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Preiented to both Houses of Parliament hy Command of Her Majesty. March 189S. LONDON: PRINTED FOR HER If AJESTY'S CTATIONBRY OFFICB BY HARBUON AND SONS, ST. MARTIN'S LANE. raumBa in oBBnABT to ■■• HAJinr. Aad Is b. pBiakind, dihw dlnetlj or throafh asj BodryriW, tnm BTBB Am SrOTTISWOODB, Bact Habbims Sabbt, Flbbt Stbbbt, B.C, am M, AaiMaaoK Stbbbt, Wistmimstbb, S.W. j ob [JOHN MBMBIBS k Co., IS, Hahotbb Stbbbt, Bdwbvb.*, abb M, Wbbt NU.B BnuBT, Glamow ; .b H0DGB8, nOOIS ft Co., Uaitad, IM, OBtrroB Stbbbt, Dvbub. .(<:? : GENERAL CONTENTS. The Case now submittod to tho Arbitrators on the part of the Goyornment of Her Britannic Majesty contains a statement of the facts which that Government considers to be material to enable the Arbitrators to arrive at a just conclusion upon the points submitted to them by the Treaty of Arbitration. It contains also some general propositions which that Government believes to be in accordance with the established principles of International Law, and upon which it intends to rely. The Case is arranged as follows :— Chapter I, He«d (A). Chapter II, Head (B). Chapter III, Head (C). Chapter IV, Head (D). Chapter V, Head (E). Chapter VI, Head (F). Chapter VH, Head (0). Chapter Vnr. Chapter IX. Chapter X. Introduotory Statement and Outline of Argument . . . . Arrangement of Coae and Headi of Argument . . . . . . The User, up to the year 1831, of the Waters of Behring Sea and other Waters of the North Pocifio . . . . . . . . The Ukoae of 1821, and the circumstonees connected tberswith leading up to the Treaties of 1824 and 182S .. The question whether the body of Water now known as Behring Sea is included in the phrase "Pacific Ocean," as used in the Treaty of 1826 between Great Britain and Russia . . . . The User of the Waters in question from 1821 to 1867 What rights passed to the United States under the Treaty of 30th March, 1867 ■. •• .. .. •• Tho action of the United States and Russia from 1867 to 1886 Vorious contentions of the United States since the year lo86 Has the United State* any right, and, if so, what right, of protection or property in the Fur-Seals frequenting the Islands of the United Slates in Behring Sea when such seals are found outside the ordi- nary 3-mile limit ? . . . . . . General Conclusions upon the whole Case . . . . , . Recapitulation of Argument . . . . . . . . . . Conclusion •• •• .. •• .. .• .. Pages. 1-9 9-12 13-36 37-58 69-76 77-90 91-102 103-120 121-134 135-140 141-157 158-160 161 %■ •' ( BEHRING SEA ARBITRATION. Case presented on behalf of the Govern- ment of Her Britannic Majesty to the Tribunal of Arbitration. Introductory Statement. Seizures of British ships. INTRODUCTORY STATEMENT. THE differences between Great Britain and the United States of America, the subject of this Arbitration, arise out of claims by the United States of America to prevent and interfere with British vessels fishing in the waters of Behring Sea other than the territorial waters thereof. Prior to the year 1880 British vessels had, in common with the vessels of the United States and those of other nations, navigated and fished in the non-territorial waters of Behring Sea without interference. In 1886 the British schooner " Thornton " was arrested when fishing 70 miles soath-east of St. George Island, the nearest land. The vessel was libelled in the United States' District Court of Alaska by the District Attorney, the charge formulated being that the vessel was "found engaged in killing fur-seals within the limits of Alaska Territory and in the waters thereof, in violation of Section 1056 of the Revised Statutes of the United States." The vessel was condemned, and the master and mate were imprisoned and fined. The British schooners " Carolena " and " On- ward " were seized about the same timo when fishing under similar circumstances, and were subsequently condemned by the District Court. |248] B a * The Judge (in summing up the caic of the dOth Conj.. «nd "Thornton") ruled that the Law above men- eiVdoc. No. 106. tioned applied to all the waters of Bchring Sea EP *^L' m j^ east of 103° of west longitude. Suim, No.' 3, 1890, Oertain other vessels were also subsequently PP^^ M'nd?i ■eized in non-territorial waters, and the fishing of to), iii. British vessels was interfered with under the oiroumstances hereinafter stated. Great Britain protested against this action on the part of the United States, and nego- tiations took place, which eventually resulted in the Treaty and Convention entered into at Washington on the 29th February and the 18th April, 1892. Tho Treoty is as follows : — Treaty of 1892. " Her Majesty the Queen of the United Kingdom of Great Britain and Ireland und the United States of America, being desirous to provide for un amicable settle- ment of the questions which have arisen between their respective Governments concerning the jurisdictional rights of the United States in tho waters of Behriiig Sea, and concerning also the preservation of tho fur-seal iu or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seal 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 as their respective Plenipo- tentiaries : " Her Majesty tho Queen of the United Kingdom of Great Britain and Ireland, Sir Julian Pauncefotc, O.C.M.G., K.C.B., Her Majesty's Envoy Extraordinary and Minister Plenipotentiary to the United States ; and the President of tho United States of America, .Tames (}. Blaine, Secretary of State of the United States ; " Who, after having communicated to each other their respective Full Powers, which were found to be in due and proper form, have agreed to and concluded the following Articles :— "ARTICLE I. " The questions which have arisen between the Govern- ment of Her Britannic Majesty and the Government of the United States concerning the jurisdictional rights of the United States in the waters of Behring Sea, and con- cerning 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-seal in or habitually resorting to the said waters, shall be sub- mitted to a Tribunal of Arbitration, to be composed of seven Arbitrators, who shall be appointed in the following manner, that is to say: two shall be named by Her Britannic Majesty ; two shall be named by the President TrMty of 1892. of the UniU'tl Stiiti'H ; hm KxcL-llcinty tlu! rreaidt-nt of tho French Keptiblii; sluill Ik< jointly roquesU'd liy the High Contrurting I'artiuH tn nniiu! ono ; IIIh MiijcRty tho King of Italy hIiaII Im so TwiweaU'il to niiinu uno ; and His Majesty thti King uf Sweden luid Norwiiy shnll be ao requested to name one. Tiie seven Arbitmtors to bo so named shnll ))u jiiiista of distin^uiHlied reputation in their rcH])ectivc countries: and the selecting Powers shall be rc(|ueated to choose, if ]>OBHible, jurists who are acquainted with tho Knglish liinguage. " In ease of the death, absence, or incapacity to serve of any or either of the wiid Arbitrators, or in the event of any or either of the mM Arbitrators omitting or d(!clining or ceasing to act as such, Her Britnnuir Majesty, or the President of the Unit<'il States, or his Kxnellency tho President of the French l{epulilie,or Ifis Mnjesty the King of ltecn or shall bo laid before them as herein provided on the part of the Governments of Her Britannic Majesty and the United States respectively. All questions considered by the Tribunal, including the final decision, fhall be determined by a majority of all the Arbitrators. " Each of the High Contracting Parties shall also name one person to att«nd the Tribunal as its Agent to represent it generally in all matters connected with the arbitration. •ARTICLE III " The printed Case of each of the two parties, acconi panied by the documents, the official correspondence, and other evidence on which each relies, shall be delivered in duplicate to each of the Arbitmtors and to the Agent of the other party as f^oon as may be after the appointment of the members of the Tribunal, but within a period not exceeding four months from the date of the exchange of (he ratifications of this Treaty. "ARTICI.K IV " Witbin three months after the delivery on both aides of the priuted Cow, vitlior party iiiity, in like manner, deliver in duplicate to emh of the said Arbitrators, and to the Agent of the other iNirty, n C()\inter-Caae, and additional dooiiment«, corre8])on(iuiiler-Ca8c, documents, corre- spondence, and evidrnce, such additional time so indicated, but not exceeding nixty days l>oyoiid the three months in this Article provided, nhall be allowed. " If in the Case submitted to the Arbitrators either party shall have specified or alluded to any Report or document in its own exclusive possession, without annexing a copy, ■ucli party shall be bound, if the other party thinks proper to apply for it, to furnish that party witli a copy thereof ; and either party may call upon the other, through the Arbitrators, to pnxlucu the originals or certified copies of any papers acMuceil as uvidenuo, (giving in each instance notice thereof within thirty days after delivery of the Case ; and the original or copy so requested sb^ll be delivered as soon »s may be, and within a period not exceeding forty dayx ai'ter receipt of notice. . : - y. "ARTICLE Vr "It shall be the duty of the Agent of each party, within one month after the expiration of the time limited for the delivery of the Counter-Case on both sides, to deliver in duplicate to each of the said Arbitrators and to the Agent of the other party a piinted argument showing the points and referring to the evidence upon which his Government relius, and either party may also support the same before the Arbitrators by oral argument of counsel ; and the Arbitrators may, if they desire further elucidation with regard to any point, require a written or printed statement or argument, or oral argument by counsel, upon it ; but in such cose the other party shall be entitled to reply either orally or in writing, as the case may be. Treaty of 1892. "ARTICLE VI. " In deciding the matters submitted to the Arbitrators, it is agreed that the following five points shall be sub- mitted to them, in order that their award shall embrace a distinct decision upon each of said five points, to wit: — " 1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska to the United Stetes f Questions for the decision of the Tribunal. Tmtj of 1891 "2. How far were thei« cUinu ol janidiction as to th« ■eal fiiherics recoffnized and conceded by Great Britain 1 " 3. Waa the body of water now known as tlie Behring Sea included in the phraae ' Pacific Ocean,' as used in the Treaty of 1826 between Oreat Britain and Russia; and what rights, if any, in the Behring Sea, were held and exclusively exercised by Russia after said Treaty ? " 4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Behring Sea oast of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that Treaty ? " 5. Has the United States any right, and, if so, what right, of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea when such seals are found outside tlie ordinary 3-niile limit ? of the Tribunal, " ARTICLE VII. " If tlw 'l"*ennination of the foregoing questions as to the exclusiTi' j : isdiction of the United States shall leave the subject in auch ])oaition that the concurrence of Great Britain is i.eceasary to the establishment uf Regulations for th*^ roper jy.otectio:i uiid preservation of the fur-seal in, or nabituallv remiung to, the Behring Sea, the Arbi- tiators shall tlii>'i determine what concurrent Regulations outside tilt jurisdictional limits of the respective Govern- ments are necessary, and over what waters such Regula* tions should extoiid, and to aid them in that determination, the Report of a Joint Commis.^ion, to be appointed by the respective Governments, shall be laid before them with such other evidence as either Government may submit. "The Higli Contracting Parties furthermore agree to co-operate in securing the adhesion of other Powers to such Regulations. ^ "ARTICLE VIII. " The High Contracting Parties having found themselves unable to (^ree 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 claimd presented and urged by it; and, being solicitous that this subordinate question should not interrupt or longer delay the submission and determi- nation of the main questions, do agree that either may submit to the Arbitrators any question of fact involved in said claims, and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation. "ARTICLE IX. " The High Contracting Parties having agreed to appoint two Commiasionera on the part of each Government to make the joint investigation and Report contemplated iu the preceding Article MI, and to include the terms of the ■aid Agreement in the present Convention, to the end that the joint and several Reports and recommendations of said Commissioners may be in due form submitted to t'ue Arbitrators, bhoulil tin- contingency therefor arise, the said Agreement is arcordiugly herein included as follows : — " Each Govtinmeut shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other Oovernnient, all the facts having relation to seal life in Behring Sen, und the measures necessary for its proper protection and preservation. " The four Commissioners sliall, so far as they may be able to agree, make a joint Report to each of the two Governments, and they shall also report, either jointly or severally, to each Governmont on any points upon which they may be unable to agree. " These Reports shall not be made public until they shall 1)6 subraittcil to the Arbitrators, or it shall appear that the contingency of their being used by the Arbitrators cannot arise. Treaty of 1893. " ARTICLE X. " Each Government shall pay the expenses of its members of the Joint Commission in the investigation referred to in the preceding Article. • ARTICLE XI. " The decision of lh(! Tribunal MlutU, if possible, be made within three luuiitli.s fruni the clu»e of the argument ou both sides. " It shall bf mode in writing uml dated, and shall be signed by the Arbitrators who may as.sent to it. " The decision .shall be in duplicate, one copy whereof shall be delivered to tlie Aj,'ent of Great Britain for his Government, and the other copy shall be delivered to the Agent of the United States for his Government. "ARTICLE XII. " Each Government shall pay its own Agent, and pro- vide for the proper remuneration of the counsel employed by it and of the Arbitrators appointed by it, and for the expense of preparing and submitting its ca.se to the Tribunal. All other expenses connected witli the Arbitra- tion shall be defrayed by the two Governments in equal moieties, " ARTICLE Xin. " The Arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessary officers to assist them. "ARTICLE XIV. ' The High Contracting Parties engage to consider tlie result of tile proceedings of the Tribunal nf Arbitration as a full, i)tir(!ct, iiml fiiinl sotlluuiuiil ol nil lliv iiue^tions refora'd to tho Arbitrators. "AKTU'LE XV. "The present Treaty sliall l>e duly ratilied liy Ifer nritaiuiic Majesty and by the President of the Tnited States of Anieriea, l>y and with tho advice and eonsent of tlie Senate thereof ; and the mtilicalinn.ss hall be exihanged either at Washington or at London within si.K months from the date hereof, or earlier if possiblo. " In faith whereof, wc, the ri.si)ee.tive 1'lenipoteniiario.s, have signed this Treaty, and have hereunto alli.xed our seals. " Done in dujilicate, at Washington, the li'Jth day of February, 1892. (L.S.) "Jl'LlAN l'Al'NCJ:i'OTE. (L.S.) " JAMKS G. BLAINK," Outline of Argument. Outline of Argument. The general outline of tlio argument suhniitted to the Tribunal of Arbitration on behalf of Great Britain vill be as follows : — That Behring Sea, as to which the question arises, is an open sea in which all nations of the world Jiave the right to navigate and fish, and that the rights of navigation and Ashing cannot be taken away or restricted by tlic mere declaration or claim of any one or more nations ; they are natural rights, and exist to their full extent unless specifically modified, controlled, or limited by Treaty. That no mere non-user or absence of exercise has any elTeet upon, nor can it in any way impair or limit such rights of nations in the open seas. They are common rights of all mankind. In support of these princi])les, which arc clearly established, and have never been seriously disputed by jurists, authorities will be cited. That in accordance with these principles, and in the exercise of these rights, the subjects and vessels of various nations did from the earliest times visit, explore, navigate, and trade in tho sea in qnestion, and that tho exercise of these natural rights continued without any attempted interference or control by Russia down to the* year 1821. [248] 8 That in 1821 when Russia did attempt hy Ukase, i.e., by formal declaration, to close to other nations, the waters of a great part of the Pacific Ocean (including Behring Sea) Great Britain and the United States immediately pro- tested against any such attempted interference, maintaining tlic absolute right of nations to navigate and flsh in the non-territorial waters of Behring Sea and other non-territorial waters of the Tacific Ocean. Both countries asserted that these riglits Mere common national rights, and could not be taken away, or limited by Uknso, Vroc'lamation, or Declaration, or otherwise than by Treaty. That in tiic years ]82'1 and 1825,^ in conse- quence of these protests, Russia imconditionally withdrew her pretensions, and concluded Treaties with the United States and with Great Britain which recognized the rights common to the subjects of those countries to navigate and fish in the non-territorial waters of the seas over which I'ussia had attenijjted to a.^ssert such pretentions. That from the date of such Treaties down to the year 1807 (in which year a j)ortion of the tciTitories which had been referred to in and affected by the I'kaseof Russia in the year 1821, was piucbascd by and ceded to the United States,) the vessels of several nations continued, year by year, in largely increasing numbers, to navigate, trade, and fish in the waters of Behring Sea, and that during the whole of that period of nearly fifty years there is no trace of any attempt on the ))art of Russia to reassert or claim any dominion or jurisdiction over tlie non-territorial waters of that sea, but, on the contrary, tlie title of all natiojis to navigate, fish, and exercise all common rights therein was fully recognized. Tiiat on the purciiase and acquisition of Alaska by the United States in the year 1807, tiie United States were fully aware and recognized that tlie rights of oilier nations to navigate and fish in the non-territorial waters adjacent to their newly-aeqiiired territory, existed in their full natural state, unimpaired and unlimited by any Treaty or bargain wliatever. That, from the year 1807 down to the year ISSG, the United States, Avbilo they lawfully and pioperly controlled and legislated for the shores :*ud territorial waters of their newly-acquired Outline of ArKuuieiit. Outline of Ai^Riimcnt. I ■-.•'Ul- territory, did not attempt to restrict or interfere with the ripfhts of other nations to navigate and fish in the non-territorial water* of Beliring Sea or other parts of the Pat-ific Oeean. Tluit, niider changed conditions of territorial ownership, and in view of certain new circum- stances which had arisen in consequence of the growth of tlie industry of i)elagic sealing in non- territorial waters, the United States reverted, in the first instance, to certain claims hased upon those of the Russian Ukase of 1821, which the United States, together with Great Britain, had successfully contested at the time of their pro- mulgation ; but in tiie course of the discussions which have arisen, these exceptional claims to the control of non-territorial waters were dropped, and in their place various unprecedented and indefinite claims put forward, which appear to be based upon an alleged property in fur-seals as such. Finally, that while Great Britain has from the first strenuously and consistently opposed all the foregoing exceptional pretensions and claims, she has throughout been favourably dis- posed to the adoption of general measures of control of the fur-seal fishery, should these be found to be necessary or desirable with a view to the protection of the fur-seals, provided that such measures be equitable and framed on just grounds of common interest, and that the adhesion of other Powers be secured, as a guarantee of their continued and impartial execution. Arrangemenl of Case. Arrftngomciii nl ( iim-. Artirli- VI. It will be convenient to state the arrangement and order of the Case here presented on behalf of Great Britain. The first three points of Article VI are as follows : — " 1, What exclusive jurisdiction in ttie sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Ilussia assert and exercise prior and up to the time of the cession of Alaska to the United Stotes? " 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain ? [248] C 2 10 " 3, Was the body of water now known as the Behring Sen iuchided in the phrmu ' I'iU'iric Ocean,' as used in the Treaty of 1825 lietweeu Groat liritain and Russia; and wliat ri>,'ht^, if any, in tlio Helirin^ Sea, \>ero hold and exclusively exercised by llussiu after tlia said Treaty ? " Arrangement of Case. It is proposed in the iirst iust moo to deal with these points, which relate to the original elaiins by Russia to ccrUiiu riglits iu Bohring Sea, and the action of Groat Britain respecting these claims. The questions tlioreiu raised will be considered under the following heads : — (A.) The user ui) to the year 1821 of Behring Chuptcri. Sea and other waters of the IS'orth racific. """^ ^^ (B.) The Ukase of 1S21 and the circumstances chapter II. connected therewith leading up to the Treaties of ^*"^ ^• 1821 and 1825. (C.) The question whether the body of water chapter III. now known as Behring Sea is included in the ^^"^ ^• phrase " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia. Head* of Argument. (D.) The user of the waters in question from Chapter IV 1821 to 1867. Head D. It is then proposed to consider point 4 of Article VI, which is as follows : — "4. Did not nil tlic rights of Itussia as to jurisdiction and as to the seal lisheries in Behring Sea east of the water boundary, in tlie Treaty between the United States and Russia of the 3(lth March, 18G7, pass unimpaired to the United States under tliat Treaty ? " This point will be considered under the follow- ing heads : — (E.) What rights passed to the United States Chapter v. under the Treaty of Cession of March 30, 1867. """^ ^■ (F.) The action of the United States and Chapter VI. Russia from 1867 to 1886. • "*•'* '"'• (G.) The various contentions advanced by the Chapter vii. United States since the year 1886. Point u of Article VI is as follows : — " lliis the United States any right, and, if so, what Chapter VIII. riglit, of protection or property in the fur-seals freq'ienting Article VI, Point 5 Arraugemont of Case. 11 the islands of tlie United Swtc3 in Bchring Soa wlien such seals arc found outside the ordinary 3-uiilo limit ? *' niis will 1)0 hriolly ousiiloivd, but thopro[).)si- tioii wliich appears to bo cmboilii'd in this question is of a clnractoi- so unpreeeilcuto.l that, in view of the abseuco of any precise deliuitiou, it is iiupossiblo to diseuss it at leiii;th at tlu present time. It will, liowevcr, be treated in (he light of such olUcial statoaicats as have hitherto been made on the part of tlio United States, its discussion in detail being necessarily reserved till such time as tho Unitcnl States may ])n)duce the evidence or allegations upon which it rolics in advancing such a claim. Article VII is as follows : — Article VII. "If llii' di'tonniiiation of the foioj,'oiiig questions as to the exclusivo jurisdiction of the rnited Slates sliall leave the snl)j(!i't in sucii position that llie continence of Great Uritiiiu is necessary to the estaltlishinent of Itegnlations for the proper protection and iircserwition of the fur-seal in, or haliitually resortinn; to, tlit- IVhrinj; Sea, the Arbi- trators sliall then determine what conciu-rent Regulations outside the jurisdictional limits of tlio resi)ective Govern- ments are necessary, and over what waters such Uegula- tions should extend, and to aid them in that detcruiiuatiou, the Report of a Joint Commission, to be appointed by the respective (Joveniments, shall be laid before them, with such other evidence as either Government may submit. "The High Contracting I'aities furthermore agree to co-o]icrate in securing the adiieslon of oilier Powers to SHcli Regulations." The terms of this Article make it necessary that the consideration of any proposed Regu- lations shouhl be [lostponcd until the decision of the Tribunal has been given on the previous questions. Beyond, therefore, demonstrating that the concurrence of Great Uritain is necessary to the establishment of any Regulations which have for their object the limitation or control of the rights of British subjects in regard to seal fishing in non-territorial waters, it is not proposed to discuss the question of the proposed Regulations, or the nature of the evidence which will be submitted to the Tribunal. Article VIII. With regard to the points raised under Article VIII (which refer to questions arising 12 out of claims for damages), it will be contended on behalf of Great Britain that the seizure of the ships was unlawful, and the Arbitrators will be asked to find that in each case the seizure took place in non-territorial waters, that such seizures were made with the authority and on behalf of the Government of the United States, and that the amounts of damages with Great Britain is entitled to claim on behalf of the owners, masters, and crews are the respective amounts stated in the Schedule of particulars appended to this Case. Arrangement of (.'*»e. 18 ; -■ Mi^n.'W.v ». User of Waters up to 1821. Area to be considered. ' Pacitic Ocean ' ' Bell ring Sea.' Gbaftbb I. Head {\).—The User, up to the year 1821, of the Waters of Behring Sea and other Waters of the North Pacific. It is shown in the following series of historical notes, chronologically arranged, that the waters suhscquently included in the claim made by Russia under the Ukase of 1821, had been freely navigated over, and frequented for purposes of trade and for other purposes, by ships of various nations, from the earliest times. Further, that the discovery and exploration of these waters and the coasts and islands washed by them, was largely due to the navigators of various nations, and in particular to those of Great Britain. The waters affected by the Russian Ukases of 1799 and 1 821* include not only the entire area of Behring Sea (though that sea is not specifically mentioned by any name in cither Ukase), but also other parts of the Pacific Ocean, and in considering the nature of the user of the waters now in question, the entire area affected by the Ukase of 1821 is included, the facts relating to all parts of this area being of equal significance. It will be noted in this connection that the limit claimed imdcr the Ukase extended south- ward to the Slst parallel of north latitude on the American roast ; and that, therefore, any events occurring to the north of 54° 10', which is the southernmost point of the territory now known as Alaska, are well within tiiis limit. The Pacific Ocean as a whole, was, in the last century and in tiie early part of the present century, variously named the Pacific, or Great Ocean or South Sea, the last name arising from the circumstance that it had been reached by sailing southward round the Cape of Good Hope or Cape Horn, Behring Sea is, and was at the time of the negotiations which arose immediately on the promulgation of tiie Ukase of 1821, recognized by geographers as a part of the Pacific Ocean. • The text of the Ukase of 179& will lie foiimi ai |). 2i of llili Cane ; that of the Ukase of 18-.'l at E7. 14 . The unnio by which it is now knowu is that of the navigator Behring, but in earlier times it was often named the Sea of Kamtchatka. This sea washes tlio northern parts of the coasts of North America and of Asia, and is regarded as extending from Behring Strait on the north to the Aleutian and Commander Islands on the south. Its area is at least two-thirds of that of the Mediterranean, and more than tAvice that of the North Sea, while its extreme width is 1,260 miles. From north to south it extends over about 14 degrees of lati tude, or more than 800 miles. From the south it is approached by numerous open sea-ways, one of which is 175 miles wide, another 95 miles, five more from 55 to 22 miles, and very many of smaller width. On the north., it communicates with the Arctic Ocean by Behring Strait, 48 miles in width. Behring Sea is the common highway to the Arctic Ocean Avith its valuable fisheries. It is Great Britain's highway to her possessions in the north xiH the Yukon River (of which the free navigation is guaranteed by Treaty), as well Treaty of ; as the route for such communication as may be May 8"l87i held or attempted with the northern parts of the Anicle XXVI, coasts of North America to the east of Alaska, and with the estuary of the great Mackenzie River. DcacripUon of IWtiiing Sea. Historical Outline. In 1728 and 1729, Behring, in his first expe- dition, outlined, somcAvhat vaguely, the Asiatic coast of Behring Sea, and practically proved ofTlnska, p'.'s*?'.^ the separation of the Asiatic and American continents. In 1711, Behring's second expedition, which u,jj pp. 6«_74 sailed from Okhotsk, resulted in the discovery of the American coast. Unsatisfactory as the voyages of Behring and his associate Chirikoff undoubtedly wore from a geographical point of vi(!w, it avrs upon their results that Russia chiefly based her subsci^uent Historical Outline 1741. • This wont will be referred lo throughout these pages by the short title of " Alaslta." For the period discussed in this Chapter reference may be made generally to " Lyimn's Diplomacy of the United States," 2nd edition, Boston, 1828, vol ii, chapter XI. 15 1741. 17C8. 1769. pretensious to the ownership of tho north wc'storn part of North America. Hunters and traders followed Bchring's lend, and Bchring Island, and A'arious islands of tlio Aleutian chain, were visited from tho Kana- tchatkan coast. Alaska, p. 141. Jq 1763, Qlottof, on a trading voyage, ventured as far cast as Kadiak Island. IWil., pp. 137, l.'iS. In 1701. to 17G8, Synd, a Lieutenant of the Russian navy, made an expedition along Iho coast to 13ehring Strait. Of the period from 1700 to 1779, Bancroft •writes in his History of Alaska : — Ibid., p. 174. " rroin llii.s lime tn tlie visit of CaiPlaiii Cook, siiifjle traders arid small Coin])anii"8 contimiod to tvallic witli tlio islands in much tlu> siimi; manner as bei'oie, tlioiigh a general tendency to eonsolidation was jiereeplible," 1774. 1775. Ibid., p. \97. 1778. Coolc, Voyage to the Pacific Ocean, 1776-1780, London, 1874. Ibid., pp. 194-197. The extension of Russian influence did not pass unnoticed hy Spain, and in 1771 Perez was dispatched from IVIexico on a voyage of explora- tion, in which he reached the southern part of Alaska. In 1775, Ileccta, also instructed hy tho Viceroy of Mexico, explored tho coast of America as far north as tho 57th or 58th degree of latitude, taking possession of that part of the continent in the name of Spain. In 1778, Captain Cook, sent hy the English Government, reached the American coast of the North Pacific with two vessels. In pursuance of his instructions, he explored the coast from ahout 44° of north latitude as far as the region of Prince William Sound and Cook River or Inlet, taking possession of tho coasts there. At Cook Inlet he found evidence of Russian trade hut no Russians. At Unalaska, one of tho Aleutian Islands, he again heard of the Russians, and on the occasion of a second visit met Russian traders. From Unalaska he sailed eastward to Bristol Bay, landing and taking possession. From this he explored, and defined tho position of the American coast northward as far as Icy Cape, heyond Behring Strait. Cook was killed in the following Avintcr at the Sandwich Islands, hut his ships, under Clarke, returned in 1779 and made further explorations in Behring Sea and in the Arctic Ocean. Under this expedition, and for the first time, the [248] B 16 main outlines of tlio north-western part of tlio Continent of America, and particularly those of the const ahout IVince William Sound and Cook Inlet, with the eastern coast of Buhriug Sua, wore correctly traced. This expedition also opened up the trade by Koa in furs from the north-western part of America to China. Cook's surveys still remain in many cases the most authentic ; and those, with other results of the cxpoditiou were published in full in 1781. In 1779, another officially accredited Spanish expedition under Artcaga and QuadiM, explored part of the coast northward from about lati* tudo 55", and westward to Mount St. Klias. In 1783, the first attempt was made, following Cook's discoveries, to establish a Russian trading post on the American mainland, at Prince William Sound. It ended disastrously. Tor some years after this reverse only one small vessel was dispatched from Siberia for trading purposes ; but in 1781', Shelikof visited Unalaska and reached Kadiak Island, with the intention of clYecting a permanent occupation there. In 1786, Captain Ilanna entered into the trade between the north-west coast of America and China, for which Captain Cook's expe- dition had shown the way. He made u second voyage in the following year, but appears to have confmed his trading operations to the vicinity of the northern part of Vancouver Island. Other commercial adventurers were, however, practically contemporaneous with, Hanna, and this year is an important one in conucction with the whole region. Tho " Captain Cook " and " Experiment," from Bombay, traded at Nootka and at Prince William Sound. An English vessel, tho " Lark," Captain Peters, from Bengal \ik Malacca and Canton, after trading at Petropaulovsk in Kamtchatka, sailed for Copper Island with the supposed purijosc, as alleged, of obtaining a cargo of copper there. She was wrecked on the Commander Islands. In the same year, 178G, Portlock and Dixon, and Meares, arrived upon the American coast, and traded and explored far to the northward. 1778. Alaaka, pp. 217- 321. Ibid.,p. 18C. Ibid., p. 191. Ibid., p. 224. Dancroft, History of tho North-west Coast, vol. i, pp. 173, 174.« 1770 1783. 1785. Alaska, p. 243. Sauer*! account of Billing's expedition, London, 1802. pp. 279, 281, 1786-1789. * I'his work will be referred to throughout these paget by the short title of " North-west Coast." 17 1786-1789. •• A voyaga round the World, fcc," Loodop, 1769. Mearei' voymcs 1790. See a1;. He then proceeded eastward along the Aleutian Islands, and was piloted into Unalaska by a Russian who came olV to the ship. He describes the Russian establish- ment as consisting of underground huts like those occupied by the natives ; but being anxious to leave the vicinity of the Russian traders, he continued his voyage eastward to Cook Inlet and eventually wintered in Prince "William Sound, as above stated. Mearcs' later voyage, in 1788 and 1789, which is better known than his first venture, was directed to that part of the coast lying to the southward of the limits afterwards included by the Ukase of 1793. In 1788, Mearcs built at Nootka, in the northern part of Vancouver Island, the firat vessel ever constructed on tho coast of the north-western part of America. She was intended for use in the fur trade, and was appropriately named the " North-West America." Also in 1780, La Pdrousc, on his voyage round the world, under instructions of the French Government, firist made the American land near [2481 ^ 2 \^ ^luaiil St. Klias. TixMico lii> 8:iiloil I'ustNvnrd ntul HautlnvanI, c:)lliii<^ nt places on tlio Alaskan const. At Litiiyn Uay lio obtaiiiod in trudo .^la«ka, p. '.'43. 1,000 Hou-ottiT skins. Ill tliu sninu year tlu; Hiissinu I'riliylofiF Ibid., pp. ]9:<-l!«3. disfovorcd tiic islands in IJi'luiii'; Swi, now known hy his mine. in n^SH, a Sjjanish c.\|K>diti'jn, in tho vosscU Ibid, pp. a70-272. " rrinc(«s;i " and "San Carlos," nndor Martinez and llaro, sot out. It visited I'rincc William Sound, but found no Russians. Ilaro, however, found a llussiau colony nt Thrco Sainta, on Kiidiiik Island. 'L'liis \\i\h (he easternmost place mIiIcIi had at this time a permanent llussiau settlement. Tho voyai^ers took possession of IJiialaska for Spain, hut afterwarils found Russian traders on tho island. In the same year, a Russian vessel explored Ibid, pp, 267-270. I'rinee William Sound, Yakutat, and Lituya Bays, all of which had previously been examined by Enj;lish or J'' reach voyagers. In 1788, vessels from the United States first Nortli.we»t Coast, traded on the north-west coast. Upon the conflict of interests at this time along this part of the American coast, and the rival claims to territory there, Uaucroft makes the foUowinij remarks : — 178G. 1788. 