with special privileges. This Company seat out six vessels in all. Ill f. »-!».) 1 1 I- r 76 In 1850 the British vessels "Herald," "Plover," A.aika, p. 672. nnd " Investigator," all dispatched in search of Sir John Franklin's expedition, met in Kotxobue Sound, after passing through Bchring Strait, in the same year. An armed Russian corvette was ordered to IWd., p. JM. cruize in the Pacific, and in this year it is esti- mated that 300, and in later years as many as 500 foreign whalers visited the Arctic and neighbouring waters. Tehenkof s administration came to an end in tliis year. In 1851 Nulatto, a fort on the Yukon some way inland, was surprised by Indians and the inmates butchered, including Barnard, an English officer of Her ^lajesty's ship " Enterprise," one of the ships engaged in the expedition in search of Sir John Franklin. The " Enterprise " passed Behring Strait on the Gtli May, 1851. Tl;e United States' whaling fleet is said to have been ns numerous as in 1849. The interval between the close of Tebenkof 's administration and the beginning of that of Voievodslcy was filled by the temporary appoint- ment of llosenburg and Eudakof. In 1852 buildings at the Hot Springs, near Sitka, were destroyed by the Indians. The value of catch of the whaling fleet in the North Pacific in this year is estimated at 14,000,000 dollars. After 1852 the whaling industry gradually decreased. In 1853 war having been deternincd on between England and Russia, the Hudson's Bay nnd Russian- American Companies influenced tlieir respective Governments to prohibit hostili- ties on the north-west coast of America. In 1853 the Russian-American Company again TikhmenUir. specially requested the Government to prohibit whalers from entering Okhotsk Sea, but without success. Instructions were, however, issued to Russian cruizcrs to prevent whalers from entering bays or f^ulfs, or from coming within 3 Italian n. 584. Ibid., p. 585. Ibid., p. S8S. Ibid., p. JSM. Ibid., p. 668. In 1854 525 foreign whalers were in Behring Sea and its vicinity. "Voievodsky elected Governor for the Com- pany. In 1856 the Abo Whaling Company went into liquidation. In 1856. In this year 360 foreign whalers were reported as in Behring Sea and vicinity. Bancroft reports that in the year 1857 : — " Of the 600 or 700 United States' whalers that were fitted out in .1057, at least one-half including most of the largsr vessels, were ongiiged in the Novtli Pacific .... including, of course, Heiiriiig Sea. 1857. Papers relating to Behring Sea fisherica, Washing too, 1889, p. 281, Seward to Clav, February 74, 1868 1869. ;\lailia, p. S9a. 1860. Ibid., pp. S78, S79 Ibid., p. S80. From 1850 to 1867 iManuel Enos, Captain of the United States' barque " Java," was whaling in the bays of the Sea of Okhotsk, and was not molested. In 1850 the cession of Alaska to the United States began to be discussed privately. In 1800 the Russiau-American Company ap- plied for a new Charter for twenty years, to date from the Ist January, 1862, and lleports as to the condition of the Company were called for by the Government. The Russian population of the American Colonics at this date, apparently including [G22] X wmrn^m^r^f^. 78 native wives, numbered 784: Creoles, 1,700; native population estimated at over 7,000. In 1862 the value of the catoh of North- Pacific Alaika, p. 669. whaling fleet was estimated at 800,000 dollars. In 1864( Maksatof took temporary charge for ibid., p. 619. the Russian Government of the Company's affairs. In 1865 negotiations between the Russian Com- Ibid, pany and the Government continued, but terms such as the Company would accept could not be arrived at. In 1866 the Russian Government still con- bid., p. J so. templated renewing the Company's Charter on certain terms. A Califomian Company entered into treaty for ibid., p. 698. a lease of the " coas*^ "trip " of Alaska, then held by the Hudson Bay Company. In 1867 Alaska Avas sold by Russia to the United States for 7,200,000 dollars. In this year twenty-three vessels were employed Ibid., p. 664. in the cod fishery, and 2,500 tons of salted fish secured. In 1867, before the cession of Alaska, the whaling interest of the United States had grown to such an extent on these seas that a Phila- delphia paper thus referred to them : — "Our whaling interests are now heaviest in the soaa "Philadelphia adjacent to Russian-America, both above and below North Amerioan T, . • c i .1 Garette," Friday, Behnng Strait. April l!i, 1867. Ei. Doc. No. 177, 2nd Seis., , ,. „ 40lh Cong., p. 89. Value of catch of North Pacific whaling fleet Aiaskn, p. 669. estimated at 3,200,000 dollars. In 1868 the lease of the " coast strip " of Alaska ibid., p. 698. to the Hudson's Bay Company by the Russian- American Company expired in this year. 1862. 1864. 1865. 1866. 1867. 1868. 79 Statistics of United States' Whaling Industry. (North Pacific Grounds, including Okhotsh and Behring Seas and Arctic Ocean.) The growth and decline of the. whaling industry during the years discussed in this chapter may be conveniently illustrated by the foUowinpf Table (A), which shows the nrnaber of United States' vessels in the North Pacific whaling fleet from 184,1 to 1867. It is taken from "Tht, Fishery Industries of the United States," 1887, pp. 84-85. (This list does not include whalers of other nationalities.) Ywr. Number of Vcsselg. 1841 20 1842 29 1843 108 1844 170 1845 263 1846 292 1847 177 1848 159 1849 155 1850 144 1851 188 1652 278 1853 238 1854 232 1855 217 1856 178 1857 143 1858 196 1859 176 1880 121 1861 76 1862 32 1863 42 1864 68 1865 59 1866 95 1867 90 The facts stated in tliis chapter establish thab from the year 1821 to the year 18G7 the rights of navigation and fishing in the waters of Behrin» Sea were freely exercised by the vessels of tho United States, Great Britain, and other foreign nations. 81 Ghapteb V. Point 4 of Aktioib VI.— TAe Cession of 1867 and what passed by it. The fourth question or point in Article IV of the Case is as follows : — Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that Treaty ? This question may conveniently be treated under the following hoads, as proposed on p. 6 :— (E.) What rights passed to the United States under the Treaty of the 30th March, 1867. (F.) Action of the (Juited States and Russia from 1867 to 1886. (G.) The contentions of the United States since the year 1886. Head (E.) — What rights passed to the United Stales under March 30, 1867 ? Trctty of CMiion, The following is the text of the Treaty of ***'• Cession of Alaska as signed : — "Sa Majesty I'Empereur de Toutes les Hussies et les £tatB-Unis d'Amdrique, ddsirant raffennir, s'il est possible, la bonne intelligence qui existe entre eux, ont nommd h cet efiet, pour leurs PliSnipotentiaires, savoir : " Sa MajesUS I'Empereur de Toutes les Hussies, le Con- seiller Vn\i fidouard de Stoeckl, son Envoy(5 Extraordi- nairo et Ministre PWnipotentiaire aux fitats-Unis ; et " Lo President dcs fitata-Unis, le Sieur William H. Seward, Secretaire d'fitat ; "I^squels, aprfes avoir dchangd leurs pleins pouvoirs, trouvds en bonne et due forme, ont arrSt^ et sign^ les Articles suivants i — " AKTICLE I. " Sa Majest'. the Behring Sea are defined to show the hi.^udarios within which the territory ceded " on the Continent of America and in the adjacent islands " is contained. In Article VI, Russia again makes it emphatic that she is conveying "the rights, franchises, and privileges now belonging " to her in the said " territory." The eastern geographical limit is described in Article I as the " line of demarcation " between the Russian and British possessions ; and no explanation or qualification is superadded. But when the western geographical limit is described, care ia taken to repeat the language, intro- ducing the description "within which the terri- tories conveyed are contained " the course ^'hcn for the western limit is accompanied by an explanation, and the ilaal clause of Article I leaves no room for doubt, and distinctly negatives any implication of an attempt to convey any portion of the high seas — for the said western line is drawn, not so as to embrace any part of the high seas, but, as expressed in the apt language of the Treaty — " so AS to include in thk territory conveyed the whole of the Aleutian Isi..»nds east op that jieridian."' Had the inten!ion been to convey the waters of the Eelu'ing Sea eastward of the wcstorn limit, the words "ainsi one les tics continues" would not have been used, but Avoi'ds would have been chosen to indicate the area of tlie open soa con- veyed, and it would have bcon unnecessary to specifically mention the islands. There was good reason fur a lino of demarca- tion of the character sj)ocillod. The islands in the Aleutian cliaiii and in Behring Sea wore not well defined, and could therefore not be used for the accurate delimitation of ten-itory ceded. In fact, even the expressioi\ the Aleutian Archipelago was indefinite in its signification often inch. ding islands which were on the Asiatic side of Behring Sea, and far from the Island of Attn, the westernmost island of (he Aleutian group intended to be ceded. [('2-'] Z 86 Groenhow, for instance, writes :— " The Aleutian Archipelago is considered by the Eussians Character of the western geographical limit, as consisting of e included under two governmental dis- tricts by the Russians, the Commander Islands belonging to the western of these districts (p. 38). Greenhow also states that the name "Aleutian Islands " was first applied to Copper and Bchring Islands. Indeed, in many Maps of various dates, the title Aleutian Islands is so placed as impliedly to include the Commander Islands, in some it is restricted to a portion of the chain now recognized by tbat nam(;. Similar diversity in usage, with frequent instances of the inclusion of the Com- mander Islands as a part of the Aleutian Islands is found in geographical works of various dates. From this uncertainty in usage in respect to the name of tlic Aleutian Islands (though these aro now commonly considered to end to the west- ward at Attu Island), it is obvious that, in defining a general boundary between the Russian and United States' possessions, it might liave given rise to grave subsequent doubts and questions to have stated mci-ely that the whole o'' the Aleutian Islands belonged to the United states. Neither would this have covered the case offered by the various scattered islands to the north of the Aleutian chain proper, while to have enumerated tlio various islands wltich often appeared and still sometimes appear on different Maps under alternative names would Lave been perplexing and unsatisfactory, from the very great number of those to be found in and about Uehring Sea. It was thus entirely natural to define conven- tionally a general lino of division fixed by an imaKinary line so drawn as according to the best published Maps to avoid touching any known islandB, 87 limit, futiau United States' Coait Survey. Coast Pilot of Alaska 1869. I'art I, Appendix No. a. Tlie follow njj is ' ,jm tlio "Coast Pilot" of 18G9:-- "The following; list of the Keugraphiwil )xiHitious of places, principally upon tlio coast of Alaska, has been compiled cliiolly from ItuKsijiii nuthorities. In its prepara- tiou the iiileiitioii wr 3 to iiitiodiioe all determinations of position ilip.t nppwired to Imve Ijeen made hy actual obser- vation, even whou the localities nre quite close. In the Archipelago Alexander most of Vancouver's latitudes Imve been introduced, although in such waters they are not of great practical value. " It is believed the latitudes are generally within 2 miles of the actual position, and in many cases where several observers had determined them independently, the errora may be less than a iiiile. The longitudes of har- bours regularly visited by vessels of the IJussian-Amcrican Company appear to be fairly determined, except toward the western termination of the Aleutian cliain, where large discrepaiicies, reacliing .30' of arc, are exhibited by the comparison of results between Kussian .lUthorities and the United States Exploring Expedition to the Korth Pacific in 1855. Positions by dilferent authorities ore given in some iustan' '^ to show ihese discrepancies. The compaiison of lalilmles and longitudes at Victoria, Fort Simpson, Sitka, Chilkaht, Kiidiak, and Unalaska, between English and Russian and tlie United Slates' coast survey determinations, exhibit larger errors llian might have been expected. " The uncf-rtainties tliat exist in the geogiapliical jiosition of many island.s, headlands, straits, and reels, the great dissimilarity of outline and extent of recent exami- nations of some of the Western Aleutians, the want of reliable data concerning the tides, cnrrcnt.s, and winds, the almost total wiuit of detailed descriptions of headlands, reefs, bays, straits, &i'., and the circumstantial testimony of the Aleutian tishermeu concerning islands visited by them and not laid down upon the Charts, point to the groat necessity Utv nn exhaustive geogmphical recounais- sanco of the coast, ns was doiie for the coast of the United States Ixjtween Mexico and British Columbia," The occasion for a western limit of the kind adopted is tlic more obvious, wlicii it is borne in mind that many of tho islands in and about Behring Sea are oven at llio present day very imperfectly surveyed, and uioro or U s.s uncertain in position. Thus, eve- the hitest United Statos' Chart of what are now known ns the Aleutian Islands, (No. 08, publislied in I 91) is based chiefly on information ol)taiiied by the " Is'orth I'aciflc Surveying Ex{K»dition " under Rogers, which was carried out in the schooner " renimorc Cooper " in 1855. On sheet 1 of this Chart, (ambraciug the western pail of the Aleutian 8S Islands), such notes as tho following are found: — "The latest Eiusian Charts place Bouldyr Island 10 miles duo south of the position f,'iven here, which is from a detcnninntion by Sumner's method. "The low islands between Ooroloi and loulakh, ex- cepting the west point of Unalga, are from Russian authorities, which, however, are widely discrepant." Similarly, in