IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^12.8 |2.5 U£ m 12.2 i -- IIIIIM *- i. ill 1.8 IL25 mil 1.4 ill 1.6 V] <^ '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ \ (V ^v o^ k ? io CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques A Technical and Bibliographic Notes/Notes techniques et bibliograpniques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographlcaliy unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. D □ D Coloured covers/ Couverture de couleur r~~| Covers damaged/ Couverture endommag6e Covers restored and/or laminated/ Couverture restaurAe et/ou pelliculAe Cover title missing/ Le titre de couverture manque Coloured maps/ Cartes gAographiques en couleur □ Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) □ Coloured plates and/or illustcations/ Plancl D ;hes et/ou illustrations en couleur Bound with other material/ ReliA avec d'autres documents Tight binding may cause shadows or distortion along Interior margin/ La reliure serrde peut causer de I'ombre ou de la distortion le long de la marge intirieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouties lors d'une restauration apparaissent dans le texte, mais, lorsque cela Atait possible, ces pages n'ont pas At6 filmies. Additional comments:/ Commentaires supplimentaires: L'Institut a microfilm^ ie meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la methods normale de fiimage sont indiqu6s ci-dessous. V Coloured pages/ Pages de couleur I I Pages damaged/ D Pages endommagies Pages restored and/oi Pages restaur6e& et/ou pelliculies Pages discoloured, stained or foxe( Pages dicolorAes, tacheties ou piqu6es Pages detached/ Pages d^tachdes Showthrough/ Transparence Quality of prir Quality in6gale de I'impression Includes supplementary materii Comprend du mat6riel supplAmentaire Only edition available/ Saule Mition disponible |~~1 Pages restored and/or laminated/ r~7| Pages discoloured, stained or foxed/ I I Pages detached/ I I Showthrough/ FT] Quality of print varies/ I I Includes supplementary material/ I I Only edition available/ Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont M film^es A nouveau de fa9on A obtenir la meilleure image possible. / This item is filmed at the reduction ratio checked below/ Ce document est filmA au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 12X 16X 2P>«; 26X 30X y 24X 28X 32X The copy filmed here has been reproduced thanki to the generosity of: Vancouver Public Librdry L'exemplaire film* fut reproduit grAne A la gAnArositA de: Vancouver Public Library The images appearing here rre the best (quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les images suivantes ont 6tA reproduites avec le plus grand soin, compte tenu de la condition at de la nettetA de l'exemplaire filmA, et en conformity avec les conditions du contrat de filmage. Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated impres- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustr .ted impression. Les exemplaires originaux dont la couverture en papier est ImprimAe sont filmis en commenpant par le premier plat et en terminant soit par la derniAre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont filmAs en commenpant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniAre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the s nbol — »■ (meaning "CON- TINUED "I. or the symbol V (meaning "END "), whichever applies. Un des symboles suivants apparaitra sur la derniAre image de cheque microfiche, selon le cas: le symbole — •• signifie "A SUIVRE ', le symbole V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in th^ upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre filmAs A des taux de reduction diffArents. Lorsque le document est trop grand pour dtre reproduit en un seul clichA, il est filmA A partir de Tangle supArieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 ♦ » h-c^ i-^ M ! (l,!t /« V FIFTH DRAFT FOR CASE. Tribunal of Arbitration under Treaty and Convention between Great Britain and the United States of America relating to Behring Sea. Seiiium of Britiih lU|M. See tha'dMiiitaliD the Appeodix. IVMty »nd Con- vtntioo of 1893. INTRODUCTION TO CASE. 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 limit and interfere vith British vessels fishing in the waters of Behring Sea other than the territorial waters thereof. Prior to the year 1886 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 south-east of St. George Island, the nearest land. The vessel was libelled in a District Court of the United States by the District Attorney, the charge formulated being that the vessel was "found engaged in killing fur-seals within the limits of Alaska Territory and in the waters thereof, in violation of Section 1956 of the Jievisixi Statutes of the United States." . The "Anpa Beds" and "W. P. Say ward" ware also seized, and were condemned in 1887 by the isame' Cpiut of Alaska, upon the ground that Russia hiid ceded not onl/ 'aska and the islands within certain limitiii of Behring Sea, but the sea itself within those limits. Certain other vessels were also subsequently seized, and the fishing of British vessels interfered /n ith under the circumstances hereinafter stated. Great Britain protested against this action on the part of the United States, and nego- tiations took place, which eventully resulted in the Treaty and Convention entered into at Washington on the 29th February and the 18th April, 1892. [686] B V'iai^JLLHU'Wiiiilil I I , I QYScA • ••• • ••• • • .•• • •,■••• ,• • ••• • ;• »•••••"• 152906 The Treaty is as follows : — 'Her Mtyosty the Queon of the United Kingdom of Great Britain and Ireland and the United States of America, being desiroiis to provide for an amicable settle- ment of the questions which have arisen between their respective Govemmants concerning the jurisdictional rights of the United States in the waters of Behring Sea, and oonceming also the preservation of the fur-seal in or habitually resorting to the said uea, and the rights of the citizens and subjects of either conntry 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 e.ppointed as their respective Plenipo- tentiaries : "Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir Julian Panncefotn, G.C.M.G., K.C.B., Her Majesty's Envoy Extraordinary and Minister Plenipotentiary to the United States ; and the President of the United States of America, James 0. Blaine, Secretary of State of the United States ; " Who, after having communicated to each other their respective Full Powers, wliich 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 shaU bo named by the President of the United States ; his Excellency the' President of the French Kepublic shall be jointly requested by the High Contracting Parties to name one ; His Majesty the King of Italy shall be so requested to name one ; and His Majesty the King of Sweden and Norway shall be b6 requested to name one. The seven Arbitrators to be so named shall be jurists of distinguished reputation in their respective countries : and the selecting Powers shall be requested to choose, if possible, jurists who are acquainted with the English language. " In cose of the death, absence, or incapacity to serve of any or either of the said Arbitrators, or in the event of any or either of the said Arbitrators omitting or declining or ceaeing to act as such. Her Britannic Majesty, or the President of the United States, or his Excellency the President of the French Kepublic, or His Majesty the King of Italy, or Hia Majesty the King of Sweden and Norway,' as the cose may be, shall name, or shall be requested to' name forthwith, aaother person to act ao Arbitrator in the place and stead of the Arbitrator originally named by such head of a Stote. " And in the event of the refu/ial or omission for two months after receipt of the joint request from the High Contracting Parties of his Excellency the President of the French Bepublic, or His Majesty the King of Italy, or His M^esty the King of Sweden and Norway, to name an Arbitrator, cither to fill the original appoint- ment or to fill a vacancy as above provided, then in such case the appointmuni; shall be made or the vacancy shall be filled in such manner as the High Contracting Parties shall agree. "ARTICLE h. "The Arbitrators shall meet at Paris within twenty days after the delivery of the counter-cases mentioned in Article IV, and shall proceed impartially and carefully to examine and decide the questions that have been or shall be laid before them as herein provided on the part of the Oovemmentfi of Her Britannic Majesty and the United States respectively. All questions considered by the Tribunal, including the final decision, shall be determined by a majority of all the Arbitrators. " Each of the High Contracting Parties shall also name one person to attend the Tribunal as its Agent to represent it generally in all matters connected with the arbitration. " ARTICLE III. " The printed Case of each of the two parties, accom- panied by the documents, the olficial correspondence, and other evidence on which each relies, shall be delivired in duplicate to each of the Arbitrators and to the Agent of the other party as soon as may bo after the appointment of the members uf the Tribunal, but within a period not exceeding four months from tlie date of the exchange of ■_ the tatificalionti of this Treaty. ■; " ARTICLE: IV. ' " Wi^iiin three oicntlis after tlio delivery on both sides 'of the ptiated Cuao, either party may, in liiio manner, deliver in duplicate to each of the said Arbitrators, and to the Agent of the other party, a counter-case, and additional documents, correspondence, and evidence, in reply to the cose, documents, corres]K)ndeuce, and evidence so presented by the other party. "If, however, in consequenco of the distance of the place from which the evideuco to be presented is to be procured, either party shall, within thirty days after the receipt by its Ag(!nt of the case of the otiier party, give notice to the other party that it reiiuires additional time for the delivery of such counter-case, documents, corre- spondence, ind evidence, such additional time so indicated, but not exceeding sixty days beyond the three montlis in this Article provided, shall 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 poaseaaion, without annexing a copy, auch party ahall be bound, if the other party thinks proper to apr'/ for it, to furnish that party with a copy thereof ; am' either party may call upon the other, through the Arbitrators, to produce the originals or certified copiw of any papers adduced as evidence, giving in each instanc*. notice thereof within thirty days after delivery of the Case; and the original or copy so requested ahall be delivered as soon as may be, and within a period not exceeding forty days after receipt of notice. Tribunal. "ARTICLE V. " 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 printed argument showing the points and referring to the evidence upon which his Government mlies, 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 statemeni or argument, or oral argument by counsel, upon it ; but in such case the other party shall be entitled to reply either orally or in vrriting, as the case may be. 4ETICLE VI. " In deciding the matters submitted to the Arbitrators, Questiuoi for tb* 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 States ? " 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain T " 3. Was the body of water now known as the Behring Sea included in the phrase ' Pacific Ocean,' as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring Sea, were held and exclusively exercised by Russia after said Treaty 7 " 4 Did not all the righ'iS of Russia as to jurisdiction, and as to the seal fisherieti in Behring Sea east of the water boundary, in the Treaty between the United States and Russia of Uie 30th March, 1867, pass unimpaired to the United States under that Treaty ? " 6. 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 the ordinary S-mile limit 7 "ARTICLE VIL " If the determination of the foregoing questions oa ta tite exclusive jurisdiction of the United States ahall laava the nbject in raoh position that the concurrence of Oreat Britain is neccMary to the establiihment of Kegnlationa for the proper protection and preservation of the far-seal in, or habitually resorting to, the Behring Sea, the Arbi- trators shall then determine what concurrent Regulations outside the Jurisdictional limits of the respective Qovera- oents are necessary, and over what waters such Regula- tions should extend, and to aid thorn in that determination, the Report of a Joint Commission, to be appointed by the respective Qovernmente, shall be laid before them, with such other evidence as either Qovemment may submit "The High Contracting Parties furtliermore agree to oo-operate in securing the adhesion of other Powers to such Regulations. "ARTICLE VIII. "The ''ligb Contracting Parties having found themselvca wnnbla to agree upon a reference vhich shall include the luestion of the liability of each for the iujuriea alleged to have boon sustained by the other, or by its citizens, in connection with the claims presented and urged by it; and, being solicitous that this subordinate question should not interrupt or longer deky the submission and deter- mination ' r the main questions, do agree that either may submit to the Aili.>,iau>M any question of fact involved in said claims, and oak for a finding thereon, the question of the liability of eitliur Qovemment upon tlie facts found to be the Bubject of further negotiation. " ARTICLE IX. " The High Contracting Parties having agreed to appoint two Commissioners on the part of each Government to make the joint investigation and Report contemplated in the preceding Artjcle VII, and to include the terms of the said Agreement in the present Convention, to the end that the joint and several Reports and rcconunendntions of said Commissioners may bo in due fuim submitted to the Arbitrators, should the contingency therefor arise, the said Agreement is accordingly herein inciudeil as follows:— " Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other Government, nil the facts having relation to seal life in Behiing Sea, and the measures necessary for its proper protection and preservation. " The four Commissioners shall, 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 Government on any points upon which they may be Tmable to agree. "These Reports shall not be made public until they shall be submitted to the Arbitrators, or it shall appear that the contingency of their being used by the Arbitrators cannot aiise. "ARTICLE X. "Each Government shall pay the expenses of its members uf the Joint Commission in the investigation referred to iu the preceding Article. [686] I "ARTICLE XI. " The docision of the Tribunal shall, if possible, be made within thrcn months from the close of the argument on both aides. " It shall bo made in writing and dated, and shall be signed by the Arbitrators who may assent to it. " The decision shall be in duplicate, one copy whereof sliall be delivered to the Agent 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 ita case to the Tribunal All other expenses connected with the Arbitra- tion shall be defrayed by the two Governments in equal moieties. "ARTICLE XIIL " The Arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessary ofiBcers to assist them. "ARTICLE XIV. I " The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Aibitration as a full, perfect, and final settlement of all the questions referred to the Arbitrators. "ARTICLE XV. " The present Treaty shall bo duly ratified by Her Britannic Majesty ani by the President of the United States of America, 1;)y and with the advice and consent of the Senate thereof ; and the ratifications shall )je exchanged either at Washingtc^n or at London within six months from the date hereof, or earlier if possible. " In faith whereof, we, the respective Pleniiwtentiaries, have signed this Treaty, and have hereunto affixed our seals. " Done in duplicate, at Washington, the 29th day of February, 1892. (LS.) "JULIAN PAUNCEFOTE. (LS.) "JAMES G. BLAINE." The general outline of the argument on behalf of Great Britain will be as follows : — iiehring Sea, us to which the question arises, is an open sea in which all nations of the world have the right to navigate and fish, and such rights of navigation and fishing cannot be taken away or restricted by the mere dcclamtioa or claim of any one or more nations. They are natural rights, and exist to their full extent unless specifically modified, controlled, or limited hy Treaty. No mere non-user or absence of exercise has any effect 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 principles, which are clearly established, and have never been seriously disputed by jurists, authorities will be cited. It will be shown 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 the sea in question, and that the exercise of these natural rights continued with- out any attempted interference or control by Russia down to the year 1821. It will further be established that when in that year, in consequence of the competition with Russian subjects and traders by the traders and vessels of other nations, Russia did attempt by Ukase, i.e., by formal declaration, to close the waters of a great part of the Pacific Ocean, including Behring Sea, to other nations. Great Britain and the United States immediately pro- tested against any such attempted interference, maintaining the absolute right of nations to navigate and fish in the non- territorial waters of Behring Sea and other non-territoriak waters of the Pacific Ocean (over which non-territorial waters Russia had attempted to limit and inter- fere with these rights). Both covmtries asserted that these rights were common national rights, and could not bo taken away, or limited by Ukase, Proclamation, or Declaration, or otherwise than by Treaty. It will be shown that in the years 1824 and 1825, in consequence of these protests, Russia unconditionally withdrew bcr pretensions, and that subsequently Treaties were made with the United States and Great Britain which recog- nized the rights common to the subjects of those countries to navigate and fish in the non-territorial waters of the seas over which Russia had attempted to assert such ])rctensions. In further proof of the justice of the position then maintained by Great Britain and the United States, it will bo shown that from the date of such Treaties down to the year 1807, (in which 8 year a portion of the territories which had heen referred to in and affected hj the Ukase of Bussia in the year 1821, was purchased by and ceded to the United States,) the vessels of several nations continued, year by year, in largely in- creasing 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 part of Russia to reassert or claim any dominion or jurisdiction over the non-territorial waters of that sea, but, on the contrary, the title of all natiom to navigate, fish, and exercise all common rights was fully recognized. Moreover, on the occasion last referred to, viz., the purchase and acquisition of Alaska by the United States in the year 1867, it will be found that the United States were fully aware and recognized that, at the time of such purchase, the rights of other nations to navigate and fish in the non-territorial waters adjacent to their newly-acquired territory, existed in their fWl natural state, unimpaired and unlimited by any Treaty or bargain whatever. It will then be established, from the evidence hereinfter stated, that, from the year 1867, down to the year 1886, the United States, while they lawfully and properly controlled and legislated for the shores and territorial waters of their newly-acqxiirod territory, did not attempt to restrict or interfere with the rights of other nations to navigate and fish in the non-territorial waters of Behring Sea or other parts of the Pacific Ocean. It will next be shown that, under changed conditions of territorial ownership, and in view of certain new circumstances which had arisen in consequence of the gi-owth of the novel industry of pelagic sealing in non-territorial waters, the United States reverted, in the first instance, to certain Claims based upon those of the Russian Ukase of 1821, which the United States, together with Great Britain, had successfully contested at the tim*^ of their promulgation ; but that in the course of the discussions which have arisen, such exceptional claims to the control of non-terri- torial waters have been exchanged for various unexampled and indefinite claims which appear to be based upon an alleged property in fur-seals AS such. riually, it will be established that while Qreat / 8a firitain has from the first strenuously and con- sistently combatted all the foregoing claims, she has been and is still favourably disposed to the adoption, should they be found necessary or desirable, of exceptional measures of control of the fur-seal fishery with a view to the protection of the fur-seals, provided that these be equitable and framed ou just grounds of common interest, and that the adhesion of other Powers is secured as a guarantee of their continued and impartial execution. point* ol Argument. Arrangement of due. It will be convenient to state the arrangement and order of the Case on behalf of Great Britain. The first three points of Article YI are as follows : — " 1. What exclusive jurisdirtion in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Bussia assert and exercise prior and up to the time of the cession of Alaska to the United States? " 2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain 7 " 3. Was the body of WHter now known as the Behring Sea included in the phrase ' Pacific Ocean,' as used in the Treaty of 1825 between Great Britain and Russia ; and what rights, if any, in the Behring Sea, were held and exclusively exercised by Russia after said Treaty V It is proposed in the first instance to deal with these points, which relate to the original claim by Russia to certain rights in Behring Sea, and the alleged recognition and concession of these rights by Great Britain. The questions therein raised will be considered under the following heads : — (A.) The user up to the year 1821 of Behring Sea and other waters of the North Pacific. (B.) The Ukase of 1821 and the circumstances connected therewith leading up to the Treaties of 1824 and 1826. (C.) The question whether the body of water now known as Behring Sea is included in the phrase " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia. (D.) The user of the waters in question from 1821 to 1867. [686] 0* 8b It is then proposed to consider point 4 ol Article VI, which is as follows : — " 4. Did not all the righta of Russia as to jurisdiction and as to tlio seal Qsheries in Behring Sea east of the water bouTidary, in the Treaty between the United States and Bussia of the 30th March, 1867, pass unimpaired to the United States under that Treaty ?" lliis point will be considered under the follow- ing heads : — (E.) What rights passed to the United States under the Treaty of Cession of March 80, 1867 ? (F.) The action of the United States and Russia from 1867 to 1886. (G.) The contentions adrnnood by the United States since the year 1886. Point 5 of Article VI is as follows : — " 5. Has the United States any right, and, if so, what right, of protection or property in the fur-senls frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary 3-mile limit ?" This will be briefly considered, but the proposi- tion which appears to be embodied in this question is of a character so unprecedented that, in view of the absence of any precise definition, it, is impossible to discuss it at length at the present time. It will, however, be briefly dealt with in the light of such official statements as have heretofore been made on the part o( the United States, its discussion in detail being necessarily reserved till such time as the United States may see fit to produce the evidence or allegations upon which it relies in bringing such a claim. Subject of Article VH is as follows : — ' " If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the sul ject in such position that the concurrence of Great Britain is necessary to the establishment of Kcgulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Aibi- trators shall then determine what concurrent Itegulations outside the jurisdictional limits of the respective Govern- ments are necessary, and over what waters such Regula- tions should extend, and to aid them in that determination, the Report of a Joint Commission, to be appointed by the respective Governments, shall be laid before them, with . such other evidence as either Government may submit "The High Contracting Paities furthermore agree to co-operate in securing the adhesion of other Powers td such Regidations." 8o This Article will also be briefly dealt with, although the main argument on this part of the Case must of necessity be postponed. With regard to the points raised under Article VIII (wliich refer to questions arising out of claims for damages), it will be contended on behalf of Qreat Britain that the seLture 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 Qovemment 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 in the Schedule of particulars appended to the Case. If Is!' CHAP».''a I. Head (A).— The User, up to the year 1821, of the Waters of Behring Sea and other yVaters of the North Pacific. It is shown in the following scries of historical notes chronologically arranged that the waters subsequently included in the claim made by Russia under the Ukase of 1821, had been freely navigated over, and employed for purposes of trade and for other 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 several nations, and in particular to those of Great Britain. The waters in question include the entire area of what is now known as Behring Sea, though that sea is not specifically mentioned under any name, either in the Ukase of 1821 or in the antecedent Ukase of 1799.* In dealing with the user of these waters, the entire area of waters covered by the Ukase of 1821 is therefore rightly included, the facts relating to all parts of this area having equal force. It will be noted in this connection that the limit claimed under the Ukase extended south- ward to the 61st parallel of north latitude ; and that, therefore, any events occuiTing to the north of 54° 40', which is the southernmost part of the territory now known ns Alaska, are well within this limit. The Pacific Ocean as a whole, was, in the last century and in the earlier part of the present century, variously named the Pacific, or Great Ocean or South Sea, the last name arising from the circumstance that it had been reached by sailing southward round the Cape of Good Uope or Cape Horn. Behring Sea is, and was at the time of the negotiations which arose immediately on the promulgation of the Ukase of 1821, recognized by geographers os a part of the Pacific Ocean. The name by which it is now known is that of the navigator Behring, but in earlier times it was often named the Sea of Kamtchatka. * The text of the Ukuse of 1799 will be found at p. of this Cim; that of the Ukase of 1621 at p. . [636] D 10 Tills sea washes the 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 twice that of the North Sea, while its extreme width is 1,200 miles. From north to south it extends over ahout l-A degrees of latitude, or more than 800 miles. From the south it is approached bj 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 norths it communicates with the Arctic Ocean by Behring Strait, 18 miles in width. Behring Sea is thu;^ the common highway to the Arctic Ocean with its valuable fisheries. It is Great Britain's high^vay to her possessions in the north vifl, the Yukon Elver, (of which the free navigation is guarai^teed by Treaty), as well as the route for such communication as may bo held or attempted with the northern parts of the coasts of North America to the cast of Alaska, and with the estuary of the great Mackenzie River. In 1728 and 1729, Behring, in his first expe- dition, outlined, somewhat vaguely, the A.siatic coast of Beliring Sea, and practically proved the separation of the Asiatic and American continents. In 1741 Behring's second expedition, which sailed from Okhotsk, resulted in the discovery of the American coast. Unsatisfactcvy as the voyases of Behrin" and Bancroft, Hinory his associate Chcrikof undoubtedly were from a " *' '■ ?■ geographical point of view, it was upon their results that Russia chiefly based her subsequent pretensions to the ownership of the north-western part of North America. Hunters and traders followed Beiiring's lead, and Behring island, and various islands of the Aleutian chain, were visiteJ from the Kam- tchatkan coast. In 1703, Glottof, on a trading voyage, ventured as far east as Kadiak Island. In 1704 to 1708, Syud, a Lieutenant of the Russian navy, made an expedition along the coast to Behring Strait. 174Ji 176& 11 1769. Of the period from 1709 to 1779, Bancroft writes iu bis History of Alaska: — Bancroft, Hittory " From this time to tha visit of Captain Cook, single of Aluko, p. 174. traders and small Companies continued the trafflc with the islands in much the same manner as before, though a general tendency to consolidation was pevceptible." 1774. 1775. ;778. 1779 The extension of Russian influence did not pass unnoticed by Spain, and in 1774 Pe-ez was dispatched from Mexico on a voyage of explora- tion, in which be reached the southern part of Alaska. In 1775, Ueceta, also instructed by the Viceroy of Mexico, explored the coast of America as far north as the 57th or 58th degree of latitude, taking possession of that part of the continent in the name of Spain. In 1778 Captain Oook, sent by the English Government, reached ibe American coast of the North Pacific with two vessels. In pursuance of bis instructions, he explored the coast from about M" of north latitude as far as the region of Prince William Sound and Cook Eiver or Inlet, taking possession of the coasts there. At Cook Inlet he found evidence of Russian trade but no Russians. At Unalaska, one of the Aleutian Islands, be 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 bo explored, and defined the position of the American coast northward as far as Icy Cape, beyond Bebring Strait. Cook was killed in the following winter at the Sandwich Islands, but bis ships, under Clarke, returned in 1779 and made further explorations in Bebring Sea and in the Arctic Ocean. Under this expedition, and for the first time, the main outlines of the north-western part of the Continent of America, and particularly those of the coast about Prince William Sound and Cook Inlet, with the eastern coast of Beliring Sea, were correctly traced. This expedition also opened up the trade by sea in furs from the north-western part of America to China. Cook's surveys still remain in many cases the most authentic ; and these, with other results of the expedition were published in full in 1784. In 1779 another officially acei-cditcd Spanish 12 expedition under Artoaga and Quadra, explored part of the coast northward from about lati- tude 55°, and westward to Mount St. Ellas. In 1783 the first attempt was made, following Cook's discoveries, to establish a Russian trading post on the American mainland, at Prince William Sound. It ended disastrously. Owing to this reverse, for some years only one small vessel was dispatciied from yiuoiia for trading purposes; hut in ITSl, Slielikof visited Unalaska and reached Kadiak Island, with the intention of effecting a permanent occupation there. In 17S5 and 178G, Captain Hanna entered into the trade between the north-west coast of America and China, for which Captain Cook's expedition had shown the way. lie made a second voyage in the following year, but appears to have confined 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 connection with the whole region. The " Captain Cook " and " I.xperimcnt,"from Bombay, traded at Nootka and at Prince William Sound. An English vessel, the " Lark," Captain Peters, Sauer'i tccount of from Bengal v'vX Malacca and Canton, after London',""^.' trading at Petropaulovsk in Kamtchatka, sailed PP' *^^' '"• for Copper Island with the supposed purpose, as alleged, of obtaining a cargo of copper there. She was wrecked on Behring Island. In the same year, 1786, Portlock and Dixon, and Mcares, arrived upon the American coast, and traded and explored far to the northward. These voyages are important, because detailed accounts of both were published, in 1789 and 1790 respectively, while the voyages of other traders have generally not been recorded. Portlock and Dixon, who had sailed from '* * Voyage rennJ London in 1785 in the " King George " and Lo'ndon' 1789°." " Queen Charlotte," in 1786, first visited Cook Inlet, where they found a party of Russians encamped, but with no fixed establishment. Trade was cari'ied on with the natives there, and subsequently at various other places on what is now the Alaskan coast, and several harbours were surveyed. In the following year, Portlock and Dixon returned to the vicinity of Prince 178^. 