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THE differences lietwecn the United States of America and Great Britain, the subject of this Arbitration, arise out of claims by the United States of America to limit and interfere with British vessels fishing in the waters of Behring Sea other than the territorial waters thereof. Prior to the year 188G British vessels had, in common with the vessels of the United States and those of other nations, navigated and fished in the uon-territorial vmtcrs of Behring Sea without interference. In 1880 the British schooner " Thornton " was arrested when fishing 70 miles south-east of St. George Island, the nearest land. .vTjlc.Ttss^Uwtw. libelled in a District Court of •.tVe "Vlni.W'i ■etxtey' by the District Attorney, the tfT/ajge formulated being that the vessel was •.. :"i'fmn^ p^^gs^df/iii-.'k'iJling fur-seals within the '.•' Uiidits 'Of "Alasta Territory and in the waters thereof, in violation of Section 1956 of the Revised Statutes of the United States." The "Anna Beck" and "W. P. Sayward" were also seized, and were condemned in 1887 by the District Court of Alaska, upon the ground that Russia had ceded not only Alaska and the islands within certain limits of Beluing Sea, but the sea itself within those limits. Certain other vessels were seized, and the fishing of British vessels prohibited under the circumstances hereinafter stated. Great Britain formally protested against this action on the part of the United States, and negotiations took place, which eventually resulted [614] B 5 vj-3 15::904 2 in the Treaty and Convention entered into at Tre»iy and Con- Washington on the 29th February and the 25th v*niion of 18D2. April, 1892. This Treaty declares that " II "^r Majesty, the Queen of the United Kinijdom of Great Britain and Ireland, and the United States of America, being desirous to provide for an amicable settle- ment of the questions which have arisen between their respective Governments concerning the jurisdictional rights of the United States in the waters of Behring Sea, and concerning also the preservation of the fur-seals in or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-senls in or habitually resorting to the said waters, have resolved to submit to Arbitration the questions involved, and to the end of concluding a Convention for that purpose have appointed their Plenipotentiaries," &c. By Article I it is provided that the questions which have arisen between their respective Governments oonceming the jurisdictional rights of the United States in the waters of Behriug Sea, and concerning also the preservation of the fur-seal in or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seals in or habitually resorting to the said waters, shall be " submitted to a Tribunal of Arbitration to bo composed of seven Arbitiators," to b appointed as therein specified. By Article VI it is provided that : — " lu deciding the matters submitted to tlio Arliitrators, Questions for the it is agreed that the following five points shall he sub- mitted to them, in order that their awanl sliall emliiiKe a distinct decision upon each of eaid five jioints, to wit: — " 1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in tlie seal fisheries therein, did Kussia assert and exorcise prior and up to the time of the cession of Alaska to the United States ? " 2. How far Tere these claims of jurisdiction as to the seal fisheries recognized and conceded by (ireat Drit.iin ? " 3. Was the body of water now known as the IJehring Sea included iu the phrase ' Pacific Ocean,' as \ispd in the Treaty of 1825 between Great Britain and Itussia, and what rights, if any, in the Behring Sea were held and exclusively exercised by liussia after said Treaty ? " 4. Did not all the rights of Kussia as to jurisdittiun, and as to the seal fisheries in Behring Sea east of ihe \« att>r boundary, in the Treaty between the United SUites :iud decision of the Tribunal. Russia of the 30th March, 1867, piws unimpaired to the Uuitod States under that Treaty ? " 5. Has the United States any right, and, if so, what riglit, of protection or property in the fur-seals frequenting the islands of the United States in Behring fiea when such seals are found outside the ordinary 3-milo limit ?" By Article VII it is provided that : — " If the determination of the foregoing questions as to the exclusive jurisdiction of the Uuitod States shall leove the subject in such position that the concurrence of Great Britain is necessary to the establishuiont of Regulations for the proper protection and prcsen'ution of the fur-seal in, or habitually resorting to, tbe Behring Sea, the Arbi- trators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Govern- ments are necessary, and over what waters such Kcgula • tions should extend, and to aid them in that determination, the Report of a Joint Commission, to be appointed by the respective Governments, shall be laid before them, with such otiier evidence as either Government may submit. "Tho High Contracting Parties furthermore agree to co-operate in securing the adaesion of other Powers to such Regulations." By Article VIII it is provided that : — " The High Contracting Parties having found themselves unable to agree upon a reference which shall include the question of the liability of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it; and, being solicitous that this subordinate question should not interrupt or longer delay the submission and deter- mination ol the main questions, do agree that either may Siibmit to the Arbitrators any question of fact involved in said claims, and ask for a finding thereon, the question of : the liability cf either Government upon the facts found to : be ti'« f-ubjei;t oi furtl'er negotiation." Article IX provides that : — " The High Contr ictiug Parties having agreed to appoint two Commissioners on the part of each Government to make the joint investigation and Report contemplated in the preceding Article VII, and to include tlie terms of the said Agreement in the present Convention, to tlie end that the joint and several Reports oiid recommendations <>( said Commissioners may be in due form submitted to the Arbitrators, should the contingency therefor arise, the said Agreement is accordingly herein included as follows : — " Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other Government, all the facts having relation to seal life in Behring Sea, and the measures necessary foi its proper protection and preservation. "The four CommiMionen shall, so far m they inav )« able to atrtw. make s joint Report to each of tl , two Qovernniontg, nnd they shall also report, either jojitly or severally, to each Government on any points upon which thoy may Ix,' unable to agree. "These IJcports shall not be made public until they shall Ixj submitted to the Arbitrators, or it shall appear that the contingency of their being used by the Arbitrators cannot oriss." Arrangement of Case. CASE. CnAPl'EH I. Fointa of Arg\iment. Tho first three points of Article VT ar^ an follows : — "1. What exclusive jurisili a.nu in lliu Ai-a now known as the Ik'hrin^' Sun, and wli.it t'xi'lusivc rights in the seal fi.Hhiiiiiis tlitTi'in dill i. ^sill nf :t and I'xci io« priot and u|i ti) llic tinii' iif olie co8Hiii!t nf A! kn ti) the I'uiu-*! Stiitcs ' " 2. IIiiw fur wiieiv llii" uIimpu, .if jmisdiction :i» to the gcnl liHhorius rocngniz'd nnd riiricedt'd l)v (iroat Krituin ? •':). tViis the 1"m1- (pf wiiiiT iiiiw kiinwn ixa tin; IVhring Sea includcil in tiio iiliriiMc ' rauli' Oican.' .w n'Htl in the Treaty of 1825 lietwoun (ircat Uritain and iiu'sia; am! what riglits, if any, in 'hi' Uohiinj; Sea wen; held and exchisivuly cxei-ciscd liy liussia ai'tcr said Treaty ?" It is propos(!d In tlic first iiistnnce to deal with these points, whicli nrlato to Ilussiii's claim to certain ritjhts in Uoliring Sea, the alleged recog- nition and concession of these rights by Great Britain, and the alleged transfer of sucii rights to the United States in tlu; year I8G7. Tho questions therein raised will be considered under the following heads : — (a.) The user of the waters in question up till the year 1821. {!>.) The Ukase of 1821 and the circumstances connected therewith leading up to the Treaties of 1824 and 1825. (c) The question whether the body of water now known as Behring Sea is included in the phra." " I'acific Ocean," ns used in the Treaty of 1825 oetwcen Groat Britain and Russia. {(l.) The user of the waters in question from 1821 to 1807. It is then proposed to consider point 4 of Article VI, whicli is as follows : — "4. Did not nil the riglits of IJussia as to jurisdiction and lus to the .seal lisliciie.s in lieliriiig .Sea ea.st of the water lioundary, in tlie Treaty betweeu the United States and Kussiii of the 30tli March, 18G7. pass uuiinpaired to the United States under that Treaty ?" [614,] C 6 This point will be "onsidored under the follow- ing heads : — (e.) Wlmt rights passed to tlie United States vinder the Treaty of March 30, 1887 ? (/.) The user from 1867 to 1886. (g.) The contoations of the United States since the year 1886. Point 5 of Article VI will then be considered. The subject of Article VII has not at present been dealt with in the British Case, inasmuch as the determination of the questions under Article VI of the Convention is necessary before the Arbitrators arc called upon to consider the points involved in Article VII. The questions arising under Article VIII will be dealt with separately. rMli Head (A). — The User of the Waters in question up till the year 1821. i741. BancrofV, Alaaka, p. S8. 1768. 1769. Ibid., p. 174. 1774. 1775. 1778. Tlio following is a history, in chronological order, of th(> user of the waters of Bohrinj,' Sea prior to the year 1821 : — "Behring Sea," so-called from the Russian navigator Behring, otherwise called tlio Gulf of Kamtchatka, in the northern portion of tho Pacific Ocean, lying between Behring Strait on the north and tho Aleutian Islands and the Alaskan Peninsula on the south. The Pacific Ocean as a whole was in the hogin- ning of this century termed the Pacific or Great Ocean or South Sea, the last name arising from the fact that it had been reached by sailing south, "rounding the Capo," or "doubling the Horn." In 1741 Bchring's second expedition, which sailed from Okhotsk, resulted in tho discovery of the American coast. Unsatisfactory as the voyages of Behring un- doubtedly were from a geographical point of view, it was upon their results that Russia chiefly based her subsequent pretensions to the ownership of the north-western part of North America. Hunters and traders followed Bchring's lead, and Behring Island, and others of the Aleutian chain, were visited from the Kamtchatkan coast. In 1768 a Lieutenant of the Russian navy made an expedition along tho coast to Behring Strait. Of the period from 17()D to 177'J, Bancroft writes: — " From this tiiuu to tlic visit of Ciijitaiii Cook, sin!;lo Irailers and small Comiianius roiitiiuicd to Ivatlic witli tho islands in much tho samf niaiuKU- as hGloiu, though a general tendency to (.'onsoliilatiou was ixTCfptililc." In 1774 Perez was dispatched by Spain. Ho extended his voyage to tho southern part of Alaska. In 1775, Ilccata, from Spain, explored tho coast of America as far north as 57° or 58° of lafitudi', taking possession of that part of tho continent in the name of Spain. In 1778 Captain Cook, sent by tho English Govcrnii.ent, reached tlie American coast of tho North Pacific with two vessels. In pursuance of his instructions, he explored the coast from tl'' of lun'tli latitude as far as tho region of Prince Williani Soimd and Cook fliver or Inlet, taking possession of tho coasts there. .\t Cook Inlet. Ik; found traces of Russian trade but uo Russians. 8 At TJnalaska, one of tho Aleutian Islands, he ngain beard of the Russians but did not meet with them till on the occasion of a second call, made on his return from the North. Thence he sailed eastward to Bristol Bay, landing and taking possession. From this lie explored, and defined the position of tho American coast northward as far as Icy Cape, beyond Bchring Strait. Cook -was killed in the following winter at the Sandwich Islands, but his ships under Clarke returned in 1779 and made further explorations in Bo'aring Sea and the Arctic Ocean. Under this expedition, and for the first time, the main (outlines of the north-western part of tlic Continent of America, and particularly those of the coast about Prince William Sound and Cook Inlet, with the eastern coast of Bchring Sea, were correctly traced. This expedition also opened up the trade in furs from the north-western part of America with China by sea. Cook's surveys still remain in many cases the most authentic. In 1779 an official expedition sailed from Spain under Arteaga and Quadra, who explored part of the coast northwai-d from about lati- tude ">o, and westward to Mount St. Elias. In 1783 the first attempt was made, following Cook's discoveries, to establish a ]lussian trading post on the American mainland, at Prince William Sound. It ended disastrously. In 178G the " Captain Cook " and " Experi- ment," two vessels from Bombay, visited and traded at Nootka and Prince William Sound. An English vessel, tlie " Lark," Captain Peers, Sauer'i Mcount of T.,.»-iri 1^1 !•• Billing « expedibon, from Bengal via Jialacca and Canton, alter London, I802, trading at Petropaulovski in Kamtchatka, sailed PP- *'''' '**• for Copper Island with tho supposed purpose, as alleged, of obtaining a cargo of copper there. She was wrecked on Behring Island. In the same year, 178G, Portlock and Dixon and Meares arrived upon the Americ n coast, and traded and explored far to tho northward. These voyages arc important, because detailed accounts of both were published. Portlock and Dixon, who had sailed from " A Voyage round Iiondon in 1785 in the *' Queen Charlotte," in 178G first visited Cook Inlet, where they found a party of Russians «ncampcd, but with no flxal establishment. 17791 1783. 1786J 1786. ti T-- <-i >> 1 tho World, &c.," "Kmg George" and Lo„d„„, ,789/ 9 Memorial of Lieutenant Mearea (styled Mean) in "Annual Kegister" for 1790, p. 287. " Annual Kegister," 1790, vol. x«ii, p. &87. 1787. 1788. Mearcs sailed from Bengal in the " Nootka " early in the year, and reaelied the Islands of Atka and Amiia of the Aleutian ehain. Meares then eoastad from Unalaska to Cook Inlet and I'riucc William Sound. In 17SG La Perouse, on his voyage round tiie world, under instruetious of the French Govern- ment, first made land near Mount St. Etias. Thencc! he sailed eastward and soutlnvard, calling at places on the Alaskan coast. At Lituya Bay he obtained in trade 1,000 sea- otter skins. In the same year 1786 the Russian Prihylolf discovered the islands in Behring Sea, now known by his name. About the beginning of the year 1780 certain merchants, under the immediate protection of the East India Company, were desirous of opening a trad-j with the north-west coast of America for supplying the Chinese with furs and ginseng, being the trade which "was pointed out to merchants by Captain King in his concluding volume to the voyages of Captain Cook."* Two vessels were purchased and placed under the direction of Mr. Meares, the memorialist, who had been a lieutenant in the service of Government. In March the same year, 1780, one of the vessels, named the " Sea Otter," Captain Tippin, was dispatched to Prince William Sound, and was soon followed by the other, named the " Nootka," commanded by Mr. Meares himself, who, on his aiTival in Prince William Sound as captain, learned that the "Sea Otter" had left that place some days before ; and by future intelligence was assured that she had been lost on the cost of Karatchatka. In Prince William Sound the " Nootka " wintered ; and in the meantime her commander opened an extensive trade with the natives, and having collected a cargo of fur.s, repaired to China in 1787. In January 1788, having disposed of the "Nootka," Lieutenant Meares, in conjunction with other English merchants, purchased two other vessels, named the "Felicf'" and " Iplii- genia." The former he commanded liimself, and the latter he put under the direction of Captain Douglas. With the " Felic^ " he reached Nootka Sound in May 1788; and his first busiiur^, to attack, and no one but traders living "i_ ubject misery," her Commander refrained from dis- turbing them. In 1791 ^Laiiispina, from Spain, under orders of his Government, visited several places in what is now the Alaskan coast. Marcband, iu the " Solide," from Prance, on a voyage of trade and circumnavigntion, also visited the coast, and Douglas, in the " Iphi- genia," was iu Cook Inlet in this year. 12 Besides the above vessels, at least eight trading- vessels aro known to have been on the coast, of which seven were from the United States. In 1702 Caamano, setting out from Nootka, explored Port Biicarclli, in South-eastern Alaska ; and it is reported that in this year fully twenty- eight vessels wore 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: Trom England, 6; from East Indies, 2; from China, 3; from United States, 7 ; jm Portugal, 2 ; from Prance, 1 . The "Halcyon," Captain Barclay, visited Pctro- polovsk for purposes of trade, and a Prench vessel, " La Plavia," 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 PaciQc and Atlantic, by the exploration of all remaining inlets on the north-west coast, v/as occupied on what now constitutes the south-eastern Alaskan coast. In 1794 he surveyed Cook Inlet to its head, and Prince William Sound, Kadiak, and the coast extending to Yakutat Bay, were in turn carefully laid down in detail. Touching the Russians here and there met with, Vancouver "clearly understood that the Russian Government had little to do with these Settlements; that they were solely under the direction and support of independent mercantile Companies Not the least attention what- 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, which was then upon the coast for the third consecutive season, and further to the south-eastward ho met with the "Arthur," Captain Barker, from Bengal. T .0 names of four trading-vessels on the north-west coast, including the " Jackal," are known for this year. In 1795 a trader, named the " Phoenix," from Bengal, was on the north-west coast. In 179G at least three trading- vessels arc known to have been on the n"rth-west coast. In 1707 the names of four trading-vessels on this coast arc known, but there wore probably a Bmall part of the fleet. North-weat Coait, pp. 250-257 Alaska, p. 244. 1792. Vancouver, iii, p. -138. Alaska, p. 296. ]793. 1794. Vancouver, iii, p. 139. North-west Coast, p. 291. Ibid., p. 304. 1796. Ibid., p. 803. 1790. Ibid., p. 306. 1797. ;« 13 1798. 1799. Ibid. Bancroft, Alaika, p. 389. North-weit Coast, p. 307. 1798-1801 'bid., p. 384. In 1798 the names of six traders arc knoTm. In 1799 the "Caroline," Captain ClcTcland, from Boston, arrived at Sitka. Several other American vessels, among them the brig " Eliza," under Captain Rowan, visited Sitka during the summer and absorbed the trade while Russians were prepaiing to occupy the field in the future. 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 effect 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 BaranolT, Governor of Sitka, Bancroft says : — " At every point eostwarc' of Kodiak where he had cudenvoured to open trade, lij fouud himself forestalled by English and American slr'j-s, which had raised the price of furs almost beyond liis limited means." Again, referring specially to the nascent Establishment at Sitka, Baranoil himself writes : — Ibid., p. 196> " I thought there would be do danger with proper pro- tection from tiie larger vessels, though the natives there possess large quantities of rtre-arms and all kinds of ammunition, receiving new supplies annually from the English and I'l-oni the Kcpublican-. of lioston and America, whose object is not permanent settlement on these shores, but who have been in the habit of making trading trips to these regions." On another page Bancroft writes : — Altika, p. 398. " Baranoff's complaints of foreign er.croachments appear to have been well grounded. Within a few leagues of Sitka the captains of throe Boston ships secuivd 2,000 skin.", though paying very high prices, each one trying to outbid tiic other." Ibid., p. 399. Further on Baranoff is quoted to the effect that the Americans had been acquainted with the [614] E mm ■RlHi 14 tribes in t)u8 region for two or three years, 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. Still again Bancroft quotes Baranoil as follows : — "The resources of this region are such tliat millions Alaska, p. S39. may be made there for our country witli proper manage- ment in the future, but for ever ten j'ears from six to ten English and American vessels have called here every year. It is safe to calculate an average of 2,000 skins on eight or, aay, 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 45 roubles per skin, would amount to 4,500,000 roubles." It will be convenient at this point to consider the Ukase granted by the Emperor Paul to the Russian -American Company, already referred to. In 1786, the idea became dominant with Historical Sketch. Grigor Sholikof, who had lately established the Bancroft, Alaska, first permanent Russian Colony at Kadiak, of a P" Company which should hold a monopoly of trade in the Russian possessions on the raciflc, and over all that part of the American Cojitincnt to which Russian traders resorted. Shelikof obtained but a partial success in the Charter issued for the United American Company ; but after his death at Irkutsk in 171*5, his ambitious schemes were taken up by his son-in-law Rezanof, who succeeded in carrying them to comple- tion, and, in 17i)!), a Ukase was issued which granted the wished-for exclusive privileges to the new Russiau-Anierican Company. Before this time, in 1798, a consolidation of the Shelikof Company with several smaller concerns had been oU'ected 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, sums up tho situation about 1701 and 1792 in the following words : — "Afraira were assuming a serious aspect; not only were Ibid., pp. 838,339. the Shelikof men excluded from the greater part of the inlet [Cook 3 1 nlet], but tlicy were oppo5e'<'., p. 309. College of Commerce to examine the question, and a Committee of this body endorsed Jacobi's Report and recommended that the 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 be 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 which to any great extent induced Shelikof to apply for such a monopoly. Ilis Company had the utmost difli- cully in sustaining its position against hostile natives, while not less serious were the difficulties arising from the competition, and scarcely 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 wore often obliged to depend on such foreigners for support and assistance. Nowhere in the annals of the times previous to, and during the operation of the Ukase 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 1799, which is purely domestic in its character, and in which no exclusive rights against foreigners are asserted. [614] P 18 Ukase of 1799. The following is a literal translation of the Ukai« of P«ul I, 1789 Ukase in question, taken from "Golovnin," in " Materialui," i., 77-80 :— " By the grace of a merciful God, we, Paul I, Emperor Bmnenrfl'ii works, and Autocrat of All the Russias, &c. To the Russian- *? Kf **J''' J*''""7 American Company, under our liigliest protection, the iggg pp. 379.380 btuclits and advantages resulting to our Kinpire from tlie liunting and trading carried on by our loyal sub- jects in the nortli-eastern seas and along the coasts of America liave attracted our Royal attention and considera- tion ; therefore, Iiaving talien under our inimediiite protec- tion a Company organized fur the above-named purpose of carrying on hunting and trading, we allow it to assume • the ajipollation of 'Russian-American Company urs inr our liighest protection;' and for the purpose of nidiiig ti.r Company in its enterprises, we allow tlie Conimiindurs ■/(' our land and sea forces to employ said for", r' the Company's aid if occasion requires it, while for farther relief and assistance of said Company, and having examined tlicir Unles and Regulations, we hereby dtudare it to be our liigliest Imperial wdl to grant to tliis Company for a period of twenty years the following rights and privi- leges : — " 1. By liie right of discovery in past times Ivy Russian navigators of the nortli-castcrn part of America, beginning from the fiStli degree of north latitude and of the chain of {.■■lands extending from Kamschatka to the north to America and southward to Japan, and by right of pos- session of tlie same by Russia, we most graciously permit the Ciiiupany to have the use of all bunting grounds and establishments now existing on the north-eastern [sic] coast of America, from the above-mentioned 55tb degree to Bebring .Strait, and on the same also on the Aleutian, Kurile, and other islands situated in the north-easteni ocean. "2. To make new discoveries not . To emjiloy for navigation, hunting, and all otiier business, fre(! and unsuspee^ted i)i.'Ople, having no illegal views or intentions. In consideration of the distance of the localities where they will be sent, the provincial autho- rities will grant to all jiersons sent out its settlers, hunters, and in other capacities, passports for seven years. Serfs and housc-.servants will only be employed by the Company with the consent of their la .-holders, and Ciovernmcut taxes will lie paid for all serfs thus employed. " 7. Though it is forbidden by our highest order to cut Government timber anywhere without the pcrmi-ssion of the College of Admiralty, this Company is hereby per- mitted, on account of the distance of the Adiiiir.alt\- from Okhotsk, when it needs timber for rejiairs, and ocrasit'ially for the construction of new ships, to use freely such timber as is required. " 8. For shooting uninials, for Miarine .signals, and on all unexpected emevgeiicies on the iiiainland <•{ America and on the islands, the Company is iierniitted to buy for cash, at cost price, from the Government artillery magazine at Irkutsk yearly 40 or ."0 pouds of powder, ar..l from the Nertchiiisk iiiiin^ 200 ponds of lead. " 9. If one of thij partners of the Company becomes indebted to the Government or to private persons, and is not in a condition to pay them from any other property e.\ccpt what lie holds in the Company, .such proix-rty cannot be seized for the satisfaction of such debt.s, but the debtor shall not be permittwl to use anything but the interest or dividends of such ]iroperty until the term of the Company's privileges expire.