the corresponding British Ad- miralty Chart (No. 1501) published in 1890 we find tho remark : — " Mostly from old and imperfect British, Russian, and American surveys." Even on tho latest Ciiart of Behring Sea, published by tho United States in 1891, a small islet is shown north of St. Matthew Island, near the centre of tho sea, which docs not appear on the special Map of St. ilatthew Island published in 1875, and which covild not bo found in 1891. That t!io line drawji through Bohring Sea between Russian and United States' possessions was thus iutundcd and regarded merely as a ready and do finite mode of indicating which of the numerous island? in a partially explored sea should belong to either Power, is further shown by a consideration of the northern portion of tho same line, which is that first defined in tho Treaty. From the initial point in Behring Strait, which is carefully described, the "limito occi- dentale " of territories ceded to the United States " rcmonte en ligne directo, sans limitation, vers le nord, jusqu'ii ce qu'elle so pcrd dans la Mer Glacialc," or in the United States' official trans- lation "proceeds due north without limiiation into the same Frozen Ocean." The "geographical limit" in thir, the northern part of its length runs through an ocean wliich Lad at no time been surrounded by Russian territory, and which had never been claimed as reserved by Russia in any way, and to which, on the contrary, special stipulations for access had been made in connection with the Anglo-Russian Convention of 1825, and which einco 181-8 or 1810 had been frequented by whalers ^^nd walrus- hunters of various nations, M'hilc no single fur- seal has ever been found within it. It is therefore very clear that the geographical limit thus projected towards the north could have been intended only to define the ownersliip of such islands, if any, as raiglit subsequently bo discovered in this imperfectly ezplorcd ocean; and when, therefore, in the order of the Treaty, it was proceeded to define the course of " the same western limit " from the initial point to the southward and westward across Behring Sea, it is obvious that it continued to possess the same character and value. International Law as to the Z-mile limit. Admitting, in the consideration of this question, that Russia's title before 1807 to the eoast of Behring Sea and to the islands within those waters was complete, an examination of the principles of international law and the practice of nations will show that her jurisdiction was confined to the distance of 1 marine league or 3 miles from her shores. The principle of the marine league was in 1872 applied by Mr. Boutwell, United States' Secretary to tiie Treasury, in a letter of instruc- tions to the Collector of Customs at San Francisco, dated 19th April, 1872, as follows : — " I do not see that tlio United States woukl liavi; the jurisdiction or power to drive o(l' parties goiiij,' uj) there for that purpose [to take fur-seals], unless tliey made such attempt within a marine league of the shore." Wharton'l " Digest," lec. 32, V. 106. The same principle was afiirmed in respect of the waters now in question l)y Mr. Fish, the United States' Secretary of State, Avho wrote to the United States' Legation in Russia on the 1st December, 1875 : — " There was reason to hope that the practice, which for- merly prevailed wilii powerful nations, of regarding seas and bays, usually of large extent near their coast, as closed to any foreign commerce or fishery not specially licensed by them, was, without exception, a pretension of the past, and that no nation would claim exemption from the geuer.il rule of public law which limits its maritime juris- diction to a marine league from its coast. We should par- ticularly R>gret if Russia should insist ou nuy such proten- ','ion." In view of the following reference to this sub- ject, from the brief of the United States in the case of the seizures in 1886, already referred [022] 2 A ^. IMAGE EVALUATION TEST TARGET (MT-3) A ^ A*% 4^ 1/ 4J|j^ ^< 1.0 S«*K5 ^^= u lU 12.2 1.1 l.-^ia ^ U& '•25 i '-^ HJ^ ^ ^ — ■ o — ► ^ <^ 7 '>>' -^vV -1^ ' » '/ /A w Photographic Sciences Corporation 4^ '4^ 33 WIST MAIN STRIET WHSTH.N.Y. MSBO (716) t/a-ooa . ^ 90 to, it ia not supposed that the general doctrine will be disputed : — "Concerning the doctrine of intenutional bw e«t«- Bhtrtartha blishiu/j what U known as the marine leagne belt, which H?J^ ^f** extends the jurisdiction uf a nation into ailjaccnt seas for October l> I8S7. the distance of 1 marine leatroe, or 3 miles from its shorea, "Naw York and following all the indentations and sinoontiss of its ]g[|M« ^"""'^ coast, there is at this day no room for diacnasion. It must be accepted as Uie settled law of nationa It is sustained bj the liigheat authorities, law-writers, and jurists. It has been sanctioned by the United States since the foundation of the (iovemment. It was affirmed by Mr. Jefferson, Secretary of State, as early as 1793, and has been !«• affirmed by his succeaaors — Mr. Pickering, in 1796 ; Mr. Madison, in 1807 ; Mr. Webrter, in 1S42 ; Mr. Buchanan, in 1849; Mr. Seward, in 1862, 1863, and 1864 ; Mr. Fish, in 1873 ; Mr. Znatt, m 1879 and 1881 ; and Mr. Itayord, in 1886. (Wheaton's* " Inteniationnl Law." vol i, soc 32, ppi lOO and 103.) "Sanctioned thns by an nnfatoken line of precodenta oorering the first centoiy of onr national existence, the United States would not abandon this doctrine if they oould ; they could not if they wonUL" And again :— "It thus appears that our Goremment asserted this doctrine in its infancy. It was aniioanced by Mr. Jeflerson OS Secretary of State and by the Attorney-General in 1793. Mr. Pickering, SecreUry of State in 1796, re- affinna it, in liis letter to the Gorenior of Virginia, in the following language : ' Onr jurisdiction haa been fixed to extend 3 geographical miles frum our shores, with the exception of any waters or bays which are so laud-lockbd as to be unqneationnbly within the jurisdiction of the States, be their extent wliat they may.' (Wheaton's ' International I-nw,' voL i, nee. 32, pp. 2-100.) " Mr. ISuchanan, Secretary of State, to Mr. Jordan, in 1849, reiterates this rule in the following language : ' The exclusiv. jurisdiction of a nation extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea inclo8essessian from the land, which {josscs- sion can only be maintained by artillcr}'. At one mile beyond the reach of coast-guns th"ro is no more ixMsessiuu than in mid-ocean. Tliis is the lula laid down by almost all the .rritors on international law." As to inland seas and seas over which empire may extend, the following authorities were referred to by the Agent in tlie same brief : — Ibid^ p. 16t. "Af present," says Vattel, "Law of Nations," Book 1, ch. xxiii, !;}§ 289, 291, "tliu whole space of the sea within cannon-shot of the const is considerctl us making a i>art of tho territory ; and, for that reason, a vessel taken under the guns of a neutral fortress is not a good prize. " All we have said of the (xirts of tho sea near the const may [lo said more particularly, and witJi much greater reason, of the roads, liays, and straits, as still more capable of being occupied, and of greater importance to the safety of the country. Tint I si^ak of tho bays and straits of small extent, and not of those great luirts of the sea to which Uiesc names are sometimes given — as Hudson's Bay and tho Straits of Magellan — over which the Empire counot extend, and still less a right of pr )perty. A bar whose entrance may be defended may bo possessed and rendered subject to tlie Uiws of iho Sovereign ; and it is of importance tliat it should bo so, since the country may be much more easily insulted in such a place than on the coast, open to the winds and thii imi>otuosity of tho waves." Professor Bluntschli, in his "Law of Nations," Book d, §§ 302, 309, states the rule in tho samu way :— Ibid,, p. in. " When tho frontier of n State is formed by tho opcu sen, the pait of the sen over whirh tho Stilo ciui from tlia shoro make its power respected — i.e., a portion of tho scii extending as far a."- a cannon-sliot from tho co-ist — is considered as beUmging to tim tcnitory of that State. Treaties or agreements can csttiblisli other and mora precise limits." " NoU. — Tho extent pitictLicd of this sovcn gnty hits remarkably incrcascl sinc^ tho invention of far-shooting cannon. This is tho consequence of tho improvements made in Uio means of defence, uf which the State makes, 93 u«). Tlio Bovcioignty of Stat«« over tlio Nea extondcd originntly only to a stono's-throw from tho cout ; Inter, to ail nrrow-shot ; flro-nnus woro invented, and liy rapid livogrtss wo Imvo orrivcd to tlio far-»I>of>ti»j{ cnnnon rf the ]>ro.sciit i^{e. Rut Btill we preserve tlio principle : ' Ttrrtt dominium Jtnilur, vhifinitar armon^m vis.' " "Within certain limit?, there arc submitted to the fovcreij^ity of tho bordering State : — " (a.) Tlio portion of the sea placed within a cannon- shot of the shore. "(b.) Uarboura. "(e.) Gulfs. " (rf.) Roadsteads." " Note. — Curtain portions of tho sea are so nearly joined to tlio li-riu firina, that, in sonic measuru at loast, they onght to form n jiart of tho territory of tho bonlering State ; tlioy arc considered as accessories to tho terra firma, Tho safety of the State, and the puidic (luict, are so deiKin- dent on them that they cannot be contented, in certain gulfs, ■with tlie portion of tlio sea lying under the (ire of cannon from the coast. These exceptions from tho general rule of the liberty of the sea can only bo made for weighty rer.sous, and when the extent of tho arm of the sea is not large ; thus, HHd.ion'.s liuy and tho Gulf of Mexico evidently nro a part of tho open sea. No one disputes the power of Kiigland over tho arm of tho sea lying lietween tho Isl(! of Wight ami tho English coast, which could not bu admitted for tho sea lying between Kiiglaud and Ireland; t!io Kiigli.'ih Ailniimlty has, however, scmielimcs main- tained the theory of ' narrow seas ;' and has tried, but without success, to keep for its own interest, un.der the name of ' King's Chambers,' some conpiderablo extents of tho sex'' Klubcr " Droit dcs Qcns Modcrnos de I'Europe (Paris, Edition 1831)," vol. i, p. 21G :— " Au teiTitoirc maritime d'un £tat apparticnnent les Proeeadiugt of districts maritimcs, ou parages susccptililcs d'uno pos- Hslifcx FiiheriM session exclusive, sur lcs(iucls r£tat a acquis (par occu- - im ' ' pation ou convention) et continue la snuveroinetd. Sout (!o CO nombrc, (1) I.C3 parties do I'ocdan qui avoisinent Ic torritoire continental do I'Etat, du moins, d'npria I'opinion pres(iuo giSnuralcmcnt adopt ■dqiient, inncccmiblos kiix vaimenux i^tmngcn qui n'ont poinl obtenu In perroiMion J'y naviguer." PiOMtdinnoT HkIIIIis niihtriw CommiHion, I877> p. I8S. Ortolan, p. 183. Proetcdiogi of Halifai Fitherin Commiiiion, 1877, p. 1538. Ortolan, in his "Diplomatio do la Mer," pp. 146, 1S3 (Edition 1801), says :— " On doit tanger Rur la ra£mo ligno cine radoo, ct Im portca, lux golfoii, ct le* > Jc.i, ct toiin les cnfoncemonts connus soiia iruutres di'noininnti •. b, lorwitio ccs unronce- nienU, fnrm/s )mr l".c £tat, v.o dupnMscnt pas en largour la double jtort/o du canon, on lonqao I'ontn^ pcut on tUro gouverneo par rartillcrie, ou (ju'ello est (li$fondue uaturollemont pnr dos IIch, par dc.i )u.ncH, ou par dcs roches. Dans tous ecu cos, en cflo''., il est vnu de dire que ccs golfes ou ces baicn sont on Is puis.sanco du r£tat niuitru du territoirc fpii les cnscrrp. Cot fitat en a la |Kissocsioii : tuus lea misoiinemcnU quo nous ovons fait & r,!gard dcs rodcs ct des ports |K!iivcnt so n'pctcr ici. liCs botds ct rivflgcs do la mcr qui Imignc les cAtcs d'un £tat sont IcS limitus umritimes nalnirlla de cet £tat. Muis pour la protection, i>our hi di'fcnso phw oilicaco de ocs limitOH naturellcs, In coutunio g(!n<:mle des nations, d'nccord avoo bcaucoup dw Trfiitcs publics, pcrract dc tracer Bur mer, h uno distance convcnable dcs c^tcs, et Buivnnt leurs contours, uno ligiia imnginairo qui doit (-tre consid<^-r6e commo la fr ntitro maritime ui-titicicllo. Tout bAtiment qui so trouve li tcrro do cette ligno est dit £tre daiii lu taux do r£tat dont elle liraito le droit de souve- nunct:J>n»?pf?ppi^ es OrtolM, " Rifb* iBtoTMlkmilM •! Diplomatic d« la Mar,* 4th EdiUoo, val. i, p. 147. •hut In or aurrounded by tlio territory of ono nation : — " ' Ud droit excliuif de domaine ot clo Houverainet, ut qn'elle ne pout almolurnoiil scrvir do liuii do cnmniuiiicik- tion et de commerce ciu'onlro loa leiiU oitoyeua de ctttu nation.' " Or, in tlio words of Sir Travors Twigs : — " Righta and " la entirely inclosod by the territory of a nation, uny Turkey, tliat sea might with propriety bo considered as a mare claumm ; and there seemed no reason to question tho right of tho Ottoman Porte to c:tcludc other nations frcim navigating the passage which connects it with the Mediterranean both shores of this i)a.