178B. 1788. ^J 12 A William Sound, where they found Mcares, who had spent the previous winter there. They subsequently called at a number of places on the Alaskan coast, as well as at ports now included in the coast line of British Columbia, making very substantial additions to geographical knowledge. Metrei' Toyafrn Meares sailing from Bengal in the " NcK)tka " " AnnuilRwiitor " ^^''^y *^ ^^^ je&T, reached the Islands of Atka 1790, Tol. xxiii, and Amlia of the Aleutian chain, staying '' ' two days at the last-named island, and holding communication with the natives and Russians found there. He then proceeded eastward along the Aleutian Islands, and was piloted into TJnalaska by a Russian who came off to the ship. He describes the Russian establish- ment as consisting of 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 WiOiam Sound, as above stated. Meares' 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 1799. In 1788, Moares built at Nootka, in the northern part of Vancouver Island, the first vessel ever constructed on the coast of the north-western part of America. She was intended for use in the fur trade, and was appropriately named the " North- West America." Also in 1786 La Perousc, on his voyage round the world, under instructions of the French Government, first made the American land near Mount St. Elias. Thence he sailed eastward and southward, calling at places on the Alaskan coast. At Lituya Bay ho obtained in trade 1,000 f ca-ottcr skins. In the same year the Russian PribylofI discovered the islands in Bcliring Sea, now known by his name. In 1788 a Spanish expedition, in the vessels "Princesa" and "San Carlos," under Martinez and Haro, set out. It visited Prince William Sound, but found no Russians. Haro, however, found a Russian colony at Three Saints, on Kadiak Island. This was the eastt^-rnmost place which had at this time a permanent Russian settlement. The voyagers took possession of [630] D« 12 » TJnalaska for Spain, but afterwards found a Russian post on the island. 1 In the same year, a Russian ressel explored Prince William Sound, Yakutat, and Lituya Bays, all of which had previously been examined by English or French voyagers. In 1788 vessela from the United States first traded on the north-west coast. Upon the conflict of interests at this time along this part of the Alaskan coast, and the rival claims to territory there, Bancroft makes the following remarks : — ' Daneroft, Hiitoiy of the Nortb-w«it Cout, p. ISft. " The events of 1787-88 must have been puzzling to the Bancroft, AluU» natives of Prince William Sound. Englishmen under the P" '®'' English flog, Englishmen under the Portuguese flag, Spaniards and Bussians, were cruizing about, often within a few miles of each other, taking possession, for one nation or the other of all the land in sight." Referring to Billing's Russian scientific ex« ploring expedition, by which several voyages were made from 1787 to 1791 in the Behring Sea region, Bancroft says : — " Tlie geographical results may be set down at next to Bancroft, Alaska, nothing, with the exception of the thorough surveya of P' Captain Bay in Uliuliuk Harbour on TJnalaska 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, liad much to do with the subsequent grant of a monopoly of the trade to the Russian- American Company. In 1789 twelve vessels at least are known to North-weit Coait, have been trading on the north-west coast.* PP- SM-aia. The well-known " Nootka " seizures by the Spaniards occurred in this year. • Very incomplete recorda, and in many catea no records u ■II, exist of the trading voyages mad* to the north-west coast. It is in some cases known that these traders extended their operations to the north of the limit mentioned in the Ukase of 1799, or that of tlie Ukase of I8'21. In other cases the extent of the voyages made is unknown. The traders went, in fact, wherever skins could be purchased, aud, if disappointed or for^ stalled at one pl«cp, at once departed for another. None of these trading-vt'saels were Kuiaian. 12 1790. 1791. 1792 Bueraft, Alukt, p. 873. Ibid., p. 338. Altika, p. 98S. Ibid., p. 974. tbiiL, p. 275. Korth>»nt Coait, pp. 3S0-2S7 Alaili*, p. 344. Villeouver, iii, p. 4N. Aloikt, p. 996. ildX 1794 In 1790 Fidalgo sailed from Nootka, then occupied by Spain, to examine the north-west coast, including Prince William Sound, Cook Inlet, and Kadiak. The trading • vessel " Phoenix," Captain Moore, from the East Indies, was in Prince William Sound in this year. At this time, also, Bussia and Sweden being at war, a Swedish cruizcr visited the Aleutian Islands, but finding no Government establish- ment to attack, and no one but traders living " in object misery," her Commander refrained from disturbing them. In 1791 Malaspina, from Spain, under orders of his Government, visited several places upon what is now the Alaskan coast. Marchand, in the " SoUde," from Frai co, on a voyage of trade and circumnavigation, also visited the coast, and Douglas, in the " Iphigenia," was in Cook Inlet in this year. Besides the above vessels, at least eight trading- vessels are kno^vn to have been on the coast, of which seven were from the United States. In 1792 Caamano, setting out from Nootka, explored Port Bucarelli, in South-eastern Alaska ; and it is reported that in this year fully twenty, eight vessels were upon the coast, at least half of them being engaged in the fur trade. Vancouver gives a list of 21 vessels for the same year, divided as follows : From England, 6; from East Indies, 2; from China, 3; from United States, 7 ; from Portugal, 2 ; from Prance, 1. The "Halcyon," Captain Barclay, visited Pctro- paulovsk for purposes of trade, and a French vessel, " La Flavia," wintered there. In 1793 Vancouver, who had been dispatched by the English Government with the "Dis- covery" and "Chatham" for the purpose of finally deciding the existence or otherwise of a communication between the Pacific and Atlantic, by the exploration of all remaining inlets on the north-west coast, was occupied in surveying operations on what now constitutes the south- eastern Alaskan coast. In 1794) he surveyed Cook Inlet to its head, and Prince William Sound, Eadiak, and the coast extending to Yakutat Bay, were in turn carefully laid down in detail. He ascertained that the easternmost Bussiau Establishment at this time was at Port Etches on Prince William Sound. mmm li: Concerning the Russians here and there met Vaoeoaver, Ui, with, Vancouver " clearly understood that the P- *"• Bussian Government had little to do with these ,.; Settlements; that they were solely under the " J'/-^' direction and support of independent mercantile Companies Not the least attention what- ever is paid to the cultivation of the land or to any other object but that of collecting furs, which is principally done by the Indians." Near Yakutat Bay he fell in with the "Jackal," an English trading-vessel, which was then upon the coast for the third consecutive season ; and further to the south>eastward ho met with the " Arthur," Captain Barber, from Bengal. Vancouver took possession of the coast south- ward from Cross Sound (latitude 58') in the name of Great Britain. The results of his siureys were published in 1798. The names of four trading-vessels on the North-weit CoMt, north-west coast, including the "Jackal," are ''" known for this year. In 1795 a trader, named the " Phoenii," from Ibid, p. S04. Bengal, was on the north-west coast. In 1796 at least three trading-vessels are known Ibid., p. 805. to have been on the north-west coast. In 1797 the names of four trading-vessels on Ibid., p. 806. this coast are knownj but these were probably but a small part of the fleet. ;/ -;<'■- 1795. 1796. 1797. 13 1798. 1799. Nortb-weit C'out, P Bancroft, Alulu, p. 889. Narth-WMt Cout, p. 807. 95. '96. r97. 1798-18'n. AUika, p. ii4. Ibid., p. 198, IblJ., p. S98,'' Ibid., p. 389. In 1708 the names of six traders arc known. In 1799 the "Caroline," Captain Cleveland, from Boston, arrived at Sitka shortly after a Russian post had heen established there. Several other American vessels, among them the brig *' Eliza," imder Captain Rowan, visited Sitka during the summer and absorbed the trade while Russians were preparing to occupy the field in the future. The names of seven vessels trading on the north-west coast are recorded in this year. Nothing approaching to a coirpletc record of the names or nationalities of vessels trading upon this part of the coast in the years about the close of the last century can now be obtained, and, in the absence of explorations of which the results were published, from the time of Vancouver's departure, even incidental allusions to the presence of such traders become rare. That such trade waS:, however, continuously practised is evident from the general complaints made by the Russians as to its effect on their operations, and perhaps the best mode of making this clear is to quote from Bancroft's " History of Alaska " a few allusions to such complainte referring particularly to these years. Writing the enterprises of BaranofE, Governor of Sitka, Bancroft says : — "At every point eastward of Kadiak where he had endeavoured to open trade, he found himself forestalled by English and American ships, which had raibcd the prices of skins almost beyond his Umitcd means." Agaiu, icfoiring specially to the nascent Establishment at Sitka, Baranoff himself writes: — " I thought there would be no danger with proper pro- tection from the larger vessels, though the natives there possess large quantities of fire-.irm8 and all kinds of ammunition, receiving new supplies annually from the English and from the Kepublicans of Boston and A..icrica, whose object is not permanent settlement on these shores, but who have been in the habit of making trading trips to these regiona" On another page Bancroft writes : — " Baranoff's compLiints of foreign encroachment appear to have been well grounded. Within a few leagues of Sitka the captains of three Boston ships secured 2,000 skins, though paying very high prices, each one trying to outbid the other." Further on BaranofT is quoted to the effect that the Americans bad bceu acquainted with the [630] E ■li*. ,.t 14 tribes in this region for two or three years, and sent there annually from six to eight vessels. These vessels from the United States were just beginning to supplant the English traders, who had in earlier years been the more numerous. Once more Bancroft quotes Baranoif as follows : — " The resources of this region are snch that miilions Alukt, p. S39. may be mado there ior our country with proper manage- nent in the future, but for over ten years from six to ten ' agliah and American vessels have called here every year. V is safe to calculate an average of 2,000 skins on eight, jT say six* vessels, which would make 12,000 a-year, and if we even take 10,000 as a minimum, it would amount in ten years to 100,000 skins, which, at the price at Canton of 45 roubles per skin, would amount to 4,500,000 roubles." It will be convenient at this point to consider the circumstances which led up to the Ukase o£ 1799, the terms of that Ukase, and its effect. As early as 1786, the idea had became dominant with Grigor Sholikof, who had lately established the first permanent Russian colony at Kadiak, ofji Company which should hold a monopoly of trade in the Russian possessions on the Pacific, and over all that part of the American Continent to which Russian traders I'esortr.i. Shelikof obtained but a partial success in tiio Charter issued for the United American Company ; but after his death at Irkutsk iu 1793, his ambitious schemes were tal-en up by his son-in-law Rezanof, who succeeded in carrying them to comple- tion, and, in 1799, a Ukase was issued which granted the wished-for exclusive privileges to the new Russian-American Company. Before this time, in 1798, a consolidation of the Shelikof Company with several smaller concerns had been effected under the name of the United American Company ; and at the date of the issuance of the Ukase there were but two rival Companies of importance in the field, the Shelikof or United American Company, and the Lebedef Company, and these engaged in active competi- tion and hostility. Bancroft sums up the situation about 1791 and 1792 in the following words : — " Affairs were assuming a serious aspect. Not only were ibid., pp. 93S the Shelikof men exchidecl from the greater part of the 389- inlet [Cook Inlet], but they were opposed in their advance rjuud I'rinco William Sound, which was also claimed by the Lebedef laotion, though the Orekhof and other Com- pinics wore hunting thora .... 16 Bancroft, AUika, p. 391. Ibid., pp. 802, ;S1, 393. Ibid., p. 901. Ibid., p. 999. "Thus the history of Cook Inlet durinf; the last decade of the eighteenth century is replete witli romantic inci- dents — midnight raids, amhuscades, and open warfare- resembling the doings of mediaeval rauhriiters, rather than the exploits of peaceable traders .... "Robbery and brutal outrages contmued 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 BaranoiF, Oo\ ernor of Sitka, when he took charge of the Shelikof Colony of Eadiak : — " Thus, on every side, rival establishments and traders 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 BaranofT had decided to extend Russian dominion in connection with Company sway." • It was only in the later years of the com- petition hetween the rival Russian Companies that they began to assume hostile attitudes to one another. The growing power of some of them favoured aggression, and the increasing scarcity of the sea-otter, which was already beginning to be felt, accentuated it. At first, and for many years after Behring's initial voyage, the traders from Siberia were suflBciently 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 virtually en- slaved. Not only were the companies of traders under no sufficient or recognized control by the Russian Government, but they even disliked and resented in some measure the advent or presence among them of commissioned officers of the Government. The effect of the reports of the subordinate members of Billings' expedition, as to the unsa- tisfactory state of affairs m the Aleutian Islands and on the .American coast, tended to favour the project of the eF'^ilisliment of a monopoly, by disclosing the abuses which existed by reason of the existing competition. Bancroft more than hints that the superior officers of the expedition 18 D. 808. were induced to keep silence from interested motives; and Billing's Report, whatever its tenour may have been, was never published. In the end, however, it became in a degree imperative for the Russian Government to put a stop to thescandals and abuses which flourished in this remote and scarcely more than nominally controlled portion of the Empire, 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, BaranolT, as the executive head of the new Corporation on i^v. American coast, coming to the front as ire natural leader. When Shelikof presented at St. Petersburg L l original petition for the right to monopolize tht. trade, a Report was asked for on the subject from Jacobi, the (Jovemor-General of Eastern Siberia, and in Jacobi Shelikof found an able advocate. Jacobi 3tated 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 lUd., p. S09. College of Commerce to examine the question, and a Committee of this body endorsed Jacobi's Report and recommended that the request of Shelikof and Golikof for exclusive privileges should be granted. Though, among the arguments naturally ad- vanced in favour of the grant of a monopoly, we find it urged that the benefits of trade accruing would thus bo reserved to Russian sub- jects, the history of the occupation of the coasts and the records concerning it, show conclusively that this object was not that which to any great extent induced Shelikof to apply for such a monopoly, llis Company had the utmost diffi- culty in sustaining its position against hostile natives, while not less serious were the difTicultics arising from the competition, and scarcely veiled hostility of rival Russian traders. The increasing trade by foreigners, together with the numerous exploring and surveying expeditions dispatched 17 to the north-vest coast of America by various Powers, were no doubt distrusted bjr the Bussian traders ; but at the same time these traders were often obliged to depend on such foreigners for support and aj»istance. Nowhere in the annals of the times previous to, and during the operation of the TJkase of 1709, do we find any reference to attempts to interfere with or restrict the operations of foreigners upon the American coasts or in the Aleutian Islands. Even the scientific expeditions of the period were often largely interested in trade as well as in exploration, but all vessels meeting with the ^ P- ♦S'* an English ship (Captain Barber), was pur- chased by Baranoff. Six north-west coast traders are knowii by name for tliis year. In 1808 the United States' vessel " Mercury " Ajuki, pp. 470^ obtained at Kadiak 25 bidarkas, or skin-boots, for hunting and trading to the southward. Four United States' traders are known to have been on the Alaskan coast in 1808 and 1809. 1805. 1804 laor. 480. 1808 1800. D .. 23 181C Ibid.,p 467. Ibid., p. 470. 1811 1812. 1814. Aluka, p. 480. North-wMt Cout, p. 3S9. Altibi p. 009. Aluka, pp. 404, 40ft. 1316. 1816. 1817. North -well Coatt, pp. SSS. Aluki, p. fisa In 1810 the Eussian sloop-of-war "Diana" visited Sitka. There were several United States' vessels in the port at the time. Shortly after the United States' vessels " Enterprise " and "O'Cain" arrived. The "Enterprise" went to Canton with furs. Golovnin, Commander of the " Diana," writes that at this time an American sailor and a Prussian skipper composed the Diplomatic Corps of the Eussian-American Company." In 1810 and 1811 four foreign vessels were engaged in the sea-otter fishery, under Eussian contracts. In 1811 the " Enterprise " returned from and went back to China with furs. The Eoss Colony was founded in California to provide agricultural products for use on the north-west coast. Five vessels engaged in trading and hunting, besides the four vessels under Eussian contracts were seen on the coast of Southern Alaska in this year. In 1812 the United States* ship "Beaver" disposed of her cargo to Baranoff at Sitka, and was then sent to the Fribyloff 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 States) soli two vessels, with cargoes to Baranoff, and took fur-seal skins from the Fribyloff Islands in payment. Lozaref, sent by Eussia, with two ttbips, reached Sitka, but quarrelled with Baranoff and returned. In 1815 the " Isabel " reached Sitk, -ifh Lr. Sheffer on board. In 1816 the "Euric" (Captain Kot.ebue) touched at St. Lawrence Island and e.s:plored Kotzebde Sound, north of Behring Strait. Two United States' vessels visited the E issian Settlements this year. In 1817 Kotzebue, on an exploring expedition to the North, only reachedJSt. Lawrence Islfmd. An expedition in two vessels under Hagemelster, sent by Eussia, reached Sitka. 24 In 1818 Hagemeister superseded Baranoff, IB^^i under instructions. Roquefeuil, a Frenoli officer, Ibid, p. S33, a>5. arriyed at Sitka in the "Bordelais," a trading- Tessel. He sailed for Prince of Wales Archi- pelago, but had a conflict with natives and returned to Sitka. Boquefeuil notes meeting a North-«Mt Cout, United States' and a British trading-yessel in P" •**• Alaskan waters. In 1818 and 1821 unsuccessful expeditions Attempts to discover a north-west passage, were dispatched by the British Government in ... search of a north-west passage from the Atlantic Briunnie*, 9th ed., to the Pacific. These efforts were continued, ^°^- "'• ^- '"• and in 1824 and 1826 Parry, Beechy, and Franklin were actually engaged in the same quest, Beechy having been directed to rendezvous with the others at Behring Strait. These efforts were stimulated by the offer by Parliament of largo pecuniary rewards, 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 ^^^ P- ""• 1819- 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 Eeport was not favour- able. He writes : — "Three things are wanting, in the organi2ation of the Ibid, p. 681. Company's colonies: a clearer definition of the duties belonging to the various oSi&eis, a distinction of rank, and a regular uniform, so that foreigners visiting these parts may see something indicating the existence of forts and troops belonging to the Kussian sceptre — something resembling a regular garrison. At present 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 have Korth-wmt Comi, been operating on the north-west ooast. ''' The extent of Hussian occupation at about the ibid., p. 639. date of the expiry of the first Charter can be shown by the Census taken in 1810, which states the number of Russians as follows :— 1820. 16 For TikhmenielT'B complrte Tables, inclnding natives, Me Appendix. Men. Women. Sitka, or New Archangel 1S8 11 Kodiak and adjuiiiiiig iaiand* 78 liland of Ookomok . . 3 Katmai . . . . 4 Sutkbumokoi . . 8 Vonkrcasenakv Harbour a Fort Conataniine 17 Nikolai, Cook Inlet . . u Alezundrnvak, Cook Inlet 11 Koaa Sittlcmcnt, California 27 Seal labiida .. 27 Nuahaj^ak (the only Settlement on the continent north of the Aleu tian lalanda) 3 3 ToUl 378 13 See alio Adam* to Ruah, July 93, IS33,p 446: American Stale Papen, Foreign ReUtioni, F. O., p. 446, and alio Confi- dential Memnr'al inclotpd in letter, Middleton to Adana, December 1 (13). 1828, p. 449, American Stale Paper*, Foreign Kelationa, P.O. While the subjects of Russia, Spain, Great Britain, and the United Stat<>s were doubtless making claims on the part of their respective countries from time to time, so uncertain were these claims and the merits of each, that in 1818 (20th October), in the Conyention between the United States and Great Britain, it was agreed that any— . " Country that may bs clnimed by either party ou the north-west coast of America, wcstwanl of the Stony Mountains, shiiU, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open for the terra of ten years from the date of the signature of the Convention, to the vessels, citizens, and subjects of the two Powers, it being well understood that this agreenieut is not to be construed to the prejudice of ony claims which either of the two High Contracting Parties may have to any part of the said coimtry, nor shall it be taken to affect the claims of any other Power or State to any part of the said country, the only object of the High Contracting Parties in that respect being to prevent disputes and dilTurcnces between themselves." liussian territorial claim in 1821. United States' Minister at St. Petersburgh. Mr. Adams, Secretary of the United States, contended that even as late as 1823 Russian rights in the region under consideration " were confined to certain islands north of the 66th degree of latitude," and had " no existence in the continent of America." Writing (22nd July, 1823) to Mr. Middleton, Mr. Adams observed : — Hus.sia had no title to any portion of the North American Continent American State Papero, Foreign RelatioDi, toL t, P.4S6. " It does not appear that there ever has been a permanent Bussian Settlement on this continent south of latitude 59°, that of New Archangel, cited by M. Poletica, in latitude 57° 'M', being upon an island. So far as prior disemicry can constitute a foundation of right, the papers [636] H 152906 26 which I have referred to prove tliat it belongs to the United States as far as 59° north, by tho transfer to them of the rights of Spain. There is, however, no part of the globe where the mere fact of discovery c<^uld be held to give weaker claims than on tho north-west coast. ' Tho great sinuosity,' says Humboldt, 'formed by the coast between tho 55th and GOth parallels of latitude, embraces discoveries made by Gali, Bering, and Tcliivikoff, Quadra, Cook, La Perouse, Malospina, and Vancouver. No European nation has yet formed an establishment upon the immense extent ol coast from Cape Jlendocino to the 59th degree of latitude. Beyond that limit the Russian factories comnrence, most of which are scattered and distant from e.ich other like the factories established by the European ni, tions for the last three centuries on the coast of Africa. Most of li;ese little Kussian Colonies communicate with each other only by sea, and the new denominations of Russian-America or Russian possessions in the new contiiient, must not lead us to believe that the coast of Bering Bay, the reninsula of Alaska, or the coimtry of tho Ischugatsclii, have become Rus.sian provinces in the same sense given to the word when speaking of the Spanish Provinces of Sonora, or Now Biscay.' (Humboldt's •' New Spain," vol. ii, Book 3, chap. 8, p. 49G.) "In M. rdctica's letter of the 28lli February, 1822, to me, he says that when tho Emperor Paul I granted to the present American Company its first Charter in 1799, he gave it tho exclusive possession of tlio north-west coast of America, which belonged to Russia, from the 5uth degree of north latitude, to Boring Strait. " In his letter of 2nd April, 1822, he says that the Charter to tho Ru.^Jian-American Company in 1799, W04 merely conceding to them a part of tlio sovereignty, or rather certain exclusive privileges of commerce. " This is tho most correct view of the subject. The Emperor Paul granted to tho Russian-American Company certain exclusive privileges of commerce — exclusive with reference to otlier Russian subjects ; but Rus.siu hud never before asserted a right of sovereignty over any part of the North American continent ; and in 1799 tho people of the United States had been at least for twelve years in the constant and uninterrupted enjoyment of a prolit.ible trade with the natives of that very coast, of which the Ukaso of the Emperor Paul could not deprive them." The Hcnourable Charles Sumner, Rpo.-ikin!? on tlio occasion of the Cession of Alaska to tho United States, in 1807, said : — "It seems thrt there were various small Companies, of Ex. Doc. 177, which that at Ka. k was the most considerable, all of 2'"' Sum., 40ih wliich were Hnallv fv ed into one large trading Company, ige'rleg' kuov-n as t le 1, . i-American Company, which was organized ii 17 i9, under a Charter from tlio Emperor Paul, vitii ►hv, ^ vet of administration throughout tho wliole re,;iui u. eluding tbc coasts find the islands. In this respect it was not unlike the East India Company, 27 which has playeii snch a part in English history ; bnt it may lio i.iore psoperly compDxed with the Hudson Bay Company, of which it was a Russian counterpart. The Charter was for a term of years, but it iuis been from time to tuuu extended, and, as I understand, is now on the point of expiring. The powers of the Company are ficutentioiisly described by the ' Almanach do Gotlia ' for 1867, where, under the head of Kussiu, it says that ' to the pn,acut time Russian America has been the property of a Com.})any! " And, referring to as late a period as 1867, he remarked : — " It is evident that these Russian Settlements, distributed through an immense region and far from any civilized neijrhbouvhood, have little in common with thos'! of European nations elsewhere, unless we except those of Denmark, on the west coast of Greenland. Nearly all are on the coast or the islands. They are nothing but ' viUoges ' or ' factories ' under the protection of palisades. Sitk.a is an exception, due unquestionably to its selection as the head-quarters of the Government, and also to the eminent character of the Governors who have made it their home." Appendix I. Anials X^'III, North Americin Biiviaw, Tol. XT, Qnartffly Review, 16'Jl-38, vol. xxTi, 9' Bincrcft, Historjr uf Alaska, p. 6i)l. Touching Russia's claims to exclusive juris- diction over more than certain islands in the Pacilic Ocean on the American coast, Mr. Adams, moroc'Ter, in 1823 brought forward, with approval, articles which a geared in " The North American Revi3W," published in the United States, and in the " Quarterly Review," published iiK England. The facts stated in these articles show the grounds upon which the Governmeu* of the United States considered theniselves justified in the contention advanced by Mr. Adams, that " the rights of discovery, of occupancy, of un- contested possession," alleged by Russia, were " al without foundation in fact," as late as the year 1823. Again referring to the circumstances in the year 1867, or tliat of the Cession of Alaska to the United States, its historian I5ancroft writes : — " Moreover, Russia )iad nin'cr occupied, and never wished to occupy, this teiTitory. For two-tliird>i of a eent.ury shii liiul been rcpri'scMited there, n.s \v(3 liavo cuen, ulruost. entirely by a fur and trading (Jnmpimy uiidcu' the protection of Govenimont. In a measure it had cou- trollod, or ondeavoiircd In coutiol, tlie ullairs of tlmt (mhu jMiiy, and among its atookliol.lers were several members of t)>e IhiyvX Family ; but AIikU.i had hww origiimlly granted to the Russiun-American Company by Imperial Ouka/, and by Imperial Oukaz the Charter had been 28 twice renewed. Wow that the Company had declined to- accept a fourth Charter on the terms proposed, something must be done with the territory, and Eussia would lose no actual portion of her Empire in ceding it to a Itepublic with which she was on friendly terms, and whose domain seemed destined to spread over the entire continent." Tlio foregoing historical summary establishes that from the earliest periods of which any record exists down to tho year 1821, there is no evidence that Russia either asserted or exercised any rights to the exclusion of other nations. During the whole of that period tho shores of America and Asia as far as Behring Straits, and the "•■iters lying bctAveen those coasts, as well as the islands tlierein, were freely visited by tlio trading- vessels of all nations, including those sailing under tho flags of Great Britain, United State?, Spnin, and Trance, with tho knowledge of the Russian authorities. The only rights, ia fact, exercised by Russia or on her behalf were the ordinary terri- torial riglits connected with Settlements or annexations of territory consequent uj)on such Settlements, and the only rights she purported to deal with or confer were rights and privileges given to tho Russian-American Company, an being Russian subjects, in preference over <>Ui(M' Russian subjects. « Ghafteb II. Vojtge, H. de Kruienalem, ToL i, p. 14, No. 384, p. 454. American Sttte Ptpen, ForeifiD Relations, vol. v. American State Papere, vol. t, pp. 438-44S. Bancroft, AUeka, p. S98. ' Tikhmenief," IiUr. Oboi. I, cited in note to Bancroft, p. 532. See aUo Bancroft, vol. xxxiii, p. 446; ReienoPi com- plaint in 1806. ITkase of Alexander, 1821. For Regulations, tee Appendii. Head B. — The Ukase of 1821, and the ctVcum- stances connected therewith leading up to the Treaties of 1824 and 1825. Shortly before the date of the renewal of the Charter of the Eussian- 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 Kiachta on the Amoor. Domestic competition had in fact ceased, and the most serious drawback to the success of the Company consisted in the competition from abroad. The difficulties resulting to the Company on account of foreign competition appear pro- minently in the complaints made by its agents at this time, and the new claim of the right to exclude foreigners from trade is embodied in 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 tht "jRiusias. "The Directing Senate maketh known to all men: Whereas, in an tdict of His Iniperiiil Majesty, issued to the Directing Senate on the 4th day of .Seiitomber [1821], and signed by His Imperial Mtyesty'a own hanil, it ia thus expressed : — "'Olwcrving from Reports submitted to us that the trade of our subjocta on llie Aleutian Islands and on the north-west const of America appertaining unto Russia is subjected, bet.iuso of secret and illicit trallic, to oppression and impediments, and finding that the principal cause of these diiricnllics is the want of Rules cstablisliing the boundiuieH for navigation along tl.'sn 'ciaats, and the order of navnl comraunicatiou, as well iu tiieso places as on the [•301 I 80 whole of the eastern coaat of Siberia and the Eurile Islands, we have deemed it necessary to detonnine these communications by specific Begulations, which are hereto attached. "'In forwarding these Regulations to the Directing Senate, we commiind that the same be published for univeT8-\l information, and that the proper measures be taken to carry them into execution. (Countersigned) '"Count dk Oumep, "' Minister of Finaiuts. " ' It is therefore decreed by the Directing Senate that His Imperial Majesty's Edict be published for the infor- mation of all men, and that the same be obeyed by all whom it may concern.' (L.S.) " The original i» ni);n«d by tlie Directinf; Senate, On tlie original in written in tl.e handwriting of Hit Imperial Mojcityi thus: Be it accordingly, Alexandir. "Rules established for the Limits of Navigation and Order of Communication along tlie Coast of the Eastern Siberia, ti\: North-west Coast of America, and the Aleutian, Kurile, and other Islands. " ' Section 1. The pursuits of commerce, whaling, and Set Appendix, fishery, and of all other industry, on all islands, ports, and gulfs, iucluding the whole of the north-west coast of America, beginning from Behring Straits to the 51st of northern latitude ; also from the Aleutian Islands to the eastern coast of Siberia, as w.