1788 "The I'Vi'iils of ITHT-S.S iiiii.sl liavc licoii puzzlin;,' to tlic Alaska, p. 267. natives of rriuco William Sound. Kiiglishineu umli'i' tliu English ilaj,', EiiylL-lmu'ii iiiulcr llic Portugiiuse flag, SpniiiiinU iUiil Itiissiims, wciu tTuiziiii; iibout, often within .1 fow inili'.s of each other, taking possession, for one nation or the other, of all the laml in siglit." Referring; to Rilling's Russian scicutilio ex- ploring exi)edition, by which several voyages were made from 1787 to 1791 in the Rehring Sea region, Bancroft says : — " 'J"he {,'eograiiliic:al results iii.ay lie set down at next to Ibid., p. 296. tiotliini;, with the exception of tho tlioronyli surveys of Cnptaiii Day in Illiuliuk Harhour on Unalaska Island, Every other part of the work had already been done by Cook." The complaints of natives, against the practices of independent traders and adventurers, brought back by this expedition, bad much to do with tho subsequent grant of a monopoly of the trade to the Russian-American Company. ' 19 1780. 17'J0, 17'J1. 17113. Murili *r»l CuikI, vol. i.l'p. •Jka, p. 273. Ibid., p. 3as. Ibid., p. 389. Iliid., i>. 374. Ibid., |). ,"7fl. Ibid., p. 248. Norlli-WMt Count, vul. i,|>u. 250-257 Ala>i(.t, p. 244. Vaiicouvur, vol. iil, |>. 4'J8. Voyage of Uiacovery tu tlie PaciKc Ucean. London, 1798. Alasiia, p. 29C. Vancouver's vo»age. In 17S», twelve vcssj'Is at Icftnt nro known to httvc lu'cn trading on tlio nortli-wcst coast.* The well-known "N(M)tka" sciznros by the Spaniards oecurrcd in this year. in 1790, Fidaltjo sailed from Nootka, then occrnpied hy Spain, to oxaniino the north-west coast, including I'rinre William Sound, Cook Inlot, and Kadiak. Tho trading-vessel "Phcrnix," Japtain Moore, from the East Indies, was in i'rinco William Sound in this year. At this time also, Russia and Sweden being at war, a Swedish cruizer visited the Aleutian Islanils, hut finding no Government establish- ment to attack, and no Russians except traders living "in abj(;ct misery," her Commander refrained from disturbing them. In 1791, Malaspina, from Spain, under orders of bis Government, visiti'd .several places upon ■what is now the Alaskan coast. Marchand, in the " Solide," fri m France, on a voyage of trade and circumnavigation, also visited the coast, and Douglas, in the '* Iphigcnia," was in Cook Inlet in this year. Resides tli'^ above vessels, at least eight trading- vessels are known to have been on the coast, of which seven were from the Unitrd States. In 1792, Caamano, setting out from Nootka, explored Port Uucarelli, in South-eastern Alaska ; and it is reported that in this year fully twenty- eight vessels were upon the coast, at least half of them being engaged in the fur trade. Vancouver gives a list of 21 vessels for the same year, divided as follows : From England, ; from East Indies, 2 ; from China, 3 ; from United States, 7; from Portugal, 2; from Prance, 1. I'lu; " Ilalcyon," Cai-tain Rarclay, visited Petro- paulovsk for purposes of trade, and a French vessel, " La Flavia," wintered there. In 1793, Vancouver, who had been dispatched by the English Government with the " Dis- covery " and " Chatham " for the purpose of * III many cases no records exist of tlie trading voyages made to llic uortli-\vc4t coast, and the existing records arc very incoin- plute. It is In some cases certainly known that tliese traders extended their operations to the north of the limit mentioned in the Ukase of 1799, or that of the Ukase of 182). In other cases the extent of the voyages made U unknown, The traders went, in fact, wherever skins could be purchased, end, if disappointed or forestalled at one place, at once departed for another. None of these trading-vessels were Russian. so rtuully "hviiliiuT lln" oxistonoo or (>tl\iM-M i>ii> of ;\ «'ou;inunio;Uion 1)i'(\vnii»ii\iMi<- inlots ou (ho uor(h-\vos( oonNl, was ooonpiod ii\ sm\(>yinir oi)ora(ioi\s on wlial now ooi\!s(i(u(os (ho sou(h. oas(oiM» Alaskan ooas(. In 17'.M, Iio snrvovi'd Took lnlo( fo i(s \wm\, Vuhoouvp! »\h\ Tviuoo William SoumI, kn.liak. and tho ^">*«"'- oi»as( ox(on(ling to Yakn(a( Uay. won' in (urn oaivfnlly laid lUtwn in i'"(ail. Ho astvr(aino(l (ha( tho oas(<>\iiinos( Knssiau Vslalilishnionl a( (liis (inio was a( ror( IKohos on Trinoo William Somxl. Comorninji' iho Kiissians horo and lltoro mot ll>i.i., »«>! lii, wi(h, Vanoonvor roniarks (ha( ho — 1703. IT'M. p. \'J0. "oU>iul\ '.nidiT-ioo.! ih;>( ilii' l\\ii->> sololy lui.Irv tlu' (liii'i'iion ami siijipiut ol' tuiloinMiili'ul nwni ^iiitilc ("oiii]>:ii\ios. Not iho Iciisi ;illoiin.m whuiovor is I'mid lo Iho oull\\;ilion ol ttio l;\iiil or lo :inv oiliov objoi-t Inil lliiii of collooli'i;: I'\ir8, whioh i-; pi iiu'i]>nlly ss ISonnd (la(i(ndo 58") in the uamo of (iivat Britain. Tlvo rosults of his surveys wero jmhlishod in ITi^S. Tho nanus of four (vadini;-vossols on^ «'»' No„l,.«r.t Co,-..i. nor(h-wos( otv\st. inolndini;' (ho ".laokal," arc tol. i. p. aor. knv>wn for (l>is yoar. In 17i'.'<.a(radinu:-vossol, nanuNl tho " lMmn\ix," ii,i,i.. p. ao4, Irom Moniral, was on (ho norlh-wos( oo;is(. In I70(>.a( loas( (liii'o (radin!;-\0!isolsaiv known ii,j,i. ., ao.^ lo have Ihh'u on (lie uorth-wost ooast. In 1707. (h«' "i»inos of lorn (nding-xossols ou Ibid., jv 306. tins ooast aiv known, Ind thcso oonsdtuttnl prohahly l;u( a sn»all pari of (ho tlooi. In 170S, (houamos of six (rading-vo'..solshapiHMi u,iJ„\ol. i. p 30G. (o havo boon ivcordod. 'n 17W. (ho "Candino," ('ap(ain Clovolaml, (v\m\ Uoslon, .irrivoil a( Si(ka sliurtly af(or a Russian \wM had luvn os(ahlishod thoiv. Several other AnuMioan vosaols, anionic (horn Alxk*, p. 380. tl»o lirig " Eliiw,'' uu3. 1799^ Norih-»T»i Coast, vol. i, |». S07. \U. iros-1801. Al.i«l*A. i>. S84. IMJ., p. .19 ^. wl>il«« i( otvtst ;m' nviMvlt^l in this y(\ir. Nothini; .■»p|n>v\ohin!; (o n rom]>hta(ions fivn\ HanowtVs " llis(oi'y of Alaska " alludo (o ooniplain(s ivforrinsj par(ioulai'ly to (hoso yoars. Wvi( insT of (ho ou(orprisos of Uaranol^'. (n>vovnor of Si(ka. lVuion>f( says : — " .VI ovcvy (Lunt iMsu\i\r\l o( Kaih;ik whoiv l\o had • o)ulortvti\nvvl to > i>(>i\ tVi\ iliuu^x'v \vi(U ]mmivi- pni- tootioM I'nnn \\\o 1;H;;iM' vossols, llion.jh (ho ni\livos ihoiv possess hii'i;!' i)H;\nti(ii's of tin'-anns nwd M kiivls of iUiuiwiuition, ii\-iM\in;; now s(t|>)ilios ,-ninn:)llv t'lMin (ho I'.nglish Jiul i'lotn (ho h'opnMioir.w ot' llosion iuiil .Vinorion, whoso ol\|oo( is uoi i>ovnii\noii( soltlonioni on (lioso slum>», hut \vhi> hnvo hoon in (ho h,»hit of uinUiiij.; (rniliuu; triiw to (hoso n^uioHs. " (^i\ anothor paero Hanoroft wri(os : — Ibit(., p. 3!'S. " HrtwnoO's o.miphnnts of foivij;n ot\onwohiuoii( iipportr lo huvo Wow \V(>U jinnniiU'il. Wilhin a low h>i(s<;\ios of Sitka tho Oiii>trtins of ihiw Hostoii shi|>s soouivJ L'.OiUt Kkit\i<, (hough l«yino vovy Uifih )>l^^ os, oi\oh oiio trying (o onlhiil tho othov " Ilmh, p. ;W. I'nrdior on UannotY is ijnotod to (ho oflVot (ha( (ho Anior'oans had hoon aoqviain(od with tlio trilnvs in this ivijjion iov two or tluvc yoai's, and sont (lioro .initnally InMU six to oisjht vossols. Thoso v«\sKols (V»im (l\o Unitod Stntos woro at this timo jus( In^ginning (o supplan( (ho English traders, who had \n oarlior yoars l)ocn tho more uumeroun. Once move Bancroft quotes Baranoff as follows : — " The resources ot this region are such thnt millions Alaska, p. 399. nmy be made there for our country with jiroper manage- ment in tlie future, hut for over teft years from six to ten Knglisli and American vessels liave calk'd here every year. It is safe to calculate an average of 2,000 skins on eight, or say six vessels, whidi would make 12,000 a-year, and if we even take 10,000 as a mininuim, it would amount in ten years to 100,000 skins, wliich at the price at Canton of 45 roubles per skin, would amount to 4,500,000 joubles." Circumsiances lohick led up to Ukase of 1799. It will be convenient at tliis point to consider tLe circnmstances which led uj) to the Ukase of 1799, the terras of that Ukase, and its effect. As early as 178G, the idea had become dominant Alaska, p. 30.V Avitii Grigor Shelikof, who had shortly before established the first permanent Russian colony at Kadiak, of creating a Company which should hold a monopoly of trade in the Russian posses- sions on the Pacific, and over all that part of the American Continent to which Russian traders resorted. Shelikof obtained but a partial success in the Charter issued for the United American Company; but after his death at Irkut-^k in 1795, n,;,)^ pp. 377_379, his schemes were taken up by his son-in-law Re/.anof, who succeeded in carrying them to com- pletion, and, in 1799, a Ukase was issued Avhich granted the wished-for exclusive privileges to the new ]?tissiati-American Company. Before this time, in 1798, a consolidation of tlie Shelikof Company with several smaller concerns had boon effected under the name of the United American Company ; and at the date of the issuing of the Ukase there were but two rival Companies of importance in the field, the Shelikof or United American Company, and the Lobedef Company, and these engaged in rctive competi- tion and hostility. Bancroft sums up the situation about ] 791 and 1792 in the following words : — " Affairs were assuming a serious aspect. Not only were Ibid., pp. 388 tiie Slielikof men liidcd from the greater part of tlie '^•''• inlet [('ook Inlet], Init they were opposed in their advance round Prince William Soimd, which was also claimed by the Lebedef faction, though the Orekhof and other Com- panies were hunting there .... Circumstances which led up to Ukase of 1790. 23 Circumstances which led up to Ukase of 1799. I I Alaska, p. 331. led up to Ukaso )'J. Ibid., ip. C02, 391, 393. Jli (1., p. 301. Il.i.l , p. i99. " Thus the history of Cook Inlet iliuing the last decade of the eighteenth century is replete with romantic inci- dents — midnight raids, ambuscades, and open warfare— resembling the doings of mediaeval raubritkrs, rather than the exploits of peaceable traders .... "Robbery and brutal outrages continued to be the order of the day, though now committed chiefly for the purpose of obtaining sole control of the inlet, to the neglect of legitimate pursuits." Again, in another place, the same author writes, with regard especially to the position of Baranoff, Governor of Sitka, when he took charge of the Shelikof Colony of Kadiak : — " Thus, on every side, rivalj[establi.shments and tradera were draining the country of the valuable staple upon which rested the very existence of the scheme of coloniza- tion. To the east and north there were Russians, but to the south-east the ships of Englishmen, Americans, and Frenchmen were already traversing the tortuous channels of the Alexander Archipelago, reaping rich harvests of sea- otter skins, in the very region where Baranofi" hod decided to extend Russian dominiou in connection with Company sway." It was only in the later yeai-s of the com- petition between the rival Kussiau Companies that they began to assume hostile attitudes to one another. The growing power of some of them favoured aggression, and the increasing scarcity of tlic sea-otter, which was already boginniiig to be kit, .ijceiatuated it. At lirst, and for many years r.iter Behring's initial voyage, the traders from Siberia were suflleieutly occupied in turning to advantage their dealings with the natives of the islands and coasts visited by them, and this not in the most scrupulous manner. Tribute in furs was exacted from the Aleuts on various pretexts, and whenever the traders came in sufficient force these people were viitually en- slaved. Not only Avere the companies of ti'aders under no sufficient or leeognizcd control by the llussian Government, but they even disliked and resented in some nu'asure the advent or presence among them of cnnnnissionod officers of the Government. The effect of the reports of the subordinate members of liilling's expedition, as to the unsa- tisfactory state of affairs in tlie Aleutian Lslands and on the American coast, tended to favour tlie project of the establishment of a nu-Miopoly, by disclosing the abuses which existed by reason of the existing competition. Bancroft more than hints that the superior officers of the expedition [248] fi 24, were induced to keep sileiico from interested motives; and Billing's Report, whatever its tenour may have been, was never puhlished. In the end, however, it became in a degree imperative for the Russian Government to put a stop to the scandals and abuses which flourished in this remote and practically uncon- trolled portion of the fclmpire, and the easiest way in which this could be done, and the least expensive, was to vest exclusive rights in the hands of the most powerful of the existing rival Companies. This, being also in the interests of the Company in question, was not found difficult of achievement, and, as a consequence of the Ukase of 1799, the absorption of the smaller concerns still existing appears to have followed without any great difficulty, Raranoff, as the executive head of the new Corporation on the Americnn coast, coming to the front as the natural leader. When Shelikof presented at St. Petersburg his Alaska, p. S08. original petition for the right to monopolize the trade, a Report was requested on the subject from Jacobi, tlio Governor-General of Eastern Siberia, and in Jacobi, Shelikof found an able advocate. Jacobi stated that it would be only just to Shelikof to grant his request, and that it would be unfair to allow others to enjoy the benefits of the peace which Shelikof had established at Kadiak. The Empress then ordered the Imperial ibid., p. ro?. 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 Ijenefits 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 was not the object which to any great extent induced Slielikof to apply for such a monopoly. His Company had the utmost diffi- culty in sustaining its position against hostile natives, while not loss serious were tliedidicultios arising from the competition, and scarcely veiled* liostility of rival Russian traders. The inoroasin" (rai'.e by foreigners, iogotlior willi the uuincrous exploring and surveying ex])edit' America from Behring Strait down to the OGth degree of north hititude. The southern limit of the exclusive coast privileges granted to the Company extended on the Asiatic side to Japan. Not only were the main coasts of Asia and America f'ns covered by the Ukase, but the same l)rivilege8 \t'ero granted on the Aleiitiau, Kurile, and other islands " situated in the North-Eastcrn Ocean." It will be noted, therefore, that the area over •which the exclusive privileges were granted to the Russian- American Comi)any extended both on the coast of Asia and of America far beyond the limits of Behring Sea. Special privileges in regard to the purchase 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 sea, nor were any measures taken under it to restrict tlie commerce, naviga- tion, or fishery of the subjects of foreign nations, and this although, within the very area covered by the Ukase, as has already been shown by the facts stated, vessels of various nations had been navigating and trading. It will be seen, by the account of the years following 1799, that these operations on the part of foreigners continued. Referring to the Ukase of 1799, Mr. Middle- ton, the United States' Minister at St. Peters- burgh, writes, 7th (19th) April, 1824-, to Mr. Adams, the Secretary of State of the United States, as follows : — " The confusion prevailing in Europe in 1799 permitted American State Kussia (who iilonc seems to liavo kept her attention fixed Pape|[', Foreign upon this interest during tliat period) to take a decided ,>, 46I. ' step towards tlie monopoly of this tiwle, by the Ukase of that date, which trespassed upon the acknowedged rights of Spain;* but at that moment the Emperor Paul had declared war against that country as Iteing an ally of * Tile rights uf Sjiain are liere mentioned because, by the Uiiase of 1799, Russia claimed territory which Spain was also understood to claim. In 1S24 the United States was committed in its own interest to support the old Spanisli claim, iu conw- quenve of the Spanish cession to the United States in 1819. The Ukase of 1799 purely domestic. 29 Fraiiuii. This Ukiusi- wliiuli !■<, in its f'onii, \\\\ iicl i|Urely domestic, was iiovur iiotiticcl to iiiiy rorfii,'ii State witii injunction to rospoct its provisions. Accoitiiiigly, it up pears to lmv(> bcoii passed over uiiobservod by foreign Powers, and it remained without execution in so far as it militated a^'aiust tlieir rights." Ilitttoricul outline resumed. 1800 ! 1801. 1802. Alaska, p. 389. North-west Coast, vol. i, p. SOS. Ibid., p. 310. llobcrt Grceiiliuw, Librarian of Ui)iti>il St.'itcj' DepartmcMl of StalP, " History of Oregon nml raliforiiia/'pp ':66, 267. North American Uevicw, 1823, Article XVlll. See Appendix, vol. i, No. 3. Alaska, pp. 404- 409. Nortli-west Coast, vol. i, pp. 3il 31:'. Ibid, p. tl7. The accuracy of the views expressed ])y Mr. Midcllctoa ap[)cars clearly from the facts dis- closed by the chronological statomoiit relating to the period suhsequent to the year 1799 : — In 1800, the ship "Enterprise," from New York, arrived at Kadiak. The name of seven trading-vessels on the north-west coast are given in this year. In 1801, there were at least thirteen United States' vessels on the north-west coast. These vessels exchanged with the natives of the coast for furs parts of their cargoes, and, proceeding to China, returned to their respective countries with cargoes of teas, &c. Upwards of 18,000 sea-otter .skins, besides other furs, were in 1801 collected by United States' traders alone for the China market. In 1802, the Russian Establishment at Sitka was destroyed, and nearly all the Russians there were massacred by the natives. According to Lisiansky, the natives were; assisted by three deserters from a United States' vessel, the "Jenny," Avhich had called at Sitka not long before. Shortly afterwards, an English vessel, the "Unicorn," Captain Earber, 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 " Alert." In this year also Kruseustern, having visited China, presented a Memorial to the Russian Government calling attention to the advantages offered by the trade in furs from America direct to Chinese ports, and suggesting that Russia should engage in it. Of the vessels trading on the north-west coast in this year, the names of ter have been recorded. In 1803, Baranoff contemplated the abandon- 80 incut of Unalaskn, owini^ to disease and non- nirivnl of supplies. He ordered that Hjc best ni(>ii sliould Ix' moved to the PrihyloH' Islands to eoUect tiicre tlic furs aecumulateil bv tho natives, These islands had not l)een visited for mnnv vears. Captain O'Cain, of llic United .States' v: V- 451. had armed the Kolosh Indians. In the same year the "Juno," with her cargo, Ibid., p. 454. was purchased by BaranofF, and the "Eclipse" Ibid., pp. 478, 479. (Captain O'Cain) sailed for China with furs, but was lost on the way back. Tho names of four vessels trading on the north-west coast are known in this year. Rezanoff, in 1807, sent tho "Juno" to the Califomian coast for provisions. The "Myrtle," Ibid., p. 461. an English ship (Captain Barber), was pur- chased by BaranoflF. Six north-west coast trading- vessels are knoAvn by name for this year. In 1808, the United States' vessel "Mercury " Ibid., pp. 479,480. obtained at Kadiak 25 bidarkas, or skin-boats, for hunting and trading to the southward. Tour United States' trading-vessels are known to have been on the Alaskap coast in 1808 and 1809. 1803. 1801 1805. 1807. 1808. 1809 a 103. 1810, Alanki, p. 467. 1811. 1804. 1805. 1812. 18 U. 1807. 1815. ISlli. 1808. 1817 Ibid., p. 470. North-weit Coast, vol. I, p. 325. Alaska, p. 429. Ibid., p. 483. North-west Coast, vol. i, p. 326. Alaska, p. 472. Ibiil. p. 4s;o. Nui'ih-»est Coast, vol. i, p. 32D. Alaska, p. 50?. Ibid., pp. 501, 503. Iliil. p. .506. Ibid., p. 501. S'orlii-west Cuast, vol. i, p. 335. .Maska p. 510. In 1810, tho Russian sloop-oMvnr "Diana" visited Sitka. There wore several United States' vessels in the port at tlie time. Shortly after tho Uilted States' vessels "Enterprise" .and "O'Cain" arrived. The "Enterprise" went to Canton with furs. Golovnin, Commander of tho " Diana," writes that nt this time an American sailor and a Prussian skipper composed tho Diplomatic Corps of the llussian-American Company. In 1810 and 1811, four foreign vessels were engaged in sea-otter hunting, under Kussian contracts. In 1811, the " Enterprise " returned from and went hack to China with furs. In this year the lloss Colony was founded in California to pro- vido agricultural products for use on the north- west coast. Five 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 "Heaver" disposed of her cargo to BaranoS at Sitka, and was then sent to the PribylofiE 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 the United States. In 1814, Captain Bennett (United S;ates) sold two vessels with their cargoes to BaranotF, and took fur-seal skins from the Pribyloff Islands in payment. Lozaref, sent by Russia, with two ships, reached Sitka, but quarrelled with Baranoff and returned. In 1815, the Russian vessel " Isabel " reached Sitka with Dr. Sheffer on board. In 1816, tho Russian vessel " Rurik " (Captain Kotzebue) touched at St. Lawrence Island and explored Kotzebue Sound, north of Lehring Strait. Two United States' vessels visited the Russian Settlements this year. In 1817, Kotzebue, on an exploring expedition to tho North, only reached St. Lawrence Island. An expedition in two vessels under Hagemelster, sent by Russia, reached Sitka. [24.8] 9 vol. i, p. 338. Ii nl, 310. In 1818, Ilagemeister superseded Baranoff, under instructions, lloquefeuil, a French officer, Ali»»k«, pp. 3Ja, arrived at Sitka in the " Bordolais," a trading- vessel, lie sailed for Prince of Wales Archi- pelago, but had ft conflict with natives and returned to Sitka, lioquefeuil notes meeting a Norib-wcjt I'.iait, United States' and a British trading-vessel in Alaskan waters. In 1818 and 1821, expeditions were dispatched Kncyc lopmii i by the British Government in seach of a north- west passage from the Atlantic to the Paciflc. These efforts were continued, and in 1821 and 1825 Parry, Beochey, and Pranklin were engaged in the same quest, Beeehey having been directed to pass through Bchring Strait and to rendezvous with the others at Kotzebue Sound. These elforts were stimulatcKl by the offer by Parliament of large pecuniary awards, and it is obvious that the value of the discovery, if made, depended on the free right of navigation for purposes of com- merce through Behring Strait. In 1819, the United States' traders obtained Alaska, y. liis most of the trade, bartering with the Kolosh fire-arms and rum for skins. They obtained about 8,000 skins a-year. The Russians could not successfully compete with them. The privileges granted for twenty years to the Russian-American Company were now about to expire, and Golovnin was instructed to inquire as to its operations. His Report was not favour- able. He writes : — 181A 181!). "Three things are wanting, in the organization of the tbid., p. .'i3l. Company's colonies : a clearer definition of the dutieH belonging to tlio varions officers, a distinction of rank, and a regular nniforin, so tliat foreigners vi.-iling these parts may see sometliing indicating the exiRt9ni;e if forts and troops belonging to the Russian siv.'pire — something resembling a regular garrison. At pr'.'.-cii* they can come to ,no other conclusion than that these stations are but temporary fortifications erected by hunters as a defence against savages." In 1820, four trading-vessels are known to havo Noi th-wct Coait, been operating on the north-west coast. '°'' '' ''" '^*^' The extent of Russian occupation at about the Ahiskn, p. 522. date of the expiry of the first Charter can be shown by the Census taken in 1819, which states the number of Russians as follows : — 1820. i'or 'I'lliliJiiPuioff'* riinipli-to TabloJ, iiicliiiiiii;( nativos, n'o Aii|ii'ii.li\, vol. , Nv\ 3. SitK \, iM- Now AiThniiRcI K I'll tk and n (if Odkaiiiiik ,t •• Kntiiiai . . > • SiitUUiiiiiokoi . . • • Vovki'v »*oii(«ky llnrlimir .• lAiit C'liiistantiiu- NiUolai, C'.M.k Iiil.t ., Alfxaiidrov^U, C'lxik Inlet . . UofH ScttU'iiii'nt, CalifoiniA Sral ls!aii(lH .. •• N'ii«ln«iik fllio oiil' Si'itlomi'iit o I'ciiitiin'iit iiLitU Ml iliu Ak'nliiiii Is Total . . II tlie liimUJ MlMI. 1>,)3 73 'Ji 4 H W< u 17 11 11 ^7 • • O? ;» 2 7« 13 It'll oUiiiuly lit" t'-iiinuiiil ilaiiiit m IMlS, See ftUo Ai'.nins Id llii«li, July -22, Aiucruaii Stale fapers, [''urri^ii Uelntionj, vol. v, p. -HO; and alaj i'ciiili- dcntiiil Memorial inclosed in letter, Alidillelon to Adams, Dc-einbiv 1 (IS), 1S-J3; .Vnieriean State I'aptrs, I'oreign llelali,)n«, vol. v, p. A40. See Apifiidix, %-ol. ii, Part III Xo!<. 1 and 5. For text of Convention, see American State Papers, vol, iv, p. 400. While the siihjocts of lliissia, Spain, Great JJritaiu and the United States wore doubtless making elaiins ou the part of theii- respective eouutries from time to time, so iiueortain were these claims and the merits of each, that in 1818 (20th October), in the Convention between the United States and Great Uritaiii, it was agreed that any — ■' country llmt may be clniniPi! by I'itlior inirty on thfi iiortli-west coast of America, westwani of the Stony Moun- tains, sliall, to Ukase of 1821. '1 1 Voyage, iM. d« Kruscnstrrn, vol. i, p. 14. ,31 American State Papers, Foreign Relations, vol. v, m pp. 453. 434. i rompetition by Foreigners. M American Statu 1 Papers, vol. v, pp. 438-443. Alaska, p. 5'i8. TikhmeniefT, Ister. Obos. I, cited in note to 1 Alaska, p. 532. See also AUska, p. 446 ; Rezanof 's '9 complaint in 1806. Text of Ukoee of 1821. See Appendix, vol. i, No. 1, Chapter II. Head B. — The Ukase of 1821, and the circum- stances connected therewith leading up to the Treaties of 1824 and 1825. 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 its Russian rivals, but trading- vessels from England and from the United States frequented the coasts in increasing numbers, 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 Kiakhta on the Amoor. Domestic competition had in fact ceased, and the most serious drawback to the success of the Company consisted in the competition from abroad. The [difficulties resulting to the Company on account of foreign competition appear pro- minently in the complaints made by its agents at this time, and the new claim of the right to exclude foreigners from trade is embodied iu the Ukase of 1821. The following is the translation of the Ukase which was issued by the Emperor Alexander in 1821 : — "Edict of His Imperial Majesty, Autocrat of All the " Russias. " The Directing Senate maketh known to all men : Whereas, in an Edict of His Imperial Majesty, issued to the Directing Senate on the 4th day of September [1821], and signed by His Imperial Majesty's own hand, it is thus expressed : — "'Observing from Reports submitti'd to us that the trade of our subjects on the Aleutian Island.s and on tlio north-west coast of America apnertaining unto Russi;' is subjected, because of secret and illicit tratlic, to oppression and impediments, and finding that the principal cause of these difficulties is the want of Rules establishinf; the boundaries for navigation along these coasts, and the order •f naval communication, as well in these places as on th relative to the measures adopted by His Majesty the Em] •eror, under date of the 4th (KUh) September, 1821, for defining the extent of the Russian possessions on tho norlli-wcst coa,st of America, and for forbidding foreign vessels to approach his possessions witliin a distance of 100 Italian miles. " .... It was on the contrary, because she regarded those right.i of sovereignty as legitimate, and because imperious considerations involving the very existence of the commerce which she carries on in the regions 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 (IGth) September, 1821, to be issued. " . . . . Consequently, the Emperor has charged his Cabinet to declare to the Duke of Wellington (such declaration not to prejudice his rights in any way if it bo not accepted) that he is ready to fix, by means of friendly negotiation, and on the basis of mutual accommodation, the degrees of latitude and longitude which the two Powers shall regard as the utmost limit of their possessions find nf Ihcir establishments on the r.orth-wcst coast of America. ^ , 48 ( Vrrespondeiice iKstween Great Britain and liiisaio. " His Imperial Mnjesty is ploasnJ to boliove tliat this negotiation can bo coraplutocl without ilifliculty lo the mutual satisfaction of the two States ; and tlio Cabiiiut of lUissia can from this moment assuru the Diiko of Wellington that the measures of precaution anil super- vision which will then be taken on the Russian part of tlie 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 legitimate cause of complaint against them." See Appendix, vol. ii, Part I, No. 15. Again, 0:1 tho 2Sth November, 1822, tho Duko of "NVollington aiklresscd a note to Count Lieven, containing the following words ; — " The second ground on which we object to tho Ukase in that Hi.s Imperial lliijesty thereby excludes from a certain considerable e.\tcnt of tlic open sea vessels of other nations. We contenil that the assumption of this power is contrary to tho law of nations, and we cannot found a negotiation upon ii paper in which it is again broadly asserted. We contend that no Pov.er winitcvev am exclude another from the use of the open sea A Power can exclude itself from the navigction of a ce'.tiin coast, sea, &c., by its own act or engagement, but it cainiot by right be excluded by another. This wc consider as the law of nations, and wo cannot ii'>gotiate upon a paper in which a right is asserted inconsistent wihh this principle." Sec Aprendii, vol ii, Fait I, No. 31. American State Papers, Foreign Relatious, vol. r, p. 448. At an early date in the course of the negotia- tions with tho Uaitod States and with Great Britain the execution of the Ukase beyond the territorial limit of 3 miles was suspended. Indeed, as far as the waters of Behring Sea are concerned, it may safely bo said that it was never put into practical execution beyond this limit. The note from Count Ncsselrode to Mr. Middleton on the subject was dated the 1st August, 1822, and is thus alluded to by Mr. Middleton in a despatch to Mr. Adams of tho 19th September, 1823 :— " Upon Sir Charles [Bagot] expressing his wish to be informed respecting the actual state of the jwrth-west question between the United States and Russia, so far as it might be known to me, I saw no objection to making a conjidcntml comraunicatiou to him of tho note of Count Ncsselrode, duted the 1st Augiist, 1822, by which, in fact, staying the execution of the Ukase above mentioned, llussia has virtually abandoned tho pretensions therein advanced. See Appendix, The communication to the British Government vol. ii. Part I, , . , i . » -.nan • No. 19. on the same subject was made m August 1823 m M the shape of nn extract from a despatch from Count Nesseh'odc to Count Lievcn, dated the 26th June, 18'J3. The foHowin;* passn^o in it shows how co]nj)lote was the ahandonmcnt of the unusual chiim of maritime jurisdiction : — "That tho Coiiminiulcrs of our sliips of wnr must confinu thuir suvveillanco aa ncrtrly as jiosaililo to the inainlaixl, if., ovit nn extent of sea witliin ranj^e of cannon-shot from the shore ; that they must not extent! that survoillauee heyond tlie .s]>hero where the American Compnny has rHeetunlly exereiseil its rights of hunting and Kshing since tlie date of its crcntitm, as well ns since the renewal of its i)rivileges in 1799, and that, ns to the islands on which are to be found colonies or settlements of the Company, they are all indistinctively comprised iu this general rule. " Your Kxcellency will observe that these new instructions — which, as n matter of fact, are to suspend provisionally the effect of the Imperial Ukase of the 4th September, 1821 — were sent from St. Petersburgh only in August of last year." Mr. Lyall, Chairman of the Ship-owners' See Appendix, Society, of London, wrote on tho 19th Novemher, Not. 33, 34, wid 35. 1823, to Jlr. G. Canning, asking whether official advices had heen received from St. Peterburg that the Ukase of 1821 had been annulled. Mr. Canning having privately submitted his proposed reply to Count Licven for his comments, caused the following letter to be sent, which had received Count Lieven's approval : — " I am directed by Mr. Secretary Canning to acknow- Lord F. Conyng- ledgo the receipt of your letter of the 19th instant, ham to Alr^Lyall, expressing a hope that the Ukase of September 1821 had jg-ig t'liire.-pioiclcni'c between ( lii'iit I'ltilniii and ItuHsiii. AbMiulonnit'Ul of clnini In c.nIi^i- ordinary juiisilielion. See Appendix, vol. ii, Part I, been annulled. "Mr. Canning cannot authorize me to state to you in j^^ »g •. distinct terms that the Ukase has been 'annulled! because the negotiation to which it gave rise is still pending, embracing, ns it doe.'», many points of great intricacy as well aa importance. " But I am directed by Mr. Canning to acquaint you that orders have been sent out by the Court of St.JPeters- burg to their Naval Commanders calculated to prevent any collision between Russian ships and those of other nations, and, in effect, suspending the Ukase of September 1821." On the 15th January, 1824, Mr. G. Canning Sie Appendii, wrote to Sir C. Bagot, the British Ambassador at Jj°j g^ '"' '' St. Petersburg : — " The questions at issue between Great Britain and Russia are short and simple. The Russian Ukase contains two objectionable pretensions : First, an extra- vagant assumption of maritime supremacy ; secondly, an unrananted claim of territorial donainionu. 45 iisii r.i itiiiii 111 I'NUil- ioii. ( 'i)rii's|iiimlonou Ijotwci'u Gfwit Hritflin (iikI Hnssin. Aliaiuldnmcnt of claim to oxtm- ordinnvy jurisdiction, " As to the first, the disavownl of Russift is, in substftnce all that wo could desire Nothing remains for negotiation on that head but to clothe tlint disavowal in precise and satisfactory terms. \Vo would much rather that those terms should be suggcstt-d by Itussia herself tlinn have the air of i>retending to dictate them ; you will therefore request Count Nesselrodo to furnish you with his notion of Rurh a declaration on this point as may be satisfactor)' to your Government. That declaration may bo made the preamble of the convention of limits." .... .'^cr Appendix, vol, ii. Part I, No 44. Again, in a despatch, 24ith July, 1824, to Sir C. Bagot, Mr. Q. Cauning says : — " , . , , Your Kxcellency will observe that there are but two points whicli have struck Count Lieven as susceptible of any question. The first, the assumption of the base of the mountains, instead of the sunmiit as the line of boundory ; the second, the extension of the right of the navigation of the Pacific to the sea beyond Behring Straits. Sc* ante, p. 33. " 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 this additional security is required will be new 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 clausitm may not unnaturally be supposed capable of a disposition to apply the same character to a strait comprehended between two shores of which it becomes the undisputed owner; but the shutting up of Behring Stmits, or the power to shut them up hereafter, would bo a thing not to be tolerated by England. " Nor could we submit to be excluded, either positively or constructively, from a sea in which the skill and science of our seamen has lieen and is still employed in enterprises interesting not to this country alone, but t/> the whole civilized world. " The protection given by the Convention to the American coasts of each Power may (if 't is thought necessary) In- extended in terms to the i i>;^t^ of the Russian Asiatii^ ten-itory ; but in some way or other, if not in the form now prescrilH-d, the free navigation of Beliring Straits and of the seas lioyond them must be secured to us." See Appendix, to), ii, Part I, No. 52. Mr. George Canning in a despatch to Mr. Stratford Canning, who had been appointed British Plenipotentiary for the negotiation of a Convention at St. Petersburg, under date the 8th Docomber, 1824, after giving a summary of the negotiations up to that date, goes on to say: — 40 -I- "■<§: " It is conipiirutivuly iiidin'orcnl to ii« wliotlior \vc liOHtuii or poHtpono all quustions rcsiH!ctin}{ the liiiiita of torritoriul poaspsnioii on tlio euiitliiiMit of Ainuiica, but the ))rutuii- sions of the lEiisHimi Ukase of 1821 to exclusive doiiiiniou over tlio rauilic could not conliuno longer unrepealed without compelling us to ta*v'> Home nteusure of public and clTcctua^ remonstrance aL'tinst it. " You will thi'rcforc, take care, in the first instance, to repress uny attempt to give tliis 1 1 uigc to the character of the negotiation, and will declare without reserve that the point to which alone the solicitude of the Kritish Government and the 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 eflcct of the Ukasi^oflS'il. " Tliat this Ukase is not acted upon, and that instruc- tions have been hmg ago sent by the Russian Government to their cruizers in the I'acitic to suspend the execution of its provisions, is true , but a private disavowal of a published claira is no security against the revival of that cluini. The. suspension of the execution of a principle may bo perfectly compatible with the continued luain- tenonce of the principle itself, and when we have seen in the course of this negotiation that the Russian claim to the ]>ossesHion of the coast of America down to latitude 59° [itic] rests in fact on no other ground than the presumed acquiescence of the nations of Europe in the provisions of an Uknse published by the Emperor I'aul in iho year 1799, against which it is atliruied that no public remon- strance was made, it becomes us to be exceedingly careful that we do not, by a similar neglect, on the present occn^ion allow a similar presumption to be raised as to an acquiescence in the Ukase of 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 i>ublicly questioned, it must be publicly acknowledged. " We do not desire that any distinct reference sho\ild be made to the Ukase of 1821 ; but we Jo feel it necessary that the statement of our right should be clear and posi- tive, and that it should stand fortii in the Convention in the place which properly belongs to it, as a plain and sub- stantive .stipulation, and not be brought in as an incidental consequence of other arrangements to which we attach comparatively little importance. "Tliis stipulation stands in the front of the Convention ggp _„,/^ „ 5? concluded between Russia and the United States of America ; and we see no reason why upon similar claims we should not obtain exactly the like satisfaction. •' For reasons of the saine nature wo cannot consent that the liberty of navigation through Bering Straits shouh' be stated in the Treaty as a boon from Russia. " The tendency of such a statement wou'd be to give countenance to those claims of exclusive jurisdiction against which we, on our own behalf, and on that of the whole civilized world, protest. Correspondence botwoon (ircat Uritaii and Russia. Abandonment of claim to extra- ordinary jurisdiction. Corrcapoiulonco bctwron f iroiil Britniii niiJ IluHsiii. Aliimilniiiiicnt of cliiim to extrn- uiUiuuiy juiiadiution. 