<;.?ago being also portions of tlio Torkisb territory. But when Turkey lost a part of her possessions bordering upon tliis sea, and Russia had formed her commercial establishments on tho shores of tho Euxine, both that Empire and other Maritime Powurs became entitled to participato in tliu commcrco of tha Block Sea, and consequently to the free navigation of tho Dardanelles and the Dosphorus. This right was e.tpres :iy recognized by the Treaty of Adrianoplo in 1829. « * * * " 22. Tho great inland lakes and their navigable outlets are considered as subject to the same rule as inland sens ; where inclosed within the limits of a singlo State, tl'.oy are regarded as belonging to the territory of that State ; but if different nations occupy their borders, the rule of mart elausum cannot \>e applied to the navigation and use of their waters." Professor James B. Angell, ono of the Unitod States' Plcnipoteutiarics in the negotiation of the Fisheries Treaty at Washington in 1883, and an eminent jurisi in an article cni itlcd " American Bights in Behring Sea," in " The Forum " for November 1889, wrote : — " Can we sustain a claim that Behring Sea is a closed sea, and so subject to our control ? It is. perhaps, impossible to frame a definition of a closed sea wliich the publicists of all nations will accep*^ Vattel's closed sea is ono "entirely :.iclo8od by the land of a nation, with only a oommanioation with the ocean by a channel of which that J9 96 nation may take poaaetsion.' Hantefeuille rabatuititlly adopta this statemect, aaaerting more spedfloally, however, that the channel miut he narrow enough to be defended from the shoreo. Perels, one of the more eminent of the kter German writer*, practically accepts Hautefeuille'a definition. But so narrow a channel or opening aa that indicated by the eminent French writer can hardly be insisted on. Probably, most authorities will regard it as a reasonable raquirement that the entrance to the sea should be narrow enough to make the naval occupation of it easy or practicable. We, at least, may be exiKJCted to prescribe no definition which would make the Gulf of St. Lawrence a closed sea. " Hehring Sea is not inclosed wholly by our territory. I'rom the most western island in our possession to the nearest point on the Asiatic shore is more than 300 miles. From our most western island (Attou) to the nearest Ilussian island (Copper Island) is 18;> rai'es, The sea from east to west measures about 1,100 miles, and from north to .south fully 800 miles. Tlie area of the sea must be at least two-thirds as groat as tliat of the Mediterranean, nnd more than twice tknt of the Korth Sea. The Straits of Gibraltar are loss than 9 miles wide. Tho chief entrance to the Gulf of St. Lawrence, which is entirely surrounded by British territory, is oaly about 50 miles in width. Behring Sea is open on the north by the straits, lid miles wide, wliich form a passage way to the Arctic Ocean. On what grounds and after what modem pre- cedent we cuuld set up a claim to hold this great sea, with its wide approaches, as a mare elausum, it is not easy to see." Dana, in a note to Wheaton's "Elements," says:— "The only question now is, whether a given sea or gee Halleek. sound is, in fact, as a matter of politico-physical geography, within the exclusive jurisdiction of one nation. The claim of several nations, whose borders surround a large open sea, to combine and make it mare elausum against the rest of the world, cannot be admitted. The making of i>uch a claim to the Baltic was ihe infirmity of tho position taken up by the Armed Neutra ity in 1780 and 1800, and ill the Russian Declaration of War against England in 1807." Neither the Debates in Congress — which pre- coded and resulted in tho cession and its ratifica- tion by the United States, nor the Treaty by which it was carried into effect, nor the subse- quent legislation by the United States, indicate the transfer or acquisition of any exclusive or extraordinary rights in Behring Sea. On the contrary, they show that no such iuca was then conceived. In answer to a Rcsolntion of the Hoase of mmm 07 Representatives of the IQtb December, 1867, calling for all correspondence and information in the possession of the Executive in regard to the country proposed to be ceded by the Treaty, the Memorial of the Legislature of Washington Territory, which was made the occasion for the negotiation, together with Mr. Sumner's speech in the Senate, wore among other documents transmitted. This Memorial shows that United States' citizens wore already engaged in fishing from Gortez Banks to Behring Strait, and that they had never been under any apprehousioii of interference with such fishing by Russia, but desired to secure coast facilities, especially for the purposes of curing fish and repairing vessels. The Memorial is as follows : — Unitml Sum' Sraate, Ex. Voe. Mo. 177, 40th CoDK., Snd Sen., p. 139. "To his Excellency Andrew Johnson, President of the United Stittes. " Tour memorialists, the Legislative Assembly of Wash- ington Territory, beg leave to show that abundance of cod- fish, halibut, and salmon, of e.\ccllcnt quality, have been found along the shores of the Bussian possessions Your memorialist srespectfully request your excellency to obtain such rights and privileges of the Government of Russia as will enable cur fishing-vessels to visit the ports and harbours of its jmsHCSsions to the end that fuel, water, and provisions may bo easily obtained ; that our sick and disabled fishermen may obtain sanitary assistvjice, together with the privilege of curing fish and repairing vessels in need of repairs. Your memorialists further request that the Treasury Department be instructed to forward to the Collector of Customs of this Puget Sound district such fishing licences, abstttct-Journals, and log-books as will enable our hardy fishermen to obtain the bounties now provided and paid to the fishermen in the Atlantic States. Your memorialists finally pray your excellency to employ such ships OS may be spared from the Pacific naval fieet in exploring and surveying the flshiug banks known to navigators to cxict olt^ng the Pacific Coast from the Cortes bank to Behring Straits. " And, as in duty bound, your petitioners will ever pray. "Passed the House of Representatives, Jaimary 10, 1866. (Signed) "EDWARD ELDRIDGE, %ater, "House of StprtatiUativtt. "HARVEY K. HIKES, Pr«Mfen< " of the Council. " Passed the Council, January 13. 1966." It is of interest to note the report of the discussion which took place in Congress upon [622] 2 the value of the proposed purohase and the natura of the interests and property proposed to be acquired. The debate was protracted, and many leading Members spoke at length. To none of them did it occur that a special property in seals vros involved, and no one suggested the existence of an exclusive jurisdiction over any waters distant more than 3 miles from land. On the contrary, Mr. Sumner, who had charge of the measure in the Senate, after pointing out that the seals were to be found on the "rocks and recesses" of the territory to be acquired, whinh would therefore make the acquisition more valuable, in touching upon the fisheries and marine animals found at sea, admitted that they were free to the world, contending, however, that the possession of the coast gave advantages to the United States' fishermen for the outfitting of their vessels and the curing of their catch. His remarks, as reported, were : — " The Narwhal with hU two long tusks of ivory, out of Unitad SuIm' which was made the famous throne of the early Danish ST'ih 40tli kings, belongs to the Frozen Ocean ; but he, too, strays CoDg., Snd Beutf into the straits below. As no sea is now nuire dau»um, P- '^'' all these [whales] may be pursued by a ship under any flog, except directly on the coast and within its territorial limit And yet it seems as if the possession of this coast as a commercial base must necessarily give to its people peculiar advantages in this pursuit." Mr. Washburn, of Wisconsin, said : — "But, Sir, there has never been a day since Vitus Behring sighted that coast ur.til the present when the people of all nations have not tx^en allowed to fish there, and to cure fish so far as they can be cured in a country where they have only from forty-five to sixty pleasant days in the whole year. England, whose relations with Russia are far less friendly than ours, has a treaty with that Qovemment by which British subjects are allowed to fish and cure fish on that coast Nay, more, she has a treaty giving her subjects forever the free navigation of the rivers of Russian America, and making Sitka a free port to the commerce of Great Britain." Uniua Stataa' CoDgrcMional DebatM,from " CoogrtiiioBst Glob*," DMMbw 11, 1867, Fart ^ p. 188, 40th OoDCn iadSMi. In 1868 Mr. Ferriss spoke as follows :— United Butm' Coagftwlead "That extensive fishing banks exist in these northern mCommsSwU MU is quite certain ; but what exclusive title do we got Oloba^ July I, to them f They are said to be far out at sea, and nowhere **5J||f*J{ii'' within 3 marine leagues of tho islands or main shore." Ceocn Sad Bms. 99 UnlUd SuiM' CoDgnuiontl DfbatM, from " CoDgrcHioMl Glob*," JuW 1. 1868, Pirt IV, p. S667, 40th Cong-i tnd Smi. Mr. Peten, in the course of his speech, remarked: — " I believe that all the evidence upon the subject proves the propoeition of Aloaka'a worthlessness to be true. Or course, I would not deny that her cod fisheries, if she hn-i them, would be somewhat valuable ; but it seems doubtful if fish can find sun enough to be cured on her shores, and if even that is so, my irieutl from Wisconsin (Mr. Wash- bum) shows pretty conclusively that in existing treaties we had that right already." Unittdl CongiMiional Dibtlef, from Apptodii to ••CoDgTMsiooal Olobt," July B. 1868. Part V, 9nd Sen., 40th Conr-i P- 490. 8m alio Bancroft't Aluka, p. 670. Mr. Williams, in speaking of the value of tko fishes, said : — "And now as to the fishes, which may be called, I suppose, the anjunentum piscatorium-, . . . oi is it tlio larger tenants of the ocean, the more gigantic game, from tl;o whale, the seal, and walru.9, down tu the halibut and cod, of which it is intended tu open the pursuit to the adventurou.? fishermen of the Atlantic coast, who are there already in a domain that is free to all ? My venerable colleague (Mr. Stevens), who discourses as though he were a true brother of the angle himself, finds the foundations of tliis great Bepublic like those of Venice and Genoa among the fishermen. Beautiful as it shows above, like the fabled mermaid — ' delimit in piscem mulier formoaa mpeme,' it ends, according to him, as does the Alasloi argument itself, in nothing but a fish at last But the resources of the Atlantic are now, he says, exhausted. The Falkland Islands are now only a resting place in our maiitimo career, and American liberty can no longer live except by giving to its founders a wider range upon a vaster sea. Think of it, he exclaims — I do not quote his precise language — what a burning shame is it not to us that we have not a spot of earth in all that watery domain, on which to rc£t a mast or sail, or dry a not or fish ? — forgetting, all the while, that we liave the range of those seas without the leave of anybody ; that the privil^e of landing anywhere was just as readUy attainable, if wanted, as that of hunting on the territory by the British ; and, above all, that according to the official Report of Captain Howard, no fisliing bonk has been discovered within the Russian latitudes." Russia's rights "as to jurisdiction and as to the seal fisheries in Behring Sea," referred to in the Point of the Case under consideration, were such only as were hers according to international law, hy reason of her right to the possession of the islands and other territory situated in this sea. It is contended that the Treaty does not purport either expressly or hy implication to convey any " dominion in the waters of Behring Sea," other than in territorial ^vaters which would 100 pass according to international law and the practice of nations as appurtenant to any terri- tory conveyed. It is further contended that, upon the ratiilca- tion of the Treaty, no •* dominion in the waters of Behring Sea " other than in territorial waters did, in fact, pass to the United States. Finally, it is contended that, even if Russia had been entitled to any extraordinary jurisdiction in Behring Sea as mare clautum, no portion of such jurisdiction would accrue to the United States when the shores jcased to belong to the same nation, and the scv thus lost the special attribute of a closed sea. tfiii mmtigmmm ■^WP "p^niipipppiiP lUiiupjtiM'ii 101 Gbaptir VI. ' Elliott. ~ Ceniu* Report, p. U. Ibidi p, 70. 41il Cong., 2od Seat.. Es. Doe. No. 109. Head (F). — 7%« Action of the United Statet and Rutiiafrom 1867 to 1886. Wlien the llussians reliaquished their sovereignty over the Pribyloff Islands in 1867, sealers at once landed on the breeding resorts of the fur-seal on these islands. Sealers from Massachusetts and Connecticut found themselves confronted by competitors from the Sandwich Islands. They proceeded to slaughter seals upon the breeding grounds in the manner usually practised by sealers on grounds \rhere no Regulations were in force. In the year 1868, at least 240,000 seals are reported to have been taken, and 87,000 in the following year. In view of this wholesale destruction of seals, the United States' Govern- ment decided to exercise their undoubted right of territorial sovereignty and to lease these seal rookeries, and to re-establish, by means of the necessary legislation, the lapsed Russian Regula- tions which had restricted the killing of the fur-seal. Accordingly, on the 27th July, 1£68, an Act passed the Ck>ngress of the United States, entitled "An Act to extend the Laws of the United States relating to Customs and Navigation over the territory ceded to the United States by Russia, to establish a Collection District therein, and for other purposes." On the 3rd March, 1869, an Act was passed (section 1959), reserving for Government pur- poses the Islands of St. Paul and St. George, and forbidding any one to land or remain there without permission of the Secretary of the Treasury. Mr. Boutwell's Report, as Secretary of the Treasury, preceded the Act of the Ist July, 1870. This Report discloses no suggestion of autho- rity at a greater distance than 3 miles from the shore-line. With the knowledge of the raids upon the ialandB and the existence of seal-hunting sohoooem, Mr. Boutwell dwelt upon the means of protecting the seal islands only. [022] 2 P mMMiiriiii I :'«^K« 101 The United States' ReriMd Statutes contain the follomng provisions which were enacted on the 1st July, 1870 :— ' UniUd Stattt' Rtvited SlatuU*. 