^ll as along the Kurile Islands, from Behring Straits to the south cape of the Island of Unip, viz., to the 45° 50' northern latitude, is exclusively granted to Kussian subjects. " ' Section 2. It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Bussia, as stated above, but also to approach them within less than 100 Italian miles. The transgressor's vessel is subject to confiscation, along with the whole caigo.' " By this Ukase Eussia first attempted to assert, Banerofk, ssi as against other nations, exclusive jurisdiction "P* "**' (*8*8)» or rights over the shores of America and Asia bounding the Pacific Ocean, certain islands therein, and over a portion of the Pacific Ocean including what is now known as Behring Sea. The purpose of the Ukase, so far as the Baron Nieolai to attempted exclusion of foreigners from 100 miles to^'he^ja^^^e'effa'^' of the coasts, from 51° north latitude to Behring October 31 Strait is concerned, is explained by Baron de igaj*" *' Nieolai in his note to Lord Londonderry, the 81st October (12th November), 1821. >1 He insists that tho operations of " smugglers " and " adventurers " on the coast — " Have for their object not ouly a fraudulent commerce in furs and otlier articles which are exclusively reserved to the Russian-American Company, but it appears that they often betray a hostile tendency. " It was," ho continues, " therefore necessary to take severe measures against these intrigues, and to protect the Company against the considerable injury that resulted, and t( was with that end in view that the annexed licgulation has been published." And again : — "The Government, however, limited itself, as can be seen by tho newly-published Regulation, to forbidding all foreign vessels not only to land ou the Settlements of the American Company and on the peninsula of Kamtchatka and the coasts of the Okhotsk Sea, but also to sail along the coast of these possessions, and, as a rule, to approach them within 100 Italian miles." The justification for the TJkaso, and the Regu- lations made thereunder, is stated on the face of the Ukaso in the words : — " And finding that the principal cause of these difficulties [t.e., impediments caused by 'secret and illicit traffic'] is want of Rules establishing the boundaries fur navigation along these coasts." That the object of the Ukaso was to extend territo iul jurisdiction over the north-west coast and islands and to prohibit the trade of foreigners, rather than to protect any existing or prospective fishery is further indicated by No. 70 of the Regulations of the Russian- American Company. This Regulation reads : — " 70. A ship of war, after visiting, not only the Com- pany's Settlements, but also, ami more particularly, the channels which foreign merchant-vessels are likely to frequent for the purpose of illicit trading vAlh the natives, will return to winter wherever t}\e Government orders it." So Rule 20 of the " Rules established for the limits of navigation and order of communication along the coast of the Eastern Siberia, tho north- west coast of America, and the Aleutian, Kurile, and other islands," approved by tlie Emperor on the 4th September, 1821, shows that trading vessels were alone in view when the Ukase of 1821 was issued, as it gives a form of information to be given by every foreign ship boarded in the harbour or in tho reals. This form rofen only to cargo vessels. The motive and purpose of this Ukase is Poletle* to Ad«M, further explained by the letter of M. de Poletlca, ^ ' Russian Minister at Washington, dated the 28th February, 1822. in which he defines the mi.m, if not the sole object which prompted it. That EuBsia's aim was to acquire a vast North American Territory appears by the construction put by M. de Poletica on the Ukase of the Emperor Paul, and the grant to the Russian- American Company of a territorial concession down to the 56th degree of latitude, and by his justification of its further extension to the 51st degree. He proceeds to defend the policy of exclusion Poltiic« to Adimi, contained in the Ukase of 1821 by explaining that, ^'^"^^ ^^' '"'" as Russian possessions extend from Bchring Strait to the 51st degree north latitude on tlie north> west coast of America, and on the opposite side of Asia and the islands adjacent to the 45th degree, the sea within those limits, viz., that part of the Pacific Ocean, was a close sea, over which Russia might exercise exclusive jurisdiction, but he goes on to say that Russia preferred asserting only its essential right without "taking any advantage of localidcs," and on these grounds the limit of 100 Italian miles is justified. The measure he declares to be directed : — " Against tbo culpable entei-prises of foreign adventurers, who, not content with exercising upon the coast above mentioned an illicit trade, very prejudicial to the rights reserved entirely to the Kussian-Anierican Company, take upon them besides to furnish arms and ammunition to the natives in the Eussian possessions in America, inciting them likewise in every manner to resist and revolt against the autliotitios there established." The object of the Ukase is further most explicitly stated in the following passage, taken from a Memorandum of the Russian Govern- ment : — "The Cabinet of Russia has taken into mature con- Confldentiil Mem*- sideration the Confidential Memorandum forwarded to ">'»''«'> incloicd In them by the Duke of Wellington on the 17th October last, WeUinirton to relative to the measures adopted by His Majesty the (>> Canning, Emperor, under date of the 4th (ICth) September, 1821, ^glt'"^" **' for delining the extent of the Russian possessions on the north-west const of America, and for forbidding foreign vessels to approach his possessions within a distance of 100 Italian miles. ". . . . It was, on the contrary, because she regarded those rights of sovereignty as legitimate, and because 88 Tbc protMt of thu Britiah GoTera- miDt. See Appendix. imperious considomtions involvinj} the very existence d the commorco which she carries on in the rcgioii.s of the north-west coast of America compelled lior to establish » system of precautions which became indispensaljlo that she caused the Ukoso of the 4th (lUth) 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 n'ljlits in any way if it be not accepted) that lie is romly to tix, by means ut friendly negotiation, and on the basis of mutual accoiumoJation, the degrees of latitude and longitude which tlie two Powers shall regard as the utmost limit of theii possessions and of their establishments on tlio north-west coast of America. " His Imperial Majesty is pleased to believe that this negotiation can bo completed witliout difficulty to the mutual satisfaction of the two States ; and the Cabinet of Russia can from this moment a.«isure the Duke of Wellington that the measures of precaution and super- vision which will then be taken on the Itussiac part of the coast of America will bo entirely in conformity with the riglits derived from rovereignty, and with the established customs of nations, and that tliore will bo no possibility of legitimate cause of comi)laiut against them." Upon receiving communication of the Ukase, tho British and United States' Governments immediately objected both totbo extension of the territorial claim and to tho assertion of maritime jurisdiction. Protest of Great Britain. Tho U!.ase was brought to tho notice of Lord Londonderry, Secretary of State for rorcign Affairs for Great Britain, the 12th November, 1821, by Baron de Nicolai, then Russian Cliarg^ d' Affaires, as connected with tho territorial rights of the Russian Crown on the north-west coast of America, and with the commerce and navigation of the Emperor's subjects in the seas adjacent thereto. On the 18th January, 1822, four months after the issue of tho Ukase, Lord Londonderry, then British Foreign Secretary, wrote in the f ''owing terms to Count Lievcn, tho Russian AmL., -sador in London : — " In tho meantime, upon the subject of this Ukase generally, and especiidly upon the two main principles of claim laid down therein, viz., an exclusire sovereignty alleged to belong to llussia over the tenitories therein described, as also the exclusive rujhtof navigating and trading within the maritime limits therein set furth. His liritunnio Majesty must bo understood as herehy reserving all his L630] K 84 rights, not being prepared to admit that the intercourse which is allowed on the face of this instrument to have • - s hitherto subsisted on those coasts and in those seas can be deemed to be illicit, or that the ships of friendly Powers, even supposing an unqualified sok'eroignty was proved to appertain to tiie Imperial Crown in these vast and very imperfectly occupied territories, could, by the acknowledged law of nations, be exchuhd from nav-.gating within the distance of 100 Italian miles, as therein laid . ; down from the coast, tlie exclusive dominion of which ia Lssumcd (but as His Majesty's Government conceive in error) to belong to Ilis Imperial Majesty the Emperor of AU the Russias." The Duke of AVcllington having been appointed Se* Apptndix. British Pleniiiotentisry at the Congress of Verona, Mr. G. Canning addressed to him, on the 27th September, 1822, a dcspatcli in wliieh ho dealt with tlie claim in the Ukase for the extension of territorial rights over adjacent seas to the distance — " unprecedented distance," he terms it — of lOO miles from the coast, and of closing "a hitherto unobstructed passage." In this despatch Mr. Canning says: — " I havo, indeed, the satisfaction to believe, from a con- Abandonment of claim to eztraoidinary juris- ference wliicli I have had with Count Lieven on this diction, matter, that upon these two points, — the attempt to shut up the passage altogether, and the claim of exclusive dominion to so enornious a distance from tVio coast, — the Taissian Ooveriinient avo prepared entirely to waive their pretensions. The only effo-t tliat has been made to justify the latter claim was by reference to an Article in the Treaty of Utreclit, which assigns 30 leagues from the coast as the distiinoc of prohiliition. But to tliis argument it is sullicient to answer, that th . 5suniption of such a space was, ir the instance quoted, by stipulation in a Treaty, and one to which, tliercfore, the jiarty to be affected by it liad (whetlier wisely or not) given its deliberate consent. No inference coidd be e [ defined ns livlunging to liiissia as shall not interfere with the ri;^hts and actmil iiossessionu of Ilia Majesty's subjects * in Nortli America " On the I7(li Ovi.iber in the same year, the Duke of \Vcllii)gtou, at Verona, addressed to 85 U Pee Appendix. Sec Appendix. Ukaae, 1821, abaDdoned. Sm as to tuapenilon of Ukaae and rotriction to one mftrine league; Count Nesielrodo to Count Lieten, June 36, 1833, Appendix, Count NcssDlrode, the Russian Plenipotentiary at the Congress, a Confidential Memorandum con- taining the following words : — "Objecting, as we do, to this claim of exclusive sovereignty on tlio part of Russia, I might save myself the trouble of disciLssing the particular mode of its exercise aa set forth in this Ukase, but we object to the mode in which the sovereignty is proposed to bo exercised under this Ukase, not loss than we do to the claim of it. We cannot admit liu rii/ht of any Power pjiscssin'j the soocreignty of a country to exclude the vessels nf otlurs from the seas on its coasts to the distance of 100 Italian miles" Again, on the 28th November, 1822, the Duke of Wellington addressed a note to Count Lieven, containing the following words : — " The second ground on whicli wo object to the Ukase is that His Imperial Majesty thereby excludes from a certain considerable extont of the open sea vessels of other nations. We contend that the assumption of this power is contrary to the law of nations, and we cannot found a negotiation upon a paper in which it is again broadly asserted. We contend that no Power wliatevcr can exclude another from the use of the open sea. A Power can exclude itself from the navigation of a certain coast, sea, &c., by its own act or engagement, but it cannot by right be excluded by another. This we consider as the la>v of nations, and we cannot negotiate upon a paper in which a right is assorted inconsistent with this principle." At an early date in the course of the negotia- tions with the United States and with Great Britain the execution the of Ukase beyoad the territorial limit of 3 miles was suspended. Indeed, as far as the waters of Uehring Sea are concerned, it may safely be said that it never was put into practical execution beyond this limit. The note from Count Nesselrode to Mr. Middloto'.i ou (he subject ivas dated the 1st August, 1822, and is tlius alluded to by Mr. Middleton in a despatch to ilr. Adams of the 19th September, 1823 :— "Upon .Sir Cliarles [Dagot] expressing his wish to bo informed respecting tlio actual state of the north-west q\iPstion between tlie United Stati's and Pai.ssin, so far as it might Ih) known to me, I saw no objection to making a confidential communitation to him of the note of Count Nessclrodi', dated the Ist August, 1822, l)y whitli, iu fact, staying the executi >n of tlie Ukase above mentioned, IJussia has virtually abandoned the protonsion.s therein advanced." For deipalch, )o remarked, in return, that the circumstances under which this additional security is required will bo new also. " By the terntorial demarcation pgreed to in this 'projet,' Russia will become posseased, in acknowledged sovereignty of both sides, of Kelirini; Straits. " The Power whicli oould think of making the Pacific a mare clausum may not unnaturally be supposed capable of a disposition to apjdy the same character to a strait comprehended l>etween two shores of which it l>i!Comes the uudisputetl owner ; but the shutting up of Behring Straits, or the power to shut them up hereafter, would be a thing not to be tolerated by England. " Xor could we submit to be excluded, eitlier positively or constructively, from a sea in which the skill and science of our seamen has been and is still employed in enterprises interesting not to this country alone, but to the whole civilized world. " The protection given by the Convention to the American coasts of each Power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic teiTitory ; but in some way or other, if not in the form now prescribed, the free navigation of Behring Straits and of the seas l)eyond them must be secured to us." Mr. Goorgc Canning in n. despatch to Mr. Stratford Canning, who had boon appointed British I'loiiii)otentiary for the negotiation of a Convention at St. Petershurg, under date the 8tli Decemher, 1821!, after giving a summary of tlio ncgotuitions up to that date, goes ou to say : — " It is comparatively indiflerent to us whether we liasten or postpone all questions respecting the hmits ol territorial [oao] L 88 possession on the continent of America, but the preten- sions of the Ilussiau Ukase of 1821 to oxclusivo dominion over the Pacific could not continue longer unrepealed without compelling us to ti\ko some measure of public and effectual remonstrance against it. " You will tliereforo take care, in the first instance, to repress any attempt to give this change to the character of the negotiation, and will declare without reserve that the point to which alone the ?olicitudo of the liritish Government and the jeclouay of the British nation attach any great importance is the doing away (in a manner as little disagreeable to liussia as possible) of the effect of the Ukase ot 1821. Writing to Mr. S. Canning in 182'li (8th Decem- ber), Mr. O. Canning remarks : — " That this Ukase is not acted upon, and that instruc- As to •uipcniioD tions have been long ago sent by tht, Uussian Government "f Uk««i, lee Ly»ll to their cruizers in the Pacific to suspend the execution of Contniliim to its provisions, is true ; but a privote disavowal of a Lya!I, Navenibcr published claim is no security against the revival of tliat '"'°' "PP'^" '*• claim. The suspension of the execution of a principle may be perfectly compati'ile with the continued maiu- tenonce of the principle itself, and when wo have seen in the course of this negotiation that the Russian claim to the possession of the coast of America down to latitude 59° rests in fact on no other ground than the jiresumed acquiescence of the nations of Europe in tlie provisions of an Ukase published by the Kmperor Paul in the year 1799, against wliiuli it is alKrmem the sbore, beyond the ordinary distance to which the territorial jurisdiction extendi, has excited still greater surprise. " This Ordinance affects so deeply the rights of the United States and of their citizens, that I am instructed to inquire whuther you are authorized to give explanations of the grounds of right, upon principles generally recognized by the laws and usages of nations, which can warrant the claims and Begulations contained in it. " I avail, &c. (Signed) "John Quinct Adams." It will be observed that both the Ukase and the protest apply to the waters from Behring Strait southward as far as the 5l8t degree of latitude on the coast of America. On the 28th of the same month the Russian Russian defence of Ukaaei Representative replied at length, defending the territorial claim on grounds of discovery, first mj.. j. q. Adams occupation, and undisturbed possession, and F!,''?J]JJ''Z '^ ,'*'* explaining the motive " which determined the iwn reltting to Imperial Government to prohibit foreign vessels pfih""'**!. from approaching the north-west coast of America belonging to Russia, within the distance of at least 100 Italian miles." Further on he observed : — " I ought, in the lost place, to request you to consider, Ukaia bated on Sir, that the Russian possessions in the Pacific Oceua dootriae of war* extend, on the north-west coast of America, from Behring Strait to the 51st degree of north latitude, and on the opposite side of Asia and the islands adjacent, from the same strait to the 45th degree. The extent of sea of which these possessions form the limits comprehends all the conditions which are ordinarUy attached to Bhut seat (" mers fermdes "), and the Russian Oovemmenc might consequently judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred only asserting its essential rights, without taking any advantage of localities." To this Mr. Adams replied (30th March, 1822). Ho said : — " This pretension is to be considered not only with For tlie letter of reference to the question of territorial right, but also to Maroh SO, 1819, that prohibition to the vessels of other nations, including '** ''~ those of the United States, to approach witliin 100 Italian miles of the coasU. Kroin the period of the existence of the United States as an independent nation, their vessels have freely navigated those seas, and the right to navigate them is a part of that independence. r 41 "With regud to the suggestion that the Russian Government might have justified the exercise of sove- feignty over the Pacific Ocean as a close sea, because it claims territory both on its American and Asiatic shores, it may su£Qce to say that the distance from shore to shore on this sea, in latitude 61° north, is not less than 90° of longitude, or 4,000 miles." I The Bossian Bepresentatiro replied to this note on the 2nd April following, and in the course of hia letter he said : — M. da Poletica to Mr. J. Q. Adtmi, April S, 1833. " In the same manner the great extent of the Pacific Ocean at the 61st degree of latitude can not invalidate the right which Russia may have of considering that part of the ocean as close. But as the Imperial (Government has ' not thought fit to take advantage of that right, all further I discussion on this subject would be idle. " As to the right claimed for the citizens of the United States of trading with the natives of the country of the north-west coast of America, without the limits of the jurisdiction belonging to Russia, the Imperial Government will not certainly think of limiting it, and still less of See Chapter I, Head (A), as to user by United attacking it there. But I cannot dissemble. Sir, that this States vessels in trade north of latitude 51°. ganie trade beyond the 51st. degree will meet with difficulties and inconveniences, for which the American owners will only have to accuse their own imprudence after the publicity which has been given to the measures taken by the Imperial Government for maintaining the ri^ ts of the Russian- American Company in their absolute integrity. "I shall not finish this letter, without repeating to you, Sir, the very positive assurance which I have already had the honour once of expressing to you that in every case where the American Government shall judge it necessary to make explanations to that of the Emperor, the President of the United States may rest assured that these explana- tions will always be attended to by the Emperor, my august Sovereign, with the most friendly and consequently the most conciliatory, dispositions." Fur letter in full, •ee Appeodii. On the 22nd July, 1823, Mr. Adams wrote to Mr. Middleton, the United States' Minister at St. Petersburg, as follows : — " From the tenour of the Ukase, the pretentions of the Imperial Government extend to an exclusive territorial jurisdiction from the 45th degree of north latitude, on the Asiatic coast, to the latitude of 51 north on the western coast of the American Continent; and they assume the right of interdicting the nax'igation 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. Their right of navigation and of fishing is perfect, and has b'aen in constant exercise from the earliest times, at'tor the Peace of 1783, tliroughout the whole extent of the [03G] M i-[.»'/.*^gSW< ^'W I ) *i JM' *a^** »E >W9'Wlt-"-*& IMA- m ipAce of ten monthi from the dat« below, or sooner if poMible.'' " In faith whereof the rcapective I'lenii)oton' ^ariea h»?e dgncd this Convention, and thereto afHicd tlie teala of their arm*. " Done at St. Petenburgh the Sth (17th) April in the year of Grace 1824. (LS.) " Henry Miduleton. (L8.) " Le C'dDite C. Dk KesselboSI (LS.) " I'lMBK Uk Poletica." Convrntion between Creni Britain and Ruttia. '![hr> "•jgotiations between Great Britain and RuRsia 'Itod in the Convention of the 18th Februan , 1820. Tbr Toiiowing is the English translation of this f -> Tentio^ ; — •ARTICLE I. " It is "Teed that the respective subjects of the Hig^ ic' -u:ting iarties shall not bo troubled or molested ill any i irt of the ocean, commonly called Uie Pacific Uoean, eith'" m navigating the same or fishing therein, or in landing at such parts of iho coast as shall not have t'cen already occnpied, in ordi. : t" 'r- ie with the natives, under the restrictions and conditions 8p<":ified in the fol- lowing Articles. "ARTICLE II. "In order to prevent the right of navigating and fishing exercised upon the oceau by the (subjects of the High Contracting Parties, from becoming the pretext for an illicit commerce, it is agreed that the subjects of His Britannic Majesty shall not land at any place where there may be a Russian establishment without the permission of the Governor or Commandant; and, on the other hand, that Russian subjects sliall not land without permission at any British establishment on the north-west coast. " ARTICLE in. "The line of demarcation between the possessinni of the High Contracting Parties upon the coast of the continent and the islands of America to the north-west, shall be drawn in the manner following : — " Commencing from the southernmost part of the island called Prince of Wales' Island, which point lies in the parallel of SI" 40' north latitude, and between the 131st and the 133rd degree of west longitude (meridian of Greenwich), the said line shall ascend to the north along t^,. channel called Portland Channel, as far aa the point of t?io continent where it strikes the 56th degree of north latitude; from this 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 141at degree of west longitude (of the same meridian) ; and, finally, from the said point of intersection, and the said meridian-line of the 141st degree, iu its pro- bingation as far as the Frozen Ocean, shall form the limit [686] M* mmi^m 44b between the Sossian and British 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 Kussia. " 2nd. That wherever the summit of the mountains which extend in a direction parallel to the coast, from the 66tii degree of north latitude to the point of intersection of tho 141st degree of west longitude, shall prove to be at the distance of more than 10 marine leagues froti the ocean, the limit between the British possessions and tiie line of coast which is to belong to Bussia, as above mentioned, shall be funned by a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom. "AKTICLE V. "It ia moreover agreed that no establishment shall be formed by either of the two parties within the limits assigned by the two preceding Articles to the possessions of the other; consequently British subjects shall cot form any establishment either upon the coast or upon the bordor of the continent comprised within the limits of the Russian possessions, as designated in the two preceding Articles ; and, in like manner, no establishment shall be formed by Russian subjects beyond the said limits. "ARTICLE VL "It is understood that the subjects of His Britannic Majesty, from wliatever 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 tlie line of coast described in Aiticle III of the present Convention. "ARTICLE VIL " It is also understood that, for the space of ten years from the signature of the pre.sent Convention, the vessels of the two Powers, or those belonging a tUair respective subjects, shall mutually bo at liberty to frequent, without any hindrance wliatever, all tho inland seas, the gulfs, havens, nud creeks on the coast mentioned in Article III, for the purposes of fishing and of trailing with the natives." "ARTICLE Vin. " The port of Sitka, or Novo Archangelsk, shall be open to the commerce and vessels of British subjects for the space of ton years from the date of the exchango of tba ratificatioris of the present Convention. In the event of on extension of this term of ten years being granted to any other Power, the like eztansion shall be granted also to Oreat Britain. - « t 45 "AETICLE IX. "The above-meationed liberty of commerce shall not apply to the trade in spirituous liquors, in fire-arms, or other arms, gunpowder, or other warlike stores ; the High Contracting Parties reciprocally engaging not to permit the above-mentioned articles to be Kold or delivered, in any manner whatever, to the natives of the country. « AETICLE X. " Every British or Bussian vessel navigating the Pacific Ocean which may be compelled by storms or by accident to take shelter in the 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. In case, how- ever, the master of such vessel should be under the neces- sity of disposing of a part of his merchandize in order to defray his expenses, he shall conform himself to the RegiUations and Tariffs of the place where he may have lauded. "AETICLE XL " In every case of complaint on account of an infraction of the Articles of the present Convention, the civil and militaiy authorities of the High Contracting Parties, with- out pieviously acting or taking any forcible measure, shall make an exact and circumstantial report of the matter to their respective Courts, 'n^ho engage to settle the same in t friendly manner and 'according to the principles of justica "AiiTlCm XIL "The present Convention shall be ratified, and the ratifcations shall bo exchanged at London within the space of six weeks, or sooner if possible. " In witness whereof the respective Plenipotentiaries have signed the some and have afiixed thereto the seal of their arms. "Done at St Petersburgh Uie 16th (28th) day of February, In the year of our Lord One thousand eight hundred and twenty-five. (LS.) "Stratfobd Cannino. (LS.) " Tho Count De Nessblkodb. (LS.) " PlEBBB DB POUTICA." Oontemporary venliona, interpretations of the Con- 8m Appendix. Mr. Stratford Canning to Mr. G. Canning, in his despatch of the Ist March, 1825, inclosing the Convention as signed, says : — " With respect to fieliring Straits, I am happy to have it in my power to assure you, on the joint authority of the Russian Plenipotentiaries, that the Emperor of Raa-aa has no intention whatever of maintaining any exclusive claim to the navigation of those straits, or of the seas to the north of them." [636] N ppaiiilPHimi "■i mm 4« Mr. 8. Canning, in a further despatch to Mr. G. Canning, 3rd (15th) April, 1826, said:— "... With respect to the right of fishing, no ezplano- Sm Appradii. tion whatever took place between the Plenipotentiaries and myself in the course of our negotiations. As no objection wns started by them to the Article which I offered in obedience to your instructions, I thought it unadvisable to raise a discussion on the question ; and the distance from the coast at wliich the right of fishing is t& 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, jaintly with the Court of fiussia, in some ostensible shape, I broached the matter anew to Count Neiselrode, amV suggested that he should authorize Count Lieven, on your invitation, to exchange notes with you declaratory of the law as fixing the distance at 1 marine league from the shore. Count Nesselrode replied that he should feel em- barrassed in submitting this suggestion to the Emperor just at the moment when the ratifications of tlie Conven- tion were on the point of being dispatched to London ; and ha seemed exceedingly desirous that nothing should happen to retard the accomplishment of that essential formality. He assured me at the same time that his Government would be content, in executing the Conven- tion, to abide by the recognized law of nations ; and that, if any question should hereafter be raised upon the subject, he should not refuse to join in making the suggested declaration, on being satisfied that the general nile under the law of nations was such as we suppoied. "Having no authority to press the point in question, I took the assurance thus given by Count Kesselrode as sufficient, in all probability, to answer every national purpose. . . " In reference to the Convention of 1824(, United St«t«i' Wharton, in his "Digest of the International Ru'sS^American Law of the United States of America," section 169, Treaty. Tol. ii, p. 220, cites President Monroe's commu- nication to Mr. Madison on the 2nd August, 1824,, to the effect tho*— "By this Convention the claim to the mare clavtum ia given up, a very liigh northern lotitude is established for our bouiidnry T...h Eussia, and our trade with the Indiana placed for ten years on a perfectly free footing, and after that term left open for negotiation, . . . England will, of course, liave a similar stipulation in favour of the free navigation of the I'acific, but we shall have the cradit of having taken the lead in the affair. Tbo claiui of Russia attracted much attention. iWfJflSH" The Ukase never enforced. See letter of B. Canning to G. Caimini;, Apiil 23, 1833. St the time. Monroe: — 47 Mr. Madison wrote to President " The Convention with Russia is a propitions event, as substituting amicable adjustment for the risk of hostile oollisiou. But I give the Emperor little credit, however, for his assent to the principle of ' mare liberum ' in the Korth Pacific. Bia pretensions were so absurd and so disgusting to the maritime world, that he could not do better than retreat from them through the form of nego- tiation. It is well that the cautious, if not courteous, policy of England towards Russia has had the effect of making us, in the public eye, the leading Power in arresting her expansive ambition." 