-;, when it will be at his or his creditors' disposal, " 10. The exclu.sive right most graciously granted to the Company for a period of twenty years, to use and enjoy, in the above-described extent of couutrj- and islands, all profits and advantages derived from hunting, trade, indus- tries, and discovery of new lands, prohibiting the enjoy- ment of those profits and advantages not only to those who would wish to sail to those countries on their own account, but to all former liuuters and trappers wlio have ixiea engaged in this trade, and liave their vessels and furs at ^»^ 20 tlioso places ; and other Companies wliich may have been formed will not be allowed to continue their business unless they unite with the present Company with their free consent; but such private Companies or traders as liave their vessels in those regions can either sell their property, or, with the Company's consent, remain untU they have obtained a cargo, but no longer than is required for tlu! loading and return of their vessel ; and after that nobody will have any privileges but this one Company, which will be protected in the enjoyment of all the advan- tages mentioned. "11. Under our higliest protection, the Eussian -American Cosapany will have full control over all atove-mentioned localities, and exercise judicial powei's in minor oases. The (Company will also be permitted to use all local faoilitioB for fortifications in the defence of the country under their control against foreign attacks. Oidy partners of the Company shall bo employed in the administration of the new possessions in charge of the Co npany. " In conclusion of this our most gracious order for the benefit of the Russian-American Company under highest protection, we enjoin all our military and civil authorities in the above-mentioned localities not only not to prevent them from enjoying to the fullest extent the privileges granted by us, but in case of need to protect them with all their power from loss or injury, and to render them, upon application of the Company's authorities, all necessary aid, assistance, and protection. "To give effect to this our niost gracious Order, we subscribe it with our own hand, and give orders to confirm it with our Injperial seal. " Given at St. Petcrsburgh, in the year after the birth of Christ 1799, the 27th day of December, in the fourth year of our reign. (Signed) " Paul." The TJkasc, it will bo observed, granted to the Russian-American Company exclusive rights as against other Russian .subjects only, and made no reference to foreigners. This is particuliirly cvidoncnd by the details incorporated in clause 10 of the Ukase respecting the rights of independent traders. The rights and privileges under the grant extended to the hunting grounds and estaldish- ments then existing on the main coast of America from Boliring Strait down to the 55th degree of north l.at.tudo. The southern limit of the exclusive coast privileges granted to the Company extended on the Asiatic side to Japan Not only were the main roa-jts of Asia and America thus covered by tht; Ukase, but the same privileges wero granted on the Aleutian, Kurilc, 1800, 1801. 21 The Ukase of Paul purely domestic. American State Papers, Foreign Rciatioas, vol. v, p. 461. and other islands " situated in tlio Nortti Eastern Ocean." It will be observed that the area over which the exclusive privileges were granted to the Russian-American Company extend;id both on the coast of Asia and of America far outside the limits of Bohring Sea. Special privileges in regard to the purcliase of powder for shooting animals "on the mainland of America and on the islands " were conceded, and the exclusive right " to use and enjoy in the above-described extent of country and islands " the hunting and trading. The Ukase in no way claimed any exclusive jurisdiction over the f ea, nor were any measures taken under it to restrict the commerce, naviga- tion, or fishery of the subjects of foreign nations. On the contrary, within the very area covered by the Ukase, as has already been shown by the fact stated; vessels of various nations bad been navigating and trading. Referring to the Ukase of 1790, Mr. Jliddle- ton, in giving Mr. Adams a narrative of the proceedings, 7th (19th) April, 182 1, leading to the Convention, remarked : — " Tlie confusion prevailing in Europe in 1799 permitted Russia (who alone seems to liave kept lier attention fixed upon this interest during that period) to take a decided step towards the monopoly of this trade, by the Ukase of that date, which tresjiassed upon the acknowledged rights of Spain ; but at that moment the Kmperor Paul had declared war against that country as being an ally of France. Tliia Ukase, which is, iu its form, an act purely domestic, was never notified to any foreign State with injunction to respect its provisions. Accordingly, it ap- pears to have Ijcen passed over unobserved by foreign Powers, and it remained without execution in so far as it militated against then- rights." 1300, i 1801. Ibid., p. 3CS. Kobert Greenbow, Librarian of United Slates' Congress, Hunt's Mopniiiio, February f, 1843. North AmericiD Review, 1823, Article XVIII. In 1800 the ship " Enterprise," from .New York, arrived at Kadiak. The name of seven traders on the north-west coast are given in this year. In 1801 there were sixteen ships on the north- west coast, fifteen American and one English. These vessels exchanged with the natives of the coast for furs parts of their cargoes, and, pro- ceeding to Canton, returned to their respective countries with cargoes of teas. Upwards of 18,000 sea-otter skins, besides other fure, were In 1801 collected by the Ameri- cans alone for the China market. [614] Q 22 In 1802 the Russian Establialiment at Sitka was destroyed, and nearly all the Russians there were massacred by the natives. According to Sisiansky, the natives were assisted by three deserters from an United States' vessel, the " Jenny," which had called at Sitka not long before. Shortly afterwards, the English vessel, the Alaska, pp. 404- " Unicom," Captain Barber, arrived at Sitka, *'*^* and two other vessels, reported by the Russian survivors as English, but one of these Bancroft believes to have been the United States' vessel the " Alert." In this year the news of the Charter granted Ibid., p. 416. to the Russian - American Company reached Baranoff, the Governor of Sitka. In this year also Krusanstern, having visited China, presented a ilemorial to the Russian Government calling attention to the advantages offered by the trade in furs from America direct to Chinese ports, and suggesting Russia should engage in it. In 1803 Bamnoff contemplated the abandon- Ibid., p. 417. ment of Unalaska, owing to disease and non- arrival of supplies. He ordered that the best of his men should be moved to the Pribyloff Islands to collect there the furs accumulated by the natives. These islands had not been visited for many years. Ciptain O'Cain, of the United States' vessel " O'Cain," exchanged goods for furs with Baranoff at Sitka, and also took Aleutian himters to the Californian coast to hunt fur- seals and sea-otters. " Thus was inaugurated a series of limiting Ibid., pp. 477, 478. expeditions beyond the borders of the Russian Colonies, which continued for many years." In 1805 the " Juno " and another vessel from North-west Coa«, the United States were at Sitka, and we hear of P' **^' six vessels, including the " Juno," as trading on the north-west coast. In 180G the Russian Ambassador Resenofif visited the Pribyloff Islands on the "Maria," and endeavoured to stop the wasteful slaughter of fur- 1802. 1803. 1806. 1806. Ho recommended the Emperor to " take a AIuU, p. 446. firmer hold of the country," as the traders in ships from Boston were undermining the trade with China. He reported that the " Bostonians " had armed AUtU, p. 4S1. the Kolosh. 23 AUsks, p. 454. Ibid., pp. 478, 479. 1807. 1808. 1809. 1810 Ibid., p. 461. Alaska, pp. 470, 480. Ibid , p. 467. Ibid., p. 470. 1811. 1812. 1814 Alaska, p. 480. Nortb-weal Coast, p. 329. Alaska, p. 507. Alaska, pp. 404, 405. In the same year the " Juno," with her cargo, was purchased by Baranoff. The "Eclipse" (Captain O'Cain) sailed for China with furs; but was lost on the way back. Rcsenoff, in 1807, sent the "Juno" to the Californian coast for provisions. The "Myrtle," an English ship (Captain Barber), was pui'chased by Baranoff. In 1808 the United States' vessel " Mercury " was fur-trading and hunting. Eour United States' traders are known to have been on this coast in 1808 and 1809. In 1810 the Russian sloop-of-war "Diana" visited Sitka. There were several United States' vessels in the port at the time. Shortly after the United States' vessels " En- terprise " and "O'Cain" arrived. The "Enter- prise " went to Canton with furs. Golovin, Commander of the "Diana," writes that at this time an American sailor and a Prussian skipper composed the Diplomatic Corps of the Russian- American Company." In 1810 and 1811 four foreign vessels were engaged in the sea-otter fishery, under Russian contracts. In 1811 the " Enterprise " returned from and went back to China with furs. The Ross Colony was founded in California to provide agricultural products for use on the north-west coast. Eive vessels engaged in trading and hunting, besides the four vessels under Russian contracts were seen on the coast of Southern Alaska in this year. In 1812 the United States' ship "Beaver" disposed of her cargo to Baranoff at Sitka, and was then sent to the Pribyloff Islands for fur- seal skins as payment. Between 1809 and 1812 Baranoff made six additional hunting contracts with United States' vessels. He received a proportion of the skins, which were chiefly sea-otters. Between 1812 and 1814 there was scarcely any trade, owing to the war between England and United States. In 1814 Captain Bennett (United States) sold two vessels, with cargoes to Baranoff, and took fur-seal skin ; from the Pribyloff Islands in pay- ment. He was afterwards wrecked on the Sand- wich Islands. This year Lozaref, sent by Russia, with two S4 ships, reached Sitka, hut quarrelled with Baranoff and returned. In 1815 the " Isahcl " reached Sitka with Dr. Sheffer on hoard. In 1816 the " Ruric " (Captain Kotzchue) touched at St. Lawrence Island and explored Kotzehuc Sound, nortli of Behring Strait. Two United States' vessels visited the Russian North-wett Coatt, Settlements this year. '"''■ In 1817 Kotzehue, on an exploring expedition to the North, only reached St. Lawrence Island. An expedition in two vessels under Hage- Ala»ka, p. 620. meister, sent hy Russia, reached Sitka this year. In 1818 Ilagemeister superseded Baranoff, ■ under instructions. Roquefcuil, a French officer, arrived at Sitka Ibid., p. 522, 62S. in the " Bordelais," a trading-vessel. He sailed for Prince of Wales Archipelago, hut had a conflict with natives and returned to Sitka. This year Roquefcuil notes meeting an United North.»eit Coait, States' and a British trading-vessel in Alaskan waters. In 1819 the United States' traders ohtained Alaska, p. 428. most of the trade, hartering witli the Kolosh fire-arms and rum for skins. They ohtained ahout 8,000 skins a-year. The Russians could not compete with them. The Russian twenty -year Charter was ahout to expire, and Golovinin was instructed to inquire as to its operations. Ilis Report was not favour- ahle. He writes : — 181S. 1816. 1817. 1818. 1819. "Three things are ■wanting in the organization of the ibid, p. 631. Company's colonies: a clearer definition of the various officers, a distinction of rank, and a regular uniform, so that foreigners visiting these ports may see something indicating the existence of posts and troops belonging to the Eussian sceptre — something resembling a regular garrison. At present they can come to no other conclusion than that these stations are but temporary fortificationa erected by hunters as a defence against savages." In 1820 four trading-vessels are known to have North-wett Coast, heen operating on the north-west coast. P- ^^''• The extent of Russian occupation at ahout the ibid., p. 522. date of the expiry of the first Charter can he shown by the Census taken in 1819 : — 1820. 25 • • Men. Women. Silkn, or New Archangel 198 11 Kadiak and adjoining ialanda , , 73 , , Island of Uokamok . . , , 2 Katmni , . . . , , * Sutkhumokoi , , 3 Vonkri-Bsciiskv Harbour • • 2 Fort Constnntiiie 17 Nikolai, Cook Inlet . . 11 Alexandrovsk, Cook Inlet 11 Koss Sitllenient, California ,, 27 Pribvloff Islands ,, 27 NusliUKak (the only Settlement on the continent north of tlic Aleu tian Islauda) • • • • 3 2 Total 378 13 Sec alio Adami to Rush, July 22, 1823, p. 446; American State I'aperi, Foreign Relations, F. O., p. 446; and alio Confi- dential Memorial inclosed in letter, Middleton to Adams, December 1 (13), 1823, p. 449, American State Papers, Foreign Relations, P.O. Susaian territorial claim in 1821. While tbo subjects of Russia, Spain, Great Britain, and tlie United States were doubtless making claims on the part of their respective Rulers from time to time, so uncertain were their claims and the merits of each that in 1"'T.8 (20th October), in the Convention between the United States and Great Britain, it was agreed that any "country that may bo claimed by either party on the north-west coast of America, westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open for the term of ten years from the date of the signature of the Convention, to the vessels, citizens, and subjects of the two Powers, it being well understood that this agreement is not to be construed to the prejudice of any claims which either of the two High Contracting Parties may have to any part of the said country, r-^r shall it be taken to affect the claims of any ■'■rv Power or State to any part of the said country, the only object of the High Contracting Parties in that respect being to prevent disputes and differences between themselves." Mr. Adams, Secretary of the United States, contended that even as late as 1823 Russian rights in the region under consideration " were confined to certain islands north of the 55th degree of latitude," and had " no existence in the continent of America." Writing (22nd July, 1823) to Mr. Middleton, Mr. Adams observed : — ElttSBia had no title to any portion of the North American Continent. American State Papers, Foreign Relations, toL t p. 4S6. " It does not appear that there ever has been a permanent Russian Settlement on tliis continent south of latitude 59°, that of New Archangel, cited by M. I'oletica, in latitude C7° 30', being upon an island. So far as prior discovery cau constitute a foundation of right, the papers [614] H 152904 26 which I have referred to prove that it belongs to the United States as far as 59° north, by the transfer to them of the rights of Spain. Tliere is, bowovor, no part of the globe where the mere fact of discovery could be held to give weaker claims than on the north-west coast. The great sinuosity, says Humboldt, formed by the coast between the 5oth and 60th parallels of latitude, embraces discoveries made by Gali, Bering, and Tchivikoff, Quadra, Cook, La Perouse, Malaspina, and Vancouver. No European nation has yet formed nn establisluuent upon the immense extent of coast from Cape Slendocino to the 59th degree of latitude. F.eyond that limit the Russian factories commence, most of which are scattered aud distant from each other like the factories established by the European nations for the last three centuries on the coast of Africa. Most of these little Russian Colonics communicate with each other only by sea, aud the new dominations of Russian-America or Ru.ssian possessions in tJie new continent must not lead us to believe that the coi»st of Bering Bay, the Peninsula of Ala.ska, or the country of the Ischugatscbi have become Russian ■provinces in the same sense given to the word wb"n speak iiig of the Spanish Provinces of Senora or New ISiscay." (lluuiboldt's "New Spain," vol. ii, Book 3, chap. 8, p. 400.) "In M. Poletica's letter of tlio L'Sth Febnian,-, 1S22, to me, be says that when the Eniperor Paul I gi'anted In the present American Company its first Chaiter in 1700, he gave it the exclusive 2wssessiun of the north-west coast of America, which belonged to Russia, from tiie 55th degree of north latitude to Bering Strait. " In bis letter ot tlie 2nd April, 1822, ho says lliat the Charter io the Russian-American Company in 1799 was merely conceding to them a part ot tbo sovereignty, or rather certain exc'itsive privilrijes of commerce. "Tliis is the most correct view of the SMbjcrt. The Emperor Paul granteil to the Russian-American f'iini])any certain exclusive privileges of conmiorcc — exclusive with reference to other Russian subjects ; but Russia liad never before asserted a right of sovereignly over any jiart-, of ilie American continent; and in 1700 the jieople of the United States had been at least for twelve yearb in the constant and uninterrupted enjoyment of a profitable trade with the natives of that very coast, of which llie Ckasc of the Emperor Paul coiiM not deiuive tliem." The Honourable Charlos Sumner, speaking on the Cession ot 1807, said : — " It socms that there were ^•ariol'3 snuill Comi)anie3, of j?,^ jjoc 177 which that at Kadiac was the iuost consideralle, all of 2nii Sc«8., 40ih which were finally fused into oni; large trailing Company, lugf'go' u A known as the l!u.9sian-Amcrican Company, wliich was 1100. organized in 1709 under a Charter from tlie Emperor Paul, with the power ot administration tbrougliout the whole ng.on, including the coasts and the islands. In this respect it was not uidiko the Kasl India Company *hioh hae played such a part in English history ; but it 27 may be more properly compared with the Hudson Bay Company, of which it was a Russian counterimrt. The Charter was for a tyrm of years, but it has been from time to time extended, and, as I understand, is now on the point of expiring. The powers of the Company are sentcntiously described by the ' Almanach de Gotha ' for 1807, where, under the head of Eussia, it says that ' to the present time liussian America has been the property of a Company.' " And, referring to as late a period as 1867, he remarked : — " It is evident that these Eussian Settlements, distributed through an immcnpo region and fm- from any civilized neighbourhood, have little in common with those of European nations elsewhere, unless we except those of Denmark, on the west coast of Greenland. Nearly all are on the coast or the islands. They are nothing but ' villages ' or ' factories ' under the protection of palisades. Sitka is an exception, due unquestionably to its selection as the head-fiup.rtera of the Government, and also to the eminent character of the Governors who have made it their home." ApprDdix I. Article XVIII, North American Review, Tol. XT, Quarterly Review, 1821-22, vol. xxvi, p. . Touching Russia's claims to exclusive juris- diction over more than certain islands in the Pacific Ocean on the American coast, ilr. Adams, moreover, in 1823 brought forward, with approval, articles which appeared in " The North American Review," published ui the United States, and in the " Quarterly Review," published in England. From the facts disclosed by these articles it appears that the Government of the United States took the grou^ -^ splaiucd by Mr. Adams, that " the right of d'hcovery, of occupancy, of uncontested posses "on," alleged by Eussia, were " all without founaation in fact," as late as the year 1823. From the earliest periods of M'bich any record exists down to the year 1821, there is no evidence that Russia either asserted or exercised any rights to the exclusion of otlier nations. During tlie whole of that period the shores of America and Asia from Behring Straits SDuthwards to Japan on tlio west and to the 55th degree of north latitude on the east being t)ie furthest extent to which the Russian Settlements had ever extciuled, and tlie ocean and seas lying between thos.>, -oasts, including the islands therein, were freely visited by tlie trading-vessels of all nations, including those sailing under the flags of Great Britain, United 28 'ic knowledge States, Spain, and France, witli of the Russian authorities. The only rights ever, in fact, oxerciseil by Russia or on her hehalf were the ordinary ten-i- torial rights connected with Sottlemo:its or annexations of territory consetiucnt upon such Settlements, and the only rights slic purported to deal with or confer were riglit> nnd privileges given to the Russian-American Company, as being Russian subjects, in preference over other Russian subjects. 28 a i*A^ Kent'i " Com- mentaricf," p. 28. Position taken by United States in 1862: Cuba. Wheaton, Elementa, % 187. Behring Sea is the common highway to the Arctic Ocean. It is Great Britain's highway to her possessions in the north \\k the Yukon River, of which the free navigation is guaranteed by Treaty, as well as the route for such communica- tion as may he held or attempted with the northern parts of the coasts of North America to the east of Alaska, and with the estuary of the great Mackenzie River. It will ho insisted hy Great Britain that Russia could not hy mere assertion— that is to say, a claim, and an attempt to exercise an alleged right — ac(piirc any exclusive jurisdiction over Behring Sea. It is suhmitted that the rights and interests of nations in the open sea are correctly stated hy Chancellor Kent as follows : — " The open sua is not capable of being possessed as private property ; the free use of the ocean for navigation and li.shing is comuion to all mankind, and the public jurists generally and explicitly deny that the main ocean can over be approiiriuted." The following position was correctly taken by the United States in 1862, and, it is presumed, will he adhered to hy that country to-day. In that year Spain pushed her claim to an extended jurisdiction around the Island of Cuba. Secretary Seward's response was : — " It cannot bo admitted, nor, inJeed, is Jlr. Tessara understood to claim, that the mere assertion of a Sovereign, by an act of tci/islalion, however solemn, can have the clFcct to establish and fix its external maritime jurisdic- tion Ho cannot, by a mere Docrco, extend the limit and (ix it at miles, because, if ho could, he coidd in tho same manner, .".nd upon motives of interest, ambition, and even upon caprice, fix it at 10, or 20, or 50 miles, without tho consent or acquiescence of other Towers which have a common right with himself in the freedom cf all the oceans. Sucli a pretension could never be successCully or rightfully maintained." The controversy between Grotius and Selden as to tlie right of appropriation by a nation of the sea beyond the immediate vicinity of the coast is thus reviewed by Wheaton :— "Tlii're are only two decisive reasons applicable to the question. Tho tirst is physical anil material, which would alone be sulFicient, but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy : — " 1. Thnse thiiig.s which are originally the common pro- perty of idl maakind can only become the exclusive pro- [GiA] H« 28b perty of a panicular imlividiml or society of men by means of possession. In onlor to establish the claim of a particular nation to a right of property in the sea, that nation must obtain anil keep poasession of it, wldch is impossible. " 2. In the second place, the sea is an element which belongs equally to all men, like the air. Xo nation, then, has the right to appropriate it, even though it nught be physically possibhi to do so. " It is thus demonstrated that the sea cannot become the Cf. Ortolan, exclusive property of any nation. And, consequently, the m».'^>'!^,^'i * ' use of the sea for these purposes remains open and com- pp. iso-lSC. moD to all mankind." Calvo recognizes the temptation which the proximity to the coast of "fish, oysters, and other shcll-fish " all'orils to nations to extend their sovereignty beyond the 3-mile limit. Yet, instead of permitting such an extension, espe- cially when sujiported by long use, he distinctly says : — " Si do paroille'} derosations aux principes nniverselle- Calvo, " Inter- ,. , , ,, ,. , national Law" ment reconnus ont lieu, cest queues sent cl,. lees par un m^j, gj % < 357^ intdret maritime de premier ordre, notamment I'exploita- tion de peches cotiires d'une nature cxceptionnelle, des bancs d'huitres ou autres coquilhigos ; il faut qu'elles se renferment thuis la liniito de I'objet special qui les a fait adopter ; et elles ont bescjia pour devonir obligatoires, d'eire sandionnies par des Cunventions expresses ct dcrites." Phillimore I, ^ 174— " The right of navigiUion, fishing, and the like upon the Pliillimorc-, " Inter- open sea, being jitra iiicrrv faeidtutis, rights which do not •"/■JT " ""' ' require a continuous exercise to maintain their validity, but ■which may or may not Ije exercised according to the free will and pleasure of those entitled to them, can neither be lost by non-user or prescribed against, nor acquired to the exclusion of others by having been immemorially exer- cised by one nation only. No presumption can arise that those who have not hitherto exercised suci rights have abandoned the intentivm of ever doing so." The gi'ounds upon which a claim by prescrip- Nature of Prescription. tion is supported affnrd a further illustration of this argument. Unlike adverse possession or limitation, pre- scription rests for its validity]on a presumed prior grant. In international law there is no room for such a presumption. In a note on the foregoing passage of Wheaton, Mr. Dana adds that — " The right of one nation to an exclusive jurisdiction over an open sea was, as stated in the text, vested solely on a kind of prescription. But, however long acquiesced in, such an appropiiation is inadmissiljle in the nature of things, and whatever may be the evidence of the time or nature of the use it is set aside as a bad usage, which no evidence can make legal. \ 9» Head B. — The Uhase of 1821, and the circumstances connected therewith lead- ing up to the Treaties of 1824 and 1825. Voyage, M. de Krusenstern, vol. i, p. 14, No. 384, p. 484. American State Papers, Foreign Relations, to), t. American State Papers, vol. v, pp. 438-443. Bancroft, Alaska, p. 528. " Tikhmenief," Ister. Obos, I, cited in note to Bancroft, p. 533. Pee also Bancroft, vol. xxxiii, p. 446; Rosenof's cotn- piuiDt in 18US. Ukase of Alexander, 1821. For Kegulations, see Appendix. Chapter II. Shortly before the date of the renewal of the Charter of the Russian-American Company in 1821, the aspect of affairs had considerably changed. The Company had long before fully succeeded in getting rid of their Russian rivals, but trading- vessels from England and from the United States frequented the coasts and everywhere competed with the Company. Goods were brought by these 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 Kiatcha 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 pppear in the complaints made by its ager.ai a'v this time, and the new claim of the right to ex:jlude foreigners from trade is embodied in the Ukase of 1821. The following is the translation of the Ukase : — "Edict of His Imperial Majesty, Autocrat of All the " liussias. " The Directing Senate niaketh known unto .ill men : Whereas, in an Edict of Ilis Imperial Jlajesty, issued to the Directing Senate on the 4th day of Seiitember, 1821, and signed by His Imperial Majesty's own hand, it is thus expressed : — " ' Obser\'ing from IJepon- 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 illicit and secret traffic, to oppression and impediments, and finding that the principal cause of these difficulties is tlie want of Eules establishing the boundaries tor navigation along these coasts, and tlie order of naval communication, as well in these places as on the whole of the eastern coast of Siberia ard 'he Kurile Islands, we have deemed it necessary to determine these communications by specific Kegulations, wliich are liereto attached. [614] I 30 '"In forwarding these Ite^nilationa to the Dirccting^ Sfinato, wo command that the same bo published for universal information, and that the proper measures be taken to carry them into t'xcculinn. (Countersigned) '"Count vt, CiCim:?, "' Minister of Finanets. "'It is therefore decreed by the Directing Senate that His Iniiicriid Majesty's Kdict bo published for the infor- mation of all men, and tliat tlie same be olieyed by all whom it may concern.' " Tlic original is signed by the Directing Senate. " On the original is \nitten in the handwriting of Ilia Imperial Majesty, thus : " Be it accordingly, " Alexandkh. "'Section 1. Tlic pursuits of commcrco, whaUng, and fishery, and of all otlicr industry, on all islands, ports, and gulfs, including tlio ■^•liole of the north-west coast of America, beginning from Hchring Straits to th(! ijlst of novtliern hitilutlc ; also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurilo Islands, from Bcbring Straits to the south capu of the Island of Uruii, viz., to the 45° .OO' nortlicni latitude, is cscluoively granted to Pussian suliject.s. " ' Sec. 2. It is therefore prohiljited 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. The transgressor's vessel is subject to confiscation, along with the whole cargo.'" By this Ukase Russia first attempted to assert, Bincrofl, 531, as against other nations, exclusive jurisdiction "P" "*' ^ ^' or rights over the shores of America and Asia bovmding the Pacific Ocean, certain islands therein, and over a portion of the Pacific Ocean including what is now known as Bchring Sea. As to the motive and purpose of this Ukase the letter of M. de Poletica, hereinafter set out, dated the 28th February, 1802, 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 55° north latitude. With the exception of Indians inhabiting the coasts, who hunted seals in their canoes up to this time, and, in fact, up to the year 1867, seals were killed and taken on the rookeries only, i.e., the " rocks and recesses," as Mr. Sumner terms them. The fur trade which Russia desired to 31 control, was, however, interfered with l)y the vifjorous c'l; 1 1 petition of foreij^ners. That Russia's aim was to acquire an enormous North American Territory appears hy the con- struction put hy ^I. f.e Poletica on the Ukase of Paul, and the grant to the Russian- American Company, as a territorial concession down to the 55th degree north, and his justification of its extension to tlio 51st degree north latitude. lie proceeds to defend the policy of exclusion contained in the Ukase of 1821 hy explaining that, as Russian possessions extend from Behring Strait to the Slat degree north latitude on t!ie north- west coast of America, and on the opposite side of Asia and the islands adjacent to tiic 45th degree, the sea within those limits, viz., that part of the Pacific Ocean was a close sea, over which Russia could exercise exclusive jurisdiction, but he goes on to say that Russia preferred only asserting its essential right without "taking any advantage of localities." Their object he declares to be the prevention of illicit trade on the part of foreigners, and the furnishing of arms and ammunition to the natives in " the Russian possessions in America " to the injury of the Russian- American Company, and exciting the natives to resist the authorities. Baron Nicolai to The object of the Ukase, so far as the t'l^the «mo''effec7' attempted exclusion of foreigners from 100 miles of the coasts, from 51° north latitude to Behring Strait is concerned, is further explained by Baron de Nicolai in his note to Lord Londonderry, the 31st October (12th November), 1821. He insists that the operations of " smugglers " and " adventurers " on the coast " have for their object not only a fraudulent commerce in furs and other articles which are exclusively reserved to the Russian-American Company, but it appears that they often betray a hostile tendency." " It was," he continues, " therefore necessary to take severe measures against these intrigues and to protect the Company against the hurtful prejudices that resulted, and it mas irith that end in view that the annexed Regulation has been published." And again. "The Government, however, limited itself, as can be seen by the newly- published Regulation, to forbidding all foreign vessels not only to land on tUo Settlements of the American Company and on the peninsula of Eamtchatka and the coasts of the Okhotsk Sea, October 31 (November 12), 1821. 