4T " It will 111' I iiuiHf Hlriki' Iho llusttian I'lt-iiipolontiniii'H timl, by till' ailiiiiiliiii of tin' Aim.'iiiim Article ri'spi-ctiii;,' iiavi(^(ilioii, Ac, tlii^ i)rf)viHi(m lor iiii cxcluf^ivn (ihlicry of 2 li'nmiuH from the conHtM ol' our respective poBseKnioiis fallH to llic i^'iimiiil. " Hut the oiuiHHioii is, in truth, imninteriiil, " The law uf luitioiiH nsHigiiH tho exclusive 80vcreij,'nty of 1 k'nf,'U(' to each I'ower on its own coaHta, without any speciiic Htijiuhition, and though Kir L'harle.s Bagot wuh authorized to sign tho Convention with the Hi)ecilie stipu- lation of 2 leagues, in ignorance of wlrit had been decided in the American Convention iit tlu^ time, yet, after that Convention has been sonu) niontliw before the world, and after the op])ortunity of consideration has been forced upon >is by the act of Itussia herself, we cannot now Consent, in negotiating de nont, to a ^'tipulation which, while it is absolutely unimportant to any practical good, would a])pi'ar to establish a contrnst between tho I'uited States and us to our disiulvantuge." he Treaty (Great Britain and Eussia) February 28, 1825. These negotiaiions resulted in a Convention with Great Britain, signed on the 28th February, 1826, hereinafter referred to. Protest of United States against Ukaso of 1821. Protest of the United States. On the 30th January (11th Tebruary), 1822, 2nd Sess., Sen. M. Pierre de Poletica, the Envoy Extraordinary ^'204'"' ^^ ^^^' ^^'^ Minister Plenipotentiary of the Eussian Emperor, transmitted the Ukase to Mr. Adams, Secretary of State for the United States. Ibid., p. 205. On the 25tli Pcbruary, 1822, Mr. Adams wrote to M. Poletica : — " Dqmrlvient of State, Washington, "Sir, i'e&n«ar)/ 25, 1822. " I have the honour of receiving your note of the 11th instant, inclosing a printed copy of the Kegulations adopted by tho Eussian-Anierican Company, and sanc- tioned by Ilis Imperial Majesty, relating to the commerce of foreigners in the waters bordering on the establishments of that Company upon the north-west coast of America. " I am directed by the President of the United States to inform you that he has seen with surprise, in this Edict, the assertion of a territorial claim on tlie part of Eussia, extending to the 51st degree of north latitude on this continent, and a Eegulation interdicting to all commercial vessels other than Eussian, upon the penalty of seizure and confiscation, the approach upon the high seas within 100 Italian miles of the shores to which that claim is made to apply. The relations of the United States with His Imperial Majesty have always been of the most friendly character; and it is the earnest desire of this Government to preserve them in that state. It was expected, before any Act which ehould define the boundary [248] ■ H '48 between tho tenitoiies of ilu-. T'uiti'il ?Uiitt's iuul Ittissiu on this continent, that the siuue woiilil havf been iirningcil by Treaty between the piirtien. To exeliule tlie vessels of our eitizeas I'loni the shore, beyoml the onliuury di.itauee to which the territorial jurisdiction extends, has excited still greater surprise. '■This Ordinance aflects so deejdy the rij,'hts of the United States and of their citizens, that I am instructed to inquire whether you are authorized to give exiihinatious of the grounds of riglit, upon (irinciples generally recognized by the laws and usages of nations, which can warrant tho claims and Kegulationa contained in it. " I avail, v'te. (Signed> "JouN Qiincy Adams." It will be obsorvod tliat both tho T'kas{» and the protest apply to tho waters from I3ehriug Strait southward as far as tho 51st di'greo of latitude on tho coast of America. On the 2Sth of tho :.ame month the Tlnssian Ronresentative reidied at leuirth, defendinur the . ,"..,.,,. , / ,. „ M.dePotptioato territorial claim on i,n'oiinds of discovery, fuNt Mr. J. Q. Adams, occupation, md undisturbed possession, and •'*'>''".'"'>' ^^> }^-^> ^ ' ' American state explaining tho motive which determined tho Papers, Foreign I- 1 ,^ J. • i> • „ ii 1T1 Uelation3, vol. iv, m])erial Government in framing tho Ukase. 8(!i-862 lie wrote : - See Appendix, vol. ii. Part II, " I shall he more succinct. Sir, in the exposition of the "" '• motives wiii<'h determined tho Imperial (Government to proliibit foreign vessels from approacliing the north-we.st coast oi America belonging to IJussia within tlie distance of at least 100 Italian miles. This measure, however si^vere it may at first appear, is, after all, but a measure of prevention. It is exclusively directed against tho culpable enterprises of foreign ad\euturer.<, wlio, not content with exercising njiou the coasts above mentioned an illicit trade very iircjudicird to the rights reserved entirely to tho liU.^sian-Anierican Company, take upon Ihcin besides to furnish arms and auiuu\nitirn tn the iMtivcs in the Uus.sian po.ssessions in .\meriea, exciting tliciu likewise in every manner to resist and revolt against the atitln'ritics there established. " The American (lovevumfnt doubtless recollects that tho irregular conditct of these adventurers, the majority of whom was composed of Ameriean citizens, has been the object of the most pressing remonstrances on the part of Kussta to the Federal (lovernment from t'lo time that Diplomatic Mi.ssions were organized between tiie countries. These remonstnmces, repeated tit diHerent times, remain constantly witiiont etl'ect, atid the inconveniences to \vl\ich they oiiglit to iiring a leiucdy continue to increase " I ought, in tlij List place, to request you to consider, Sir, tliiit the Russian possessions in llie I'ueiiic Ocean extend, on the north-west coast of America, from Uehring Strait to tho 5 1st degree {,i north latitude, and on the opposite side of Asia and th< islands ttdjaeent, from the I'rotest of United States against Ukase of 1821. Ca #1 Ivussian Defence of Ukase. Ukase based on doctrine of mare clatisum. ites agams. 11. Correspondence between United States and Rnssia. 19 same strait to thu, 45th ilegiv.e. Tho e\toiU t>l sen ol which these i>of)aes.sious toi'iu tho limits cominviioniU all the conditions which avo i-vdinarily attaclu'il to skat »«((.< ("mers IVniiei's "), and tlif liussian Goveimuent uii^ht conseqnently jmlj^e itsolf authorized to oxeici.so uium thi i sea 'the right of sovoieignty, and especially that of entirely interdicting the ontvaiue of foreigners. But it preferred only asserting its essential rights, without taking any advantage of localities." ice oE Ukase. ^1 50th Cong., 2nd Sw»., Senote Ex. Doc. Jo. IOC, p. 207. Se« Appendix, vol. ii, rarl II, No 2. To this Ml'. Adam.s replied (30tli March, 1822). lie siiid : — " This pretension is to Iw considered not only with refeienco to tlie (lucslion of territorial right, hut also to that prohibition to the vessels of other nations, including those of the Tnited States, to approach within lOti Ualiau miles of the coasts. From tho [leriod ol ti>e existence of the Ifnited .Suites,, a-' an independent uatiou, their vessels have freely navigated those seas, and tlie right to navigate them is a part of that independence. "With regard to the suggestion that the Russian tJovernmenl might have justified the exercise of sove- reignly o\er the I'acitic Ocean as a closo sea, because it claims territory both on its American and Asiatic shores, it may sutlice to say that the distance from shore to shore im this se.i, in latitude :>l° north, is not less than 90^ of longitude, or 4,t)00 miles." sod on doctrine ei M. lie Poletica to Mr. J. Q. Adams, April 'J, 1822. 50ih Cotisr., 2nd Se3s., Senate Ex, Poe, No. 106, p. 2(18. The Russiau Representative replied to this note on tho 2ud April following, and in the t!otirso of his letter he said : — " In the same manner the great e.xteni of the Pacitlc Ocean at the olst ilegree of latitude can not invalidate tho right which Uussia nuVy liu\e of lonsidering that part of the ocean as cUise. Hut as the Imperial (iovernment has not thought lit to take advantage of ihat right, all further discussion ou tliis subject would be idle. " As to the right claimed for tlie citizens of the United Slates of trailing with the natives of tho country of the north-west coast of America, without the limits of the jurisdiction behmging to Russia, the Imperial (iovernment will not certai.iSy think of limiting it, and still leas of attacking it there, lint I cannot ilissendde, Sir, that this same trade beyond the ."ilst degree will meet with dirticulties and iuconveniences, for which the .Vnu'rican owners will oidy havo to accuse their own impruuouce after the publicity which has been given to the meaaui'ea taken by tho Imperial (.iovernment for niaintiiining the rights of tho llussiau-Aiuericiui Company in their absolute integrity. " I shall not finish this ." .i',er without repeating to you. Sir, the very positive assurance which I havo already had the honour once of expressing to yiui that in every case where the American Govornment shall judge it necessary to make oxplauatious to that of the Emperor, the President L248] H a 50 of tlio I'liitL'd Suites nmy rest iissiired that these explana- tions will always be attondeil tdby the Enijieiw, my august Sovereign, with the most I'riendly, f id, consequently, the most conciliatory, dispositions." Correspondence between United StaUs and Russia. Oa tlie 22ud July, 1823, Mr. Adams wrote to Mr. ]\[iddIeton, the United States' Minister at St. Petersburg, as follows : — " From tlio tenour of the Ukase, the pretensions of the 50th Cong., 2nd Imperial Government extend to an exclusive territorial ^ol' N^"'iog'* jurisdiotiou from the 45th degree of north latitude, on the p. aio. Asiatic coast, to the latitude of 51 north on the western ^'•'<' Appendix, . .. i, , . ^, .. . , , , vol. ii, Piirl II, coast ot tlie American Continent; and they assume tlie No. 3. right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of that coast. " The United States can admit no part of these claims. Tlieir right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times, after the Peace of 1783, tliroughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdiction.^, wliich, so far as Knssian rights are conoorned, are confined to certain islands north of the 55th degree of latitude, and have no existence on the Continent of America. " The correspondence between M. I'oletica and this Department contained no discussion of the principles or of the facts upon which he attempted the justificatiun of the Imperial Ukase. This was purposely avoided on our part, under the expectation that the Imperial Gov(3rnment could not I'ail, upon a review of tlie measure, to revoke it idtogethc)'. It did, hi)we\'er, excite much public animad- version in this country, as the Ukase itself had already done in England. I inclose herewith the North American Review for October 1822, No. 37, whicli contains an article (p. 370) written liv a person fully master of ihe subject ; and for the view of it taken in England 1 refer you to the 52nd number of the Quarterly Review, the article upon Lieutenant Kotzebue's voyages. From tlie article in the; >yorth American Review it will bo seen that the rights of discovery, of occupancy, and of uncon- tested possession, alleged by M. Poletica, are all without foundation in fact." Mr. Middleton, Avriting to the Seoretiiry of State of the United States, on the Ist December, 1823, inclosed a confidential memorial whicht thus dealt with the claim (which is properly regarded by him as an attempt to extend terri- torial jurisdiction upon the theory of a shut sea and having no other basis) : — " The extension of territoi'ial rights to the distanc of American Stale 100 miles from the (■oast.'* upon two opposite continents, iiX'tiond "vol*'" p. 45a. 61 1 United Stalus a. Correspondence between United States and Kussia. ?ce Ai;)ii'ndix. vol. ii, I'art U, No. 5. and the prohibition of appronchinp; to the same distance from these coasts, or from tlmsu of all tho intervening ishmds, are innovation.s in tlielawof nations, and measures unexampled. It must thus be imagined thnt this prohibi- tion, bearing the pains of confiscatiou, applies to a long line of coasla, with the intermediate islands, situated in vast seas, where the navigation is Fubject to innumerable and unknown dilliculties, and wliere the chief employment, which is the whale fishery, cannot be compaiibie with a regulated and well-determined course. " The right cannot be denied of shutting a port, a sea, or even an entire country, against foreign commerce in some jiarticular cases. But the exercise of such a right, unless in the case of a colonial system alrciidy established, or for some other special object, would be exposed to an unfavourable interpretation, a.s being contrary to the liberal spirit of modern times, wherein we look for the bonds of amity and of reciprocal commerce among all nations being more closely cemented. " Universal usage, which has olitained the force of law, has established for all the coasts an accessory limit of a moderate distance, which is sufficient for the security of the country and for the convenience of its inhabitiints, but which lays no restraint upon the universal rights of nations, nor upon the freedom of connuerce and of naviga- tion." (Vattel, Book 1, Chapter 23, section 289.) American Slate Papers, Foreign Relatioiia, vol. v, pp. 4GS, 406. At the fourth Conference (8th March, 1824) which preceded the signature of the Treaty of the oth (17th) A])ril, 1824, Mr. Middleton, ' the United States' Representative, submitted to Count Nesselvode the following paper : — "(Transliition.) "The dominion r.unot be acquiri'il but by a real occupation and possession, and an intern ion ('animus ') to establish it is by no means suflicienl. "Now, it is clear, accjrding to i\w. facts f^tablishod, that neither Eussia nor any other I'.uropean Tower has the right of dominion upon the < ' «ntinent of America Ijctween the 50th and GOth degrees ol' north latitude. "Still less has she the dominion of the adjacent nuuitime temtory, or of the sea which washes tliese coasts, a dominion which is only accessiuy to the territorial dominion. "Therefore she has not the right nf exclusion or of admission on these coasts, nor in these seas, which are free swis. " The right of navigating all the free seas belongs, by natural law, to every indepeialent nation, and even con- stitutes an esaential part of this independence. " The United States have exercised navigation in the seas, anil commerce upon the coasts above mentioned, from the time of their independence : and they have a perfect right tt this navigation and to this connuerce, and 63 they can only bu di'prived of it by tlmir own act or Viy a Convention." Convention between the United States and Russia. The result of these negotiations between the TTnited States and Russia was the Convention of the 17th April,! 1821, which put an end to For French text, any further pretension on the part of Russia to l^^^ fi'^part'lil restiict navigation or fishing in Behring Sea, so No. i. far as citizens of the United Stsites were con- cerned. The English version of the Convention is as Blue Book, The Treaty (Russia and the United States), April 17, 1824. follows : — " ARTICLE I. " It i.s ngroed that in anj' part of the Great Ocean, coniinouly called the I'acilic, Ocean, or South Sea, the respective citizens or .subjects of the High Contracting Powers .sluill be neitlier di.slurbcd nor restrained, either in navigation or in tishiny;, or in tlie power of resorting to the coasts, upon points '.vhich may not already liavc been occu- pied, for the purpose of trading with tlio natives, saving always the restrictions and conditions determined by the following Articles. " ARTICLE II. " AVitli a \iew of preventing the rights of navigation and of fi.shing, exercised upon the (ireat Ocean by the eitizen.s and sidijects of tiic High Contracting Powers, from liecoming the pretext for an illicit trade, it is agreed that the citizens of the Uiiitt.Hl Stall s .shall not resort to any point where there is a Itussian Establishment, without the permission of tiio CJovernor or Conimaiider ; and that, reciprocally, the subjects of Russia shall not resort, with- out permission, to any Establishment of the United States upon the north-west coast.. " ARTICLE III. " It is, moreover, agreed that hereafter there shall not be formed by the citizens of the United States, or under the authority of the said States, any Establishment upon the north-west coast of America, nor in any ol tiie islands adjacent, to the north of 51° 40' of north latitude; and that, in the same manner there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel. "ARTICLE IV. " It is, iicvertheless, understood that, during a term of ten years, counting from ihe signature of the present Convention, the ships of both Powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbours, and creeks upon the coast mentioned in the preceding Article, for the purpose of fiahiug and trading with the natives of the country. " United States No. 1 (1891)," p. 57. Appendix, vol. iii. Navigation of Pacific to be free. w Treaty of 1824. "ARTICLE V. " All spirituous liquors, fire-arms, other nvms, powder, and munitions of war of every kind are always excepted from this same commerce permitted by the preceding Article ; and the two Powers engage reciprocally neither to sell, or suffer them to be sold to the natives, by their respective citizens and subjects, nnr by any person who may be under their authority. It is likewise stipulated that this restriction shall never afford a pretext, nor be advanced, in any case, to authorize either search or di'ten- tion of the vessels, seiznre of the merchandize, or, in fine, any measures of constraint whatever towards the mer- chants or the crews who may carry on this commerce ; the High Contracting Powers reciprocally reserving to themselves to determine upon the penalties to be incurred, and to inflict the punishments in case of the contra- vention of this Article, by their respective citizens or subjects. " AETICLE VI. "When this Convention shall have been duly ratified by the President of the United )States, with the advice and consent of the Senate on the one part, and on the other, by His Majesty the Emperor of all the Eussias, the ratifications shall be exchanged at Washington in the apace of ten months from the date below, or sooner if possible. " In faith whereof the respective Plenipotentiaries have signed this Convention, and thereto affixed the seals of their arms. "Done at St. Peter.sbui-g the 5th (17th) April in the year of Grace 1824. (L.S.) " Henry Middleton. (L.S.) " Le Comte C. De Nesselrode. (LA) " Pierre De Poletica." eaty (Great Britain and Russia), February 28, 1825. For French text, see Appendix, vol. ii, Part Vl, No. 2. iNavisation of Pacific to be free, See Blue Hook, " United States No. 1 (1891)." p. 58. Appendix, vol. ill. Conveiition between Great Britain and Russia. Tho negotiations between Great Britain and Eixssia resulted in the Convention of the 28th February, 1825. The following is the English translation of this Convention : — " ARTICLE I. "It is agreed that the respective subjects of tho High Contracting Parties shall not be troubled or molested in any part of tlie ocean, connnonly called the Pacific Ocean, either in navigating the same, in fishing tlierein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade witli the natives, under the restrictions and conditions specified in tho fol- lywing Articles, ol "ARTICLE II. " III order to prevent the riglit of navigating and fisliing exercised upon the ocean by the subjects of the HighJContractiug I'urticiS, from becoming the pretext for an illicit commerce, it is agreed that the subjects of His Britannic JMajesty shall not land at any place where thero may be a Itussian establishment without the permission of the Governor or Comnniudant ; and, ou the otiier hand, that liussiau subjects shall not land without permission at any British establishment on the north-west coast. A Treaty of 1825 "ARTICLE III. " The lino of demarcation bctwciMi the possessions of the High Contracting Parties upon the coast of tiie continent and tlie islands of America to the north-west, shall be drawn in the manner following: — " Commencing fiom thi! southernmost part of the island called Prince of Wales' Island, which point lies in tlic liarallel of 54° 40' north latitude, and between the I31st andjthe''l;i3rd dcgrce^Jof west longitude (meridian of Greenwich) ,jthe said line shall ascend to tho'north along the channel called I'ortland Channel, as far as the point of the continent^ where^[it strikes the 5Gtli degree of north latitude ; from tliis last-mentioned point, the line of demarcation shall follow the summit of the mountains situated parallel to the coast, as far as the point of inter- section of the 14l8t degree of west longitude (of the same meridian) ; and, finally, from the said point of intersection, the said meridian-line of the 141st degree, in its pro- longation as far as the Frozen Ocean, shall form the limit between the Russian and Rritish possessions on the conti- nent of America to the north-west. " ARTICLE IV. " With reference to the line of demarcation laid down in the preceding Article, it is understood : " 1st. That the island called Prince of Wales' Island shall belong wholly to Russia. " 2nd. Tliat wherever the summit of the mountains which extend in a direction parallel to the coast, from the 56th degree of north latitude to the point of intersection of the 141st degree of west longitude, shall prove to bo at the distance of more than 10 marine leagues from the ocean, the limit between the British possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which .shall never exceed the distance of 10 marine leagues therefrom. "ARTICLE Y. " It is moreover agreed that no est ablishment shall be formed by either of the two partie< with, a tho limits assigued by the two preceding Articles to tho pos^jessions of the other ; consequently British subjects i-'.iall not Treaty of 1826. 66 form any establiahment either upon the coast or upon the border of the continent comprised within the limits of the Bussian possessions, as designated in the two preceding Articles ; and, in like manner, no establishment shall be formed by Bussian subjects beyond the said limits. "ARTICLE VI. "It is understood that the subjects of Hist Britannic Mnjesty, from whatever quarter they may arrive, whether from the ocean or from the interior of the continent, shall for ever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers and streams which, in their course towards the Pacific Ocean, may cross the line of demarcation upon the line of coast described in Article III of the present Convention. "ARTICLE VII. "It is also understood that, for the space of ten years from the signature of the present Convention, the vessels of the two Powers, or those belonging t.j their respective subjects, shall mutually be at liberty to frequent, without any hindrance wliatever, all the inland seas, the gulfs, havens, and creeks on the coast mentioned in Article III, for the purposes of fishing and of trading with the natives. "ARTICLE VIII. " The port of Sitka, or Novo Archangelsk, shall be open to the commerce and vessels of British subjects for the space of ten years from the date of the exchange of the ratifications of the present Convention. In the event of an extension of this term of ten years being granted to any other Power, the like ex ension shall be granted also to Great Britain. "AllTICLE IX. "The above-mentioned liberty of commerce shall not apply to the trade in spirituous liquors, in fire-arms, or other arras, gunpowder, or other warlike stores ; the High Contracting Parties reciprocally lingagiiig not to permit the above-mentioned articles to be sold or delivered, in any manner whatever, to the natives of the country. " ARTICLE X. "Every British or Uussiau vessel navigating the Pacific Ocean wliich may be conii>elled by storms or by accident to take shelter in tlie ports of the respective Parties, shall be at liberty to refit therein, to provide itself with all necessary stores, and to put to sea again, without paying any other than port and lighthouse dues, which shall be the same as those paid by national vessels. Tn case, however, the master ot such vessel should be undei the necessity of disposing of a part of his mercliandizo in order to defray his expenses, he shall conform himself to the Regulations and Tariffs of the place where he may have landed. [246] 1 66 "ARTICLE XL " In every case of complninl on ntcount oi' mi infrac- tion of the Articles of the present Convention, the eivil and military authorities of the High Contracting Parties, without previously acting or taking any forcible measure, shall make an exact and circumstantial report of the matter to their respective Courts, who engage to settle the same in a friendly manner, and according to tho principles of justice. ".UlTICLE XII. "The present Convention shall be ratilied, and tiie ratifications shall be exchanged at London within the space of six weeks, or sooner if possible. "In witness whereof the respective Plenipotentiaries have signed the same, and have ailixed tlierett the seal of their arms. "Done at St. Petcrsburgh the 16th (28th) day of Februaiy, in the year of our I/ord one thousand eiglu hundred and twenty-five. (L.S.) " Srn.VTFOitD Caxning. (L.S.) "Tho Count Dk Nesselkodk. (L.S.) "Pierre de Poletica." Treaty of 1825, Mr. Stratford Caaning to Mr. G. Canning, in his despatch of the 1st March, 1825, inclosing the Convention as signed, says :— "With respect to Bchring Straits, I am happy to liavc Sei; Appcmlix, it in my power to assure you, on the joint authority of the Y9^- '^ • "rt I, Russian Plenipotentiaries, that the Emperor of Russia has no intention whatever of maintaining any exclusive claim to the navigation of those straits, or of the seas to tho north of them." Mr. S. Canning, in a further despatch to Mr. G. Canning, 3rd (16th) April, 1826, said :— " . . . . With respect to the right of fishing, no explana- tion whatever took place between the Plenipotentiaries and myself in the course of our negotiations. As no objection was Ftarted by them to the Article wliich I offered in obedience to your instructions, I thought it unadvisable to raise a discussion on the question ; and tlic distance from the coast at which tho right of fishing is tn be exercised in common passed without specification, and consequently rests on the law of nations as generally received. " Conceiving, however, at a later period that you might, possibly wish to declare the law of nations thereon, jointly with the Court of Russia, in some ostensible shape, I broached the matter anew to Count Nesselrode, and suggested that he should authorize Count Lioveu, on your invitation, to exchange notes with you declaratory of tin- law as fixing the distance at 1 marine league from the. shore. Hid., No. 57. «v 1325. ■a "Count Nesselrode replied that iv: should feel em- bavinssed in submitting this suggestion to the Emperor just at the nioiuunt wlien the rutilicutions of the Conven- tion were on the point of being dispatclied to London ; und ho seemed exceedingly desirous that nothing should happen to retard the accomplislinient of that essential formality. He assured me nt the same time that his (lovcrnment would be content, in executing the Conven- tion, to abide by the recognized law of nations ; and that, it any question sliould he.safter be raised upon tlie subject, ho should not refuse to join in making the suggested declaration, on being satisfied that tlie general rule under the law of nations was such as we supposed. " Having no authority to press the point in question, 1 took the assurance thus given by Count Nesselrode as suflicient, in all probability, to answer every national purpose. . . ." il •"i.il 's' intrrprotation of Itunso- .Viumicnn Treatv.' Wliuvto;!. Dijoit of Interiintinnal L'lw, st'ctioii Ijl), vol. ii, p. ■!2G, The claim of llussia attracted much attention at the time. Pi'csident "Monroe wrote to Mr. ifadison on the 2nd August, 1821, with reference to the Conven- tion of that year, to the effect that — •' Uy tliis Convention the claim to the mare dausum is given up, a very higli northern latitude is established for our boundary with Eussia, and our trade with the [mlians plaecd for ton years on a perfectly free footing, and after that term left open for negotiation. . . . England will, of course, have a similar stipulation in favour of the free navigation of the Paeifie, but wc .'!hall have the credit of having taken the lead in the affair." Lcllcr.^ .111(1 \vritin;.'s oK Jaiiu-s .M.iili^O!!. I'iiMa. dclphi;!, i^-UJ, p. 440. In answer to the ahove, Mr. Madison wrote to President ]\ronroe on the 3th August, 1821 : — " The Convention with Eussia is a propitious event, as substituting amicable adjustment lor the risk of hostile collision. But I give the Emperor, however, little credit for his assent to the principle of 'marc Liberakr' [sir] in the North Pacitic. His pretensions were so absurd, and so disgusting to the maritime world, that he could not do better than retreat from them through the forms of nego- tiation. It is well that the cautious, if not courteous, policy of England towards Russia has had the effect of making us, in the public eye, the leading Power in arresting her expansive ambition." riio f never enforced. Sec I. tin- of S. Cnniiinj to G. Caiiiiii)ir, April 2!, iS23. Appriiiiix, vol. ii, Part 1, No. -H. In the year 1822 the Russian authorities attempted to enforce the provisions of the Ukase of 1821 and seized the United States' hrig "Pearl," when on a voyage from Boston to Sitka. The circumstances of this case are stated in the next Chapter. It is sufficient for the present purpose to note [248] I 2 £8 that tho United States at once protested, the •' Pearl " was released, aud compensation paid for her arrest and detention. This is believed to bo tho only case in which any attempt was, in practice, made by Russia to interfere with any ship of another nation in the waters in question outside of territorial limits. The facts disclosed in this Cliapter sliow : — That tho Ukase of the Emperor Paul in tiio year 1821 — tho first and only attempt on the part of Eussia to assert dominion over, and restrict tho rights of other nations in, the non« territorial waters of the North Pacific, including those of Behring Sea — was made the subject of inimeaiate and emphatic protest by Great Britain and the United States of America. That Eussia thereupon unequivocally with- drew her claims to such exclusive dominion rM.f\ right of control. Tliat the Conventions of 1824 and 1825 declared and recognized the rights of the subjects of Great Britain and tho United States to navi- gate and fish in all parts of the non-territorial waters over which the Ukaso purported to extend. bO ' Pacific Ocean " as nRcd in the Treat/ of 1825. ClIArTBR III. Head (C). — The question whether the body of water now known as th; lichriiig Se:i is included in thi^ phrase "Pacific Ocean" as used in the Treaty of 1825 between Great Britain and Russia. It will be rcmcinbc'ird tliat tlie Ukaso of 1821 included the Pacific from the B((hring Strait south- ward to the 51st parallel, and that this claim was protested against in tola, oa tlio ground that the coast was almost entirely unoccupied, and that maritime jurisdiction, oven where the coast was occupied, could not extend beyond 3 miles. In the first Articles o£ the Conventions of 1821 and 1825 the claim to an extraordinary jurisdiction at sea was definitely abandoned, and tlio abandonment was a complete withdrawal of the claim made. It was principally against this very claim that the protests of Great Britain and the United States were directed, and its relinquishment was therefore, and purposely, placed at the head of each of the resulting Con- ventions. Article I of the Convention between Russia and the United States is as follows ; — "It is agreed that in any part of tlie Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of tlie High Contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resoiting to the coasts, upon points wliicii may not already have been occupied, for the purposi.' of trading with the natives, saving always the restrictions and conditions determined by the following Articles." Article I of the Convention between Great Britain and Russia is as follows : — " It is agreed that the respective subjects of the High Contracting Parties shall not be troubled or molested in ony part of the ocean, commonly called the Pacific Ocean, either in na\ igating the same, in fishing therein, or in landing at such parts of tlio coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the fol- lowing Articles." It has been contended, however, on the part of the United States, that the renunciation of claims contained in the Articles above quoted did not extend lo M-hat is now known as Behring Sea. On this point Mr. Blaine, Secretary of State for the United States, writes j— 60 " The Uiiitud StuluM cuuIuikIm tliut tlio Huhriug Uca witH not inuntiuiiod, or even referred lu, in either Treaty, nnd was in no bpiish iiiuhidod in the phrase ' Pncillc Ocean.' Mi-. Dlainu lu 8 If (ireut ]}rituin cim nuiintuin her position that the .1. rauncerotp. Behiiu}? Sea iit the time of the Treaties witli Kuasia of .VITI'Tw. . 182-1 and 1820 was inchidcd in tlie Pacidc Ocean, the No. 1 (1891)," Oovcrnnient of the United States lias no well-jjrouiulcd I' •'''■ ... . . 1 ., Scu Aiipciidix, coinplanit against liur. ^,^1 j|j In ordor to uphold the contention thus advanced l)y tlio United States, it is, however, further found necessary to maintain tliat the words "north-Avest coast" and "north-west coast of America," which frequently occur in the correspondence connected with those Conven- tions, refer only to a portion of the coast of the continent south of Behring Sea, This portion of the coast "Mr. Blaine endeavours to define precisely in his letter, which has just heeu quoted, illustrating his meaning by maps, nnd seeking to restrict the application of the term to that ])art of the coast which runs southward iiiid.. p. iJf*. continuously from the GOth parallel. The moaning of the phrase " Pacific Ocean " nnd that of the term " north-west coast " are thus intimately associated in the contention of the United States, and it will be convenient to treat them together. Meanhg of the phrase " Pacific Ocean " and the term " North-west Coast" in the TVeatics nnd Correspondence. It will be found that such a construction of these phrases as ilr. Blaine lias striven to place upon them cannot be reconciled with the corre- spondence. In the first jjlaco, it has already been shown that Russia's object was not the acquisition of the control of the sea between Behring Strait and latitude 51° — this she distinctly denied— but the exclusion from her coasts in Asia and America, nnd on the islands, of the traders whose ventures threatened tlie success of the Bussian-Ameriean Company. l\o claim had been advanced by Russta which could possibly render a distinction between JJehring Sea and the main Pacific of the slightest importance. On the contrary, in the Ukase of 1799, Russia asserted jurisdiction over her subjects oji all hunting grounds and establishments on tho coast of America from the 55" north latitude to Behring Strait aiul thoncc southward to Japan, Cunlention of ihi' Ihiilotl .StiUcu thm, Bohriug Sea was not in< liidcJ. ' Norlh-wost roiut." Mcnnini,' of ■• i'ui.iiic Occiin " " North--\vpi;t I'oa.st" in llie ties niul correspondence. nil. I M. do roletic.i tr( Mr. .