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 royage from Boston to Sitka. The circumstances of this case are stated in the next Chapter. It is sufficient for the present purpose to note that the United States at once protested, the " Pearl " was released and compensation paid for her arrest and detention. This is believed to be the 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. It is submitted that the facts disclosed in this Chapter show that the Ukase of the Emperor Paul in the year 1821':— the first and only attempt on the part of Russia io assert dominion over, and restrict the rights of other nations in, the non-territorial waters ot' fiehring Sea, and other parts of the North Pacific — was made the subject of immediate and emphatic protest by Qreat Britain and the United States of America ; that Russia thereupon unequivocally withdrew her claims to such exclusive dominion and right of control ; and that the Conventions of 1824 and 1825 declared and recognized the rights of the subjects of Great Britain and the United States to navigate and fish in all parts of the non- territorial waters with which the Ukase proposed to interfere. mmmmmm 49 Ohaftib III. HiiAD 0. — The question whether the body of water now known as the Behring Sea is included in the phrase " Pacific Ocean,' as used in the Treaty of 1825 between Great Britain and Russia ? It will be remembered that the Ukase of 1821 inoluded the Pacific from the Behring Strait south- ward to the Slst parallel, and that this claim was protested against in toto, on the ground that the teoast was almost entirely unoccupied, and that maritime jurisdiction, even where the coudt was occupied, could not extend beyond 3 miles. In the first Articles of the Conventions of 1824 and 1825 the claim to an extraordinary jurisdiction at sea is definitely abandoned, and the 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 18 agreed that in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the reapective citizens or subjects of the High Contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occu- pied, for the purpose 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 Bussia is as follows : — " I. It is agreed that the respective subjects cf the High Contracting Parties shall not be troubled or molested in any part of the ocean, commonly called the Pacific Ocean, either in navigating the same, or fishing, therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specifed in the fol- lowing Articles." It Las been contended, however, on the part of the United States, that the renunciation of claims contained in the Articles above quoted did not extend to what is now known as Behring Sea. On this point Mr. Blaine, Secretary of State tot the United States, writes : — reae] o wm 60 " The United Stated contunda that the Bohring Sea was Mr. BtaJn* to 8hr not mentioned, or oven reforrcd to, in uithor Troiity, and i' P»""«fo'«. Ulo» , , Book, United was in no sense included in the pbnse ' Pacinc Ocuaii. states, No. 1,1801, If (Jroat liiitain con maintain lior (Mmitinn tliat tliy ?• 87. Beliring Sua at the tiino of tlio Treatlu.t with Kussiu of 1824 and 1825 was included in tho Pacitic Ocuan, the Qovcrnmcnt of tho United States has uo well-grounded complaint against her." In order to uphold tho contention thus advanced by tho United States, it is, however, further found necessary to maintain that the words "north-west coast" and "north-west coast of America," which frequently occur in the correspondence connected with those Conven- tions, refer only to a portion of tho coast of the continent south of Behring Sea. This portion of the coast Mr. lilaino is at pains to endeavour to define precisely in his letter, which has just been quoted, illustrating his meaning by Maps, and endeavouring to restrict the application of the term to that part of tho coast which runs south- ibid., p. Sf. ward continuously from the COth parallel. The meaning of the phrase " 1 aciflc Ocean " and that of the term " north-west coast " are thus intimately associated in the contention of the United States, and it will be convenient to treat them together. Meaning of the " Pacific Ocean " and " North' wett Coast " as ' used in the TVeatiea and Correspondence. It will be found that such a construction of m. de Poleika to these phrases as Mr. Blaine has striven to place ^'z ^''""j^ jjj upo their argument cannot be reconciled with the jrrespondence. the first place, it has already been shown tha lussia's object was not the acquisition of the ntrol of the sea between Behring Strait and latil ie Bl" — this she distinctly denied — but the exc sion from her coasts in Asia and America, an ^ on the islands, of the traders whoso ventures threatened the success of the Bussian-American Company. No claim had been advanced by Russia which coitld possibly render a distinction between Behring Sea and the main Pacific of the slightest importance. On the contrary, in the Ukdse of 1799, Russia asserted jurisdiction over her subjects on all hubting grounds and establishments on the coast of America from the 55° north latitude td Sehring Strait and southward to Japan, and oix SI 'ApptBQtx, 'the Alciiti n, Kurile, and other iRlands in all the " north-eastern " ocean. Throughout Russia was endcavouilng to assort a title to the whole coast from Behring Strait to 61° north latitude on the American, and latitudo 45" 50' on the Asiatic coast. Her claim to an extraordinary maritime juris- diction over the ♦niters of the ocean non- territorial waters was dcflaitiroly ahandonod at the outset of the negotiations, and the discussion was thenceforward confined to the protection of her rights within territorial limits. Bussia's object was tho recognition and pro- tection of the Russian Settlements in America. Accordingly, the Conventions provide against "illicit commerce," landing "at an^ place [from Behring Strait to the southcinmost boundary] where there may bo a Russian establishment without the permission of tho Governor or Com- mandant," and against the formation of Establish- ments by either Power (in the respective Con- ventions) on territory claimed by, or conceded to, the other. With the same object rules were made by Russia, headed " Rules established for the Limits of Navigation and Order of Communication along the coast of the Eastern Siberia, the north-west- coast of America, and tho Aleutian, Kurile, and other Islands." This obviously included the American coast of Behring Sea in tho term " north-west coast." . , Barou; Nicolai to Lord Londonderry, Slst ..'dbto'ber.Cl^th'N^^vember), 1821, says:— •• (Tiftiislation.) • .''*T&e j\vii Uigtilmioa does not forbid foreign vessels to • > bavigiite the seas which wash the Kusaiaii possessions on the north-wett co"st of America and the north-east coast of Asia. ^- " On the other hand, in considering the liussian posses- sions which extend on the nortl^^west coast of America, from Behring Strait to 51° of north latitude, and 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 Imperial Govern- ment would, strictly speaking, have had the power to entirely close to foreigners that part of the Pacific Ocean on which our possessions iu America and Asia border, there is all the more i-eason why the right, in virtue of which it has just adopted a measure much less generally ' restrictive, should not be cidled in (luestion. • • • • "The oEBuets commanding the Bussiau vessels of war '';\fiv' uipji 89 wliich are to see to the maintenance of the abovc-nien- tioned arrangements in the Padfic Ocean, havo been ordered to put them into force against those foreign vessels, &c." In this note "north-west coast of America" is mentioned three times, and in each case the coast of Behring Sea is included in the term. Pacific Ocean appears twice, and in both includes the Behring Sea. A Map, of which a copy is included among the documents annexed to this Case, was for- warded by Sir Charles Bagot to Lord London- derry, in a despatch dated the 17th November, 1820, in nhich it is thus described : — " I have the honour to transmit to your Lordship, under a separate cover, an English translation of the TJkuse, and I at the same time inclose a Map of the north-west coasts of America, and the Aleutian and Kurilo Islands, which has been published in the Quartennaster- General's Depart- ment here, and upon which I have marked all the prin- cipal Eussian Settleme-'ts." It will be seen on reference to this Map that the words "part of the north-west coast of America " include the whole coast line from a poiiit north of Behring Straits down to latitude 51° north. Again Lord Londonderry writes to Count Lieven : — " The Undersigned has the honour hereby to acknow- I^rd Londonderry ledge the note, addressed to him by Baron de Nicolai of V C*"'"' Lieren, „ ",„„ xr , I ^ ■ t III January 18, 18-23. the 12th It o\ ember last, covering a copy of an Ukase issued by His Imperial Majesty the Emperor of All the Bussias, and bearing dat« the 4th September, 1821, for various purposes, therein set forth, especially connected with the territorial rights of his Crown on the north- xoestern coad of America, bordering upon the ratifir, and the commerce and navigation of His Imperial Majesty's subjects in the seaa adjacent thereto." And Mr. 8. Canning w.iting in February 1822 to Lord Londonderry from Washington, where he was then British Minister, observes : — " I was informed this morning by Mr. AJams that the Mr. Stratford Russian Envoy has, within the Inst few days, cominuni- 9.*""'".* '? '''* eated officially to the American Oovernraont an Ukaso of i^orionderry the Emperor of Russia, wliicli has lately appeared in the February 18, 1838» public prints, appropriating to the sovereignty and ex- clusive use of His Imperial Majesty the noHh-utDl coant of America down to the Slst parallel of latitude, together with a considerable portion of the opposite coasts of Asia, and the neighlOTuring seas to the extent of 100 Italian miles from any part of tlie coasts and intervening islands so api)ropriatod. In apprizing me of this circumstance, Mr. Adams gave me to understand that it was not the intention of the American Cabinet to admit the claim thus 58 notified on the part of Russia. His objection appearo to lie more particularly against the exclusion of foreign vessels to so great a distance from tho shore." Again M. de Foletica, writing to Mr. Adans on the 28th rebruary, 1822 :— " The ficst discoveries of the Russians on the north-west continent of America go bock to the time of the Emperor Peter I. They belong to the attempt, made towards the end of the reign of this great Monarch, to find a passage from the icy sea into the Pacific Ocean." • • • • " When, in 1799, the Emperor Paul I granted to tho present American Compony its first Charter, he gave it tl>e exclusive possession of the northwest coast of America, whiuh belonged to Russia, from the 55th degree of north latitude to Behring Straits." ■ « • • " From this faithful 'jxp' sition of known facts, it is easy, Sir, as appears to me, to draw the conclusion that the rights of Russia, to the extent of the north-west coast, specified in the Regulation of the Russian-American Company, rest," &c. • • • • " The Imperial Government, in assigning for limits to the Russian possessions on the north-west coast of America, on the one side Behring Straits, and on the otlier the 51s< iUgret of north latitude, has," &c. • • • " I ought, in the lost place, to request you to consider. Sir, that t!ie Russian possessions in the Pacific Ocean extend on the north-west coast of America from Behring Straits to the 51st degree of north latitude, and on tlie opposite side of Asia and the islands adjacent from the same strait to the 45 th degree." Throughout this note the phrase " north- west coast " includes the coast of Behring Sea, and the hist passage shows unmistakahly that the Russians at that time regarded the Paciiio Ocean as ex- tending to Behriug Strait. The attention of the Jiritish Government was called to tho Ukase hy the Hudson's Bay Com- pany in the following terms : — " It has fallen under the observation of tho Governor and Committee of the Hudson's Hay Company that the Russian Government have made a claim to the iwrth-vxst coast of America from Behring Straits to the Olst degree of noTtli latitude; and in an Imperial Ukase have pro- hibited foreign vessels from approacliing the const within 100 miles, under penalty of confiscation. Mr. Adims to Mr. Adams, in 1823, dealt with the Russian Mr. Ruih, July 29, claim as one of exclusive territorial right on the Bute' Pipen, north-wcst coast of America, extending, as ho said. Foreign ReUtioni, fj^m tjjg « northern oxtromitv of the continent." TOi. T, p. 446, Articles in the "North American Review" (vol. iv, [630] P Hudion't Bay Coinpiny to the Marquii of Londonderry, Mireh 27, 1822. iiMiilMiiiil 84 Article 18), and " Quarterly Eeview " (1821-22, vol. xzri, p. 844), published at the time of the controversy, and already referred to as mentioned with approbation by Mr. Adams, in 1824-25, use the words " north-west coast " with the same signification. Mr. Adams in his despatch of the 22nd July, American sute 1823, referred to the Ukase of the Emperor Paul iiXuoin.'Tolf ? as purporting to grant to the American Company P- *36. the " exclusive possession of the north-west coast of America, which belonged to' Russia, from the 55th degree [sic"] of north latitude to Behring Strait." The fact that the whole territorial and mari- time claim of the Ukase was in question, and was settled by the Treaties of 1824 and 1825, also appears from the Memorial laid by Mr. Middleton, on the part of the United States, before the Russian Govenmient on the 17th December, 1823 :— " With all tlie respect which we owe to the declared Amerieao State intention and to the detennination indicated by the Ukaae, "5t'» ' ' p. 453. it is necessary to examine the two points of fact ; (1.) If the country to the south and east of B'hrirui Strait, as far as the 51st degree of rwrth latitude, is found strictly unoccupied. (2.) If there has teen, ktterly, a real occupotbn of f'-j vast territory ? . . . . The conclusion which must necessarily result from these facts does not appear to establish that the territory in question had been legitimately incorpo- rated with the Russian Empire. " The extension of tci ritorial rights to the distance of 100 miles from the coasts upon two opposite continents, and the prohibition of approaching to the same distance from these coasts, or from those of all the intervening islands, are innovations in the law of nations, and measures unexampled." In an earlier part of the same paper, Mr. Middleton observes : — " The Ukase even goes to the shutting up of a strait which has never been till now slmt up, and which is at present the priroipal object of discoveries, interesting and useful to the sciences. •' The very terms of the Ukase bcur that this pretension has now been made for the first time." The same appears from Mr. G. Canning's despatch to Sir C. Bagot of the 24th July, 1824 :— " Your Excellency will obseivo that there are but two points which have struck Count Lieven as eusceptible of any question. The first, the assumption of the i)ase of the mountains, instead rf the summit as the line of boundary ; the second, tlio extension of the riglit of navigation of the Pacific to the sea beyond Behring Straits. M ffS "As to the second point, it is perhaps, as Count Lieven nniarks, new. But it is to be remarked, in return, that the ciicumstauces under which this additional security is required will be new also. " By the territorial demarcation agreed to in this ' Projet,' Bussia will become possessed., in acknowledged sovereignty of both sides, of Bebring Straib>. " The Power which could think of making the Paciflo a Karc ddzci'^vt mty not unnaturally be supposed capable of a disposition to apply the same character to a strait com- prehended between two shores of which it becomes the undisputed owner ; but the thuUing up ofBekring Straits, or the power to shut them up hereafter, viouM he a thing not to he tolerated by England. " Nor could we submit to he excluded, either positively or constructively, from a sea in which the skill and science of our seamen has been and is stUl employed in enterprises interesting not to this country alone, but to the whole civilized world. "The protection* given by the Convention to the American coasts of each Power may (it it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory ; but in some way or other, if not in the form now prescribed, the free navigation of Behring Straits, and of the seas beyond them, must be securjd to us." 8m Appendix. jj ^^ould have been of little use securing the right to navigate through Behring Strait unless the right to navigate the sea leading to it was secured, which would not have been the case if the Ukase had remained in full force over Behring Sea. The frequent references to Behring Strait and the seas beyond it show that there was no doubt in the minds of the British statesmen of that day that, in securing an acknowledgment of freedom of navigation and fishing throughout the Pacific, they had also secured this right as far as Behring Strait. As corroborative proof of the usual practice of the British naval authorities, reference may be made to the instructions given in 1825 by the Lords Commissioners of the Admiralty, which will be found in the " Narrative of a Voyage to the Paciflo and Behring Strait, &c.," under com- mand of Captain F. W. Bcechey, R.N., in the years 1825-26-27-28, published by authority in London, 1831. These instructions *rom the Lords Commis- * («.(.) By the ntension of territorial jurisdiction to two lenguea, ae originalljr proponed in (he course of the negoliutioDi between Ur«at Dritain and Ruaaia Wt 6« •loners, which are full and detailed, make reference only to Bebring Strait and the Pacific Ocean, and do not mention the Sea of Eam- tcbafka or Bebring Sea. Subiequent usage of " Pacific Ocean " and " North- West Coast." The works of Mr. Robert Greenbow, Trans- lator and Librarian to tbo United States' Department of State (well known in connec- tion with the discussion of the "Oregon ques- tion"), afford a detailed and conclusivo fcanB of ascertaining the views officially held by the United States' Government on the meaning of Pacific Ocean, Behring Sea, North-west coast, and the extent to which the claims made by Pnssia in the Ukase of 1821 were abandoned by the Con- vention of 1824. A " Memoir " was prepared by Mr. Greenbow, on the official request of L. F. Linn, Chairman of Select Committee on the Territory of Oregon, by order of John For&yth, Secretary of State. It includes a Map entitled "The North-west Coast of North America and adjacent Territories," which extends from below Acapulco ii. Mexico to above the mouth of the Kuskoquim ic Bebring Sea, and embraces also the greater part of the Aleutian chain. Touching the signification of the terms North- viest coast and Pacific Ocean, and the meaning attached to the relinquishment of Russian claims by the Convention of 1824, the first part of the " Memoir," imder the heading " Geography of the Western Section of North America," con- tains the following passage : — ■'The north-west coast* ia the oxpression usually em- ployed in tho United States at the present time to distinguish the vast portion of the American continent which extends north of the 40th parallel of latit\tde from the Pacific to the groat dividing ridge of the Hocky Mountains, together with the contiguous islands in that ocean. The southern part of this territory, wliicli is drained almost entirely hy the River Columbia, is commonly called Oregon, from the supposition (no doubt erroneous) that such was the name applied to its principal stream by the aborigines. To the more northern parts of tho continent many appellations, which will hereafter be mentioned, have been assigned by navigators and fur traders of various nations. Tho territory bordering upon ihe Facific southward, from the 40th parallel to the ■ N.B.— Tht Uaiict in UiU ud Mlaaqient qnoUUoni ire Ottsi caplojei b; OiMnliaw UaiaU Greenhow'i worki. " Memoir HIMorleil end PellUeel ef the nortb-weet ecu* of North Araetiot ud the uUeoent territoriee, llliuUeted \>j ■ Mip aad t gecgnphictl riew of theee conntriae, by Bobert Greenbow, TraneUtor and UbnrUn to tba Depcrt- ment cf State." Senate, 2ltb Cong., lit Bteeloa (174), 1840. , . The lame Memoir, eepamteir printed, apperentljrin identical form, and with the eame Map, and piglnation, Wliej and Putnam, New Toik, IMO. 67 extremity of the peninsula which stretchea in th»t direction as far as tlio Tropic of Cancer, is called California, a name of uncertain derivation, formerly applied by the Spaniards to tlio wliole western section of North America, as that of Flomla was employed by tiiom to designate the regions bordering upon the Atlantic. The north-west coast and tlio west coast of California, together form the wtat coast of North America; as it has been found impossible to separate the history of these two portions, ao it will bo necessary to include them both in this geographical view " (p 1). Mr. Greonhow here gives the following note : — " In the following pages the term coast will be used, sometimes a.s signifying only the sea-shore, and sometimes as embracing the wliolc territory, extending therefrom to the sources of the river ; care has been, however, taken to prevent misapprehension, where the context does not sufficiently indicate tlie true sense. In order to avoid repetitions, the north-tcesl coast will bo understood to be the north-west coast of North America; all latitudes will be taken as north laiitudts, and all longitudes as wm( from Greemoich, unless otherwise expressed. " The northern extremity of the west coast of America is Cape Prince of Wales, in latitude of 65° 52', which is also the westernmost spot in the whole continent ; it is situated on the eastern side of Becriny's Strait, a channel 51 miles in width, connecting the Pacific with the Arctie (or Icy or North Frozen) Ocean, on the western side of which strait, opposite Cape Prince of Wales, is East Cape, tlie eastern extremity of Asia. Beyond Beering Strait the shores of tlie two cmitineiits receile from each other. The north coast of America has been traced from Cape Prince of Wales nortli- eastward to Cape Barrow" Sec, pp. 3-4 r 1 The relations of Bohring Sea to the Pacifio Ocean are deftaed as follows in the " Memoir": — " Tlie part of the Pacific north of the Aleutian Islands whicli bathes tliose shores is commonly distinguished as the Sea of Kamtcliaika, and sometimes as Behring Sea, in honour of the Russian navigator of that name who first explored it " (pp. 4-5). Til* 0* (nph]' of Ongfn ud Oitifoniia and the other UtTitoriM on tlu noiUi-Tnt cowl of North America.' Nev Toik, 1«M. Again, in the "GeogK>,phy of Oregon and California," Mr. Groenhow states as follows : — "Cfpe Prince of Wales, the westernmost point of America, is tlio eastern pillar of Behring 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. • • • ■ • [G3G1 Q 58 " The part of the Pacific called iha&M of Eamtehatka, ox Behting Sea, north o! the Aleutian chain, likewise con- tains several islands," &c. (p. 4). Greenhow's " History " was officially presented to the Government of Great Britain by the Government of the ITnited States in July 1845, in connection with the Oregon discussion and in pursuance of an Act of Congress.* In this History the Sea of Kamtchatka, or Behring's Sea, is again referred to as a part of the Paciflo Ocean. In respect of the understanding by the United States of the entire relinquishment of tho claims advanced by the Ukase of 1821 in the Russian and United States' Convention of 1824, the "The HUtory of Ongon and CalUbniU ind th« oUrnr ttrrltoriea on tb* north-WMt tout of North Amerio*, bj Robert Oreenhow, Ttnalitor and Librarien to ihe Deptit- meat 3f SUU of the Uoited SUtee ; author of a Memoir lliitorical and Political, on the oorth-weat coast of North America, published in I6<0 bj direction of the Setate of the Dniltd Statee." New York, 1845. Thla is a accond edition, and in the pre&ee it la explained that it( liaue waa rendered neceaaarj to annply 1,SOO coplea of Ihe work which had been ordered for the Oeneral GoTernment. The aame work. Firat edition, London, 18U. Both cditiona contain Uapa, which appear to be Identioal, bat different from the Maps accompanying the Memoir, though including uearlj the Mme limita with them. * The following is the correspondence accompanying the presentation by the Government of tlie United States : — " ^fr. Buduinan to Mr. Palcenham. " Department of State, Washington, "Sir, 'VM/y 12, 1843. " In pursuance of an Act of Cong'i'ess approved on the 20th February, 1845, I have the honour to transmit to you herewith, for presentation to the Government of Great Britain, one copy of the ' History of Oregon, Califorr.ia, and the other territories on tlie North-west Coast of America,' by Robert Greenhow, Esq., Translator and Librarian of the Department of State. " I avail, &c. (Signed) "James BtJOUANAN." " Mr. Pakenham to the Earl of Aberdeen.. — {Receivti "August IG.) " My Lord, " Wasidngton, July 2'J, 1845. " I have the honour herewith to transmit a copy of a note which I have received from the Seci '"ry of State of the United States, accompanied by a copy of Mr. Green- how's work on Oregon and California, wliioh, in pursuance of an Act of Congress, is presented to Her Majesty's Goveniment. "Although V". Grecnhow's book is already in your Lordship's possession, I think it right, in conso(iueuce of the official character witii which it is presented, to forward to your Lordship tlie inclosed volume, being tlie identical one which has been sent to mo by Mr. IJuchanan. "I have not faded to acknowledge tho receipt of Mr. Buchanan's note in suitable terms. " I liave, &C. (Signed) "R, rAKEKiuji." fi9 •• riUmnnuff." Appendix. / 1846. Ibid. following is found on a later page of the volume last referred to :— " This Convention does not appear to offer any grounds for dispute as to the construction of its stipulations, but is, on the contrary, clear, and equally favourable to both nations. The rightf> of both parties to navigate every part of the Pacific, and to trade with the natives of any places on the coasts of that sea, not already occupied, are hrst acknowledged, &c. " (p. 342). It is tbus clear, as the result of the laborious investigations undertaken by Greenhow on behalf of the United States' Government, and accepted by that Government in official documents : — 1. That Behring Sea was a part of the Pacific. 2. That the north-west coast was understood to extend to Behring Strait. 3. Th?»,t Russia relinquished her asserted claims over " every part of the Pacific." That the phrase " Pacific Ocean " in the Treaty included Behring Sea is still further shown by the reply of the Russian Government to Governor Etholin in 1842, when he wished to keep Ameri- can whalers out of Behring Sea : — " The claim to a mart clausum, if we wished to advance such a claim in respect to the nort/iem part of the Pacific Ocean, could not be theoretically justified. Under Article I of the Convention of 1824 between Eussia and ih„ United Statei, which is ttill in force, American citizens have a right to fish in all parts of the Pacific Ocean. But under Article IV of thi same Convention, the ten yeara' period mentioned in that Article having expired, we have power to forbid American vessels to visit inland seas, gulfs, harbours, and bays for the ^lurposes of fishing and trading with the natives. That is the limit of our rights, and we have no power to prevent American ships from taking whales in the open sea." See also the reply of the Russian Government to the Governor-General of Eastern Siberia, in which the following words occur : — " We have no right to exclude foreign ships from that part of the great ocean which separates the eastern shore of Siberia from the north-western shore of America," &c. fl(t p. The instructions which were finally issued to the Russian cruizera on the 9th December, 1853, are to tlie same effect. The Legislature of the Territory of Washington, in 1800, rofeiTcd to " fishing banks known to navigators to cxint along the Pacific coast from the Cortes bunk to Behring Strait." >.i». ;'*'!^» "-■i* .:♦'' '«■'*,>: 60 It is clear that the Honourable Oharles Sumner), when proposing to the Senate, in the year 1867, the adoption of the Treaty of Cession of Alaska, understood the words "North Pacific" in the sense in which these worda are defined by the authorities just cited. In Ms speech on that occasion, Mr. Sumner thus referred tp the waters in question :— " "^..'-otter seems to belong exclusively to the North See Appendix. Pai ■ . ... Its present zone is between the parallels of 60 I lorth latitude on the American and Asiatic coasts, so \"s range is very limited." Mr. n. W. Elliott, who was engaged in the Report on the ileal study of the seal islands of Alaska for the United w»ihinrton,V88l, States' Gorernment as late as the year 1881, in PP- *• ">■ his official Report on the seal islands of Alaska remarked, concerning the seals : — " Their range tn the North Pacific is virtuaUy confined to fo&r islands 1^ Bering Sea, namely, St. Paul and St George, of the tiny Pribyloff group, and Bering and Copper of the Commander Islands." ,.' " ■" Again, Le says : — " In the North Atlantic no suitable territory for their reception exists, or ever did exist ; and really nothing in the North Pacific beyond what we have designated in Bering Sea." He also describes the rookeries in Behring Sea as " North Pacific rookeries." And also :— " Geographically, as well as in regard to natural history, ibid., p. 1 10, Bering Island is one of the most curious islands in the northern part of the Pacific Ocean." The above are, however, only a few from among very many similar instances which might be quoted of the continued usage of the name " Pacific Ocean " as including Behring Sea. In 1882 a portion of Behring Sea is referred to by the Prussian Government as " Russian waters of the Pacific" and aa "our Pacific waters." Witness the following notice by A. K. Pelikan, His Royal and Imperial Majesty's Consul, Yokohama, 15th November, 1881 : — (Extract) At the rcfiuost of the local authorities of Behring and Peperi reUtiDg> other wlauds, the Undersigned hereby notifies tliat the Fi.^riw'^VVMhing- toD, 1889, p. 948. 