82 but also to sail along the coast of these posses- sions and, as a rule, to approach thtoi within 100 Italian miles," The justiBcation for the Ukase, and the Regu- lations made thereunder, is stated in the face of the Regulations annexed to Baron de Nicolai's letter. " Considering that the principal cause of these losses is the absence of positive Regulations tending to fix the limits of navigation along these coasts." That the object of the Ukase was to extend territorial jurisdiction over the north-west coast and islands and to prohibit the trade of foreigners rather than to protect any possible fishery of that date or later on is further indicated by 70 of these Regulations. This R^ulation reads : — " 70. A .shi|) of war, after visiting, not only ttio Com- pany '.s Settlements, hut iilso, and more parlicuhnly, the channels wliicli foreign merchant-vessels are likely to frequent for the purpose of illicit trading vrilh the natives, will return to winter wherever tlie Government orders it." So Rule 20 of the " Rules established for tlie limits of navigation and order of communication along the coast of Eastern Siberia, the north- west coast of America and the Aleutian, Kurilo, and other islands," approved by the Emperor on the ith September, 1821,* shows that trading vessels wore alone in view when the Ukaso of 1821 was issued, as it gives a form of information to be given l)y every foreign sliip boarded in the harbour or in the roads. This form refers only to cargo vessels. The object of the Ukase appears to have been most explicitly stated in tlic following pas.suge, taken from a Memorandum of the Russian Government : — " Tlie Cabinet of Itussia has taken into mature con- Confidential Mcmo- sideralion the Confidential Menioraudiini forwanlcd to randimi inclosed in them by tlie Duke of Wellington on the 17th October last, vVei|ii,i;toii to relative to the measures adopt<;d by Ilis Majesty the O. Canning, Emjicror, under date of the 4th (16th) September, 1821, J^g^'j'"'""" ^^' for defining tlie extent of the I'ussian possessions on the north-west const of America, and for fgiljidding foreign vessels to apimiacli his possessions witliin a di.-,tanco of 100 Italian miles. " .... It was, on the contrary, hecuuso she regarded those riglits of .sovereignly as legitimate, and because * Sfe Sir C. Bagot to the .Marquis of Londonderry, Novum bor 17, I8'J1 ( 'ppiuiit). 3S See al«o Appendix, (.'omit Nesselrode to Mr. Miildlfton, August 1, 1822. imperious considerations involving the very existence of the commerce which she carries on in the latitudes of the north-west coast of America compelled her to establish a system of precautions which became indispensable that she caused the Ukase of the 4th (IGlh) September, 1821, to be issued. ". , . . Consequently, the Emperor lias cliarged his Cabinet to declare to the Duke of Wellington (such declaration not to prejudice his rights in any way if it be not accepted) tliat he is ready to fix, by means of friendly negotiation, and on the basis of mutual accommodation, the dcgi-ees of latitude and longitude which the two Powers shall regard as tlie utmost limit of their possessions and of their establiahments on the nortli-wcst coast of America. " His Imperial Majesty is ])k'ased to believe that this n"joliation can be completed without dilliculty to the mutual satisfaction of the two States ; and the Cabinet of Kussia can from this monuMit assure the Duke of Wellington that the measures of precaution and superin- tendence which will then be taken on the Hussian part of the coast of America will be entirely in conformity with the rights derived from sovereignty, and with the established customs of nations, and that there will be no possibility of legitiuutte cause of complaint against them." British protests against Ukase of 1821. The protest of i lie nritish GoTeru- nieut. I Appendix. Upon roceiving communication of the Ukase, the 13ritish and United States' Governments immediately objected both to the extension of the territorial claim and to the assertion of maritime jurisdiction. The Ukase \vas brought to the notice of Lord .Londonderry, Secretary of State for Foreign Affairs for Great Britain, the 12th November, 1821, by Baron dc Nicolai, then Russian Charge d'Affaircs, as connected with the territorial rights '.f the Russian Crown on the north-west coast of America, and with the commerce and navigation of the Emperor's subjects in the seas adjacent thereto. On the 18th January, 1822, four months after the issue of the Ukase, Lord Londonderry, then British Foreign Secretary, wrote in the following terms to Count Lieven, the Russian Ambassador in London : — " In the moanlime, ti[ion tlip subject of this Ukase generally, and ("iucciully upon the two main principles of claim laid ilowu ilierein, viz., an cw/w.sur sovereignty alleged to belong to llussia over the territories therein described, aa also the rxdimvt right of nariijating and trading within the limits therein set forth. His Ibitannic Maji'.'^ty must be understood as herehg reserving nil his rights, not being prepared to admit tliat the intercourse LOU] K 84 n which is allowed on tho face of tins instnimcnt to have hitherto subsisted on those eonsts and in those aeaa can bo deemed to be illicit; or /lad the ships 0/ friendly Powers, even supposing an unquiilified sovereignty was jiroved to opportaiu to the Imperial Crown, in these vast and very imperfectly occupied territories, could, hj the acknowledi)ed Itiio of ludion-s, he cj'elitdal from nax'- gating within the distitnce of 100 IlaUati miles, as therein laid down from the coast, the exclusive dominion of which is assumed (but as His Jlajcsty'a Clovernmeiit conceive in error) to belong to llis Imperial Majesty the Emperor of All the llussias." .J diction. Mr. G. Canning wrote to the Duke of Welling- Se« Appendix. ton on tho 27th Septemher, 1822. He also dealt in this despatch with the claim in the Ukase for the extension of territorial rights over adjacent seas to the distance — " unpvecrdented distance," he terms it — of 100 miles from the coast, and of closing "a hitherto unohstnictcd passage." In this despatch Mr. Canning says : — '■ I have, indeed, tho satisfaction to believe, from a con- Abandonment of claim to extraordinary juris, fercnce wliicli I have had with Count Lieven on this matter, that upon these two points — the attempt to shut up the passage altogether, and tho claim of exclusive dominion to so enormous a distance from the coast — the Russian Government are prepared entirely to waive their pretensions. The only effort that has been made to justify the latter claim was by reference to an Article in the Treaty of Utrecht, which assigns 30 leagues from the coast as the distance of prohibition. But to this argument it is sutHcient to answer that the assumption of such a space was, in the instance quoted, by stipulation in a Treaty, and one to which, therefore, the party to be affected by it had (whether wisely or not) given its deliberate consent No inference could be drawn from that trans- action in favour of a claim by authority against all the world. " I have little doubt, therefore, but that the public noti- fication of the claim to consider the portions of the ocean included between the adjoining coasts of America and the EuEsian Empire as a mare '•latisum, and to extend the exclusive territorial jurisdiction of Russia to 100 Italian miles from the coast, will be publicly recalled ; and I have the King's commands to instruct your Grace further to require of the Russian Minister (on the ground of the facts and reasonings furnished in this despatch and its in- closures) that such a portion of territory alone shall be defined as l)elonging to Russia as shall not interfere with the rights and actual possessions of Ilis Majesty's subjects in North America." On the 17th October in the same year, the Duke of Wellington, Ambassador at Veroaa, 85 addressed to Count Nesselrode a note containing the following words : — Fee Appendix. " Objecting, as we do, to tliis claim of exclusive sovereignty on the part of itussia, I mif,'ht save myself the trouble of discussing the particular mode of its exercise as set forth iu this Ukase. But we object to the sovereignty proposed to be exercised under this Ukase not less than we do to the claim of it. We. cannot admit the right of any Power jwsessiw) the soixreigntij of a counlri) to cjxhule the vessels of others from the seas on its coasts to the distanee of 100 Italian miles," Again, on the 28th November, 1822, the Duke of Wellington addressed a note to Count Lieven, containing the following words : — See Appendix. " The second ground on wliioh we object to the Ukase is ' that Ili.s Imperial Majesty thereby excludes from a certain considerable extent of the open sea vessels of other nations. We contend that the assumption of this power is contrary to the law of nations, and we cannot found a negotiation upon a paper in whicli it is again broadly asserted. We contend that no Power whatever can exclude another from the use of the open .sea j a Power can exclude itself from the navigation of a certain const, sea, &o., by its own act or engagement, but it cannot by right bo excliuled by another. This we consider as the law of nations, and we cannot negotiate upon a paper in wliich a riglit is asserted inconsistent with this principle. And on the 15th Januaiy, 182-4, Mr. G. Canning writes Sir C. Bagot : — See Appendix. " . . . . The ipiestious at issue between Great Britain and Russia are short and simple. The Russian Ukase contains two olijectionable pretensions : First, an extra- vagant assumption of maritime supremacy ; secondly, an unwarranted claim of territorial dominions. " As to the first, the disavowal of Russia is in substance all that we could desire. Nothing remains for negotiation on that head but to clothe that disavowal in precise and satisfactory terms. We would much rather that those terms should be suggested by Russia herself than have the air of pretending to dictate them ; you will tlierefore request Count Nesselrode to furiiisli you with his notion of such declaration on this point as may be satisfactory to your Government. That declaration may be made the preamble of the convention of limits And again, in a despatch, 24th July, 1824, to Sir C. Bagot, Mr. G. Canning says : — ■See Appendix. " . . . . Your Excellency will observe tluit there are but two points which ha' e struck Count Lieven as susceptible of any question : the first, the assumption of the base of the mountains, instead of the summit, as the line of boundary ; the second, the extension of the right of the 80' navigation of tho Paci6c to tho fien beyond Behring Straits. « • • • " As to the second point, it is, perhaps, as Count Lieven remarks, now. liut it is to be remarked in return that the circumstances imder which tliis additional security is required will be new also. " Hy tlic territorial deinnrcation agreed to in this • projet,' liussia will become possessed in acknowledged sovercifjnly of both sides of Hehring Straits. " The Power which would think of making tlie Pacific a mare cluusiim may not unnaturally be supposed capable of a disposition to apply tlie same character to a strait compreliended between two shores, of which it becomes the undisputed owuer. Hut tlie shutting up of Behring Straits, or the power to slmt them up hereafter, would be a thing not t.. be tolerated by Kngland. "Nor could we submit to be excluded, eitlier positively or constructively, from a .sea in which the skill and science of our seamen has been and is still employed in enterprises interesting not to this country alone, but to the whole civilized world. " Tiie protection given by the Convention to the American coasts of eacli Power may (if it is thought necessary) be extended in terms to the coasts of the Bussian Asiatic territory ; but, in some way or other, if not in tho form now prescribed, tlie free navigation of Behring Straits and of tho seas beyond L'lem must be secured to us." Mr. George Canning in a despatch to Mr. For despatch ia Stratford Canning, when the latter was named *"""' "* Appendix. Plenipotentiary to negotiate the Treaty of 1825, under date the 8th December, 1824), after giving a summary of the negotiations up to that date, goes on to say : — " It is comparatively indilTerent to us whether we hasten or postpone all questions respecting the limits ol territorial possession on the continent of America, but the preten- sions of the Russian 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 remonstrance against it. " You will, tlierefore, take care, in tho first instance, to repress any attempt to give this change to the character of the negotiation, and will declare, without reserve, that the point to which alone the solicitude of the British Government and llie jealousy of the British nation attach any great importance is the doing away (in a manner as little disagreeable to Russia as possible) of the effect of the Ukase ol 1821, * * * * " The right of the subjects of His Majesty to navigate freely in the Pacific cannot be held as a matter of indul- gence from any Power. Having once been publicly questioned, it must be publicly acknowledged. " We do not desire that any distinct reference should 37 be made to tho Ukaso of 1821, l)ut we Jo feci it necessary thut the statement of our right shoiihl lie clear ami posi- tive, ^nil that it ahijuld stand forth in tho Convention in the place whicli properly belongs to it as a ]]liiiii and sub- stantive stipulation, and not bo brouyli' in as an incidental consequence of other arrangements -o which we attach comparatively little importance. ' This stipulation stands in the grant of tho Convention concluded between raiasia and tho United States of Am'jrica, and wo see no reason why, upon similar claims, vve sliould not obtain exactly the like satisfaction. ' For reasons of the same nature, we cannot consent that the liberty of navigation through Ikring Straits should be stated in the Treaty as a boon froui Itussia. "The tendency of such a statement would be to give countenance to those claims of exclusive jurisdiction against which we, on our own behalf and on behalf of the whole civilized world, protest. « * « 4> " It will, of course, strike tho Kussian Plenipotentiaries that, by the adoption of the Americ; Article respecting navigation, &c., tho provision for an i vclusive fishery of 2 leagues from the coasts of our respective possessions falls to tho ground. " But the omission is, in truth, inmiaterial. "The law of nations assigns the exclusive sovereignty of 1 leogue to each Power off its own coasts, without any specified stipulation ; and though .Sir Charles liagot was authorized to sign the Convention with the specific stipu- lation of 2 leagues, in ignorance ot what had been decided in tho American Convention at the time, yet, after that Convention has been some mouths Ijffore the world, and after the opportunity of reconsideration has been forced upon US by the act of Russia herself, we cannot now consent, in negotiating i/c jwro, to a stipulation which, while it is absolutely unimportant to any practical good, would appear to establish a contract between the United States and us to our disadvantage," The Treaty (Grcit These negotiations resulted in a Convention FettrT'ajTIw: '«'ith Great Britain, signed on the 18th February, 1825, hereinafter referred to. United States' Protest against Ukase of 1821. On tho 30th January (11th February), 1822, M. Pierre de Poletica, the Envoy Extraordinary and Minister Plenipotentiary of the Russian Emperor, transmits the Edict to Mr. Adams, Secretary of State for the United States. On the 25th February. 1822, Mr. Adams wrote to M. Poletica : — "DepartmerU of State, Washington, »Sit, " Fibruary 25, 1822. "I have the honour of receiving your note of the nth instant, inclosing a printed copy of the Ecgulations adopted by the Kussian-i^ericon Company, and sanc- [614] L S8 tioiiti^ ipy Hia Imperial MKJBsty, relating to the commerce of friro- -v.^a m lue "<..' rs bo. ;ic'.inj; on the esUiblislnneuts ■ til it C'unpnnv uj'OU the iiorth-wost coasts of America. '■ 1 u;;. t.vcn the jki. To e.'?cluJe the vessels of our c'Hzons K...I11 ihd 'ihori-, i«). .'m1 the onUiiary distance to wi.jcii tl e te.Titi.inal jurL'.dit'.ion extends, baa excited still greater surprise. "This Orihnan. u i.ffi;"!l.i so deeply the right of Oie TTnited H'..d^s and of their citiirr;no, tliat I am instructed to inquire v.i'.ether you are autliorized to give explanations of the grounds of right, unuu principles generally recognized by tlie laws and usages of nation.^, which can warrant the claims and Regulations ccitained in it. " I iivv'., occ. (Signed) "John Qctncy Adams." Both tlio Edict and the protest apply to tho waters frca Bcbring Strait southward as far as the 51st d. "rce of latitude on the coast of America. On the 281h of the same month tho Russian Russian defence of Ukase. Representative replied at length, defending the ,.,.,,. 1 c !• „ , M. dp Polctlc.i to territonal clann on grounds ot discovery, iu'st m,, j q_ Ajan,,, oeeunation, and undisturbed possession, ;ind l''i>r"«ry 28, 1822, . . I'll •! I riited Stated' explaining tlio motive " whicli determined the I'aiors rolatiii!» to Imperial Government to proliibit foreign vessels j!''"''"!? 8i-a ' 1 o liilicTies, p. 45. from approaching tho nortli-Avest coast of America belonging to Russia, within the distance of at least 100 Italian miles." rurther («i he observed : — " I ought, in the last place, to request you to consider, iknsf baieil on Sir, that the Ri' -sian possessions in the Pacific Ocean '■^■"'■'uic nf mar* extend, on the north-west coast of America, from Behring Strait to tho Cist degree of north latitude, and on the opposite side of Asia and tho islands adjacent from llie game i^trait to the 4.'ith degree ; the e.\tetit of sea of v.hl..!i these posse.s.sions furm the limits com(ircheiid3 all th(^ conditions which are ordinarily attached to shut Hc.'..^ ("mers fermdes"), and the Russian Government might, consequently, judge itself authorized to exercise upon yoti, tliat, in every case where the American Govovument .sli..ll judge it iieces.sary to make explanations to that of tlie Emperor, the President of the United States may rest assured that these explana- tions will always be attended to by the I'hniieror, my august Sovereign, with the most friendly, and conse(piently, the Jnost conciliatory dispositions." 40 On the 22nd July, 1823, Mr. Adams wrote to Mr. Middleton as follows : — " From the teiiour of the Ukase, the pretentions of the For letter in full. Imperial Government extend to an excUisive territorial ""' ' P''^"' '*' jurisdiction from the 45tli degree of north latitude, on the Asiatic coast, to tlio latitude of 51 north on the western coast of the American Continent ; and they assume the right of interdicting the naciyation and the lishery of all other nations to the extent of 100 miles from the whole of that coast. " The United States can admit no imit of these claims. Their right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times, after the Peace of ITS.'i, throughout the whole extent of the Southern Ocean, subject oidy tu the ordinary excepti.ms and exclusions of the territorial jurisdictions, which, so far as Russian rights are concerned, are confined to certain isla7uls north of the 55th degree of latitude, and have no existence on the Continent of America. " The conespondence between M. Poletica ami this Department contained no discussion of the principles or of the facts upon whicli he attempted the justification of the Imperial Ukase. This was purposely avoided on our part, under the expectation that th; lMi]>eriai Government could not fail, \ipon a review of the measure, to revoke it altogether. It did, however, excite much public animad- version in this country, a^i the Ukase itself had already done in England. I inches 3 herewith the "North American Review" for October 1822, No. 37, which contains an article (p. 370) written by a person fully master (jf the subject ; and for the view of it taken in England I refer you to the 52nd numbrr of the " Quarterly Keview," the article upon Lieutenant Kotzebue'a voyages. From the article in the " North American Review " it will be seen that the rights of discovery, of occupancy, and of uncon- tested possession, alleged by M. Poletica, are all without foundation in fad." Mr. Middleton, the United States' Minister at For brief in full, St. Petersburg, writing to the Secretary of State "^ Appendix, for the United States, on (ho 1st December, 1823, inclosed a brief which thus dealt with the claim (which is properly regarded by him as an attempt to extend territorial jurisdiction upon the theory of a shut sea and having no other basis) : — " The extension (jf territorial rights to the distance of Amerioan Siaii' lOp miles from the coasts upon two ojiposite <>ontinent3, BXtTo'nf""'f" and the prohibition of approaching to the same distance p. 4S2. from these coatits, or those of all the intervening islands, are iimovations in the law of nation.s, and nuasurea unexampled. It must thus bo imagined that this proliibi- tion, Ijearing the pains of euofiscation, upplies to a long 41 liiu; or coasts, with tlii; iiiti^riiicJiiite islanils, situeited in vast seas, wliorc tlio uavigi .tioii is subject to imiiiincrable ami u:ikiio\vii JiflioultiRS, and wlicru the chief cmijl'ivmeiit, which is the whalo fishery, cannot be compatilile '.vith a regulated and w(dl-dctorrained eom-se. "71ie right cannot be denied of shutting a port, ;i sea, or even an entire country, against foreign commerce in some particular cases. But tlie exercise of such a right, unless in the case of a colonial system already established, or for some otlier spet:ial object, would be exposed to an unfavourabli! interpietation, as being contrary to the liberal spirit of modern times, wherein we look for the bonds of amity and of reciprocal commerce anKjng all nations being more closely eomouted. "l'niv(asal usage, wldch lias obtained the force of law, has ostaljlislied for all the coasts an accessory limit of a moderate distance, which is sufficient for the security of the country, and for tlic convenience of its inliabitants, but which lays no restraint upon the universal rights of nations, nor upon tiie freedom of commerce and of naviga- tion." (Vattel, 15.1., (Jliapter 2,'}, section 2S'J.) At the fourth Conference which preceded tlie signature of the Treaty of the 5th (17ih) April, 1821, :\Ir. Middletou, the United States' Repre- sentative, submitted to Count Nesselrode the following paper : — " (Translation.) " Tlie dominion cannot be acquired but by a real occupation and po.sses3ion, and an intention (' animus ') to establish it is by no means sulliciont. " Jfow, it is clear, aecorduig to tlie fact.', estaldi.shed, that neither Eussia nor any other luiropean Tower has the riglit of doinimon upon tlio Continent of America between the COth and fiflth degrees of norlh latitude. " Still less has she the dominion of tlie adjacent maritime toiTitory, or of the sea which washes tliese coasts, a dominion wliieh is only accessory to the territorial dominion. "Therefore slic has not the riglit of exclusion or of adniis.»ion on these coasts, nor in these seas, wliieb arc free seas. " The right of navigating all the tree seas belongs, by natural law, to every independent nation, and oven constitutes an essential part of this independence. ••The United States have exercised navigation ;a the seas, and commerce upon the coasts above mentioned, from the time of their independence; and ihey have a perfect right to tliis navigation and to this commerce, and they i-an only be deprived of it by theii' own act ir bv a Convention." Ukase, 1821, abandoned. In flic course of the negoiiatiou hot) i with the United States and with Great Hrilain the cxocu- [«H] At 42 tion of the Ukase was suspended. Mr. Middloton (lOtli September, 1823), writing to Mr. Adams, said : — " Upon Sir Clinrles (Tlagot) oxpressing his wisli t(i bo ii;fc)iiiu!(l respecting the actual stiito of the north-west qu(!stiiin l)et\veen the United .States and Kussia so far as it niijilil lie known to me, I saw no olijection to making a coulidculial communication to him of tlie not(^ of Count Nesseh'ode, dated the 1st August, 1822, by which, in fact, staying tlic execution of the Ukase above mentioned, Russia lias virtually abfndonod the pretension therein advanced." See as to suspensioB »f Ukase and restriction to one marine league; Count Nesielrode to Count LieTen, June 26, Ib23, Appendix. The following extract from a despatcli from For despatch, see Count Nosselrode to Count Licven, dated tlic ^^ 26th June, 1823, shows liow complete the suspension was : — " Tliat tlie Connnandcrs of our sliips of war must confine tlieir surveillance as nearly as po!iKil)le to the mainland i.e., over an extent of sea within range of cannon-sliot from the shore ; that they must not extend that surveillance beyond the .ipliero where the American Compiiiiy lias effectually cxercisc^d its lights of liunting and fisliiiig sinc(,' tlie (bile of its creation, as well as since the renewal of its privileges in 1701), and that, as to the islands mi which are to be found colonies or settlements of tlic. Company, tliey are all indi.slinctively comprised in this general rule. " . . . , Your f>xcellency will observe tliat these new instru ?lioiis — which, as a matter of fact, are to suspend provisionally the effect of the Imperial Ukase of the 4th .S('ptcmber, 1821 — were sent from St. Petersbnrgh only in AuL'Ust of I.ast year." ■VYriliiig to :Mr. S. Canning in 182 1 (^tli Decern- hei), I lie llight IIotiouraljlcG. Canning remarks : — " 'i'h.it tliis Ukase is not acted upon, and tbat instruc- tions liave long ago been sent by the l.'ussian Oovcnimcnt to llieir ciiiizers in the I'acilic to suspend the eseculion of its provisions is true." Tlie result of these negotiations between the United States and Russia was the Convention of the 17th April, 1824, which put an end to any further pretension on the ])art of Russia to restrict navigation or lishing in I'.ehring 8ea, so far as American citizens were concerned. The Treat V is as follows: — As to suspension of Ukase, see Lyall to Cannitii;, ConvnpbMn to Lynil, November 1833, Appendix. Tlic Treaty (Kussia and tlio United States). For text of Treaty, see Appendix. April 17, 1824. "AETICLK I. "It is agreed that in any part of tbi! (!roat Oce.an, commonly ciilled the I'acilic Ocpiiii ni Soiitli Sea, the 48 respective citizens or su'ijects of the Hiyli Coulracting Powers shall be ueitliur distuiljcd nor restrained, either in njivifjation or in fisliing, or in (ho jiowor of resorting to tho COiisls upon point.) wiiicli may not alreiiily hiivu been occu- pied for the purpose of trading with tlio nutivos, suving always tlie restrictions and conditions determined liy tliu following Articles. "AKTICLE II. "With a view of preventing the riglils of navigation and of fishing exercised upon the Groat Ocean by tho citizen.'