■\(iaTns, February 28, 1S22. Srp Appenilix. vol.ii, Part II, Ko. 1. r>i iliuli'd. Tsftiio of tlio terms in ofllcinl correspondoucc. See Appendix, vol. i, No. 1. Ibid., vol. ii, Part I, No. 1 . and on tho Aleutian, Knrilo, nnd other Islands in all the "north-eastern" ocean. In 1821, Russia was ondeavouviui,' to assert n title to the whole coast from lU-lirint; Strait to 51'' north latitude on the Auiericau, and latitude 45° 50' on the Asiatio const. Iler claim to an extraordinary ujariiinio juris- diction over the non-territorial waters ot the ocean was definitively ahandoned sit the outset of the negotiations, nnd tho discussion was thenceforward confined to the protection of her rights within territorial limits. Russia's ohject was the recognition and pro- tection of tho llussiau Settlements ii\ America. Accordingly, the Conventions provide; against "illicit commerce," landing " at any placio [from Behring Strait to tho southernmost houndary] where there may he a llussiau estnhlishment without tho permission of the Governor or Com- mandant," and against the formation of Estahlish- mcnts hy cither Power (in the respective Con- ventions) on territory claimed hy, or conceded to, tho other. With the same ohject rules wove made hy Eussia, headed " Rules cstahlished for tho Limits of Navigation and Order of Communication along tho coast of the Eastern Sihnria, the north-west' coast of America, and the Aleutian, Kurilc, and other Islands." This obviously included tho American coast of Behring Sea in tho term " north-west coast." Baron Nicolay, writing to Lord Londoudery, 31st October (12th November), 1.S21, says :— " Norlli-wc.=>t Const." ' I'ftcitic Ocean." " (Translation.) " The new Regulation does not forbid foreign vessels to navigate tho sens which wash the Russian possessions on the north-ivcd coast of America and the north-east coast of Asia. « • • • " On the other hand, in considering tho Russian posses- sions which extend on tho north-uvsf coast of America from Behring Strait to 51° of north latitude, nnd also on the opposite coast of Asia and the adjacent islands, from the same Strait to 45°, &c. » « » • " For, if it is demonstrated that the Iinperi;il Govern- ment would, strictly speaking, have had tho power to entirely close to foreigners that part of the Pacific Ocean on which our possessions in America and Asia border, there is all the more reason why tho right, in virtue of which it has just adopted a measure much less generally restrictive, should not ba called in question. • • • • " The officers commanding tho Russian vessels of war, esj which aro to seo to tho maintcimnco of tlic above-men- tioned arrangements in tlie Pacific Ocean, have been ordered to put thcni into force ayainst llioso foreign vessels, &c." In this iioto " north-Avcst coast of America " is montioiieil three times, and in each case tho coast of Bchring Sea is includcLl iu tho term. " Pacitic Ocean " appears twice, and in both instances inchidcs the ]3chring Sea. A map, published officially by llussian an- i-or map, tee thoritics, of which a copy is inchuhnl among the 'Jppe^j'x. vol. ii*, documents annexed to this Case was forworiled Soe Appendix, froi.. St Petersburg by Sir Charles llagot to 'j^'J; jj; *'"' ^• Lord Londondin-ry, in a despatch datcnl the 17th November, 1821, in which it is thus described : — " I have the honour to transmit to your Lordship, under a separate cover, an English translation of tho Ukase, and I at the same time inclose a Map of the north-west coasts of America, and tho Aleutian and Kurilc Islands, which has been published in the Quartermaster-General's Depart- ment here, and upon which I have marked all the prin- cipal Russian Sottlouients.' It will be seen on rcfcrcnco to this Map that the words "part of tho north-west coast of America" iiiclndo the whole coast lino from a point north of JJehring Straits down to latitude 51.° north. Ajrain Lord Londonderry writes to Count Tiicvon : — " The Undersigned has the honour hereby to acknow- j ^,^,1 i.on.biKlpirv ledge tiio note, addressed to him by Baron de Niculny of i'> t'lmiit Liovi'n, tho 12th November last, covering a copy of an Uk:iso •'"'";"■>■ ^^' '^-^■ issued by His Imperial Jliijesty the Enii>eror of All the vd. li, Part I, Russias, and beaiing date the 4t]) September, 1821, for '^" ^• various purpcses, therein set forlli, especially connected wu'i tlie territorial rights of his Crown on tlic wirth- ucstcrii coast of Amcriat, bardcrim/ upon the I'ucifi-c, and tho commerce and navigation of His Imperial Jlajesty's subjects in the se.'is adjacent thereto." And Mr. S. Cmnint^ writing in February 1822 to Lord Londonderry from Washington, whore ho Avas then Briti^^h .Minister, observes : — "I was iiiformuil this morning by Mr. Adams that the m,. Simifunl Russian Envoy bus, within the last few days, ",ommuni- t'aiiniii); to ilie catcd ofliciaily to the American (iovernmcnt an Ukase tjf j ,",', j,',n'|i'f, ,. the Kmperor of Itussia, which has lately appeared in ihr I'll.ninry li), 1")2?. !)uli]ic prints, ajMirnpriating to tl'O sovereignty and ex- ^'f ^I'i''^''^' ' I > 1 I 1 .-> n J \v\. n, IVlli I, elusive use of His Impcriiil Majesty the north-west coa4 >;q o. (/ America down to tho 51st parallel of latitude, together with a coti^ideiable portion of the opposite coasts of .Vsin, and ilio neighbouring seas to the e.xtent of 100 Ilalinn miles from any part of the coasts and intervening islands so appropriated. In apprizing me of this circumstance, ^Ir. Adams gave me to understand that it was not tho intention of the American Cabinet to admit tho claim thus "North-weat Coast" 63 " Nortli-wcst Cnn«t." See Appendix, vol. ii, I'nrt II, No. I. It Coast" I'acilic Oa'iiii." NorUi-wcsl Con.st." Unison's Ilav C'onipiiiiy to ilif .M:ii(liiia of Loinloiidorry, Mari'li 27, 182-2 Si 1' .Appomlix. vol. ii, I'nrt I, No 10 •Mr Ailams to .Mr Riisli, .Inly L>2, 1823. Amerjean State I'apois, Forciffii Uolation-. vol. V, p. -I'ld. Sco Appendix, vol. ii, I'iirt II, No. 4. S(>o Appendix, 08. J and 4. i?i(>e Anne vol. i, Noi notified on the part of Kussia. His objection npiioaia to lie ;iioio purticulnily against tlio exclusion of foreign vessels to so gieut a ili.stanco from the shore." Again II. de Poletica, writing to Mr. Adams on tlu« libth .I'cbniaiy, 1822 :— " The lir=t disfoverics of the Kussians on the north-west conlinciil of Anierii'a ff) back to llio time ol' the Emperor IVler I. 'J'hey belong to the attempt, made towards the end of the reign of this great Monarch, to lind a passage from l/w try sai into the I'acifie Ucciin, » » » • "^Yhen, in 1799, the Emperor Taul 1 granted to the present American C'om])any its tirsl ( 'baric, he gave it the exclusive ]Hi.ssessioii of the norlh-uriil coc,.;' nf America, which bcldugcd to Kussia, from the 55lh degree of north latitude to liehriu!' Straits. • * « • " From this faithiul exposition of known fads, it is easy, Sir, as ap[iears to me, todraw the couclusinn that the rights of I'ussia, to the extent of the iinrtli-itwi/ rim.'il, specified in the Ifeguhition of the Itussian-American Company, rest, i^c. • * * * " The Imperial Governnuut, in assigning for limits to the JhtKsiiut jHissi'ssioiis on (he iwrth-vxst antd of America, oil the one siilc Behring IS/rdit.-t, ond on the other the 51s< thijree of north latitude, has, &e. • • • • " I ought, in the last ])laee, to reipiest yoi to consider. Sir, that tlui lius^inn luiKNSsiim'i in the Pacific Oeeiin e.vlend 0)1 the north-ired I'ufr.sV (/ America from Hehrin;/ Straits to the nlst Jeijree of north lot Unite, and on the njiposite side of Asia and the islands adjacent fnmi the same strait to the 4r)tli degree." Thi'ougliout this note flic phrase " north-west coast " includes the coast of liehring Sea, and the last passage shows unmistakably that the Russians at that time regarded the Paeilie Ocean {"(S ex- tending to Behring Strait. The attention of the .British Government was called to the IJkaso by the Hudson's Bay Com- pany iu the following terms : — " It has fallen under the obstnvatinn of flic (iovernm and Committees of the Hudson'.! I!ay Coni|iai.y that the liussiyn tiovernment Iiavo made a claim to llie nurfh-iirst const of Anoriea from /-lehrini/ /S7ri'/7.s' to the olsl degree of north latitude; ami in an Imjierial I'kas,' Imve pro- hibited foreign \cs.sels from aiijirtiacliing tlie coa.st within 100 miles, uiuk'r penally of eoiiliscaiioii." INFr. Adams, in 1b2o, dcilt willi the Uiissian claim as oiu" nC (>xcliisiv(^ (crriierial rli;lit on the nortli-wcsi ctiasl ol' Americ;>, exieiuliii;;', as he said, I'rum llie "northern exlremity v\i the continent." Articles in tlie "North American Hevicw "(vol. xv, article 18), and "Quarterly Beview " (1821-22, [248] K •T^pi^^WIf- Gi. vol. xxvi, p. .'Ul), published at tlio t'.mo of tlie controversy, anil already rcfenvd to as mentioned with apprrobation by ilr. Adanu., in 1821.- 1*5, use the words "uorth-u'est eoast" ivitli (he sa;uo signideation. Ah". Adams, in his despateh of the '22iv.\ .Tidy, lS2a, to Mr. AEiddletou, referred lo the Ukase of the Emperor Taiil as pnrportiiii;' to grant to the Ameriean Comj)any the "exeliisive ])ossessioii of the vorlli-wpst const of America, whieh belon;^e(l to Russia, from tlie ojth degree of iiorlli hiti'.ude to Behring St mil. The faet that the Avhoh*, and not merely a partieular portion, of the territorial ami maritime claim advaneed by the Ukase \\'as in (pu'stion, and was settled by the Treat ii>s of 182 L and 1825 also appears from tlie Alemorial laid by iTr. Middleton, on the part of the United States, before the lliissian Goverumeut on the 17th December, 1823 :— "AVitli nil tlie rosiioct wliicli wo owe to tlip dcdiU'cil iuteiilioii ami to tliu ik'loiiuiiialiim indicated liytlio Ukase, it is neeossnry to examine the two jioints of fact ; (1.) If the countnj lo the soiil/i and ea-it of Ikhrintj Slrait, ax far af the itl.sl (hf/rcc of nvrlli lalllitt/r, iif fnanil a/rirfli/ iinornipie/. (2.) If there has been, latterly, a real oceupalion of lliis vast territory ? . . . . Tiio conclusion whiili imisl necessarily result from thesi- facts does not appear to esiiiblish that the territory in (|uestioii had licen leijitiiiiately incorpo- rated with tlie lliissiaii I'mpire. "The exten-^iim of territurial rigiits to the distance of 100 miles from the coasts ui)on two opposite cnntincnts, and the prnhiliitinii oi' a]ipriiacliing to tiie same distance from these coasts, or from tlmse nl' all tlie irilerveiUMf' islands, are innovations in the law of nations, and measures unexampled." In an earlier part of the same paper, ^Ir. Middleton observes ; — " Tlu^ Ukase even goes to the slnittiiii/ up of a slrait which has never heen till now shut up, and which is at present tlie jiriniipal object of discoveries, interesting and useful to the sciences. "Till-' veiv terms of the Uka.^^e bear dial this pretension has now been made for the lirst lime." Tlic sane appears from -Mr. G. Canning's (lesi)atcli to Sir C. Bagot of tbe 24(h July, 182 L (which lias been already (pioted in another connection) : — " Yoin- F.xecUcncy will observe that there an- but two points which have struck Count Lieven as su.s('e]itiblo ot any (piestion. Tlu; lirst, the assumption of the base of tdie mountains, instead of tlio summit us the line of bmuidary ; the second, the extension ;o. 4-J. ■PacillcOc m ■ e M 66 I'luitic Occiin." I See anl,', p. S2. " As o till' HCfiJiid jioiiit, it is, perliai)s, as Cmiiit Liuvon renuirks, new. liiit it is to bo rcinarlcril, in vcliini, that tlio cirouiiistauL't's iiiulcr uliicli this ndiUtioiial security is required will lie new also. "By the tenitorial deiv.arcation agreed to in this ' I'nijet,' ]{iiHsia will bee.oiue possessed, in acknowledged soviM'oigiily I't' lintli sides, ol' Behring Straits. "The Tower wliieli eould tliiuK of n;akini,' the I'aeilie a marc ihuisiini may not unnaturally be su])pos(!d capable of ii disposition to ajiply the same chariicter to a strait com- prehended between two shores of which it becomes tho uudi.sputed owner; hut the ithutling up ;h statesmen of that day that, in obtaining an aeknoAvleilgnient of freedom of r.avigation and fishiiig throughout the raeifie, they had also secured this right as far t-.s Bchrirg Strait. As eo^roborati^ e jiroof of the usual practice of the British naval authorities, in the iioini>nelature of these waters, reference may be made to tho instructions given in 1825 by the Lords Com- missioners of the Admiralty, wliieli will be found in the " Narrative of a Voyage to the Pacific and Behring Strait, &c.," under command of Captain F. W. Bcechey, R.N., in the years 1825-2(5-27-28, published by authority in London, 18:U. Those instructions from tho Lords Conunis- • (it) By the extension of territorial jiuisdiclion to two leagues, as oiiginiilly proposed in the course of the negotiations bi-tween (iroat Uritain anil Riissin. [248] K 2 66 sioners, which are full and detailed, make referencn only to Behring Strait aud the Pacific Ocean, and do not mention the Sea of Kam- tchatka ov Behving Sea. Common meanivg of" Pacific Ocean" and " Norl/i- Wi'st Coaat" The works of ;Mr. Eobert Grccnhow, Trans- lator and ijil)riirian to the United States' Depart- ment of State (well known in connection with the discussion of the "Oregon question"), afford a detailed and conclusive moans of ascer- taining the views oiUcially held by the United States' Government on the meaning of Pacific Ocean, Bclmnrj Sea, North'west coast, and the extent to wliich the claims made by Russia in the Ukase of 1 821 wave abandoned by the Con- vention of 182 i. A "Memoir" was prepared by ^Ir. Groenliow, on tiie ofiieial request of Mr. L. F. Linn, Chairman of a Select Coniniittec on tbe Territorv of (_)rcuron, by order of Mr. Joint Eorsyth, Secretarv of State. It includes a Map entitled " Tlie North-west Coast of North America and adjacent Territories," which extends f ."ora below Acapulco in ^lexico to above tlie moutb of the Kuskoquiin in Behring Sea, and euibi-aces also the greater part of the Aleutian chain. Touching the signification of the terms North- west coaxt an I Pacific Ocean, and the lueaniog attached to the relinciuishment of lluss'an claims by the Convention of 1824, the first part of the "Memoir," under the heading "Geography of e "Western Section of North America," contains the following passage : — "The iwrth-nrM rofi.it* is t!u^ oxpi-cssiuii usutilly (Mii- ployed ill the I'liittvl States .it tlie pn'seut time lo distlnguisli tiic vast portion of the Aniericaii continent ■whicli extends north of the 40th parallel of latitude from the Pacilie tii the great dividing ridge of th(' Jiocki/ Moiint(iiii'<, l";;i'ther witli the contiguous islands in that ocean. The southern part of this territory, which is drained nhiinsl entirely by the Kiver Columbia, is coninionly called Otvrjrm, from tlie supposition (no doubt erroneous) titat suth was the name applied to its princijial stream by the aliorigines. To the more nortiiem [nuts of the eontinent many appellations, which will iiercafter be mentioned, have been assigned by 'lavigat? is and fur traders of various natioiis. The territory bordering upon the I'acilic southward, from the 40tli parallel to the * N.H. — Till' italics in this und subsequent qaoL^tions are those ciniilovcd hv (irfenliow hiinfelf. Common meaning of " Pacific (Jcean and "North-wost Coast." (jiccnliow's works. '■ Xl.moir Historical iiul I'nlitioal (if tlic north-west i'oasl...J North Aiiii'rici iiii'l tlio ndjacint territories, illustrated bn .Map anil a po|ira|ihical view of those countries, by R.iiitr liieenliow, Translator ami Lihrarmn to the Depart mem.: State." Senate, '.i'',lh Cong., 1st Session (174), 1840. The same Jleraoir, se]i.ii-atelT printed, apparently In ideiitia j form, and with the sami' Map ami .lagination Wiley a:\ Putnam, New York, 1S40. ' North-west Coast. ' 67 extremity of the peninsula which stretches in that direction as far as the Tropic of Cancer, is called California, a name of uncertain derivation, fonnerly applied by the Spaniards to tlie whole western section of North America, as that of Flovi<\t. was employed by them to designate the regions bordering upon the Atliuitic. The norch-west coast and the west coast of California together form the west coast of North Amrrim ; as it has been found impossible co separate the history of these two portions, so it v.'ill be necessary to include them both in this gejgraphiciu sii,".v" (p. 1). ■ the noitli-west ojn,; ■rritorios, Ulustratr.j In lu-ac countries, by K" ■ ,a„ to t\»- Dovart 111,11- 'se,.ion (174),1HW. mi .mgination \\ili'v l west Coast. Pacific Ocean." Mr. Groonliow here gives the following note: — " In the following pages the term coast will bo used, sometiir.- s ns si<,'iiifyiug only the sca-shoro, and sometimes as embracing ^thc whole ten-itory.. extending therefrom to the sources of the river ; care has been, however, taken to prevent misapprehension, where llie context does not sufTicienlly indicate tlu; true sense. In ofder to avoid rejH'titions, the mirtli-wcst aniM will be understood to be the north-west coast of North America ; nil lalilmhs will be taken as north Intitiules, and all longiti'des as vest from Greenwich, unless otherwise expressed." TJie " ^[cmoir " continues as follows : — "The northern extremity of the west coast of America is Cape Prince if Wales, in latitude of 05° 52', which is also the westernmost spot in tlie whole continent ; it is situated on tlic eastern side of Bceriiujs Strait, a channel 51 miles in width, connecting the racifie with tlie Arctic [or Ic)/ or North Froseii] Ocean, on the western side of which strait, oppf)site Cape I'rince of Wales, is East Cape, the eastern extremity of Asia. Beyond Ijeering Strait the sliores of the two continents recede from eiuli other. The north const of America has been traced from Cape Trince of Wales niirth-ciistward to Ca2ie Harrow," Sec. (pp. 3-4). The relations of Bchring Sea to the Pacific Ocean are (Iclincd as follows in the " ^[cmoir ": — " The part of the I'acittc north of the Aleutian Islands which bathes tho.se .shores is commonly distinguished as tlm Sea of A'amlchat/ca, mid sometimes iis Ile/irinr/ Sea, hi honour of the liussian navigator of that name who first explored it " (pp. 4-5). Ciwijr.i|'iij ul' Oregon :inJ California and tlie otiior ritoiin on thf u>rtli-west nitat of North America." ■ Voik. ISI.-i. Again, in the "Geography of Oregon ami California," ^Ir. Greenhow writes: — "Cape Trince of Wales, the westernmost point of America, is the eastern pillar of Eehring Strait, a passage only 50 miles in width, separating that continent from Asia, and forming the only direct communication between the Pacific and Arctic Oceans. • • » • 68 " Tl.i' I'iut of tlie Paciiic called tliu Sea (if Ktnntchalht.tjx lieliiiiif; St'ii, north of tlie Aleutian chain, likewise con- tains several islands," &c. (p, 4). p"^^". ' racitie Occnn.' GrecBliow's "Ilistory" was ofllcinlly presented to the Government of Great Britain by the Government of tlio United States in July 1815, in connection Avitli the Orejjjon discussion and in l)ursuance of an Act of Congress.* In this History tlie Sea of Kamtchatka, or Bclirliig's Sea, is again referred to as a part of the Pacific Ocean. In respect of the undcrstandinfj by the United States that the claims advanced by the Ukaso of 1821 had been entirely relinciuishcd by the Russian and United States' Convention of 1821-, "Till' Hisldry of Ouiion uml CiilirDiijia anJ tlir otliir t. n tcriis on the niirtli-wf!.t coast of North Anioritii, I liobcrt tiiKiihow, Translalor and Libiaiian lo the Uep.ui nifOt of Mate of Iho Unilid Stuti s ; author of u Mi n i,: llibtorical and I'olitii-al on the north-west n.ast of Nii; Annrica, imhlishid in 1840 hy direction of the Henal. i tlic United States." New York, IS-IS. Tliis in a second edition, and in the iinfacn it is i \pluined i! . its isfUc was rendered necessary lo »u|i|ily l.TiOO copies i tlic wprk which had hi en ordered lor llie Oeneriil Go\i ir meut. Till' iiMie work. First edition, London, 1814. Until I di'icns lontnin ^lajis, which appear lo he ideiiliri, hut diticrcnt IVcni the Maps accoinpunyiiig the Minni.- though including ncnily the fame limits with them. • The following is the correspondence accompanying the presentation by the Government of the United States : — " Mr. Buchanan to Mr. Pakcnlwm. "Department of State, Washington, "Sir, "J»/(/ 12, 1843. " In pursuance of an Act of Congress approved on the 20th February, 1845, I have the honour to tninsniit to you herewith,* for presentation to the (iovornnient of Great Britain, one copy of the 'History of Oregon, California, and the other territories on the North-west Coast of America,' by IJohert Greenhow, Esii-, Translator and Librarian of the Department of State. " I avail, &c. (Signed) "James Buchanan." " Mr. ralaiham to the Emi of Ahcrdecn. — {Hceeiicd Aufjust IG.) " My Lord, " WanMngton, July 29, 1845. " I have the honour herewith lo transmit a copy of a note wliicli I have received from the Secretary of State of the United States, accompanied by a cn]iy of Mr. Green- how's woik on Oregon and California, which, in pursuance of an Act of Congress, is presented '-> Her Majesty's Government. "Although Mr. Greenhow's book is already in your Lordship's possession, I think it right, in consequence of the oflicial character with which it is presented, to forward to your Lordsliip the inclosed volume, being the identical one which has been sent to me by Mr. liuchanfin. "I have not failed to acknowledge the receipt of Mr. Buchanan's note in suitable torms. " I have, &c. (Signed) "1\. Takkniiam" !«'-''pn.'l.itl 69 Jorlh Amer.ni, h ,iun lothoUeiH „t\,or or tt M'^" i„„ uf tbo Ht""!' ' •i- it is .xplninf'l !'. (lie Gi'iu'inltJ"^"' 1814. ,,...r to bo i.UuU. ,mn)i»« '!'« """ its with tl'cro. I -i Kiissiiiii intcrpretiitioii of " I'acific Ocean." TikhmeniefT. See Appendix, vol i, No. 5. 1840. ibid rtoiprdatinu ill the United States. See post, p. 99. the folUnvint? is fouiul on a later p.igi; of the voliinit! Inst rclbn'od to : — " Tiiis Cdiivi'iiLiiiii iliio.s not appiMV to offui' any grounds for dispuU,' US t(i tlic i-onstnii;tioii of its .stii)tilations, but is, on till! contrary, clear, and unuidly favdurablo to both nations, 'i'lie rights of butli jiarties to naviL;ate every part of the I'acilic, and tn trade with thi- natives of any places on the coasts of that sc a, not already occupied, arc first di.sliiH'iiy ackuowledi^'ed, iv-''," (o. 1342). It is thus ch);u', as. tlio result of the investiga- tions undertaken hy Grccnliow on behalf of the United States' Government — That Ui.dirini,' Sea Avas a part of the Pacific. Tiitit liic north-west coast was understood to extend to liehring Strait. That iUissia relinquislied her asserted claims over '• every part of the Pacillc." Tliat the jjlirase " Pacific Ocean " in the Treaty included ]5elirinij Sea is still further shown by the reply of the Russian Government to Governor Etholin in 1812, when he wished to keep Ameri- can wlialers out of Behring Sea : — "The elaiiu to a idare daufmrn, if we wished to advance .such a claim in respect to the northi'rn purl of the I'dcijh: Ocani, coiihl iml he theoretically justified. Under Article I of the Cunccniitiii of 1S24 hituvca Jinma aiul iJo- United Sfdtf.i, which is still in force, American citizens hare a rijlU to fish ill (ill parts of the Pacific Ocean. Jiut under Article IV of the same Convention, the ten years' period mentioned in that Article having e.tpired, we have power to forbid American ves.sels to visit inland seas, gulfs, harbours, and bays for the purposes of tislung and trading with the natives. That is the limit of our rights, and wo have no power to prevent American ships from taking whales in the open sea." Again, in the reply of the llussian Government to representations of the Governor-Gencral of Eastern Siberia in 18iG, the following words occur : — "We have no riglit to exchulo foreign ships from i l/ir Jiii.'miKu v:atcrs of (hi- Parific, and in reply to the notc^ which you addressed to me, dated the l.^th (27th) Alarch, 1 am now in a po!?ition to give you tlie follow ins,' information: — " A Notice of the tenour of that annexed to your note of tlio I'lth March was, in fact, published by our Con.sul at Yokohama, any, of New York, in 1865," Scv. (Anadir liay is sitivitod l)et\\ooii latitudes (ii'' and 63° on tlio A,siatio sid(> of E( liriiii? Sea.) Similar evidence is alVorded by the titlo-pago of the work issued by the same ITydrographic Office in 18G9, as follows : - " Directory of Behring Sea and tlie coast of Alaska Arranged fr()ni tlio Directory of the Pacitic Ocoan." The British Admiralty Chart of Behrinsf Sea, corrected up to November 1881), but originally compiled in 18&4 (No. 2100), is likewise entitled as follows : — " North-west Pacific. Kamchatka to Kadiak Island, including Behriug Sea and Strait." The definitions touching tlii> Pucifio Ocoan, Behring Sea, &c., to be found in gazetteers, dictionaries, and geogiaphical works, Ijoth of the present and past dates, moreovei', show conclu- sively that Behring Sea was, at the time of the Conv(;ntious, and is now, understood to form an integral part of Ihc Pacific Ocean. Such formal d linitions are naturally more trustworthy than inferences drawn from the construction of Maps. A few of these will sulUce, though many more might bo quoted : — "Becrini^'s Straits, wliicli is the iuissai;i; from the Xortli Pacific Ocean to the Arctic Sun." " I'eoriiiLi'.s IsUnid. An islnnd in llu' Vut-iHc (Icean. " Kamschatka. liunnik-d cast ami suiitii hy raritio."' " Stilles Mwr. X.nn ;< nordl. Ur. an bis ziir Dorings- strassu atifwarts stuts lioftige Stnrnie." •• Jler I'aciliciuu. Jl sVHond dii nurd an .sttd dcpuis le Cerclo I'olairc Arctique, c'est-a-dire, dcpiiis le Dt^troit de Beliriug, qui Ic fait coniiinmiquer a TOciJan Glacial Austral." "Stilles Meer. Voiu 'M) siidlicher Tireito Im'^ zum ."> nbrdlichcr Jh'cite venlient es durcli .svinc Hciterkoit uiid Stille den namcii ile.s Stillen Jleer.s ; von ila an bis zur Beriiigsstrasse ist cs licftigen Sliirmen luiterworfen." " Bhering's Strait connects the Frozen Ocean with the Pacific. " The Anadir flows into the Pacific Ocean. " The principal gulfs of Asiatic Eussia are: the Gulf of Anadir, near Bhering's Strait; the Sea of Penjina, and tlio Gnlf of Okhotsk, between Kamtchatka and the mainland of Russia — all three in the Pacific Ocean." [24.8J L 2 u " L'Ocdau Pncitiiiuo BorOal sV'leml depiiis lo I)ctiyit do Bohiiiig jusqii'ivu Tropiquo do Cnncor." " Lo Detroit do Itohrin;;. A cominoncor juir cc di'troit lo Grand Oct'uii (ou Ucc'iin I'licitique) forme lii liniito oriciitulu do rAHio.' " Doliring (di'troit ct'lelno). 11 joint Octan Gliiciul Arctiartie do I'Occ'an Pncifl(iuc." " I't'lirin^ (l)('liiiit lie), t'anal de rt)ci'Mn .... nni.ssant Ics uau.K do rUceim l'aeili(|ue a cellos de I'Oci'an Arctique." "racitic Ocean, lictweeii loiiijitudc 7t)* west und llo' oast, that is, t'ur ii spaci' of over ISO', it covers tlie t,'reatcr part ol' the earth'.s .surface, from liehrinj^'s Straits to the I'olar Circle, that separates it from the Antarctic Ocean." " Holivin}:; Sea is that part of tla^ Xorth I'aeilic (,)cean between the Aleutian Islands in latitude ijo" north and Behring Strait in latitude (10° north, by which latter it comnninicates with the Arctic Ocean." " Behring .Sou, soniotimes called the Sen of Kanitcliatka, is that portion of the North Pacific Ocean lying between the Aleutian Islands and Iiehriii;,''s Strait." " ]k'liring (Detroit do). Canal du Grand ( Iccan iinissant les eaux de I'Ocenn Pacifii|Uo a celles de I'iJccaii Glacial Arctique." " Pacific Ocean. Its oxlieme southern limit is tlio Antarctic Circle, froiu wliicli it stretches northward throuj^h 132' of latitude toBcliring's Strait, which separates it from the Arctic Ocean." " Bohrinj,' (Detroit do). Canal ou bras dc nicr nnissant les ean.x do I'Occan Glacial Arctiehring's St-nji." ",Pr(kr .Mat uDiiio, Tom. ii, p. 181, Purii, 1831 t7. [bill.. Turn, vill, p. 4. LatiKlult, "Uictioiiiiaiio ilc li^igiipMc," T m. i, I'aru 1H38. '' I'c iny Cyclo|)ijJia," vol xvll, Koiidun, 191(1. " Dic'tioniiairo Uiiircricl d'Hi^tuiic tt C»t MilcBrun, .l; " T. lU. '. ''"" 1, HIO. clLcO'i'B"!''"' 'l" ViuwH (if Juigli.'ili Mild Aiiicricun juri«t8. WooUoy, " Intro- iliii-tion (o Inter- naliniiiil Law," .''rd edit'on, New Yolk. 1872, p. 83. Filially, n U'w i)assag09 may be qiiotod front Englisli 1111(1 Aineric;tn publicists of nckiiowlo(l!»cd eminence, to show the niniiiicr in which tho general question has been viewed by tbein. Dr. T. D. Woolsoy, President of Yale College, " Introduction to the Study of International Law," 3rd edition. Now York, 1872, p. 83 :— " Itussiii, tiimlly, ill ii iiioro iccuiit tliilt', bnsuil an c.\- chisivo t'liiiiii to tlio I'liL'ilio, iioilli of llio i'lsl (Iukvoo, upon tho ground tliiit this part of tho ocean wa.s ti |m9sa^'u to shores lyiiij,' exchisively within lier jurisdiclioii. lint this chiini wiia resisted liy our governnieut, iiiul witluh'iiwn in tho tempomry conventiou » p 3, tion 32, p. 3, speaks of Eussia — "Having asserted in 1822 to 1824 an e.xdusive jurisdic- tion over tho north-vest coant and waters of Aiiierira frum Jlehriiiij Strait In the ftftij-ftrst degree of nurtk htitvde." Dnvia, " Oiitlinos of Jntprn.'ition.'il Law." New York, 1887, p. 44. .las. B. AnacU, in the ' Forum," November 1889; '■ Ameriran Rights in Ikliring Sea." See Appendix, vol. i, No. 8. Mr. Davis, Assistant Professor of Law at the United States' Military Academy, "Outlines of International Law," New York, 1887, p. 44 : — " Itus.sia, in 1.S22, iiiid claim to exclusive jurisdiction over that part of the I'acilic Ocean lyiiif; north of the Cist degree of north latitude, on the ground that it pos- sessed the sliores of that sea on hoth tontiiients lieyond that limit, and .so luul the right to restrict coniniercc to the coast inhaliitant.s." A recent United States' writer, Professor J. li. Angell, discussing this subject, says : — "The Treaty of 1824 secured to us the right of naviga- tion and fishing ' in any part of the great ocean, commonly called the l*acific Ocean, or South Sea, and (in Article IV) for ten years that of frequenting the interior seas, gulfs, harbour.s, and creeks upon the coast for the purpo.se of fishing and trading. At the exiiiratioii of ten years Iiussia refu.sed to renew this last provision, and it never was formally renewed. But, for nearly fifty years at least, American vessels have heen engaged in taking whales in Eehring Sea without being disturbed by the Itussiaii (ioveriunent. Long before the nc.'^sion of Alaska to us, hundreds of our whaling vessels annually visited the Arctic Ocean and Behring Sea, and brought home rich cargoes. It would seem, therefore, that Kussia regarded litihring Sea as a part of the Pacific Ocean, and not ns one of tho ' interior seis,' access to which was forbidden hy the termination of the IVth Article of the Treatv." 7(1 Sir 11. i'liillimoiv, in tlio 2ntl edition of Philliimre, '* Inter. " Coinmeutarlcs upon Internutioaal Law," vol. i, smiTdi'timrvIl. i, 1). 211, remarks : — p. 24li3r(l cdilion, I>. 290]. "Ill 1^!".'l! Itiissiii laid cl;iim t(i ;i sovoroigiitv ovin- (lie I'aoilio Oc't'aii iioitli nf tlio Tilst ilogi'ju of latitiiilo ; but ilie Goveruiuent of tlio Uiiiteil Stiites !>f America u'sisted lliis claim as coulrary to the in'iuciple.'-. of iatuniatioual iaw." Mr. W. E. Hall, ''Principles of International Hall, "Inior- Lan-," Clarendon Press, Oxford, 3rd edition, 3SedUio^n"">'u7 1890, p. 117 :— ' e..on,i>. " Xok. — A new claim sulisoquciilly s^1nlll^' \\\\ in (ho Tacilic, but it was ali.iiuliiiKnl in a very slioii time. Tiio Uu.ssiau Oovoi'umcut ]iiiLonilc(.l to bo Suvcrcinii over the l*ac'ilio north of tiic 'ilst ). Tliat at no stage of the controversy was any distinction drawn, or intended to l)c drawn, between the .«eas to the north and the seas to the south of the Aleutian Islaniis. That Ih'hring Sea was included in the phrase '• Paeilie Ocean " as used in the Treaty of 1S25. That (lie expression "north-west coast of Auu)i'ica," or, in its abi)rcvialed form, "north- west ciiiist," included the coast up to Uehring H trait. „..™«CT«j!nKM.i-««««ilJ! » x-.vnit^ 77 User of Waters from 1821 to ISCT. Historical Outline. 1821. 1822. 182.'! Al.iska, pp. ,^)3-l, 53'.. North-west Coast, Chapter IV. IIb.VI) (0). — The User of the Waiers ii. qiirstioii from 1821 to 18(57. As regards the user of the waters in question, it has hecn shown tlMt down to the year 1821 llussir. made no attempt in practice to assert or exercise iurisdiciion over roreic:n vessels wlicn beyond tlie ordinary territorial jurisdiction. With the exception of the incidents connected with the Ukase of 1821 , already referred to in C'laptcr II, the same is true of the period between 1821 and 18(;7. To resume the historical statement in chrono- logical order : — In the year 1821 iMouraviof was sent out to take control at Sitka under th(» new Charter. lie .-.ssunu'd the name of "Roveinor" in place of that of " Chief Manager," Avhich bad ])re- viously been employed. The names of scn'cn trading-vessels on (lie vol. i,i.i..,'?jo.34l. ,,orth-west coast are known fur this vcar. Ainska, ]i|>. 5311. Ilml., p. 540. Il.id., ilO. pp. 53C-.539, Iliiil,, p, ,'>;18. In 1822, the Russian vcs.sel " Jturik" arrived at Sitka from Ivronstndt with supplies. About the close of the year the llussian sloop-of-war " ApoUon" also arrived, witli instructions that all trade with foreigners should cease. This interdict remained in force for two vears, and seriouslv interfered with the profits of the Company. In this year also the Euss'an sloops-of-war "Krcisser'" and "Ladoga" arrived to enforce the provisions of the Ukase, and remained for two years. An oxphn-atory expedition, which ren\au\ed absent two years, was dispatched from Sitka to the cafitcrn shore of Behring Sea. In 1828, a famine was feared it Sitka and on the coast, and the " IJtirik " at l an American vessel which had been purchased, were sent to Califonua and the Sandwich Islands for supplies. Kcfcrring to this iucidcnt, Bancroft writes: — " .\s ill tills iiistmu'L', till' Ciilouii s liail t'rci iiciilly liccn i( lii'vcJ fiMiu Miuit Iiy tiiiilc Willi fi .i'('i<.j1ioi'.s ; f.ml, imlcod, • Sep nolo on p. 10 rcforiiiii; In tr.iillhi^-Vosscls on tliR nortli- wt'st const. None of ('u'so tnitliig-vrsscU wtT Uuaainn. 78 thirs wii.s too ul'toii tliu only iuwuih of avei'tiiig .stiiiviitiou. Even betwt'i-'ii 1818 iunl 1821.', when supplies weiv com- pavati.'uly ubinuliuit, gooils, coiisLstiiij; luuiuly of pvovLsioiis, wei'.^ obtiiued by traflic with Auiericaii and Eugliplx coasters to tho value of move than oOO.OOO roubles in scrip," In tlie same year, the " Rob Hoy," from Boston, is known to have been on the north-west coast. In 1821, Kotzebue, in tho " Predpriatie," called at Sitka. About this time the shareholders of tlie llussiau Company protested against the interdict of foreign trade, and Sitka was, in cou- sequenee, again opened to such trade. Acting under the autnority of the Ukase of 1821, tho United States' brig " Pearl," when on a voyage from Boston t o Sitka, had been in tho year 1822 seized by the Eussian sloop " Apollon." Count Is'esselrodc, in his despatcli to Count Lieveu (2Gth June, 1823), whoi communicating the suspension of the Ukase of 1821, says the advices to tliis effect were sent from St. Peters- burg in August of 1823, and that the oflicer of the "Apollon" 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, tho "Pearl" was released, and compensation was paid for licr arrest and deten- tion. In tho same year four vessels are recorded as having visited the north-west coast, and some of them are known to liave repeated their visits in later years. In 1825, the "Elena" arrived at Sitka with supplies. Kotzelmc also again called at Sitka. Kcmonstrances were addi-essed by tlic Russian- American Company to the Russian Government as to the effect of the Conventions of 1821 and ]825. Tho name of but one vessel trading on the north-west coast has been preserved in this year. In 1826, Chistiakof wrote to the Directors of tlie Company, asking that an experienced whaling master should be sent out. In July of this year Her Majesty's ship " Blossom," under Captain Beecbey, sailed through Behring Sea into the Arctic Ocean. Nortli-west CdasI, vol i, p. 341. AIask.i, p. 540. Ibid., p. 541. Dall's Alnsk:i, pp. 233, iH. See Apppndix, vol li, Pari J, N<.. 2 J. As to the " I'earl," see S. Canninnf to (i. Cannin)^, April 23, 1823. Appendix, vol. ii. Fart 1, No. 24. North-west Coast, vol. i, p. 341. Alaska, p. 539. Ibid., S44. Norlh-wett Coast, vol. i, p. 341. Alaska, p. S82. Beechey'i Vovaje to tho I'at'iSc and Hcliring Strait, London, 1831, vol, ii, p. 330. IS2-I. 1825 ISliU. 