6X Eussian Imperial Government publishes for general know- ledge the following : — 1. Without a special permit or licence from the GovemoT-Gentral of Eastern Siberia, foreign vessels are not allowed to coMjr on trading, hunting, fishing, &c., on the Eussian coast or islands in the Okhotsk and Behring Seas, or on the north-eastern coast of Asia, or within their sea boundary-Una" I'apers relating to Behring Set fisheries, Washington, 18(9, p. S62. In the correspondence between the United States and Russia, touching the meanir.g of this Begulation, the Notice is alluded to by M. de Giers as " relating to fishing, hunting, and trade in the Russian waters of the Pacific," and as relative to fishing and hunting in " our Pacific waters." In the same correspondence the Secretary of State of tlie United States and the United States' Minister at St. Petersburg similarly speak of " Pacific Coast fisheries " and " our Pacific Ocean fisheries." Writing on the 8th (20th) May, 1882, to Mr. Hoffman, the American Minister at St. Petershiu-g, M. do Giers saiid ; — " Referring to the exchange of communications which has taken place between us on the subject of a Notice published by our Consul at Yoliohama relating to fishing, hunting, and to trade in the Eussian waters of the Pacific, and in reply to the note whicli j'ou addressed to nie, dated the 15th (27th) March, I am now in a position to give you the following information : — " A Notice of the tenour of tliat annexed to your note of the 15th March was, in fact, publislied by our Consul at Yokohama, and our Consul-General at San Francisco is also authorized to publish it. " This measure refeis only to proliibited industries and to the trade in contraband ; the restrictions which it establishes extend strictly to the territorial waters of Extssia only. It was required by the numerous abuses proved in late years, and ..liich foil with all their weight on the population of our sea-shore and of our islands, wliose only means of support is by fishing and hunting. Tliese abuses inflicted a5so a marked i.ijnry on the interests of the Company to which the Imperial Qovernmcnt had covceded the monopoly of fishing and hunting (' exportation'), in islands called the ' Cotnmodore' and the ' Seals' "Beyond tliis now Regulation, of which the essential point is the obligation imposed upon ctptains of vessels who desire to fish and to hunt in the Eussian waters of the Pacific to provide themselves at Vladi'-ostock with the permission or licence of the Qovemor-C^.ierul of Oriental Siberia, the right of fishing, hunting, and of trade by foreigners in our territorial waters is rctrJlated by [636] B 62 Articlo 660, and those following, of vol. xii, Part II, of the Code of Laws. "Informing you of the preceding, I have, &o." Bancroft writes, in his " History of Alaska '• (pp. 19, 20) : " The Anadir, which empties into the j?acifio." Again : " Thus the Pacific Ocean was iirst reached by the Bussians on the shore of the Okhotsk Sea." And yet again : " The ascent of the Lena brought the Russians to Lake Baikal, and showed them another route to the Pacific, through China by way of the Amoor." So, in 1887, it is tound that the American Paper* relating Representative at St. Petersburg informed Fi,heri"i%'tibin». Mr. Bayard (17th February, 1887) that the ton, 1889, p. 2C8. Notice already quoted prohibits fishing, &o., on "the Russian Pacific coasts." This oorre^ spondence related to a seizure which had been made in Behring Straits. Maps and Charts. In the discussion of the question of jurisdic- tion between the United States and Great Britain, special reference has been made by the United States to the marking of Maps, from which it has been insisted that the waters of Behring Sea had been given a name distinct from that of the Pacific Ocean. From this it was urged that the words " Pacific Ocean " in the Conventions were used with groat care, so as to reserve the waters o* Behring Sea under the exclusive jurisdiction of Russia. It is very noteworthy in studying any series of Maps chronologically arranged, particularly those published before the middle of the present century, that Behring Sea is frequently without any general name, while the adjoining Sea of Okhotsk is in almost every instance clearly designated. On various Charts issued by the United States' Hydro,' raphic OfiBce, including the latest and most perfect editions now in actual use, the usage of "Pacific" or "North Pacific Ocean" as including Behring Sea occurs. Thus : — No. 90{). Published March 1883 at the Hydro- graphic OfTice, Washington, D.C. : — "Pacific Ocean. Behring Sea, Plover Bay, from a survey by Lieutenant MaximoT, Imperial Russian Navy, 1876." (Plover Bay is situated on tht- Asiatic coast, near the entrance to Behring Strait.) 68 Malbuo, John, "Ninl GuettMr," 1791. BrookM, R., " Gcnenl OtnttMi," 1802. GalloKi, J. G. 1822. A., "Qtigraphiachra Wlirttrbnch," Fttth, ' DIctloDiuii* (MoinpUiiu: '.'n'— thI," '828. Sciti, Dr. J. werteibuob,' C, " Googispbischei Statlttlacbei Hud- Peatb, 1822, halbenUdt, 1829. Arrowusllb, " Qituuiu of Hodont a d« U 0^(npbi« Ualttnello, ' par Malte-Bnui Tom. TiU, p. i. Lwgloli, "DlcUaniuln da a<(i|raplilo," 1839. 'reon; Cyolopndlt." 18U. " Dictionraira UnirerHl d'Hutoir^ ., 1855. McCuUoch'i "Geographical DicUonarr," edited bj F. i'artin, 186«. " Grand Dictlonnaire Unirerael," par M. P. Labouiie. Parii. 1807. St. Martin, " Nonrean Dictlonnaire de G^craphle Univcr- •olio," Paria, 1879. Lippiasolt'a "Oar.ettecr of the World," Philadelphia, 1880. Rltler'a "GeographUch Statlttlecb Lexicon," Leipiig, 1883. Blackle'a "Modem Cyclopesdia," 1889 edlUon. 68 Legal opinion on the Conventione. Finally, a few passages may bo quoted from English and American publicists of acknowledged eminence, to sbow the manner in which the general question has been received by them. In referring to the Russian Ukaso of 1821, Wharton, " Digest of International Law of the United States," Washington, 18S6, vol. i, sec- tion 32, p. 3, speaks of Russia — "Having asserted in 1822 tu 1824 an excluaive jurisdie- tion over the north-west coust aud waters of America from Bchring Strait to the flrty-flrst degree of north latitude." Mr. Davis, p. 44 : — " Russia, in 1832, laid claim to exclusive jurisdiction f'vcr that part of tlie Pacific Ocean lying north of the Slat degree of north latitude, ou the ground that it pos- sessed the shores of tliat sea on both continents beyond that limit, and so had the right to restrict commerce to the coast inhabitants." Dr. T. 8. Woolsey, Professor of International Law at the Yalo Law School, in the 6th edition " Treatise on International Law," says : — "Russia fiimlly, at a more recent date, based an ex- duaivb claim to the Pacific north of tiie 51st degree, upon the ground that this part of the ocean was a passage tu shores lying eiclusively within her jurisdiction. But this claim was resisted by our Government, and withdrawn in the temporary Convention of 182-1. A Treaty of the same Empire with Qroat Britain in 1825 contains similar con- ceasiona" Jai. B Angell, in the '* Forum," NoTember 1889; " Amrrictn Uights in Bebring Sea." A recent United States' writer. Professor 3 . B. Angell, discussing this subject, writes : — "The Treaty of 1824 secured to us the right of naviga- tion and fisliiiig ' in any part of the great ocean, commonly called the Pacific Ocean, or South Sea, and (in Article IV) for ten years that of frequenting the interior seas, gulfs, narbours, and creeks upon the coast for the purpose of fishing and trading. At the expiration of ten years Russia refused to renew this last provision, and it never was formally renewed. But, for nearly fifty yeors at least, American vessels have been eng.iged in taking whales in Beliriug Sea without being disturbed by the Russian Government. Long before the cession 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 Russia regaided Behring Sea as a part of the Pacific Ocean, and not as ona of the ' interior seas,' access I ^ which was forbidden by the termination of the IV th Article of the Treaty " [636] S 66 Sir B. Phillimore, in his Srd edition of tho " Law of Nations," vol. i, p. 290, remarks : — "The contention, advanced for the first time by the United States in this controversy, after an acquiescence of more than sixty-five years in the world's construction of the Treaties of 1824 and 1825, that the plirase 'Pacific Ocean,' as used in those Treaties, was not intended to include, and did not include, the body of water which is now known as the Behring Sea, because the words 'Behring Sea' were not used in either Treaty, is without any foundation, as will bo subsequently shown ; ana yet the Concession is made by the United States that ' if Great Britain con maintain her position that the Beiir'ng Sea at the time of the TrpnUes with Russia of 1824 and 1825 was included in the Pacific Ocean, the Oovemment of the United States has no well-grounded complaint against her.'" (Ex. Doc, No. 144, H. E., 51st Congress, 2nd Session, p. 27.) Mr. W. E. Hall, "International Law," 3rcl edition, 1890, p. 147 :— "Note. — A new claim subsequenJly sprung up in the Pacific, but it was abandoned in a viry short time. The Russian Government pretended to be Sovereign over the Pacific north of the 51st degree of latitude, and published an Ukase in 1821 prohibiting foreign vessels from approacliing within 100 Italian miles of the coasts and islands bortlering upon or incli.ded in that portion of the :cean. This pretensiou was vesisted by the United States and I December 3, •r., TT •. 1 c, f 1 1 1 * r .1 •• . 1838, United SUte!' Ihe United states liave, indopenJeut of the provisions ol state Papers llio Convention of 1824, a riglit to trade witli the natives vol. xxti, p. 1830> upon the const in question at unoccupio'. places, liable, however, it is admitted, to bo at any time extinguished by the creation of Ilussiau establishments nt such points. Tliis right is denied by tlie Russian Government, which jisserts tliat, by tlie operation of tlie Treaty of 1824, eacii party agreed to waive the gcnei-al right to land on the vacant coasts on the respective sides of the degree of latitmle referred to, aiul accepted, iii lieu thereof, the mutual privileges mentioned in Article IV. Tlio capital and tonnage employed by our citizens in their trade with tlie north-west coast of America will, perhaps, on adverting to the official statements of the coiiimerce and navigation of The United States for the Inst few years, be deemed too inconsiderable in amount to attratt mucli attention ; yet the subject may, in other respects, desen'e tho careful consideration of Congress." 78 1887. p. 842. 1838. Aluluu fu SS2, S69. North-wMt Co«it, p. 842. 1839. Aiuka, pp. S5C, 887, 1840. AlMka, p. 5S7. Ibid., p '83, Tikhmcuicff. 1841. 1842. Ibid., p. SS9. Ibid., p. see. Ibid,, p, 1S8S. To return to the chronological order of events : — In 1887 one foreign trafling-vessel is named aa having been on the north-west coast. In 1838 further explorations were undertaken in the north by Chemof and Slalakhof. Three foreign trading-vessels are noted as having been on the nortli-vrest coast in this year, and one is known to have visited Alaskan waters. In 1839 a Commission met in London to arrange the dispute between the Hudson's Bay and Russian-American Companies, arising out of tlie interference by Russian officials with the British vessel " Dryad." The claim for damages by the former Company Avas waived, on coi^di- tion that the latter should grant a lease of all their continental territory nortln»aid to Cape Spencer, Cross Sound (about latitude 58°), on a fixed rental. This arrangement was for ten years, but was renewed, and actually continued in force for twenty-eight years. In 1810 the British flag was hoisted and saluted at the mouth of the Stikinc, the Hudson's Bay Compauy taking possession. A post was also established by the Company at Taku Inlet. At this time whalers were just beginning to resort to iiehring Sea ; from 184iO to 1812 a largo part rf the fleet was engaged in whaling on the "Kadlak grounds." Writing in 1842, Etholcn says, that for some time he had been constantly receiving ropoiis fi-oni various parts of ll»e Colony of the appearance of American whalers ir the neighbourhood of the 8hoiv>s. In the same ye.nr Etholen relieved Kuprianof as Governor at Sitka. In 181(1 the Charter of the Russian-American Compauy was renewed for a further term of twenty years. Etholen reported the presence of fifty foreign wlialers in Behring Sea. In 1842, according to Etholen, thirty foreign wlialors wero in Behring Sea. He asks the Russian Government to send cru'zcrs to preservp this sea as a mare elausum. [686] 74 His efitorts were, however, unsuccessful, the Minister for Foreign Affairs replying that the Treaty between Russia and the United States gave to American citizens the right to engage in fishing over the whole extent of tho Pacific Ocean. Inland explorations by Zagoskin, which con- ibid., pp. 653, S5<. tinued till 1844, began. Sir George Simpson, ibid., pp. 638-560. Governor of the Hudson's Bay Company, reached the Stikine post just in time to prevent an Indian uprising. He also visited tho Russian Establishment at Sitka and completed an arrange- ment between tho Companies to interdict trade in spirits on the coast. About this time the Russian-American Com- pany became alarmed at the danger to their fur trade. Every effort was, therefore, put forward by the Company and the Governors to induce the Foreign Oflice of tho Russian Government to drive off these whalers from the coasts, and by excluding them for a great distance from sbore, prevent trespasses on shore and the traffic in furs. In 1843 explorations were corned on on the Alaska, p. 676. Sustchina and Copper Rivers. The whalers, from 1843 to 1850, landed on Bancroft, pp. 589, the Aleutian and Kurile Islands, committing '^*" depredations, United States' captains ojienly carried on a trafiic in furs with tho natives. Tiklimenieff writes : — " From 1843 to 1850 there were cotistant complaints by Tikhmeoieff. tho Compauy of tho increasing boldness of the whalers." 1843. In 1846 the Governor-General of Eastern Siberia asked that foreign wbalens should not bo allowed to come within 40 Italian miles of the Russian shores. Tikhmenieff thus describes the result of tlieso representations : — "The exact word* of the letter from tho Foreign OSico are as follows : — "'The fixing of a line at sea within which foreign 1846. 76 vessels should be prohibited froitt whaling off oar shores ■would not be in accordance with the spirit of the Conven- tion of 1824, and would be contrary to the provisions of our Convention of 1825 with Great Britain. Moreover the adoption of such a measure, without preliminary negotiation and arrangement with the other Powers, might lead to protests, since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction nt sea.' " In 1847 a representation from Governor Tebenkoff in regard to new aggressions on tlio part of the whalers gave rise to further correspondence. Some time before, ia June 1846, the Governor-General of Eastern Siberia had expressed his opinion that, in order to limit the whaling operations of foreigners, it would bo fair to forbid them to come within 40 Italian miles of our shores, the ports of Petropaulovsk and Okhotsk to bo excluded, and a payment of 100 silver roubles to bo demanded at those ports from every vessel for the right of wlialing. He recommended that a ship of war should ha employed as a cruizer to watch foreign vessels. The Foreign Office expressly stated as follows, in reply : — " ' We have no right to exclude foreign ships from that part of the Great Ocean wliich separates the eastern shore of Siberia from the uortli-western shore of America, or to make the payment of a sum of money a condition to allowing them to take wliales.' " The Foreign Office were of opinion that the fixing of the line referred to above would reopen the discussions formerly carried on betv.een England and France on tho subject. Tlio limit of a cannon-shot, that is about 3 Italian miles, would alone give rise to no dispute. The Foreign Office observed, in conclusion, that no Power had yet suoccwled in limiting tho freedom of fishing in open seas, and tliat such pretensions had never been recognized by the other Powers. They were coufideut that the fitting out of colonial cruizers would p\it an end to all difficulties ; there had not yet been time to test the efficacy of this measure." 1847. 184a 1849. TiUimeiutff. In 1S17 traffic in fur-seal skins was carried on by a United States' whaler at Bebring Island in open (lefianco of the llussian authorities. In 1848 foreign whaling vessels entered tlio Arctic Ocean by way of Behring Straits for tlia first time. Alaiki, p. 6M. Ill 1819 the whaling fleet in tlio Arctic and northern part of the North Pacilic numbered 299 vessels. Two-thirds of tlieso nro said io have been United States* vessels, but others wore French and English, the latter chiefly from Australasia. A llussian Wlialing Company for the North Pacific was formed nt Abo, in Finland, with special privileges. This Company sent ou(i six vessels in "^11. 70 In 1850 tho British vessels " Herald," "Plover," nnd " Investigator," all despatched in search of Sir John Franklin's expedition, met in Kotzebue •Sound, after passing through Bchring Strait. In tho same year an armed Russian corvette xvas ordered to cruize in tho Pacific, and in this year it is estimated that 300, and in later years as many as 500 foreign whalers visited tho Arctic nnd neighbouring waters. Tebenkof's administration came to an end in this year. In 1851 Nulato, a fort on the Yukon some Avay inland, was sui-priscd by Indians and tho inmates butchered, including Barnard, an English officer of Her Majesty's ship " Enterprise," ono of the ships engaged in the expedition in search of Sir John Finnklia. Tho " Enterprise " passed Eehring Strait on the 6th May, 1851. Tho United States' whaling fleet is said to have been as numerous as in 1819. The interval between the close of Tebenkof's administration and the beginning of that of Voievoiisky was filled by the toinporary appoint- nicnt of Rosenburg and Rudakof. In 1852 buildings at the Hot Springs, near Sitka, were destroyed by tho Indiaiis. The value of catcli of tho whaling fleet in the North Pacific in this year is estimated at ll-,000,000 dollars. After 1852 tho whaling industry gradually decreased. In 1853 war impending between England and Russia, the Hudson's Bay and Russian-American Companies influenced tlieir respective Govern- ments to prohibit hostilities on the north-west coast of America. In the same year the Russian-American Com- pany again specially requested the Government to 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 tho Foreign Office (22nd March, 1853) :— Ahika, p. 67 i. Ibid., p. S84. 1850. Ibid., p. BBS. Ibid., p. 473. *' Cncyclopiedia Britanaica," vol. xix, p. 321. Alaika, p. 684. Ibid., p. 586. Ibid., p. 574. Ibid., p. 6fi9. Ibid., p. 672. TikhineniefT. 1851. 1852. 1853. " If it is found impracticable entirely to prohibit for a Tiklimeineff, see time fishing by foreigners in the Sen of Okhotsk, aa an Appendix, inland sea, would it not, at any rate, be pos.sible odicially to proliibit whalers from coming close to our shores and vhaliug in the bays and among the islands, detaching 11 one of the cruizers of the Kamtchatka flotilla for this service?" The instructions to cioiizers were approved on tlie 9tb December, 1853. The cruizers were to see that no wlialers entered the hays or gulfs, or came within 3 Italian miles of our shores, (hat is, the shores of Russian America (north of 54° dil'), the Peninsula of Kamtcliatka, Siberia, the Kadjak Archipelago, the Aleutian Islands, the Pribyloff and Commander Islands, and the others in Behring Sea, the Kurilcs, Sakhalin, the Shantar Islands, and the others in the Sea of Okhotsk to the north of 40° 30' north. Tho cruizers were instructed conotantly to keep in view that : — " Our Government not only docs not wisli to prohibit or put obstacles in tho way of whaling by foreigners in the nortliern i)art of tho Pacific Oceun, but allows foreigners to take whales iu the .Sea of Okhotsk, wliich, as stated in these instructions, is, from its geographical 2>osiiion, a Sussian inland sea." (Tliese words are in italics in the original.) 1864. 1866. 1866. 1867. 1869. 1860. AUtka, p. 584. Ibid., p. 583. Ibid., p. 68S. Ibid., p. S84. Ibid., p. 668. Papers relatihif to Beliring Sea fiahcrics, Washing- toD. 1889, p. 251, Seward to Clay, February 24, 1868. iMojika, p. 592. Ibid., pp. 878, 679- Ibid., p. 680. In 1854, 525 foioign whalers were in Behring Sea and its vicinity. Voievoilsky was elcsted Governor for the Com- pany. In 1855 the Abo Whaling Company went into liquidation. In ItiDtJ, 366 foreign whalers wore reported as in Behring Sea and vicinity. Bancroft reports that in the year 1857 : — " Of the GOu ir 700 United States' whalers that were fitted out iu 1857, at least one-half, including most of the larger vessels, were engaged in the North Pacific .... including, of course, Behring bu;i. Captain Manuel Enos, ot the United States* barque " Java," stated in 18G7 that he had whaled unmolested iu the bays of Okhotsk Sea for seventeen years previously. In 1859 tho cession of Alaska to the United States began to ho discussed privately. In 1860 tho Russian-American Company ap- plied for a new Charter for twenty ycar.s, to date from the 1st January, 1862, and Ileports as to the condition of the Company wore called for by the Government. Tho Russian population of tho American Colonies at this date, apparently including [636] X /* 78 native wives, numborod ^H^•. Creoles, 1,700; native population estimated at over 7,000. In 1802 the value of the eatcli of North Tacifio whaling fleet was estimated at 800,000 dollarn. In 1803 the United States' brig " Zimandra " was engaged in the eod fishery oil' Soghalicn Island, Okl'jtsk Sea. In sueee(;diug years a number of vessels resorted to this sea for the cod fishery. In 1804 Maksutof took temporary charge for the Russian Government of the Company's affairs. In 1805 negotiations between the Russian Com- pany and the Government continued but terms such as the Company mouM accept could not bo arrived at. In the spring of this year, the " North Pacific cod-fish fleet" was organized. It comprised seven vessels, all of which are believed to have fished in Okhotsk Sea. In 1860 the Russian Government still con- templated renewing the Company's Charter on certain terms. A Californian Company entered into treaty for a lease of the " coast strip " of Alaska, then held by the Hudson Bay Company. Eighteen vessels were engaged in the Okhotsk Sea cod fishery. The " Porpoise " initiated the fishery in the Shunigan Group, Alaska, finding there "safe harbours, fuel, water, and other facilities for prosec;:'ing this business." Several British Columbian schooners also fished in Alaskan waters. In 1807 Alaska was sold by Russia to the United States for 7,200,000 dollars. Nineteen United States' vessels fished for cod in Okhotsk Sea or in Alaskan waters, the Shuni- gan fleet consisting of three vessels. The total catch amounted to nearly 1,000,000 fish. In 1867, before the cession of Alaska, tlio whaling interest of the United States in these seas are thus referred to by a Philadelphia paper : — Alaika, p. 069. 1862. l''i«h«ry Industrici of (ho United State*, leo, v, vol.i, p. 219. 1863. AlaiVa, p. 57». 18M. Ibid. Fishery Iiiiluitriei ol' tiio United Mtates, sec. v, vol.i, p. 210. Alaska, p. S80. rishery Inilustriat of llic United States, sec. v, vol. i, p. aio. . Ibid., p. 310. IfioS. 1866. 1867. " Our whaling interests aie now heaviest in the .seas « riiiladelphia adjacent to Russian- America, both above and below North Americaa .„ , . „ .... Gaiette, Iriday, Belinng Strait. Aprill2, 1867. lii. Uoc. No. 177. Snd Scss., 40th Con^.i p. 39. Value of catch of North Pacific whaling fleet Alaaka, p. 669. estimated at 3,200,000 dollars. In 1868 the lease of the " coast strip " of Alaska Ibid., p. S98. 1868. 79 to the Hudson's Bay Company by the Russian- American Company expired. Statistici of United Slates' Whaling Industry. {North Pacific Grounds, including Okhotsk and Behring Seas and Arctic Ocean.) The growth and decline of the whaling industry durin;» the years discussed in this chapter may bo convenicatly illustrated hy the following Table, which shows the number of United States' vessels in the North Tacific whaling fleet from 1811 to 1807. It is taken from *lLe Fishery Industries of the United States," 1867, section 5, vol. ii, pp. 81-85. (This list does not include whalers of other nationalities,) Year. Number of Vessels. ISll 20 1812 29 1843 103 18U 170 1845 263 1846 292 1847 177 1848 159 1849 155 1850 144 1851 138 1852 278 r53 238 1854 232 1855 217 185fi . . 178 1857 143 1858 igc 1859 176 18C0 121 1861 76 1862 32 18G3 42 1864 68 1865 59 1866 9a 186V 90 The whaling-vessels frequenting B' Ing Soa and the Arctic Ocean, from the first, tuyiged to Op. Cet.. p. 314. a certain extent in walrus hunting, and about 18G0 such hunting began to be an important necessary object with the whalers. In subse- quent years many thousand b.irrcls of walrus oil with great quantities of skins and ivory wera eeoured. 80 The facts stated iu this chapter establish that from the year 1821 to the year 18G7 the rights of navigation and fishing in the waters of Behring Sea were freely exercised by the vessels of the United States, Great Britain, and other foreign nations, and were recognized as existing by Bussia. 81 Chaptee V. Point 4 op Abtici-E VI. — The Cession of 1867 and what passed by it. Tlie fourth question or point in Article IV of the Case is as follows : — Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea cast of the uater boundary, in the Treaty between the United States and Russia of the 30th March, lfc'67, pass unimpaired to the United States under that Treaty ? This question may conveniently be treated ■under the following heads, as proposed on p. : — (E.) What rights passed to the United States under the Treaiy of the 30th March, 1807. (J?.) Action of the United States and Russia from 18(57 to 1880. (G.") The contentions of the United States since the year 1880. Treaty of CetiioDf IS67. Heap (E.)— Jr/i«/ rights passed to the United Stales under the Treaty of March 30, 1807 ? The following is the text of the Treaty of Cession of Alaska as signed : — ".Sii ^fujosU' riMiipurour do Toutes Ics Pussies et lea fitats-Uiiis d'Aiiii'ihiuo, ilc.sirant niirtTniir, s'il est possible, la bonno intflli;^i>m e (lui oxisto entro cux, ont nommd h cot effct, ixmr Iturs rii'nipoteiiliiiircs, Sftvoir: " Sii JFujcsU; rEnipi'rciiv iln Tdutcs ics Hussies, lo Cou- soillrv I'rivc I'Muiiiinl dc Stoeckl, son Eiivoyd Extraordi- naire et Minislro ririii|intoiiliiiiro mix fitats-Uiiis; et "1.0 rresideiit d.'s l':iiits-Unis, le Sieur William H. Seward, Seoretairo d'fttat; " LosiiuoIm, npr^s .avoir I'diange kurs ])ieiiis pouvoirs, trpuvi'^i en Iwniio et duo fornio, out arrfitd et signd les Arlii'li'-i siiivunls; — " ARTICLE I. " Sir MtyeattS I'Emperear do Toutes les Eussies aVngnge, par lel.tc Convc!>lioi!, .\ coder aux l5tatfl-Unis, immiVliato- ineul a])ro9 roclmngo d'js ratificiilioiis, l.mt lo toiritoire nv(M' I'.i lil do souvorainei.e uetuellemeut poa.'-'idt'' par S.i Majot.lt: ;ui le Coutincnc d'Amiiriqao ainsi quo lea ilea [630] Y ?'?*f^f€^'a^;*.i*^-?^ 82 contigiiiis, lo dit territoiro ^tant compris dans los limitca gdogrnpliiqucs ci-dessou9 iudiqutjos, savoir : la liniita orientalo est la ligno do demarcation ontro Icr, posaessions Kusses et Britannique;) daim rAnu'riquo du Nord, ainai qu'ello est (?tiiljlio par la Convention conclne entre la Husaie ct la Graudc-13ret,ng!ii>, le IC (28) Feviier, 1825, et dtilinie dans les lermes snivants des Articles III et IV do la ditc Convention : — "'A partir du point lo plus meridional de I'llo dite PrincQ of Wales, Icquel point so trouvo sous le parallile du 54° 40' do latitude nord, et ontve Ic 131* et le 133* degru do longitude oucat (ineridien do Greenwicii), la dito ligne rem.nilera an noiil le long do la pa.v.o dite Portland Chaunid, jusqu'au point do la tciTO fermc, oil die atteiut le 66" degv6 de latitude nord ; de co dernier point la ligne de demarcation auivra la creto dos montaguea situees parallMcnient A. la cote jusqu'nn point d'intcrsoctiou du 141° degre do longitude ouest (rafnna meridion); et finalemcnt, du dit point d'interseotion la raenie ligne mdridionno du 141* degrd formcra dans son prolongeraent jusqu'il la Mer Glaciale la liniitc entre les possessions Eusses et Britanniques sur le Continent de I'Anierique Nord-Ouest. " ' II est entendu, par rapport k la ligno do demarcation ddtermint,'e dans 1' Article precedent : "'1°. Que I'ilo dite Prince of Wales appnrtiendra toute entiire k la Russie :' (niais des ce jour en vertu de cette cession aux l!)tats-Unis). "'2\ Quo partout oii la crete des montagnes qui s'dteudent dans uno direction pai-allMe k la cute, depuia lo SG"* degri5 de latitude nord au point d'intcrsection du 141""' degrd de longitude ouest se trouverait k la distance de plus de 10 lieues marines de I'ocdan, la limito entre le8 possessions Britanniquos et la lisifero de cfite niontionnde ci-dessus coniuio devant appartcnir a la lUissic' (c'est-i- dire la limite des possessions codecs par cette Conven- tion): 'sera formee par uno ligns parallMe aux sinuositea de la c6to et qui no pourr.i jamais en etro eluignije que do 10 lioues marines.' " La limite occi Jentalo des territoires cedi^s passe par un point au DAi'O'.t de Beliving sous le parallele du soixante- cinquiinie degrd treiite minutes de latitude Noriii(ir de rintersoction de co mdridicu. oetto limito Bui' une direction Sud-oues* da cjar-'^m ii pa-^iwr h di«it*nco ^fgnlo rnlre I'lle d'Af.ou et I'ile Copper du fjTOup's d'tlot' Korlnaridoraki dans Vacian Pacitique i-'op1*ntrioual, jusqii'au mdridien de cent quatre- 83 vingt-treize degr(?s ile longitude Oucst, de manibre h en- claver, dans lu Teriitoiro cude, toutes los lies Aldoutea 8itu(Jc8 k reai; de co mdriilicn. " AltTICLE II. "Dana le Tonitoiro cedu par rarticlc prdcMcnt k la SouvcraiiieU; dcs fitats-Uiim, sont compris le droit de pro- pri(it(5 8ur tons Ics terrains et places publics, terres iuoccii- pccs, toutes les constructions publitiues, fortilication"* casernes, et nutrcs iSdifices qui ne sont pas propridtt; privLe individuelle. 11 est, toutofois enteudu ct couvcuu que les (^glises, construites par le Oouvernement Rns.su «ur lo Territoiro cudi', restivont la propriete dcs inenibres do riigliso Ureoque Orientalo residant lans oc Ten-itoire et jippartenant h, co culte. Tons les archives, papiers, ft documents du Gouverneniont, ayant trait au susdit Terri- toiro, ct qui y sont maiutanant dopuses, seront pliic<59 enlr :;j' V V /A Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. M580 (716)872-4503 ' ^^ ^VV ^^A w 1 86 Grocnliow, for instance, writes :— "The Aleutian Archipelago ia couaiierailhy the BxiMiana Character of the western} geo^phical liinit> OS consisting of Mm j7ro)«;)» of islands. Ncirest Aliaska Jy^^'T'* ''"•*'* •dopUon. ylAiUMM uro tlio Fox IdaiuU, of which the lorgcst aro Vni ,tak; „„ . ' , UiMloilJca, and Umnak; next to these aro the Andrcanowskij f\^\ (q j Politisal, Mamti, among which are Aticha, Tonwja, and Kanaga, of the North-neit with many smaller islands, somoliroes called tho Sat j^^fj\g^ ^^^ |,_ Itldiith; the roost western ((roup is that first eidlcd tho Rubert Gre«nhoW| Aleutian or Aleoutslry Idaruls, which aro Altu, Mcdnoi (or L[b'"'*'°'to"ti Copper Idand), and Bcering't Islaml " (p. 5). Department cf Sute " Seiut*, 96th Cong Iit8« 1840. In tho " History of Oregon and California," &p., ut°8iiS°^"i74], by tlic same author, tho Commander Islands (Copper and Behring Islands) aro again classed among tho Aleutian Islands, which are said to bo included under two governmental dis- tricts by the Russians, tho Commander Islands belonging to the western of these districts (p. 38). Orecnhow 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 the Commander Islands, in somo it '.i restricted to a portion of the chain now recognized by that name. Similar diversity in usage, with frequent instances of tho inclusion of the Com- mander Islands as a part of the Aleutian Islands is found in geographical works of various dates. From this uncertainty in usage in respect to the name of tho Aleutian Islands (though these aro 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 tho Aleutian Islands belongetl to the United States. Neither would this have 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 Mups under alternative names, would have been perplexing and unsatisfactory, fi-om the very great number of these to bo found in and about Behring Sea. It was thus entirely natural to define con- ventionally a general cavision fixed by an imaginary lino so drawn as according to the best published Maps to avoid touching any known islands. w 87 United Slatat' CoHt Surrey. CoMt Pilot of Aluka 1869. Pert I, Appendii No. 8. Tho occasion for a western limit of the kind adopted is the more obvious, when it is borne in mind that many of the islands in and about Behriug Sea arc even at tlio present day very imperfectly surveyed, an'\ more or less uncertain in position. Tlio following is from the " Coast Pilot of Alaska" (United States' ('cast Survey 1869):— " The following list of tlio ^ographical positions of pbccs, principally uixin tho coast of Aln-ska, has been compiled chiefly from Itiistiiau niilhorities. In ita prepara- tion the intention was to introduce all detcnn>'.iations of position that appeared to have been made by actual obser- vation, even when tho lucaliticx are quite close. In the Archipelago Alexander most of Vancouver's latitudes liave been introduced, although in such waters they are not of great practical value. " It b believed the latitudes ore generally within 2 miles of the actual ixaition, and in maliy cases where several observers had determined them independently, the errors may be less than a mile. Tho longitudes of har- bours regularly visited by vessels of the Itussian-Amcrican Company appear to be fairly determined, except toward the western tennination of the Aleutian chain, where largo discrepancies, reaching 30' of arc, aro exhibited by the comparison of results between Bussian outho.ities and the United States Exploring Expedition to the North Pacific in 1855. Positions by different authorities ore given in some instances to show these discrepancies. Tha comparison of latitudes and longitudes at Victoria, Fort Simpson, Sitku, Chilkaht, Kadiok, and Unalaska, between English and Russian and the United States' coast survey determinations, exhibit larger errors tlian might have been exjKiCtcd. " The uncertainties that exist in tho geographical position of many islands, headlands, straits, and reefs, the great dissimilarity of oiitlino and extent of recent exami- nations of some of the AVestcrn Aleutians, the want of reliable data concerning the tides, currents, and winds, the ahnost total want of detailed descriptions of headlands, reefs, bays, str.iits, &c., and the circumstantial testimony of the Aleutian fishermen concerning islands visited by them and not laid down upon I' 'Charts, point to tha great necessity for an exhaustive geographical reconnais- sance of the coast, as was done for tho coast of the United States between Mexico and British Columbia," Even the latest United States' Chart of what arc now known as the Aleutian Islands, (Ko. 03, published in 1891) is based chiefly on information obtained by the "North Facifio Surveying Expedition " under llogcrs, which was carried out in tho schooner "Fcnimoro Cooper" in 1855. On sheet 1 of this Chart, (embracing tho western part of tho Aleutian -flyHB 88 Islands), such notes as tho following are found:— "Tho latest Kiissian Charts place Bouldyr Island 10 miles duo suutli of tho position given hero, which is from a determination by Sumner's method. "Tlio low islands l)etween Ooroloi and loulakh, ex- cepting tho west point of Unalga, are from Russian authorities, which, however, oro widely discrepant." Similarl^r. in tUo corresponding British Ad- miralty Chart (No. 1501} published in 1800 we find the remark : — " Mostly from old and imperfect British, Itussian, and American surveys." Even on tho latest Chart of Boiiring Sea, published by the United States in 1891, a small islet is shown north of St. Matthew Island, near tho centre of the sea, which iloos not appear on tho special Map of St. Matthew Island published in 187&> and which could not bo found in 1891. That tho line drawn through Boliring Sea between Russian and United States' possessions was thus intended and regarded merely as a ready and definite mode of indicating which of the numerous islands in a partially explored sea should belong to cither Power, is fui-thor shown by a consideration of the northern portion c ' tde same lino, which is that first defined in tho Treaty. From tho initial point in Behring Strait, which is carefully described, the "limito occ.'