! and subjects of tlio High Contracting I'uwers from becoming tho jiretext for an illicit trade, it is agreed that the citizens of the United States shall not i-esort to any point where there is a IJussian Establishnnnit without tlio permi.ssion of the Governor or Commander ; and that, reciprocally, tlie sulijecta of Russia shall not resort, witli- out permission, to any Kstablishment of the United States upon the north-west coast. "AKTICLE III. " It is moreover agreed that, hereafter, tliere shall not be formed by the citizens of the Uuited States, or under the authority of the said Stiites, any Establishment u]jon the north-west coast of America, nor in any of the island.s adjacent, to the north of 54* 40' of north latitude ; anil that, in the same manner, there shall be; none formed Ijy liussian subjects, or under the authority of Itussia, south of the same parallel. " ARTICLE IV. " It is, nevertheless, understood, that during a term of ten years, counting from the signature of the present Convention, the ships of both Towers, or which lielou'; to tlii.'ir citizens or subjects res]iectively, may reciprocally freipient, without any hindrance whatever, the interior seas, gulfs, harbours, and creeks upon the coa.st nienlionej in the preceding Article, for the purpose of lishing and trading with the natives of the country. " AKTICLE V. " All spirituous liquors, lire-arms, other aims, powder, and nundtions of war of every kind are always excepted from this same connnercc permitted by the preceiliufc Article; and the two I'owers engage, reciprocally, neither to sell nor snlVer them to be .sold to the natives by (heir respective citizens and subjects, nor by ;iny person who may be under theii- authority. It is likewise stipulated tliat this restriction .shall never all'ord a iirelext, nor bo advanced in any case to authorize either search or ileten- tion of tho vessels, seizure of the merchandize, or, in line, any measures of constraint whatever towards the mer- IMAGE EVALUATION TEST TARGET (MT-3) // 1.0 I.I mil 12.5 ■1° 1^ u 1^ 2.2 1.8 1.25 il.4 ii.6 V] ,^^ 7 % ,^^ y /^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4503 iV ,v ^^ \ iS^ \ o^ €P. % 6> \ «• 44 art of the island called Prince of Wales' Island, which fioint lies in tho paniUel of 54° 40' north latitude, and between the mist and tho 133r('. ilegree of west longitude (meridian of Greenwich), the said line shall ascend to tho north along tho channel called Portland Chinincl, as far as tho point of tho continent whore it strikes the OCtli degree of north latitude ; from this last - mentioned ixjint, tho lino of demarcation shall follow the pummit of tho mountains situated parullcl to the coast, as far as the point of inter- .«8ction of the 14l8t degree of west longitude (of tho same 44* meridian) ; and, finally, from the said point of intersection and the said incridian-linc of the 141st degree, in its pro- longation as far as the Frozen Oceiin, shall form the limit between the liiissinn and liritish i>oasessions on the conti- nent of America to the iiorth-weat. " IV. With reference to the line of demarcation laid down in the pi-cceding Article, it is understood — " First. That the island called I'rince of Wales' Island shall belong wholly to Russia. " Secondly. That wherever the summit of the mountain wliich extend in ii direction pandlel to the coast, from the 56th degree of north latitude to the point of intersection of the 14l3t degree oj west longitude, shall prove to be at the distiince of more than 10 marine leagues from the ocean, the lin>it between the lSriti.sh possessions and the line of ciia.st svhich is to lielong to liussia, as above mentioned, shall \>c formed by a line parallel to the windings of the coast, and which sliall never u.Nceed the distonco of 10 marine leagues tlierefrom. " V. It is moreover agreed, that no establishment shall be fortned by either of the two parties within the limits assigned by the tv/o preceding Articles to the possession of the other; coiise([uently, Hritish subjects sliall not fonu any establishment either ujion the coist or upon the border of the continent comprised within the limits of the Russian possessions, as ilesignated in the two preceding Articles ; and, in like manner, no establishment shall be formed by Russian subjects l>eyond the said limits. " VI. It is iMiderstood that tlio subjects of His Britannic Majesty, from whatever (piarter they may arrive, whether from the ocean or fnrai the interior of the continent, shall for ever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers and streams wliich, in their course towards the Pacific Oceon, moy cross the line of demarcation upon the line of coast described in Article III of the present Convention. " VII. It is also understootl that, for the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging to their res|xictivo subjects, shall mutually Ijo at liberty to fretiuent, without any hindrance wiiatever, all the inland seius, the gulfs, havens, and creeks on the coast mentioned in Article III, for the purposes of fishing and of trading with the natives." "AUTICLK VIII. " The i)ort of Sitka, or Xovo Archaugelsk, sliall be open to tlio commerce and vessels of British .sub ject.M for the iimce of ten years from the date of the exchange of the ratifications of the piesent Convention. In the evoiit of an e.\teiisioii of this term of ten yeara Ijeing granted to any other Power, the like extension shall be granted also to Great Britain. [611] u* 45 "AllTICLE IX. " Tlio aliove-mnutioiiuil liberty of coiiinifrce slmll not apply <,o tliu tiiulu in spiiituuuH linf ratilied, and the ratifications shall be exchanged at Ixindon, within tho space of six weeks, or sooner if possible. " In witness wliereof the rcsi>ective Plenipotentiaries have signed tlie same, and have affixed thereto the seal of their arms. " Done at St. Petershurgh the ICtli (28th) day of February, in tluv year of our Lord One thousand eight hundred and twcmty-tive. (I,..S.) " STn.MFOItl) C.vxxixo. (L.S.) " The Count Xksselrodk. (LS.) " PiKitiik: UK I'ouricv." See Appendii. Mr. Stratford Canning, in his despatch of the 1st March, 1825, inclosing the Convention as signed, says : — " With respect to liering Straits, I am happy to have it in my power to assure you, on the joint authority of the Kussiau Plenipotentiaries, that the Emperor of All the Kussias has no intention whatever of maintaining any exclusivi! claim to the navigaviou of those straits, or of the seas to the north of them." [014] H 46 Mr. Cnnniri;;. writing to tlin lliglit Ilonourablo G. Canning, iinl (15t,h) April, 1825, said:— "... Witli mapoct tn tlio right or (Isliing, no cxplaua- 8m App«ii>lix. tioii wlintcvcr took ]>laco lutwi'i'ii tlio I'lenipotciitiiirios ami iiiy.scif in the course of our iioyotifition.i. As no objection wan Rtarted by thum to tiio Article wliich I oflori'cl in obodienco to your instruclion.s, I thou^iit it inniivisnbic to mi80 ii discu.ssicn on the (piustion, and tho di.stancc from the const nt which Uu: ri^jlil of fi-shiiii; is to be exercised in coniinon passed without »]iccificiition, and conaeiincntly rests on the law of nationa as generally received. "Conceiving, however, at u later period, Ihal you might pos.silily w isli to declare tlie law of nations thereon jointly with the Court of Ilussia in souie uatensiblo shape, I broached the matter anew to Count Kesselnxlc, and BURijestod that he should authorize Count Lioven, on your invitation, to exchange notes with you dechimlory of the law as (ixing the di.stance at 1 murine league from the shore. (^ount Xcsselrode replied that he shoidd feel embarrassed in submitting this suggestion to the Knipcror jnst at the moment when the ratifications of the Conven- tion were on the jNiint of being dispatched to Loudon, and h« seemed exceedingly desirous that nothing should happen to rotanl the uccompli.'iliment of tliat essential formality. lie assured me at the same time that his Oovernmcnl woe'd bo content, in executing tho Conven- tion, to abide by the recognized law of nations, ai:d that if any question should hei-eaftcr bo raised upon tho su. jcct, ho should not refuse to join in making the suggestv-J declaration on being sati.5fied 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 tha assurance thus given by Count Ncjselrodo oa suflicicnt in all probability to answer every national purpose. . . ." In reference to the Convention of 1824, uniteil Sutw' "WTiarton, in bis " Digest of the International in»"P™t.tiop of . . . ,1 . RiiMO-AmencMi Law of the U mtcu States of America, section 159, Treaty. vol. ii, p. 220, cites President Monroe's commu- nication to Mr. Madison on the 2nd August, 1824, to the effect that " by this Convention the claim of mare cliitisum is given up ; a very high northern latitude is established for tho boundary with llussia, and our trade with tho Indians placed tur ten years on a perfectly free footing, and after that term left open for negotiation. . . . England will, of course, have a similar stipula* tion in favour of the free navigation of the Pacific, but we shall have the credit of having taken the lead in the affair." The claim of Russia attracted much attention ilt at tlio timo. Mr. Madison Trrotc to rrcsidcnt Monroo : — "Till! (Convention with Unssia is n propitious event, a» subslitutiii;,' tiniirulile ndjiistment for tlio riik of lioitilo collision. Hut I give the Kniiieror littlo creilit, however, for Ilia nssont to tho principle of ' mare lihcrum ' in the Kortli I'ncilic. IIIm pretensions were so abHunl nnd so (lii;^ustins to the ninrilinio world, that ho coidd not do better thnn retreat from them throu^;h the fom\ of nego- tiation. It is wel! that tho cautiou.-i, if not courteous, policy of Hnglnnd townnls llussia has hiul the etfect of milking uip of another nation outside of territorial waters. 4S CuApriK III. It Ims lMH>n claimed on Itcbalf of the TTnitod States tlmt the wonli " nortli-ucRt coast " and " nortli-wcHt coast of America," which occur in the corre»i>on(!pncc connected witli the Conven- tions of lH2i and 1825, meant the coast of the I'acilic (Jccan, or south of the (JO parallel of nortli latitude. In consetiuemre of this construction, it is ar^uod that the nr-gotiators of the Convention of 1825 were conccrrncd only and dealt only with that por- tion of the l'a(ri(ic Ocean outside of Itehrin^ Sea, and that the claim under the Ukast; of 1S21 quoad this sea was never questioned or ahandoned. On the other hand, it has been ithown that llussia's olijcct was not the acquisition of the control of the sea lM.'tweccn advanced by Russia which could possibly render a distinction between lichring Sea and the main I'acific of the slightest importance. Russia was endeavouring to assert a title to the whole coast from lichring Sea to 55° north latitude. The maritime control of the waters from lichring Straits to 5.>'' north latitude was defini- tively abandoned at the outset of the negotiations, and the discussion was thenceforward confined to territorial limits and a policy of colonial exclu- sion. From the Conventions with the United States and Great Britain, it is evident that Russia's object was the recognition and protection of the Russian Settlements in America. Accordingly, these Conventions provide against illicit commerce, landing " at any place " (from Behring Strait to the southernmost boundary) "where there may be a Russian EstaWishment without the permission of the Governor or Com- mandant," and against the formation of Establish- ments by either Power (in the respective Con- vention) on territory claimed by, or conceded to, the other. IIead C.— T^c ((unilion whether tht body of water now known an the lUhring Sea is included in the phrase " Pacific Ocean,' an used in the 'l\eaty of 1825 between Great Jirilain and Rutri'i f 49 Norih-wMt cMii It will be rcmombcrod that tlio UkaHo of 1821 included the Faciflo from the Straits Houthward to the SC* parallel, and that this claim wan protested against in lolo, on the i^round tiint the coast was almost entirely unoccupied, and that maritime jurisdiction, oven where it was occupied, eould not extend beyond H miles. Apptndii. Rules were mad(! by Russia, headed " Rules established for the Limits of Navigation and Order of Conimunination alnn>^ tlic coast of tho Eastern Siberia, tlio norlh-wcsl-coast of America, and the Aleutian, Kurilo, and other Islands." This obviously included tlic coast of Hoiiring Sea in the term " north-west coast." Karon Nicolai to LonI Londonderry, 31bi October (12th November), 1H21, says:— " Lo lioiivwiu Ri'^loniimt iriiitcrilit iwiint mix Imtiincuta dtmngcrs In navigiitiidi claiia les mors nui liuxiiunt Ics posHosflious Ilussiea siir les cotes uofd-ouu.sl ilc 1 Ann riqiio ct nord-est do I'Asie." '> • • • "Car, il'iiii aiuie cotu en consiilt'mnt Irs i iS9ca.-.iOUS Unsscs (jui sVtondont, tiint sur la aV.e nurd-oucit do rAinc'riiiHc, dciiuis lo IVtroit do lioluing jusiju'au 51° do latitiido Mi'plcntrionale, (jnc stir la cntu npjioit'o de I'Asio ct les ile.s udjacuiilcs, dupuia lo mi'nic detruil jujqu'au 45°," &c. • • • • " Car, s'il est duniontri' quo lo Goiivornement Inijxirial cut oft i la riguour la facultt' do fermer ciitiironient aux otrangcM cettu paitic de /'(Wkh t'dcijiijitr quo liordent nos piisaessions on Anii'iiquo ot on Asia, a jiliis forte niison lo droit on vcrtn au jiiel il viuiit d'adopter mio mo'iire beau- coup luciinB gOiHTalemiiit rcstrictivo doit no prtT Otre nSvoqud en doute." • • • • " Lfs ofnciors commandant k'S lir'timents de gncrro Kusses qui sinit destines i\ veiller dona rOcLuu Pacilique au maintien dcs dispositions susmentionnoes, ont rcqu I'oi-dro do commonccr i\ lea mettro en vigumir erivers ceux dfs naviros etrangers," &e. In this note "north-west coast of America" is mentioned three times, and in each case the coast of I3elirlng Sea is included iu tlie term. Pacific Ocean appears t^^■icc, and iu both includes the Bchring Sea. The J[ap showing (be words north-west coast from Bebring Straits down, inclosed in the letter of Sir Charles IJagot (o Lord T/Ondoiiderry, dated 17tb November, 1821, is thus referred to: — " I have tliB honour to transmit to your Lordship, nuder a separate cover, an English translation of the Ukase, and [614] O 60 I nt ttiu sumo lime inclose a Map of the north-west consts of Aiuoriia, ami tliu Alciiliau nml Kurilc Islaiuls, which lias hi'cn pulilisheJ in the (Jiuirtonnastor-fieneiiirs lleimrt- mont hero, and upon which I have marked all the prin- f ipnl Uussiau Scttl(!ments." So Lord Ijondoiulerry writes to Count Lieven : — " Tlio Undersigned has the lionour hereby to acknow- Lord Londonderry ledge the note addressed to him by Haron de Nicolai of '<» Count Lioreu, *i 10.1 V , 1 . • f TTi January 18, 1828. tl:e 12tu November last, eovering a copy of an Ukase issued by His Imjn'riid IfajestV the Kmperor of All the luissia^, and bearing date the 4th September, 1821, for various jmrposes, thci'cin set forth, especially connected with the territorial rights of his Crown on the north- western eoast (if America, bordering upon the Taeifie, and the commerce and navigation of His Imperial Majesty's subjects in the seas adjacent thereto." And 'Sh: Canning writing to Lord London- derry ()l)servcs : — "I was informed Ibis morning by Jl'r. Adams thftt llie Mr. Stratford Eussian Knvoy has, within the last few days, conimuni- Canning; to the catcd officially to (be American fJovernnicnt an Ukase of Lo'nuonderrv the Kmperor of liU.s-iiii, wliich has lately appeareil in the February 19, 1823. publii' prints, ajipropriating to the .sovewignty and ex- clusive use of Jlis Imperial Majesty the north-west coast of America down to the 51st parallel of latitude, together with a considerable portion of the opposite coa.sts of Asia, and the ncigliliouring seas to tlie extent of 100 Italian miles from any ])avt of the coasts and intervening islamls so ajipropriated In apprizing me of this oircnmstnnce, Ml'. Adams gave me to understand t!iat it was not the intention of the American Cabini'l to admit the claim thus notified on the part of Itussia. His objection appears to lie more particularly igaiast the exclusion of foreign vessels to .so great u distance from I hi! shore." Again M. de Polctica, writing to Mr. Adams on the 28tli Pobruary, 18i22 :— " The lirst discoveries of the Russians on the north-west continent of America go back to the time of the Emperor Peter I. They belong to tlie attempt, made tov ards the end of the reign of this great Monarch, to find a passage from the icy sea into the Pacific Ocean." • • • • " When, in 1799, the Emperor Paul I granted to the present American Company its first Charter, he gave it the exclusive possession of the noilh-wcst coast of America, wlii':li belonged to IJussia, from the 55th degree of north latitude to Heluing Straits." " From this faithful exposition of known facts, it is easy, Sir, ns appears to me, to draw tlie conclusion that the rights of liussia, to tbo extent of the north-west coast, specified 61 in the Regulation of the Russian-American Company, rest," &c. • • • • " The Imperial Government, in assigning for limits to the Russian jyosscssions on the north-west coast of Amciica, on t/u one stile Behrinn Straits, and on the other the olst degree of north latitude, has," &c. • • * • " I ought, in the last place, to request you to consider, Sir, that the Russian jiosseisions in the 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 ?trait to tlie 45th degree." Hudson's Bay Company to the Marquis of Londoiiderry, March 27, 1822. Throughout this note the phrase " north-west coast " includes the coast of Behring Sea, and the last passage shows unmistakably that the Russians at that time regarded the Pacific Ocean as ex- tending to Behring Straits. " It has fallen under the observation of the Guvcrnor and Cniiiinittec of tlic Hudson's Buy Company that the Russian Ciovernnieul liave made a claim to the norlh-west coast of America, from Behring Straits to the 51st degree of iiortli latitude ; and in an Imperial Ukase have pro- hibited foreign vessels from approaching the coast within 100 miles, under peunlty of confiscation. Likewise that llie American (Jovcrument are claiming a very consider- able extent of country bordering on the Pacific Ocean; and that a Bill is in progress in the House of Ilepresen- tatives for settling tlie Columbia and forming it into a State of tlie Union." Mr. Adams to Mr. Rush, July 22, 182?. American State Papers, Foreign Relations, vol. v, p. 436. North'Wett coast. Mr. Adams, in 1823, dealt with the Russian claiui as one of exclusive territorial right on the , ioi'th-wcst coar,t ci" America, extending, as he said, from the " northern extremity of the continent." Articles Iii^^l^^ "Jfovth American Review" (vol. xv. Article ib)j and "Quarterly Review" (1821-22, vol. xxvi, p. 3il), published at the time of the negotiations of 182{li-25, so treat the words " north-west coast." Mr. Adams in his despatch of the 22nd July, 1823, referred to Emperor Paul's Ukase as purporting to grant to the American Company the " exclusive possession of the north-west coast of America, which belonged to Russia, from the B5th degree of north latitude to Behring Strait." The term norlh-west coast, or, more fully, norlh- west coast of North America, is a descriptive one of a peculiar character. Looking at the Map, it will be seen that the coast, which has not infrequently been so named. 02 is in reality the westerly — or south-westeily — facing coast of North America, which forms the eastcni and north-eastern coast-line of the North Pacific. This term, however, appears in the title of some very early Maps, such as that by Miiller, dated 1761, which is entitled, "A Map of the Discoveries made by the Russians on the North- west Coast of America;" that accompanying the original edition of Cook's third voyage, dated 1784, and entitled, "Chart of the North-west Coast of America and the North-east Coast of Asia;" and that in Vancouver's voyage (1798), named "A Chart showing part of tlio Coast of North-west America." The last-named Map, however, affords a clue to the meaning of the term, and shows that, in these instances, we should read in full "coast of the north-western part of the North American continent," and, conversely, " coast of the north- eastern part of the Continent of Asia." Greenliow's works (well known in connection with the discussion of the "Oregon question") afford a detailed and conclusive means of ascer- taining the views officially held by the United States' Government on the meaning of Pacific Ocean, Behring Sea, North-west coasl, and the extent of abandonment of claims made by Russia iii Ukase of 1821, by the Convention of 1824. A"j\remoir" wns prepared by Grconbow on the official request of L. P. Linn, Chairman of Select Committee on the Territory of Oregon, by order of John Forsyth, Secretary of State. It includes a Map entitled "The North-west Coast of Nortli America and adjacent Territories," which extends from below Acapulco in Mexico to above moutli of the Kusko(|iiira in Behring Sea, and embraces also the greater part of the Aleutian chain. Touching tlio .signification of the terms North- west coast and Pacific Ocean, and the meaning attach. ' to th.e rclinquishment of Russian claims by the Convention of 1824, in the first part of the " Memoir," under the heading " Geography of the Western Section of North America," the following passage occurs : — "Tlio nurlh-wcst mast* is tin; nxprcssinn iisiwlly em- ployed ill the United States .it Hk; pix'smil lime to ■ N.B.— The ilalin in this and lubiaquent quoUtlona aro them employed by Greenhow bimiolf. Robert Gr«enhoir, Translator and Librarian to the United Statei' Department of State. " Memoir Fliitorical and Political of the north-weat coaat of North America and tho adjacent territories, illtutiited by n Map and a geographical ricw of thcae countriei. bjr Robert Greenhow, TransUtor and Librarian to the Depart* mcntof Slate." Senate, 2, 1840. The same Memoir, aeparately printed, apparently in identical form, and witli the eamc Map, and pagUiation, Wilej and Patnam, New York, 1840. 63 ' The Geography of Oregon and Californii and the other territories on the north-west coait of North America," New York 18iS. distinguish the vnat portion nf tlio Anierican continent wliicli extends nortii of the 4nth pnnillel of latitude from the Pacific to the great dividing ridge of the llocki/ Mountains, together with tlie contignoua ishmds in that ocean. The southern part of liiis territory, which is drained almost entirely hy tlii! IJivcr Uoluinhia, is louinionly called Oregon, from the supposition (no doubt erroneous) that such was the name applied to its principal strcani by the aborigines. For the more northern parts of tho continent many appcllaticn.'?, which will hereafter bo mentioned, have been assigned by navigators iuid fur traders of various nations. The territory Ijordoring upon the Pacific southward, from the 40th parallel to tho extremity of the peninsula which stret'.'h"3 in that direction as far as tlie Tropic of Cancer, i.s called Cidifornia, a name of tinccrtain derivation, formerly ajuilied by tho Spaniards to the whole western section of Xorth America, as that of Floiida was employed by them to tlesignate tho regions Viordering upon the Atlantic. The north-west coast and the west coast of California together form tho west coast of North America; as it has been found impossible to separate the history of these two portions, 80 it will be necessary to include them both in this geographical view "* (pp. 3- 4). The relations of i3chring Sea to the Pacific Ocean are defined as follows in the Memoir : — " The part of tho Pacific north of the Aleutian Islands which bathes those shores is commonly distinguislied as the Sea of Kamtchatlca, and sometimes as Behring Sck, in honour of the Kiissian navigator of that r.nme who first explored it " (pp. 4-5). Again, in the "Ceogi'aphy of Oregon and California," as follows : — "Cape Prince ot Wales, t!.j westernmost point of America, is the eastern pillar of Beliring Strait, a passage only .50 miles in width, separating that continent from • Mr.Grcenhow here gitea tho following note -. — " In the following pa^ca the term roant will he iiiietl. sometimes aa aignifytng only the sea-t^hore, and Bomctime:< as embracing tliu whole territory. cxtendinjT therefrom to the sources of tin river ; caio has I)een, however, talten to prevent misapprehension, wlicrc ihc context does not aufficiently indicate llie true scnEo. In order to avoid repetitioTis, tho nortli-irett coast will be understootl to he tlie north. wast cfi'ut nf Xorth America ; all latitudes will ho taken as iwyt.'t Iati!utles\ and all longitude^ as tcetf/rom Greenwic/t, onlesfl otherwise cxprcsiod. • • • * • "The northern extremity of the west coast of America is Cape Prince of Wales, in latitude fiS'^ 52', which ia also ilio wcstera- moit B[iot in tho whole conticnt ; it is situated on tlio citslern Eide of Beerinff*8 Strait, a channel 51 niilia in width, onnecting the PaciUc with the Arctic (or /cy or Xorth Frozen) can, on the western side of which strait, oppoiilo Cape Prince of Wale?, is Ea^,t Cajic. the ciatcra extromity of .\sii. Beyond Iteering's Strait tlio shores uf tlu' two continents recede from each otlicr. The nor/A coa^/ o/"v-tmeric(i lias hetn traced from Cape Prince of Wales nortli-eaatwaid to Cape Harraw," See, pp. 3-4. [014] M iUia, and forniin(; the only direct coDiuiunicatiun between thu Taeilic and Arctic Oceans. • • • • " Tile part of tiie racifi(! (utlled ihc Sea of Kamlduttlai.ot Bc'lirinj; Sen, iioitli of lliu Aleutian diain, likewise con- tains several islands," iStc. (p. 4). (ji'cenhow's "Jlistory" was olDciiiUy iJicseuted to tlio Govornmcnt of Great Britain by tho Govprnment of tlic United States in July 1815, in connection with the Oregon discussion and in pursuance of an Act of Congress, p. 141. Tlio following is the correspondence accom- panying the presentation by tho Government of the United States : — "Tho lIUU>ry of Oregou and CalUonil* ud the othtr territoriM on tb< uortk-writ cout of North Ameriu, hj Robert Orecnhon, Tnuslatorand LilirariiQtoiheD«part' mut of SUM or the Uuitiid Statu ; author of a Memoir kliitorirtl and I'ollUeal, on the iiortii-woit cout of North America, nubliahed In 1840 l>y direction of the Senate of the United Slatei." New York, 184S. Thin is a iccond edition, and in the preface it U tiplained that it* iaaue wai rendered neceiiar; tu aupply 1,900 copies of the worit which bad Ven ordered for the Oeneral Oonrament. Tlie lamc work. FIret cdilioo, Loudon, 1844. Both edition! contain Mapd, which uppoar to lie identical, but different from the Mapa accompan;lDg the Mcmcir, thongli Including nearly tho aame Umita with them. " Mr. L'ltchanan to Mr. Pakenham. " Department of Slate, Waihxngluii, "Sir, "Julij\2,\UJ. "Ill i)ui'suaiire tif an Act of Congress approved on tho 20tli ]'(-bninry, 181.5, I have the honour to transmit to you liciewilli, for iirescntation to the (ioveniracnt of Great liritain, one copy of the ' History of Oregon, California, and the other territories on the North-west Coast of America,' l>y llobert Greeiihow, Esq., Translator and Librarian of the Department of State. " I avail, &c. (Signed) "J.