'Section 1954 The Uwa of the United States relating to customs, commerco, and navigation are extended to'and over all the mainland, iglan. Doe. No. 83, pp. 33-34. " Trtatuiy Department, Washington, D.C., "Sir, "&p<«m6«r 19, 1870. "I inclose herewith a copy of a letter, dated the 17th instant, from N. L Jeffries, attorney for the Alaska Com- mercial Company, reciting that a Notice recently appeared in the ' Alta California ' newspaper, published in your city, of the intended sailing of the schooner ' Mary Zephyr ' for the Islands of St. Paul and St. George. " By the 4th Section of the Act of the Ist July, 1870, entitled 'An Act to prevent the Extermination of Fur- 1 earing Animals in Alaska,' it is provided that the Secre- t ry of the Treasury, immediately after the passage of SiLid Act, shall lease to proper and responsible parties, &c., &C., the right to engage in the business of taking fur-seals on the Islands of St, Pa\U and St Qeoige, and to send a vessel or vessels to said islands for the skins of such seals, &C. "This lease has been awarded to the Company above named for the term of twenty years, a copy of which is herewith inclosed; and the request of General Jeffries that an official announcement be made of the award oi said lease, and that no vessels except those of the C jvern- ment and of said Company will be allowed to touch or land at either of said islands, may be complied with, and you will please cause such Kotice to be published in one 104 or more of the San Francisco newspapen, at the expense of said Company. " I am, &&, (Signed) "WM. A. RICHARDSON, " Acting Secretary " T. G. Phelps, Esq, '' Collector of Costoms, " San Francisco, California. ■ Outtoni-hoHte, San Praneiteo, California, " Sir, " ColUetOT't Office, September 30, 1870. I have the hononr to acknowledge the receipt of your er of the 19th instant, relative to the published Notice of the sailing of the schooner " Mary Zephyr" for the Islands of St Paul and Sc Geoi^ge, in Alaska. On seeing the advertisement in the 'Alta," written Notice was immediately sent to the parties interested, that nn vessel would be permitted to land at said islands. I have caused a Notice, as suggested by the honourable Secretary, to be published. Please find a copy of the Notice inclosed. " I am, &c, (Signed) "T. G. PHELPS, "CoUeetor. " Honourable Gea S. Boutwell, " Secretary Treasury. 'Xbtiet. " In compliance with an order of the honourable Secre- tary of the Treasur)', notice is hereby given that a lease of the Islands of St. Paul and St. George, in the Territory of Alaska, has been executed by the Secretary of the Treasury to the Alaska Commerc)^ Company for the period of twenty years from the 1st day of May, 1870, in accordance with the provisions of an Act of Co.igress entitled ' An Act to prevent the Extermination of Fur-bearing Animals in Alaska,' approved the 1st July, 1870, and that, by the terms of said lease and the above-mentioned Act, the said Company have the exclusive right to engage in the business of taking fur-seals on said islands and the islands adjacent thereto. No vessels, other than those belonging to said Alaska Commercial Company or to the United States, will bo permitted to touch or land at either of said islands or the islands adjacent thereto, nor will any person be allowed thereon except the authorized agents of the United States and of said Company (Signed) "T. G. PHELPS, " CoUeetor ^ Ctutomi. * Ouilom-h.nue, San Ftaneiteo, Ccuifo 4ta, " CoiUelort Offif, S^pUnAtr 28, 1870." No importance attached to seal fisheries at time of cession of Alaska. 44th Congresa, 1st SeiB., Iteport No. 633, p. 12. 105 This is shown by the Committee of Ways and Means of the House of Bepresentatives in 1876 after taking testimony : — " When the proposition to purchase the Akska territory from Russia was before Congress, the opposition to it was very much based on alleged barrenness and worthlcssness of the territory to be acquired. It was supposed that though there might be many political reasons for this addition to the American Pacific possessions, there were not commercial or revenue advantages. The value of those seal islands was not considered at all. Russia had derived but little revenue from them, indeed a sum not sufficient to pay the contingent expenses of maintaining the official autliority." Soon after the date of the acquisition of Alaska by the United States, however, attention was called to the value of the seal fisheries and the before-mentioned legislation was enacted. Mr. Boutwell, as already stated, was Secretary of the United States* Treasury when the legisla- tion of Congress was adopted for the organization of the Alaskan territories and the control and leasing of the seal islands. The following correspondence shows the posi- tion assumed in 1872 by the Treasury Depart- ment in relation to the extent of jurisdiction of the United States in Alaskan waters : — "Mr. Phelps to Mr. Boviwdl. " Customs House, San Francisco, " Sir, " ColUctor'i Office, March 25. 1873. " I deem it proper to call the attention of the Depart- ment to certain rumours which appear to be well authenticated, the substance of which appears in the printed slip taken from the ' Daily Chronicle ' of this date, herewith inclosed. " In addition to the several schemes mentioned in this paper, information has come to this oflioe of another which is being organized at the Hawaiian Islands for the same purpose. It is well known that, during the month of May and the early part of June in each year, the fur-seal, in their migration from the southward to St. Paul and St. George Islands, uniformly move through Ounimak Pass in large numbers, and also through the narrow straits near that pass which separate several small islands from the Aleutian group. " The object of these several expeditions is unquestion- ably to intercept the fur-seals at these narrow passages during the period above mentioned, and there, by means of small boats manned by skilful Indians or Aleutian hunters, make indiscriminate slaughter of those animals in the water, after the manner of liunting sea-otters. " The evil to be appreheuuod from such proceedings is n6t so much in respect of the loss resulting from the [tfU] S E 106 destruction of the seals at those places (althoagh the killing of each female is in effect the destruction of two seals), but the danger lies in diverting these animals from their accustomed course to the Islands of St. Paul and St George, their only haunts in the United States. " It is believed by those who have made the peculiar nature and habits of those animals a study, that if they are by any means seriously diverted from the line upon which they have been accustomed to more northward in their passage to these islands, there is great danger of their seeking other haunts, and should this occur the natural selection would be Konumdorski Islands, which lie just opposite the FribylofT group, near the coast of Eomschatka, owned by Kussia, and are now the haunts of fur-seals, " That the successful prosecution of the above-mentioned schemes would have the effect to drive the seals from their accustomed course there can be no doubt. Con- sidering, therefore, alone the danger which is here threat- ened to the interest of the Goverament in the seal fisheries, and the large annual revenue derived from the same, I have the honour to suggest, for the consideration of the Honourable Secretary of the Treasury, the questios whether the Act of the 1st July, 1870, relating to those fisheries, does not authorize his interference by means of revenue cutters to prevent foreigners and others from doing such an irreparable mischief to this valuable interest. Should the Honourable Secretar- aeem it expedient to send a cutter into these waters, I would respectfully suggest that a steam-cutter would be able to render the most efiBcient service, and that it should be in the region of Ounimok Pass and St. Paul and St George Islands by the 15th of next May. " I am, &0. (Signed) "T. G. Phelps, CoUtetw. " Extract from San Francisco ' Daily CkronieU! March 21, 1872. " It is stated in reliable commercial circles that parties in Australia are preparing to fit out an expedition for the cap- ture of fur-seals in Behring Sea. The present high prices of fur-seal furs in London and the European markets has acted powerfully in stimulating enterprises of a like character. But a few days ago wo mentioned that a Victorian Com- pany was organized for catching fur-seals in the North Pacific. Another party — an agent representing some Eastern capitalists — has been in this city for the past week making inquiries as to the feasibility of organising an expedition for like purposes. " Mr. Buuttsdl to Mr. Phdpt. " Trecutury Department, Wathington. D.O., "Sir, "April 19, 1S72. "Tour letter ot the 26th ultimo was duly received, calling the attention of the Department to certain nunoDiii circulating in San FiAnoifco, to the effect that ezpeditioof H., Ex. Doe. No. ISO, p. 124, March IS, 187S. 107 are to start from Australia and the Hawaiian Islands to take fur-seals on their annual migration to the Islands of St. Paul and St. George through the narrow Pass of Ounimak. You recommend — to cut off the possibility of evil resulting to the interests of t!t Sen. H. R., Ex. Doe. No. 3883, tOth Cong., p. Sf. 'RcTiied SUIutea. H. R., Ex. Dor., SOth Cong., 2nd Seni., No. 3S89, p. 381. Sealing-vessels ond their catches were reported by the United States' cutter "Corwin," but none were interfered with when outside of the 3-mile limit. In 1881 an Agent of the United States' Oovemment reported that 100 vessels had been sealing about the Pribyloff Islands for twenty years. The Agents of the United States' Government sent to the seal islands previous to 1886 con- tinually reported upon the inadequacy of the protection of the islands, and they frequently referred to depredations upon the rookeries by the crews of vessels sealing in Behring Sea. From every source it appears that, during the years 1867-86, notwithstanding the presence of seal-hunting craft in Behring Sea, the United States' authorities confined the exercise of juris- diction to the land and waters included within the ordinary territorial limits. Early in 1881, Collector D. A. D'Ancona, of San Francisco, appears to have requested information from the Treasury Department at Washington in regard to the meaning placed by that Department upon the law regulating the killing of fur-bearing animals in the territory of Alaska, and specially as to the interpretation of the terms "waters thereof" and " waters adjacent thereto," as used in the law, and how far the jurisdiction of the United States was to be understood as extending. In reply. Acting Secretary H. F. French, of the Treasury Department, wrote as follows on the 12th March, 1881 :— " Sir, " Your letter of the 19th ultimo, requesting certain information in regard to the in>!aning placed by this Department upon the law regulating the killing of fur- bearing animals, except as otherwise therein provided, within the limits of Alaska Territory or in the waters thereof, and also prohibits the killing of any fur-seals on the Islands of St. Paul and St George or in the waters ac^Bcent thereto, except during certain months. " Vou inquire in regard to the interpretation of the terms ' waters thereof ' and ' waters adjacent thereto,' as used in the law, and how far the jurisdiction of the United States is to be understood as extending. " Presuming your inquiry to relate more especially to [622] 2 F <■• 41 ■MiiifHiiiiiiiiHiiiii no the waters of Western Alaska, you are iuformed that the Treaty with Russia of the 30th March, 1870, by which the Territory of Alaska was ceded to the United States, defines the boundary of the Territory so ceded. This Treaty is found on pp. G7t to 6V3 of the volume of Treaties of the KoviseJ Statutes. It will be seen therefrom that the limit of the cession extends from a line starting from the Arctic Ocean and running through . Bering Strait to the north of St. Lawrence Islands. The line runs tlicnce in a south-westerly tUrectioii, so as to pass midway between the Island of Attoo and Copper Island of the Kroman- boski couplet or group, in the North Pacific Ocean, to meridian of 193 degrees of west longitude. All the waters within that boundary to the western end of the Aleutian Archipelago and chain of islands, are considered as com- prised within the waters of Alaska Territory. " All the penalties prescribed by law ageinst the killing of fur-bearing animals would therefore attach against any violation of law within the limits before described. (Signed) " H. F. Fkench, " Acting Secretary." It does not appear from any official documents that any action was taken in accordance with the opinion expressed in this letter, and no seizures were made, and no warning was given to any British vessel engaged in sealing beyond the ordinary territorial limits prior to 1886, although at least one British vessel is known ^o have been engaged in such scaling in 1884, and no less than thirteen were so engaged in 1886. The orders given to Lieutenant I. E. Lutz Mi^. Dnc, sotfa by the Captain of the United States' revenue ^°g-^ No^os^ -Whal steamer "Corwin," 22nd May, 1884, care is taken to confine any interference with seal-hunters to those who might attempt a landing on the seal islands. Acting under these instructions. Lieutenant Lutz arrested the " Adele," of Hamburg, Gustave Isaacson, master, with three officers and a crew of eighteen Japanese, when a mile from shore The Lieutenant was careful to ascertain that the vessel was engaged in sealing ashore, and having waited the return of the ship's boat which came back loaded with seal carcasses, Lieutenant Lutz reported that, having now secured all necessary evidence, ho notified the captain of the seizure of the vessel. The circumstances wliich appear to have led to a change of official policy in 1886 will be related hereafter. It may be convenient at this point to refer to occurrences in the Asiatic waters of the Faoifio, adjacent to Russian territory. p. 98. Ill Disputes with Russia in Okhotsk and Behring Seas, I'iaherr Induitriei of the United SUtea,To!. ii,p. 20. For eitreet from Tikhmeni«ir, im Appendix, ud ant*, p. ^flThalen aometimes Mal-hunters. 