79 1827. 1828. 1829. 1830. 1832 or 180.S. 1833. 1834. 1830. Alaska, p. 5-IC. Norili-wett Coait, vol. i, p. 341. Alaska, p. 546.' Letter of Brewer to Amory, H.R., Ex. Doc, 40th Cong , 2n(i Sess., No. 177, p. 8.i. Alaska, p. 565, Ibid., p, 647. yr.th-west Coast, vol. i, p 341. Alaska, pp. 548- 652. Ibid., p. 555. See pott, p. 83. Ibid., p. 583. Norlh-west Coast, vol. i, p. 341. Ibid., pp.341, 342. In 1827, Liitke, sent by t.'ie Russian Govern- ment, arrivod at Sitka, and thereafter made explorations in tb'. Aleutian Islands and in liehring Sea. Two vessels only of the trading fleet on the north-west coast are in this year known by name. In 1828, two vessels belonging to Liitke's ex- pedition earned on surveys iu Boh ring Sea. The trading- vessel " Eliza " was at Sitka in this year. In the years 182G, 1827, and 1828 the " Chin- chella," a United States' brig, Thomas Meek, master, was trading between Sitka and China. In 1829, a llussian vessel was sent from Sitka to Chile to trade. Some explorations were also made by the llussiars iu the inland country. In 1830, explorations were made in Behring Sea by Etholen. Wrangell relieved Chistiakof in command. The names of four or five foreign vessels trading on the nortli-WP1ix, vol. ii. Fart II, No. II. " . . . . The rigla of the citizens of the United States to navigau'. the Pacific Ocean, and their right to tiiide with tlie aboriiiinal native- ot the niicd, in order to trade witli the natives. Tliest rights pre-existe. 321 . in search of Sir John Franklin. The " Enterprise " passed Boliring Strait on the Gth May, 1851. Tiie United States' whaling fleet is said to have been as numerous as in 1819. The interval between the close of Tcbenkofs '^'•»'"'' P ^86. administration and the beginning of tliat of Voievodsky was filled by the temporary appoint- ment of Rosenburg and Rudakof . In 1852, buildings at the Hot Springs, near Ibid., p. 674. Sitka, were destroyed by the Indians. The value of catch of the whaling fleet in Ibid., p. 669. the North Pacific in this year is estimated at 1-1,000,000 dolliirs. After 1852 the whaling industry gradually decreased. In 1853, war impending between England and Ibid) p. 570. Russia, the Hudson's Bay and Russian- American Companies influenced their respective Govern- ments to prohibit hostilities on the north-west coast of America. In the same year the Russian-American Com- Tikhmenieff. pany again specially requested the Government to ^H ; k'o.'s."'' prohibit whalers from entering Okhotsk Sea, but without success. Instructions were, however, issued to Russian cruizers to prevent whalers from entering bays or gulfs, or from coming within 3 Italian miles of the shores. Tikhmenieff gives the following details : — Some time before the Company had written to the Foreign Office (22nd March, 1853) :— 1851 1852. 1853. 18,- ' " If it ia found impracticable entirely to prohibit for a Ibid, time fishing by foreignei.s in the Sen of Okhotsk, as an inland sea, would it not, at any rate, be possible officially to prohibit whalers from coming close to our shores and whaling in the bays and among tlie islands, detaching one of the cruizers of the Kamtchatka flotilla for this service ? " l.S'.'!, i^coj The instinictions to cruizers were approved on the 9th December, 1853. The cruizers were to Bee that no whalers entered the bays or gulfs, 87 or ramo witliin ^ Ttaliari miles of ilio shoros of Russian Amc>rica (noi-tli of 5t° 11), Uip J'oninsula of Ivnintdiatka, Siboria. tlic Kadjak Ardiipplaufo, tlio Aleutian Islands, tl\(! I'rihylofV anl Comniaiidci' Islands, and the others in Jii'hrinEf iSea, the Ivuriios, S;iklialin, the Slmntar Islands, and the otliers in the Soa of Okhotsk fo the north of 40" W north. Tho eruizers were instructed constantly to keep in view that :— " Oiii' ( iovuniiiii'iil iiiii, mily ildcs not wisli Ui inoliilnt or jtiit oliMlaclcs in the Wiiynf wliiiliiii,' liy fnroiKiiei's in the iiortlirvii ]iiirt dl' the I'licitii' ( )l'1'iiii, Init iillows fdi'L'ii^'lii'rs to tiike wIuiIlm in tlu; St'ii of Okliotsk, wliicii, us sUitctl in tliese instuictions, ii, from itn i/roi/i'aphical positimi, a Itii.^xion iiihiHtl mn." ('I'licsp words iirc in ilulics in the oiii'in.il.) 1853. is:.4. 185'.. Alaska, p 5R4. In 18.J !•, 5.^5 foreign Avhalers were in Hehring Soa and its vicinity. In the same year Ibid., p. 583. Voicvodskv was elected Governor for tlic Com- pany. ibid., p. 583. In 18.55, the Abo Wlialing Company went into liquidation. JSid., p. ym. Jii 1856, 366 foreign whalers were reported as in Eehring Sea and vicinity. Bancroft reports that in the year 1857 : — Ibid., p. 6C8. "Of the (100 ov TOO I'nited States' whalers that were lilted out, in 1S57, nt least one-liiilf, iucludiiij,' most of tlie lari^'tT ves.sels, were eng.iged in llii^ North I'neitie . . inrlndinj,'. of eoiirse, neliriutj Soa." 1857. 5(Jlli Cnnfr., 2nd Sei«. .'^en., Ex. Uoc. No. 106, p. 251, Seward to (Day, February 24, I8b8. S«e Appendix, vol. ii, Part II, No. 12. Seep, 114 of Case Iff,'i9. Alaska, p. 592. 18C0. Ibid., pp. 578,579. Ibid., p. 380. Captain Manuel Enos, of the United States' barque ".Fava," stated in 1807 that he had wl alcd unmolested in the bays of Okhotsk Sea for seventeen years previously. In 185!), tlic cession of Alaska to tho United States began to be discussed privately. In 1860, the Russian-American Company ap- plied for a new Charter for twenty yeai*s, to date from tho 1st January, 1862, and Reports as to tlie condition of the Company A\cro called for by the Government. The Russian population of the American Colonies at this date., apparently including native wives, numbered 784 : Creoles, 1,700 ; native population estimated at over 7,000. [248] N IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I £ U£ 12.0 RW^as i'-2^ r-^ 1'-^- ^ 6" ► Photographic Sciences Corporation 23 V'jl-ST »;..tfs S'.imT WftSTir.N.V. USM (716) •72-4S03 88 In 1862, the vn'ue ol" the catch of the North Pacific whalini* fleet was cstimtitcd at 800,000 dollars. In 1863, the United Stntcs' brig "Timandra" was engugod in the cod fislicry off Saghalien Island, Okiiotsk Sea. In succeeding years a number of vessels resorted to this sea for the cod fishery. In 1861, Alaksutof took temporary charge for the Russian fJovcmient of tlie Company's affairs. In 1806, negotiations between the Russian Company and the Government continued, but terras such as the Company would accept could not be arrived at. In the spring of this year, the " North Paciflo cod-fish fleet " ^vas organized. It corapi'ised seven vessels, all of which arc believed to have fished in Okhotsk Sea. In 1860, the Russian Governmeut still con- templated renewing the Company's Charter on certain terms. A Califoruian Company entered into trtMity for a lease of the "coast strip" of Alaska, then held by the Hudson's Bay Company. Eighteen v(!ssels were engaged in the Okhotsk Sea cod fishery. Tiie " Porpoise " initiated the fishery in the Sliuniagan Group, Alaska, finding there "safe harbouis, fuel, water, and other facilities for prosecuting this l)usiness." Several Britisii Columbian sclioonors also fished in Alaskan waters. In 18(57, Alaska was sold by Russia to the United States for 7,200,000 dollars. Nineteen United States' vessels fished for cod in Okhotsk Soa or in Alaskan waters, the Shuma- gan fleet consisting of three vessels. The tot^l catch amounted to nearly 1,000,000 fish. In 1807, before the cession of Alaska, the whaling interest of the United States in these seas are thus referred to by a Pluladelphia paper : — "Our whaling iutnrests iire now lieaviost in tlio. sens adjnccnt to llu8.sian-.\meri(!n, lioth nbove und helow Behriii):; Strait." Alaska, p. 06!). Finliery Indiiitries of the United States, oer, r, vol. i, p. 209. Alaska, p. 570. Ibid. Fisliery Industries uf the United iJtates, sec. v, vol. i, p. 210. Alaska, p. 680. Fisherv Industries of the tJnitod Stated, sec. v, vol. i, p. 210. Ibid., p. 2n " Pniladelphia North American (tacette," Friday, April 12, 1807. E.\. Doc. No. 177, '.nd Sesi., 40th Cong., p. SO. 1SC2. 18G3. 18G4. 18GJ 18CC. 18C7. The value of the catch of the North Pacific Alaska, p. ccn. whaling fleet was estimated at 3,200,000 dollars. In 1868, the lease of the " coast strip " of Ibid., p. 693. Alaska to the Hudson's Bay Company by the Russian-Amerioan Company expired. 18C8. Whaling indiutfy. Wf'f^Y 89 Statistics of United States' Wlialim/ tndustrt/. "Fishery Industries of the United States," see. 5, vol. ii, pp. 84, 85. {North Pacific Grounds, including Okhotsk and Behrinrj Seas and Arctic Ocean.) The gi'owtJiand doclino of tlio Aviialins; industry during the years discussed in tins chapter may be conveniently illustrated by the followini? Table, which shows the number ol' United States' vessels in the North Paeiflc Avhaling fleet from 1841 to 1867. It is taken Irom "The Fishery Industries of the United States," 1887, section 5, vol. ii, pp. 81-85. (This li.st does not include whalers of other nationalities.) Yenr. Number of Vessels. 1841 20 1842 29 1843 108 1844 170 1845 263 1846 292 1847 177 1848 159 1849 155 1850 144 1851 138 1852 278 1853 238 1854 232 1855 217 1856 178 1857 H.'l 1858 lU(i 1859 170 1800 IJl 18fU 76 18G2 3- 1863 ^•^ 1864 08 1865 5!) 1806 '.15 1807 90 Wiiliiis huntinj.'. Ibid , p. 314. The whaling-vessels frequenting I3ehring Sea and the Arctic Ocean, from the first, engaged to a certain extent in walrus hunting, and about 18G0 such hunting began to be an important secondary object with the whalers, in subse- quent years many thousand barris montagiU'S ([ui s'Otendent dans une direeliou [liiiiillMe a la wic, depuis le ."ilj"'" degie de latitude nord au pcijnt d'intersection du 141'iio Ji.giv ^\^; liiiigituile nui.'st. so trouverait a la distance de plus do 10 lioues marines do Tod'an, la liinite entre les possessions britannicjues el la lisii're de onto mentiounee ci-dessus comme devant appartenir k la l^ussie' (e'est-a- dire, la limite des possessions codeos par cette conven- tion) : 'sera formee ])ar une'' limine parallele aux sinunsites de la cote et qui no pourra januiis en etre I'loiguee (jue do 10 lieues marines.' " Li liii lie oecidontale des territoires cedes jmsse par un point au 1 >etroil de IJehring sous le paralR-le du soixanto- cinquieme degre trenle minutes de latitude nord, a sou intersectinn par le meridien qui si'pare a distance egale lee Iles Krusenstern ou Ignalool- et I'lIe Hatmanotl" ou Noonarbook, et remonte en ligne directe, sans limitation, \Qia le nord, juscju'il ce qu'elle se pcrdejdans'^ja Mer Glaciale. (."ommenrant au memo point de depart, cetlo liinite occidentalc suit de lajiiii cours^proaquc sud-oucat, k traxers le Detroit de lieliring et la Sfer de Beliring, de Treaty of 1867. 03 Tronty of 1.'ourront adopter, de temps en temps, i\ IVgard des tribus aborigenes de ce pays. "ARTICLE IV. ■' Sa Majesti' I'Empereur de Toutes les Rnssies nommera, aussitot que possiV)le, un agent ou aux agents charges de i-emettre, foruiellenient, h I'agent ou des agents nommds par les litnts-Unis, le territoire, la souveraineti-, les pro- priutes, diSpendances, et apparteuances ainsi cddt'es et de (lii'ssii tout autre acto qui sera ndcessaire i I'accomplisse- m-iut do cetto transaction. Mais la cession, avec le droit de possession inimtWUate, doit toutefois etro considdr^ comi'loto ot absoluo a I'l'diange des ratifications, sans attendi-u hi remise formclle. M " A1!TI(I-K V. "^Iniini'iliiitcimont ajm'-a rt'chango dos intiticiUioiiK inns Ic dit tcrritoiro scvunt rutirues ilans un ternic iirntii'dlilc. et ijiii jmis. i' iimvPiiir unx ih-\\\ parties, "A1!TI([,K VI. " Kn coiisiili'Tatioii dc la susditc cession, Irs fitnts-l'nis sVngagout a payer a la trcsortM'ie ii AVasliin^^ton, ilans Ic turnio de Jix mr'"s apivs I'l'dian^c dos iMtilii'ations de I't'tti; convention, sept millions deux cent milli' dollars en or, an representant diploniatiipie on tout autre a;.;ent do Sa Mujosti^f I'Enipereur 't«ies" lished by the United States* Government, " the SMut»t at Large, western limit within which the territories and pp. 639-648,' dominion conveyed are contained." The Treaty discussed, 05 S'o «peci*l dominion over wntei* acter of the western geographical nit, and reason for its adoption. i/i'tt Islands, &e. leaty discwsBed. It will b(} observed that in none of theso Articles is there a reference to nny extraordinary or special dominion over the waters of the Beliring Sen, nor, indeed, over any other portion of tho North Facitiu Ocean. Even iu the passage hist cited tho word "dominion" appears to have no equivalent in tho original French version. Neither is there a suggestion that any special maritime right existed which cnuld he conveyed. Tho language of tho Convention is, on tho contrary, most carefully confined to territory witli tho right of sovereignty actually possessed hy Russia at the date of the cession. In Article I the limits of a portion of the Bchring Sea aro defined in order to show the boundaries within M-hicb tho territory ceded " sur le Continent d'Amc^riquo ainsi quo Ics lies con- tigues" is contained. In Article VI, Ilussia again makes it emphatic that she is conveying " ies droits, franchises, et privildges appartcnant actuellement a la llussie dans le dit Torritoire et ses dependances." The final clause of Article I distinctly nega- tives any implication of an attempt to convey any portion of the high seas — for the said western line is drawn, not so as to embrace any part of the high seas, but, as expressed in the apt language of the Treaty - " de manihc a cnclavefy duns le dit territoire ce'rfe', tnutes Ies lies Ale'ouics situe'es a I' est de ce me'rilien." Had the intention been to convcv the waters of tho Hehring Sea eastward of tho western limit, the words " ainsi que Ies iles contigiies " would not have been used, but words would have been chosen to indicate the area of the open sea con- veyed, and it would have been unnecessary to specifically mention the islands. There was good reason for a lino of demarca- tion of the character specified. The islands in the Aleutian chain and in Behring Sea were not well defined geographically, and could therefore not be used for tho accurate delimitation of territory ceded. In fact, even the term Aleutian Archipelago was indefinite in its signification, often including islands which were on the Asiatic side of Behring Sea, and far from the Island of Attn, the western, most island of the Aleutian group intended to be ceded. [218] O 9e " Mciiioii', lllsln- r'cnl ami I'ulilic.il. of llio Nortli-wist Coast of Nurtli Amcrit^a. Stc. l>v r>74:. Greonhow, for instance, writes : — " The Aleutian Archipelago is considered l>y tlio Ku.«iiiii.« iM consiatinff of fhrre groii}>$ of islands. Nearest Aiiiiskii are tlio For, hlamU, of wliJcSi the lar},'ont are Uiiinud-, UnaUishka, and I'miiak; next to these are tiic Andreanowaki/ IsUtiiiin, rtuioni,' \vlii';li are AUchci, Tonayii, and Kan ri IN If. • , r> 1,1 / -^ Irnnslatoi anil topper Mtmf). and hcrnmjs hland (p. :>). LIbiariuii n llic Dcparhnciit of In the " History of Oregon and California," &c., oc'Ih^o^,"""" by the same author, tho Commander Islands Ui So " (Copper and Behring Islands) are again classed ' among tho Alcutiaii Islands, which arc said to be included under two governmental dis- tricts by the Russians, the Commander Islands belonging to tho western of these districts (p. 38). Grecnhow also states that the name " Aleutian Islands" was first applied to Copper and Behring Islands. Indeed, in many Maps of various dates, the title Aleutian Islands is so placed as impliedly to include tho Commander Islands, in some it is restricted to a portion of tho chain now recognized by that name. Similar diversity in usage, with frequent instances of the inclusion of the Com- mander Islands as a part of the Aleutian Islands, is found in geographical works of various dates. From this uncertainty in usage in respect to tho name of the Aleutian Islands (though these are now commonly considered to end to the west- ward at Attn Island), it is obvious that, in defining a general boundary between the 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 Unitetl States. Neither would this loavo covered the case presented by the various scattered islands to the north of the Aleutian chain proper, while to have enumerated the various islands, which often appeared and still sometimes appear on different Maps under alternative names, would have been perplexing and unsatisfactory, from the very great number of these to be found in and about Behring Sea. It was thus entirely natural to define con- ventionally a general division fixed by an imaginary line so drawn as according to the best published Maps to avoid touching any known islands. < liaraclor of llio western geogiapln i limit, and rfusoii for its adoptiun Ah'itinn ftlands, <£'<*. 07 liiJI'vif*'' "urvey of HehiinK ^i" Ap!iriiilpx Ni'. 2 <•( Uiiilnl SiHlcV Co.nt Survey. ( 'o;i»l Piliit of .•Maskn, 1 Slip, IV.il 1, I.. 2QJ 'riio occnsioii for n wostorii limit of tho kind adoplcd is the nioro obvious, wlum it is borne in mind that in:uiy of tlio islands in nnd about Bohriii!? Sen arc oven iit the; present dny very imperfectly surveyed, and more or less uncertain in position. The I'dUowinij is from tlie "Coast Pilot of Alaska" (United States' Coast Survey, 1809) :— "Tlio fiiUowiiinr list of tho Roogriiphiciil ])oHili(inH of plnt'cs, piiiuMpally upini llic I'nnst of Aliiskii, Iiaa boon coiuiiilod cliiufly from Itnssian aiUhoritics. In itn pn-jMirii- •.ion the intention was to infrodncn nil detcrininntionn of position lliat iipiicarcd to havi- l)uon mndf 1)V ju'timl obsor- vation, rvuii wlion tho localities luv (piite elosio. In the Arcbipeliigo Alexunder most of Vnnnouver'a lutitndcs have been introdiieed, although in sncli waters they are not of lijreat practical value. " It 1 believed tho latitudes arc Rcnerally within 2 miles of the actual position, and in many cases where several observers had determined them independently, the errors may be less than a mile. The longitudes of har- l)our? regularly visited by vessels of the Kussian- American Company appear to be fairly determined, except toward the western terminution of tho Aleutian cliain, where large discrepancies, reaching 30' of arc. are exhibited by the comparison of i-f^sults between Kussian ttuthorities and the United States' Exploring Kxpedition to tho North Pacific in 18r»r». Positions by diilerent authorities are given in some instnnces to show these discrepancies. Tlie comjwrisou of latitudes and longitudes at Victoria, Fort Simpson, Sitka, Chilkaht, Kadi.ik, and Unalaska, between English and Russian and the United States' coast survey determinations, exhibit larger errors than might have been expected. " Tho uncertainties that exist in the geographical position of many island.s, headlands, straits, and reefs, the great dissimilarity of outline and extent of recent exami- nations of some of tho Western Aleutians, the want ol' reliable daUt concerning the tides, currents, and winds, the almost total want of detailed descriptions of headlands, reefs, bays, straits, &c., and the circumstantial testimony of the Aleutian fisiiermen concerning islands visited by them and not laid down upon the Charts, point to the great necessity for an exhraistive geographical reconnais- sance of the coast, as was dono for the coast of the United States between Mexico and British Columbia." Even the latest United States' Chart of what are now known as the Aleutian Islands (No. 68, published in 1891) is based chiefly on information obtained by the " North Pacific Surveying Expedition " under Rogers, which was carried out in tho schooner "Fenimore Cooper" in 1865. On sheet 1 of this Chart (embracing the western part of the Aleutian [218] 2 Island*) such notes ns tlio following are found : — "Tlio latest Russian Clinrts i)lnco Bouldyr Island 10 miles due s.iilh of tliH ponili'in givon hero, which is from a ilctcrmiuntion by Sutnnor's nietlioil. "The low islands Ictwcnn Goroloi and loulakh, ex- cepting the west point of Uiial;,'a, aro from Russian authorilics, which, however, are widely discrepant." Similarly, in tho corresponding British Ad- mirnlly Chart (No. 1501), published in 1890, wo find tho remark : — '- l^Iostly from old and imperfect Dritish, Russian, and Anierican surveys." On tho Chart of Behring Sen, published by the United States in 18!)1, n small islet is shown north of St. Matthew Island, near the centre of the son, which docs not appear on tho specia' Map of St. Matthew Island published in 1873, and which could not be found in 1H91. That (lip line drawn through 13ehring Sea between lliis.<-ian and Unitcfl Stutos' possessions was thus intended and regarded merely as a ready and definite mode of indicating which of tho numerous islands in a partially explored sea should bcloiii:» to cither Power, is further shown by a consideration of tho northern ])ortion of the Game line, which is tho portion first defined in the Treaty. From tho initial point in Behring Strait, wliicl'. is carefully described, the "liraito occi- dent;iJc " of territories ceded to tiie United States " remonte en I'gne directc, sans limitation, vers le nord, jusqu'il ce qu'ellc sc perd dans la Mcr Glaciale," or, in the United States' oflicial trans- Intion "proc'jcds due north without limitation into the same Frozen Ocean." The "geographical limit" in this the northern part of its length runs through an ocean which had at no time been surrounded by Russian territory, and which had never been claimed as reserved by Russia in any way; to which, on the contrary, special stipulations for access had been made in connection with the Anglo-Russian Convention of 1825, and which since 1848 or 1819 had been frequented by whalers and walrus- hunters of various nations, whilt^ no single fur> seal has ever been found within it. It is therefore very clear that tho geographical limit thus projected towards the north could have Limit continued throngb Arctic OaA been intended only to deflnc the ojpncrslilp of such islands, if any, as miijht suljscquontly be discovorod in this impcrfcftly cxplDiod ocean; and when, thTcforo, the Treaty proceeded to duflnc tho courso of "the same vcslcrn limit" (cclti' limite orcideiitule) from tlio initial point in Boliriiii: Strait to the soutliwurd and wtstward across llDliring Sea, it is obvious that it continued to possess the saaie character and value. Debates in Congress on the Cession of Alaska, 18G7, 1808. Debotot in CongrcM on Ceseion of Aluka. through Arctic Otwl Dorial of Lepslntnre of Territory of Wasliington. Neither tho l^cbatcs in Congress— which pre- ceded and resulted in the cession and its rutiflca- cation by the United Slates, nor the Treaty by which it wns carried into cfrccl, nor the subse- quent legislat:.-!! by the United States, indicate the transfer or u 'ijiiisitioii of any exclusive or extraordinary r\;jbts in Behring Sea. On tho contrary, tb'. show that no such idea was then conceived. In nuswer to a I'esolution of the House of Representatives oC the 19th December, lb07, calling for p.ll cnrrospoiulencc and information in the possession of the Executive in regard to tho country proposed to bo ceded by the Treaty, the Memorial of tlio Legislature of "Washington Territory (which was made the occasion for the negotiation , toL;ctlier with Mr. Sumner's speech ill tho Senate, were among other documents transmitted. This Memorial shows that United States' citizens were already engaged in fishing from Cortez Banks to Bi'hring Strait, and that they had never been under any apprehension of interference with such fishing by Russia, but desired to secure coast 1";icilities, especially for the purposes of curing fish and repairing vessels. Tho Memorial is as follows : — United Stin* Penatp, F.i. Doc. No. 177. 4i'ih Con*;., 2Dd Se«(.i p. 132. "To his Excellency Andrew Johnson, President of the United States. " ^ onr memorialists, tho Legislative Assembly of Wush ington Territory, b«g leave to show iliat abundaiico of cod- fish, halibut, and saimon, of excellent quality, have been found along the shores of the Russian possessions. Your memorialists respectfully lequest your excellency to obtain such rights aud privileges of the Government of Ituesia as will enable our fishiug-vessela to visit the ports 100 ftud harbours of its possessions to the end that fuel, wntiT. and provisions may bo easily obtained ; that our sick and disabled fislicrnicn may obtain sanitary assistance, togetlior with the piivilegi) of curing fish and repairing vessels in need of repai.-s. Your memorialists further request that the Treasury Dejjartment be instructed to forward to the Collector of Customs of this Pnget Sound district such fishing licences, abstract journals, and log-books as will enable our hardy fishermen to obtain the bounties now provided and paid to the fishermen in the Atlantic States. Your memorialists finally pray your Excellency to employ such ships as may be spared from the Pacific naval fleet in exploring and surveying the fishing hanks known to navigators to exist along the Pacific Coast from the Cortez bank to Behring Straits. " And, as in duty hound, your memorialists will ever pray. "Passed the House of Representatives, January 10, 1866. (Signed) •• EDWARD ELDUIDGE, Speakfr. " House of Jicpresentatives. •• Passed the Council, January 13, 1866. "HAKVEY K. HINES, PrM,V/t«r " pf the VoitnciL" In the debate which took place in Congress upon the subject of the acquisition of Alaska, the value of the proposed purchase, and the nature of the interests and property proposed to be acquired, were fully discussed. The debate was protracted, and many leading Members spoke at length. To none of them did it occur to suggest the existence of an exclusive jurisdiction over any waters or fisheries distant more than .'] miles from land. On the contrary, ^Fr. Sumner, who had charge of the measure in the Senate, after pointing out that 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, liowever, that the possession of the coast would give advantages to the United States' fishermen for the outfitting of their vessels and the curing of their catch. ^Yith reference to the whale fishery he re- marked : — " The Narwhal with his two long tusks of ivory, out of Uni'ed SiMe%' which was made the famous throne of the early Danish ^.''"''"'' ^•*- ^o^' 11 . n V r, u . V / ^" 1'7, 40'li kings, belongs to the Irozcn Ocean; but he, too, strays Con^'., -.'nd Hen., into the straits below. As no sea is now rnare clausitiii P- ^^^^ nil these may be pursued by a ship under any flag, ^.„^ j 'jj^" g"' t;vCopt directly on the coast and within its territorial Di'tiatos in Congress. 101 Dtbflten in Congrew. limit. And yet it soema 119 if the possession of tbis cooat us n coinincrcial base must noccssdrily give to its ppople jjecuHnr advantages in this purauit." United States' Congressional Debates, f'rniii " Congressional Olobe," Ueccmbcr 11, 1SG7, 4Utli Cong , 2n(l Stss., I'nrt I, I-. 13'^. Mr. AVnshburn, of M'^isconsiii, said : -- " But, Sir, there has never been a day since Vitus Uehriiig sighted that coast until tiie present when the jieoplc of all nations have not Ijoeu allowed to tish there, and to eure fish so far as they can be cured in a country where they have only from forty-five to sixty pleasant days in the whole year. England, whose relations witli Kussia are far less friendly than ours, has a treaty with that Government by which British subjects are allowed to fish and cure fish on that coast. Nay, more, she has a treaty giving her subjects for ever the free navigation of the rivers of Russian America, and making Sitka a free port to the commerce of Great Britain." Dnltcd States' Congreisional Debatea, from " Congresiinn.il Globe," July 1, 1808, 40th Conp., 2nd Sess., Par! IV, p. 3667. Ibid., p. S66H. lu 1868 Mr. Ferriss spoke as follows :— " That extensive fishing banks exi?l ia these northern seas is quite certain ; but what exclusive title do we get to them ? They are said to be far out at sea, and nowhere within 3 marine leagues of the islands or main shore." Mr. Peters, in the course of his speecli, re- marked : — '• I believe tliat all the evidence upon the subject proves the proposition of Alaska's worthlessness to be true. Of course, I would not deny that her eod fisheries, if she has them, would be somewhat valuable ; but it snems doubtful if fish can find 8un enough to be cured on her shores, and if even that is so, my friend from Wisconsin (Mr. Wash- burn) shows pretty conclusively that in existing treatiea we had that right already." United State*' Congreisional Debates, from Appendix to ''Congiessional Globe," July 9, 186S, 40thCorj., 2nd Sess., Part V, r>. 490. See also Alcska, p. 670. Mr. Williams, in speaking of the value of the tishcries, said: — •• And now as to the fishes, which may be called, I m^^Qse,thear(jiimentum piacaforium Or is it the larger tenants of the ocean, the more gigantic game, from tlia whale, and seal, aujl. ^yalrus, down to the halibut and cod, of which it is intended to open the pursuit to the adventurous fishermen of the Atlantic coast, who are there already in a domain that is free to all? Jly venerable colleague (Mr. Stevens), who discourses as though he were a true brother of the angle himself, finds the foundations of this great Republic like those of Venice an i Genoa among the fishermen. Beautiful as it shows above, liko the fabled mermaid — ' desinit in piscem mnlkr formosa supcrne ' it ends, according to him, as does the Alaska argument itself, in nothing but a fish at last. But the resources of the Atlantic are now, ho says, exhausted. The Falkland Islands are now only a resting place in our moiitime career, and Anurican liberty can no longer live except hr 102 giving to its founders a wider range upon a vaster sea. Think of it, lie exclaims — I do not quote liis prcciso language — what a burning shame is it not to us that wo have not a spot of earth in nil that watery dmiinin on which to refit a mast or sail, or dry a net or fish ? — forgetting, all the while, tliac wc have the range of those seas without the leave of anybody ; that the privilege of landing anywhere was just as readily attainable, if wanted, as that of hunting on the territory by the British ; and, above all, that according to the official Report of Captain Howard, no fishing bank has been discovered within tho Russian latitudes." Debates in CongreM. It is therefore established : — That Russia's rights " as to jurisdiction and as to tho seal fisheries in Behring Sea," referred to in Point 4 of Article VI of the Treaty of 1S92, were such only as were hers according to inter- national law, by reason of her right to the possession of the shores of Sehring Sea and the islands therein. That the Treaty of Cession does not purport either expressly or by implication to convey any dominion in the waters of Behring Sea, other than in the territorial waters which would pass according to international law and tho practice of nations as appurtenant to any terri- tory conveyed. That no dominion in the waters of Behring Sea other than in territorial waters thereof did, in fact, pass to the United States by the Treaty of 1867. 103 I Artion of the United States and Russia '-^ from 1S67 to 188f.. Incrcnsed slaughter of seals. Elliott, Census Report, p. 25. H. R., Ex. Doc. No. 3883, 50th Cong., 2nd Sess., pp. 87, 88. Ibid., p. 70. let of July 27, 1868. Killing of seals prohibited. United States' Statutes at L.irge, vol. XV, p. LMl. ll.id., p. 348. 1 Secretar}' Boutwell's Report. 4t8t Cong., 2nd Seta., Ex. Doe. No. 109. Cu.^PTKH VI. Head (F).— T/ip Action of the United Stales and Jitmiafrom 18G7/o18Sfl. Wheu, in consequence of the cession of Alaska as a whole, the Russians relinquished their sovereignty over the Pi'ibylolf (or " Seal ") Islands in 18f57, sealers at once landed on the breeding resorts of tlic fur-seal on these islands. Those Mho came from the New England States found themselves confronted by competitors from the Sandwich Islands. They proceeded to slaughter seals upon the breeding grounds in the manner which had usually been practised by sealers on grounds whero no Regulations were in force. In the year 1868, at least 24.0,000 seals are reported to liavo been taken, and 87,000 in the following vear. In view of this wholesale destruction of seals, the United States' Govern- ment decided, in the exercise of their undoubted right of territorial sovereignty, to lease these seal rookeries, and to re-establish by means of tiio necessary legislation, the lapsed Russian Regula- tions which had restricted the killing of tlw^ fuv-scal. Accordingly, on the 27tli July, 1868, an Act passed theCongrer,sof the United States, entitled " An Act to extend the laws of the United States relating to Customs and Navigation over the territory ceded to the United States by Russia, to establish a Collection District therein, and for other purposes," of Avhich section 6 pro- vides : — " That it shall be unlawful for any pei'sou or persons to kill any otter, mink, niarlon, sable, or fur-seal, or otht'r fur-bearing animal within the limits of said Icrritonj, or in tin' irtitcrs then'of." . On the 3rd March, 1869, a Resolution was passed by the Senate and House of Representatives spcciallyireserving for Government purposes the Islands of St. Paul and St. George, and forbidding any one to land or remain there without permis- sion of the Secretary of the Treasuiy. Mr. Boutwell's Report, as Secretary of the Treasury, preceded an Act of the Ist July, 1870. This Report discloses no suggestion of jurisdiction at a greater distance than 3 miles from the shore- line. With knowledj||e of the raids upon the [248] V 104 No. 2. ISOO. p. 12. Sff A|ij)didix, vol. iii. islands and tho existcncp of senl-huntinfj Bcliooncrs, Mr. HoutMcll dwolt upon IJie means of protecting the seal islands only, lie; recom- mended that the Government of the United States should itself undertake tlie management of tho business of the islands, and sliould " exclude everybody but its own servants and agents .... and subject vessels that touch there to forfeiture, except when tli(!y are driven to seek shelter or ibr neeessaiy rei)airs." On the 1st July, 1870, an Act was passed entlHcd, " An Act to prevent the extermination j,^^ pj^g p^^^^ of Tur-bi-ariiig animals in Alaska," liMiii which United States, the following nre extracts :-- ■ I'u it cimcU'il liy tiio SimhiIc r.'id Houso of l{epri'- wt'iitiitivos of the riiitcMl Stiilus ol' Aiiici-icii in L'oiii^rcss iisrii!mlilerl, tliiit il sli:i!l lie uiiliiwfiil li> kill iiiiy t'lif-'^tnl upiiii tlio islaliil>: n|' Si. I'iUil ;ni(l St. (Iciiij^c, "/' in l/ic ini/rrn ii'/Jiiniit //trii/d, VKrv]il illivill!.; tile liiniitlis of .1 Mile, Jill v. Si')iti>iiil)oi', and Ottnlici' in uiicli yum-; iind it slinll Ix! iiiiliiwfnl to kill .such suiiis at any time liy the tisc of lii'i'- ariu«, or use oilier mean.i tPiidini,' to drive tlic senls nway from .said islands " l^octiiiii 2. And In- it further onaiHod, tliiit, it shall bi- unlawful to kill anj' female seal, or any seal less than 1 year old, at any .season of the your, exn'|it as ahove pru- vidcd ; and it shall also he i, lawful to kill any .seal in ihi- mifi'rs adjacent to said islands, or on the heaehea, elifl's, or rocks when," thev iiaul up from the sea to reniuiii. • ' • • • '• Section 4. And he it further enacted, that immediately after tho pa.ssage of thi.s Act, the Secretary of the Treasury .shall lease, for the rental mentioned in section (3 of this Act for a tt.'riu of twenty years, from thejlst day of May 1870, the rij^ht to enrjaye in the husiue.ss of taking fur-seals on the Islands of St. I'aul and St. ;m_v abo\u uiuiiod fur the term of twuuty years, a copy of wliidi is licrewitli inclosed; and the rcfiucst of (iuncnil JullVies that an ollicial annonncenicnt be made of the awjird of said lease, and that no vessels except those of the Uovern- ment and of said Company will be allowed to touch or land at cither of saiil islamls, may be complied with, and you will jilease cause such Notice to be published in cue or more of the San Francisco uewspa])er3, at the e.\i)ense of said Company. " I am, &c., (Siyneii) "WM. A. KICHAHDSOX, " Aciimj Sctivtiiri/. " T. G. Phelps, Esi]., " Collector of Customs, " San Francisco, California. " Cuntum-lioiose, Sun Francisco, C'uli/ornia, " .Sir, " CoUedor's Offia; &rplemlcr 30, 1870. " T have the honour to ackncjwledge the receipt of your letter of the 19th instant, relative to the published Notice of the sailing of the .schooner ' Mary Zephyr ' for the Islands of St. Paul and St. George, in Alaska. On seeing the advertisement in the 'Alta,' written Notice was immediately sent to the parties interested, that no vessel would be permitted to land at said islands. I luue caused a Notice, as suggested by the honourable Secretary, to be published. Please find ii co\>y (jf the Notice inclosed. " I am, &c., (Signed) "T. G. PHKLPS, " L'oUcdor. " Honourable Geo. S. Jioutwell, " Secretary, Treasury. "Notice. " In compliance with un order of the honourable Secre- liiry of the Treasury, notice is hereby given that a lease of the Islands of St. Paul and St. George, in the Territory of Alaska, lias been executed by the Secietary of tlie Treasury to the Alaska Commercial Company for the jicriod of twenty years from the 1st day of May, 1870, in accordance with the provisions of an Act of Congress entitleil ' An Act to prevent tiie Kxtenuination of Fur-bearing Animals in Ala.ska,' approved the 1st 'luly, 1870, and that, by the terms of .said lease and the above-mentioned Act, the said Company have the exclusive right to engage in the business of taking fur-seals on said islands and tlu.' islands adjacent thereto. No vessels, other than those belonging to said Alaska Commercial Company or to the United States, will be permitted to touch cr land at either (>f said islands or the islands adjacent thereto, nor will any person be all'^wed thereon excc^ > the authorized ugenta of the Un'.od States and of said Company. (Signed) " T. G. PHELP,\., " Collector of Cuslomi. " Custom-house, San Francisco, California, " Collector's Office, SepWmher 28, 1870." 