\.me8 Buchanan." Paci "Mr. Pakenham to the L'arl of Aberdeen — {licteicecl "August IC.) "My Ixird, " Waahinyton, July 2'J, 1845. " I have the honour herewith to transmit a copy of a jiote which I liave received from tlie Secretary of State of the United States, accompanied by a cojiy of Jlr. Green- how's work on Oregon and California, which, in pursuance of an Act of Congress, is presented to Her Majesty's Government. "Although Mr. Greenhow's book -s already in your Lordship's possession, I think it right, in consequence of the official character with which it is presented, to forward to your Lordship the inclosed volume, being the identical one which has been sent to me by Jlr. Buchanan. " I have not failed to acknowledge the receipt of Ut. Buchanan's note ii: suitable terms. "Ihuve, &c. (Signed) "B. Pakenham." In the "History of Oregon and California,'' the Sea of Kamtchatka, or Behiing's Sea, is again jeferrcd to as a part of the Pacific Ocean. BS In respect of the undorstaniling by tho United States of tho entire relinquishment of tho cluims advanced by tho Ulcaso of 1821 in tho Russian and United States' Convention of 1824, tho following is found on a later page of the volume last referred to :— " Tliis Convention does not appear to offer tiny grounds for disputo 08 to the construction of its stipulations, l)ut is on the contrary, clear, and equally favourablo to both' nations. Tiio riglita of holli pnrtiiy to navigate vi.vy part of tho I'licific, and to trade with tlie natives of any places on tho rousts of tliat sea not already occupied, are lirst acknowledged " (p. 342). Pacific Ocean includes Bchring Sea. Appcadii. It is thus clear, as the result of tho laborious investigations undertaken by Grccnhow on behalf of the United States' Government, and accepted by that Government in an official document : — 1. That Behring Sea was a part of the Pacific. 2. That the north-west coast was understood to extend to Behring Strait. 3. That Bussia relinquished her asserted claims over " every part of the Pacific." That Russia regarded Behring Sea as included in the phrase "Pacific Ocean" is further con- clusively shown by the citation from Tikhmonieffs " Ilistory " as to the proceedings with regard to American whalers in 1812 and in 1853. TL:. fact that the whole territorial and mari- time claim of the Ukase was in question, and was settled by the Treaties of 1824 and 1826, 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 :— American State Papers, toI. t, p. 4S3. " With all the iespoct which we owe to the declared intention, and to the determination indicated by the Ukase, it is necessary to examine tlie two points of fact. (1.) If the country to the south and cast of lichring Strait, as far as the 51st dcijtre nf north latitude, is found strictly occupied. (2.) If there . jeeu latterly a real occupation of this vast territory .... The conclusion wliich must neccs.sarily result from these facts does not appear to establisli that tho territory in question has been legitimately incorpo- rated with the Russian Empire. The extension of texri- torial rights to the distance of 100 miles from (he coasts upon two opposite continents, and the prohilition of approaching to the same distance from these coists, or from those of all the intervening islands, are innovations in the law of nations, and measures unexampled." 56 In an earlier part of the same paper, Mr. Midcllcton observes : — " The 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 time." The same appears from Mr. G. Canning's despatch to Sir C. Bagot of the 24th July, 1824 :— " Your Excellency will observe that there are but two points 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 line of boundary ; the second, the extension of the right of navigation of the Pacific to the sea beyond Bering Straits. # • • • " As to the second point, it is, perhaps, as Count Lieven remarks, new. But it is to be remarked in return, that the circumstances under which tliis additional security is required will be now also. By the territorial demarcation agreed to in this ' Projet,' Russia will become possessed in acknowledged sovereignty of both sides of Behring Straits. " The Power which could think of making the Pacific a mare elmisum may not unnaturfJly bn supposed capable of a di.sposition to apply the same character to a strait com- prehended between two shores of which it becomes the undi.sputcd owner. But tlie shutting up of Behring Straits, or the power to shut them up liereafter, would he a thing not to he tohrnttd hy England. " Nor could v)c submit to be excluded, either positively or eonstructively, from a sea in whifh (ho sl-ill and science of our seamen has been and is still emjyloyed in enterprises intcrcsUng, not to this country alone, hut to the whole eicilized world. " Tlic protection* given ))y the Convention to the Americiiii coasts of each Power may (if it is tliouglit upxcssary) bo extended in terms to the coasts of tlie lUuisiiiii Asiatic territory ; but in some way or other, if not in the form now presented, the free navigation of Behring Straits, and of the seas beyond them, umst b6 .secured to us." It would have been of little use securing tlie See Appendix, right to navigate tlirough Behring Straits anless tlic right to navigate the sea leading to It vas secured, which would not have been the case if the TJktisc had remained in full force over Behring Sea. • (i.e.) By tlie extension of territorial jurisdiction to two leaguoB, as originally propo.icd in llie course of llie negotiations between Great Brittin and HuuIb. 57 " Tikhmenieff." Appendix The frequent references to Behring Straits and the seas beyond them show that there was no doubt in the minds of the British statesmen of that day that, in securing an acknowlediiment of freedom of navigation and fishing throughout the Pacific, they had secured also this right right up to Behring Straits. In a " Narrative of a Voyage to the Pacific and Behring Strait, &c.," under command of Cajjtain F. W. Beechey, R.N., in the years 1825-26-27-28, published by authority of the Lords Commis- sioners of the Admiralty, in London, 1831, there arc given the instructions from the Lords Com- missioners. Those instructions arc full, and though refer- ring to Behring Strait and the Pacific Ocean, do not mention tlie Sea of Kamtchatka or Behring Sea. The instructions are dated 1825. That the phrase " Pacific Ocean " in the Treaty included Behring Sea is still further shown by the reply of the Ilussian Government to Governor Etholin in 1842, when he wished to keep Ameri- can whalers out of Behring Sea : — "The claim to a man clausum, if we wished to advance such a claim in respect to the northern part of the Pacific Ocean, could not be theoretically justifieiL Under Article I of the Convevtion of 1824, Utween liussia and ihc United Stales, which is still in fofrce, American citizens have a right to fish in all parts of the Pacific Ocean. But under Article IV of the same Convention, the ten yeai-s' period mentioned in that Article having expired, we have power to forbid American vessels to visit inland seas, gulf.^, harbours, and bays for the purposes of fishing and trading with the natives. Tliat is the limit of our rights, and we have no power to prevent American ships from taking whales in the open sea." See also reply to Governor-General of Eastern Siberia, 1846 :— " We have no right to exclude foreign ships from that part of the great ocec.n wliicli separates the eastern shore . of Siberia from the north-western shore of America," &c. ; and the instructions which were finally issued to the Ilussian cruizers on the 9th December, 1853. Writing in 1882 the 8th (20th) May to Mr. Hott'man, the American Minister at St. Petersburg, M. do Giers said : — " Keferring to the exchange of communicatio!is which has taken place between us on tlie subject of a Notice [6U] Q 88 published by our Consul at Yokohama relating to fishing, hunting, and to trade in the Riusian waters of the Pacific, and in reply to the note which you addressed to me, dated the 15th (27th) March, I am now in a position to give you the following information : — " A Notice of the tenour of that annexed to your note of the 15th March was, in fact, published by our Consul at Yokel lama, and our Consul-General at San Francisco is also authorized to publish it. " This measure refers only to prohibited industries and to the trade in contraband ; the restrictions which it established extend strictly to the territorial waters of liussia only. It was required by the numerous abuses proved in late years, and which fell with all tlieir weight on the population of our sea-shore and of our islands, whose means of support is by fishing and hunting. These abuses inflicted also a marked injury on the interests of the Com2>any to which tin Imperial Oovernment had conceded the monopoly of fishing and hunting (fxportation), in ialaiids called tlie ' Commodore ' ami the ' Seals' "Beyond this new Regulation, of which the essential point is the obligation imposed upon captains of vessels, who desire to fish and to hunt in the Eiissian waters of the Pacific to provide themselves at Vladivostock with the permission or licence of the Oovernor-General of Oriental Siberia, the right of iisliiug, hunting, and of trade by foreigners in our tenitorial waters is regulated by Article 560, and those following, of vol. xii, Part II, of the Code of Laws. " Informing you of the preceding, I have, &c." In 1882 a portion of the Bcliring Sea is referred to l)y the llussian Government as " llussian waters of the Paciflc " and as " our Pacific waters." Witness the following : — " A'oticr ly A. K. Pelikan, His Royal and Imperial Majesty's " Cu7isul, Yokohama, \i>th Kovaitbcr, 1881. "(E.^tract.) " At the rcquitst (jf the local authorities of IJchriug and Papers relating other islands, the Undersigned liereby notifies that the *? Behring Sea . , „ ,1- , , ,1 Fislieries, Waihing- liussuiii Jinperuil uoveninient publishes for general know- ^g„^ ]ggy __ jgg^ ledge tliL' following : — " 1st. Without a special permit or iicenco from the Oovernor-Gencml of Eastcn Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, &c., on the Russian coasts or islands in the Okhotsk and Behring Sea, or on the north-eastern coast of Asia, or within their sea boundary-line." lu tlic correspondence between the United States and Russia, touching tiio meaning of this Regulation, it will be seen the Notice is alluded to as " relative to fishing, hunting, and trade in 69 Papers relating to Behring Sea Fislieries.Wasliing- ton, 1887, p. 118. Report on the Seal Idanils of Alaska, Waahington, 188-). the Russian waters of the Pacific," anl as relative to fishing and hunting in " our Pacifio waters." Bancroft writes, in his " History of Alaska " (pp. 19, 20) : " The Anadir, which empties into the Pacific." Again : " Thus tlic Pacific Ocean was first reached hy the Russians on the sliore of the Okhotsk Sea." And yet again : " TIio ascent of the Lena brought the Russians-- to Lake Baikal, and showed them anotlier route to the Pacific, through Cliina hy way of the Amoor." In the discussion of the question of jurisdic- tion between the United States and Great Britain reference has been made by the United States to the marking of Maps, from which it was 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 (o reserve the waters of Behring Sea under tlic exclusive jurisdiction of Russia. The Legislature of the Territory of Washington, in 18GG, referred to " fishing banks known to navigators to exist along the Pacific coast from the Cortos bank to Behring Strait." So, in 1887, it is found that the American Representative at St. Petersburgh informed Mr. Bayard (17th February, 1887) that the Notice already quoted prohibits fishing, &c., in "the Russian Pacific coasts." This corre- spondence related to a seizure whicli had been made in Behring Straits. Professor IT, W. Elliott, of the Smithsonian Institute, who was engaged iu the study of tho seal islands of Alaska for the L'nitod States' Government as late as the year IS; 0, iu his ofljcial Report on the seal islands of Alaska remarked, concerning the seals : — "Tlieir latij^o //( the Xoiih Pacijk is virtually confined to I'ouv isl.iiuls ill rniliriiig Son, viz., St. I'iiul and St. (leorge, of tliu Irui- Pi'iliylull' group, and Behring and Coiipor, of ibo Commander Islands." Again, lie says : — " In the North Atlantic no suitaUu territory for their reception exists, or ever did e.xist ; and redly nothing in tho North Pacitic IjoyouJ what we have designated in. Behring Soa." He also describes the rookeries in Bering Sea as " North Pacific rookeries." 60 And also : — " Geographically, as well as in regard to natural history, Behring Island is one of Ihc most curious islands in the northern part of the Pacific Ocean." The above arc, however, only a few from among very many instances which might bo quoted of the continued usage of tlio name "Pacific Ocean " as including Behi'ing Sea. Mnps and Charts. In tlie discussion of the question of jurisdic- tion between the United States and Great Britain refereneo has been made by the United States to the marking of ilaps, from which it was insisted that the wators of Behring Sea had been given a name distinjt from that of the Pacific Ocean. From tliis 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 tinder tlic exclusive jurisdiction of Russia. It is, moreover, very noteworthy in studying any scries of llaps chronologically arranged, particularly those published before the middle of the pi'csent century, that Behring Sea is frequently without any general name, while the adjoining Sea of Okliotskis in almost every instance clearly designated. On various Charts issued by the United States' Hydrographio Office, the usage of Pacific or North Pacific Ocean as including Behring Sea occurs, including the latest and most perfect editions now in actual use. The definitions touching tiic Pacific Ocean, Behring Sea, &c., to be found in gazetteers, dictionaries, and geographies of the world, both of the present and past dates, moreover, show conclusively that Behring Sea was and is now understood to form an integral part of the Pacific Ocean. Such formal definitions are naturally more trustworthy than inferences drawn from the construction of Maps. A few of these will suffice. " Mcr Pacifiquo. II s'etend du nord an sud depuis le <■ Diciionnaire Giogriphiciuc UnfTcrsel," 1828, Cercle Polaire Arctiqne, c'osti\-dirc, dejinis lo Dc'troit de Behring, qui le fait comninniquer u I'Oci^an Ulacial Austral. " L'Ocdan Pacifique Bor(5al s'otond depuis le Detroit de Jichring jusqu'au Tropique de Cancer, ' Prc'cu de In G&graphi.! UniTcrselle," purj M«lte.Brun, Tol. ii„ p, lei, ed. 1835. 61 *8c Treaties, was not intended to include, and 'Mn iM ii^ 'ude, the body of water which is now known as (he iJehring .Sea, because the words ' Bchring .Se;^ ' ', '■!•; not used in either Treaty, is without any foundation, Ob wiU be suljsequently shown ; and yet the Concession is made by the United States that, ' if Great liritain can maintain her position tlint the Behring Sea at till! time of the Treaties with Rassia of 1824 and 1825 was included in the Pacific Ocean, the Government of the United .States has no well-grounded complaint against her.'" (Rx. Doc., No. 144, H. R, 51st Congress, 2nd Sussio.i, p. 27.) Hall, 3rd edition, 1890, p. 147 :— "Note. — A new claim subsequently sprung up in the Pacific, but it was abandoned in a very short time. The Ilussian Government pretended to be Sovereign over the Pacific north of the 51st degree of latitude, and published an Ukase in 1821 prohibiting foreign vessels from approaching within 100 Italian miles of the coasts and island.-i bordering upon or included in that portion of the ocean. This pretension was ru-^isted by tlie Uniti^d States and Great Britain, and was wholly given up by Conven- tions between the former Powers and liussia in 1824 and 63 1825. , , , Willi llngrant inconsiatency the Uiiitt'd States, sinci! acquiring possession of Alasku, liavf claiiiiud na ai'enclant upon it, by virtue n( cession from Itus'in, about two-;hird8 if lliu lielirini^ Soa, a space of 1,500 niilus long anil '"',' .uiles wide, and upon the yround nf Ibis claim have seized British vessels engaged in seal-fisliin^'. In at least one case the master and mate of a vessel an taken have been fined and imprisoned ; the vessel was seized for fishing at a distance of more than 70 miles from land." 64 Chaptbu IV. As regards the user of the waters in question, it has been scon that down to the year 1821 Hussia did not attempt to assert or exercise jxiris- diction over foreign vessels when outside of the ordinary territorial jurisdiction. The same is true of the period between 1821 and 18G7. 1821. Mouravief was sent out to take control Alaaka, pp. r>34, at Sitka under the new Charter. He assumed the name of " Governor " in place oC that of "Chief Manager," which had previously been employed. Tlio names of seven trading-vessels on the North-west Coast, north-wist coast arc known for this year. P'** ^*^' ^^'" 1822. The Russian vessel " Rurik " arrived Alaska, p. 539. at Sitka from Kronstadt with sup])lios. About the close of the year the Russian sloop-of-war "Apollo" also arrived, with instructions that all trade with foreigners should cease. This interdict remained in force for two years, and seriously interfered with the profits of the Company. In this year also the Russian sloops-of-war " Krcisser" and "Ladoga" arrived to enforce the provisions of the Ukase, and remained for two years. An exploratory expedition was dispatched from ibij.^ p. 545. Sitka to the eastern shore of Behring Sea, which remained absent two years. In 1823 a famine was feared at Sitka and on Ibid, pp. 137-139. its coast, and the "Rurik" and an American Tcssel which had been purchased, A\erc sent to California and the Sandwich Islands for supplies. " As in this instance, the Colonies had fre- See Appeniiix, fluently been relieved from want by trade with "Correspondence , on Whale Fishery, foreigners ; and, indeed, this was too often the Lyall to Canning, only means of averting starvation. Evcnbetwe-m '"' 1818 and 1822, when supplies were comparatively abundant, goods, consisting mainly of pvovisions, were obtained by traffic with American ."xnd English coasters to the value of more tlian 300,000 roubles in scrip." The " Rob Roy," from Bostor 's imown to have been nn the north-west coast, 182t. Kotzehue, in the "Preopri;. tic." called at Sitka. About this tlmo the shareholders 0' tlic Russian Company protested against the interdict of Ibrclgn trade, and Sitka was, in con- Kcquencc, again opened to such trade. Head {'D).—The User of the Waters in question from 1821 to 1867. Horth-west Coast, V. 341. Alaska, p. 640. Ibid., p 641. 65 Dale's Alaska, pp. 333, 334. As to the " Pearl,' see Appendix, S. Canoiug to G. Canning, April 23, 1828. North-west Coast, p. 341. Alaska, p. 939. Ibid., p. 544. North-west Coast, p. 341. Alaska, p. 546. Ibid. North-west Coast, p. 341. Alaska, p. 546. Letter of Brewer to Araory, p. 85, Ex. Doc.Nos. 187, 180, 2nd Scss., 40th Cong. Alaska, p. 665. In 1822, aoting under the authority of the Ukase of 1821, the United States' hrig " Pearl," when on a voyage from Boston to Sitka, was seized by the Russian sloop " Apollo " In 1824 she was released, and compensation was paid for her arrest and detention. Count Nesselrode, in his despatch to Count Lieven, 26th June, 1823, when communicating the suspension of the Ukase of 1821, says the advices to this effect were sent from St. Peters- burg in August of 1823, and that the officer of the "Apollo" could not receive them before September 1824, and that, therefore, he could not have known of them at the "time of the occurrence of the incident reported by the American press." In 1824 four vessels are recorded as having visited the north-west coast, and some of them are known to have repeated this visit in later years. 1825. The "Elena" arrived at Sitka with supplies. Kotzebue also again called at Sitka. Remonstrances were addressed by the Com- pany to the Russian Government as to the effect of the Conventions of 1824 and 1825. The name of but one vessel trading on the north-west coast has been preserved in this year. 1826. Chistiakof wrote to the Directors of the Company asking that an experienced whaler should be sent out. 1827. Lutke, sent by the Russian Govern- ment, arrived at Sitka, and thereafter made explorations in the Aleutian Islands and in Behring Sea. Two vessels only of the trading fleet on the north-west coast are in this year known by name. 1828. Two vessels belonging to Liitke's ex- pedition carried on surveys in Behring Sea. The trading-vessel " Eliza " was again at Sitka. In tho years 1826, 1827, and 1828 the " Chin- chella," a United States' brig, Thomas Meek, master, traded between Sitka and China, and between 1840 and 1845 every year 300 Avhale- ships of the United States were on the north-west whaling-groimds, which extended from 50° to GO" north and from 139" to 170° east, including Bristol Bay in Behring Sea. 1829. A vessel was sent from Sitka to Chile to trade. Some explorations were also made by the Russians in the inland country. [614] 8 66 1830. Explorations in Behring Sea by Etholen. The names of four or five vessels trading on the north-west coast in this and the following year are recorded. Wrangell relieved Chistiakof in command. 1832 or 1833. Tehenkof established a post near the mouth of the Yukon, and explorations were conducted inland. 1833. The Hudson's Bay Company sent the " Dryad " to form an Establishment at the mouth of the Stikine, but Wrangell, having heard of the enterprise, occupied the place in advance, and turned the vessel back, Damages to the amount of 20,000/. were claimed through the British Government from Russia. An American whaling master, under a five- years' contract, arrived at Sitka, but achieved little. The whale fisheries still remained in the bands of foreigners. 183d). The name of but one of the trading vessels on the north-west coast in this year is known. 1836, T'le " Eliza " was again at Sitka in this year, and three trading vessels are recorded to have visited the Alaskan coast. In 1836 the United States' brig "Loriot" sailed for the north-west coast of America for the purpose of procuring provisions, and also Indians to hunt for sea-otters on the coast. When in the Harbour of Saskessan, latitude 54^ 55' north, and longitude 132° 30' west, a Russian armed brig ordered the United States' vessel to leave, This action was based on the expiration of the period named in the IVth Article of t')e Treaty, whereby, for ten years only, liberty to touch and trade at Russian Establishments on the coast wa« granted. The United States protested against this action as an " outrage." The following were the instructions of the United States' Secretary of State to Mr. Dallas, the Minister at St. Petersburg : — Alaikt, p. S47. North-west Coait, p. 341. Alaska, pp. 548- sea. Ibid., p. 595. Ibid, p. 583. North-weit Gout, p. 341. Ibid., pp. 341, 342. Forsyth (o Dallas, May 4, 1887. " On tlie other hand, should there prove to be no Kiissiau Establishments at the places mentioned, tliis out- riige on the ' Loriot ' assumes a still graver aspect. It is a \ iolation of tlie right of the citizens of the United States, iinnifiiiioiially exercised, and secured to them as well by the law of nations as by the stipulations of the 1st Article of the Convention of 182^, to lish in those seas, and to resort to the coast, for the prosecution of their lawful 67 commerce upon points not already occupied. As such, it is the President's wish tliat you should remonstrate, in an earnest but respectful tone, against this groundless assump- tion of the Russian Fur Company and claim from His Imperial Majesty's Government for the owners of the brig 'Loriot,' for their losses and for tho damages they have sustained, such indemnification as may, on an investigation of the case, be found to be justly due to them. " I am, &c. "JOHN FOKSYTH." Dallas to Forsyth, August 16, 1837. Forsyth to Dallas, November 3, 1837 {Appendix). From subsequent inquiries, it appeared that Russian Establishments had been made at the places mentioned. Nevertheless, the United States contended that at the expiration of the IVtli Article, the law of nations practically gave United States' ships the privileges therein mentioned. Mr. Forsyth,' Secretary of State for the United States, writing to Mr. Dallas on the 3rd Novem- ber, 1837, and referring to the 1st Article of thp Convention of April 1824, between the United States and Russia, said : — " The l3t Article of that instrument is only declaratory of a right which the parties to it possessed under the law of nations without conventional stipulations, to wit: to navigate and fish in the ocean upon an unoccupied coast, and to resort to such coast for the purpose of trading with the natives. " It is a violation of the right of the citizens of the United Stater., immemorially exercised and secured to them, 03 well l)y the law of nations as V" the stipulations of the 1st Article of the Convention ot 1824, to fish in those seas and to resort to the coast for the prosecution of their lawful commerce upon points not already occu- pied. " The United States, in agreeing not to form new esta- blishments to the north ot latitude of 54° 40' N., made no acknowledgment of the right of Russia to the territory above that line." And, again : — " It cannot follow that the United States ever intended to abandon the just right acknowledged by the 1st Article to belong to them under the law of nations— to frequent any ■part of the unoccupied coast nf North America for tho purpose of fishing or trading with tho natives. All that tho Convention admits is an inference of tho right of Russia to acquire possession, by settlement, north of 54" 40' N. Until that actual possession is taken, tho 1st Article of the Convention acknowledges the right of tho United States to fish and trade as prior to its nego- tiation." 