4ltb Cong., lit Sat., Report 623. Disputes have more than once arisen respecting the rights of United States' whaling vessels in Okhotsk Sea. The main ohjection to these whalers was be- caxise of their interfering with the fur industry, and it is on record that the mode of whaling practised in this sea was often to anchor the vessel in some harbour and to send the boats there- from in pursuit of whales. The instructions to Russian cruizers dating from 1853 only pro- hibited these vessels from coming " within 8 Italian miles of our shores." The Sea of Okhotsk was covered by the Ukase of 1821, and possesses a seal rookery (Eobben Island). Whaling had, as has been previously stated, commenced in this sea as early aa the year 1843. The following evidence with reference to sealing and whaling in Okhotsk Sea given before the Committee of Ways and Means in the House of Representatives at Washington (3rd May, 18J6), shows that whalers were also engaged in taking seals : — " Q. Who are Williams, Haven, and Co. ? — A. Willimns, Haven, and Co. are Mr. Henry P. Haven, of Connecticut, who died last Sunday, and Eichard Chapel. They are whalers. They took seals and whales, and had been at that business in the Pacific for a great many years. " Q. They had an interest in these skins ? — A. Yea, Sir. They had a vessel in the waters of the Okhotsk Sea, I think, seal-fishing in 186G. While their vessel was at Honolulu in 1866, the captain became acquainted with a Itussian captain who pot in there in distress with the remainder, or a portion, of th(: Alaska seal-skins taken by the old Russian Company, and there this captain learned of this interest. He left his vessel at Honolulu, went to Connecticut, aud conferred with his employers. Then Mr. Chape], one of the concern, went out to Honolulu aud fitted out this vessel and another one and sent them to the Alaska Islands as early as April, 1808." Mr. Hoffmir to Mr. FrelinKhuyieu, Mirch 14, 1889. Papr.a relating to Behrin)^ Sea Fitlieries, Waiklng- tOD, 1889, p. UtO. The United States* Minister, Mr. Hoffman, writing in 1882, thus refers to this sea : — " .A glance at the Map will show that the Kurilo Islands are dotted across tlio outiuncc to the Sea of Okhotsk the entire distance from Japan on the south of the southern- most Cape of Kamtclmtka on the north. " In the time when Itussia owned the whole of these islands, her Bepresontatives in Siberia claimed that the Sea of Okhotsk was a mare clau4um, for that Russian jurisdiction extended from island to island and over 2 * I •.*■■ 112 marine leagues of intenuediate sea from Japan to Eamt- chatka. "But about five years ago Itussia ceded the southern group of these islands to Japan, in return for the lialf of the Island of Saghalin, which belonged to that Power. "As soon as this was done it became imposnUe for the Siberian authorities to maintain their claim. My informant was not aware that this claim had ever been seriously made at St. Pf' ■>rt burgh." And in anotb r he says : — "I do not think i Russia claims that the Sea of Maroh 97> 1883. Okhotsk is a mare elausum, over which she has exclusive '""'•' P* ^ ' jurisdiction If she does, her claim is not a tenable one since the cession of part of the group of the Kurile Islands to Japan, if it ever were tenable at any tinie." The following appears as an introductory statement in " Papers relating to Behring Sea Fisheries," published at the GoTemment Printing Office in Washingtou, 1887 :— " This sea [of Okhotsk] is a part of the woters to which the Ukase of 1821 applied, and which M. Poletica, in bis subsequent correspondence with Mr. Adams, prior to the Treaty of 1824, said His Imperial Majesty, the Emperor of all the Russias, might have claimed as a close sea had he chosen to do so. As has been seen, all question as to the right of citizens of the United States, as well as of the subjects of Great Britain, to navigate and fish in those waters, was given up by Russia once for all in the Treaty of 1824 with the United States, and of 1825 with Great Britain. " The following correspondence between Russia and the United States in the years 1867 and 1868 contains an explicit disavowal by Russia of any claim to interfere with the fishing operations of citizens of the United States in the Sea of Okhotsk." The correspondence referred to shows that the " Curopa." captain of the " Europa," a United Utates' whaling-vessel, complained to the Department of State at Washington that the Captain of a llussian armed steamer had stated that he was authorized to drive United States' whalers away from the fishery on the shore near Okhotsk city, in the Sea of Okhotsk, and (ha*; he had fired on the ship's boat of the bark " Endeavour " of New " Endeavour." Bedford. It appears also from the same correspondence " Jara," that un the 27th July, 1867, the United States' bark " Java" was cruizing for whales in Shantar Bay and standbg towards Silas Richard's BlufF, when a llussian Commander ordered him out of the bay, and thereupon Mr. Seward inquired tmmfm Wmtntnn to United BUtes' Secretary of State, July 31, 1868, Papen relating to Beoring Sea Fiafaeriei, Waahington, 1889, f. £58 113 of the Busflian Groyernmcnt what iustruo tions had heea issued relating to fisheries in this sea. In reply to such inquiry, the following expla- nation was received from M. de Westmann, Acting Minister of rcreign Affairs at St. Peters- burg, which shows the claim of jurisdiction of llussia to have been confined to 3 miles only in Russian gulfs and bays, in this part of the very waters covered by the Ukase of 1821 :— ^ " These are the ciromnstances : The schooner ' Aleoiit,' tmder the command of Lieutenant Etoline, had been sent in commisaidn from Nicolaievsk to Oiidrk. The abundance of floating ice having forced him to enter into the Gulf of Tougoursh, he there met, the 14th July, at about 20 miles to the south of the Straits of C'hautarsk, near the eastern coast, the American whaler ' Java,' occupied in rendering the oil of a captured whale. Considering that foreign whalers are forbidden by the laws in force to fish in the Russian gulfs and bays at a distance of less thnu 3 miles from the shore, where the right of fishing is exclusively reserved to Kussian subjects. Lieutenant Etoline warned ('invita') the captain of the 'Java' to 'bear off' from the Gulf of Tougoursh, which he at once did. TLo same day the ' Aleout ' made for the Bay of Mawgon, where arrived, on the next day tlie American whale schooner ' Caroline Foot,' whose captain, accompanied by the captain of the ' Java," called on Lieutenant Etoline, and declared that he had no right to prevent them from fishing for whales wherever they liked. Lieutenant Etoline replied that, there were in that respect establishod rules (' I'iglos '), and if they insisted, absolutely, upon breaking them, that he would bo compelled to prevent them. Tho captain of the schooner 'Carolino Foot' pretending ('ay ant prctendu ') that he had entered into the Bay of Tougoursh in consequence of 'deviations from his coui'se,' Lieutenant Etoline offered at once all assistance in his power ; and, upon request, delivered him 7 pouds of biscuit from the stores of tho 'Aleout,' after which the two ships again went to sea. Tlie I9th of July, that is, four days after- wards, tlie schooner ' Aleout ' met a whale, upon which the Commander caused a trial fire to be made. At the same moment was seen, at about 16 miles distance, a sail, name unknown, and, nearer, three ' chaloupes,' the nearest of which was at least 3 miles in advance in tho direction of the cannon fire. In the evening all these ships had disappeared. Tliat incident is registered in the books of the 'Aloont' in tho following terms: 'Tha 19th of July, at 9 in tho evening, at anchor in the . Bay of Mawgons, fired a cannon shot for practice at a whaK' afloat.' From these facts Goneml Clay will bo convinced that the incident alluded to lias been exaggerated, and even per- verted (' ddnatuni ') much in order to be represented as a cause of grievance against the Commander of the ' Aleout ' on the part of tho American whalers." [622] 2 G 114 The explanation was considered satisfactory. Mr. Seward observing that " the captain of the * Java,' spoke unwarrantably when by implication he denied that the Bussian authorities have the right to prevent foreign vessels from fishing for whales within 3 miles of their own shore." In the year 1881 the Bussian Consul at Toko- hama issued, on behalf of the Russian Imperial Government, a Notice, of which the following is a translation : — " Notice. " At the request of the local authorities of Behring and United States' other islands, the Undersigned hereby notifies that the ^^" "^i"' '** Bussian Imperial Government publishes, for general Fitheriet, W»h- knowledge, the following : " • 1. Without a special permit or licence from the Governor-General of Eastern Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, &o., on the Bussian coast or islands in the Okhotsh and Behring Seas, or on the north-eastern coast of Asia, or within their sea boundary-line. " ' 2. For such permits or licences, foreign vessels should apply to Vladivostock exclusively. ^"'3. In the port of Petropaulovsk, though being the only port of entry in Eamtchatka, such permits or licences shall not be issued. "'4. No permits or licences whatever shall be issued for hunting, fishing, or trading at or on the Commodore and Bobben Islands. '"5. Foreign vessels found trading, fishing, hunting, &c., in Bussian waters, without a licence or permit from the Governor-General, and also those possessing a licence or permit who may infringe the existing bye-laws on hunting, shall be confiscated, both vessels and cargoes, for the benefit of the Government This enactment shall be enforced henceforth, commencing with a.d. 1882. " ' 6. The enforcement of the above will be intrusted to Bussian men-of-war, and also to Bussian merchant-vessels, which, for that purpose, will carry military detachment's and be provided with proper instructions. "'A. Pklikan, •" H. I. B. M. Contul. iogton, p. 259. 1889. " ' Yokohama, November 15, 1881.' " The firm of Messrs. Lynde and Hough, of San p,per, nlttiog to Erancisco, was in 1882, and had been for yean, i?°'™» ^, ^ . . , .r. ./. in,. \m FiiheriM, Wuh- engaged in the Facrnc coast fisheries. They ington, 1889, yearly sent vessels to the Sea of Okhotsk, fishing f' '*'• from 10 to 20 mUes from shore. The attention of the firm being called to the above Notice, they wrote the Secretary of State of the United States calling attention thereto. 115 Papera relating to Baiiriog; Sea Fiaberiea, Washington 1889, p. 361. Mr. Hoffman to Mr. Frelinghayien, March 37, 1882. Ibid., p. 262. M. de Gien to Mr. Hoffman, May 8 (20), 1882. Papera relating to Behring Sea Fiaheriea, Woafa- ington, 1882, D. 263. M. de Giera to Mr. Hoffman, Jnne 1 (13), 1882. Ibid., 260. The Secretary of State (Mr. Frelinghuysen) inclosed their letter, together with the regula- tions " touching the Pacific coast fisheries," as he termed them, to the United States' Alinistor at St. Petersburg. Mr. Hoffman, the United States' Minister, acknowledged the receipt of this despatch, in rcfereneo to what lie also called " our Pacific Ocean fisheries." Mr. Hoffman, having made inquiry of M. de Giers, the Russian Foreiga Minister, the latter, in his reply, dated the 8th (20th) May, 1882, explained that these Regulations applied only to "territorial waters of Russia," and, in a subse- quent letter of the 1st (13th) June, quoted Article 560 of the Russian Code, which is as follows : — "ARTICLE 560. " Tlie maritime waters, even when they wash the shores, the shores of where there is a permanent population, can not be the subject of private possession ; they are open to the use of one and alL" Mr. Hoffman, in a letter to Mr. Frelinghuysen of the 1-lth March, 1882, shows what he under- stood to be the meaning applied by M. de Giers to the words " territorial waters." He writes : — "The best whaling grounds are found in the bays and inlets of the Sea of Okhoti':. Into tliese the Kussian Government does not permit foreign whalers to enter, upon the grouiui thai tltc mirance to them, from hcadlaiul to headland, is less than 2 marine leagues wide." See pp. 110, 111, Indeed, M. de Giers, in the letter of the 8th gXing'sea"^ (20th) May, 1882, already quoted, makes it clear fiaheriea, Waahing- that, as to fishing and hunting, the rule was the p. 262. same, and that the prohibition of vessels engaged in these pursuits extended only over the marine league from the shores of the coasts "and the islands called the 'Commander' and the 'Seals.'" The island referred to as the " Seals " is Robben Island, and the reference to this and the Commander Islands indicates that M. de Giers, under the term of "hunting," was referring specially to the sealing industry. , "Ella." On the 2l8t July, 1884, the United States' schooner "Eliza" was seized by the Russian cruiser "Ruzboinik" in the Anadir River, which runs into Anadir Bay, a northern portion of Bchring Sea. mm 110 It was represented to the United States that Papert relaiinj to she was there trading and hunting walrus. Fiiheriw The Vice-Consul-Gcneral at Japan termed the Woihington, ,, L c ■ „ 1889, p. 96S. seizure " an act of piracy." General Vlangaly, writing from the Depart- Ibid., p. 970. ment of Foreign Affairs on the 10th (Slst) January, 1887, explained that the "Eliza" was .•irrested, " not for the fact of seal hunting," hut for violating the prohibition touching trading, liuntinpj ""d fishing on the Russian coasts of the l*aci1c without special licence. The crew, it was found, wore trading with the Ibid., \>. 269. natives on tlic coasts of Kamtchatka, as well as hunting walrus. Tliis appears to have been accepted as a valid c'Tijlanation ; hut with reference to the seizure of their ship and of the " Henrietta," Mr, Lothrop, United Stales' Minister at St. Petersburg, ^vriting to Mr.. Bayard, the United States' Secretary of State, remarks : — "I may add that the Eussinn Code of Prize Law of 18G9, Article 21, and now in force, limits the juriadictional waters of IJussin to ;! miles from the shore." Tlje United States' schooner "Henrietta" had "Henrietu." been seized on the 29th August, 1886, off East ibii, p. 2ti7. Cape in Behring Strait by the Russian corvette "Kreysser." Explanations from the Russian Government Avere promptly demanded by the United States, and it Avas alleged she was arrested for illicit trading on the Russian coasts. Nevertheless, Mr. Bayard, writing to Mr. 