107 )piiiH>ii of United Stntes' (Jovciiiinfnt iu 1872 na to jurisiliction. 50th Conor., 2n(l Sen , Senate Ex. Doc. No. 10(1, pp. 139, MO. "When tlic aljovo-mentioneil leyislntiou was enacted, Mr. Boutwell, as already stated, was Secretary of the United States' Treasury. The following correspondence between ^Ir. T. (J. Phelps and Mr. Boutwell shows the position assumed in 1872 by the Treasury Department in relation to the extent of jurisdiction of the United States iu Alaskan waters : — " Mr. r/uipn to M,: JJoidmll. " Custums Jloii-ii', San Franriscti, " Sir, CoUvrtoy's Ol/in; MhicIi ^r,, I STL'. " 1 (k't'iii it iiiopcv to call tlie atteulioii of tlui Lii'purt- jnciil to certiiiii ruinour.s wliicli appear to be well autlienticaleil, the substauee of which appears in the )iriiiled hilip taken tVdni the 'Daily t'lironicle' ol' this date, herewith iaulosetl. " In adilitioii to the several schemes mentioned in this paper, information lias conic to this olfice of another which is beinj; organized at the Hawaiian Islands for the same pnrpose. It is well known that, durin,<; the month of May and the early part of .hme in each year, the fnr-seal, in their migration from the southward to St. I'aul and St. (ieorgc Islands, luiiformly move through Ooniniiik I'ass in large nundiers, and also through the narrow straits near that pass which separate several small islands from the Aleutian group. " The object of these .several expeditions is unnueslion- ably to intercept the fur-seals at these narrow passages during the i)eriod abo\e mentioned, and there, liy means of small boats manned by skilful Indians or Aleutian Iiunters, make indiscriminate slaughter of those animals in the water, after the manner of hunting sea-otters. " The evil to be apprehended from such jn-oeeedings is not so much in respect of the ".oss resulting from the destruction of the seals at tliose places (altiiough the killing of each I'emale is in effect the destruction of two sciJs), but the danger lies in diverting these animals from their accustomed course to the islands of St. I'aul and St. (Jeorge, their oidy haunts in the United States. " It is believed by those who have made the jieculiar nattue antl habits of these animals a study, that if they are by any means seriously diverted from the line upon which they have been accustomed to move northward in their jiassage to these islands, there is great danger of their becking other haunts, and should this occur the natural selection would be Komandorsky Islands, which lie just opposite the I'ribylov group, near tiie coast of Kamschatku, owned by Itussia, and are now the haunt of fur-seals. " That the successful prosecution of the above-mentioned schemes woulil have the effect to drive the seals from their accustomed course there can be no doubt. Con- sidering, therefore, alone the danger which is here threat- ened to the interest of the Government iu the seal fisheries, 106 and llie lai'^'o annual ruvuiuic (Icrivud t'loiii the Huiiie, I have tho honouv to suggest, for thu cousicleratiou of the Hiiiioiiraliln Secretarv of tliu Treasury, tlio ([ueslion whiMhur the Act of July 1, 1870, rclatiiif^to those tislu-ries, ilm-; uiil autlmrizo his iiiterforonce by means of reveiiuo flitters to ])rov('nt foreigners anil othei.s from doing MU'li iin irre)iaralilo mischief to this valuable interest. ,SliOulil the Honourable Secretary deem it exiJeJient to send a eutter into liinse waters, 1 would respectfully suggest that a sloaiu-eutter would lie al>le to render the most eflicient service, and that it should be in the region of Oonimak Pass and St. I'aul and St. (Jeorgo Islands by the IDth of yiny uexl. " I am, <^e. (Signed) "T. (l. 1'iielps, Culledor. IFruin .Su^i FruiMscii •■ Dnihj i'himiicle!' March 21, 1872.] " It is .slated in reliable commercial circles that parties in Australia are pre])aring to tit out an expedition for the cap- ture of fur-seals in Behriiig Sua. Tlie pr'.'sent high prices of fur-seal furs in London and tho Kuropeaii markets has acted powerfully in stimulating enterprises of a like character. But a few days ago we mentioned that a Victorian Com- pany was organized for catching fur-seals in the North Pacific. Another party — an agent representing some Eastern capitalists — has been in this city for the past week 11. iking impiiries as to the feasibility of organizing au expeiUtioii tor like purposes. " Mr, Boutwell lo Mr. Phelps. " Treamry Department, Washington, D.C, " .Sir, "April 19, 1872. " Your letter of the 25th ultimo was duly received calling the attention of the Department to certain rumours circulating in Sun Francisco, to the effect that expeditions are to start from Australia and the Hawaiian Islands to take fur-.seals on their annual migration to the Islands of St. I'aul and St. (jcorge through the narrow I'ass of Oonimak. Vou recommend — to cut off the possibility of evil resulting to the interests of the United States from these exjjedition.s — tliat a revenue cutter be sent to the region of Donimak Pass by the 15th May next. ■' A very full conversati(m was held with Cajitain Bryant upon this suljject while he was at the Department, and ho conceived it lo be eulirely impracticable to make such an expedition a paying nue, inasnuicli as the seals go singly or in pairs, and not in droves, and cover a large region of water in their homeward travel to these islands, and he did not seem to fear that the seals would be di" .en from their accustomed resorts, even were such attempts made. " in addition, 1 do not see that the United States would have the jurisdiction or power to drive off parties going up ino tlli'ie I'ui tliat pui'l"ii(>, iililois llicy liiiikc sui'li altPiiliit witliiii II miiiinc longup of tlic sliorp.* "As nt present ailvised, I ilo not think it cxpcilii'nt U< carry out your suj^^estion.'*, but I will tliuiik you to coni- municate to the l), p. 106. In 1875 Mr. Mclntyre, the Assistant Treasury Agent at the I'rihyloff Islands, wrote that he liatl armed the natives with the intention of repelling hy force attempts " to kill seals in the rookeries or within a rifle shot of the shore." In 1875, a question having arisen as to Russia's authority to grant licenecs for the use of the seas eontii^uous to her coasts, ALr. Fish, Secretary of State for the United States of America, givi s conclusive evidence as to the interpretation placed upon the Convention of 1821 l)y the United States, as follows : — " There was reason to hope that the practice- which formerly prevailed with powerful nations ol' reganling seiia and bays, munlhj of luryr edciit. near their coast, as flanal to any foreign commerre or fishery not specially licensed by them, was, without exception, a prelrnsioii of the past, an J that no nation would claim exemption from the general rule of public law which limits its maritime jurisdiction to a marine league from its coast. We should par- ticularly regret if Russia (^hould insist on any such pretension." ng and navigation by foreigners. During the whole period discussed in this chapter, the vessels of various nations were continuously engaged in hunting, fishing, and navigating in the waters of the North Pacific, including Behring Sea. H. H., Ex. Doc. Schooners from British Columbia were fishing ut £.'**''' ^''"*' ^^^ «o^ »s early as 186G, and seals to the number of 20,000 a-year were reported as being taken south of St. George and St. Paul Islands in 1870 and 1872. Ex parte S. H. Cooper, owner of " W. P. Sayward." Brief for the United States, No, 9, October Term, 1890, p. 197. * In 1888 (after the occurrence of the siiziircs of Pritish vessels iu 18S6 and ) 887) Mr. Boiitwcll, hy request, I'xpiained, in u letter diitcd the Iblh January, tiiat ' neither upon my recollection of tact?, as llicy were understood by nie in 1S7:!, nor upon the present reading of the correspondence, do I adndt the claim of Great Britain that my letter is an admission of anv right adverse to the claims of the United States m the waters known a» Behring Sea, My letter had reference solely to the waters of the Pacific Ocean south of the Aleutian Islands." 110 Wlinlers continued as l)ofori' to IVcqiKMit tlic wntoi's botli oast ftntl west of the lino dcscrihod in i.-.i^ry iii,i,„iii,.(i tiioTiTatyofl807. The cxtontol'tlioironorations <>'"••"' •'"ii<"l „ ., . ,, . „, , , ... , SUlf", 18S7. UPC. 6, nppoara irom tlio following Tabic, wliioli snows vol, ii, p. B5. the numhor of vosscis comp()sin<» the North Pacific whalint; fleet after the date of tlio Alaska Cession.* WImliiig iiidiistry. Number of Yoar. United Stntos' Vessels. Uemniks. 1807 90 Also eloveii foreign vesselw. 1HC8 01 Also sovpii foreign vessels. lenu 4 a Also six foreign vessels. 1870 40 ,M»o nine foreign vessels. 1871 1)5 All but seven of tlie tliel were lost, ineluding four foreign vessels. 1872 27 Also four foreign vessels. 187a 30 Also four foreign vessels. 1874 23 Also fo-.ir foreign vessels. 187-> 16 Also four foreign vessels. 1870 18 All but eight of tlie fleet lost, iilso Hvo foreign vessels. 1877 19 Three of the fleet were lost ; one foreign vessel. 1878 17 One of the fleet lost. 1879 21 Tl-ree of the fleet lost. 1880 10 Walrus huntinf? is also known to have been continuously practised by the whalers during ^-.^^^^^^ industries these years, and in some years largo »iuantities of of the United walrus ivory and oil wore obtained : — AValrus hunting. "Tlio Arctic whaling fleet from 1870 to 1880, inclusive, is estiniatt'cl to Iiave ca])tiired 100,000 wnlri>s, produciug l,f»9(),000 f,'a]lons of oil and 398,8(58 lbs. of ivory, of a total value of l,L'()O.00(i dollars." States, sec. 5, vol, ii, part 17, pp. 313 et teq. In 1872 expeditions for sealing in Behring Sea were reported to bo fitting out in various places, jj ^^ ^^ ^^^ as appears from Mr. Phelps' letter of the 25tli No 83, p. 125, !March in that year, already quoted, and in 1875 j^g„_ *"'^'' a schooner was reported as having been seen shooting seals among the seal islands. Ivan Petroff, Special Commissioner of the United States to the seal islands in the year 1880, says in his Report : — " As these seals pass up and down the coast as far as H. R., Ex Doc. the Straits of Fuca and the mouth of Columbia River, No- 40, 46th Cong., 3rd Sess., vol. xviu, quite a nuuiuer of tiieiu are secured by liunters, who shoot p. 65. or spear tbem as they find them asleep at sea. Also, small vessels are fitted out in San FrancLsco, which regularly cruize in these waters for the purpose alone of shooting sleeping seal." * All vessels not sailing under the United States' (lag af« ipecified in ihi« Table as " foreig;ii," Seal hunting. Ill wtvy. ir. It., Ex. Doc. No. 41), -i.^th i'miR , 3rcl !*e*i., \a'. xriii, p. 68. II. H., Kx. Doc. No. 153, 40th Cong., 1st Srii. II. K., Ex. Uoc. No. 3883, AOth CoDg., :2nd Sesa., p. 68. C'oiiiplaiiitH nl' ticfiredatious on rodkcries. Letter frum Mr. d'Ancona, \xw% hunting. lU'jily of Mr. Frcucli. ■;ei\l hunting. II. H., Ex. Dor., ."iOtli Cong., 2iid t^oi.i.. No. 3881', p. 281. And ho adds : — "The I'ur Irailo nf tliis cnunlry, with thu uxoeiitinii nf thut ioh/ihoI to the neal islandi ami set nimrt liy law, i.s IVof t" all lu^itiiimtf ciiterprise." lS(!uliiiii;-vos.sols and tlioir cutelio-s wei"c alsu reported l)y the United State.s' euttcr " Corwin," but none were iiitcri'erod witii when outside of the t3-mile limit. In 1881 an A!,'ent of the United States' Government stated that during tiio past twenty years prol)ably 100 vessels hud '' prowled " about the I'ribyloll' Islands. The Agents of the United States' Government sent to the seal islands previously to 1886 con- tinually reported upon the inadequacy of the protection of the islands, and they frequently referred to depredations upon the rookeries by the crews of vessels sealing in JJehriug Sea. Early in 1881, Collector D. A d'Ancona,of San rrancisco, appears to have requested information from the Treasury Department at Washington in regard to the meaning placed by that Department upon the law regulating the killing of fur-bearing animals in the territory of Alaska, and specially as to the interpretation of the terms " waters thereof" and "waters adjacent thereto," as used in the law, and bow far the jurisdiction of the United States was to bo undei'stood as extending. In reply, .Voting Secretary II. F, French, of the Treasury Department, wrote as follows on the 12th March, 1881 :— " Sir, '• Your letter of the IDtli ultimo, rciiiiestiiiy certain iiifiiniiatioii in regard to the meaiiiiij,' placed by this l^epartineut upon the law regiilutiug the killing of fur- heariug animals in the Territory of Alaska, was duly received. Tiie law prohibits the killing of any fur- bearing unimals, except as otherwise theivin provided, within the liiuil.'j of Alaska Territory or in the waters thereof, and also i>roliibits tiie killing of any fur-seals on the Islands of St. I'uul uud St. George or in the wateis adjacent thereto, except during certain months, '■ You incjuire iu regard to the interpretaliou of the terms 'waters thereof and 'waters adjacent thereto,' as used in the law, and how far the jurisdiction of the L'nited States is to be understood as e.xteuding. "Presuming your inquiry to relate more especially to the waters of Wetteru Alaska, you are informed that the Treaty with IJussia of the 30th March, 1870 [sic], by whicli the Territory of Alaska was eedeii to the United States, defines tlie boundary of the Territory so ceded. This Treaty is found on pp. 671 to liTii of the volume of Treaties of the lievised SUitutes. It will be sueu therel'rum that tlie [248] Q 112 I '.I limit of tlio t'oasion uxtoiuls from a line NtartiiiK tioiii tho Arctic t)ci'an iiuil iiiniiiii;,' tliroiinh Dfriiig .Str.iit Id (lio uortli (if St. Lnwrciico Islaiiil'. Tim lim^ runs llicncc in ii uoutli-wcstorly direction, ao as to puss miilwny between tilt' Island of Altod nnd Copiicr Island of iho Kronian- lioaivi [aic] CdUiilot or j,'roui), in tlio North I'aciflc Ocean, to mi'ridian of 193 decrees of went lonyitudc. All the wiitciu witliin lliat liiiiiiidary to llu' WL^toin end of the Aleutian Arihi]icla,i;o and iliain of islands, nrc considcied as coui- laisod williin tiio waters of Alaska Territory. "All tlin iienaltics jirescrilied liy law a^jainst tlie killin;,' of fur-hcarini; animals »\ould tliercforo attach njioinst any violation of law witliin tlie iiniils liefore deserilicd. (Signed) " II. 1". Fiii'Ncli, " Acluiij liccvduiij." It doo.s not aijpcav fi'oia any olllcial (locumeiits that any action was taken at the time in accord- ancoAvith the opinion expressed in this letter, and no seizures were made, and no warnini» uas ijivcn to any Hriti«h ves.sel engaged in sealing beyond the orilinary territorial limits prior to 18H(i, although at least one Uritish vessel is known to have been engaged in such sealing in 1881, and no less than thirteen were so engaged in 1885. Two of these sotli Conp., 2nd vessels arc stated to have been spoken by a United ?!"" \?''''?!f,'^''' \ / Doe. No. 106, States reveuue-cutter, without being lu any way p. 134. molested. On the 22nd May, ISfSJ, Lienteniint 1. E. Lutz h. R., Mi>. Doc, was instructed bv the Captain of tlic United «oth Cong., lu , • . „ , , Sen., No. 603, htates revenue-steamer " Corwm to Avatch and p. 28. to seize or arrest any vessel or persons tittempting to take seals contrary to law. Acting imder these instructions, Lieutenant Ibid,, p. 33. Lutz tirrested the "AdekV'of Hamburg, Gustavo Isaacson, master, with three olUcors and a crew of eighteen Japanese, when at anchor olf shore. Tlie Lieutenant was careful to ascertain that the vessel was engaged in sealing ashore, and having waited the return of the ship's boat which came back loaded with seal carcasses. Lieutenant Lutz reported that, having now secured all necessary evidence, he notilied the ca])tain of the seizure of the vessel. It is found that from 18(57 down to and including 1885, vessels continued to visit end hunt in Behring Sea without interference when outside of the ordinary territorial jurisdiction. The circumstances which appear to have led to a change of official policy in 1880 will be related hereafter. It may be convenient at this iwint to refer to questions which were raised by occurrences in the Asiatic waters of the Pacific, adjacent to Russian territoiy. No seizurca made before 188ii. 119 Disputes in Olihotak and Reliring Sens. Wliiilers in Okhotsk Son. I'inlicry Induilrie'i of tlio Uiiiud State*, ipi'tiuii A, vol. ii, p. 20. Sfp extract from TiklimciiielT, Apiiendi.v, vol. I, No. 8. WialtiW soinetimos seal-huutew. 11. R.,44ili ConiT.. Ixt Ses!i., Hepurt Mr. Hoffman to Mr. Freliughuysei), March H, 1882. fOth ConfT., 2nd Seal., Senate Ex. Doe. No. 106, p. 260. ijee Appendix, vol. ii. Fart 11, No. 14. Questions arinny belween Hie United Slaten and liumia in Okhotsk and Hehrimj Seas. Disputes liavo mor»! tlmii oiico iiriHcn rospocting tlin rights ol' IJnitod Stuk's' wiialing-voHsols in Okiiotsk Sea. TIjc mnii» ohjotitioii to lliosc whalers was that th(«y iiitcrtVrcd with tlio fin* intluslry, niul it is on record I ho* tli(> mode of wh;tling prnc tised in litis sea was often to anciior tlio vossi;! in Rontc harltonr and to send tlie Iioats lliere- from in ))tirHuit of whah>s. Tlio instructions to llnssian eriiizers, datiiiu; from IH.MJ, only pro- hihitod these vessels from eoming " wiiliin .'{ Italia n miles of mtr shores." The Sea of C)khotsk was covered In the I'kase of 1821, and possesses a seal rookery (ilohbcn Island). "Whalers froni tln^ United States tind elsewhere began to freciuent litis sea about the year 18 W. The t'ollowing evidence with reference to sealing and whaling in Okhotsk Sea given before the (,'oinmillee of AV lys and Means in tho House of licprcsentatives at Washiiit^ton (3rd ^lay, 1S7(!). shows tiiat whalers were also engaged in takiui; s'.'uls : — " (,'■ Wlii> arc Williaiu^i, lliiveii, and Co. ' — A. WilliaiuB, Iliivini, and ( 'i>. arc Mr. Hfuiy I*, llavcii.nf ('niiiiOL'tii'iit, wild tlit'il last Siimlay, and I^icliaiil <'iia]pi'l. Tlify are winders. Tlifv timk ^('als and wlialc-, and had lii'iMi at tliat liusiiiess ill the I'aciric for a j,'icat many years. ••(,). 'I'lioy had an interest in these skins ' — A. Ves, Sir. They had a vessel in the waters of tin- OUhot.sk Sea, i think, seal-lishini; in IS(1C. While their vessel was nl HoiKiliilii in ISIJlj, tlie cai)taiii heeaiiie ae(|uainted with a Itii.ssian ca|itaiii who ]ait in there in distre.sH with the reiiiaiiider, or a jmrtion, ef tiie .Uaska soal-skins taken by tlie I'ld liu.ssian t'oinpany, and there this ia[itain learned 111' this interest, lie left his vessel at Ildiidhilu. went to Connerticut, and conferred with his oiniiloyers. Then Jfr. Chapel, one of the roiicorn, went mit to Honolulu and fitted out this vessel and another one and sent them to tho Alaska Islands as early as April 1868." Tho Unit(>d States' Minister at St. Petersburg, Mr. HofTman, writing in 1882, thus refers to^^this sea: — " A glanee at the Map will show that the Kurile Islands are dotted across the entrance to the Sea of Okhotsk the entire distance from Japan on tho south to the southern- most Cape of Kamtehatka on the north. " In tlie time when Ilnssia owned the wliole of these islands, her Representatives in Siberia claimed that he Sea of Okhotsk was a mare dausum, for that RvfMau .jurisdictiou extended from island to island and otn L248J Q 2 114 2 mni'ine leagues of iiitoimefliato sen from .Tnpnii to Knint- rhntkn. " But about five years ago Iiussia ceded the southern },'roup of these islands to Japan, in return for the half of the Island of Sagluilien, which nelonfjed to that I'ower. " As soon as this was done it hecanic impossible for the Siberian authorities to maintain their claim. Jly infirmaiu was not aware that tliis claim hail ever been seriously made at St. PetersburEr." And in another Icttor lie says : — "I do not think tliat Itussia claims ihat the Sea of March 2", 1882, Okhotsk is a iiiair tlutusuiii, over wliich siie has exchi'^ivo •"'"''' f""?-- ^"'' . . ,. . 1^1, 1 1 • • ,1 Sesi , St'nate I'.t. jurisdiction. It she dues, her chum is not a lenalile one p^^ \„_ jqi; since the cession of jiart of the group of the Kniih' Islands p. 261. to Japan, if it over were tenable at .my time." ^^^ "''?,''"?'m ' • »ol. II, I'art 1 1, No. 15. Tlio following ajipcars as an introductory statement in " Papers relating to Behring Soa Fisliories," piihlislied at the Government Printing OflTico in Washington, 1887 : — " This sea [<>f (..khotsk] is a part nf the waters to which the I'kase of l.i21 applied, and which M. rokticii, in his subseipieut corre.sixindenee wiili Jlr. Adams ])rior to the Treaty of 1824, sp.id His Imperial ^Iiijesty, tlie Emperor of all the Riissias, miuht have claimed as n cioae sea liad he chosen to do so. As has lieeii seen, all fpiestion ns to the right of citizens of the Tnited States, as well as of the siibjocta of (Ircat Jhitain. tn navigate and liRJi in those watera, was given up by Russia once for all in the Treaty of 182-i with the I'liited States, and of TS2."> with ( ircat Tiritain. "TliQ following ciUTCspondence between Russia mid the I'nited States in the years 1867 and 1808 contains an explicit disavowal by IJnssia o'' any claim to interfere with the fishing operations nf vol.11, i'«rt 11, of the bay, and thereupon Mr. Seward inquired No- >i^. Interference with United States' vcsscii] •' Eiiropa." ' Emlcnrour," " JoTa," 115 Ilxplanations by Eussi Westmann to United Stntei' Secretary of State, July 31, 1868, 50th Cong,, 2nd Sms., Senate Ex. Doc. No. 106, p. 253. fo claim of jurisdiction beyond 3-mUe limit. to V'kiise of lJ^-1. 'nilod Sttitos V0S3CIS lirop&' iiU-nvour. f Java. of the Russian Government wliat instruc- tions had been issued relating to fisheries in this sea. In reply to this inquiry, the foUcwing expla- nation tvas received from M. do Westmann, Acting Minister of Foreign Affairs at St. Peters- hurg, which shows the claim of jurisdiction of Ilussia to have been confined to 3 miles only in Russian gulfs and bays, in this part of the very Avaters covered by the Ukase of 1821 : — "Those nre tlio eiicmnstiinces : Tlio scliooner 'Aleout,' uiuler tlie conimand ot Lieutcniiiit Etolinc, liiul been sent in C()nimi.ssion from Xicolaicvsk to Oudrk. The abundance of flouting ico having forced liim to enter into tlie Gulf of Tougour.sh, lie there met, the 14th July, at about 20 miles to the south of tho Straits of Chautarsk, near the eastern coast, tho American whaler ' Java,' occupied in renderinf; the oil of 11 captured whale. Considering that foreign whalers are forbidden by the laws in force to fish in tlie Russian gulfs and bays at a distjinco of less than 3 miles from the shore, where the right of fishing is exclusively reserved to Russian subjects, Lieutenant Etoline warned ('in vita') the captain of the 'Java' to 'bear off' from the (lult of Tougoursh, which lie at once did. The .same day the 'Aleout' made for the Bay of Mawgon, where anived, on the next day, the American whale schooner ' Caroline Foot,' whose captain, accnnipanied by the captain of the ' Java,' called on Lieutenant Etoline, and declared that he had no right to prevent them from fishing for whales wherever they liked. Iwieutenant Etoline replied that there were in that respect established rules ('regies'), and if they insisted, absolutely, upon breaking them, that he would be compelled to prevent them. Tho captain of the schooner ' Caroline Foot ' pretending (' ayant pretendu') that he had entered into the I'>ay nf Tciugoursh in consequence of ' deviations from his course,' Lieutenant Etoline oft'ered at once all assistance in his jiower ; and, upon request, delivered him 7 jiouds of biscuit from tlie stores of the ' Aleout,' after which the two ships again wont to sea. Tho lOtli of July, that is, four days after- wards, the schooner ' Aleout ' met a wiiale. upon ■which tho Commander caused a trial fin; to be made. At the same moment was seen, at about 16 miles distance, a sail, name unknown, and, nearer, three ' chaloupes,' the nearest of wliicli was at least 3 miles in advance in tlie diieetinn of the caniiiiii fire. In the evening all these sliips had disappeared. That incident is registered in the books of the 'Aleout' in the following terms: 'The 10th of July, at 9 ill the evening, at anchor in the Bay of Mawgons, fired a cannon shot for practice at a whale atloat.' From these facts General Clay will be convinced that the incident alluded to has been exaggerated, and even per- verted ('denature') much ill order to be represented as a cause of grievance against the Commander of the ' Aleout' on tlie part of the American wiialers, " 116 The explanation was considered satisfactory, soth Cong., 2nd ^ • o 1 "«»»•. Senate Ex. Mr. Seward observing that " the captain of the Doc. No. loc, ' Java,' spoke unwarrantably when by implication ?• -^'• he denied that the Russian authorities have the right to prevent foreign vessels from fisliing for whales within 3 marine miles of their own shore." In the year 1881 the Russian Consul at Yoko- hama issued, on behalf of the Russian Imperial Government, a Notice, of which the following is a translation : — ;i/ :' {bid,, p. 259. " Notice. " At the request of the local authorities of Heliring and other islands, the Undersigned hereby notifies that thcs Kussia.i Imperial Government publishes,' for general knowledge, the following : " ' 1. Without a special permit or licence from the Governor-General of (£asteru Siberia, foreign vessels are not allowed to cany on trading, hunting, fishing, &c., on the Itussian coast or islands in thn Okliutsk and Behring Seas, or on the north-eastern coast of Asia, or within tlieir sea boundary-line. " ' 2. For such permits or licences, foreign vessels should apply to Vladivostock exclusively. " ' 3. In the port of Petropaulovsk, though] being tlie only port of entry in Kamtchatka, such permits or licences shall not be issued. "'4. No permits or licences whatever shall be issued for hunting, fishing, or trading at or on the Commodore and Robbeu Islands. " ' 5. Foreign vessels foinid trading, fishing, hunting, &c., in Russian waters, without a licence or jjurmit from tliC Governor-General, and also those posses.siug n licence or permit who may infringe the exi.-*ting bye-laws on hunting, shall be confiscated, both vessels and cargoes, for the benefit of the (iuvernment. This enactment sliall be enforced henceforth, commencing with A.n. 1.S.S2. " ' C. Tlie enforcement of the above will be intrusted to Jiussiun men-of-war, and also tn Jlussian moroliant-veiiscls, which, for tliat purpose, will carry military detaclniieiits nnd lie provided with proper instructions. " ' A. I'EI.IKAN, ■' ' .7. I. R. M. Conml. •• • Yokolmnia, November, 1 5, 1881 .' " The firm of Messrs. Lynde and Hough, of San ibi.l., p. 259. Trancisco, was in 1882, and had been for years, '^^""'? ""'' """s'' ''to Foljfer, engaged in *\g Pacific coast fisheries. Tlioy February 15, 1882. yearly sent v. 6se!s to the Sea of Okhotsk, fishing ^'J ij'tlfli, from 10 to 20 miles from shore. The attention ^'o- 13. of the firm being called to the above Notice, they wrote to the Secretary of State of the United States calling attention thereto. Russian Notice of November 1881 respect: Okhotsk and Behring Seas, 117 AOth OoDg;., !2nJ Sets., Senate Ei, Doc. No, 106, p. 258. Mr. Hoffman to Mr. Frelinghuyten, March 27, 1862. Ibid., p. 261. See Appendix, vol. ii, i'art II, No. 15. Lpplied only lo territorial waters. Ibid., p. 262. M. de Giers to Mr. Hoffman, May 8 (20), 1882. See Appendix, vol. ii. Part II, No. 16. Ibid., p. 262. iM. de (iieri to Mr. Hoffman, June 1 (13), 1882. See Appendix, vol. ii, Part II, No. 17. Ibid., p. 260, See Appendix, vol. ii, Pftrt II, No. 14. Ibid,, pp. 262, 263. See Appendix, vol. ii, Part II, No. 16. Ciije of the " Eliza." The Secretary of State (Mr. Froliughiiyson), on the 7th March, 1882, inclosed their letter, together with the Regulations " touching the I'acilic coast fisheries," as he termed them, to Ml". Iloffman, the United States' Minister at St. Petershurg. Mr. Hoffman acknowledged the receipt of this despatch, in reference to Avhat he also called " our Pacific Ocean fisheries." Mr. Hotfman, having made inquiry of M. de Giers, the Russian Foreign Minister, the lattci-, in his reply, dated the 8th {20th) May, 1882, explained that these Regulations applied only to " territorial waters of Russia," and, in a suhse- quent letter of the 1st (13th) June, quoted Article 560 of the Russian Code, which is as follows: — " APTICLE 560. " The maritime waters, even when they wash the shores, wliore there is a pennannnt population, can not be the suhject of private possession ; they are open to the use of one and all." In a letter to ^[r. Frelinghuyseu of the 14th March, 1882, Mr. Hoffman shows what he understood to he the meaning applied hy M. do Gierfi to the words "territorial waters." He writes : — "The best whaling ground,^ are found in //ic hay^and inht'i (if the Sea of Okhotsk. Iii'.o these the Russian Government does not permit foieign whalers to enter, vpuii the ground that the entrance ti than, from hcudland to headland, is ksi than 2 matine Icarjues v:ide." Indeed, M. de Giers, in the letter of the 8th (20th) May, 1882, already quoted, makes it clear that, as to fishing and hunting, the rule was the same, and that the prohibition of vessels engaged in these jmrsuits extended only over the marine league from the shores of the coasts " and the islands called the ' Commander ' and the ' Seals.' " The island referred to as the "Seals" is Robhen Island, and the reference to this and the Commander Islands indicates that ]M. de Giers, under the term of "hunting," was referring specially to the sealing industry. On the 21st July, 1881, the United States' schooner "Eliza" was seized hy the Russian cruiser " Eazboiinik " in the Anadir River, which runs into Anadir Bay, a northern portion of Behring Sea. It was represented to the United lis states that she was there tradiuc and hunting ^oth Cong., ^n.l , . , _, . Seit., Scnat* Ex walrus. The United States Vicc-Consul-Gcncral Doc. No. 106, at Japan termed the seizure "an act of piracy." ••• -^^" General Vlaugaly, writing from the Depart- Ibid., p. 270. nient of Toreign Afl'airs on the 19th (31st) vol. ji, I'art li, January, 1887, explained that the " Eliza " was N"- "• arrested, '• not for the fact of seal-hunting," but for violating the i)roliibition touching trading, Imnting, and iishing on the Russian coasts of the Pacific without special licence. The crew, it was fouud, were trading with the l*>id., p. 269. natives ou the coasts of Kamtchatka, as well as hunting walrus. This appears to have been accepted as a valid 'bid. See . , . , n 1 • D Appendix, vol. n, e.\])lanatiou; but with reference to the seizure 01 pjrt II, No. 19, this ship and of the " Henrietta," Mr, Lothrop, United States' Minister at St. I'etcrsburg, writing to Mr. Bayard, the United States' Secretary of State, on the 17th February, 1887, remarks : — " I may acid that the Kussiau Code of Prize Law of lUGf, Article Jl.and imw iu loive, limits the jurisdic- tional waters of liussia to 3 miles from the shore." The United States' schooner " llcnrietta " had been seized on the :iS)th August, 188G, off East Case of the " Henrietta.' Ibid., p. 267. Cape in Behring Strait by the llussiau corvette " Kreysser." Explanations from the llussiau Government Ibid., p. 260, were promptly demanded by the United States, J^^ ll^S H. and it was alleged she was arrested for illicit No. 18, trading ou the lUissian coasts, Xevertlielcss, Mr, Bayard, writing to Mr. Lothrop on the IGth March, 1887, observed : — " If, .13 I am to coiicltide from your despatch, the seiiiure Papers relating to of the ' Henrietta' was made in Kussian territorial waters, I^ehring Sea ., ,, ,, • ,..,,..,.. , ., , l''islicries,publi»ned then the lUissian aullionties had jurisdiction ; and it the ^ the Gavernmcni condemnation was on luooeudings duly instituted and Printing Office in administered before a comiietent Court and on adequate ^^'a»2^j'"8"»"» ^^^^' evidence, this Department has no right to complain, liut if either of these conditions does not exist, the condemna- tion cannot bo internatioually sustained. The tirst of these conditions, vii!., tiiat the proceedings should have been duly instituted and administered, could not be held to exist if it should appear that the Court before whom the proceedings were had was composed of parties interested in the seizuie. On general principles of inter- national law, to enforce a condemnation by such a Court is a denial and perversion of justice, for which this Government is entitled to claim redress. " The same right to redress, also, would arise if it should appear that, while the seizure was within the .'{-mile zone, the alleged ofl'once was committed exterior to that zone iiud on the higli seas. Views of Mr. Bavanl 119 " YdU are tlitivforc instructod to inqniiv, not ineiely ns to till! iiioiiu ill wliicli the coriduniiiiiii,' Coiiit was con- stituted, but as to the evidenco adduced liutoro such Court, in wliii'h tlif extict lucnhtv of seiziiie should he included," Jo ns.sertion by United States of extra- L^iiirti'v jurisdiction previous to 18H6. oit of cruize of the " Corwin," 1885 H. R,, Ex, Doc. 153, 49th Cong,, Itt Seat. .vsofMr.Baya The instrnctious s^ivcn from time to time to Commandors of the I'oveiuio Service, oi* of ships of war of the United States cruizing in IJehring Sea, and guarding the interests of the Alaska Commercial Company upon the islands leased to the Company, do not even suggest the in- tention of that Government to assert a claim so vehemently disputed when advanced by Russia. On the coul.ary, while vessels from British Columbia and elsewhere were trading and fishing generally in the 13ehring Sea, and while vessels— chiefly those of the United States — were actually raiding the rookeries, the instructions I'elating to the fisheries given to Revenue Marine vessels by the United States' Government, until 188G, Mere confined, as has been shown, to the immediate protection of the seal islands. The seizure of British sealers in the open sea followed the report on the cruize of the Revenue Marine steamer " Corwin " in the year 1885. In this report, it is among other things stated, that while shaping a course for St. Paul a special look-out was kept for vessels sealing. The Captain MTites : — " While we were in the vicinity of the seal islands a look-out was kept at masthead for vessels cruizing, sealing, or illicitly trading among those islands. Hut uo such vessels were seen," Having drawn attention to the number of vessels which had taken, or had endeavoured to take seals on the shores of the islands, and illustrated the great difficulty of preventing the landing thereupon, the Comm.inder concludes as follows : — " In view of the foregoing facts, I would respectfully suggest — '• 1. That the Department cause to be printed in the Western iiajiers, particularly those of San Francisco. Californiii, and A'ictoria, British ("olumbia, the sections of the law relating to the killing of fur-bearing animals in Alaskan waters, and defining in specific terms v.-hat is meant by Alaskan waters. " 2. That a revenue-cutter bo sent to cruize in the vicinity of the Pribyloff Islands and Aleutian group during the sealing season." [848] » 120 On the 6th March, 1886, Mr, Daniel Manning, SenafP, Ex. Doc, Secretary to the Treasury, wrote to the Collector Stss., No^ io6, of Customs at San Francisco as follows : — p. 135. " Trcmirj/ Dcparhncnt, "Sir, 'M/r'nA G, 188G. " I transmit lierewitb, for your information, a copy of u See unte, p. 1 1 letter addressed by the Depnrtmont on to 12tii !^^avc^l, 1881, to D. A. joct o!'. the -1th April, IS.Sl. Tliis coniUHinicalinn i-i aiidro^sed I'l ynti, ina-^iuui'h a-; ii is iiiiilcr.sininl ilial i-cr'a.in pavtiesat your ]iiivt cimti niplati' (lie IIitiiiL; (au of ex])editions to kill fur-soaN in tiic-'c wat(>rs. "N'cai are refpiested to qive duo publicity to such letters, in order Uiat such parties may bo infoiuied of the construction iilacod by this Dejiartinent upon the provision of law referred to. " Yours, itc. (Signed) " I>. M.vxsiNo, Public notice appears to have licou ^\\i\n \\,\„^ ii„ok, aocordiusly in tht; tcnus of the letter addressed '\^|"'"'' ■'^'•>'';* ' _, No. 'J(lS!)Uj, p. hy Mr. II. F. French to Mr. d'Anoona. (See See .