68 In his despatch of the S3rd robruary, 1838, Count Nessclrodc said :— "It is true, iudoed, that the Ist Article of tlio Conven- tion of 1S24, ti which the proprietors of ihe 'Loriot' appeal, secures lo tlio citizens of the United States entire liberty of navigation in the Pacific Ocean, a? well as the right uf landing without disturbance upon all jioints on the norlh-tecst coast of America not already occupied, and to trade with the native.?." Mr. Dallas (10th Augu&t, 1S37), when repre- aenting the United States at St. Petersburg, wrote to the Secretary of State : — " The Ist Article asserts for both countries general and permanent rights of navigation, fishing and trading with the natives, upon points not occupied by either, north or south of the agreed parallel of latitude." In 1838, Mr. Dallas, in a despatch to Count Ncsselrode, interpreted Article I of the Conven- tion as being applicable to any part of the Pacific Ocean. Mr. Dallas, in this despatch of the 5th (17th) March, 1838, to Count Nesselrode, said : — " . . . . The right of the citizens of the United States to navigate tlio I'aoilic Dcean, and their right to trade with the aboriginal natives of the north-west coast of America, without the jurisdicticn of other nations, are rights which constituted a p!ut of their independence as soon as they declared it. They are rights founded in the law of nations, enjoyed in coininon with all other independent sovereign- ties, and incapable of being abridged or extinguished except with their own consent. It is unknown to the Undersigned that they have voluntarily conceded these rights, or either of them, at any time, through the ageacy of their Government, by Treaty or other form of obligation, in favour of any community. "There is, first, a mutual and permanent Agreement declaratory of their respective rights, without disturbance or restraint, to navigate and fish in any part of the Pacific Ocean, and to resort to its coasts upon points which may not already have been occupied, in order to trade with the natives. These rights pre-existed in each, and were not fresli liberties resulting from the stipulation. To navi- gate, to fish, and to coast, as described, were rights of equal certainty, springing from the same source and attached to the same quality of nationality. Their exercise, however ■was subjected to certain restrictions and conditions, to the effect that the jicizeaa and subjects of the contracting sovereignties should not resort to points where establish- ments existed without obtaining permission ; that no future establislmients should be formed by one party north, aior by the other party south, of 54° 40' north latitude; 0!) but that, uovorthelcss, both might, for a terra of tjn years, without rogtivd to whothor an establishment existed or not, without obtniniiig permission, without any hindrance whatever, frequent tho interior seas, gulfs, harbours, :.ad creeks, to fish and trade with the natives. This short analysis leaves, on tho question at issue, no room fur con- struction. * * * ♦ " Tho Undersigned submits that in no sense can the IVth Article be understood as implying an acknow- ledgment on the part of tho United States of tho riglit of Kussia to the possession of tiie coast above the latitude of 64° 40' north." In transmitting the papers to Congress, tho President of the United States observed : — Van Buren'i Mes- " The con-espondenco herewith communicated will show •age, December 3, ^ the grounds upon which we contend that the citizen.s of Slate' Papers *''" '^^"i'"'-' States have, independent of tho provisions of vol. xxvi, p. 1830. the Convention of 1824, a riglit to trade with the natives upon the const in ((uestion at unoccupied places, liable, however, it is admitted, to be at any time extinguished by tho creation of Russian Establishments at such points. This right is denied by tho liussian Government, which asserts that, by the operation of the Treaty of 1824, each party agreed to waive the general right to land on tho vacant coasts on the respective sides of the direction paralli'le h la cute, dopuis le ."iC degru de latitude nord au point d'intcrscction du 141' dogre de longitude ouest se trouverait il la diatance do plus d(; 10 liiuies marines de I'ocean, la limite entro les posse.s.sioiia Britanniques et la lisiferc de cote nientionnde ci-dessus comme devant appartcnir I'l la Russie' (o'est-a- dire, la limite des j)osfies.sions endues par cette Conven- tion) : ' sera I'ormoo par une ligne paralltle aux siauosiUfe dt la ii'ito et qui ne pourra jamais on ctre dloigniie que de 10 lieues marines.' " La limite occidentals des territoircs cedes passe par un point au Di^troit de lieliring sous le paralltle du G5° 30' de latitude tiord I'l son intersection par le m(5ridicn qui sdpare I'l distance legale les Isles Knisenatern on Ignalook et I'llc Ratmanoff ou Noonarbook, et remonte en lign^ directe, sans limitation, vers le nord, jusqu'a. ce qu'ulle se jjorde dans la Jler Olaciale. Commen^ant au meme point de d(5part, cutti? limite occidentale suit de lii un cours presque sud-oucst, i travers le Detroit de IJeliring et la Mer de Bcliring, de maniire a passer i'l distance dgale enlre le point nord-o\iest de I'llu Saint-Laurent et le point sud-est du C.ip Clioukotski jusqu'au meridien 172 de longitude ouest ; df ce point a partir de I'intersection de ce meridien, cette limite suit une direction sud-ouest de mauitre k passer ^ distance I'gale entre I'lle d'Attou et I'lle Copper du groupe d'ilots Kormandorski rlans I'OoJan I'acifique septentricnal, jusqu'au mi'riilien de l'X'° de longitude ouest, do mani6rc i\ enclaver, dons le territoire cudo, toutes les lies iMeoutes situ(jcs il Test de ce meridien. " ARTICLE II. " Dans le territoire cidi par I'ArticIe ])rt^ct'dent fi la souverainete des Ctats-Uuis, sont compris le droit de pro- pricte ."ir terns les termin.s et places publics, tenes inoccu- jiees, toutes les constructions publiques, fortifications, casernes, et autres edif'ce.s qui ne sont pas propriete privee individuelle. II est, tuutefois, entcndu et convenu que ks eglises, construites par le Oouvcrnement Rii.s.'io sur le territoire cedd, resteront la propricte des membres de rfiglise Greque Orientalo residant dans ce territoire et a]ipartenant i ce culte. Tous les archives, papitrs, et documents du Gouvemement, ayant trait au susdit teiTi- toire, et tpii y sont maintenant deposes, scront placijs entre les mains de 1' Agent des £tats-Un;s ; mais les fitats-Unis t'ournirnnt, toujours quand il y aura lieu, des copies k^galisees de ccs documents au Gouvernenient Russe, aux otRcievs ou sujets Russ&s qui pourront en faire la demande. 77 " AKTIOLK III. "II est reserve!' atix ImliiunU dii territoire ceiW le chouc tie gardur lour nationaliU' el, de reiitrer en Rtissie ilaua Tespnoe Commander Islands (Copper and Bohiing Islands) arc again classed among tho Aleutian Islands, which arc said to Ic included under two govcvninental dis- tricts by the Hussians, tlic Commander Islands belonging to the western of tliese districts (p. 38). Greenhow also states (liat the nam; "Alcutiau Islands" was first applied to Copper and Behring Iskmds. Indeed, in many Jlaps of various dates, tho title Aleutian Islands is so placed as impliedly to include tiie Commander Islands, in some it is restricted to a portion of the chain now recognized by tliat name. Similar diversity in usage with frequent instances of tho inclusion of the Com- mander Islands as a part of tho Aleutian Islands is fi)iind in geographical works of various dales. From tliis uncertainty in usage in respect (o tlu^ name of the .Vleutian Islands (though thes.- aro 80 now commonly considered to end to cho west- Tvai'd at Attou Island), it is obvious that, in defining a general boundary between tbc Russian and United States' possessions, it might have given rise to grave subsequent doubts and questions to have stated merely that the whole of 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 the various islands which ofte'.i appeared and still sometimes appear on diffcroit ^Maps luidcr alternative names would Lave been perplexing and unsatisfactory, from the very great number of these to bo found in and about liehring Sea. It was tlius entirely natural to define conven- tionally a general line of division fixed by an imaginary line so drawn as according to the best published Maps to avoid touching any known islands. The following is from the " Coast Pilot " of . 18G9: — " Tliu following list of the geographiciil poftitioii of Appendix No. 3. Tiliiccs, priiicipalh' upon the const of Ala.ska, liaf beei; United States' 1 1 1 • n , i> ■ .1 •.■ T -1 Coast Survey. coin])ik'a rliiilly lium luissiau autliontu's. In its pveparu- Coast Pilot of tion tin; inluntion was Lu introduce all determinations of Alaska 1869. position that appeared to liave been made by actual obsev- vatiou, even when the localities arc quite close. In the Archipelago Alexander most of ^'ancouver's latitudes have been intruduced, althongli in such watL're 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 severid observers had determined them independently, the errors may be less than 1 mile. Tlio longitudes of har- bours regularly visited by vessels of the liussian-American Company appear to be fairly determined, except toward tiie western terndnatiou of tlie Aleutian chain, whore large discrepancies, reaching 30' of arch, are exhibiled by the comparison of results between Russian authorities and the United States Exploring Expedition to the North Pacific in 18iju. Positions by diflerent authorities arc given in some instances to show these discrepancies. The conipari,son of latitudes and longitudes at A'iotoria, Fort Simpson, Sitka, Chilkaht, Kodiak, rnd Unalaska, between English and Russian and the United States' coast survey determinations, exhibit larger errors limn might have been expected. "The uncertainties that exist in the gcograi)hical position of many islands, headlands, straits, and reefs, the great dissimilai ity of outline and extent of recent exami- nations of some of the Western Aleutians, the want of loliablc data concerning the tides, cuirents, and winds, the 81 almost total want of det.ulod descriptions of liiadlands, reefs, bays, straits, Sec, and tlie (.■irciunstnntial testimony of the Aleutian fisliermun concerning islands visiteil by them and not laid down upon the Charts, point to the great necessity for an exhaustive geographical recomniaia- sanco of tlie coast, as was done for the coast of the United States between Mexico and British Columbia," The occasion for a western limit of the kind adopted is the more obvious, wlien it is boruo in mind that many of the islands in and about Beliring Sea are liero at the present day very imperfectly surveyed, and more or less uncertain in position. Thus, even the latest United States' Chart of what are now known as the Aleutian Islands (No. 6S, published in 1891) is based chiefly on information obtained by the " Nortli Pacific Surveying Expedition " under llogers, which was carried out in the sohooner "Fenimoro Cooper" in 1855. On sheet 1 of this Chart (embracing the western part of the Aleutian Islands), such notes as the following are found: — "The latest Russian Charts place Bouldyr Island 10 miles duo south of tlie position given here, which is from a determination by Sumner's method. "The low islands between Ga'oloi and Soulakh, ex- cepting the west point of Unalga, are from Russian authorities, which, however, arc widely discrepant." Similarly, in the corresponding British Ad- miralty Cliart (No. 1501) published in 1890 wo find the remark : — " Mostly from old and imperfect British, Russian, and American surveys." Even nn the latest Chart of Bering Son, published by tlio United States in 1891, .i. small islet is shown north of St. Matthew Island, near the centre of the sea, whicii docs not appear on the special Map of St. ^Matthew Island published in 1875, and which could not be found in 1891. That the line drawn through Behring Sea between Russian and United States' possessions was thus intended and regarded merely as a ready and defmitc mode of indicating which of the numerous islands in a partially explored sea should belong to either Power, is fm-ther shown [614] T 82 by a consideration of the northern portion of the same line, whicli is that first defined in the Treaty. From the initial point in Behring Strait, whicli is carefully described, the "limitc oeci- dentale " of i errilorics ceded to the TTnitcd States is said to "i-emontc en ligne directo, sans limita- tion, vers le nord, jusijn'ii ce qu'elle se perd dans la ]Mer Glaciale," or in the Unitc^d States' oflicial translation " proceeds due north without limitation into the same Frozeu Ocean." The "geographical limit" in this part of its length runs through an ocean which had at no time been surrounded by llussian t(.'rritory, and which liad never l)ecn claimed as reserved by Russia in any way, and to which, on th(! contrary, special stipulations for access had been made in connection with tlio Anglo-Russian Convention of 1825, and wliieh since 1818 or 1819 has been frequented by whalers and walrus-hunters of various nations, Avhile no single fur-seal has over been found witliiu it. It is therefore very clear that tlic geographical limit thus projected could Lave been intended only to define the ownership of such islands, if any, as might subsequently be discovered in this imperfectly explored ocean ; and Avhcn, therefore, in the order of the Treaty, it was proceeded to define the course of " the same western limit " from the initial point to tho southward and westward across Behring Sea, it is obvious that it continued to possess the same character and value. It is therefore contended that the Treaty dot? not purport cither expressly or by implication to convey any " dominion in the waters of Behring Sea," other than in territorial waters ivhich would pass as according to international law and the practice of nations as appurtenant to any terri- tory conveyed. 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, Avere, therefore, such only as became hers according to international law, by reason of her right to the possession of the islands and other territory situated in this sea. Admitting, in tlie consideration of this question, that Russia's title before 1867 to the coast of Behring Sea and to the islands within those waters was i;omplete, an examination of the _princii)les of international law and the practice 88 Wharton's " Digest," p. 106. of nations will sliow that her jurisdiction was confined to tlio distance of 1 marine league or 3 niiltis from licr sliores. The principle of the marine league was in 1875 applied, by Mr. Fish, the Secretary of State, to the v/aters now in question. Mr. Fish wrote to the United States' Legation in Russia on the Ist December, 1875 : — " There was reoaon to hope that the practice, wliicli for- merly prevailed with powerful nations, of regarding seas and l);iyn, usually of larj^o extent near their coast, a.s closed to any foreign cominorcu or fishery not specially licensed Ly tlieu), was, without exception, a pretension of the past, and that no nation would claim exemption from the gi'ueral ruin of piiblic law, which limits its maritime juris- diction to 1 marine leaj^iie from its coast. We should par- tiouliuly rcijret if Russia shoiUd insist on any such preten- sion." Wlicaton's " Inter- nntionul Law," vol. i, sec. 33, pp. 100 and 109. In view of the following reference to this sub- ject, from the brief of the United States in the ease of the " Thornton" in 188G, already referred to, it is not supposed that the general doctrine will be dispuli'd: — " Concerning the • doctrine of international law esta- hlishiiig wimt \^ knowi as the marine league belt, wliich extends the jurisdiction of a nation into adjacent seas for a distance of 1 marine league or 3 miles from its shores, and following all the indentations and siiiuo.sities of its coast, there is at this day no room for discussion. It must be accepted as the settled law of nations. It is sustained by the highest authorities, law-writers and jurists. It has been sanctioned by the United States since the foundation of the Government. It was affirmed by Mr. .lefferson, Secretar>' of State, as early as 1793, and has been re- affirmed by his succeasor.s — Mr. Pickering, in 179G ; Mr. Madison, in 1807 ; Mr. Webster, in 18-12 ; Mr. Buchanan, in 1849 ; Jlr. Seward, in 1862, 1863, and 1804; Afr, Fish, in 187.'i ; Mr. Evarts, m 1879 and 1881 ; and Mr. IJayard, in 1886. " Sanctioned thus b}' an unbroken line of precedents covering the first century of our national existence, the United Slates would not abandon this doctrine if they could ; they could not if they would." And again : — Ibid., pp. 2-100. " It thus appears that our Government asserted this doctrine in its infancy. It was announced liy Mr. Je.'l'erson as Secretary of State and by the Attorney-General in 1793. Mr. riekering, Secreti\ry of State in 1790, re- affirms it in his letter to the Governor of Virginia, in the following language : ' Our jurisdiction has been fixed to 81 extend 3 geographical inilea from our shores, with the exci^ptioii of any wiitors or bays wliich are so laud-locked as tu be unquestionably within the jurisdiction of the Stati s, bo thoir extent what they may.' "II.' Buchanan, Secretary of State, to Mr. Jordan, in 1849, reiterates this rule in the following language : 'The exclusive jurisdiction of a nation extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands.' " Mr. Seward, in tiie Senate in 1852, substantially Wheaton's " Inter- enunciates the same doctrine by declaring that, if we national Law," relied alone upon the old rule that only those bays whose p^im'^'^' ' entrance from lieadland to headland do not exceed 6 miles are within llie territorial jurisdiction of the adjoining nation, our dominion to all the larger and more important arms of the sea on both our Atlantic and Pacific coasts would have to be surrendered. Our right to jurisdiction over these rests with the rule of intcrnatiunal 1; iv which gives a nation jurisdiction over waters embraced within its land dominion." The same position was taken up by the United States in their brief filed with the Halifax Fisheries Commission iu 1877. The Agent of the United States at Halifax, after setting out the various authorities under this head, coneluded as follows : — " The jurisdiction of a State or country ovei' its adjoining waters is limited to 3 miles from low-water nuirk along its sea-coast, and the same rule applies ecpially to bays and gulfs whose wiiltli exceeds (i miles from headland to licadland. Property in and dominion over the sea can only e.xisl as to tliose portions capable of pennaneni posses- sion ; that is, of a possession from the land, which possession ciin only be maintained liy artilhr}-. At 1 mile beyond l he reach of coast-guns, there is no more possession than in mid-ocsr.u. This is the rule laid down liy almost all the writers on international law." As to inland seas and seas over which empire may extend, the following authorities may be ret'erjixl to : — "At present," says V'a'.lel, " Law of Nations," Book 1, eh. xxiii, i}§ 289, 291, " th ) whole space of the sea within cannon-shot of the coast is "onsidered aa niakinp a j.art of the territory ; and, for ;hat reason, a vessel taken under the guns of a neutral fortress is not a good prize. " All we have said of the parts of the sea near the coast may he said more particularly ond with .-nucli greater reason of the roads, buys, and straits, a^ : . ' n.."e cap i.ble iif bciii'; occupied, a'ul of greater import '■■c^ U> the .;afety of the countiy. But I speak of the Ikivs and straits of .small extent, and not of those great parts of the sea to 85 which tliese imnics nru soraotiines given — as Hudson's Bay and Iho Straits of Magellan — over which the Empire cannot extend, and stUl lesd a right of property. A bay whose entrauce may lie defended may be possessed and rendered subject to the laws of ihe Sovereign ; and it is of imj)ortance that it should be so, since the country inny be much more easily insulted in sucli a place than on the coast, open to the winds and the impeluosit}' of the waves." Professor Bluntschli, in liis "Law of Nations," Book 1, §§ 302, 309, states tbo rule in the same wav: — ' When tlie frontier of a State is firmed by the open sen, the part of the sea over which the State can from the shore make its power respected — ie.., a portion of the sea extending as far as a cannon-shot from the coast — is considered as belonging to the territory of that State. Treaties or agreements can establish other and more precise limits." Note. — The extent practised of tliis sovereignty has remarkably increased since the invention of far-sliooting cannon. This is the consequcme of the improvements made in the means of defence, of which the State makes use. The sovereignty of States over the sea extended originally only to a .stone's-throw from the coast ; later to an arrow-shot; fire-arms were invented, and by rapid progi'uss we have arrived to tlie far-shooting cannon of tlie present age. But still we preserve the principle : " Terrw dominium flnitur, uhijinilur armornm vis." " Within certain limit,-, there arc sub'.uitted to the sovereignty of the bonlering State : — " («.) The portion of the sea placed within a cannon- shot of the shore. " (t.) Harbours. "(c) Gulfs. " ((/.) lioadstead." Notf. — Certain portiouc jf the sea are so nearly joined to the term firma, that, in some measure at lea.st, they ought to form a part of the territory of the bordering State ; they are considered as accessories to the terra firma. The .safety of the State and the jmblic ipiiet are so depen- dent on them that they cannot be contented, in certain gulfs, with the portion of t)ie s-ea lying under the tire of cannon from the coast. These exceptions from the general rule of the liberty of the .sea can only be made fir weiylity masons, and when tlio extent of the arm of the sea is not large ; thus, Hudson's Bay and the Gulf of Mexico evidently art u part of the open sea. No one disputes the power of KngIaMi.1 over the irm of the sea lying bf I ween the Isle of Wight and the English coast, wliieh c muM not be admitted for the sea lying between England and freliuid, [OIL] Z 86 the English Admiralty has, however, sometimes main- tained the theory of " narrow seas ;" and has tried, but without success, to keep for its own interest, under tlie name of " King's Chambers," some considerable extents of the sea. Kl liber " Droit des Gens Modernes de I'Europe (Paris, Edition 1831)," vol. i, p. 216 :— " Au territoire maritime d'un fitat appartienneut les districts maritimes, ou parages susceptibles d'une pos- session exclusive, sur lesquels I'Etat a iicquis (jiar occu- pation ou convention) et coutiuue la .souverainett'. Sont de re noinbre : (1) les parties de Tocuan qui avoisiucnt le territoire continental de I'Etat, du moins, d'aprca I'opinion prosque gi'neralement adoptee, autant qu'elle? se trouvent sous la portce du canon qui sorait plac6 s'lr le rivage; (2) les parties de I'octen qui s'etendent dans le territoire continental de I'Etat, si elles peuvent Ctre gouvernces par le canon des deux bords, ou (j^ue I'cntrcV' seulement en pent etre defunduo nux vaisseaux (golfes, bales, ct cales) ; (3) les di'troits (jui s(5parent deux continents, ot qui (!'gale- meut sout sous la portde du canon plac(i sur lo rivage, ou dont I'entrde et la sortie peuvent 6tre di^fenduos (d(5troit, canal, bosphore, sonde). Sont encon! du infiue nombre ; (4) los golfes, detroits, et mers avoisinant h; territoire continental d'un £tat, lesquels, (juoiqu'ils no sont pas entieiemcnt sous la portce du canon, sont niknmoius roconnus par dautres Puissances comme mer fermi5e; c'est-i\-dirc, comme soumis a nne domination, et, par con- sequent, inaccessibies aux vaisseaux etrangers qui n'ont point obtenu la permission d'y naviguer." Ortolau, in liis " Diplomntie de la Mer," pp, 11-5, 153 (edition 1864), says : — ' On doit ranger sur la meme ligne iiue rades, et les portes, les golfes, et les bales, et tons lea enfoncements connus sous d'autrea di^'nominations, lorsque cos enfonco- tnents, formes par les lerres d'un meme £tat, ne depasseni pas 1-11 laigeur la double portce du canon, ou lorsque Tentrt'e pe\it en Ctre gouvernee par I'artillerie, ou qu'elle est di'fendue naturellement par des !les, par des bancs, ou ]iar des roclies. Dans tons ces cas, en eftot, il est vrai de dire que ci's golfes ou ces baien sont en la puissance de I'litat inaitrc du temttjire qui Ins ensorre. Cct fitat en a In pf)aaession; tons les raisonncmeuts (jue noua avous fait a r(''gard dea rades et des ports peuvent se ropt'ter ici. Les bords et rivages de la mer (pii baigue les cAtos d'un £tat sont les limites maritimes nalnriUca de eet Etat iluis pour la protection, pour la dt'l'ense plus cflicacf do ces limites natnrelles, la coutunie g(5netalo des nations, d'nccont avec lioaucoup de Traites [lublics, permetire [«!f] tracer sur mer, fi une distance convenable diis c6l*;8, et suiviut leurs contours, une ligne imaguiaire q>ii doit (5tre considereo cunimo la frontiiTo nuiritinu' iiililicielle. 'lout bfltimenl qui se trouve u terra de cetln ligne est dit ijtre Ea 87 iluiis Ics i:aiix do I'litat doiit el!'j raiiiotc; 'it do juridiction." lite lo druil df .-; .uvo- Undcr tlio clauses of the Convention of tlio 8th February, 1853, till} case of llio "Washing- ton " came before the Joint Commission for settlement of claims in London, and on tLo disagreement of the Commissioners uas decided by Mr. Joshua Bates in favour of the United States. In his decision he said : — " Tliu (iH'j.^tion turns, so far ns relates to tlie Treaty stipulations, ou tlie meaning j^iven to tlie wora 'bays ' in the Treaty of 1783. Uy tliat Treaty, the Ameritans had no ri^;ht to dry and cure fish on tlie shores and bays of Newfoundland ; but they had that right on the sliorcs, coasts, bui/s, harbours, and crcch of Nova Scotia ; and, as they must land to cure fish on Ihi; shores, bays, and creeks, they were evidently admitted to the sliores of the hays, &c. By the Treaty of 1818, the t^i-ne right is granted to cure fish on the coasts, buys, &c., of Newfound- land ; but the Americans reliuquislied that rigV.t, ana Cne right to jiih luUhin 3 miles of the coasts, bays, ic, of Kota Scotiu. Taking it for granted that the framers of the Treaty iiitendud that the word ' hay ' or ' bays ' should have the same meuiiing in all cases, and no mention being mada of headlands, there appears no doubt that the ' Washington,' in fishing 10 miles from the shore, vi'Jnted no stipulations ( f the Treaty. ■' It was urged on behalf of the British ( lovernment that by ' coasts,' ' hays," &c., is under.stood an imaginary line drawn along the coast from headland to headland, and that the jurisdiction of Her Majesty e.\tends 3 inaiine miles outsiile of this line ; thus closing all the bays on tho coast oil shore, and that great body of water, called tin; Bay of Fundy, against Aworicaus and others, making the latter a liritish bay Tliis doctrine of tho headlands is new, and ha.-i received a proper limit in the Convention between France niid Great Britain of tlio 2nd August, 18.'!9 ; in which ' it is agreed that the clistance of 3 miles, fixed ns the general limit for the c.vchisivo right of tishory upon the coa.stii of tho two countries, shall, with respect to bays the moutli-* of which do not e.we^l It* miles iu width, bo mcBSured from a straight line diiiwn from headland to headland.' ' The Bay of Fundy is from C5 to 75 miles wide and 130 to HO miles long , it has several bays on its coa.'»t ; thus the word ' buy,' as applied to this great body of water, hsis the same meaning as tliat applied to the Bay of iiiscay, tho Bay of Bengal, over which no nation can h.ivo the liv'ht to assum.' sovereignty. Ono#f the headl;. ' the Bay of Fundy i-. in the rnitcd Stales, and ships b i l to Pi Tlie assamaquoddy must 'jail through a large -'^vv oi it. islamh of lirand Maiiaii (liritish) and I.iule Jlaiian (AtncncAD) are sitn«* ^^^ <'^ "^. IMAGE EVALUATION TEST TARGET (MT-3) 4 A A % ^ fc ^ 1.0 [r'^l I.I 2.5 4" ^U, |20 U ■bU<. 1.8 11.25 llll 1.4 ill 1.6 V] <^ /i v: /A '^♦V^ (? / Photographic Sdences Corporation iV L17 v> % V 4f> R? ». ^* 6^ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) •72-4503 ^ to r^ A 90 Dane, in a note to Wheaton's "Elements," says : — "Tlif only (juestiou now is, whether a given sea or See HalUck. souiul iti, in fact, as a matter of politico-physical geography, witliiii the cxchisive jurisdiction of ono nation. The claim of sevenil nations, wliose borders surround a largo open sea, to comhinc and make it marc clmmim against the rest of the worhl, cannot bo admitted. The making of such a claim to the Baltic was the infirmity of the position taken up liy tlio Armed Keutrality in 1780 and 1800, and in the Russian Declaration of War against England in 1807." 