- dentalo " of territories ceded to tho United States " remontc en ligne directe, sans limitation, vers le nord, jusqu*& co qu'elle se pcrd dans la Mer Glaciole," or in tho United States' official trans- lation "proceeds due north without limitation into the same Frozen Ocean." Tho " geographical limit " in this the northern part of its length runs through an ocean which had at no timo been surrounded by Hixssian territory, and which had never been claimed as reserved by Bussia in any way; to which, on the contrary, special stipulations for access had been made in connection with the Anglo-Russian Convention of 1825, ond which since 1848 or 1819 had been frequented by whalers and walrus- hunters of various nations, while no single fur- seal has ever been found within it. It is therefore very clear that tlio geographical limit thus projected towards the north could haro 80—06 been intended only to define the ownnnhlp of ■uch islands, if any, as might subsequently b« discovered in this imporfectly explored oocon; and when, therefore, in the order of the Treaty, it was proceeded to define the course of "the tame western limit " from the initial point to the Muthward and westward across Behring Sea, it is obvious that it continued to possess the same character and value. Dehatet in Congress on the Cession of Alaska, 1867, 1868. Neither the Debates in Congress — which pre- ceded and resulted in the cession and its ratiiica- tiou by the United States, nor the Treaty by which it was carried into effect, nor the subse- quent legislation by the United States, indicate tiie transfer or acquisition of any exclusive or extraordinary rights in Behring Sea. On the contrary, they show that no such idea was then conceived. In answer to a Besolution of the House of [636] 2 A— 2 B 07 Represontatiros of the 10th December, 1807, calling for all corroaporidcnco and intormation io the possession of the Executive in regard to the country proposed to bo coded by the Treaty, the Memorial of the Legislature of Washington Territory, which was made the occasion for the negotiaMon, togetlier with Mr. Sumner's speech iu the Senate, wore among other documonta transmitted. This Memorial shows that United States' citizens were already engaged in Ashing from •Gortcz Banks to Behriug Strait, and that they had never been under any apprehension of interference with such fishing by Russia, but desired to secuire coast facilities, especially for the purposes of curing fish and repairing vessels. The Memorial is as follows : — United Sum' Senate, Ex. Doc No. 177, 40th Coog., Sod Seu., p. 133. "To his Excellency Andrew Jolmsou, President of the United States. " Your nicmorialifits, the Legislative Assembly of WMh- ington Territory, Ix'g leave to show that abundance of cod- fish, halibut, ami salmon, of oxccUeut quality, have been found along the shores of the Russian possessions. Your memorialists respectfully request your excellency to obtain such rights and privileges of the Govemmer.t of Russia as will enable our fislung-vessels to visit the ports and harbours of its possessions to the end that fuel, water, and provisions may be easily obtained ; that our sick and disabled fishermen may obtain sanitary assistance, together with the privilege of curing fish and repairing vessels in need of repairs. Your memorialists further request that the Treasury Deportment bo instructed to forward to the Collector of Customs of this Puget 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 banks known to navigators to exist along the Pacific Coast from the Cortez bank to Behring Straits. " And, as in duty bound, your petitioners will ever pray. "Passed the House of Representatives, January 10, 1866. (Signed) " EDWARD ELDEIDGE, S/Mfer. " Souse of Rtprtaentativts. "HARVEY K. HINES, Pr«»d«.« "qftht Council. "Passed the Council, January 13, 1866." la the debate which took place in C jngress upon the subject of the acquisition of Alaska, [636] 2 the ralue 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 cxclusiye jurisdiction over any waters or fisheries distant more than 3 miles from land. On the contrary, Mr. Sumner, who had charge of the measure in the Senate, after pointing out that seals were to be found on the "rocks and recesses" of the territory to bo acquired, which would therefore make the acquisition more valuable, in touching upon the fisheries and marine animals found at sea, admitted that they were free to the world, contending, however, that the possession of the coast gave advantages to the United States' fishermen for the outfitting of their vessels and the curing of their catch. With reference to the whole fishery he remarked : — " The Narwhal with nu two long tusks of ivo.-y, out of United Sutci' which was made the famous throne of the early Danish fjo'i^'j joth"' kings, belongs to the Frozen Ocean ; but he, too, strays Cong., 2od 8e»» , into the straits below. As no sea is now mare clausum, P- '*'• all these may be punued by a ship under any flag, except directly on the coast and witliin its territorial limit And yet it seems as if the possession of this coast as a commercial base must necessarily give to ita people peculiar advantages in tnis pursuit." Mr. Washburn, of Wisconsin, said : — "But, Sir, there has never been a day since Vitus Behring sighted that coast until the present when the people of all nations have not been allowed to fish there, and to cure fish so far as they can be cured in a country where they have only from ftrty-five to sixty pleasant days in the whole year. England, whose relations with Rui 9ia are far less friendly than ours, has a treaty with that "lovemnient by which British subjects are allowed to fish and cure fish on that coast. Nay, more, she has a treaty giving her subjects forever the free navigation of the rivers of Ilussian America, and making Sitka a free port to the commerce of Great Britain." Uoileii Sute»' Coogreniooal Df batei, from *' Congreisiccil Globe," December 11,1867, Van I, p. 138, 40tb Coa;., SodSeu. In 1868 Mr. Ferriss spoke as follows : — United Sutei' Coogresiiiiul " That extensive fishing banks exist in tliese northern P*''*'*'> ^'^ , , , , . . , , " Congreiiional seas 18 quite certain ; but what exclusive title do we get Globe," July 1, to them ? They are said tc bo far out at sen, and nowhere **'■''• ''*'* "• •within 3 mariue leagues of the 'slauds or main shore." Cong» and Sot. 09 United SUtm' CoDgreMional Debate), from " Congreiaionil Globe,* July li 1668, Part IV, p. 8667, 40th CoD(f., Snd Sesa. Mr. Peters, in the course of his speech, remarked : — " I believe that all the evidence upon the eubject proves the proposition of Alaska's worthlcssness to be true. Of course, I would not deny that her cod fisheries, if she has them, would be aomewhut valuable ; but it seems doubtful if fiah can find sun enough to be cured on her shores, and if even that is so, my friend from Wisconsin (Mr. Wash- bum) shows pretty conclusively that in existing treaties we had that right already." UnitMl Suiaa' Congmiional Debatei, from Appeodii to " Congreiaional Globe," July 0, 1868, Part V, 9od 8eti., 40tb CoDg., p. 490. See alio Baacroft'i Alaaka, p. 670. Mr. Williams, in speaking of the value of the fisheries, said :— 9 "And now as to the fishes, which may be called, I suppose, the argumenhim piscatorium, ... or is it the larger tenants of the ocean, the more gigantic game, from the whale, the seal, and walrus, 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 ? My venerable colleague (Mr. Stcven.s), who discourses as though he were a true brother of the angle himself, finds the foundations of this great Republic like those of Venice and Genoa among the fishermen. Beautiful as it shows above, like the fabled mermaid — 'demmit in piscefh mulicr formosa stqxrne,' 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, he says, exhausted. The Falkland Islands ore now only a resting place in our maritime career, and American liberty can no longer live except by giving to its founders a wider range upon a vaster sea. Think of it, he exclaims — I do not quote his precise language — wliat a burning shame is it not to us that we have not a spot of earth in all that watery domain, on which to refit a mast or sail, or dry a net or fish ? — forgetting, all the while, that we 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 Iteport of Captain Howard, no fishing bank has been discovered within the Russian latitudes." It is contended therefore that Russia's rights "as to jurisdiction and as to the seal fisheries in Bohring Sea," referred to iu the Point of the Case under consideration, were such only as were hers according to international law, by reason of her right to the possession of the islands and other territory situated in this sea. That the Treaty of Cession docs not purport either expressly or by implication to convey any "dominion in the waters of Behring Sea,' I 1 »» 1 100 other than in territorial watera which would pass according to international law and the practice of nations as appurtenant to any terri- tory conveyed. That, upon the ratiQcation of the Treaty, no " dominion in the watera of Behring Sea " other than in territorial waters did, in fact, pass to the United States. 101 Elliott, t^nios Report, p. 35. Ibid., p. 70. United Slates' StalutCB at l^Tgt, »ol. XT, p. 241. Ibid., p. 348. 41it Cong., Sad Sell., Ex. Doe. No. 109. Chafixb VI. Head (F). — The Action of the United States and Russia from 1867 to 1886. When, in consequence of the cession of Alaska as a whole, the Ilussians relinquished their sovereignty over the Pribyloff (or "Seal") Islands in 1 867, sealers at once landed on the breeding resorts of the fur-seal on these islands. Sealers 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 usually practised by sealers on grounds where no Regulations were in force. In tlie year 1868, at least 240,000 seals are reported to have been taken, and 87,000 in the following year. In view of this wholesale destruction of seals, the United States' Govern- ment decided in the exercise of their undoubted right of territorial sovereignty to lease these seal rookeries, and to re-establish, by means of the necessary legislation, the lapsed Russian Regula- tions which had restricted the killing of the fur-seal. Accordingly, on the 27th July, 1S68, an Act passed the Congress of the United States, entitled ■"An Act to extend the Laws of the United States relating to Customs and Navigation over the territory ceded to the United States by Russia, to establish a Collection District therein, and for other purposes," of which section 6 pro- vides : — " Tliat it shall be unlawful for any person or persons to kill any otter, mink, mnrtcn, sable, or fur-seal, or other fur-bearing animal within the limits of said territory, or in the waters thereof." On the 3rd March, 1869, a Resolution was passed by the Senate and House of Representatives specially reserving 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 Treasury. Mr. Boutwell'a Report, as Secretary of the Treasury, preceded the Act of the 1st July, 1870. This Report discloses no suggestion of jurisdiction at a greater distance than 3 miles from the shore- line. With knowledge of the raids upon the islands and the existence of seal-hunting [636] a D 109 schooners, Mr. Boutwoll dwelt upon the meaus of protecting the seal islands only. On the 1st July, 1870, the following Act was passed entitled, " An Act to prevent the extermi* nation of Fur-bearing Animals in Alaska " : — "Be it enacted by the Seuato and House of Repre- sentatives of the United States of America in Congress assembled, tliat it shall be unlawful to kill ony fur-seal upon the islands of St Paul and St. Cicorge, or in the waters adjacent thereto, except during the months of June, July, September, and October in each year ; and it shall be unlawful to kill such seals at any time by the use of fire- a'^s, or use other means tending to drive the seals away from said inlands." .... Section 2. And be it further enacted, that it shall be uulawful to kill any female seal, or any seal less than one year old, at any season of the year, except aa above pro- vided ; and it shall also be unlawful to kill any seal in tht waters adjacent to said islands, or on tha beacVis, cliffs, or rocks where they haul up from the sea to remain." « » • • " Section 4. And be it further enacted, that immediately after the passage of this Act, the Seeretarj' of the Treasury shall cease, for the rental mentioned in section C of this Act .... for a term of twenty years, from the 1st day of May, 1870, the right to engage iu the business of taking fur-seals on the Islands of St. I'aul and St. George, and to send a vessel or vessels to said islands for the skins of such seals." • • • * " Section 5. And be it further enacted, that .... any person who shoU kill ony fur-seal on either of said islands, or in tlie waters adjacent thereto .... without authority of the lessees thereof .... shall bo deemed guilty of a misdemeanour." A lease was executed in 1870 on behalf of the United States' Goycrnment in favour of the Alaska Commercial Company, as provided for iu this Act. It covered the Islands of St. George and St. Paul only. The following instructions from the Treasury Department show that the administration con- fined the interference of their officers to those seal- hunters only who attempted landing upon the islands : — " Treamry Department, " September 1(!, 1870. "The following Executive Order, relating to the importa- tion of arms into the Islonds of St. Paul and St. George, within the district of Alaska, is published for the informa- tion of officers of tlio Customs : — " £xecutive Mansiotu, Washington, D.C., '• September 9, 1870. " So much of Executive Order of the 4th February, 1870, as prohibits the^ importation and use of fire-arms and For th« eziitiof lease from United States to Alukt Com- merrial Compui]'* Auguat 3, 1880k see Appendix. 4-llh Con;., }t Besi., Ex. Doe. No. 83, p. to. lOS ammnnition into and within tho Islands of .St. Paul niul St Q«orge, Alcwka, ia hereby modified so as to permit the Alaska Commercial Company to take a limited quantity of fire-arms and ammunition to said islands, subject to tho direction of tho revenue officers there and such regulations as the Secretary of tho Treasury may prescribe. " U. S. GRANT, Praident. "The instructions issued by this Department in its Circukr of the 8tli February, 1870, are accordingly modi- fied so as to adjust them to the above Order. " Revenue officers will, however, see that the privikga granted to the said Company is not abused ; that no fire- arms of any kind are over used by said Company in tho killing of seals or other fur-bearing animals, on or near said islands, or near the haunts of seals or sea-otters in the district, nor for any purpose whatever, during the months of June, July, August, September, and October of each year, nor after the arrival of seals in the spring or before their departure in tho fall, excepting for necessary protec- tion and defence against marauders or public enemies who may unlawfully attempt to land upon the islands, In all other respects, the instructions of the 8th February, 1870, will remain in force. "WM. A. EICHARDSON, " Acting Secretary." 44th Coof., lit Sni., Ex. Doo. No. 8S, pp. a9-34. " Treasury Department, Washington, B.C., 'Sir, "&p tako fiir-seala on tlieir annual migration to tlic Islands of St. Paul and St. George through the narrow Pass of Ouniinak. You recommend — to cut off the possibOity of evil resulting to the interests of the United States from these expeditions — that a revenue cutter bo .sent to t!iQ region of Ouniniak Pass by tlie lucli May next, " A very full conversation was had witli Captain Brj ant upon this subject while he was at llio Department, and ha conceived it to be entirely impracticable to nako such aa expedition a l)aying one, inasmuch as tlie 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 I19 did not seem to fear that the seals would be driven from their accustomed resorts, even were such attempts made. " In addition, I do not see that the United States wo'.ilil have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attcinpt within a marine league of the shore. "As at present advised, I do not think it expedient to carry out your suggestions, but I will thank you to com- municate to the Department any further facts or infor« mation you may be able to gatiier upon the subject " I am, &c. (Signed) "George S. Boctwell, Sccrttary.'* H., Ex. Doe. No. ISO, p. 124, Much 15, 1875. In 1875 Mr. Mclntyre, the Treasury Agent at the Pribyloff Islands, gave it as his opinioa th:it, in protecting the islands, he wa.s entitled to repel hy force " any attempt to kill seals in the rookerios or within a rifle shot of the shore." In 1875, a question liaving arisen as to Russia's authority to grant licences for the use of the sea.'* contiguous to her coasts, Mr. Fish, Secretary of State for the United States of America, gives conclusive evidence as to the interpretation placed upon the Convention of 182J) by tho United States, as follows : — " Tlicre was reason to hope tint the practice which formerly prevailed with powerful nations of regarding seat and bays, usually of large, client, near their coast, as dosed to any fnrciijn commerce or Jisiury not specially licensed by thorn, was, with'.^ut excepUon, n pretension of the past, and that no nation would claim exemption from the general rule of public law which limits its maritime juri.-idittion to a marine league from i(B coast. Wo shouM par- ticularly regret if Cussia should insist on any such pretension." Non-aii*rtion of cxeluBiTe authority over Bohring Sea by United Statei. It is found that from 18(J7 doAvn to nn\ including 1885, vessels continued to visit um\ hunt iu Bohring Sea without intcrforcuco whea outside of the ordinary territorial jurisdictiou. 108 Schooners from British Columbia were fishing M- R • Ex. Doc. for cod in 1866. and seals to the number of ut'seV^"' ^'"''" 20,000 a-year were reported as being taken south of St. George and St. Paul Islands in 1870 and 1872. The following Table shows the number of Whaling Industry, vessels composing the North Pacific whaling fleet after tlic date of the Alaska Cession.* of the United Statea, 1887, sec. 6, Tc!. ii, p. 85. Number of Year. Uuitcd Stat.'s' Remark?. Vessels. 1867 90- Also eleven foreign vessels. 18GB 61 Also eevt'ii foreign vessels. 1BG9 43 Also six foreign vessels. 1870 ■IG Also nine foreign vi—cls. 1971 35 All but seven of >... Beet were lost, iucluding four foreign ves.sels. 1872 27 Also four foreign vessels. Is 7,-! ;;o Also four foreign vessels. 1871 23 Also four fortign ves.=el?. 1875 Hi Also four foreign vessels. 1870 IS All but eight of the (lect lost, also two foreijin vessels. 1877 19 Three of the fleet were lost ; one foreign vessel. 1878 17 Our of the lleet lost. 1H7'J 21 Three of the fleet lost. 18S0 19 Walrus liunting is also known to have been Walrus Hunting, continuously practised by the whalers during these years, and in some years Inrgo quantities of walrus ivory and oil we"c obtained ; — "The Arctic whaling fleet from 1870 to 1880, inclusive, is estimated to have captured 100,000 walrus, producing 1,990,000 gallons of oil and 39S,8G8 lbs. of ivory, of a total value of 1,260,000 dollars." In 1872 expeditions for scaling in Behring Sea ^- ^~'„^''','9g''' wore reported to be fitting out in various places, 44tli Cong.. i«t as appears from Mr. Phelps' letter, already ^*'''" quoted, and in 1875 a schooner was reported as having been seen shooting seals among the seal islands. Ivan PetrofT, Special Commissioner of the United States to the seal islands in the year 1880, says in his Repoi-t :— "As those seals pass up aiid down the coast as far as H. U., Ex. Doc. tho Straits of I'uca and the moutli ot Columbia River, No 4o, 46th Cong., , , 3rd Sesi., vol. xvhi, t/iitc a number of tliem arc secured by hunters, who shoot p, gj, or spear thoni as they find Lhom asleep at sea. Also, small vessels are fitted out in San Franciseo, which regularly cruize in thcso waters for the purpose alono of ehooting sleeping seal." * Foreign veitcls in this I'able, of course, means all Tesssis not sailing under the United States' flog. 103 And he adds :-— H. n., Ex. Doc. " The fur trade of this country, with the exception of Coiiir 3rd Sen ^^'^^ confined to the seal islands and set apart I)y law, is Tol. XTiii, pp. 65, 68 free to al! legitimate enterprise." H. R., Ex. Doc. No. 153, 49th Cong., Ut Sess. H. K., Ex. Doc. No. 8883, 20th Cong., p. 68. Reviled Statutea. H. R., Ex. Dor., 60th Cong., 2nd 6eai., No. 3883, p. 381. Sealing-vessels and their catches were alsa reported by tlio United States' cutter " Corwin," but none were interfered with when outside of t! j 3-mile limit. In 1881 an Agent of the United States* Government stated that during the past twenty years prohahiy 100 vessels had prowled about; the PribylofF Islands. The Agents of the United States' Government sent to the seal islands previously to 1B8G con- tinually reported upon the inadequacy of tho protection of the islands, and they frequently referred to depredations upon the rooheries hy the crews of vessels sealin" in Behring Sea. Early in 1881, Collector D. A. D'Ancona, of Son Francisco, appears to have requested information from tho Treasury Department at Washington in regard to the meaning placed by that Department upon tho 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 us!'d in the law, and how far the jurisdiction of th« United States was to bo understood as extending. In reply. Acting Secretary II. F. French, of the Treasury Department, wrote as follows oa the 12th March, 1881 :— "Sir, " Your letter of the 19th ultimo, requesting certain informntiou in rcganl to the meaning placed by this Dcpartuiei.t upon the law regulating the killing of fur- bearing animals, except aa otherwise therein provided, within the limits of Alaska Territory or in the waters thereof, an;toro described. (Signed) " H. F. Fbench, " Acting fknrctari/." It docs not appear from any official docuraonts that any action was takon in accordance with tho opinion expressed in this letter, and no scuzures were made, and no warning was given to any British vessel engaged in scaling beyond tho ordinary territorial limits prior to 1880, although at least one British vessel is known to have been engaged in such scaling in 1881, and no less than thirteen were so engaged in 1885. The orders given to Lieutenant I. E. Lutz Mis. Doc, soth by the Captain of the United States' revenue ^""g;; ^^l^l^'^ steamer " Corwin," 22nd May, 188t, caro is p. 28. takon to confine any interference witli seal-hunters to those who might attempt a land.'ug on tho seal islands. Acting under these instruction.s, Lieutenant Lutz arrested the " Adele," of Ilamburg, Gustavo Isaacson, master, with three oflicers and a crew ol' eighteen Japanese, when a mile from 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 tliat, having now secured all necessary evidence^ he notified the captain of tho seizure of llie vessel. The circumstances which appear to have led to a change of official policy in 1880 will bo related hereafter. It may be convenient at this point to refer to questions which were raised by occurrences in tho Asiatic waters of the Pacific, adjacent to Hussian territory. "Wha Ill Itihery In<]uBtrict of the United State*, to). ii,p. 20. For oitract from Tikhmenieir, lee Appendix, and ■ P- *"•• jurisdiction If she does, her claim is not a tenable one since the cession of part of the group of the Kurile Islands to Japan, if it ever were tenable at any time." Tlie following appears iis an introductory statement in " Papers relating to Behring Sea Fisheries," published at the Government Printing Office in Washington, 1887 :— "Tliis sea [of Okhotsk] is a part of the waters to which the Ukase of 1821 applied, and which M. Poletica, in his subsequent correspondence with Mr. Adams, prior to the Treaty of 1824, said Hii Imperial Majesty, the Emperor of all the Russias, might have claimed as a close sea had ho chosen to do so. As has been seen, iiU question as to the right of citizens of the United States, as well as of the subjects of Great Pritain, to navigate and Dsh in those waters, was given up by Russia once for all in the Treaty , of 1824 with the United States, and of 1825 with Great Britain. " The following correspondence between Russia and the United States in the years 1867 and 1868 contains an explicit disavowal by R'lssia of any claim tj interfere with the fishing operations of citizens of the United States in the Sea of Okhotsk." The correspondence referred to shows that the " Europa." captain of the "Europa," a United States' ■wh£>lin!^-Tessel, compla..._!d to the Department of State at "Washington that the Captain of a Russian armed steamer had stated that he was authorized to drive United States' whalers away from tho viciTiity of the Settlement of Okhotsk, in the Sea of Okhotsk, and that lie had £ircd on the ship's boat of tho bark " Endeavour " of New " Eodeitour." Bedford. It appears also from the same correspondence "Jtra.'* that on the 27th July, 1867, the United States' bark " Java " was cruizing for whales in Shantar Bay and standing towards Silas Richard's Bluff, ■when a Russian Commander ordered him out of the bay, and thereupon Mr. Seward inquired 113 Weatniann to United States' fiecretnry of State, July 31, IH6S, Paper! relating to Dnhrin^ Sea Fisheries, Waahington, 1?89, p. t33 of the Russian Government what instruc- tions had been issued relating to fisheries in this sea. In reply to this inquiry, the following expla- nation was received from M. de "Wtstmann, Acting Minister of Poreign Affairs at St. Peters- burg, which shows the claim of jurisdiction of llussia to have been confined to 3 miles only in liussian gulfs and bays, in this part of the very waters covered by the Uliase of 1821 : — "These are the circumstances: The schooner ' Aleout,' under the command of Lieutenant Etoline, had been sent in commission from Nicolaievsk to Oudrk. The abundance of floating ice having forced him to enter into the Gulf of Tougoursh, he there met, the 14th July, at about 20 miles to the south of the Straits of Chautarsk, near the eastern coast, the American whaler ' Java,' occupied in rendering the oil of a captured whale. Considering thai foreign whalers are forbidden by the laws in force to fish in the Russian gulfs and bays at a distance of less than 3 miles from the shore, where the right of fishing is exclusively reserved to Russian subject)!, Lieutenant Etoline warned ('in vita') the captain of the 'Java' to 'bear off' from the Gulf of Tougoursh, which he at once did. The same day the ' Aleout ' made for the Bay of Mawgon, where arrived, on the next day the American whale schooner ' Caroline Foot,' whose captain, accompanied by the captain of the ' Java,' called on Lieutenant Etoline, and declared that he had no right to prevent them from fishing for whales wherever they liked. Lieutenant Etoline replied that there were in that respect established rules (' regies '), and if they insisted, absolutely, upon breaking U<.ciu, that he would be compnlled to prevent them The captaii; cf the schooner 'Caroline Foot' pretending ('ayant prdtendu ') that he had entered into the Bay of Tougoursh in consequence of 'deviations from his course,' Lieutenant Etoline offered at once all assistance in his power ; and, upon request, delivered him 7 pouds of biscuit from the stores of the 'Aleout,' after which the two ships again went to sea. The 19th of July, that is, four days after- wards, the schooner ' Aleout ' met a whale, upon which the Commander caused a trial fire to be made. At the same moment was seen, at about 16 miles distance, a sail, name unknown, and, nearer, three ' chaloupes,' the nearest of which was at least 3 miles in advance in the direction of the cannon fire. In the evening all these ships had disappeared. That incident is registered in the books of the '.Aleout' in the following terms: 'The 19th of July, at 9 in the evening, at anchor in the Bay of Mawgons, fired a cannon shot for practice at a whale afloat.' From these facts General Clay will bo convinced that the incident alluded to has been exaggerated, and even per- verted (' d6natur6 ') much in order to be represented as a cause of grievance against the Commander of the ' Aleout " on the part of the American whalers." [686] 2 G mm '''Mt:, S "H 114 The explanation was considered satisfactory. Mr. Seward observing that " the captain of the ' Java," spoke unwarrantably when by implication he denied that the Eussian authorities hare the right to prevent foreign vessels from fishing for whales within 3 miles of their own shore." In the year 1881 the Russian Consul at Yoko- hama issued, on behalf of the Eussian Imperial Government, a Notice, of which the following J a translation : — " Notice. " At tho request of the local authorities of Behring and United Siatei' other islands, the Undersigned hereby notifies that the Russian Imperial Government publishes, for general knowledge, the following : " ' 1. Without a special permit or licence from the Governor-General of Eastern Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, &c., on the Bussian coast or islands in the Okhotsh and Behring Seas, or oathe north-eastern coast of Asia, or within their sea boundary-line. " ' '2. For such permits or licences, foreign vessels should apply to Vladivostock exclusively. " ' 3. In the port of Petropaulovsk, tliough being the only port of entry in Eamtchatka, such permits or licences shall not be issued. " ' 4 No permits or licences whatever shall be issued for hunting, fishing, or trading at or on the Commodore and Bobben Islands. "'5. Foreign vessels found trading, fiohing, hunting, &c., in Russian waters, without a licence or permit from' the Governor-General, and also those possessing a licence or permit who may infringe the existing bye-laws on banting, shall be confiscated, both vessels and cargoes, for the benefit of the Government. This enactment shall be enfoi'ced henceforth, commencing with a.d. 1882. " ' 6. The enforcement of the abo\ e will be intrusted to Bussian men-of-war, and also to Bussian merchant-vessels, which, for tliat purpose, will carry military detachments and be provided with proper instructions. "'A. PULIKAN, "'H.I.Ii.M.Connd. Papers relating to Behring Sea Finherieii, Waih- ington, 1889, p. S99. "•Yokohama, November 16, 1881.' ' The firm of Messrs. Lynde and Hough, of San ?,„„ relating to Francisco, was in 1882, and had been for years, ^?'