\ppendix, ante, p. 111.) vol. ill. The statement of facts in this chapter estab- lishes : — That from the year 1807 down to the year 1 880 the action of the United States and Russia, the parties to the Treaty of Cession of 1867, is consistent only with the view that the rights possessed by the United States and by lUissia resj)ectivcly in the waters of Behring Sea were only those ordinai'ily incident to the possession of the coasts of that sea and the islands situated therein. That during that period, notwithstanding the presence of seal-hunting craft in Behring Sea, the United States' authorities confined the (jxercise of jurisdiction to the land and waters included within the ordinary territorial limits. Bziiie of I Nlofjjl 121 Chapter VII. outoiitioiis of United States since 1886. instructions to revenue-cutters. Iteportsol Governor ol' Al:.8ka, 1880, p. 4rt ; 18S7, p. 36. lilm- Hook, '• United Si.Ttca Head (G). — Various Contentions of the United States since the year 1886. The considerable development of pelagic sealing in t!iographical limit mentioned in the Treaty of Cession. 'J'his action by the United States was the first attempt to actively interfere Avith the right of the ves>cls of other nations to navigate and lish No.-j(lM.O),"p.'45. i" *''^ waters of Uehring Sea other than terri- Scc .A|i|)eii(Jix, vol. ill. kzme of tlirec British vessels Bttst of liritisli Goveiunient. torial waters. In imrsuance of the above-mentioned orders, „ _, , three British vessels Averc seized during this Sec Jiidjio , nawson's Eiimming year while fislung outside ordniary territorial ii|) 111 lasi' o| _ waters, and subsequently condemned upon the ground that the Avatcrs in Avhich they were fishing, formed part of the Avaters of Alaska and were subject to the jurisdiction of the United Slates. Sir L. S. Sackville West, British Minister at Washington, at once, by instruction, made a formal protest in the name ol" Her Majesty's Goverumcut against these seizures of British vessels. [2i8j . R 2 Tlioriilon," Blue iitui;, " United .'^liites No. 2 (i!-'jo;;'p.;jo. iSee Apprnilix, vol. Hi. 122 Attoniev-ticnoral Uarland issuod tlio following SOtliCong., 2iil o ',.,... , . . SeM. Seiiiit.' Kx. order, after the British protest : — doc. No. io6, p. 180. '■ Washiuffton, D.C, January 26, 1887. "Judge Lafayette Dawson and M. D. Ball, United States' District Attorney, Sitka, Alaska. " I am directed by the President to instruct you to discontinue any further proceedings in the matter of the seizure of the British vessels ' Carolena,' ' Onward,' and ' Thornton,' a ' discharge all vessels now held under such seizure, ind release nil persons that may be under arrest in connection therewith. (Signed) " A. H. Garl.vnd, " Attorney-General," Mr. Bayard, however, the Secrctaiy of State, Ibid., p. 40. wrote, OQ the 3rd February, 1887, to Sir L. S. Sackville West that this order was issued " with- out conclusion of any questions which may ho found to bo involved in these cases of seizure." Fresh seizures took place in July and August of 1887, and renewed protest was made by Great Britain. No seizure occurred in 1888, though British sealing-vessels made large catches in that year in Behring Sea. In 1889 five British ships were seized in Behring Sea, and three others were ordered out of the sea. In 1890 no seizures were made, though a largre number of sealers visited the sea and took seals therein. In 1891 an agreement was come to between the United States and Great Britain,''resulting in „, „ , '•• ° Blue Book, a modus rivendi, for the purpose of temporarily " United States regulating the fishery, pending the result of p gg^ ^ •'' ex])ert investigation into the necessities of the See Appendix, case. Vessels were forbidden to take seals in Behring Sea for a limited period under penalty of seizure and fine, and, on the other hand, the number allowed to be killed on the islands was largely reduced. The only seizures that have occurred since the establishment of the modus vivendi have been made on the ground of its infraction.* Renewed seizures. " Modus Vivendi." * See Table ou opposite page. -j.'i'i'. ! 12a OiacHSsion in ConKress of rights of United States. II.R., SOtti Cong., 3nd Sest., Report No. 3883, p. 1. To arcompanv Bill H. It. 1243.'. The legality ol" the seizures made in 1886, 1887, and 1889 became a subject of much discussion and debate in the United States. The iincei'tainty of the claim of the Government of the United States is exemplified by the fact that United States' sealers entered Behring Sea to seal thi'ce or four years before the Bi-itisii sealers entered, and they rapidly increased in numbers, but were only occasionally interfered with or seized. During the fiftieth Session of the House of Representatives, in 1889, the Committee on Marine 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-seals and other fisheries in the Behring Sea in Alaska, whetlier and to Avhat extent the same had been violated, and by wliom ; and what, if • The following Tiible shows the luimcH of tlio British scnling-vossels seized or warned by Unit'^d States' rerenuo cruizers 1886-90, and the npproxiniale dittanco from land when seized. Tho distances assigned in the cases of tlic " Cnroleim," "Thornton," and "Onward" arc on the authority of U. S. Naval Comiuandcr Abbey (see SOtli Cong., 2nd Sess., Senate Ex. Doc. No. 106, pp. 20, 40, 30). Tlic distances! assigned in tlie cases of the " Anna Ueclc," "W. P. Sayward," "Dolphin," and "Grace' are on the authority of Captain Shepard, U. S. R. M. (Blue Book, "United States No. 2 (1890)," pp. 80-82. iSee .Vppendix, vol. iii). Name of Vessel. 1 Date of Seizure. Approximate Distance from Land when seized. United States' Vessel making Seizure. Carolena August 1, 1886 75 miles Corwin. Thornton . • 1. .. 70 , ,, Onward 2. ., 115 „ ,, Favourite . . » 2, „ Warned by " Corwin " in about same position as " Onward." Anna Beck . . July 2, 1.887 06 miles Rush. W. P. Sayward 9, ,- 59 „ *» Dolphin „ ***» »» 40 ., »t Orace 17, ., 96 „ ,, Alfred Adams August 10, „ 62 ., 1) Ada 25, „ 1 5 „ . . , . Bear. Triumph 1) ^» »» Worncd by '• Hush " not to enter Behring Pen. Juanita July 31, 1889 66 miles Rush. Pathfinder .. „ 29, „ 50 „ 9) Triumph . • . . 11, .. Ordered out of Heliring Sea by " Rush." [?] As to position when warned. Black Diamond 11, ,. 35 miles ,, Lily August 6, ,, 66 „ Jt Ariel . . . . July 30, „ Ordered out of Bchrinj^ Sea by " Rush." Kate August 13, „ Ditto . . » Minnie . . . • July 15, „ 65 miles . . . . Pathfinder .. March 27, 1890 Seized in Neah Bay f Corwiu. t Neah Bay is in tho State of Washington, and the " Pathfinder" was seized there on charges made against her in Behring Sea in the previous year. She was released two d..yg later. 12^ any, legislation in necessary lor tlio bettor pro- tection iiiul preservation of tlio same." "lie Connnittee reported, upholding the claim of the United States to jurisdiction over all waters and land included in the j?eographical limits stated in the Treaty of Cession by Russia to the United States, ?;nd construing different Acts of Congress as perfecting the claim of national territorial rights over the open waters of ]3('hrinL,' Sen eveiywhere within the abovo- mentioiKMl limits. TJie lU'port slates : — " The teviitory of Alaska cunsi.it.s ol' land dtitl water, h. K., .50th Cong. Exclusive 'of its lakes, livors, harbours, and inlets, there is -'"' Ses»., Report I . • . •. I'll' I • 1 i' 41 No. 3S83, p. 10. a liu,ii,u .'Ilea oL luaiinii terntoiy which lies oiitsulo ot tiio ' ' 3-niile limit hmn llio .slum', lait is within the boundary- lines ni' dii' tt'iiiluiy lian9riirod and adopted in the Act of the 2nd Marc^, 188!), reads as follows : — " Section iJ. That section ID.MJ of the Keviscd Statutes of the iruited States is hereby ileclined to include and apply to nil tlif (hiiiinwi of the Uiiitcl S'atcs in the waters of liehrimj Sea, and it sliall be the duty of tho President, at a timely season in each year, to i.^.^ue his Proclamation, and cause tho same to be pablished for one month in at least one newspaper (if any .such there be) published in each United States' port of entry on the Pacific const, warnin}^ all persons against entering said waters for the purpose of violating the provisions of said section, and he shall cause one or more vessels of the United States to diligently cruize said waters, and arrest all persons and seize nil vo.ssels found to be or to have been engaged in any violation of tho laws of the United States therein." Ibid., p. 234. national Agreement proposed. On the 21st March, 1889, President Harrison issued liis Proclamation accordingly, -warning "all persons against entering the waters of Behring Sea within the domain of thc United States for the purpose of violating the provisions of said Section 1956 of Revised Statutes." International Agreement proposed. On the 19th August, 1887, after the seizure of the " W. P. Sayward," and while she was in custody, the United States' Secretary of State wrote identic instructions to the United States' Ministers in France, Germany, Great Britain,* * The invitation conveyed by the instructions was not, how> ever, communicated to Oreat Britain until November 11, 1887. See 50th Cong., 2nd Sess., Senatu Ex. Doc. No. 106, p. 87; and Bine book, '< United States No. 2 ^1690);" Sir J. Pauncefote to Baron Pletien, October 11, 1887. See Appendix, vol. iii. 126 Japnn, ilusHin, mid 8woclt'ii and Norway in tlio following terms : — IiiUtrnuliunul Auiueiuont prupuu^^ "Recent occiiironces have drawn tlio nttcntion of tliin Henatr, Ex. Doc, DeiiortiDout to tlio necessity of tnkinc steiis for tlio lietter ?°j' ^'°"f •. ,„„ ' J n I ij^j Sl'H,, No. 100, protection of the fiir-senl fisheries in Ik'rnift Sen. \\ illiout .,_ ^i, raisini^ nny question as to tho excuptioniil mensuros which the iMutieuhu' chamcter of tiie property in question nii{,'ht justify tiiis (iovernment in taking, and without roferenco to any exceptional mnrino jurisdiction that might properly be claimed for that end, it is deemed udvisaWo — and I am instructed by the President so to inform you — lo attain the desired enils by intenmtional co-operation. " It is well known that tho unregulated and indis- criminate killing of seals in many parts of tho world Iiaa driven them from place to jtlnccand, by breaking up their habitual resorts, has greatly reduced their number. " Under these circumsUincus, and in view of the common intiTtsts of (/// natiom in preventing the indiscriminate destruction and consequciit extermination of an animal which contributes so importantly to th'.' commercial wealth and i/cneral n.ie of munkiml, you are hereby instructeil to draw the attention of the (Iovernment to which you are accredited to tlie Hul)ject, and inrite it to enter into such an. un-imi/cmeiil with the (iovernment of the Vnited States as will jnevent tlie citizens of either country from killing seal in Bering Sea at such times and places, and by such methods as at jnesent are pursued, and which threaten the speedy extermination of those animals and consequent serious Ions to maidind. "The Ministers of the United States to Germany, Sweden and Norway, Eussia, Japan, and Great Britain have been each similarly addressed on the subject referred to in this instruction." So to Mr. White, Secretniy of the United States' Legation in London, with* reference to this proposition, he wrote, on the Ist May, 1888:— "The suggestion made by Lord Salisbur;^, thtT it maybe ibid., p. 101. necessary to bring other Governmenis than :lje United States, Great Britain, and Kussia into f,.i; drrangements, has already been met by the action ot tho Department, aa I have heretofore informed you. At the same time, the[invi- tatioa was sent to the British Government to negotiate a Convention for seal protection in Bering Sea, a like invita- tion was extended to various other Powers, which have, without exception, returned a favourable response. " In order, therefore, that the plan may be carried out, the Convention proposed between the United States, Great Britain, and Russia should contain a clause providing for the subsequent adhesion of other Powers." And on the 7th February, 1888, the Secretary of State, in a despatch to the Minister ft,t the un iment pro\)oiiw £Oih Con?., 2(1(1 Kelt., Senate l-'.x. Doc. No. 106, p. 89. Court o! St. James', after reforrinij to Iho killing of 8o,il8 in Bchriugr Sea, wrote : — " The only vfay of obvintiuj^ the Inmcntnblo resvilt abovo predicted appears to bo by tho United States, Gront iJritaiu, ami other interested Powers takinj^ concerted aekion to prevent their citizens or subjects from killing hi) > of the " Anna Beck " and other tves.'iols. Brief for United States' Bovcrnracut. See Blue Book, " United States No. 2 (1890)," p. 119. See Appendix, vol. iii. The Counsel appearing for the United States' Government, to justify the soi/ure of the " Anna Beck " and other vessels in 1887, filed a "brief," from which the folloAving extracts are taken: — "The information in this ea.se is ba.srd on section 1056 of cliaptur 11 of the Kevised Statutes of the United St of the Ikovised Statutes of the rnitod States; and the Tnitoil States' Naval Commander Abbey certainly utlirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska ; but according to his own evidence, they were seized 75, 115, and 70 miles nspec- tively south-south-east of St. George's Island. " It is not disputed, therefore, that the soizuvos in ques- tion were ef^'>cted at a distance from hmd far in ccce-i- nf the limit of maritime jurisdiction which any nation c;wi claim by international law, and it is hardly necessary to add that such limit cannot be enlarged by any muiiieipiil law. " The claim thus set up appears to be foiinueil on tho exceptional title said to have I'cen conveyed to tlie United States by Kussia at the time of the cession of tlu^ Alaska Territory. Tho pretension which the Ihissiau tiovernment at one time put forward to exclusive jurisdiction over tlie whole cf Behring Sea was, however, never admitted either by this ci; mtry or by the United States of America." Upon thic ground the discussion between Hot ^rajesty'.s Government and tho Government of [248] S 2 180 ■ ! ■ii the United States was carried on for some years UDtil the receipt of Mr. Blaine's despatch of the 22nd January, 1890, to Sir Julian Pauncofote, the British Ministet" at Washington, wherein a new or modified position was taken up, and it was asserted to be contra bonos mores to engage in the killing of seals at sea. Mr. Blaine, after promising Sir Julian Paunce- fote to put in writing the precise grounds upon which the United States justified the seizures, wrote as follows : — " In the opinion of tlie President, the Canadian vessela arrested and detained in the Bchring Sea wore engaged in a pursuit that is in itself conti\^ bonos mores — a pursuit 'J" p "'*'"^ to Sir which of necessity involves a se»'ous and permanent January 22, 1890. injury to the riglits of the Government and people of the Blue Rook, United States. "United State* No 2 ^1890) " To establish this ground, it ia not necessary to argue p 39p_ the question of the extent and nature of the sovereignty of See Appendix, this Government over the waters of the Behriug Sea ; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty the Emperor of liussia in the Treaty, by which the Alaskan Territory was transferred to the United States. The weighty consideration growing out of the acquisition of that territory, with all the rights on laud and sea in- separably connected therewith, may be safely left out of view wliile the grounds are set forth upon which this Government rests its justification for the action com- plained of by Her Majesty's Government." .... Mr. Blaine upon the seizures, Sealing contra bonos mores. vol. iii. Jfi He argues that the practice of pelagic sealing insures the extermination of the species, and continues : — " In the judgment of this Government, tJ 3 law of the sea Ibid., p. 398 is not lawlessness. Nor can tli,' law of the sea and the liberty wliich it confers .lUil which it protects be perverted to justify acts wlii.ii are immoral in themselves, which inevitably tend to result against tiie interest and against the welfare of mankind. One step beyond that which Her Majesty's Government has taken in this contention, and piracy finds its justification." ^ On the 17th December, 1890, Mr. Blaine again Avrote to Sir Julian Pauncefote : — Behring Sea not included in raciti in Treaties of 1824 and l,s.' "Legal and diplomatic questions, apparently compli- «n i" ■"ul , rated, are often found, after prolonged discussion, to No. 1 (1891)," depend on the settlement of a single point. Such, in tlie IH'' ^^' ■"'• . judgment of the President, is the position in wliich the yg ]W[} United States and (irent Britain find themselves in the pending controversy toucliing the true construction of t'l Eusso- American and Anglo-llussian Treaties of 1824 and 1825. Great Britain contends that the phrase 'Pacific Ocean,' as used in the Trejities, was intended to include. 131 the seizures. intra honos mores. and does include, the body of water which is now knowit as the Behiing Sea. The United States contends that ihe Behring Sea was not mentioned, or even referred to, in either Treaty, and was in no sense included in the phrase ' Pacific Ocean.' If Great Britain can maintain her position that the Behring Sea at tlio time of the Treaties with Kussia of 1824 and 1825 was included in the Pacific Ocean, the Government of the United States hn.3 no well- grounded complaint against her. If, on the other hand, this Government can prove beyond all doubt that the Behring Sea, at the date of the Treaties, was understood by the three Signatory Powers to be a separate body of water, and was not included in the phrasi. ' Pacific Ocean,' then the American Case against Great Britain is complete and undeniable." .... Disavowal of mare clamum. Blue Book, "Unite I Stites No. 1 (1S91)." p. 66. See A]>ppn(lix, vol. iii. Ibid., p. 41. In the same note Mr. Blaine disavows the con- tention that the B'-Lring Sea is mare clausum, but claims that the Ukase, which asserted exclusive jurisdiction over 100 miles from the coast in that Sea, was never annulled by Russia. He had in this note previously argued " that Great Britain and the United States recognized, respected, and obeyed the authority of Russia in the Behring Sea " for more than forty years after tlie Treaties with Russia. In conclusion, he claims for the United States the right to hold for a specific purpose u "comparatively restricted area of water." ase of 1821 never annulled in Behring Sea. Ibid., p. 52. , included in Piicili' ' ea of 1824 audi S2.' 1 to control restricted area for specific pm^ose. Ibid., p. 54. Ibid., p. 56. In this note the Secretary of State thus expresses himself : — "The English statesmen of that day had, as I have before remarked, attempted the abolition of the Ukase of Alexander only so far as it affected the coast of the Pacific Ocean from the 51st to the 60th degree of nortii latitude. It was left in full force on the sliores of the Behring Sea. There is no proof whatever that the Eussian Emperor annulled it there. That sea, from east to west, is 1,300 miles in extent ; from north to south it is 1,000 miles in extent. The whole of this great body of water, under the Ukase, was left open to the world, except a strip of 100 miles from the shore. But with these 100 miles enforced on all the coasts of the Behring Sea, it would be obviously impossible to approach the Straits of Behring, which were less than 50 miles in extreme width." .... "Tile United States desires only such control over a limited extent of the watein in the Behring Sea, for a part of eacli year, as will be sulJicient to insure the protection of the fur-seal fisheries, already injured, possibly, to an irreparable extent, by the intnision of Canadian vessels ' >|t * >K « " The repeated assertions that the Government of the United States demands that the Behring Sea be pro- 132 nounced marc claitsum are without foundation. The Government has never claimed it, and never desired it. It expressly disavows it. " At the same time the United States does not lack abundant authority, according to the ablest exponents of international linv, fm iioldiuE; a small section of the Behring Sea for the protection of the fur-seals. Con- trolling a comparatively restricted area of water for that one specific purpose is by no means the equivalent of declaring the sea, or any i)art thereof, mai-e rjaiisiim." This disavowal of auy claim to Behring Sea as Blue Boole, a mare clausum is again referred to in Mr. Blaine's jj^ g^/iggm'" despatch of the 14th April, 1891. p. 2. See On the 21st February, 1891, in answer to the ^PP''""*'*' ">'• '" despatch of Mr. Blaine of the 17tli December, 1890, Lord Salisbury wrote to Sir Julian Pauncefoto "The effect ot ■ between tlie two ■isbion which has been carried on Blue Bonk, ii'.meiits iias been materially to " Uniiprt SMtPs . , , No. 1 (1891). narrow the area ot controversy. It is now quite clear that « gy s,,e the advisers of tlie President do not claim IJehring Sea as a Appendix, vol. iil. muiv cldKsum, and indeed that they repudiate that conten- tion in express terms. Nor do they rely, as a justification for tiie seizure of British ships in the open sea, upon the contention tliat the interests of the seal fisheries give to the United States' tiovernment any rigiit for that purpose which, according lo international law, it would not other- wise possess. "Whatever iinpoitanco tiiey attach to the preservation of the fur-seal species, — and tlioy justly look on it as an object deserving the most serious solicitude, — they do not conceive that it confers upon any Jlaritiiiie I'ower rights over the open ocean which tli.'it Power cnuld not assert on otiier grounds. "The claim of tlie United States to prevent the exercise of the seal fishery by otiier nations in Behring Sea rests now exclusively upon the interest wliicli by purchase they possess in a Ukase issued by tlie Emperor Alexander I in the year 1821, which proliibits foreign vessels from n])i)roaciiiiig within 100 Italian miles ot tlie coasts and islands then belonging to Russia in Behring Sea." In reply to this, Mr. Blaine wrote on the I'lth April, 1891:- " In tiie opinion of the President, I/)rd Salisbury is Blue Book, wholly and strangely in error in making the following state'nent; ' Xor do tht'v [the advisers of tlie President] nly ns a justification for the seizure of Britisli sliijis in tiie open sea npon tlie contention that the interests of the seal fisheries give to the United States' Government any right for that purpose whicli, according tn international law, it would not oth(;rwise possess.' Tlie frovernmont of the United States lias steadily held just the reverse of the position Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habit of the .seals in regularly resorting tliither United Stalpx No. 3 (I89l>)," I'. 4. See Apjipmlix, vol. iii« 133 :iaiui of itropeity iiilurcat in sen and rearing tlioir young theroon, that tlieir going out from tliu islands in search of food and regularly returning thereto, and all tiie facts iinil incidents of tlieir relation to the islands, gi\e to the United States a property interest therein ; that tliis property interest was claimed and exercised by llussia d\u'ing the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest, so far as recog- nition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. " It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore pre- vailin"" [•ns2 of the " W. P. Sayward." It does not appear, however, that the special rights now apparently claimed by the United States in respect of a special property in fur- seals have ever been otherwise advanced or more definitely formulated than as above mentioned. In 1891, in the course of the Argument before , , the Supreme Court of the United States in the Stenograpnic '■ Keport ot Argii- case of the " W. P. Saywarcl," one of the learned "Trlsr/wfrf," J"^?*'^ inquired of Mr. Attorney-General p. 96. ' Miller: — See also Brief for United States, ex parte T. H. Cooper, owner and claimant of the schooner " W. P. Sayward," p. 166. I of territorial jurisdiction over 100 miles. " Do you mean that the Political Department has decided in terms what constitute the waters of Alaska, or only tliat the United States has jurisdiction over certain waters for certain purposes ?" To which Mr. Miller replied : — " That is what I understand they have decided ; that they have jurisdiction, and that they have territorial juris- diction over those waters to the extent of 100 miles." Juilgmcnt United Stales' Supreme ('i>iirt, ex parte T. H. Cooper, owner and claimant of the schooner " W. P. Sayward," p. 16. Mr. Chief Justice Fuller, delivering the opinion of the Supreme Court of the United States in the case of the "W. P. Sayward," on the 29th February, 1892, referred to the seizures in the following terms : — " If we assume that the record .shows the locality of the alleged ofTence and seizure as stated, it also shows that oHicers of the United States, acting under the orders of their Government, seized this vessel engaged in catching seal, and took her into the nearest port ; and that the Law OfTicors of the Government libelled her and proceeded against her for the violation of the laws of the United States, in the District Court, resulting in her condemna- tion. " How did it happen that the officers received such orders ? It must be admitted that they were given in the assertion on the part of this Government of territorial lU jurisdiction over Behting Sea to an extent exceeding 59 miles from the shores of Alaska ;* that this territorial jurisdiction, in the enforcement of the laws protecting seal fisheries, was asserted liy actual seizures during the seasons of 1886, 1887, and 1889, of a number of British vessels; that the Government persistently maintains that such jurisdiction belongs to it, based not only on the peculiar nature of the seal fisheries and the property of the Govern^ ment in them, but also upon the position that this juris- diction^was asserted by Bussia for more than ninety years, and by that Government transferred to the United States ; and that negotiations are pending upon the subject." The facts stated in this chapter show : — That the original ground upon which the vessels seized in 1886 and 1887 were condemned, was that Behring Sea was a mare clausum, an inland sea, and as such had heen conveyed, in part, by Russia to the United States. That this ground was subsequently entirely abandoned, but a claim was then made to exclusive jurisdiction over 100 miles from the coast-line of the United States' territory. That subsequently a further claim has been set up to the effect that the United States have property in and a right of protection over f ur» eals in non-territorial waters. * Th« Snpren>e Court, however, expreiBcd no opinion aa to the fgftl vtlidit.^ « t (he juriidiction 80 aBsertod. 1S<( Chapteu VIII. li'iglil of piotoctioii (ir property in souls out.side 3-inilp limit. A novel clniiii. • liiim involves mare rlumum. Point 5 of Article VI. — Has the United Stateti any Right, and, if so, what Right of Protection or Property in the Fur-Seals frequenting the Islands of the United Stales in Behring Sea when such seals are found outside the ordinary 3-mile limit ? The claim involved in this question is not only new in the present discussion, but is entirely without precedent. It is, moreover, in contra- diction of the position assumed by the United States in analogous cases on more than one occasion. The claim appears to be, in this instance, made only in respect of seals, but the principle involved in it might be extended on similar grounds to other animals fera: nature, such, for instance, as whales, walrus, salmon, and marine animals of many kinds. Apart from the ordinary limits of territorial jurisdiction over waters adjacent to coasts, or to some exceptional condition based upon agree- ment, there is absolutely no precedent for the assumption of the right to property in a free- swimming animal, whose movements arc uncon- trolled and not conti'oUable by man. Fur-seals are indisputably animals fera; nalurie, and such animals have been universally regarded by jurists as res nullius until tlioy arc captured. No person can have property in them until he has actually reduced them into posses- sion by capture. TVliy should there be a property in seals in Behring Sea alone ? Outside Behring Sea citizens of the United States have pursued the seals for years as Canadians have done, and arc doing, without let or hindrance, and with the full knowledge of the United States' Government. The proposition that on one si\l<) of the Aleu- tian Archipelago Ji seal is the property of the United States, and on the otiier it is the property of any man who can catch it, can only be sup- ported on the ground *hat Behring Sea is the domain of the United States, in other words, a mare clausum. It is, moreover, submitted that if seals before capture constitute special property, the larceny of a seal on the high seas by a vessel not bc- {248] T tl ■ t 136 longing to the United States is not cognizable by the United States' Courts, and that any claim to protection of seals beyond territorial jurisdiction must involve mare clausum. Whatever arguments may be brought forward in order to induce other nations to concur in the adoption of llegulations limiting and interfering with their rights to fish for and catch seals or other animals ferec naturcc upon the high seas, no nation under the principles of law and the practice among nations can, Avithout the con- currence of all interested Powers, interfere with vessels engaged in tliis pursuit wlien outside of the ordinary territorial jurisdiction. The principle suggested in the question discussed in this chapter has been steadily resisted by all nntions. The Government of the United States has more than once distinctly asserted the principle that the fur-seal fishery is |)art of the ocean fishery, and free to all beyond the o-raile limit. In 1S32 the United States' schooner " Harriet," Davison, master, was seized by the Government of the Republic of Buenos Ayres at the Falkland Islands ; that Government having claimed the right to capture and detain United States' vessels engaged in the seal fishery at the Malvinas (Falkland Islands) and the islands and coasts adjacent to Cape Horn. The United States' Chargd d'Affairas wrote, on the 20th June, 1832. to the Buenos Ayres Minister as follows : — " . . . . The Undersigned is instructed and authorized to Britisli and Foreign say,— that they utterly deny tlie cxistenco of any right in Heri,iet''vo'' xx this KepubHc to interrupt, molest, detain, or capture any p. 336. vessels belonging to citizens of the United States cf .'Vraeriea, or any psrsons being citizens of those States engaged in taking seals, or whales, or any species of fish or marine animals, in any of the waters, or on any of the shores or lands, of any or either of the Falkland Islands, Tierra del Fuego, Cape Horn, or any of the adjacent islands in the Atlantic Ocean." Freedom of seal lisheries as.sertci United States. Falkland Isliiuds. C'nse of the " llaiiiii On the 10th July, 1832, the United States' Clmrg6 d'Affaires wrote to the same Minister as follows : ■' But again,— if it be admitted, hypothetically, that the ibid., p. 349. Argentine Republic did succeed to the entire rights of Spain over these regions; and that when she succeeded, Spain was possessed of sovereign rights; — the question ia certainly worth examination, whetiier the right to exclude American vessels and American citizens from the fisheries there is incident to such a succession to sovereignty. J''iilli,laiul iMltniilii suiil fisla'i'i(<.s. UrilUli and Fureign State Papers, by Hertrlet, vol. it, p. 331. Hunt's " Merch-J ant»' Magazine,'' February 184?, p 137. 189 "The ocean fishery ia ti natural right, which all nations may enjoy in common. Every interference with it by a foreign Power, is a national wrong. When it is carrieil on within the marine league of the coast, which lius been designated as the extent of national jurisdiction, reason socms to dictate a restriction, if, under pretext of carrying on the fishery, an evasion of tlie Itevenuo Laws of the country may reasonably l)c apprehended, or atiy other serious injury to the Sovereign of the coast, he 1ms a right to prohibit it ; but, as such prohibition derogates from a natural right, the evil to be appreliended ought to be a real, not an imaginary one. No such evil con bo appre- liendcd on a desert and uninhabited coast ; Iherofure, such coasts form no exception to tlie common right of Fisliing in the seas adjoining them. .\11 tiie reasoning on this subject applies to the large buys of the (Icean, the entrance to which cannot be defended; and this is the doctrine of Vattel, chapter 23, section 291, who expressly cites the Straits of Magellon, as an instance for the application of the rule. " . . . . The Treaty concluded between Great Britain and Spain, in 1790, already alluded to, is to be viewed, in reference to this subject, Ixicanse, both nations, by restricting themselves from forming .Settlements, evidently intended that the fishery should be left open, botli in the waters and on the shores of these i.slands, and perfectly free, so that no individual claim for damage, for use of the shores, should ever arise. That case, however, could scarcely occur, for whales arc invariably taken at sea, and generally without the marine league — and seals, on rocks and sandy beaches, incapable of cultivation. The Stipula- tion in the Treaty of 1 790 is, clearly, founded on the right to use the unsettled shores for the purpose of tishcry, and to secure its continuance." Mr. Robert Greenhow, whose works have already been quoted, in a series of articles on the Falkland Islands, written for " Hunt's Merchants' Magazine," in February 18 i2, refers to the claim set up by Buenos Ayres respecting the jurisdiction of tlie Republic and the applica- tion of its laws and regulations " especially those respecting the seal fishery on the coast." Mr. Greenhow says : — " To proceed another step in admissions. Supposing the Argentine Republic to have really and luujuestionably inherited from Spain the sovereigtity of tlie teiTitories adjoining it on the so'.ith, and the contiguous islands, that Government would still want the right to extend its ' Regulations respecting the seal fishery ' to the unsettled iwrtions of the coasts of those territories. That right was indeed assumed by Spain, with many equally unjust, which were enforced so long as other nations did not find it prudent to contest them. But as the Spanish power waned, other nations claimed their imprescriptible rights ; [248] T 2 135 they insisted on nftvignting every piirt of the open sea, and of its Tinoccupicd straits and harhours, with such limita- tions only as each niij^lit choose to admit by Treaty with anothor ; and they resorted to the North Pacific coasts of America fur trade and settlement, and to the southeriiniost sliorcs of the continent for the seal fishery, without regard for the exclusive pretensions of Spain to the sovereignty of those regions. Of the hundreds of vensch, ntarh/ all Aniericav, whhli itnnwdlij frequented the con-its and scan above mentioned after 1789, not one van eaptnred. or detained by the Spanish authorities; and long hefore the revolutions in Southern America begun, the prohibitory Decrees of the Court of Madrid and of its Ciovernors, relative to those parts of the world, had become obsolete, and the warnings of its ollicera were treated as jests. " The common right of all nations to navigate and fish in the open sea, and in its indefensible straits, and to use their nnsettlcd shores for temporary purposes, is now admitted among the principal Maritime Powers ; and the stipulations in Treaties on those subjects, uro intended to — pi event disputes as to v)hat coasts arc to be considered an unsettled, — what straits are indefemihle, — within what distance from a settled coast the sea ceases to be open, &c. "The Governments of Spanish American Republics liave, however, in many instances exhibited a strong in- disposition to conform with these and other such Regula- tions of national law, though clearly founded on justice and reason, and intended clearly for the benefit of the weak, to which class they all belong." I-'alkland Islands .seal fisheries. He also refers to the case of the " Harriet " as follows : — ■'.... The Prcaident at the same time declared, that Hiint's •• .Mcrcli- the name of the Republic of Buenos Ayres ' had been used, a;''** Magazine," to co\er with a show of authority, acts injurious to the ,, id'i"''^ comniere*! of the United States, and to the property and liberty of their citizens ; for which reason, he had given onlers for the dispatch of an armed vessel to join the American scjuadron in the south seas, and aid in ailbrding all lawful protection to the trade of the Union, which might 1)0 reiiuired ; and he should without delay send a Minister to Duenos Ayres, to examine into the nature of the circumstances, and also of the claim .set up by that Oovernment to the Falkland Islands. " . . . . The question had, however, become more com- Ibid., p 144. plicated before the arrival of Mr. P.aylies at Uuenos Ayres. "The 'Lexington' reached Berkeley Sound on the ' 28th December, and lay at the entrance, during a severe gale, until the 31st, when she went up and anchored in front of the harbour of Soledad. Boats were immediately sent ashore, with armed seamen and marines, who made prisoners of Brisbane, Metcolf, and some other persons, and sent them on board the ship ; the cannon mounted before the place were ot the same time spiked, some of the arms and ammunition were destroyed, and the seal-skins 139 nnd other articles taken from the ' Harriet ' nnd • Superior ' were removed from thn wnrpliouscs, nnd placed in the schooner ' Dasii,' wiiich carried thenj to llic United Htates, Captain Duncan then gave notice to the iniiabitants that the Hcnl fishery on those coasts was in future to W. free to all Americans ; and that tho capture of any vessel of the United States woulil bo re,i,'arded as an act of piracy ; and haviii},' aftixed a declaration in writing to tiiat efreit on tho door of the (Jovornment-house, he took his depurture, on the 22nd January, 18:i2, carrying with him in the ' Lexington,' llrisbano and six c)ther pev.soiis as inisoners, with many of tho negroes and settlers as passengers" Hill i fax Fisheries (Jommission Mr Dana's speech. Record of the Proce;din(r8 of Halifax Fisheries Cominission, 1977, p. 1653. Air. R. II. Dana, in his speech on behnlf of the United States before the ITaliftix fisheries Commission in 1887, says : — " Tlio right to fish in tlie sea is in its nature not real, as the connnon law has it, nor immovable, as named by the civil law, but personal. It is a liberty. It is a fran<'hi»o or a faculty. It is not property pertaining to or connected with the land. It is incorporeal; it is aboriginal. The right of fishing, dropping line or net into the sea, to draw from it tho means of sustenance, is as old as the human race, and the limits that have been set about it have been set about it in recent and modern times, and wherever the fisherman is excluded, a reason for excluding him should always be given. I speak of the deep sea tir>hermeii following the free-swimming fish ibrough the sea, not of the crustaceous animals, or of any of those that connect themselves with the soil under the sea or niljacent to the sea, nor do I speak of any fishing which requires posses- sion of the land or any touching or troubling tho bottom of the sea ; I speak of the deep-sea fishermen who sail over the high seas pursuing the freo-swimming fish of the high sea-s. Against them, it is a question not of admission, but of cxrlusion. These fish are not i>roperty. Nobody owns them. They come wo know not whence, and go we know not whither. • • • • " They arc no man's property ; they belong i)y right of nature to those who take them, and every man nuy tike them who can." Or. Woolsey's opinion Sec 59, i>. 