'bid., p. 869. Lothrop on the IGth March, 1887, observed : — " If, as I am to conclude from your despatch, the seizure United Slates' of the 'Henrietta' was made in Kussian territorial waters, Itelstions, 1987, D 954 then the Russian authorities had jurisdiction ; and if the *^' mndeinnation was on procecdinga duly instituted and administered l)efore a competent Court and on adequate evidence, tliis Department has no right to complain. But if either of these conditions does not exist, the condemna- tion cannot be internationally sustained. The first of these conditions, viz., that the proceedings should have lieen duly instituted and admioistered, could not he held to exist if it should appear that the Court before whom the proceedings wore had was composed of parties interested in the seizure. On general principles of inter- national law, to enforce a condemnation by such a Court is a denial and perversion of justice, for which this Government is entitled to claim redress. " The same right to redress, also, would arise if it ihmild appear Ihai while the neizure was within, the aUeged offence u-a* committed exterior to tjuit zone and on the high teas. I ^^L^jWI|l^ii|afl.i wmi .1 %^fmjtmti 117 . H. R., Ex. Dm. 1SS, 39lh CoD>.. lit Stui. ■JToii are therefore instructed to inquire, not merely as i o the mode in which the condemning Court was con- tituted, but 08 to the evidence adduced before such Court, / n which the exact locality of seizure should be included." The instruotioDs given from time to timo to Commanders of the Kovonuo Service, or of ships of war of the United States cruizing in Behring Sea, organizing a Government in Alaska and guarding the interests of the Alaska Commercial •Company upon the islands leased to the Company, do not even suggest the intention of that Qovem- ment to assert a claim so vehemently disputed when advanced by Russia. On the contrary, while ^jssels from British Colur 'lia and elsewhere were trading and fiahiug generally in the Behring Sea, and while vessels— chiefly those of the United States — were actually raiding the rookeries, the instructions relating to the fisheries given to B«venue Marine vessels by the United States' Government, imtil 1886, were confined, as has been shown, to tha immediate protection of the seal islands. Tlx seizure of British sealers in the open sea followed the B«port on the cruize of the Revenue Marine steamer " Corwin " in the year 1885. In this Report, it is among other things stated, that a special look-out was kept for vessels sealing while shaping a course for St. Paul. The Captain writes : — "While we were in the vicinity of the seal islands a ook-out was kept at the masthead for vessels cruizing, sealing, or illicitly trading among those islands." % Having drawn attention to the number of vessels which had taken, or had endeavoured to take seals on the shores of the islands, and iU.istrated the great difficulty of preventing the landing thereupon, the Commander concludes as follows : — "In view of the foregoing facts, I would respectfully suggest — "1. That the Department cause to be printed in the western papers, particularly those of San Francisco, California, and Victoria, British Columbia, the sections of the law relating to the killing of fur-bearing animals in . Alaskan waters, acd defining in specific terms what is meant by Alaskan waters. " 2. That a revenue cutter be sent to cruize in the vicinity of the Ptibyloff Islands and Aleutian group during the sealing season." ^1 [622] a H ■^^^^?wwr !5!a" U8 The suggestion that the meaning of the words H. B,, Ei. Doe, " Alaskan waters " should be defined in specific |^J.,*^Nof kSJ terms was never adopted, but on the 16th March, p* . 1886, Mr. Daniel Mannjpg, Secretary to the Treasury, wrote to the Collector of Customs at San Francisco as follows : — » " Treasury Department, •' Sir, " March 16, 1886. " I transmit herewith, for your information, a copy of i S*« <"tt*t p» letter addressed by the DepartQient on the 12th Marcli, 1881, to D. A. D'Ancona, concerning the jurisdiction of the United States in the waters of the Teiriiory of Alaska, and the prevention of the killint; of fur-seals and other fur-bearing animals within sur.h areas, as prescribed by chapter 3, title 23, of the Beiised St4>*.ute8. The atten- tion of your predecessor in offict was Called to this subject on the 4th April, 1881. This comioonication is addressed to you, inasmuch as it is understood tl'.'^t certain parties at youf port contemplate the fitting out of expeditions to kill fur-seals in these waters. Ton are requested to give due publicity to such letters in order that such parties may be informed of the construction placed by this I>epartment upon the provision of law referred to. " Yours, &3. (Signedj " D. Mannino, " Secretary." The statement oi focui in th:8 chapter establish that from the year 1867 down \'o the year 1886 the action of the Uuited States and Russia, the parties to the Treaty of Union of 1867, is consis- tent only with the view that the only rights possessed by the United States and Russia respectively in the waters of Behring Sea were those ordinarily incident to the possession of the coasts of such sea and islands situated therein. rfP*' ™ "'- " ''• -: 119 Chapteb VII. Head (Q.) — Contentions of the United States since the year 1886. The great development of pelagic sealing in Behring Sea which had taken place dtiring the years from 1881 to 1886 had establishod a very strong competition against the Alaska Com- mercial Company. That Company, paying a considerable royalty to the Fnited States' Government upon every skin, had now to face the competition of the pelagic sealers, who paid no rent or royalty. And they exerted all their influence, especially powerful at Washington, to check and, if possible, destroy this competition. Till the development of the pelagic sealing industry, the actual circumstances had been such as .to allow the Company largely to control the markets for seal-skins, and to enable them to exercise a practical monopoly of sealing in the North Pacific. In the year 1886 the United States* Qovem- irent for the first time sent revenue cutters with structions to prevent any vessel from sealing when outside of t'n^ ordinary territorial limits, if pursuing seals n that part of Behring Sea to the eastward of u- geographical limit mentioned in the Treaty of Cession. See p. . This action by the United States was (except Eeport of Governor in the catte of the "Pearl" already mentioned p!48'rf8!<7,T86- ^^ ^^^ ^^^ ^^^^^ ^^° ^* attempt to actively interfere with the right of the vessels of other nations to navigate and tish in the waters of Behring Sea other than territorial waters. Three vessels were seized durin the year. Sir L. S. Sackville West, " ush Minister in Washington, made a formal protest in the name of Tier Majesty's Government against these seizures of British vessels. There was an apparent hesitation on the part of the United States in the attempt to maintain the position Implied by their action. Blue Book, United Attorney General Garland issued the following ".'m.''"'"' """*' °'^®'' '^^^' *'>" ^""^^ protest:— " ]V(uihingion, B.C., January 26, 1887. "Judge Lafayette Dawson and M. D. Ball, United States' District Attorney, Sitka, Alaska. "I am directed by the President to instruct you to discontinue all further proceedings in the matter of the seixure of the British vessels ' Carolena,' ' Onward,' and ' Thornton,' and discharge all vessels now held under siioh HciiUtion OD part of United 8t«tei. ■>iiRiP«pqipi"ipppvi^"Mi f^f^^miwsim' S;|JH."J ISO m seicuie, and releaae all persons that may be under arrest in connection therewith. (Signed) "A. H. Gablaku, " Attortuy-Oeneral." M. Bayard, however, the Secretary of State, Blue BMk, United] wrote, on the 3rd February, 1887, to Sir L. West J.'!j^^°" '' '^"^ that this order was issued " without conclusion of any questions which may be found to be involved in these cases of seizure." Fresh seizures took place in July and August Reoewed tanuitu of 1887, and renewed protest was made by Great Britain. No seizure occurred in 1888, though British sealing- vessels made large catches in that year in Behring Sea. In 1889 five British ships were seized in Behring Sea, and three others were ordered out of the sea. In 1890 no seizures were made, though a large number of sealers visited the sea and took seals .herein. In 1891 an agreement was come to between the United States and Great Brifciln, resulting in a modus vivendi, for the purpose of temporarily protecting the fur-seal, pending the result of expert investigation into the necessities of the case. Vessels were forbidden to take seals in Behring Sea for a limited period wider penalty of seizure and fine, and on the other hand the number allowed to be killed on the islands was largely reduced. The only seizures that have occurred since the establishment of the modus vivendi have been made in consequence of its infraction.* * Tbb foUowiug Table ahom the nan o nf the Britiih sealiag-resaeli aeind and warned by United States' revenue cruicen 1SB6-90, and the approximate diitance .r^m land when •eixed or warned :— Name of Vesiel. Date of Seizure. Approximate Distance from Land when seized or warned. United States' Vessel making Seizure. Carolina August 1, 1896 86 to 78 miles .. ., Corwin, TbomtoD . . »» '» tt 45 miUa , . , . M Onward . , . , 1* ^» tf 68 „ .. Favourite . . . , *» *i II Warned by " Corwin " in about same position at " Onward " W. P. Bayward July 9. 1887 58 wiles Rush. Grace 17, „ 92 ,. tt Anna Beck . . . . Jund 28, „ 66 „ I. Dolphin July 12, „ 42 „ « Alfred Adams August 6, „ 62 „ .. Ada „ 26, „ 15 „ Bear IViumph .. i, „ Warned by " Kush " not to enter Behring Sea Juanitu , . . . July 31, 1889 66 miles Rush. Pathfinder .. 29. „ 50 „ t» Triumjih , , . . .. H. „ Ordered out of Behring Sea by " Rush," [P] As to position when warned BUck Diamond u, ., 3S miles . . . . t« Lily August 6, „ 66 „ *l Ariel July 3U, „ Ordered out of Behring Baa by " Kuih " K'lte AuguDt 13, „ Ditto.. H Minnie . . . . .. 16. .. 65 miles .. .. •• 4$ Paihfimler .. March 27, 1890 Seized in Mvah Bay Corwin. 121 Refiiial of rongreis to de6tie clalmi cf United 8ute<, H.R., 50th Coag., Snd Seas., Ileport Ko. 3888, p. 1. To •ecompany Bill H.R. 124S3. ibid., p. xxiii. Ex. Doc. H.R., SOth Cong.. !2nd Sell., Rep. No. 8883, .No. xxir. The legality of the seizures made in 1886, 1887, and 1889 heoame a subject of much discussion and debate in the United States. During the liftieth Session of tho House of Beprescntatives.in 1889, the Committee on IMarino and Fisheries was directed " to fully investigate and report upon the nature and extent of the rights and interests of the United States in the fur.sealB and other fisheries in the Behring Sea io Alaska, whether and to what extent the same had been violated, and by whom ; and what, if any, legislation is necessary for the better pro- tection and preservation of the same." The Committee reported, upholding the claim of the United States to jurisdiction over all waters and land included in the geographical limits stated in the Treaty of Cession by Bussia to the United States, and constniing different Acts of Congress as perfecting the claim of national territorial rights over the open waters of Behring Sea everywhere within the above-men- tioned limits. The concluding portion of the Beport states, among other things, as follows : — " That the chief object of the purchase of Alaska was thtt acquisition of the valuable products of the Behring Sea. " That at the date of the cession of Alaska to the United States, Russia's title to Behring Sea was perfect and undisputed. " That by virtue of the Treaty of Cession, the United States acquired complete title to all that portion of Behring Sea situated within the limits prescribed by the Treaty. " The Committee herewith report a bill making necessary amendments of the existing law relating to these subjects' and recommend its passage." The Beport describes the amendment as declaring — " The true meaning and intent of section 1956 of the Revised Statutes which prohibit the killing of fur-seals, &c., in the waters of Alaska, and requires the President to issue an annual Proclamation, and cause one or more Government vessels to cruize said waters, in order to prohibit the unlawful killing of fur-seals therein. " The amendment increases tho revenues of the Govem- ment from this source by at least 150,000 dollars per annum." The Bill reported contained the following Section : — fiill H.R.,1SM9. "Section 2. That section 1956 of the Revised Statutes of the United States was intended to include and apply, [622] 9 I 122 ud ia hereby' declared to include and apply, to all the waters of Behring Sea in Alaska embraced within the boundary-lines mentioned and described in the Treaty with Russia, dated the 30th March, a.d. 1867, by which the Territory of Alaska was ceded to the United States ; and it shall be the duty of the President, at a timely season in each year, to issue his Proclamation, and cause the same to be published for one month in at least one newspaper published at each United States' port of entry on the Pacific coast, warning all persons against entering said Territory and waters for the purpose of violating the provisions of said Section ; and he shall also cause one or more vessels of the United States to diligently cruize said waters and arrest all persons, and seize all vessels found to be, or to have been, engaged in any violation of the laws of the United States therein." The Senate, however, declined to assume the position herein taken. A Conference of the Houses resulted in the abandonment of this clause. The Section, as finally adopted, in the Act of the 8rd March, 1889, reads as follows : — " The Committee of conference on the disagreeing votes of the two Houses on the amendments of the Senate to the Bill (section 3993) to provide for the protection of the