}''"'t ^, . engaged m the racific coast fisheries They ington, i889, yearly sent vessels to the Sea of Okhotsk, fishing ^' "*• from 10 to 99 miles from shore. The attention of the firm being called to the above Notice, they wrote the Secretary of State of the United States calling attention thereto. Papen relating to Benriog Sea Fiiheriei, WaahingtOB 1889, p. 261. Mr. Hoffmon to Mr. Frelinghuysen, March 27, 1882. Ibid., p. 262. M. de Oiers to Mr. Hoffman, May 8 (20), 1882. Fapeh relating to Benring Sea Fiiheriee, Wa»h- ington, 1881), p. 362. M. de Gien to Mr. Hoffman, June 1 (13), 1882. Ibid., 260. 115 The Secretary of State (Mr. Frelinghuysen), on the 7th March, 18d2, inclosed their letter, together with the regulations "touching the Pacific coast fisheries," as he termed them, to the United States' Minister at St. Petersburg. Mr. Hoft'man, the United States' Minister, acknowledged the receipt of this despatch, in reference to what he also called " our Pacific Ocean fisheries." Mr. Hoffman, having made inquiry of M. de Giers, the Russian Foreign Minister, the latter, in his reply, dated the 8th (20th) May, 1882, explained that these Hegulations applied only to "territorial waters of Russia," and, in a subse- quent letter of the 1st {13th) June, quoted Article 560 of the Russian Code, which is as follows : — " ARTICLE 560. " The maritime waters, even when they wash the shores, where there is a permanent population, can not be the subject of private possession ; they are open to the use of one and all." Mr. Hoffman, in a letter to Mr. Frelinghuysen of the l4th March, 1882, shows what he under- stood to be the meaning applied by M. de Giers to the words " territorial waters." He writes: — " The best whaling groonds are found in the hays and inlets of the Sea of Okhotsk. Into these the Bussian Government does not permit foreign whalers to enter upon the ground thai the entrance to them, fnm headland to headland, is less than 2 marine leagues wide" See pp. 110, 111, Indeed, M. do Giers, in the letter of the 8th BeSring'sea"''' " (20th) May, 1 882, already quoted, makes it clear a«heri»t. Wa«hlng- that, as to fishing and hunting, the rule was the tOD| J 887, , , p. f 63. same, and that the prohibition of vessels engaged in these pursuits extended only over the marine league from the shores of the coasts "and the islands called the ' Commander ' and the ' Seals.' " The island referred to as the " Seals " is Robben Island, and the reference to this and the Commander Islands indicates that M. de Giers, under the term of "hunting," was referring specially to the sealing industry. "Ellia." On the 21st " \ly, 1884, the United States' schooner "EUta" was seized by the Russian cruizer "Razboinik" in the Anadir River, which runs into Anadir Bay, a northern portion of Behring Sea. It was represented to the United 116 States that she was there trading and hunting PtpennUUnf walrus. The United States' Vice-Consul-General RtheriL, at Japsin termed the seizure "an act of piracy." Washington, to General Vlangaly, writing from the Depart- 1889, p. 26S. ment of Foreign Affairs on the 19th (31st) Ibid., p. 870. January, 1887, explained that the "Eliza" was arrested, " not for the fact of seal hunting," but for violating the prohibition touching trading, hunting, and fishing on the Russian coasts of the Pacific without special licence. The crew, it was fovmd, were trading with the Ibid., p. 269. natives on the coasts of Kamtchatka, as well as hunting walrus. This appears to have been accepted as a valid explanation ; but with reference to the seizure of their ship and of the "Henrietta," Mr. Lithrop, United States' Minister at St. Petersburg, writing to Mr. Bayard, the United States' Secretary of State, remarks : — "I may add that the Russian Code of Prize Law of 1869, Article 21, and now in force, limits the jurisdictional waters of Bussia to 3 mUes from the shore." The United States' schooner "Henrietta" had " Henrieiia." been seized on the 29th August, 1886, oflf East lyj , p. ae?. Gape in Behring Strait by the Eussian corvette " Kreysser." Explanations from the Russian Government were promptly demanded by the United States, and it was alleged .he was arrested for illicit trading on the Russian coasts. Nevertheless, Mr. Bayard, writing to Mr. Ibid., p. 3G9. Lothrop on the 16th March, 1887, observed : — " If, as I am to conclude from your despatch, the seizure United Sutn' of the ' Henrietta' was made in Russian territorial waters, KeUiionf, 1887, then the Russian authorities had jurisdiction ; and if the condemnation was on proceedings duly instituted and administered before a competent Court and on adequate evidence, this Department has no right to complain. But if either of these conditions does not exist, the condemna- tion cannot be internationally sustained. The first of these conditions, viz., that the proceedings should have 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 t'le seizure. On general principles of inter- national law, to enforce a condemnation by such a Court is a denial and pervenion of justice, for which this Government is entitled to claim redress. " The same right to redress, also, would ari it should appear that, while tht seintrt v>as vnthin tht i-mile zone, " the alleged offence was committed exterior to thai zone and on the hir/h teat. 117 " Tou are therefore instracted to inquire, not merely as tb the mode in which the condemning Court was con- stituted, but as to the evidence adduced before such Court, in which the exact locality of seizure should be included." H. K., Ex. Doc. ISS, 39tb CoDff., lM8eu. The instructions given £rom time to time to Commanders of the Revenue Service, or of ships of war of the United States cruizing in Bchring Sea, la Alaska and guarding the interests of the Alaska Commercial Company upon the islands leased to the Company, do not even suggest the intention of that Government to assert a claim so vehemently disputed when advanced by Russia. On the contrary, while vessels from British Columbia and elsewhere were trading and fishing generally in the Behring Sea, and while vessels — chiefly those of the United States — were actually raiding the rookeries, the instruction^ relating to the fisheries given to Revenue Marino vessels by the United States' Grovemment, until 1886, were 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 a special look-out was kept for vessels sealing while tihaping a course for St. Paul. Tb:; Captain writes : — " While we were in the vicinity of the seal islands a look-out was kept at the masthead for vessels cruizing, sealing, or illicitly trading among iJwse islands." Having drawn attention to the number of vessels which had taken, or had endeavoured to take seals on the shores of the islands, and illustrated the great difficulty of preventing the landing thereupon, the Commander concludes as follows : — "In view of the foregoing facts, I would respectfully suggest — "1. That the Df-partment cause to be printed in the western papers, particularly those of San Francisco, California, and Victoria, British Columbia, the sections of the law relating to the killing of fur-bearing animais in Alaskan waters, and defining in specific terms what is meant by Alaskan waters. "2. That a revenue cutter be sent 'j cruize in the vicinity of the Fribyloff Islands } States' revenue cruizera 188&-90, nnd the approximate diatance frnm land when seiaed. Tlie diatances assiniied in the caaea of the "Carolena," "Thornton," and "Onward," are on the authority of the United Stites' Naval Commander Abbo)( aee p. , Part ). Nome of Vessel. Date of Seizure. Appioxiinate Distance from Land when ^ized. United States' Veaael making Seizure. Carolena Augiut 1, 1896 7ii niik< . . . , Corwin. Thornton . . „ 1, ,. 70 ,. ft Onward „ 2, „ 115 Favourite . . . . ., 2, .. Warned by " Corwin " in about same position as " Onward " W. P. Say ward July 9, 1887 AR miles . , , . , . Rush. Grace »« »'» ti 92 „ t) Anna Beck . . June 28, „ 66 „ )l Dolphin July 12, „ 42 „ It Alft-od Adsma August lU, „ 63 „ t% Ada .. 28, „ IS „ Bear TriuDiph *, „ Warned hy " Rush " not to enter Behring Sea Juanita . . . . July 31, 1889 66 miles , , Rush. Pathfinder .. •i% ., fiO „ «• Triumph . , . . U. „ Ordered out of Behring Sea by " Rush." [P] As to position when warned Black D'amond 11, ., 36 inilea ft Lil^v August 6, „ 86 „ n Anil July 30, „ Ordered out of Behring Sea by •• Uuah " Kate Augukt 13, „ Ditto . . ff Minnie .. .. July 15. „ 6S miles ft Pathfinder .. March 27, 1800 Seiaed in Neah Bayf Corwin* \ Neah Bay made against her is in the State ol Washington, iinii the " I'athtinder " waa seised there on charg< •-- in Ui'hring Sea in the previous year. She was released two days Inter. 121 Befuial of Congress to de6ne claims of United Sutes. H.R., SOtb Cong., Stnd Sess., Report Ko. 3883, p. i. To accompany Bill H.R. 12432. Ibid, p. 10. Ibi-l., p. XXIll, The legality of the seizures made in 1886, 1887, and 1889 became a subject of much discussion and debate in the United States : — " The unceitaiiit}- of tlio claim of the Government of the United States is exemplified in the fact that United States' sealers entered Behring Sea to seal three or four years before the British sealers entflred, and they rapidly ir.creased in numbers, but was only occasionally interfered •with or seized." During the fiftieth Session of the House of Ecpresentativcs,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, whether and to what extent the same liad been violated, and by whom ; and what, if any, legislation is necessary for the better pro- tection and preservation of the same." The Committee reported, upholding the claim of the United States to jurisdiction over all waters and land included in the geographical limits stated in the Treaty of Cession by Russia to the United States, and construing different Acts of Congress as perfecting the claim of national territorial rights over the open waters of Behring S' i everywhere within the above-men- tioned lini The Report states : — " The territory of Alaska consists of land and water. Exolnsi ■ of its lakes, rivei-s, hnrbours, and inlets, there is a largi ^rea of marine territory whicli lies outside of the 3-mil(; limit from the shore, but is witliin tlie boundary- lines of the territory transferred by Russia to the United States." • • * • •' That h\ irtue of the Treaty of Cession, the United States n. .jiiiicd complete title to all that portion of Behring Sea situated within the limits prescribed by the Treaty." The concluding portion of the Report states as follows : — " That the chief object of the purcha.se of Alaska was the acquisition of the valuable products of the Behring Soo. " That at the date of the cession of Alaska to tue United States, Russia's title to Behring Sea was perfect and undisputed. " That by virtue of tlie Treaty of Cession, the United States ac■•* ■'#?•• Blue Book, < United Sutes No. a (1890)," p. 89, dominion of the United States as to these waters be not bub* taincd the restrictive Acts of Congress must full, and if our jurisdiction sliall be sustained small question can be made as to the power of Congress to regulate fishing and sealing witliin our own waters. The grave question, one im- portant tu all tlie nations of the civilized world, as well as to the United States and Great Britain, is ' the dominion of Bebring Sea.' " After conceding unreservedly the general doctrine of the 3-milc limit, Le proceeds : — "It thus appears that from our earliest history, contemporaneously with our iicceptanco of the principle of the marine league belt and supported by the game high authorities is the a.9sertion of the doctrine of our right to dominion over o\ir inland waters under the Treaty of 1867, and on this rule of iiitematioiial law wo base our claim to jurisdiction and dominion over the waters of the Behring Sea. While it is, ro doubt, true thai a nation cannot by Treaty acquire dominion in contravention of the law of nations, it is none tho less true that, whatever title or dominion our grantor, Uussia, possessed under the law of nations at tho time of tho Treaty of Cession in 1867, passed and now rightfully belongs to tho United States. Having determined tho law, wo ar" next led to inquire as to whether Behring Sta is an inland v.ater or a part of the open ocean, and what was Kussia's jurisdictioD over It. " Behring Sea is an inland water. Beginning on the eastern coast of Asia, this body of water, furmerly known as tho Sea of Kamtchatka, is bounded by the Teninsula of Kamtehatka and Eastern Siberia to the Behring Strait. From the American side of this strait the waters of the Behring Sea wash tho coast of tlie mainland of Alaska as far south as tho Peninsula of Alaska. From the extremity of this peninsula, in a long, sweeping curve, the Aleutian Islands stretch in a continuous chain almost to the shores of Kamtchatka, thus encasing the sea." And he concludes : — " Enough has been said to disclose the baaif of Bussia's right to jurisdiction of the Behring Sea wider the law of nations, viz., original possession of the Asiatic coast, fol- lowed by discovery and possession of the Ah utian chain and tho shores of Alaska north, not only to Behring Strait, but to Point Barrow and tho Frozen Ocean, thus inclosing within its territory, as within the embrace of a mighty giant, tlie islands and waters of Behring Sea, and with this the assertion and exercise of dominion over land and sea. "Such is our understanding of the law, such is the record. Upon them the United States are prepared to abide the Judgments of the Courts and the o^inion of the civilized world." On the 10th September, 18H7, the Marquis of Salisbury addressing Sir Lionel West, British Minister at Washington, discussed the proceed- [636] 2 K 126 ings in the United States' District Court in the cases of the " Carolena," " Onward," and "Thornton." After stating that Iler Majesty's Government could not find in these proceedings any justificatioii for the condemnation of those vessels, he wrote : — " The libels of information allege that they were seized Blue Book, for killing fur-seal within the limits of Alaska Territory, " Unitad SUt«« and in the waters thereof, in violation of section 195G of gj_ * " ■ the Revised Statutes of the United States ; and the United States' Naval Commander Abboy certainly affirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska ; but according to his own evidence, they were seized 75, 115, and 70 miles respec- tively south-south-east of St. George's Island. " It is not disputed, therefore, tliat the scizureii in ques- tion were effected at a distance from land far in exceos of the limit of maritime jurisdiction which any nation can claim by international law, and it is hardly necessary to add that such limit cannot be enlarged by any municipal law." "The claim thus set up appears to be founded on the exceptional title said to have been convoyed to the United States by Bussia at the time of the cession of the Alaska Territory. The pretension which the Russii :i Government at one time put forward to exclusive jurisdiction over the whole of Behring Sea was, however, never admitted either by this country or by the United States of America." Upon this ground tlic discussion between Her Majesty's Governme.'At and the Goyernment of the United States was carried on for some years until the receipt of Mr. Blaine's despatch of tho 22nd January, 1890, to Sir Julian Paunccfote, wherein it was for the first time set up that it was contra bonos mores to engage in the killing of seals at sea. Mr. BlainC; after promising Sir Julian Pauucc- See Appendis. fote, the British Minister at Washington, to put in writing the precise grotmds upon which tho United States justified the seizures, wrote as follows : — "lu the opinion of the President, the Canadian vessels Mr. Glaina to Sir J. arrested and detained in tho Rehring Sea were engoged in * """"'''**• " . January 32, 1890. a pursuit that is in itself contra honoa more! — a pursuit which of necessity involves a serious and permanent „ United s'tatei* injury to the rights of the Government and people of the No. 9 (1890)," Unit d fates. Pp. 3a6-398. Ho ni aes that tho practice of pelagic sealing irsurc 3 extermination of tho species, and cr ill hues; ■''J'), tablish this ground, it is not necessary tc argue tViJ., p, 89S. tho question of the extent and nature of the sovereignty of 127 this Governinent over the waters of the IJeliriiig Sea ; it is not necoasnry to explain, certainly not to dcfiue, the powers anJ privileges ceded by His Injperial Majesty the F,nn';>eror of Ru.ssia in the Treaty, by whicli the Aloakan Territory wan transferred to the United States. Tlia weighty coasidcratiou growing out of the acciuisition of that territory, witli all the rights on land and sea in- separably connected therewith, may Ije safely loft out of view while the grounds are set forth upon which this Oovoninient rests its j\istifieation for the action com- plained of by Ilev Majesty's Oovornment." " In the judgment of this Government, the law of the sea is not lawlessness. Nor can the law of the sea and the lil.ierty which it confers and which it protects be fierverted to justify acts which are immoral in themselves, which inevitably terid to result against t'^e interest and againnt the welfare of mankind. One stop bt yond tlu.t which Ilei- Majesty's Government Ima taken in this contention, and piracy finds its justilicatiuu." M ..fit* i li s Blue Bock, " United States' No. ! (1800)," On tbe 17th December, 1S90, Mr. Blaine again wi'ote to Sir Jul'an Pauncefote : — "Legal and diploinatic questions, apparently corapli- OAtod, are often found, after ))rolon,';ed discussion, to depend on the settlement of a single point. Such, in tha judgment of the I'resident, is the position in which tlia United States and Great liritaiii find th(!niselve8 in tlio pending coutroveis)' touching the true construction of tha EuRso-American and Anglo-Russian Treaties of 1824 and 1825. Great Britain contends that the phrase ' Pacifio Ocean' as used in the Treaties, was intended to incluco and does include, the body of water which is now known as the Behring Sea. Tiie United States contends that tho Behring Sea was not mentioned, or even referred to, in either Ti-caty, and wu.'i in no sense included in the phrasa 'Pacific Ocean.' If Great '^ritmu can maintiin her jwsition tliat the lithring Sea at the time of the Treaties with Itussin of 1824 and 1825 w.is iuch'ded in the Pacifiu Ocean, the Oovenunent of the Unite i States has no well- grounded compl.iint against her. If, on the other hand, this Government can prove beyond nil doubt tliat tho Bohring Sea, at the date of tho Treaties, w&s understood by the three Signatory Powers to be a separate body of water, and was not included ii\ the plirase 'Pacific Ocean,' then the American Case ag.iiii.st Great Brifciin is oomplcta and undeniable." .... In tho same note Mr. Blaine disavoivs the con- tention that till! Behring Sea is viuri' clansum, hut claims tbat tho Liliase, whicli nsscrted exclusivo jurisdiction over 100 miles fiom (l.o coast in that Sea, was never annulled liy llussia ; and, in eon- ulusiou, he claims for llic Unitwl States tho right, 1o hold for a spetjific intrposc a "comparatively restricted area of water." ■PHilRipiil 128 lu this note the Secretary of State thus expressed himself : — " Tlie English statesman of that day liad, as I have Blue Book, liofore remarked, attempted the aholition of the Ukase of " '^""'^-^''f*'' Alexander only .so fur as it affected the coast of the Pacific „_ 52/ Ocean from the 51st to the tiOth degree of north latitude. It was left in full force on the shores of the Behring Sea. There is no pi-oof whatever that the Russian Emperor annulled it there. Tliat sea, from east to west, is 1,."00 miles in extent ; from north to soiith 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 u .strip of 100 miles from the shore. But with tht;se 100 miles enforced on all the coasts of tVio Behring Sea it vould be obviou.ily inip.issible to approach the Straits of B'jhring, which were less than CO miles in extreme width." " The United Slates desires only such control over a jbid,, p. 54. limited extent of the waters in the Behring Sea, for a part of each year, a.s will bo suflicient to insure the protection of the fur-seal fisheries, already injured, possibly, to an irreparable extent by the intrusion of Canadian vessels." • • • • "The repeated assertions that the Government of the ibid., p. 86. United States demands tliat tho Behring Sea bo pro- nounced mai'c ehxusum aro without foundation. The Govoniment has never claimed it, and never desired it. It expressly disavows it. •'At the same time the United States does not lack Ibid., No. 1, 1891) ubundant authority, aeoordiiig to tho ablest cxjionents of P" international law, fur holding a small section of the Bthring !Hea for tho piotoction of the fur-.seal3. Con- trolling a compaititively restricted area of water for that one specific purpose is by no means tho equivalent of ileclaring tlio .soa, or any part thereof, /nare chnisum." This disavoAval of any claim to Behring Sea as a mare clausitm is again referred to in Mr. Blaine's despatch of the llth April, 1891. On tlic 21st Fehruary, 1891, in answer to the dcspatcli of Mr. Blaine of tho 17th December, 1890, Lord Salisbury writes to Sir Julian Pauncefote : — " The effect of the discussion which lias been carried on Ibid., No. 3, between the two Ooveniments ha.s been materially to '*32, p. 3. iittrrow the area of controversy. It is now quite clear that 11 ■ 1 v 1 the advisers of the I'residont do not claim jteiuiitg Sea as a mare clausum, and ind jed that tlioy repudiate that conten- tion in expitiss terms. Nor do they rely, as a jvistification for the seizure of British ships in the open sea, upon the contention that i\w. interests of the seal fisheries give to llio United States' tJoverainent any right for that purpose which, according to iutematioDol iaw, it would not other- wise possess. Wliatover importance they attach to the preservation of the fur-seal species, — and they justly look wu it as an object deserving i-he most serious solicitude, — 87. 129 they do not conceive that it confers upon any Maritime Power rights over the open ocean which that Power could not assert on other grounds. "The claim of the United States to prevent the exercise of the seal fishery by other nations in Behring Sea rests now exclusively upon the interest which by purchase they possess in a Ukase issued by the Emperor Alexander I in the year 1821, which prohibits foreign vessels from approaching within 100 Italian miles of the coasts and islands then belonging to Russia in Behring Sea." In itiply to this, Mr. Blaine wrote on the 14th AprU, 1891 :— Bltu Book No. 3, " ^^ ^^^ opinion of the President, Lord Salisbury is 1893> p. 4. wholly and strangely in error in making the following statement : ' Nor do they (the advisers of the Pre. ident) rely as a justification for the seizure of British ships in the open sea upon the contention that the interests of the seal fisheries give to the United States' Government any right for that purpose which, according to international law, it would not otherwise possess.' The Government of the United States has steadily held just the revorso of the position Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the sen is breed, that the Imbit of the seals in regularly resorting thither and rearing their young thereon, that their going out from the islands' in search of food and regularly returning thereto, and all the facts and incidents of their relation to the islands, give to the United States a property interest therein ; tliat this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest, so far aa 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 whetlier the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore pre- vailing." It does not appear, however, that the ■^pecial rights now claimed by the United States have ever been otherwise advanced or more definitely formulated than ns above mentioned. In brief, the statement above f^ivcn of the action of the Government of the United States shows : — That it lias asserted its territorial juris- diction over the llehriug Sea in tho culbrcement of the laws i)rotecti)ig seal lishorics by actually seizing during three seasons a number of vessels of Great Britain in the face of the continued protests on the j^.art of tliat Uovernnieut. TJiat the United States has never withdrawn at any Loao] 2 L 180 time its claim to territorial jurisdiction in those waters for the purpose of protecting its «eal fisheries. That, on the contrary, the United States' Government has persistently maintained, especially in the letters of Mr. Blaine to the Government of Groat Britain, that such jurisdic- tion belongs to it, and tliat the jurisdiction is based, not only upon the peculiar nature of the seal fisheries and the property of the Government in them, but also upon the fact that it was asserted by Russia for more than ninety years, and by that Government transferred to the United States. That, territorially, the claim of jurisdiction extends 100 miles from the shores of Alaska. Here, then, is a position assumed by this Government, not only in diplomatic correspondence, but in a much more emphatic and effective way — by the use of actual force. 181 Chapter VIII. Point 5 or Article VI. — Has the Uniud 8ta!t.* any Right, and, if so, what Right of Protection or Property in the Fur-Seals frequenting ths Islands of the United States 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 contradiction of the position assumed by the United States on more than ono occasion. The claim is, in this instance, made only in respect of seals, hut the principle mi^iit bo extended on similar grounds to other animals fer(e nalurw, as, for instance, whales, salmon, herrings. 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, whoso movements are uncon- trolled and not controllable by man. Fur-seals are indisputably animals fene natural, and such animals have been universally regarded by jurists as res nullius until they aro caught. No person can have property in them until he has actually reduced them into posses- sion by capture. If the seals are property, why are they so only in Behring Sea ? Outside Uehring Sea citizens of the United States have pursued the seals for years as Canadians have done, and arc doing so, without let or hindrance, and with the full knowledge of the United States' Government. The proposition that on one side of the Arclii- pelago of the Aleutian a seal is the property of tlio United States, and on the otlior it is the property of any man who can catch it, can only be sup- ported on tho ground that 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 132 of a seal on the high seas by a vessel not bc« longing to the United States is not cognizable by tho United States' Courts, and that any claim to protection of seals beyond territorial jurisdiction must involve mare clausum. Wliatcvor arguments may be brought forward ill order to induce other nations to coucur in the adoption of Regulations limiting and interfering with their rights to fish for and catch seals or other animals /era tiatura; upon the high seas, no nation imdor the principles of law and tho practice among nations can, without tho con- currence of all interested Powers, interfere with vessels engaged in this pursuit when outside of the ordinary territorial jurisdiction. In acoordanco with this view, tho GDvernment of tlie United States has more than once dis- tinctly asserted that tho fur-seal fishery is part of tho ocean fishery, and free to nil, beyond the S-mile limit. In 1832 the United States' schooner " Harriet," Davison, master, was seized by the Government of the Republic of Buenos Ayres at the Falkland Islands. Tliat Government claimed the right to capture and detain United States' vessels engaged in tho seal fishery at the Malvinas (Falkland Islands) and tho islands and coasts adjacent to Cape Horn. The United States' Charg6 d'Affaires wrote, on tho 20th June, 1832, to the Buenos Ayrcs Minister as follows : — " . . . . Tho Undersigned is instructed and authorized to Briliih and Foreign Bay. — that they utterly deny tho existonco of any right in ?.'■'* P«peri, by .J T. r.i\/ / 1 .. J i • . Herltlet, Tol. «, this EepuDuo to interrupt, molest, detain or capture any ,, 395 "Vessels belonging to citizens of the United States of America, or any persons being citizens of those States, engaged in taking seals, wliales or any species of flsh or marine animals, in any of the waters, or on any of the shores or lands, of any or cither of the Falkland Islands, Tiurra del Fuego, Cape Horn, or any of tho adjacent islands in the Atlantic Ocean." On the 10th July, 1832, the United States' Charg6 d'Aflaires wrote to the same Minister as follows : — " But again, — it 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 ; — tho question is certainly worth examination, whether the right to exclude American vessels and American citizens from the fisheries there, is incident to such a succeBsion to sovereignty. us British and Foreign SUto I'aperi, by Uertilet, rot. xx, p. HI. "Tlio ocean fisliery is a natural right, which all nations may enjoy in common. Every interference with it by a foreii;n Power, is a national wrong. When it is carried on within the marine league of the coast, which has been designated as the extent of national jurisdiction, reason leoms to dictate a restriction, if, under pretext of carrying on the fi8h(!ry, an evasion of the Kevenuc I^ws of the country may ronsonably Ik! apprehended, or any other ■erioua injury to the Sovereign of the coast, lie has a right to prohibit it ; but, as such prohiliition derogates from a natural riglit, tlio evil to be apprehended ought to bo a real, not an imaginary one. No sucli evil can be appre- hended on a desert and uninhabited coast ; therefore, sucli coasts form no exception to the common right of Fishing in the seas adjoining them. Ail tlie reasoning on this subject applies to thi largu bays of the Ocean, tlie entrance to which cannot bo defended; and this is the doctrine of Vattol, chapter 21!, section 291, who expressly cites the Straits of Magellan, as an instance for the appUcation of tlio rule. " . . . . Tlio Treaty concluded between Great Britain and Spain, in 1790, already alluded to, is tn bo viewed, in reference to tliis subject, because, botli nations, by restricting tliemselves from forming Settlements, evidently intended tliat the fishery should be left open, both in the waters and on the shores of these islands, and perfectly free, so that no individual claim for damage, for use of the siiores, sliould ever arise. That case, however, could scarcely occur, for whales are invariably taken at sea, and generally without the marine league — and seals, on rocks and sandy beaches, incapable of cultivation. The Stipula- tion in tlie Treaty of 1790 is, clearly, founded on the right to use tlie unsettled shores for the purpose of fishery, and to secure its continuance." Hunt'a "Merch- ants' Magazine," February 1842, p. 137. Mr. Hubert Grcenliow, whose works Lave already l)een quoted, in a series of articles written for "Iliint's Merchants' Magazine," in February 1812, on the Falkland Islands, refers to the claim set up by Buenos Ayres respecting the jurisdiction of the Republic and the applica tion of its laws and regulations, " especially those respecting the seal fishery or the coast." Mr. Greenhow says : — "To proceed another step ii amissions. Supposing the Argentine Republic to have really and unquestionably inherited from Spain the sovereignty of the tenitories adjoining it on the south, and the contiguou,'? islands, that Oovernment would still want the right to extend its ' Regulations respecting the seal fisliery ' to the unsettled portions of the coasts of those territories. That right was indeed assumed by Spain, with many equally unjust, wliioh 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 ; [636] 2 M— N " 184 they insisted on navigating every part of the open aea, and of its unoccupied straits and harbours, with such limita- tions ouly as each might clioosa to admit by Treaty with another ; and they resorted to the Nortli Pacific coasts of America for trade and settlement, and to the southernmost shores of the continent for the sea! fishery, without regard for the exclusive pretensions of Spain to the sovereignty of those regions. Of the ImnJre.U of vessels, nearly all American, which annually fnijuenkd tlie coasts and seas above mciiiioncd after 1789, no< one was captured or detained by the Spanish authorities ; and long before the revolutions in Southern America began, the prohibitory ])ccrees of the Court of Madrid and of its Governors, relative tn those parts of the world, had become obsolete, and the warnings of its officers were treated as jests. " The common right of all nations to navigate and tiah in the open sea, and in its indefensible straits, and to use their unsettled shores for temporary purposes, is now admitted among the principal Maritime Powers; and the stipulations in Treaties on those subjects, are intended to — prevent disputes as to what coasts arc to he considered as unsettled, — what straits are indefensible, — within what distance from a settled coast the sea ceases to le open, &c. "The Governments of Spanish Annrican Republics have, however, iu mauy instances exhibited a strong in- disposition to conform witii these and other such liegula- tions of national law, though clearly founded on justice and reason, and intended clearly for the benefit of the weak, to which class they all belong." He also refers to the case of the " Harriet " as follows : — " . . . . The President at the same time declared, that Hunt's "Mercb the name of tlie iLcpublic of Buenoa Ayrca ' had been used, a»ts' Magazi- V' to cover with a .show of authority, acta injurious to tho - - ° ■* • commerce of tho United States, and to the property and liberty of their citizens ; for which reason, he had given orders for the dLspateh of an armed vessel to join the American sfiuudron in the soutli f-eas, and aid in allording all lawful protection to the trade of the Uu'r>n, which might be rc'tuircd ; and he should without delay send a Minister to Buenos Ayros, to examine into the nature of the circumstances, and also of the claim set up by that Government to the Falkland Islands. " . . . . The question had, however, become more c ,n- plicatcd before the arrival of Mr. Baylies at P.ienos Ayres. "Tlie 'Lexington' reached Berkeley Sound ou tho 28th December, and lay at the entrance, during u severe gale, until the 31 at, when she went up and iinchored in front of 'he harbour of Solednd. Boata were immediately sent iwhore, with armed .seamen and marines, who made prisoners of Brisbane, Me'-alf, and some other persons, and sent them ra boa;ii '.he slii]); the cannon mounted before the pluco WDre at tlie same time spiked, some of the arms and ammuuition wr^re destroyed, and tho soal-skius f. U3. Ibid., p. 144. " Treaty, SepWinber 30, 1800, Finiice and United States, American State Capera, Foreign Uelations, vol. ii, p. 295. 