01 ToiNTS I AND II. — User of Waters in question from 1867 to 1886. Chapter VI. Neither the Debates in Congress— which pre- ceded and resulted in the cession and its ratifica- tion by the United States. . . nor the Treaty by whicli it was carried into effect, nor the subse- quent legislation liy the United States, indicate the transfer or acquisition of any exclusive or extraordinary rights in Behring Sea. On the contrary, they show that uo such idea was then conceived. In answer to a Resolution of the House of Representatives of the ]9th December, 18G7, calling for all correspondence and information in the possession of the Executive in regard to the country proposed to be ceded by tluj Treaty, the Memorial of the Legislature of Washington Territory, which was made the occasion for the negotiation, together with ilr. Sumner's speech in the Senate, wore among other documents transmitted. Tliis Memorial shows that United States' citizens were already engaged in fishing from Cortoz Banks to Behring Strait, and that they had never been under any apprehension of any interference with such fishing by Russia, but desired to secure coast facilities, especially for the purposes of curing fish and reipairing vessels. The ilemorial is as follows : — "To liis Excclk'iicy Andrew Johnsou, President of tlie United Stat<»s. " Yom memorialists, the Lcgialnlive Assembly of \Va«li- ingloii Ti'rritory, be;; leave to show that abiindanco of cod- (isli, liidilml, and salmon, of txeellent miality, liave been fownd nloiij; the shores of the Itussian possessions. Your uieniorialists respectfully request yo\ir Excellency to obtain such rights and i)rivilege8 of the Governuienl of liussia as will enalili! oiu' lialiing-ve.ssels to visit the ports and harboui-s of its pos8ession.s to the end that fuel, water, and provisions may be easily obtained ; that our sick and disabled tishennen may obtain sanitary a.ssistiuice, together with the privilege of curing tish and repairing vessels in need of repairs. Yoiu- memorialists further rcciucsl that the Treasury Department bo instructed to forwaixl to the Collector of Customs of this Puget Souml district such fishing licences, abstnict-journals, a;id log-books as will enable our hardy fishermen to obtain thi! bounties now provided and paid to the iisheri»en iu the Atlantic States. 93 Your memorialista finally pmy your Excellency to employ such ships as may be spared from the Pacific naval fleet in exploring onil surveying the fishing banks known to navigators to exist along tlie Pacific Coast from the Cortez Bank to Behring Straits. " And us in duty bound your petitioners will ever pray. (Signed) "EDWARD ELDKIDGE, ^aArc, " Bouse of Jltpresentati'jes. "HAKVEY K. mJiYS, President " of the Council." It is of interest to nolo the report of the discussion which took place in Congress upon the value of the proposed purchase and the nature 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 was involved, and no one suggested the existence of an exclusive jurisdiction over any waters distant more than 3 miles from land. On tlio 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, which 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 const 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 (a sperm whale) witli his two long tusks of ivory, out of which was made the famous throne of the cnily T)iinisli Kings, l)elong8 to the Frozen Ocean ; but he, too, .strays into tlie Straits below. As no sea is now mare •Itntium, all thesi'. (whales) may Vie pursued by a .ship under r.iiy flag except directly cm the coast and within its territorial limit. And yet it seems as if tlie possession of this coast as a commercial base must necessarily give to its people peculiar advantages in tliis pursuit." Mr. Washburn, of Wisconsin, said : — "But, Sir, there has never been a day since Vitus Behring sigbtcd that coast until liio present when the pooplo of all nations have not been allowed to lish there, and to cure fisli so far as they can bo cured in n country whor^ they have CiUJy from forty-live to sixty pleasant days in the wliole year. England, whose relations with Russia are far less friendly than ours, has a Treaty with United Sut«t' Congmiional Debatei, from " CoDgreisiooal Globe," December II, 18C7. Part I, p. 138, 40th Cong., Snd Seu. Uaitcd Sutei' Coo^rauiontl Debate*, from "Congreuijnat Globr," Jul; I, 18C8, Part IV, p. 3C67, 40th Cong,, Snd S«ii. tliftt Government hy wliiili liiitisli sulijects nro allowed to fisli and cure ti.sh on tlint const. Nay, niore, sliu lioa a Trcuty givin)* 'i't aiilyocts for ever the free nnvi;,'iition of the rivers of Hiissian Aiiu'ri<'a, nml making Sitkn n free port to the coiJiiucrcc of (J rent Uritiiin." In 1868 Mr. Forriss spoke ns follows : — "That extensive linliiiig Imnks exist in these northern seas is (juito certain ; hut what ex.iusivo title do we get to tliem ? They are sairl to he far out at sen, and nowhere within I! marine leagues of the islands or main shore." Mr. Peters, iu the course of his speech, remarked : — " 1 l;elieve tliat all the evidence upon the suhject proves the proposition of Alaska's wortlilessness to lie true. Of com-se, I would not deny tlial lier cod lishcrics, if she has tliem, would he Bomewliat valuahle ; liiit it seems doubtiul if lisli can (Inil sun enough to he cured on her shores, and if even thiit is so, my friend from Wisconsin (Mr. Wash- burn) .shows pretty conclu.sively tlint in existing Treaties we had that right already." United Sutei' Congreuional DebaU'i, from Appeodix to " Congreuional Globe," July 9, 1868, Part V, Snd Seit., 40th Cong., p. 490. Hee nlao Bancroft'! Alntka, p. 670. Mr. Williams, iu speaking of the value of the fishes, said : — " And now as to the fishes, wliich may bo called, I suppose, the iiri/HiiifuliDa jH-uiiluriiiiit, ... or is it the larger tenants of tlie ocean, tlie more gigantic game, from the whale, the seal, and walrus, down to the halibut and cod, of whicii it is intended to open pursuit to the adventurous fishermen of the Atlantic coast, who ate there already in a domain that i.s free to nil > My venerable colleague (Mr, Stevens), who discourses a.s though ho were a true brother of tlie angle himself, timls the foiuidations of this great IJepuhlic like those of A'enioe or (lenoa among the fishermen. Beautiful as it shows above, like the fabled mermaid — 'disimit in 2>isc>in muHcr formosa stipcnif,' it ends, according to him, as does the Alaska argument itself, in nothing but a fish at last. B\it the resources of the Atlantic are now, he says, exhausted. The Falkland Islands are now only a resting place in our maritime 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 cxtlaims — I do not quote Ids precise language — what a burning .shame, is it not, to us that wo have not a spot of earth in all that watery domain on which to relit a mast or sail, or dry a net or fish ? — forgetting, all the while, that ^e have the range of those seas without the leave of nnyliody ; that the privilege of landing anywhere was just a. readily attainable, if wanted, as that of hunting on the territory by the British ; ixud, above all, tl at accurding to the olHoial Iieport of Capiain nowaiil, no lishing bank has been discovered within tlie Russian ladtudes." [614] 2 B M On tho 27th July, 1808, an Act passed the Legislation iu tho Uuited fitatw Coiu^ress of tlio United States,* entitled " An Act to oxtcnd the Laws of the United States relating to Customs nnd Narigntion over the territory ceded to the United States by Russia, to establish a Collection District therein, and for other purposes." On the 3r(l ifarcli, 1868, an Act was passed (section 1959), reserving for Government pur- poses tho Islands of St. Paul and St. George, and forbidding any one to land or remain there witliout permission of tho Secretary of the Treasury. The United States' Revised Statutes contain tho following provisions which were enacted on tho 1st July, 1870:— " Untied Slates' Revited Slattttts. " Section 19.14. The liiws of the Uuiteil States relating to customs, coimuerce, ftnil udvigfttioii arc extended to nnd over nil tlie niniiiland, islands, and wnteii. of the territory ceded to the United .%itcs liy the Kniperor of Russia by Treaty coneluded at Wasiiington on the 30th day of March, a.d. 18G7, so far as the same may bo applicable thereto. "Section 19")C. No peri'on shall kill any otter, mink, mirten, sable, or fur-.scal, or other fur-lwarinij animal within tile limits of Alaska territory, or in the waters thereof. . . . ".'Section 1057. . . ■ The collector aiid deputy collectors appointed for Ala.skn territory, and any person authorizeil in vritini; by eitlier of them, or by tho Secretary of the Treasury, .sliall have power to arrest persons and seize ve3S(ds and merchnndizo liable to lines, penalties, or forfeitures under tlii-s nnd tho other laws, oxtiuuied over the tenitory. . . ." On this date also was approved " An Act to prevent the Extermination of Eiu'-benring Animals in Alaska." In 1870 a lease was executed on behalf of the United States' Government in favour of the Alaska Commercial Company. It covered the Islands of St. George and St. Paul only. The seal fisheries were scarcely known or con- sidered at the date of the cession of Alaska. For the Act to prevent extermina- tlcn of fur-bearing animala in Alaska, see Appendix. For '.caae from United States to Alaska Com- merrial Company, August 3, 1890, «cc Appendix. • Now chapter lil of Title XXII f of the Revised Statute;, •ecs. 1954-:SS6. Do 44ih Con»cu, The Committee oi! Ways and Means of the No. m " ^°"8° °f Iloprcscntativcfl in 187(! reported, after taking testimony, thul/— No importance attached to seal fulieries at time " When thu i)ropositioii t(j imruhiwo l\w Alnnkii tii to it was very niiicli baHe.l on allef,'e:?rtion jf excluiire authority o'.er Bchiiujj Sea by United Stateg. H. R., Ex. Doc. Notwithstanding, however, the absence of a general knowledge and appreciation of the value of the rookeries and seal fisheries in 18(57 referred to above, it is found that from 18(57 down to and including 1885, vessels continued to visit and hunt in Bchring Sea without interference when outside of the ordinary territorial jurisdiction. Schooners from British Columbia were iishinsr llt'le/fc *"' ^'"'''■' ^^^ <^°'l '° 1^^*^' ""'^ ^^''^'^ ^° *^'^ number of 20,000 a-year were reported as being tukeu south [(iU] 2 C 98 of St. George and St. Paul Islands in 1870 and 1872. In 1872 expeditions for Behring Sea were reported to be fitting out in Australia and British Columbia. In 1876 a steamer was seen hunting among H. n., Ex. Doc. the seal islands. 44th*CoSg.)"t Ivan Petroff, Special Commissioner of the Sem. United States to the seal islands in the year 1880, says in his Report : — " As tliese .seals pasa up and down the coast as far as H. R., Ex. Doc. the Straits nf Fuca and the mouth of Cohimhia River, No- 40, 46th Cong., 3rd Se»8., vol. xvm, quite a number "f tlicm are secured ny huutcrs, wlio shoot p. 55, or spear them as tliey find tlicm asleep at sea. Also, small vessels are fitted out in San Francisco, which regularly cruize in theso waters for the purpose alone of shooting sleeping seal." Sealing- vessels and their catches were reported by tlio United States' cutter " Cormn," but none were interfered with when outside of the 3-mile limit. An Agent of the United States' Government reported in 1881 that 100 vessels had been scaling 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 tlio inadequacy of the protection of the islands, and they frequently referred to depredations upon the rookeries. From every soureo it apjjcars that, during the years 1807-80, notwithstanding the presence of seal-lmntiug craft in Behring Sea, the United States' authorities confined tlie exercise of juris- diction to the land and waters included witliin the ordinary territorial limits. ilr. Boutwcll's Report, as Secretary of the Troas\iry, preceded the Act of the 1st July, 1870. This Report discloses no suggestion of autho- rity at a greater distance tlian 3 miles from the sliore-line. With the knowledge of the raids upon the islands and I lie existence of seal-hunting schooners, Mr. BoutwcU dwelt upon the means of protecliiig I lie seal islands only. In the orders given to Iiicut(^uallt I. E. Lutz by the Cajitain of the United States' revenue marine steamer "Convin," 22nd May, 1881, H. R., Ex. Doc. No. 153, 49th Cong., Ut Sesa. H. R., Ex. Doc. No. 3883, 60th Cong., p. 58. 4l9t Cong., 2nd Sess., Ex. Doc. No. 109. Mis. Uoc, jOdi Cong. l«t Scan., II. K., No. C02, p 38. 99 care is taken to confine any interference with seal-hunters to those who might attempt a land- ing on the seal islands. Acting under these instructions. Lieutenant Lutz arrested the " Adele," of Ilarahurg, Oustave Isaacson, master, with three ofiieers 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 liaving waited the return of the ship's boat which came back loaded with seal carcasses, Lieutenant Lutz reports : — " Having now .secured all nccossRiy evidence, I notified the captain of the seizure of the vessel." 44th Cong., Itt Sos»., Ex. Doc., No. 83. p. 30. The following instructions from the Treasury Department show that the administration con- fined the interference of their officers to those seal-hunters only who attempted landing upon the islands : — " Treasury Department, " September 1(», 1870. " Tlie following Executive Order, relating to the importa- tion of arms into tiie Islaiids of St. Paul and St. George, within the district of Alaska, is published for tlie informa- tion of ofTicei's of the Customs : — " Exenitive Mansions, Washington, IJ.C, " September '.), 1870. ' So much of Executive (Jnler of I he -llli Februaiy, 1S70, as prohibits the importation and use of fire-arms and ammunition into and within the Islands of St. Paul and St. George, Alaska, is hereby iu(idilie< from the 1st day of Msy, 1870, in accordance with the provisions of an Act of Congress entitled ' An Act to prevent the Extermination of Fur-bearing Animals in Alaska,' approved the 1st July, 1870, and that, liy 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 be 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, " Collector of Customs. " Custom-house, Sa7i Francisco, California, " Collector's Office, September 28, 1870." Mr. Mclntyro was the Treasury Agent at the Pribyloff Islands in 1876. He then gave it as his opinion that, in pro- tecting the islands, he was entitled tr. repel by force " any attempt to kill seals in the rookeries or within a rifle shot of the shore." Ivan PetrofF, the Special Agent of the United States' Government, in 1880, in his Report on the seal islands, remarked : — " The fur trade of this country, with the exception of that confined to the seal isla^ids and set apart by law, is free to aU legitimate enterprise." Important light is thrown on the general question by the incidents arising out of whaling in the Sea of Okhotsk, which, as previously stated, began about 1813. The main objection to these whalers was be- cause 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 [614] 2 D 102 •TilihramifC ■ee Appendix. vessel In somo )iar1)our and to send the boats there- from ill pursuit of wlinlcH. Y'et the instructions to Russian cruizors only prohibit those vessels from coming " within 3 Italian miles of our shores, For «itraet from that is, the shores of Russian America (north of 51° IT), tlio Peninsula of Kamtclmtka, Siberio, the Kadjak Arehipclngo, the Aleutian Islands, the Pribyloff and Commander Islands, and the others in Dehring Sea." The Sea of Okliotsk is within the terms of the The Sen of Okhotak nnd tho 3-raile limic. Ukase of 1S21, and possesses a seal rookery (Robl)cn Island). An examination of the Slap will show that the Soa of Okhotsk has many more characteristics of an inclosed inland sea than the Bohring Sea. It is almost surrounded by Russian territory. The mouth of this sea is barred by a string of island's and reefs. The United States' Minister, Sir. HofTman, Hoffman to United writing in 1882, thus refers to it :- lu!:; M«'ch'?? "^ " A gliince at tlio Map will hIiow that the Kurile laluiids are iUiUcmI iicroas tlie oiitrancn to the Si'n of Okhotsk the entire ilistaiice from Japan on tlie south of the southem- uiost Calif of Kamteliatka on the north. " In tho time wlien Uuasia owned the whole of these islands, her IJei)resenttitives in Silieria claimed that the Sea 'if Okhotak wa.s a mare clausum, for that Russian jurisdiction extended from island to island and over 2 niariiit! Icugtios of intermediate sea from Japan to Kamt- eliatka. " But .nhout five years ago Russia ceded tho southern group of these islands to -'apan, in return for the half of the Island of Saghalin, w ch belonged to lliat Power. " Aa soon as this was ne it hecame impossible for the Siberian antluiritics to in tain their claim. My informant was not aware that tli laim had ever heen seriously made at St. Petersburgh. i8<)a. And in another let' • he says : — " I do not think the Russia claims that the Sea of Okhot- k is a mare clausum, over which she has exclusive jurisditliun. If she does, her claim is not a tenable one .since tlie cession of part of the group of the Kurile Islands to Jfi])ai:, if it ever were tenable at any time." Ibid., March 27 18S3. The following introductory statement appears in " Papers relating to Behriug Sea Fisheries," published at the Government Printing OflQce in Washington, 1887 :— " Tliis sea is a part of the waters to whicli the Ukase of 1821 applied, and which M. Poletica, in his subsequent corresj ondence with Mr. Adams, prior to the Treaty of 1824, said His Imperial Majesty, the Emperor of aU the loa ic " Europa.' " EndeaTour." " Java." Westmann to United States' Secretary of State, July 31, 1868, Papers relating to Benring Sea Fisheries, 1887, Washington, p. 101, RuDnias, might luivo claimed ax a close nua Imd li« cliospii to do .so. As liii.s Ih-'PIi setii, nil i)iic.stiuii ii.s to tlio ri).'lit of citizens of tliu United States, as well us of the subjects of Great Itritain, tn navigate and tish iu tho.su watcr.s, was given u]) liy Hiissia once for all in the Treaty of 1H24 vitli the United States, and of lH2."i witli (irpiit lirilain. " The following corresiiondenec liclweon ItuHsia ,cnd ihu United States in the years 18G7 ami ISCS contains nn explicit disavowal hy itussia of any claim to interfere with tho fishing operations of citizens of the United States in the Sea of Okhotsk." Tho correspondence referred to sliows that tho captain of tho " Europa," a United States' whalinf^-vessel, complained to the iJepartmont of SLato at Washington tliat the Captain of a Russian armed steamer had stated that he was authorized to drive United States' wlialers away from tho fishery on tho shore near Okhotsk city, in tho Sea of Okhotsk, and tliat he had fired on tho ship's boat of tho hark " Endeavour " of New- Bedford. It appears also that on the 27th July, 1867, the United States' bark " Java " was cruizing for whales in Shantar Bay and standing towards Silas Richard's Bluff, when a Russian Commander ordered him out of tho bay. Mr. Seward inquired of the Russian Govern- ment what instructions had been issued relating to fisheries in this sea. In reply to such inquiry, tho following expla- nation was received from M. do Westmann, Acting Minister of roreign Affairs at St. Peters- burg, which shows the claim of jurisdiction of Russia to have been confined to 3 miles only in Russian gulfs and bays, in tliis part of tho very waters covered by the Ukase of 1821 : — " These a e the circumstances : The schooner ' Alcout/ under the coinmand of Lieutenant Etoline, had beou sent in commission from Nicolaiov.sk to Oiidrk. The abundance of lloating ice having forced him to enter into the Gulf of Tougoursh, lie there met, the 14th July, at about 20 miles to the south of the Straits of C'hautarsk, near the ci.steru coast, the American whaler ' Java,' occupied in rendering the oil of a caiiturcd whale. Considering that foreign whalers are forbidden by the laws in force to lish iu tho Russian gulfs and bays at a distance less than 3 miles from the shore, where the right of lishiug is exclusively reserved to Russian subjects. Lieutenant Etoline warned ('invita') the captain of the 'Java' to 'bear off' from the Gulf of Tougoursh, which he at once did. The same day the ' Aleout ' made for the Bay of Mawgon, whero arrived on tho next day the American whalo schooner 'Caroline Foot,' whose captain, accompanied by the 104. captain of the 'Javo,' called on Lieutenant Etoline, and ik'cliived iliiit lie had no right to jn'ovent them from fishing for ^vhalos wherever the)- liked. Lieutenant Etoline replied tliat there were in that respect eslahli,,he.l rules (' regies '), and it they insisted ahsohitely upon breaking them that he would he compelled to prevent them. The captain of the schooner 'Caroline Foot ' pretending ('ayant pretendu ') tliat he had entered into the Bay of Tougoursh in coiiseipience of 'deviations from his course,' Lieutenant Etoline ollered at once all assistance in his power, and upcm request, delivered him 7 pouds of biscuit from the stores of the ' Aleout,' after which the two ships again went to sea. The 19tli of July, that is, four days after- wards, tlic schooner 'Aleout' mot a whale, upon which the Commander caused a trial lire to be made. At tlie same moment was seen, at about 10 miles distance, a sail name unknown, and, nearer, three 'chaloupes,' the nearest of whieli was at least 3 miles in advance in the direction of the cannon fire. In the evening all these ships liad disappeared. That incident is registered in the books of the ' jVleout ' in the following terms : ' The IDlh July, at 9 in the evening, at anchor in the Bay of Mawgons, fired a cannon shot for practice at a whale afloat.' From these facts (ienoral C!lay will be convinced that the incident alluded to has been exaggerated, and even per- verted (' denature '), much in order to be represented as a cansc of gi-iovance against the Commander of the ' Aleout ' on the part of the American whalers." Tlic explanation was considered satisfactory. Mr. Seward observing that " tbo captain of the ' Java,' spoke unwarrantably wlien by implication he denied that the Russian autliorities have the ■ right to prevent foreign vessels from fishing for •whales within 3 miles of their own shore." In passing it may be noted that whalers took seals as well as whales in these waters, par- ticularly resorting to the rookeries on Robben Island for this purpose. The following evidence was given before the whalers sometimes soal-hunters. Committee of Ways and Means in the House of Representatives at Washington (3rd ^fay, 187G) :— " Q. Who are Williams, Haven, and Co. > — A. WiUiams, Soc American Haven, and Co. are Jlr. Ifenry 1'. Haven, of Connecticut, "*?""> »°°'' who died last Sunday, and liichard Clmpel. Tliey are whalers. They took seals and wlialcs, and had been at that business in the Pacific for a great many years. " Q. They had an interest in these skins t—A. Yes, Sir. 4ntiou of the firm being called to the above Notice, they wrote tlu! Secretary of State of the United States calling attention thereto. The Secretary of State (Mr. rrclinghuy.s(;n) inclosed their letter, together with the rcgiila- [Old] 2 E 106 tions "touching the Pacific coast fisheries," as he termed them, to the Fnited States' Minister at St. Pctorshurg. Mr. Hofifman, the United States' Minister, acknowledged the receipt of this despatch, in reference vo what he also called *' Our Pacific Ocean fisheries." In the replies of M. de Giers to Mr. Hoffman, he explained that these regulations applied only to territorial waters, and that the maritime waters were, by the Code, open to the use " of one .ind all." Mr. HoiTman incidentally in the correspondence remarks : — "The best whaling grounds are found in the bays and ivlels of the Sea of Okhotsk. Into these the Russian C overnmeiit does not permit foreign whalers to enter, u]/oii the ground that the entrance to them, from headland to headland, is less than 2 marine leagues wide." Indeed, M. de Giers, writing to Mr. Hoffman See pp. 110, ill, on the 8tli (20th) May, 1882, makes it clear that BeErinVsea'"'' '" as to sealing, whaling, and fishing the rule was fisheries, W»»hing- tlie same, and tliat the pi-ohibition of vessels engaged in these pursuits extended only over the marine league from tlie shores of the coasts "and the islands called the 'Commander' and the 'Seals' (Robben Island) in Behring Sea." Oil the 21st July, 1884, tlie United States' "Eli«a." schooner " Eliza " was seized by the Russian cruizor "Ruyoboinek" in the Anndir River, which runs into Anadir Bay, a northern portion of Behring Sea, It was represented to the United States that she was there trading and hunting walrus, 'I'lic Vice-Consul-Gcneral at Japan termed the seizure " an act of piracy." General Vlaugaly, writing from the Depart- ment of Porcign Affairs on the 19th (31st) January, 1887, explained that the " Eliza " was arrested, " not for the fact of seal bunting," but for violating the prohibition touching trading, liunting, and fishing on the Russian coasts of the Pacific without special licence. The crew, it was found, were trading with the natives on the coasts of Kamtchatka, as well as iishing for walrus. Mr. Lotlirop, writing to Mr. Bayard, the United States' Secretary of ,Statt', roniarks : — " 1 may add that tlie lltissinn Code of Trizi; Law of 1869, Article 21, and now in for .i-, limits the jurisdictional ^ waters of Russia to 3 inilcB from the shore." 107 "Hemieiia." On the 21tli August, 1886, the United States' schooner "Ilenrietta" was seized off East Cape, in Behring Strait. Explanations from the Russian Government were promptly demanded. It appeared she was arrested for illicit trading on the Russian coasts. Nevertheless, !Mr. Bayard, writing to Mr. Lotlirop on the 16th March, 1887, observed : — " If, as I am to conclude from your despatch, tlic seizure of the ' Henrietta ' was made hi Ilussian territorial waters, then the Itussiau authorities hail jurisdiction ; and if the condemnation was on proceedings ihily instituted and administered before a competent Court and on aileiiuate evidence, this Department hag no right to complain. But if either of these conditions does not exist, tlie condemna- tion cannot be internationally sustained. The first of these conditions, viz., that the proceedings .^lioiild have been duly instituted and administered, could not lie held to exist if it should appear tliat the Court before whom the proceedings were 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 n denial and perversion of justice lor which thi,5 Govcrnmen'; is entitled to claim redress. " The same right to redress, also, would arise (/ it should appear that while llic seizure was within the o-inile zone, the allei/ed offence was covimitted exterior to that zone ai'd oti the high lea^. " You are, therefore, instructed to iu(|uiro not merely as to the mode in which the condemning Court was con- stituted, but as to the evidence adduced before such Court, in whicli the exact locality of seizure should lie included." The instructions given from time to time to Commanders of the Revenue Service, or of ships oC war of the TJnitod States cruizing in Behring Sea, organizing a Government in Alaska and guarding the interests of the Alaska Commercial Company upon the islands leased (o the Company, do not even suggest the intention of that Govern- ment to assert a claim so vehemently disputed when advanced hy Russia. On the contrary, while vessels from .British Colimihia and elsewhere were trading and fishing generally in the Behring Sea, and while vessels — chiefly those of the United States — were actually raiding the rookeries, the instructions relating to the iisheries given to Revenue jMarine vessels by the United States' Government, until 1880, were confined, as hns been shown, to the immediate protection of the seal islands. The seizure of British sealers in the open sea 108 followed Ihc Ecpoit on the cruize of the Revenue Marino stcamor " Corwin " in the year 1885. In tliis Report, it is anions other things stated, that a special look-out was kept I'or vessels scaling •while shaping a course for St. Paul. The Captain writes : — "Wliilc wo were in tlie vicinity of the seal isknds a look-ont wns kept iit llie mastlieiul for vessels eiuizing, sciilin;:, or illicitly trading ainon;/ those islanih." Having ih-awa attentioii to tlie number of vessels which, had taken, or had endeavoured to take, tlio seals on the shores of the islands, and illustrated the great difliculty of preventing the landing thereupon, the Commander concludes as follows : — "In view of the foregoing facts, I would re.srcclfiiUy suggest— "1. That the Deimnnunit cause to be pvinted in the vestern paiiers, particularly those of San Francisco, California, and Victoria, British Colnnibia, the .sections of the law relating to the killing of fur-bearing animals in Alaskan waters, and defining in specific terms what is meant by Alaskan waters. "2. That a revenue cutter be sent to cruize in the vicinity of the Pribyloff Islands and Aleutian group during the sealing season." This suggestion was never adopted. G IIP:A T Signed a i?fl Preaenic PUIN Auil TREATY SERIES. No. 8. 