salmon fisheries of Alaska, having met, after full and free conference, have agreed to recommend to their respective House as follows : " That the Senate recede from its disagreement to the amendment of the House, and agree to the same with an amendment to read as follows : " ' Section 3. That section 1956 of the Revised Statutes of the United States is hereby declai-ed to include and apply to all the dominion of the United States in the waters of Behring Sea, and it shall be the duty of the President, at a timely season in each year, to issue his Proclamation, and cause the same to be published for one month in at least one newspaper (if any such there be) published in each United States' port of entry on the Pacific coast, warning all persons against entering said waters for the purpose of violating the provisions of said section, and he shall cause one or more vessels of the United States to diligently cruize said waters, and arrest all persons and seize all vessels found to be or to have been enfnged in any violation of the laws of the United States therein.' " And the House agree to the same." International Agreement Proposed. On the 19th August, 1887, after the seizure of the "W. P. Say ward," and while she was in custody, the United States' Secretary of State wrote identic instructions to the United States' 128 8«Mt«( Ex. Doe. 80th Cong., Sod Bnt., No. 106, p. 84. Ministers iu France, Oermany,* Great Britain, Japan, Russia, and Sweden and Norway in the following terms : — " Becent occurrences have drawn the attention of this Department to the necessity of taking steps for the better protection of the fur-seal fisheries in Bering Sea fy^ilhout railing any qutttion as to the exceptional meatitrea which the particular character of the property in question mii/ht jvMify this Qovemment in taking, and witlwut reference to any exceptional marine jurisdiction that might properly be claimed for that end, it is deemed advisable— uid L am instructed by the President so to inform you — to attain the desired ends by intebnational co-opebation. • • • • " Under these circumstances, and in view of the common interetti of all nalioiu in preventing the indiscriminate destruction and consequent extermination of an animal which contributes so importantly to the commercial wealth and general vte of mankirul, you are hereby instructed to draw the attention of the Government to which you are accredited to the subject, and invite it to enter into suth an arrangement with the Government of the United States as will prevent the citizens of either country from killing seal in Bering Sea at such times and places, and by such methods as at present are pursued, and which threaten the speedy extermination of those animals and consequent serious loaa to mankind." So to Mr. White, Secretary of the United States' Legation in London, with reference to this proposition, he wrote, on the Ist May, 1888 :— WA,, p. 101. " The suggestion made by Lord Salisbury, that it may It neeeteary to bring other Governments than the United States, Great Britain, and liussia into the arrangements, has already been met by the action of the Department, as I have heretofore informed you. At the same time the utvi- teWo,:. was sent to the British Government to negotiate a Convention /or seat protection tn Bering Sea, a like invita- tion was extended to various other Powers, which have, without exception, returned a favourable response. In ordor, therefore, that the plan may be carried out, the convention proposed between the United States, Great Britain, and Bussia, slioidd contain a clause providing for • the suhseqvMt adhesion of other Powers." And on the 7th Pebruary, 1888, the Secretary of State, in a despatch to the Minister at the * The initructions were not communicated to Great Britain, until NoTember II, 18R7. See papers relating to Behrinir Sea Fiilieriei, Wuihiniftan, 1S89, p. 87; and Blue Book "United Sutea' No. 2, 1880;" Sir J. Pauncefote to Baroq Fletuo, Uctobtr It, Ib87. t'^'-^t:^^?^'" fimjiiiagmmim 124, Court of St. James', after referring to the killing of seals in Behring Sea, wrote : — "The only way of obviating the lamentable result above Senate, 60th Conjf., predicted appears to bo by the United States, Orent 2iid Se.s., No. 106, Britain, and other interested Powers taking concerted action to prevent their citizens or subjects from killing fur-seals with fire-arms or other destructive weapons, north of 50° of north latitude, and between 160° of longitude west and 170° of longitude east from Greenwich, during the period intervening between April 15 and November 1. Cate of ihf. " Thornton" Contentions of the United States, The Counsel appearing for the United States' Behring Sea laid t» . ., , . » ii_ bt an inland waUr; GoTcrnment, to justify the seizure of the "Thornton" in 1886, filed a "brief," from which the following extracts are taken : — " The information in this case is based on section 1956 of chapter 3 o( the Revised Statutes of the United States, which provides that — " ' No person shall kill any otter, mink, marten, sable, or fur-seal, or other fur-bearing animal within the limits of Alaska Territory or in the waters thereof.' "The offence is charged to have been committed 130 miles north of the Island of Ouualaska, and therefore in the main waters of that part of the Behring Sea ceded by Russia to the United States by the Treaty of 1807. The defendants demur to the information on the ground — " 1. That the Court has no jurisdiction over the defendants, the alleged offence having been committed beyond the limit of a marine league from the shores of Alaska. "2. That the Act under which the defendants were arrested is unconstitutional in so far as it restricts the free navigation of the Behring Sea for fishing and sealing pur- poses beyond the linits of a murinp league from shore, The issue thus raised by the demurrer presents squarely . the questions : — "(1.) The jurisdiction of the United States over Behrirg Sea. " M.) The power of Congress to legialatu concerning those waters. " Thr Ari .-v (. " The fate of the seconJ ot those propositions depends largely upon that tf the fir"t, or if the jurisdiction and dominion of the United StuLes as to these waters be not sus- tained the restrictive Acts of Congress must fall, and if our jurisdiction shall be sustained small question can be made I f ' 125 an to the power of Congress to regulate fishing and sealing 'irithin our own waters. Tbe grave question, one im- portant to all the nations of the civilized world, as well as to the United Stales and Great Britain, is ' the dominion of Behriog Sea.' " MiGS conceding nnreserredly the general doctrine of the 3-mile limit, he proceeds : — ''It thu.s appears that from our earliest history, contemiwraneously with our acceptance of the principle of the marine league belt and supported by the same liigh authorities is the assertion of the doctrine of onr right to dominion over our inland waters under the Treaty of 1867, and on this rule of internnlioDal law we base onr claim to jnriiidiction and dominion over the waters of the Bebjing Sea. While it is, no doubt, true that a nation cannot by Treaty acquire dominion in contravention of the law of nations, it is none the less true that, whatever title or dominion our grantor, Russia, possessed under the law of nations at the time of the Treaty of Cession in 1867, pa.ssed and now rightfully belongs to the United States. Having determined the Ihw, we are next led to inquire as to whether Bebring Sea is an inland water or a port of the open ocean, and what was Russia's jurisdiction over It. "Behring Sea is an inland water. Beginning on the eastern ox)ast of Asia, this body of water, formerly known as the Sea of Kamtchatka, is bounded by the Peninsula of Kamtxihatka and Eastern Siberia to the Behring Strait. From the American side of this strait the waters of the Behring Soa wash the coast of the mainland of Alaska aa far south as the Peninsula of Alaska. From the extremity of this peninsula, in a long, sweeping curve, the Aleutian Islands stretch in a continuous Chain almost to tbe ahc "s of Kamtchatka, thus encasing the sea." And he concludes : — " Enough has been said to disclose the basin of Russia's right to jurisdiction of the Behring Sea under the Jaw of nations, viz.. original possession of the Asiatic coast, fol- lowed by discovery and pos.session of the Aleutian chain and the shores of Alaska north, not only to Behring Strait, but to Point Burrow and tlie Frojcn Ocean, thus inclosiag within its tomtory, afl within the embrace of a mighty giant, the islands and waters of Behring Sea, and with this the assertion and excicise of dominion over laud and sen. "Such 18 7, the Marquis of Saliabury addiessing Sir Lionel West, British Minister at Washington, di6cu.wed the proceed- [622] 2 K PiPPiipiiP"i!*«nmipiii«ii|P iff^^im^fijMi9-^jw,%m'<^my!i''}W>!'T'' ■ 126 ings in the United States' District Court in the cases of the " Carolina," " Onward," and "Thornton." After stating that Her Majesty's Government could not and in them any justifi- cation for the condemnation of those vessels, he wrote : — " The libels of information allege that they were seized Blue Uook, for killing fur-seal within the limijp of Alaska Territory, " United Statet and in the waters thereof, in violation of section 1956 of -_ ^g ^ " the .Revised Statutes of the United States ; and the United States' Naval Commander Abbey certainly affirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska ; but according to his own evidence, they were seized 75, 116, and 70 miles respec- tively south-south-east of St. George's Island. " It is not disputed, therefore, that the seizures in ques- tion were effected al u distance from land for in exoeos 6{ the Umit of maritime jurisdiction which any nation can claim by international law, and it is hardly necessary to add that such limit cannot be enlarged by any municipal law." "The claim thus set up appears to be founded on the exceptional title said to have been conveyed to the United States by Bussia at the time of the cession of the Alaska Territory. The pretension which the Russian Government at one time put forward to exclusive jurisdiction over the whole of Behring Sea wa.i, however, never admitted either by this country or by the United States of ' America." Upon this ground the discussion between Her Majesty's Government and the Government of the United States was carried on for some years until the receipt of Mr. Blaine's despatch of the 22nd Januar;, 1890, to Sir Julian Pauncefote, wherein it was for the first time set up>.th^t it was contra bonos mores to engage in the killing of seals at sea. Mr. Blaine, after promising Sir Julian Paunce- _^ . ,. fote, the British Minister at Washington, to put in writing the precise grounds upon which the United States justified the 8eizur>», wrote as follows : — " Iij the opinion of the President, the Canadian vessels ,, „, , . o- t '^ Mr. Blaine to Sir J. arrested and dttained in the Behnng Sea were engaged in Pauacrfote, a pursuit that is in itself conlra bonoi mores — a purcuit January 89. 1890. which of necessity involves a serious and permanent Blue Book, injury to the rights of the Government and pe)plo of the '^^"5**,^ 8*^01" United States. pp. 396-898.' He argues that the practice of pelagic insures the extermination of the species, and continues : " To establish this ground, it it not necessary to argue iwd,, p. $98. tlie question of the extent and nature of the sovereignty of IT' mm 127 tbia Government over the waters of the Bohring Sea ; it is not necessary to explain, certainly not to defir.e, the powers and privileges ceded by His Imperial Majesty the Emperor of Russia in the Treaty, by which the Alaskan Territory was transferred to the United States. Tho weighty consideration growing out of the acquisition ot that territory, with all the rights on land and sea in- separably connected therewith, may be safely left out of view while the grounds are set forth upon which thia Government rests its justification for the action com- plained of by Her Majesty's Gov* mment" " In the judgment of this Goverament, the law of the sea is not lawlessness. Nor can the law of the sea and the •liberty which it confers and which it protects be perveited to justify acts which are immoral in themselves, which ' inevitably tend to result against the interest and against the welfare of mankind. One step beyond that which Her Majesty's Government has taken in this contention, and piracy finds its justification." Blue Book, *• United Statet' No. 1 (1890)," On the 17th December, 1890, Mr. Blaine again wrote to Sir Julian Pauncefote : — " Legal and diplomatic questions, apparently compli- cated, are often found, after prolouged discussion, to depend on the settlement of a single point. Such, in the judgment of the President, is the position in which the United States and Great Britain find themselves in the pending controversy touching the true ccnstruction of tha Russo- American and Anglo-Russian Treaties of 1824 and 1825. Great Britain contends that the phrase ' Pacific Ocean ' as used in the Treaties, was intended to include and does include, the body of water which is now known as the Behring Sea. The United States contends that the Behring Sea was not mentioned, or even referred to, in either Treaty, and was in no sense included in the phrase 'Pacific Ocean.' It Great Britain can maintain her position that the Behring Sea at the time of the Treaties with Russia of 1824 and 1825 was included in the Pacific Ocean, the Government of tho United States has no well- grounded complaint against her. If, on the other hand, this Government can prove beyond all doubt that the Behring Sea, at the date of the Treaties, was understood by the three Signatory Powers to be a separate body of water, and was not included in the phrase ' Pacific Ocean,' then the American Case against Great Britain is complete and undeniable.'' .... In the same note Mr. Blaine disavows the con- ■ tention that the Behring Sea is mare clausum, but claims that the ITkase, which asserted exclusive jurisdiction over 100 miles from the coast in that Sea, was never annulled by llussia ; and, in con- clusion, he claims for the United St-^tts the right to hold for a specific purpose a " comparatively - restricted area of water." 