73, jiixth edition. Dr. Woolsey, in the sixth edition of his Treatise on International Law, says : — " The recent controversy between Great Ihitain and the United States involving the right of British subjects to catch seals in North Pacific waters appears to be an attempted revival of these old claims to jurisdiction over broad stretches of sea. That an international agreement establishing a rational close season for the fur-seal is wise anpro)iriiiti' it, oven though it inij;ht be phyaii'ially possililu to do so. '■ It i.s tlui.s (k'moii.stnitod that tliu sea wuiiiot Ikcoiiic the qf Ortolan, (•xcluHiv(! ])roppity of any nation. Ami, constTincntly, tlio " niiilomatiff tie l.i c .1 r ii 1 Mor,*' torn. I, nso ut th(^ soil lor tlu'so pns'po.scs, reiniuns ojwn and loo-iiC (Minimon to all mankind." In a no((» on tliis pas.su'^o of Wlicatou, Mr. Dnna ndils that — '■The rii,'lil of one nation, or of scviMiil nations, to an exclnsivi' jnrisdiotion ovor an open .sea, was, as stiiti'd in the text, rested solely ou a kind of pivsuription. 15nt however lonf; aeiiuiesci'd in, sacli an apjiropriation is iiiad- niissible, in t^ie natuivof tilings; and wliatPNer may he the evidence of the time or Uivture of the nse, it is set aside iw tt InuI u.sat;e, whieh no evid"nee can make lejjal." Xi) ]ivesi"iipliou ill o[ien sea. Sir R. I'hillinioro wiitos: — '■ The right of iiavij,'ntion, tisliiii^', and the like, upon the PhillimoiT, ' Intor- open sea. !>ein>' inm mini /((r«/A( I 1 ■! ^ 111 11 Soc Blue Boiik, liiiut and tix It at miles, necause, it he eoiiUI, lui ciailtl .1 ijnitoil StnWi in the same manner, ami upon motives of interest. No. 2 (iHO'J)," ambition, and even upon caprice, lix it at 10, or lit), or P'^"'- ^100 Appendix, 50 miles, witlunit the consent or aetiuie.sceuce of othor vol iii. Powers which have u conimon right with himself in the freedom of all the oceans. Siieli a pretension could never be successfully or rightl'iilly maintained." Position taken bv Uniteil .'^late 1802: Cubii. It is claimed hy Great Britain tlint tlie facta already stated establisJi : — (A.) 'J'hat from the earliest times down to the ciiaiitn- 1. year 1821 tlie ships of Great Britain and the Ccnornl conclusions. 143 United States niul of other foreign nations navi- gated tho non-territorial waters of Beiiring Sea and the other parts of the North Pacific, and exorcised freely the natural and common rights therein m ithout intorfereneo or rcmionstranco by lliissia. rinptpr II. (B.) That when, in the year 1821, Russia, in tlic terms of the Ukas(> of that da >, advanced claims to exercise control over a considerable p(;rti()u of tho non-territorial waters of the North raeitic (including a large part of the non-terri- torial waters [of Jk'hring Sea) as over a mare clausum, (he practice of nations and their admitted rights upon the high seas wei'c already entirely opposed to any claim to such exclusive and excepiior.al rights as were embodied in or implied by the Ukase. That this attempt on the part of Russia led to immediate and emphatic j)rot(>sts by Great Britain and the United States, which protests h>d to the Avithdrawal of Russia's claims. That those claims were never recognized or conceded by Great Britain in the smallest degree. That, in view of tho continued practice of nations and the growth o^ the principles of international law since 1821, the arguments then employed by Great Britain and the United States have to-day, if possible, even greater weight than at that period. Chapter III. (C.) That the body of water now commonly known as " Behring Sea " is included in the phrase "Paciiic Ocean" as used in the Treaty of 1825 between Great Britain and Russia, and that that Treaty was intended to declare the rights of Great ]iritain to navigate and fish in all the waters over w Inch Russia had attempted to control and limit such rights, that is to say, from Behriug Strait on ti >' north to latitude 51° on the coast of Americft, and latitude 15"' 50' on the coast of Asia. Chapter IV. (D.) That for a period of more than forty years, that is to say, from 1821 to 1867, the subjects and vessels of Great Britain and tne United States and other nations continued in increasing numbers to navigate, trade, and fish in the waters of Bebring Sea, and that during the whole of that periof" "o attempt was made on the part of llussia to reassert or claim any dominion or jurisdiction over the non-territorial watera of that sea ; but that, on the contrary, the right of all nations to navigate, fish, and exercise common rights therein was fully recognized. [248] U 144 (E.) That at tlio time of the acquisition of Chapter V. Alaska by the ITnitod States pursuant to the Treaty of the 30th March, ISe*? Eussia had no rights in respect of Behring Sea other than those uhich belonged to her as possessing territories washed hy its waters, and could not transmit to the United States any rights of exclusiA'c dominion or control over navigation and tishing in non-territorial waters, and the United States of America acquiring as they did all the rights of Russia, acquired no more. Farther, that at the time of the acquisition the United States of America was fully alive to the fact that the non-territorial waters of Behring Sea were open to the ships of all nations for the purpose of the exercise of the common rights of navigation and fishing. That as to the rights which Russia possessed at the time of the Treaty of 1867, and which were transferred to the United^States by virtue of that Treaty, the ordinary rule as to the extent of maritime jurisdiction applied. 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 Avas complete, an examination of the principles of international law and the practice of nations will shoAv that her jurisdiction (subject to the question of embayed or inland waters) was confined to the distance of I marine league or 3 miles from her sliores. Ortolan, in his "Diplomatic de la Mer," pp. 145, 153 (Edition 1861), says :- Authorities as to the 3-mile limit. Ortolan. " (Jn doit ranger sur la memo ligne quo les riides et les Proceedings ol' . , i;. 4^ 1 1 • » ,. 1 r , Halifax Fisheriei ports, los goltcs ("t les baies et tous les eiifunccmcnts Commission 1877, comius sotis d'autre ■. tU'iioiiiiiiations, Iorsi[iie ees eufuuce- p. 163. inents, formes par les terres d'uu luemo }'^liit, ne dq)as88ut pas on hirgeur la double purti'e du canon, on lor.sque rciutri'o pent en etre youveriic'e par r.-irtillerie, on qu'elle est di'fenikie naturellement y.ir dos iles, par des bancs, ou par des rnelies. Dans tons ees cas, en elfet, il est vrai de dire ([ue ces golfe ou ces liaios sont en la puissanec^ de rfitat muitrc du territoire qui les ensen-e. Cot .ifitiit en a la possession : tous les raisoniionients (jue nous avons fnit a lei^iai'd des rades et des porls peuvent se rcpetor ici. ♦ • * ♦ "Les bords et rivages de la mer (jui baigne It-s crites Ortolan, p. 15S. fl'uu foat sonl les limites uiaritiiues iiaturclks de cet Etat. Mais pour la ])rotoction, pour la ca51'ense jilus efficace de ces limites naturtiUes, la coutume gen(5rale des nations, d'nccord avec benueoup de Traites publics,' permet de tracer sur mer h uue distance convenable des c6t«s, et 145 suiviuit leurs contours, uuc ligiie iiuajjiiiaiic qui iloit ctro consiiliirue uommo la IVoutiuro uiavitimc ai'tificielk'. Tout biltimont qui se trouve a teno do cette ligii". est (lit (•tre i/iirui ks caiix tie I'liltat doiit ullu liuiitc le droit do souvo- raiiictu et de juridictiou." Case nf tbe " Watiliiiigtuii." Mr. .losliua Bates' decision. I'loccedinirs of lliilifax Fisheries Commission, 1877, p. 152. Under the clauses of the Convention of the 8th February, 1853, (ho case of the " Washiui?- ton " (which had licon seized in the Bay of Fundy and confiscated iu llio Vice-Adrairally Court at Yarmouth, N.S.) came before the Joint Commission for settlement of claims in London, and on the disagreement of the Commissioners •was decided by tho Umpire, ]Mr. Jo.sliua Bates, in favour of the United States. In bis decisioii be said : — " The question turns, .so far a.s relates tn the Treaty stii)ulations, on the nieanuig given to the word 'Ijajs' in the Treaty of 178o. l!y that Treaty, the Americans had no right to dry and cure lish on the shores and Jreys of Newfoundhmd ; hut they had that right on llic shores, coasts, lm;is, hnrhonrs, and cricks of Nova Scotia ; and, as they must land to cure fish mi the .sliores, bays, and creeks, they were evidently admitted to tlu- shores of the bays. ii-i\ By the Ti>!aty of 1818 the same right is granted to cure flsli on the coasts, bays, &x., of Newfonnd- lan/u/i:-i of the cuiisl.:;, hi(i/3, cCr., (/ aVow licotia. Taking it for granted that tlic franicrs of the treaty intendeil tliat the word ' bay ' or ' bays ' sliould liave the sail meaning in all cases, and no mention being uuu'e of Iieadl.md-. thcie appears no doubt that tlio 'Wasliington,' in fishing 10 miles from the shore, violated no sti]iulations of the Treat}'. "It was urged, on behall of the Brit, u (jrovcrnment, that by 'coasts,' 'bay.s,' &c., is understood an imaginary line drawn along tlie coast from iieadland to iioaiil md, and that the jurisdiction ol' Her Majest\ extends ."« marine miles outside of this line ; tluw closing all tho bays on the ciiast or slio'c, and that great body of water called tlie Bay of Fundy, against Americans and others, making tho latter a BritisJi bay. This doctrine of the beadliuds is new. and has received a proper limit in tlu n ution between France and (ireat Britain of the 2iiil August, 18;!!); in which ' it is agreed that the distance ol 3 miles, fi.xed a.s the general limit for the exclusive riglit of lisliery upon the coasts of the two countries, shall, witli rcsjiect to bay.s the mouths of which do not exceed 10 miles in widtii, be measured from a straight line diiiwn fnun headland to headland.' "The Bay of Fundy h from (i."> to 7o miles wide anil IjO to 140 miles long; it has scveiiil bays on its coast; thus the won! ' biy,' as applied to this great body of water, has the .same nu-aning as that applied to the Bay of Biscay, the Bay of Itungal, over which no nation can have [248] U 2 146 the right to assume sovereignty. One of the headlamls of the Hay of FunJy is in the United States, and ships bound to Tassaiiiaquoddy must sail through a large space of it. The islands of fJrand Menan (British) and Little Menan (Aiuerican) are situated nearly on a line from headland to headland. These islands, as represented in all geographies, are situated in the Atlantic Ocean. The conclusion is, therefore, in my mind irresistible that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word as used in the Treaties of 1783 and 1818." The Agent for the United Statts before the Halifax Fisheries Commission, 1877, quotes tiiis decision, and adds the following note : — " This Convention between France and Great Britain Proceedings of extended tlie headland doctrine to bays 10 miles wide ; Con„„igjion i877 thus going beyond the general rule of international law, p. 153 (note), accoi-ding to which no bays are treated as within the territorial jurisdiction of a State wliicli are more than ti miles wide on a straight line measured from one head- land to the other." The principle of the marine league was in Secretary Boutwell's opinion. 1872 applied l)y Mr. Boutwell, United States' ^^ ^^^^ ^^^^ Secretary to the Treasury, in his letter of instruc- 109. tions to the Collector of Customs at San Francisco, dated 19th April, 1872, already quoted, as follows : — " I do 3iot see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose [to take fur-seals], unless they made such attempt within a marine league of the shore." The same principle was affirmed in respect of the waters now in question by Mr. Fish, the United States' Secretary of State, who wrote to See ante, p. 100. the United States' Legation in Russia on the 1st December, 1875 : — "There was reason to ho]ie that the practice, which Wharton's formerly jirevnilcd with jiowcrl'iil nations, of regarding iog' ' '"'■'"' seas and bays, usually of large extent near their coast, as closed to any foreign commerce or fishery not .specially licensed by tlieni, was, without exception, a pretension of the past, aul tliaf no nation \.'ould claim exemption from the general riiljof pulilic law which limits its maritime juiisdietion to ." uiiirine league from its coast. We should particularly regret if ltu.ssia should insist on any such pretension." Secretiiry Fish's op'nioii. The same position wos taken up by the United States in their bripf jilod with (lie llalifa.v Fislieries Conunissiou in 1S77. The Agent of the United States at Halifax, ni Aiillioiitic's iiudtud by llio l'iiin;d Stiites in ][alif;ix Fislierios Commiiisioii. rro-^ceJinga of Halii'ax Fisheries Comniisiiiun, 1877^ ]>. 162. after setting out the various authorities under tliis head concluded as follows : — " The jurisdiction of a State or country over its adjoining waters is limited to 3 miles from low-water mark along its sen-coast, and the same rule applies equally to bays and gulfs whose width exceeds C miles from headland to headland. I'roperty in and dominion over the sea can only exist as to those portions capable of permanent posses- sion ; that is, of a possession from the land, which posses- Hion can only be maintained by artillery. At one mile beyond the reach of coast-guns there is no more possession than in mid-ocean. This is tlie rule laid down by almost all the writers on international law." As to inland seas and seas over which empire may extend, the following authorities were referred to by the Agent in the same brief : — Vattel. " At present," says Vattel, " Law of Nations," Look 1, eh. xxiii, §§ 289, 291, " the whole space of the sea within ' I*' cannon-shot of the coast is considered as making a part of the teiTitory ; and, for that reason, a vessel taken under the guns of a neutral fortress is not a good prize. " All we have said of the parts of the sea near the coast may be waid more particularly, and with much greater reason, of the roiids, bays, and straits, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and straits of small extent, and not of those great parts of the sea to which these names are sometimes gi\on — as Hudson's Bay and the Straits of Magellan — over which the Empire cannot extend, and still less a right of ))roperty. A bay whose entrance may be defended may be possessed and rendered subject to the laws of the Sovereign ; and it is of importance that it should be so, since the country may lie much more easily insulted in such a place than on the coast, open to the winds and the impetuosity of the waves." Bliintscldi. Ibid., |i. IGo, Professor Bluntsehli, in his " Law of Nations," Book 4, §§ 302, 309, states the rule in the same way :— " Wlicn the frontier of a State is formed by the open sea, the part of the sea over which the State can from the shore make its power respected — i.e., a portion of the sea extending as far as a cannon-shot fi^om 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 this sovereignty ha,? remarkal)ly increaseil since the invention of far-shooting cannon. This is the consequence of the improvements made in the means of defence, of which the State makes use. The sovereignty of States over the sea extended l'i.8 oi'igiually only to a stoiv's-tlirow from tlie coast ; later, to nil arrow-sliol ; lire-anus were invented, and by rapid l>roi,'rt',ss wo have arrived to the far-shooting cannon of the jirusent ago. J5ut still we proaervo the principle : ' Term- ihiiiiiniinn fiuitiir, nhijinitiir urmovum ris.' " "Within certain limits, there are .snbuiitted to the .sovereignty of the Ixn'dering State: — " (".) The portion of the sea pl.iced within a cannon- shot of the shore. " (6.) Harbours. "(c.) Gulfs. " ((?.) lioadsteails." "Nolo. — Certain portions of ilie sea are .so nearly joined to tlio terra Jinan, that, in some measure at least, they ought to form a part of the territory of tlie bordering .State; thuyare considered as accessories to tlie terra fir ma. The safetj- of the State, and the public quiet, are so depen- dent on them that they cannot be contended, in certain gulfs, with the portion (jf the sea lying luider the fire of cannon from the coast. These exceptions from the general rule of the liberty of the sea can only be made for weighty reasons, and when the extent of the arm of the sea is not large; thus, Hudson's Bay and the Gulf of Mexico cviilently are a part of the open sea. No one disputes the ])0\vcr of Kngland over the arm of the sea lying between the Isle of Wight and the English coast, which could not bo admitted for the sea lying between Kngland and Ireland ; the English Admiralty has, liowever, sometimes maiii- lained the theory of ' narrow seas ; ' anil has tried, but witliout success, to keep for its own interest, under the name of ' King's Chambers,' some considerable extents of the sea." lvli'i1)or, "Broil dcsGcusModernes de rEiiropc (I'aris, edition 1831)," torn, i, p. 216:— " Au terriioire maritime d'un £tat aiiiiartiennent les Proceedin|H rcciiiinus par d'autrcs I'liissances conimo mer fermee , Kluber. Brief for tho Uiiitod States, Sitkn, iu 1887. Rriof for iho United States Filed at Sitka October 12, 1887. " New York Herald," October 18, 18S7. nine Hook, " United States No. 2 (1890)," p. 112. See Appendix, vol. iii. See Lord L.itis- downc to Mr. Stanhope. November 27, 1886. Blue Honk, •' United State.i No. 2 (1890)," |>. 28. Appendix, vol, iii. 119 c'est-i-diro, coiumo soumis a iiiie P- - • being occupied and becoming property than the land, and it ought to follow the fate of the country that sur- rounds it." So Halleck says : — " 21. It is generally admitted that the territory of a Halleck'a State includes the seas, lakes, and rivers entirely inclosed International Law, .,..,.. ™, , , , „ , vol. I, cap. 6, withm Its limits. Thus, so long as the shores of tlie Kffoct of cchhIiiii oI' Alaska on mnn chiiimiii diH'trino. Oitdlan. Black Sea were exclusively possessed by Turkey, that sea might, with propriety, be considered as a nwrc clausum ; and there seemed no reason to question tlie right of the Ottoman Porte to exclude other nations from navigating the pa.ssage which connects it with tlie Mediterranean, both siiores of this passage being also portions of the Turkish territory. Hut^when Turkey lust a part of lier possessions bordering upon this sea, and Itussia had formed her commercial establishments on the shores of the Kuxine, both that Empire and other Maritime Poweis became entitled to paiticipate in the commerce of the Black Sea, and consequently to the free navigation of the Dardanelles and tlie Bosphorus. This right was expressly recognized Viy the Treaty of Adrianople in 1829. • • • • " 22. The great '•\land lakes,Jand their navigable outlets are considered as subject to the same rule as inland seas : where inclosed within the limits of a single StJite, they are regarded as belonging to the territory of that State ; but^if different nations occupy their borders, the rule of mare clmmim cannot be applied to the navigation and use of their waters." pp. H3-H5. TwifS. Ilalleck. 161 Mr. Hoffman. I'rofo.s8(ir AiiKcU. Mr. HoflTinan to Mr. Prelin((lmv9oi), Marcli 14, 188-J. fiOtli CoiigrcsB, Slid Sp98,, Senate Ei. Doc. No. 106, p. 260. Seo Appondix, vol. ii, Part II, No. 1 3. The view expressed by the above authorities has been olTicinlly adopted by an accredited ]{opresentative of the United States, so that it is l)crhaps unnecessary to insist furtlier upon it in this connection. On the IJth Marcli, 1882, :Mr. ITolTnian wrote from tlie Legation of the United States at St. I'etersburg to ^M-. J^n^linglniysen, Secretary of State, in a letter already quoted : — "In till' time wlii'ii Iiiissif. owned tlif whole of tlicse islamic lur l;e)pi-eseiitiilives in Silieriii eliiinied tliat the Sea of Okhotsk was a mmr cIiiiihihii, for that ItuH.sian jiirisdiclion extended from island to island and over 1' marine lea^-nes of intermediate stsi from .Tiqian to Kamlchatka. " lint alioiU live years a,!,'o liussia eeded tlle soiitliern ^rouji of these islands to Ja]ian in return fur the half of the Jshmd of Sauhalien, whicli lielnnucd to thai I'owcr. " As soon as this was done, it lieciinie iinjio.ssible for tlie Siberian authorities to nadntain their claim. My infor- mant was not awarfi that this claim had ever been seriously made at St. I'ctersbnri,'." And on the 27th jMarch, 1S82, he further wrote : — Mr. Hoffman to " I ^lo J'"t think tliat liussia claims that the Sea of Mr. rrelinghuysen, Okhotsk is a niair (■/(iKsiiiii, ovi'r which she has exclusive M.irch 27, 1882. ..,.,. rr , , , , • • , < i i 60ih Conirresa j\irisaictinn. II she does, her claim i.s not a tenaljle one, 2nd Scs9., Senate .since tlie cession of part of the fironp of the Knrile Islands ^""■P""-^"' *°®' to Jaiian, if it ever were tenable at any time." p. 2G1. See ' ■' Ap|)ondix, vol. ii, Pan II, No. 14. Professor James B. Angcll, one of the United States' Plenipotentiaries in the negotiation of the Pisheries Treaty at Washington in 1888, and an eminent.) lu'ist, in anarticlo entitled "American Rights in Behring Sea," in "The Poriim " for November 1889, wrote : — " Can we sustain a claim that lioliring Sea is a closed sen, and so subject to our control ? It is, perliap.s, impo.ssible to frame a detinition of a closed sea which the ]mblicists of all nations will accept. Vaitel's closed sea is one 'entirely inclosed by the land of a nation, with only n communication witii the ocean by a channel of which tlint nation may take possession.' llanlefeuille substantially adopts this statement, asserting more .specitically, however, that the channel must be narrow enouL;h to be defended from the .shores. I'erels, one of the more eminent of the later (Jerman writers, practically accejits Hautefeuille's definition. ]?ut so narrow a channel or opening as that indicated by the eminent French writer can hardly be insisted on. Probably, most authorities will regard it as a. reasonable reipiirement that the entrance to the sea should be narrow enough to make the naval occupation of it easy or practicable. 'Wc, at least, may be expected to [218] . X See Appendix, vol. i. No. 8. 152 in'osciibe 111) di'liiiiticiii .wliieli \vo\il(l uiiikf tlio (liilf ul St, Liiwrciico a closed st'ii. " IVlirin;,' Si'ii is iiol iiiclosi'd wholly liy mir tcivitdiy. Fi'oiii till! iiKwt wcstciu i'iluiitl ill our ]io,ssi'Hsi(iii to tliu iiuiuvHt jKiiiil oil llic Asiiitii; .slioio in inoic lliiiii .'100 miles' From onr most western isliinii (Atloii) to tlio iieiivest iiUssiiill isliliul (('o]iliei Islillld) is l,s:i miles, Tliu sea from east lowest meiisuies about 1,100 miles, mnl fimu north to south fully H"0 miles. The iii'e;i of the sea must lie lit least two-thirds as ^'rual a.s that of the Jledilerranoaii, and more than twice that of the North Sea. The Straits of (iihraltar are less than 9 miles wide. The eliief entrance to tlie (iulf of St, Lawrence, which is entirely surrounded by lirilisli territory, is only about 'lO miles in width, liehrinj,' Sen is oiieii on llio north by the straits, 31) miles wide, which form a jia.ssage way to the Arctic Oceim. On w-liiit grounils and after what modern jire- cedent we could set up a claim to hold this great son, with iti wide apin'oaches, as a iiud-c cIkhsuiii, it is not easy to see." Dana, in a note to Wlicaton's " Elements," says : — "The only ijuestion now is, whether a given sea nr Wlieaton, 8th sound is, in fact, as a matter of iiolitico-physical i'eo''iaiiliv, ^tlition, by .,. , , . ,.,..,. . ,„, , ■ Mr. Dana, 1866, witliin the exclusive Jurisdiction ot one nation, lla^ claim gectjon 187 (note). of several nations, whose borders surround a lari,'e open sea, to combine and make it iiinrc clniixnm against the rest oi' the world, cannot be admitted. The making of such a claim to the iialtic was the infirmity of the position taken up by tlie Armed Xeutrality in ITSO and 1800, and in the Hiissiaii l)eclaialioii of War against England in 1807." ;i-ii Mr. Danx It is fiirthov eUUmed, on behalf of Great Britain — (F.) That from the acquisition of Alaska by the United States in 1807 down to the year 188G no attempt uas made by tlie United States to limit or interfere with the right of the subjects of Great Bx-itain or of any other nation to navigate and fish in the non-territorial waters of Bchring Sea. (G.) That the original ground \\\\o\\ Avhich thi; vessels seized in 1886 and 1887 were condemned rested upon a claim to treat Behring Sea as mure clausum, and as having been conveyed as such, in part, by Russia to the United States. That the contention of the United Slates has subsequently been rested upon a claim to ex- clusive jurisdiction over a space of 100 miles from the coast of the United States' territory. That subsequently a further claim has been raised to an alleged special right of protection of or property in the fur-seal. Cliiiptor VI. Chapter VII. ( 'asi; of Slave (ifncriil cdiK'luHioiiH. ( haptpr VIII. Allc^fil iij,'lit 111' protection. Aij.iloi^'ous ijui'.siiiniH. Ili^hl of search mi liif,'!i ■< Mr. Madison to Mr. Monroe, Jnnuary 5, 1804. .\ni(~riciin State Pnpprs, Forciifn KcUtions, vol, ii, p. 730. Slavi' Tviulp. CiVM.' of '• Lc Ldui.s "' i;iit;ii; Sliivn Ti'iiiU' and scizi' (Oil ill I. "Le Loni,i," 181(!. bne Dodson's Admiralty Cases, vol. Ii, p.' 210. ijy As to Point 5 of Articlo VI— Tlint, n.s regards the right claimed by fho United iStates of proteeticni of or properly in i'nr- seala wiicn found outside tlic ordinary 3-milo limit, no property exists, or is knowit to inter- national law in animals /'rrrt; nahtrrr until rfuluced into possession l>y capture, and no nation has any right to claim jirojjerly in siieli animals when found outside territorial waters. The only rii^ht is to prevent tht; ships and suhjcets of other nations I'rom entering territorial wa1i>rs for the purpose of capturing such animals. Upon analogous questions similar principles have been generally maintained and recognized. Thus, with reference to the right to search neutral vessels upon the high seas — In 1801, during the war with France, Great Jiritain claimed to search neutral vessels on the high seas, and to seize her own subjects when found serving under a neutral flag. The position taken on this subject by tlie United States was not only in opposition to siu'li ■\ light, but that country insisted that in no (•iit(l as a universal lu-oposiMon, but was subject to exceptions, and within those exceptions nuist b(! included the present transaction, wjfiich Avas a transgression, not only of municipal law, but likewise of the general law of nations. In whatever light the Slave Traih^ might have been viewed in former times, it must no longer bo deemed within the protection of the law of nations. Since the Declaration of the Congress of Vienna, that the Slave Trade was repugnant to the principles of humanity and of universal morality, traffic in slaves must bo considered a crime, and it was the right and duty of every nation to prevent the c(mimission of crime. On the whole, ho submitted that the " Le Louis,'' having been engaged in a traffic prohibited by the laws of her own country, and contrary to the general laws of humanity and justice, ought not to be restored to the claimant. Sir William Scott, afterwards Lord Stowcll, in the British High Court of Admiralty, held, hoAvever, that trading in slaves was nol a crime by universal law of nations, ile observed : — Sliivi' TiikIl'. t 'iisu of " Le I.uuis." I.iivd StiiWi'U's .I',i(lj,'iiiuiit. !Sfi/iii lint jiLstificil. " NiMtlii'i- this (jmrt nor any otliw can caviy its private See Dodson's ui)|)i(!hi'nsions, indeiuMulout of law, into its public juilg- Admirnlty Cnscs, vol ii D 249 incnls on the (lUiility of actions. It mnst confoini to the • • f ■ jud^iiient of tile law upon tliat subject ; anil actin,^ as a Conii in the atlniinistralion of liiw, it cannot attribntr criminality to an act where tlic law iiii]aites none. IL must look to tlie lej^al standard of nioralit}- ; and upon a i|Uestion of this nalnre, that standard must be found in tiie law of nations as fixed and evidenced by general and ancient and admitted practice, liy Treaties and liy the •general teiiour of the hiws and ordinances and the formal transactions of civilized States. " . . . . Much stress is laid upon a solemn declaration Ibid., p. 25'2 of very eminent persons assembled in Congress, whose rank, high as it is, is by no means the most respectable foundation of the weight of their opinion that this traflic is contrary to all religion and morality. Great as the reverence due to such authorities may be, tliey cannot 1 think be admitted to have the force of overruling the rstablished course of the general law of nations." » • » » - ■ Slave Trudf. {.'tm of " U Louii." Sre Dodion'i Admiralty Ca>«>, vol. il, p. 303. Ibid., p, 9A0. Ciwc of the "Antelope." United Statea' Supreme Court to same effect. Wlieaton, lleport, vol. X, p. 66. 155 " it is iicxl .saiii ;iiiil (.'vciy coimlry hm a vij^lit to I'liforco its own navi^'ation laws; and «o it certainly law , 80 far as it iloos not interfcro with the ri^'lil.s of otliors. Hut it has no ri;,'ht, in consnniiunco, to visit and siMirch all the np|iarunt vessels of other countries on the itigh suu.s." * ^t * * " It is said, and with just concern, that if not permitted in time of jieace, it will bo extrenudy dilllcult to suppre.sn the Trallic It will ho so, and no iiinn can deny that the sujipression, however di'sirahle, and however souyht, ia attended with enormous difTicidties ; di:1iculties which have liadled the ino.st zealous cndeuvours for many years. To every man it must have heeu evident that wilh'jut a j;oneral and sincere eoncurreni'c of all the Maritime Staten, in the prinriplo and in the jiroper modes of pursuing it, comparatively hut little of positive good could he ac([uired ; 80 far at least as the interests of the victims of this commerce were concerned in it; and to every man who looks to the rival claims of these States, to their eslabli.she right of navigation and fishing Avere acipiiesced in by Russia; and no attempt AAas ever made by Russia to again assert 169 Recapitulation of Argument. or enforce any such supposed right to exclude or limit the rights of other nations to navigate or fish in the Avaters of the sea now known as Bell ring Sea, other than the territorial waters thereof. 8. The assertion of rights by Russia in the year 1821, and her ineffectual attempt to limit the rights of navigation and fishing, was inopera- tive and had no effect upon the rights of other nations. 9. The body of water now known as the Behring Sea was included in the phrase " Pacific Ocean," as used in the Treatv of 1825 between Great Britain and Russia. 10. Prom the year 1821 down to 1886 the vessels of Great Britain have continuously, and without interruption or interference, exercised the rights of navigation and flsliing in the waters of Behring Sea other than the territorial waters thereof. 11. The right of all nations to navigate and fish in the waters of Behring Sea, other than the territorial waters thereof, have been repeatedly recognized and admitted both by Russia and by the United States of America. 12. Whatever territorial rights passed to the United States under and by virtue of the Treaty of the 30th March, 1867, Russia had not the right to transmit, and the United States did not acquire, any jurisdiction over or rights in the seal fisheries in any part of the sea now known as Behring Sea, other than in the territorial waters thereof. 13. The Treaty of Cession of the 30th March, 1867, did not convey anything more than ordinary territorial dominion. 14. From the acquisition of Alaska by the United States in 1867 down to the year 1886, no attempt was made by the United States to assort or exorcise ar.^y right to limit or interfere with the right of Great Britain, or of any other nation, to navigate and fish in the waters of Behring Sea other than the territorial waters thereof. 160 15. Tbo sole right of the United States in respect of the protection o£ seals is that incident to territorial possession, including the right to prevent the subjects of other nations from enter- ing upon land belonging to the United States, or the territorial waters thereof, so as to prevent their capturing seals or any other animals or fish either on such lands or in such territorial waters. Recapitulation of Argiiuiciit. 16. The United States have not, nor has any subject of the United States, any property in fur-seals until they have been reduced into possession by capture, and the property so acquired endures so long only as they are retained in control. 17. Fur-seals are animals fera: natura, and the United States has no right of protection or property in fur-seals when found outside the ordinary 3-mile limit, whether such seals frequent the islands of the United States in Behring Sea or not. 18. The right of the subjects of all nations to navigate and fish in tb j nou-tei'ritorial Avaters of tlie sea now known as Behring Sea remains and exists free and unfettered, and cannot be limited or interfered with except with the concurrence of any nations affected. 19. No regvilations affecting British subjects can be established for the protection and pre- servation of the fur-seal in the n on- territorial waters of Behring Sea without the concurrence of Great Britain. 161 • .'onclusion. Schedule of Claims. CONCLUSION. It is submitted on behalf of Great Britain to the Tribunal of Arbitration, that the questions ^raised in this Arbitration are of far greater impr.i+fiTice than the mere preservation of a pa:.'ticular industry ; they involve the right of evt^ry nation of the world to navigate on and fish in th d high seas, and to exercise without interference tie common rights of the human race; they involve the question of the right of one nation by Proclamation to limit and interfere with rights which are the common heritage of all mankind. In defence of these rights and in the interests of all civilized nations, the above arguments are respectfully urged upon the consideration of the Tribunal. The SCHEDULE annexed to this Case con- tains particulars in connection with the claims presented under Article VIII of the Treaty of Arbitration, and the facts and evidence contained in the Schedule are submitted to the considera- tion of the Tribunal for the purposes stated at p. 12 of this Case. i