1892. TREATY AND CONVENTION |GIIP:AT BRITAIN AND THE UNITED STATES OF AMERICA RKLATINO TO BEHllING'S SEA. Signed at Washington, February 29 au^April 18, 1892 Ratificaltons exchanged at London, May 7, 1892. ^ Preaentad lo both Jlouses u/ Parliament by Cummnnil uf Her Majealj/. Muy l8'Ji LONDON! PRINTKO l'"OU IIKK MAJKSl'Y'.S STATIONKltV OFKICK, Bf IIAIIUISON AND SONS, ST. MAKTINS l,,\NK, PKIMIKM IM OBDI.VARV Til HER MAJESTI, Ami to lio luiroliMoil, cither ilircelly or liiroiiyli eiij- DoukwlliT, from iiiii! i SrorriswooDii, Kust llnriliiij; Slreul, V\ccl sirutl, K.(;., airl Si, Aliin/rilon .Slrtet, Wislmiiioler, 8.\V'. ; or Joaa Musuf) & Co., 12 Hiiiigvcr Sliccl, Eil.uliiir!,'li, and 90, >Veiit Nile Street, (iliw^fow; or Il0£uu, FiMis «i Co., 104, Oralloa iilrect, Dublin. iu connection therewith." litcd States' Qovcrn- revcnue cutters with iresscls, when outside its, if pursuing seals , to the eastward of ioned in the Treaty 1 States was, except [(already mentioned) ;! attempt to actively the vessels of other h in the waters of .torial waters. ji in fact, distinctly i the United States' ithe first assertion of ted States over that .n the line of demar- , British Minister in I protest in the name mcnt against these lesitation on the part h' attenjpt to maintain r action. I issued the following !st :— I. D. Ball, United States' tka, Alaska. dent to instruct you to pgs in the matter of the paroliua,' ' Onward,' and feels now held under such lihat may be under arrest Renewed aeiiurcs. Notwithstanding this order fresh seizures took place in July and August of 1887. Dm-in'^ those two months the United States' revenue cutter "Richard Rush" captured the British Columbian fishing schooners "W. P. Sayward," 59 miles, "Dolphin," 10 miles, " Grace," 96 miles, and "Anna Beck," 66 miles, from Unalaska Island, the nearest land; and the "Alfred Adams," 60 miles from the nearest land. [614] 2 I- followed the llopoit on Mariuo steamer " Corw In this Report, it is t that H special look-out i ■while sliapin;^ a coiirso. The Captain writes :-j " Wliili' \vu wtiv in tiio look-diit WHS Ui'iit lit tilt! : sciiliii,!,', ov illicitly Iratliiij^ < ilavinjj,' drawn atte: vessels which, hail take take, the seals on th and illustrated tlu; grei the landing thereupon, as follows : — "In view of the fovogoii su^'gcst — "1. That the Doiiaitmeu vestdiii iiiii)ui'K, particuhu Calilbniiii, lunl Viclmia, ISri the law rflaliiig tn iho kill Alaskan waters, and tleliui meant by Alaskan waters. " 2. That a revenue cut •vicinity of the I'ribylofl' . during the sealing season," This suggestion ^^■as i TREATY AND CONVENTION BETWEEN GREAT MIUTAIN AND Till'; UXITKD STATES OF AMERICA JIELATING TO IJEUIUNG'S SEA. 'II. itcd States' Govcru- ■cvcnue cutters with iesscls, when outsido its, if pursuing seiils to the eastward of ioued in the Treaty- No. 1. Ti-Fiili) ht'lii-eni Clrcut TIritr.in and tlf Vnili'il ■'^/iitff tif Amer'xcn .lil'i/r'ilioii rmjifcl'mr ti'-n S'ml Fhhuifs in lirhiinga Sea, Sif/ned al HV;s/i('»///(/)i, Fehninrij 29, 1S92. [RatificaUoni exchanyed nl London, May 7, 1892.] Her Majesty the Queen of the United Kingdom of Great Britnin nnd Ireland mid t!ie United States of America, heing desirous to |)rovide for an amiciiblo s ettlement of tlie quest ions whicli have arisen hetwcen the ir respcrtive (iovernmeiits -.'on- cerniiii; "tTTc"iurisilictio nal ri^lits oTtlic Lnitcd States in the wat ers of IMirinj;'s5ca~amT eo nceriiini; also the preservation of the fur- oi iJennng s nca, ana eo nceriuni; aiso me ireservacron oi me lu r- seal in~i)r~na1)ituallv rcsortin" to the said sea, and the" riglits of th e citizens and suhjeets ot eith er country as rei;a rds thejakimj of fiiMeal in or habitually resqrtingto the said_^aters,TTave resolved t() suIjimFlb arbitr;i.!i)"nThe guostmiis invoT\-cilT aTul to the end of coiicUiding n Convention tor tliat purpose lutTc ajipointed as their respective i'leiiipoteiiliariesu Iler Majesty the (lueen of the United Kingdom of Great Britain and Ireland, Sir .luliiin Pauneefotc, G.C.M.O., K.CB., Iler Majesty's Envoy Exlraordiuary and Minister Plenipotentiary to the United States; and the President of the United States of America, James G. Blaine, Secretary of State of the United States ; iVIio, after having communicated to each other their respective Full I'jwers, which were found to he in due and proper form, have agreed to mid concluded the following Articles ; — [38G] States was, except (already mentioned) attempt to actively the vessels of other ih in the waters of itorial waters. ^ iL- fact, distinctly the United States' the first assertion of .ted States over that In the line of demar- j British Minister in I protest in the name imcnt against in conncctiou therewith." these lesitation on the part li attempt to maintain r action. I issued the following jst:— »I. D. Ball, United States' ttka, Alaska. iden! to instruct you to pgR iu the matter of the ijCarolina,' ' Onward,' and isels now held under such ijhat may be wider arrest Renewed seizures. Notwithstanding this order fresh seizures took place in July and August of 1887. During those two months the United States' revenue cutter "Richard Rush" captured the British Columbian fishing schooners "W. P. Say ward," 59 miles, "Dolphin," 40 mUcs, " Grace," 96 miles, and "Anna Beck," 66 miles, from Unalaska Island, the nearest land; and the "Alfred Adams," 60 miles from the nearest land. [614] 2 F r^ ^■'C, ARTICLE I. followed the Eepoit on Marino steamer " Corw o In this Ueport, it is i that fi special look-out • ■while shaping a course The Captain ^^•l■itos :- "Wliili' wo WL'ie in the look-out wns kejit at the : scaliiij;, ov illicitly trailing e Havini,' drawn atte: vessels wliieh. hail fak« take, tiio seals on th antl illustrated the grci the landing; thereupon, as follows : — " In view uf the loicgoii suggest— "1. TliiU tlie Dt'jiarlniei: west(Mii i)a])ur.s. {larliculni Calil'oniia, and Victoria, Bil the law relating to the kill Alaskan waters, anil defiui meant hy Alaskan water-. " 2. That a revemn^ cut vicinity of the rribyloff (luring the sealing season." This suggestion was i ^^ '^' The Questions which have arisen between the Government of Her liritannie JMajesty and the (lovernnient of the United States concerning the jurisdictional rights of the United States in tlie waters of Hehring's Sen, and concerning also the preservation of tlip fur-seal in or lialiitually resorting to the said sea, anil the rights of tiie eitizens and subjects of either country as regards the taking of fur-seal in or habituallv resorting to the said waters, shall be submitted t o a Tribunal of ArbitratigiL, to lie eoni|ioscd of sevenTToiuatorsTwlio shall be niipointcd in the following manner, that is TO say: two shall be named by Her Hritannic Majesty; two shall be named by the President of the United Slates; his Excellency the I'resident of the French Ifepublic shall be jointly requested l)y the High Contracting Parties to name one; His Majesty the King of Italy shall be so reipiested to luinie one; and His Majesty the King of Sweden and Norway shall be so requested to name one. The seven Arbitrators to be so nunicd shall be jurists of distinguished reputation in their respective countries ; ajnl the selecting Powers shall be requested to choose, if possible, jurists who are acquainted with the English language. In case of the death, absence, or incapacity to serve of any or cither of the said Arbitrators, or in the event of any or either of the said Arbitrators omitting or declining or ceasing to act as such, Her Hritannic Majesty, or the President of the United States, or his Excellency the President of the French Uepublic, or llis Majesty the King of Italy, or His Majesty the King of Sweden and Norway, as the case may be, shall name, or shall be requested to name forthwith, another person to act as Arbitrator in the place and stead of the Arbitrator originally named by such head of a State. And in the event of the refusr.l or omission for two months after rccei))t of the joint request from the High Contracting Parlies of bis Excellency the President of the French Republic, or !Iis Majesty the King of Italy, or His Majesty the King of Sweiien and Norway, to name an Arbitrator, either to fill the original ap|)ointnient or to fill a vrs and to the Agent of the other party as soon as may he after the appointment of the members of the 'I'ribaniil, hnt within a period not exceeding four months from tlie date of the exchange of the ratifications of this Treaty. AUTICLK IV. Within three months after the delivery on botli sides of the printed case, either party nuiy, in like manner, deliver in duplicate to eacTi of the said Arbitrators, and to the Agent of the other party, a counter-case, and additional documents, corrcspocidencc, and evidence, in reply to the case, documents, corresponde'ice, and evidence so prcsenteil by the other party. If, however, in consequence of the distance of the place friini winch the evidence to be presented is to be procured, cither parly shall, within thirty days after the receipt by its A^^ent of ti.e (•■ise of the otlier jiarly, give notice to the other party that it re(|uirvs additional lime fur the deliverv of such counter-ease, documents, cm-respondencc, and evidence, such additional time so indicated, but not exceeding sixty days heyoiul the three inoiiths in this .Article provided, shall be allowed. If in the case suhmittcd to the .\rbitnitcn's cither party shall have spccilied or alluded to any l.'eport or document in it's own exclusive possession, without annexing a copy, such ])arty sliall be bound, if the (ither [larty thinks projier to apjily for it, to furnish that party with a copy '-hereof; .-ind either Jjurty niav call upon the otlu'r, through the Arbitrators, to produce the origiiials or certitied copies of any papers anth after the expiration of the tune hmitcd for the deliverv (if the counter-case on both sides, to deliver in duiil-ate to eacii . Ball, United States' itka, iVJa.ika. idont to instnict you to ings iu the matter of the Carolina,' ' Onward,' and Bsels now held under such ...j*that may be under arrest Renewed seiiurcs. ^--'otwithstiiiiding this order fresh seizures took place ill .Tuly and August of 1887. Duriiig those two months the United States' revenue cutter " Richard Hush " captured the Britir't Columhian fishing schooners " W. P. Say ward," 5!) miles, "Dolphin," 10 miles, " Grace," 90 miles, and " Anna Beck," 6G miles, from Uiialaska Island, Ihc nearest Lmd; and the "Alfred Adams," 00 miles from the nearest land. [014] 2 F followed I he Report on Marine steamer " Corw In this Ileport, it is i that a special look-out • ■while shaping a course The Captain writes :- " Wliili' wii were in the ; look-out wna keiit at the ! soaliii.i,', ov illicitly trading c Ilavini,' drawn atte vessels which had lake take, tlio seals on tl» and illustrated tlie grei the landing thereupon, as follows ; — "iU view of tlio Ibrcgoii " 1. That the Deiiartineij western itajiers, partionlai Californiii, and Victoria, I'rl the law relating to the kill Alaskan waters, and dofini meant by Alaskan waters. " 2. That a reveiiui^ cut vicinity of the Prihyloff during the sealins season." This suggestion was i A ARTICLE VI. In deciding tlie njiitters submitted to the Arhitrators. it is agreed that the following Hve points shall be submitted to them, in order that their award aliali embrace a distinct dccisiuii upon each of said five points, to wit : — • I. What exclusiv' jurisdietioii in the sea now known as the Heluing's Sea, and what exclusive riuhls in the seal tisherios therein, did Russia asseit and exercise prior and up to the time of the cession of Alaska to the TTnitcJTStates? '-'. How far were these claims of jurisdiction as to the seal fisheries recognized and conceiled by (ireat Britain:' ."!. Was the body of w iter now known as tlie Hehring's Sen included in the phrase "■ I'acilic (Jeean," as used in the Treaty of IH'-',") between (ireat Britain ami Russia; and what rigiils, if any, in the IJcfiring's Sea, were held aiul exclusively exercised by Russia after said Treaty ? 4. Did not all the rights of Russia as to jurisdiction and as t.) the seal lisheiies in iJehrifiy's Sea east of the water boundarv, ii the Treaty between the I'nitcd ,'^t;■.tes ami Russia of th; •'U)ti> .March, \x(>J. pass unimpaired to the United States uni.oj *''"it Treaty r "). lias the I'nitcd .States any right, anu giving to the other party two mouths' notice of its termination, and at the expiration of such notice the Conveulion shall cease to be in force. ARTICLE VII. The present Convention shall be duly ratified by Her Britannic Majesty and by the President of the United States of America, by and with the advice and consent of the Senate thereof ; and the ratifications shall be exchanged, either at Loudon or at Washington, as early as possible. In faith whereof, we, the respective Plenipotentiaries, have signed this Convention, and have liereuiito adi.xed our seals. Done in duplicate, at Washington, the 18th day of April, (Signed^ JULIAN PAUNCEFOTK, JAMES G. BLAINE. 109 Points I and II.— Seizures by the United States and the grounds upon which they were justified. In his Report, 1886-87. Hesitancy on part of United States. Chapter VII. In tho year 1886 the United States' Govern- ment for the first time sent revenue cutters with instructions to take sealing-vessels, when outside of the ordinary territorial limits, if pursuing seals in tliat part of Behring Sea to the eastward of the geographical limit mentioned in the Treaty of Cession. This action by the United States was, except in the case of the "Pearl" (already mentioned) in the year 1822, the first attempt to actively interfere with the right of the vessels of other nations to navigate and fish in the waters of Behring Sea other than territorial waters. The Governor of Alaska, in fact, distinctly referred to tho action of the United States' cutters in 1886 and 1887 as the first assertion of the jurisdiction of the United States over that portion of Behring Sea within the line of demar- cation. Sir L. S. Sackville West, British Minister in Washington, made a formal protest in the name of ncr 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. Attorney General Garland issued the following order, after tho British protest :— " Judge Lafayette Dawson and M. D. Ball, United States' District Attorney, Sitka, Alaska. "I am directed by the President to instruct you to discontinue any further proceedings in the matter of the seizure of the Britisli vessels ' Carolina,' ' Onward,' and ' Thornton,' and discharge all vessels now held under such seizure, aud release all persons that may be under arrest in connection therewith." Renewed seiiurcs. Notwithstanding this order fresh seizures took place in July and August of 1887. During those two months the United States* revenue ( utter " Richard Rush " captured the British Calumbian fishing schooners " W. P. Say ward," 59 miles, "Dolphin," 10 miles, " Grace," 90 miles, and " Anna Beck," 60 miles, from Unalaska Island, the nearest land; and the "Alfred Adams," 60 miles from tho nearest land. [6U] 2 F # 110 : Formal protest was again made. No seizure occurred in 1888, thougb British sealing'Tcssels made large catches in that year in Behring Sea. In 188!) British ships were ordered out of Behring Sea, but not confiscated. No seizures have occurred subsequently, though a large number of sealers visited the sea in 1890 and took seals therein. The legality of the seizures at once became a subject of much discussion and debate in the United States. During the fiftieth Session of the House of RefmalofCongreti ReprcsentativftSj in 1889 the Committee on Marine united Suius!' ° 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-seal and other fisheries in the Behring Sea in 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 Russia to the United States, and construing different Acts of Congress as perfecting the claim of national territorial rights to over the open waters of Behring Sea everywhere within the above-men- tioned limit. The concluding portion of the Report states, among other things, as follows : — " Tliiil Ui3 chief object of the purchase of Alaska was the acquisition of the valuable products of the Behring Sea. "That at tlie date of the cession of Alaska to the United States, Russia's title to liehring Sea was perfect and undisimted. " That liy virtue of tlie Treaty of Cession, the United States iicfjuired 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 Bill reported contained the foUov;mg SecHon : — "Section 2. That section 1956 of the Revised Statutes of the United States was intended to include and apply, and is hereby declared to include and apply, to all the , Ill waters of Beliring Sea in Alaska cmbrnced within th« boundary-lines mentionoil and dcacviJieJ in tliu Treaty witli Russia, dated the 30th March, A.D. 1867, hy which the Territory of Alaska was ceded to the United States ; and it Hhall lin the duty of the President, at a timely season in each year, to issue liis Proclamation, and causo the same to ho published for one mouth 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 violatiii:^' tho provisions of said Section ; and he shall also cause one or more vessels of the United States to dili<,'ently cruize saiil waters and arrest all persons and seize all vessels foiind to be, or to have been, engaged in any violation of the laws of the United States thereia" The Senate, however, declined to assume tho position herein taken. A Confercnco of tho Houses resulted in the ahandonmcnt of this clause. The Act of the 3rd March, 1889, leaving tho law in this respect unchanged, was approved by the President. The Section, as finally adopted, 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 tho 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 19,56 of the Revised Statutes 01 the -United States is hereby dec' i U o include uuJ apply to all the dominion of the »,'• . , States in tho waters of Behriug Sea, and it shall bo the duty of the President, at a timely se.ison in each year, to issue his Proclamation, and cause the same to be published for one month in at least one newspaper (if any sucli there be) published in each United States' port of entry on tlio Pacific coast, warning all persons against entering said waters for the purpose of violating tlie provisions of said section, and he shall causo one or more vessels uf 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.' " And the House agree to the same." On tho 19th August, 1887, after the seizure of tho "W. 1*. Sayward," and while she was in custody, the United States' Secretary of State wrote identic instructions to the United States' 112 TMinistors in France, Germany, Great Britain, Japan, Russia, and Sweden and Norway in the following terms : — " Eecent occurrences have (Iriiwii the attention of this Ex« DoOi, p. 106, Department to the necessity of taking steps for the hotter protection of the fur-seal iishcrios in lieriug Sea Without raisiwi unij question as to the exceptional measures wliich the particular character of tho property in nuestion might justifji this (lovernincnt in taking, and vilhoul reference to any exceptional marine jurisdiction that iniyht .properly be claimed for that enr', it is deemed advisahh , and I am instructed by the I'resident so to inform you, lo attain the desired ends by international co-opebation. " Under th.ese circumstances, and in view of the common interests of jVLL nations in preventing the indiscriTninate destruction and consequent extermination of an animal which contributes so materially to the commercial lecalth nnH general use of mankind, ^ou are hereljy instructed to draw tlic attention of tlio Government to wliich you are accrecUtcd to the subject, and -inritc it to enter into such an arrangement with the Government of the United States as will ])rcvent the citizens of cither country from killing seal in Bering Sea at such times and places, and by such methods as at present pursued, and whicli threaten the speedy extermination of these animals and consequent serious loss to manhind," So to Mr. White, Secretary of the United States' Legation in London, with reference to this propc iition, he wrote : — " Tlio suggestion made by Lord Salisbuiy, that it may be iiccessari/ to bring uthor Governments than the United States, Great Britain, and Kussia into the armngements, 7mts alreadi/ been met by the action of the Department. As I have heretofore informed you, at the same time the invi- tation J/'rts sent lo the liritish Government to negotiate a Convention for seal protection in Rring »Sivf, k like invita- tion was extended to vario\is other Powerj, which have, without exception, returned a favourable response. In order, therefore, that the plan may be carrieu out, the Con- vention jiroposcd betweciLlliC United Slates, Great Britai.'i, and Kussia, should contain a clause providing for the sidju- qucnl admission of other Pouers." In 1888, moreover, the Secretary of State for the United States apparently considered it im- possible to maintain Iho ground suggested by the Bill as first reported upon by the Committee of Marine and Pisjheries. In a despatch to the Minister at the Court of St. James' (the 7th February, 1888), wheu, . Bthring Sea aaid to be aa iDiand water. 118 after referring to the killing of seals in Behringf Sea, ho wrote : — "Tlio only way of obviatiDg the lamentable ruisiilt aliove predicted ajipeais to be by tlie United States, Great Britain, and other interested Powers taking concerted action to inevent their citizens or subjects from killing fur-seals with (ire-arms or other destructive wciiiions nortli of r)0° of nortli latitude, ami between 100° of longitude west and l7it° of longitude east from Greenwicli, :bores of Alaska, i.e., north, not only to Behring Strait, tint to Point Barrow and the Frozen Ocean, thus iiu'liisiiig witliin its ti-rrilory, as within the endjrace of a mighty giant, the islands and waters of liehring Sea, and with this the assertion and exenise of dominion over land and .sen. " Such is our understanding of the law. such is the y rd, Upon them the United States are pri'pared to abide tlie .rndgnnuits of the Courts and the opinion of the civilized world." On tlie lOtli Septemher, 1887, the Marquis of H.ilishiiry addressed Sir Lionel West, British ^Minister at Wasliington, as follows : — "The ilaini tlius set up appears to be founded on the e.xcep.tional tillo .said to have been conveyed to the United Stales liy Itussia at the lime of the ee.ssion of the Alaska Territory. The pretension whiob the l!\issian Government January 33, 1890. 115 at one time put forwnnl to (ixclnsivo jurisdiction ever the whole of Behi'iiig Sea was, however, )ievor ndniitted. either by this country ur liy 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 o£ Mr. Blaine's despatch of the 22nd January, 1890, to Sir Julian Pauncefote, wherein it was for the first time s(>t up that it was contra honos mores to engage in the killing of seals at sea. Mr. Blaine, after promising Sir Julian Paunce- fote, the British Miuister at Washington, to put in writing the precise grounds upon which the United States justified the seizures, wrote as follows : — Blaine to Sir J. " In tlio opinion of the President, the Canadian vessels rauncefote ^^^^ arrested anrelend<'d wants, to llieir different modes cif thinking, and to lluar real nicjile of acting upon this particular subject, it must be equally evident that such a concurrence was matter of very difficult attainment. But the dilliculty of the attainment will not legalize measures that are otherwise illegal. To ])ress forward to a great principle by breaking through every other great principle that stands in tho way of its estabhslnnont ; to force the way to the liberation of Africa by trampling ou the imli'pendenei^ of other States in Europe ; in short, to procure an cminont good by means that are I'.nhnvful, is as little consonant to private nu)rality as to public justice. Obtain the concurrence of other nations, if you can, by 126 application, by romonstrance, by example, by every peace- able instrument which man can employ to attnict the con- sent of man. But a nation is not justified in iissuining ^iHllt.^ that do not belong to liiT, merely ))eoauso Hhc means to apply tliem to ;i laudaM purpose, nor in setting out upon a moral crusade ul i .ertiiig other nations liy acts of unlawful force. Nor is it to be argued that because other nations approve tlie ultimate purpose, they must, therefore, submit to every measure which any oiu\ .State or its subjects may inconsiderately adopt for its attainment." The .Tu(lj,'ment of the Vice-Admiralty Court of Sierra Leone, condemning the Ercnch ship for being employed in the Slave Trade and for forcibly resisting the search of the King of England's cruizcrs, was reveraed. "Antelop«." The decision of the Supreme Court of the 10 Wheaton, 66. United States in the case of the " Antelope " is to the same ctVcct. There Chief Justice Marshall delivered the opinion of the Court, holding that the Slave Trade, though contrary to the law of nature, was not in conflict ^ lb the law of nations : — " Xo principle of general law is more universally acknowledged than the perfect equality of nations. Eussiii and (lencva have equal rights. It results from this equality that no one can rightfully impose a rule on anotlier; each legislates for itself, but its legislation can operate on itself alone. A right, then, whicli is vested in all by the consent of all, can be divested oidy by consent ; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations, and this traffic remains lawful to those whose Governments have not forbidden it. " If it is consistent with the law of nations, it cannot, in itself, be piiacy. It can be made so only by Statute, and the obligation of the Statute cannot transcend the legislative power of the State which may enact it. " If it be neither repugnant to the law of nations nor piracy, it is almost superfluous to say iu this Court that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade, cannot exist. The Courts of no country execute the penal haws of another, and the course of the American Covernment on the subject of visitation and search would decide any case iu which that right had been exercised by an American cruizer on the vessel of a foreign nation not violating our municipal laws against the captors. " It follows that a foreign vessel engaged in the African Slave Trade, captured on the liigh seas in time of peace by an American cruizer and brought in for adjudication, would be restored," [614] 2 £ 126 Tlic subject is fully discussed in Mr. Dana's note No. 108 to Wlieaton (p. 258), where it is said oL' Chief Jus jco Marshall, in Church against Hubbard, 2 Craneh, 187 :— " It is true tliat Chief Justice Mai:liall ndmitleil the right of a nation to Focure itself against intended violations of its laws by seizures made witldn reasonable limits, as to which, he said, nations must exercise comity and concession and the exact extent of which was not settled, and in the case before the Court the 4 leagues were not trealed as rendering the seizure illegal. This remark must now be treated as an unwarranted admission. .... It may be said that the principle is settled that municipal seizures ca;inot be made for any purpose beyond territorial waters. It is also settled that the limit of these waters is, in the absence of Treaty, the marine league or the cannon-shot. It cannot uow be successfully maintained either that municipal visits and search may be made beyond the territorial waters for special purposes, or that there are different points of that territory for different objects; but as the line of territorial waters, if not fixed, is dependent on the unsettled range of artillery fire, and if lixed must bo by an arbitrary measure, the Courts iu the earlier cases were not fitrict as to standard of distance wliere no foreign I'mvers inlenxiwl in the causes. In later times, it is safe to infer that judicial as well as political Tribunals will insist on one line of marine territorial jurisdiction for the exercise of force on foreign vessels in time of peace for all purposes ahke." Til the absence of any trustworthy information as to the grotinds upon whicli the United States l)ase so extraordinary a claim to the right to protection or property- iu animals Fem- Naiurw, the further consideration of thi.s claim must cf necessity be postponed.