128 In this note the Secretary of State expressed himself : — " The English statesman of that day had, as I have Blue Book, before remarked, attempted the abolition of the Ukase of «^°J'*|l>!5j,*l** Alexander only so far as it affected the coast of the Pocitic «, jg/ ' Ocean from the 61st to the tiOth degree of north latitude. It was left in full force on the shores of the Behring Sea. There is no proof whatever that the Russian Emperor annulled it there. That sea, from east to west, is 1,300 miles in extent ; from north to south it is 1,000 miles in extent. The whole of this great body of water, under the Ukase, was left open to the world, except a strip of 100 miles from the shore. But with these 100 miles enforced on all the coasts of the Behring Sea it would be obviously impossible to approach the Straits of Behring, which were less than 50 miles in extreme width." " The United States desirea only such control over a nu., p. 54. limited extent of the waters in the Behring Sea, for a part of each year, as will be sufficient to insure the protection of the fur-seal fisheries, already injured, possibly, to an irreparable extent by the intrusion of Canadian vessels." " The repeated assertions tliat the Qovernment of the .yj j^ United States demands that the Behring Sea be pro- nounced mare clausum are without foundatioa The Government has never claimed it, and never desired it It expressly disavows it. "At the same time the Uiuted States does not lack ibid.. No. I, I89I, abundant authority, according to the ablest exponents of P- ">• intcraational law, for holding a small section of the Behring Sea for the protection of the fur-seals. Con- trolling a comparatively restricted area of water for that one specific purpose is by no muans the equivalent of declaring the sea, or any part thereof, mare claiuum." This disavowal is again referred to in Mr. Blaine's despatch of the 14th April, 1891. On the 21st February, 1891, in answer to the despatch of Mr. Blaine of the 17th December, 1890, Lord Salisbury to Sir Julian Fauncefote writes : — " The effect of the discussion which has been carried on ibid. No. S, between the two Governments has been materially to ^^^1 V- 3* narrow the area of controversy. It is now quite clear thai the advisers of the President do not claim Behring Sea as a mare claumtm, and indeed that they repudiate that conten- tion in express terms. Nor do they rely, as a justificatioa for the seizure of British ships in the open sea, upon the contention tbat the interests of the seal fisheries give to the United States' Government any right for that purpose which, according to international law, it would aot other- wise possess. Whatever importance they attach to the - preservation of the fur-seal species, — and they justly look on it as an olijcct deserving the most serious solicitude, — Drid., No. 1, p. 87.' 129 they do not conceive that it confers upon any Maritime Power rights over the open opean which that Power could not assert on other grounds. " The claim of the United States to prevent the exercise of the seal fishery by other nations iu Behring Sea rests now exclusively upon tlie interest which by purchase they possess in a Ukase issued by the Emperor Alexander I in the year 1821, which prohibits foreign vessels from approaching within 100 Italian miles of the coasts and inlands then belonging to Russia in Behring Sea," In reply to this, Mr. Blaine wrote on the 14th April, 1891: — Blue Book, No. 3, " In the opinion of the President, Lord Salisbury is 1899, p. 4. wholly and strangely in error in making the following statement : ' Nor do they (the advisers of the President) rely aa 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 Slates has steadily held just the revor.se of the position 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 islands, give to the United States a property interest therein ; that this property interest was claimed and exercised by Russia during tho whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest, so tar as recog- nition is implied by abstaining from all interference with it during tho 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 tlie lawless intrusion of Canadian vessels in 1886 and subsequent years has ch.inged the law and equity of tlie case tlieretofore pre- vailing." It doe.s not appear, however, that the special rights thus referred to have ever heen otherwise claimed or more definitely formulated than as ahovo mentioned. [022] 2 L 181 Chapter VIII. Point 6 of Article "VI. — Has the United States any Right, and if so, what Right of Protection or Property i the Fttr-Seals frequenting the Islands of the United Slatc.i in Behring Sea when such seals are found outside the ordinary 3-mila limit ? Tho claim involved in this question is not only new in tho present discussion, but is entirely without precedent. It is, niorcover, in contradiction of the position assumed by tho United States on more than ono occasion. The claim , in this instance, made only in respect of seals, but tho j)rhiciplo might ho extended on similar grounds to other anima's ferith their riglits to fish for and catch seals or other animals fcree iialuree upon the high seas no nation inidcr the principles of law and the practice among nations can, without the con- currcn'. e of all interested Powers, interfere ^vith vessels engaged in this irarsuit when outside of the ordinary territorial jurisdiction. In accordance witli this view, the GDVomnient of the United States has more than once dis- tinctly asserted that the fur-seal fishery is part of the ocean fishery, and free without the 3-niile limif. In 1832 the United States' schooner " Harriet," Davison, master, v,'as seized by the Government of the Republic of Bu'^nos Ayres at the Falkland Islands. 'i he Government claimed Mie right to capture and delain United States' vessel.- engaged in the seal fislicry at the Malvinas (ralki.^.nd Islands) and tlie islands and coasts adjacent to Cupe Horn. The United States' Chnrge d'AfTaircs wroio, on the 20tli June, 1832, to the Buenos Ayrc Minister as follows : — " . . . . T!io Umlersi;,ned is instructed ami authorized to Brilish anJ "oroign 8iiy, — tluit tlifiv "Jtterlv deny the existence cf any ri'flit in ?'"'" P'pe"! """ , T. ,,■ . • " / , . w ■ Hertslet, vol. M, tins llepublic to interrupt, molest, detain or capture any ,, gjg \'c3sel3 belonging to citizens of the Uniteu States of America, or any persons being i.'tizens of tliose States, engaged in taking seals, whales or any species of fish or marine animals, in any of tlie waters, or on any of tlie shores or lands, of any or eitlier of tlie KalklamJ Islands, Tierra del Fuego, Capo Horn, or any of tlie adjacent i.ilanda in die Atlantic Ocean." On the 10th .July, 1832, the United StatV Chaige d' Affaires wrote to the same Minister us follows : — "I5ut again, — if it be admitted, bypotlictically, that the Ibid., p. ;M9, Argentine Itepublic did succeed to the entire riglits of Spain over these regions ; and that when she succeeded, .Spain was posacssod of sovereign rights ; — the question is certainly worth examination, whether the right to exclude American vessek and American citizen--- from the fisheries thare, is incident to such a succession to sovereignty. 133 British and Foreign Stale Papers, by Hertslet, vol. xx, p. 331. " The ocean fishery is a natural right, which all nations BBfvy enjoy in commoii. Every interference with it by a foreiqu Power, is a national wrong. When it is carried on within the marine league of the coast, wliich has been designated as the extent of national jurisdiction, reaaon seems to dictate a restriction, if, under pretext of carrying on the fisliery, an evasion of the Kevenue Laws of the country may reasonably be apprehended, or any other serious injury to the Sovereign of the coast, he has a right to prohibit it ; '.nt, as such prohibition derogates from a natural right, the e/il to be apprehended ought to be a real, not an imaginary one. No such evil can be appre- hended on a desert and ininhabited coast ; therefore, such coasts form no exceptior. to the common right of Fishing in the seas adjoining them. All the reasoning on this subject opplies t^ the large ')ays of the Ocean, the entrance to which cannot be defended; and tliis Ls the doctrine of Vattel, chapter 23, section 291, who expressly cites the Straits of Magellan, as an instance for the application of the rule. " . . . . The Treaty concluded between Great Britain and Spain, in 1790, already alluded to, is to .le viewed, in reference to this subject, because, both rations, by restricting themselves from forming Settlements, evidently intended that the fishery should be left open, both in the waters and on the shores of these islands, and perfectly frse, so that no individual claim for damage, for use of the shores, should ever arise. That case, however, could scarcely occur, for wliales are invariably taken at sea, and generally without the marine league — and seals, on rocks and sandy beaches, incapable of cultivation. The Stipula- tion in the Treaty of 1/90 is, clearly, founded on the right to use the unsettled shores for the purpose of fisher)-, and to secure its continuance." Mr. Robert Grecnhow, whoso works have already beeu quoted, ia a series of articles written for "Hunt's Merchants' Magazine," in February 1842, on the Falkland Islands, refers to the claim set up by Jiueuos Ayres resiiecting the jurisdiction of the llepublic and the applica tion of its laws and rej^ulation' , " especially those respecting the seal fishery oj the coast." Ml. Greenhow savs: — Hunt's " Merch- ants' Magazine," Ffl.rusrv 1B42, p. 137. ■ " To proceed another step in admissions. Supposijig the Argentine liepublic to have really and unquestionably inherited from Spain the sovereignty of the territories adjoining it on the south, and the contiguous islands ; that (Jovernment would still want the right to extend its 'Eeg.Jatioua respecting the seal fishery' to tlie unsettled portions of the coasts of those territorici,. That rif.'lit was indeed assumed by Spain, witli many equally unjust, which were enforced so long as other nations did not ;ind it prudent to contest them. liut as the Spanish power waned, other nations claimed their iinprescriptilile rights ; [622] 2 M i >•»: 181 they insisted on navigating every part of the open sea, and of its unoccupied straits and harbours, with such limita- tions only as eacli might choose to ndmit by Treaty with another ; and they resorted to the Korth Pacific coasts of America for trade and settlement, and to the southernmost shores of the continent for the seal fishery, without regtird for the exclusive pretensions of Spain to the sovereignty of those regions. Of the hundreds of vessels, nearly all American, which annually frequented the coasts and seas aiove mentioned after 1789, noi one was captured or detained by 'he Spanish authm-ities ; and long before the revolutions ia Southern America began, t)ie prohibitory Decrees of the Court of Madrid and of its Governors, relative to those parts of the world, had becomo obsolete, and the warnings of its otHcers were treated as jests. " The common right of all nations to navigate and fish in the open sea, and in its indefensible straits, and to use their unsettled shores for temporary purposes, is now admitted among the pri.icipal Maritime Powers ; and the stipulations in Treaties on those subjects, are intended to — prevent disputes as to what coasts are to be considered as unsettled, — what straits are indefensible, — within what distance from a sittkd coast the sea ceases to be open, &c. " T!ie Governments of Spanish American Republics have, however, in many instances exhibited a strong in- disposition to conform with these and other such Regula- tions of national law, though clearly founded on justice and reason, and intended clearly for the benefit of the weak, to which class they all belong." He also refers to the ca.se of the " Harriet " a« follows : — )>. 143. " . . . . The President at the same time declared, that Hunt's " Merch- the name of the Republic of Buenos Ayres ' had been used, "pt'' Magniine," to cover with a .ihow of authority, acts injurious to the ^ y^^ ' commerce of the United States, and to the property and liberty of their citizens; for which reason, he had given orders for the dispatch of an aruied vessel to join the American squadron in the south seas, ond aid m affording all lawful protection U) the trade of the Union, which might bf recjuired ; and ho sliould witliout delay seiid a Minister to Buenos Ayrc?, to examine into the nature of the circumstances, and also of the claim set up by that Goveniment to the Falkland Islands. " . . . . The question liad, however, become more com- plicated before the arrival of Mr. Baylies at Buenos Ayres. " Tlio ' l/jxington ' reached Berkeley Sound on the 28th December, and lay at the entrance, during a severe gale, until the 3l8t, when she went up and imchored in front of the harbour of Soledad. Boats were immediately Bont ashore, with armed seamen and marines, who mada prisoners of Brisbane, Metcalf, and somo other persons, and mm thom on board the shi]) ; the cannon mounted before the place were at the stinie time spiked, bonie of the arms and suiimuuition wert dtisiroycd, and the seal-ckiiui Ibl<] , p. 144. 186 Treaty, B»pt«mber 30, 18C0. Fiance and Uuiicd Stiles, Ainericac State Paiiera, Fo-cign Relatioui, vol. ii, p. S9S. Sec. 59, p. 7S. Record of the Proofediiiji;,) of HalifaK Fitherii-s CMkmiaaioD, 18?7, p. 16 .%. /i A V /^ Photographic Sciences Corporation 23 WEST MAIN STRUT WEBSTER, N.Y. 14SB0 (71*)S72-4503 -i},"^ that municipal vi^'its and sonrch may be made beyond the territorial waters for spi'cial purposes, or that thcTO are different bounds of that territory for different objects. 1{ut as the line of tcrritoriid waters, if not fixed, is dependent on the uM8cttIc■■ - r mm