135 and other articles taken from tho ' Harriet ' and ' Superior * were removed from the warehouses, and phiced in tlia schooner ' Dash,' which carried them to the United States. Captain Duncan then gave notice to tlio inliabitants that tlie seal fishery on those coasts was in future to he free to all Americans ; and that the capture of any vessel of tlio United States would be regarded as an act of piracy ; and having affixed a declaration in writing to tliat eflect oa the door of the Government-house, he took his departure, on the 22nd January, 18.32, canying with him in tlia ' Lexington,' Brishane and six otlu'r persons as prisoners, with many of the negroes and settlers as passengers." The principle siiggosted in tlio question dis- cussed in this chapter has been steadily resisted hy all tho Powers. So, in 1800, the United States joined Franco in a declaration that the whale and seal fisheries were free in every quarter of tho gloLe : — "Ar.TICLK 27. "Neither party ".ill intermeddle in the fisheries of tlia other on its coasts, uor disturb the other in the exercise of the riglits which it r.jw holds, or may aci^uire'ou tho ccast of JTowfuundland in the Gulf of St. Lawrence, or else- where on the American coast, northward of the United States. But the whah; and seal fisheries shall be free to both in every quarter of the world." Dr. Woolsey, in the sixth edition of his Treatise on International Law, already quoted, says : — "The recent controversy between Great Britain and tho Sec. 69, p. 73. United States involving tho right of British subjects to catch seals iu North Pacific waters appears to be au attempted revival of these old claims to jurisdiction over broad strctclies of se.a. That an intcrnaiional agreement establishing a rational close season for the fur-seal is wiso and necessary no one will dispute, but to prevent foreigners from sealing on the high sea or within tlie Kamscliatkau Sea, which is not even inclosed by American toiritorj', il.i we.st and noith-west shores beiug Russian, is as unwar- ranted as if Kngland should warn fisheimcu of otl or " nationalities off tho Newfoundland banks. " Tlie right of all nations to tlie use of tho high sra being the s.ime, their right to fish u; on the high seas or on banks or shoal places in them are eciual." Record of the ProceedingH of Halirax FnheriM Commission), 1877, p. I6.>3. Mr. R. II. Dana, in Lis speech on behalf of the United States befo.e tho Ilalifa.x Tishoriea Commission in 1877, says : — "The right to fish in th; sea is in its nature not real, as tho common law has it, uor immovable, as named by tho civil law, but personal. It is a lilicvt)'. It is a frauchiso or a faculty. It is not property portoiiuog to or connected w^mBaM 136-140 .with the land. It; ia incorporeal ; it is aboriginal. Tlio light of iishirig, dropping line or not into tlio sea, to draw from it tho iiieauu of sustonauco, ia as old aa the human r.'.oe, and tlio limits that have been set about it have been set about it in recent and modern tunes^ and wherever the iioiierman is excluded, a reason for excluding him should ftl'.vaya be given. I Rpeak of tho deep sea fishernion f il'owiug the frec-swiniming fiah through tlie sea, not of the crustaceous animals, or of any of those that connect themselves with tho soil under the sea or adjacent to the .•'aa, nor do I spealv of any fishing which requires posses- sion of tho land or any touching or troubling tho bottom of t'.ie sea ; I speak of tho deep-sea lishenneu who sail over the liigh seas pursuing the free-swimraing fish of the high saas. Against them, it is a question not of admission, but of exclusion. These iish are not property. Nobody owns Iheni. They come wo know not whence, and go wo know not whither. « • • • '■ They are no man's property ; they belong, by right of nature to those wh.-' take them, and every man may take tliem who can." In the absence ot any clear indication as to the grounds upon which tho United States l)aso so extraordinary a claim to the right to protection or property in animals feree naturer, the further consideration of this claim must of necessity be postponed. 141 Chapteb, IX. Kent'« " Com- mentaries," p. 38. It now only remains necessary to state the principles of law applicable to the whole Case, the authorities bearing thereon, tho conclusions of fact established by the foregoing statement, and to formulate the fiual prohil)itions both of law and of fact, upon which Great Britain will insist. The sea no'., known as Behring Sea is an open sea forming part of the common highway of all nations, and especially of Great Britain, to her possessions in the northern parts of North America. In the absence of Treaty and inter- national arrangement, all the nations of the world have the right to navigate and iish in such waters, and no mere declarations or claims of any one or more nations can take away or restrict the rights of other nations. Moreover, mere non-use or absence of the exercise by any nation cannot in any way impair or take away the right of that nation or of any other nation to exercise these rights. They ai-c, in fact, the common heritage of all mankind, and incapable of being appro- priated by any one nation. The rights and interests of nations in the open aea are correctly stated by Chancellor Kent as follows : — "Tlio open seii is not capable of being possessed as private property. Tho free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated." The controversy between Grotius and Solden as to tho right of appropriation by a nation of the sea boyond tho immediate vicinity of the coast is thus reviewed hy Wheaton : — WheatoD, " Then; are only two decisive rea.sons applicable to the Elements, § 187. j^ueslion. The fir.st i.s jihysical tmd material, whici 'vould alone ho stillicient ; but when coupled with the second reason, which is purely mural, will he found ctuel isive of the whole controversy. " 1. Those things which are originally thd coininon pro- perty of all mankind can only become tlie exclusive pro- peiiy (if a partiiudar individual or society of men, by means of possession. In order to establish tha cl..iin of a particular nation to a riglit of property in the sea, that nation nmst obtain and keep possession of it, which is iui possible. [C36] 2 ld.2 " 2. In tho second place, tho son is au element which bolonga equally to all men, like the air. No notion, than, has tl"i right to appropriate it, even though it might b6 physiciilly possible to do so. " It is tluis (leinonsti'rttLHl that tlio sea cannot become tho Cf. Ortol»D, exclusive property of any nation. And, consequently, the ji^r'?' to"*''l *** '* use of tho sea for these purposes, remains open and pp, 120-126. common to all mankind." V In a note on this passage of Wheaton, Mr. Dana adds that — " The right of one nation to an exclusive jurisdiction over an open soa was, as stated in tlie text, vested solely on a kind of prescription. But, however long acquiesced in, such an appropriation is inadmissible iu tho nature of things, and whatever may be tho evidence of tho time or nature of the use, it is set aside as a bad usage, which no evidence can make legal. Sir R. Phillimoro writes : — " The right of navigation, fishing, and the like, upon the Phillimore, " Intir- open sea, being jwa mcrm factiltiUU, riglits wliich do not national Law," I, require a continuous exercise to maintain their validity, but which may or may not be exercised according to the free will and pleasure of those entitled to them, can neitlier be lost by ruin-vKr or prescribed against, nor acquired to the exclusion of others by having been iramemorially exercised by one nation only. No presumption can arise that those who have not hitherto exercised such rights, have abandoned the intention of ever doing so." The grounds upon whicli a claim hy prcscrip- Nature of Prescription, tion is supported afford a further illustration of this nrgument. Jnlike adverse possession or limitation, pre- scription rests for its validity on a presumed prior grant. In international law there is no room for such a presumption. The following position was correctly taken hy Position taken by United States in 1862: CulMk tl e United States in 18G2, and, it is presumed, w 11 he adhered tc by that country to-day. Iu that year Spain pushed her claim to an extended jurisdiction around the Island of Cnba, Secretary Seward wrote : — "It cannot be admitted, nor indeed is Mr. Tessara Mr. Seward to understood to claim, that the mere assertion of a Sovereign, '^f- Torrara. by an act of legislation, howev», solemn, can have the „ jnlcrmitional effect to establish and fix its external maritime jurisdic- Law," vol. i, tion He cannot, by a mere Decree, extend the **"'" '*' ■' 1 limit and fix it at 6 miles, because, if he could, ho could in the sp.ne manner, and upon motives of interest, ambition, and even upon caprice, fix it at 10, or 20, or 50 miles, without the consent or acquiescence of other lis Power.1 wliich have a common right with liiinnelf in tha frt'cdom of uU thn oceans. Siicli u iirutrnsiou toulil iiovoi- bu Huucesafully or rigiitfiilly niuintuiiicJ," It is claimed l)y Groat Brltiiln tlint tlio facts already stated establish : — (rt.) That from the earliest times down to (lio year 1621 the ships of Great Britain and tl.o United States and of other foreign nations navi- gated the non-territorial waters of IJehring Sea and the other parts of the North Pacific, and exercised freely the national and common rights therein without interference or remonstrance hy Bussia ; {b.) That when, in the year 1821, llussin, in the terms of the Ukase of that date, advanc d claims to exercise control over a considerahlo portion of the non-territorial waters of the North Pacific (including a considerable portion of (lio non-tcrritorial waters of Behring Sea) as a tuaro clausum, the practice of nations and their gene- rally-admitted rights upon the high seas wcro already entirely opposed to any such claim to tho exclusive and excei)tional rights embodied in ox* implied by the Ukase, and that this attempt on the part of Ilussia led to an immcdiato and emphatic protest by Great Britain and the United States, which protests led to tho withdraw-al of Russia's claims, and that those claims wero never recognized or conceded by Great Britain in the smallest degree. (c.) Tliat the body of waters commonly known as "Behring Sea" is included in the phrase " Pacific Ocean " as used in the Treaty of 1825 between Great Britain and Ilussia, and that that Treaty was intended to declare the rights of Great Britain to navigate and fish in all tho waters over which Ilussia had attempted to control and limit her rights, that is to say, from Behring Straits on the north to latitude 51° on tho coast of America, and latitude 45° 50' on the coast of Asia. (f/.) That for the space of more than forty years, that is to say, from 1824 to 1807, the subjects and vessels of Groat Britain and tho United States and other nations continued in increasing numbers to navigate, trade, and lisli in th'' waters of Behring Soa, and tliat during tlie whole of that period no attempt was made on tho part of Russia to reassert or claim any dominion or jurisdiction over tho non-territorial waters of IMAGE EVALUATION TEST TARGET (MT-3) V. :/- /. ^ 1.0 I.I 11.25 ^ 1^ 12.2 Mi lii •^ lAo 12.0 1.4 6" 1.6 V] //a e. % <^ 7: /^ '>W '/ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4503 (J- I 14^1. that Bca, but that, on the contraiy, tlio right of nil nations to navigate, fish, and exercise common rights was fully recognized. (e.) That at the timo of tho acquisition of Alaska by tho United States pursuant to the Treaty of tho 30tli March, 1807, Russia had no rights in respect of Behring Sea other than tliose which belonged to her as possessing territories washed by its waters, and could not transmit to tho United States any rights of exclusive domi- nion or control over navigation and fishing in uon.ten'itoriul waters, and tho United States of America acquiring as they did all the rights of Russia, acquired no more. Further, that at the time of the acquisition tho United States of America wera fully alivo 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. As to tho rights which Russia possessed at tho time of tho Treaty of 1867, and which were transferred to tho United States by virtue of that Treaty, the ordinary rule as to the extent of maritime jurisdiction applies. Admitting, in the consideration of this question, that Russia's title before 1867 to tho coast of Behring Sea and to tho islands within those waters was complete, an examination of the jirinciples of international law and the practice of nations will show that her jurisdiction was confined to tho distance of 1 marine league or 3 miles from lior shores. Ortolan, in his " Diplomatie do la Mer," pp. IdS, 153 (ddition 1864), says :— " On doit ranger sur la mfimo ligno quo rades, et les Prooecdinit of portcs, IcH golfoa, ct les baies, et tons les cnfoncements H»Hftx Fiihcrin Commiuion, 1877, p. 163. connus sous d'aiitres du nominations, lorsquo ces cnfonco- incnts, formil'S par les terres tl'un m^mc fitat, no dt'nasscnt pas en Inrgour la double portio du canon, ou lorsquo I'cntrtJc pout en Otre gouveniuo par rartillorie, ou qu'cUo • est d(5fenduo naturelloment par des llei, par dcs bancs, ou par des roches. Dans tons ces cos, en ofTot, il est vrai do dire quo ces golies ou ces bales sent en la puissanco do i'SiUit maitrc du territoire qui ha cnscrre. Cot £tat en a la possession : tous les raisonnemonts que nous avons fait a I'l'ganl des rodes ct dcs poits i)euvcnt sa rdpt'ter ici. Les bords et rivages do la mer qui baignc les cdtes d'un Ortolin. d. 183. £tat soiit les limites mnritimes naturtUcs do cet £tat- Maia pour h protection, [our la ddfenso plus cfncoce de CCS limites naturelles, la coutnnie gdndralo des nations, d'accord oveo beaucoup de Trait<5s publics, [.ermet do tracer siu' mer, k une distance convenable des c6tea, et 145 ProeMdipgiof II«Uru Fiiherif( Commitiioi, 1877, p. isza. auivant leura contours, una ligno iinaginairo qui doit ttra considt^rde comme la frontifire maritime artificiuUc. Tont b&timent qui sn trouvo & terro do colte ligno est dit 6tre dam U$ eaux tie Tfltat dont elle limita lo droit de souvc- tainet^ et de juridiction." Under the clauses of the Convention of the 8th February, 1853, the case of the " Washing- ton" (which had been seized in the Bay of Fundy and confiscated in the Vicc-AdmiraUy Court at Yarmouth, N.8.) came before the Joint Commission for settlement of claims in London, and on the disagreement of the Commissioners vas decided by the Umpire, Mr. Joshua Bates, in favour of the United States. In his decision be said : — "The question turns, so far as relates to the Treaty stipulations, on the meaning given to the word ' bays ' in the Treaty of 1783. Ily tliat Treaty, the Americtiis had no right to dry and cure fish on the shores and bays of Kewfoundland ; but they had that right on the shores, coasts, bays, luxrhcurs, and crccla of Kova Scotia ; and, as t'loy must land to euro fish on the shores, bays, and creeks, they were evidently admitted to the shores of the hays, &c. By the Treaty of 181S the same right is granted tc ;ure fish on the coasts, bays, &c., of Newfound- land ; but the Americans relinquished that right, and the right to fiih within 3 milts of the coasts, bays, ic, of Kota Scotia. Taking it for granted that the framcrs of the treaty intended that the word ' bay ' or ' bays ' should have the same meaning in all cases, and no mention being mada of headlands, there appears no doubt tliat the ' Washington,' in fisliing 10 miles from the shore, violated no stipulations of the Treaty. "It woa urged, on behalf uf the British Government that by * coasts,' ' bays,' &c., is understood an imaginary lino drawn along the coast from headland to headland, and that the jurisdiction of Her Jfnjesty extends 3 marine ntiles outside of this line ; thus closing all the bays on the coast or sliore, and that great body of water called the Bay of Fuudy, against Americans and others, making the latter a British bay. This doctrine of the headlands is new, and has received a proper limit in the convention between Franco and Qrcat Britain of tho 2nd August, 1839 ; in which ' it is agreed that tho distance of 3 miles, fixed as tho general limit for tho exclusive right of fishery upon the coasts of the two countries, shall, with respect to bays the mouths of which do not cxcesd 10 miles in width, ba measured from a straight line drawn from headland to headland." *' Tho Bay of Fundy is from C5 to 75 miles wido and 130 to 140 miles long ; it has several boys on its coast ; thus the word ' l)ay,' as applied to this great body of v,-atcr, has the same meaning as tliat applied to the liay of Biscay, tlie Bay of Bengal, over which no iiation cxn liave [636] 2 P 146 the right to assnnie aoTereignty. One of tbc headlands of tho Bay of Fundy is in the United States, and ships bound to Possomaquoddy most sail through a large space of it The islands of Grand tlcnan (Britisli) and Littlo Menon (American) ore situated nL'rly on a lino from lioadland to headhind. Tlicse islands, as represented in all geographies, nre situated in tlio Atlantic Ocean. Tiio conclusion is therefore in my mind irresistible that tho Bay of Fundy is not a Britiah bay, nor a bay within the meaning of the word as -jed in the Treaties of 1783 and 1818." The Agent for tho United States before the Halifax Fisheries Commission, 1877, quotes this decision, and adds tho following note : — " This Convention between France and Great Britain Froo«cdiog« of extended the headland doctrine to bays 10 miles wide; Halitix Fiiheriw thus going beyond tlie general rule of international law, according to wliich no bays are treated as within the territorial jurisdiction of a State which are more than € miles wide on a straight line measured from one head- land to the other." CommiHioD, 1877. p. 193. The principle of tho marine league was in 1872 applied by Mr. Boutwell, United States* Secretary to the Treasury, in a letter of instruc- tions to the Collector of Customs at San Francisco, dated 19th April, 1872, as follows : — "I do not see that 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 withiji 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, M'ho wrote to tLe United States' Legation in llussia on the 1st December, 1875 : — " There was reason to hope that the practice, which ior- merly prevailed with powerful nations, of regarding seas and bays, usually of large extent near their coast, as closed to any foreign commerce or fishery not specially licensed by them, was, without exception, a pretension of the past, and that no nation would claim exemption from the geniral rule of public law which limits its maritime juris- dictioii to a marine league from its coast. We should pai- ticularly regret if Russia should insist on any such preten- mon." ^Iliarion'f " Digat," iee. p. 106. The same position was taken up by the United States in their brief filed with the Halifax Fisheries Commission in 1877. The Agent of the United States at Halifax, 147 ■f1 ProcMdingi of Halifax Fiaherie* ComminioD, '87' p. 163. after setUn^ out tlie Tarioua authorities under this head, concluded as follows : — " The jurisdiction of n State or country over its odjoininj? waters is limited to 3 miles from low-water mark along iU Bca-coact, and the same rule applies equolly to bays Bn headland. Property in and dominion over the sea can only exist as to those portions capable of permanent posses- sion ; that is, of u posaes-sion from the land, whifh possee- sion can only be maintained by artiller)'. At one niili! beyond the reach of coast-gnns there is no more possession than in mid-ocean. Tliis Is the nile laid down by almost all the writers on international law." id., p, I6S. Ib!d.,p. 1C3. As to inland seas and seas over wliich empire may extend, the following authorities were referred to by tlic Agent in the same brief : — "At present," says Vattcl, "Law of Nations," Book 1, oh. xxiii, §§ 289, 291, " the whole space of the sea within cannon-shot of the const is considered as making a part of the territoiy ; and, for that reason, a vessel taken under the guns of a nutral fortress is not a good prize. " All we have said of the parts of the sea near the coast may be said more particularly, and with much greater reason, of the roads, 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 given — as Hudson's Bay and the Straits of Magellan — over which the Empire cannot extend, and still less a right of property. A bay whose entrance may be defended may be possessed and rendered subject to the laws of the Sovereign ; and it is cf importance that it should be so, since the country may be much more easily insulted in such a place than on the coast, open to the winds and the impetuosity of the waves." Professor Bluntschli, in his "Law of Nations," Book 4, §§ 302, 309, states the rule in the same way:— " When 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 from the coa.st — is considered as belonging to the territory of that State. Treaties or agreements can establish other and mora precise limits." "Note. — ^The extent practised of this sovereignty has remarkably incrcasetl 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 148 originully only to a itono'n-tlirow from the coott ; later, to np nrrow-Bliot ; fira-armi were invented and by rapid progress wu have arrived to the far-shoo>'iig cannon of the ]iro8ont ogc. But still wo preserve the principle : ' Ttrr9 ilominittm finilnr, vhifinitur armorum vi$.' " " Within certain limits, thoro are submitted to th« sovereignty of thu bo.-dering State : — " (a.) Thu portion of the sea placed within a oa&noj« shot of tlio slioro. "(6.) Ilnrliours. "(c.) Gulfs. " (d.) IJortd8t<;ad8." " IfoU. — Certain portions of the sea are so nearly joined to the terra firma, that, in some measure at lonjit, they ousht to form a part of the territory of tlio bordering State ; thoy are considered n» occessories to the terra, firma. The safety of tho State, nnd Iho public quiet, are so depen> dent on them that they cal^uot lie conteutod, in certain gulfs, with tho poi-tioii of the sea lying under the fire of cannon from the coaat. Tlicao exceptions from the general rule of tho liberty of the sea can oidy b>! made for weighty rensonn, ond when tho extent of tho arm of the sco is not large ; tlius, Hudson's I'ay and tho Oulf of Mexico evidently are a part of the open sea. No one disp tea the power of Knglutid over the ann of tho sea lying tween the Isle of Wiglit nnd tho English coast, which eould not be luluiitlcd fur tliu .sea lying between England and Ireland; the Engl'sh Admiralty bos, however, sometimes main- tained the theory of ' narrow seas ;' and has tried, but without 8UCCC8.1, to keep for its own interest, under tho name of ' King's L'iiambois,' some considerablo extents of the sea." Kliibcr *' Droit dcs Gens Modcrncs do I'Europo (Paris, edition 1831)," vol. i, p. 210 :— " An tcrritoiiv maritinio d'un £tat appurticnncnt les l'roe«edliigi of districts miiritimes, ou puragc.-s susceptiblcs d'une pos- CommlBiioo I'sn session exclusive, sur lesquels I'llltat a acquis Q)ar occu- p. 16S. pation ou convention) et continuti la 8ouvcrainet(5. Sont do CO norabrc, (1) Les parties do I'ocean (jui ovoisinent le turritoire continental >le I'fitat, du moins, d'apris ropinion prcsrmo generalcmcnt adoptiie, outaut qu'elles se trouvent ROUS la porteo du canon qui scrait place sur lo rivage; (2) les parties do I'ociJuu qui s')!tcndont dans le territoire continental del'Kt^it, .si elles jwuvont Ctro gouveniec-sparle canon dcs deux Irards, ou quo I'ontriie seulement en pent (tro defcndue uux vaisseaux (golfes, bales, et cales); (3) les detroits qui separcnt deux continents, et qtii (Sgnle- mont sont sous la porltfc du canon placd sur Ic rivage, ou dont I'entrt'C ct la sortie peuvcnt etre dt'fendues (detroit, canal, bcsphorc, sonde). Sont encore du mfime uombro ; (4) les golfes, ddtroits, ct mers avoisinant lo territoire continental d'un £tat, lesquels, quoiqu'ils no soient pas entiirement sous la portee du canon, sont neanmoina rccounus par <' res Puissances comme mer fermdo; _ Brief for th* UDlUd ButM. VUtditaUw Octobw 11, 1887. "New York HnoM," Octobw 18t I8S7. 149 o'Mi-&-dire, commo soumis h, une domination, et, par con- i&^aent, iiiacceuiblea aux vaisseaux utrangera qui u'ont point obtenu la penniaaion d'y naviguer." ThiB view, moreoTor, wos emphatically main- tained on behalf of the United States on the occasion of the seizures in the year 1886. The following is tho extract from the IJrief of the United States on this ocr-ntion : — "Conccmint; tbe doctriuo of intei national law osto- bliahing whut ' riown as tho morino league belt, which extends tliu jiin i .un of a nation into f.djiicent neis for tho diatanco of 1 larinc league, or 3 niilos from its shores, and foll'-'ig 0II *ho indentitio"-, and sinuosities of its OMirt, * ' i'l at thia day no looui for discussion. It muct be 'W'wptcd as til' wtlVuia^'of nations. It is sustained 1/ tho bighcBC lu I'^rities, law-writers, nnd jurists. It has beer aanot' d ' v tho tuitod States since tho foundation of tho uoveri.raBnt. It was oflirmcd by Mr. JefTerson, Sectctaiy of Slot" as early us 1793, and has ucen ro- iffirmci! by hi^ succes-sors — Mr. rickering, in 1796; Mr. Miulison, in 1807; Mr. Wwiator v 1842; Mr. Bucbunan, in 1840 ; Mr. Foward. in 18C2, 1863, ond 1861 ; Mr. Fish, in 1875 ; Mr. Evnrts, in 1879 and 1881 ; and Mr. Uayanl. in 1886. (Whcnton's* " International law," vol i, sea 32, pp. 100 and 109.) " SanctioiiGil thus by un unbroken Imo of precedents covering tho first century of our notionol existence, the United States would not abandon thi."? doctrine if they could ; tboy could not if they would." And again : — "It thua api)ear8 that our Government asserted this doctrine in its infoncy. It was announced by Mr. Jcfferaon as Secretary of State and by tho Attorney-General in 1793. Mr. rickering, Secretary of State in 1796, re- afBrms if. in his letter to the Governor of Virguiia, in the following language : ' Our jurisdiction has been fixed to extend 3 geographical miles from our shores, witli the • oxception of any waters or bays which are so land-locked as to be unquestionably within tho jiirisdiction of the States, be their extent what they may.' (Wheatou's ' International Law,' vol. i, sec. 32, pp. 2-100.) " Mr. Buchanan, Secretary of State, to Mr. Jordan, in 1849, rsit«rates tliis rule in the following language : ' The ezoluf^v " inrisdiction of a nation extends to tho ports, harhoors, bays, mouths of rivers, and adjacent parts of tbu lea inclosed by headlands.' (Ibid., p. 101.) "Mr. Seward, in the Senate in 1852, substantially enunciates the same doctrine by declaring that, if we leUed alone upon the old rule that only those bays whose entrance from headland to headland do not exceed 6 miles ue within the territorial jurisdiction of tho adjoininjj nation, oar dominion to all tho larger and more important amu of the sea on 1.0th our Atlantic and Pacific coasts would have to he surrendered. Our right to jurisdiction [836] 2 Q 160 over these rests vith the rule of international law which gives a nation j. isdiction over waters embraced within its land dominioa" The Russian claim to extraordinary jurisdic- tion was expressly founded on a supposed right to hold the Pacific as mare clausum, hecause that nation claimed the territory on both sides. If this claim had been well founded the Treaty of 1867 destroyed it, since the sea was no longer shut in or surrounded by the territory of one nation : — " ' Un droit exclusif do domaine et do souverainetiS de la Ortulan " Rdgle* part d'une nation sur une telle mer n'cst incontestable lBt<>rnaiinnale« et qu'autant que cetto mer est tolaloment euclav<5e dans le jj*^ •• ^^j, gjjjjgn territoire de telle sorte qu'elle en fait partie inti'graute, et vol. i, p. 147. qu'elle ne pent absolument servir do lien do communica- tion et de commerce qu'entre les souls citoyens de cette nation.' " Or, in the words of Sir Travcrs Twiss : — " Is entirely inclosed by the territory of a nation, and •• Righti and has no other communication with the ocean than by a P>^^}'* "^ '^''""■, channel, of which that nation may take possession." * p. 174. So Halleck says ; "21. It is generally admitted that the territory of a Halleek'i State includes tho seas, lakes, and rivers entirely inclosed Intern«tion»l Law, within its limits. Thus, so long as the shores of the '" 'jiSlJis Black Se* were exclusively possessed by Turkey, that sea might, with propriety, be considered as a mare clausum ; and thei'e seemed no reason to question the riglit of the Ottoman Porte to exclude other nations from navigating the passage which connects it with the Mediterranean, both shores of tins passage being also portions of the Turkish territory. But when Turkey lost a part of her possessions bordering upon this sea, and Russia had formed her commercial establishments on the shores of the Euxine, both that Empire and other Maritime Powers became entitled to participate in tho commerce of the Black Sea, and consequently to the free navigation of the Dardanelles and the Bosphorus. I'his right was expressly recognized by the Treaty of Adrianoplo in 1829. * « * * " 22. The great inland lakes, and their navigable outlets, are considered as subject to the same rule as inland seas ; where inclosed witiiin tiie limits of a single State, they are regarded as belonging to tho temtory of that State ; but if different nations occupy their borders, the rule of mare clavsum cannot be applied to tho navigation and use of their waters." The United States' Qovemmeiat ha« itself adopted the view expressed by tho above autho- ritius. ^m 161 Ptpert relating to On the 14th March, 1882, Mr. Hoffman Fiiheriei, Wish- WTote from the Legation of the United States at ington, 1889, gt, Petersburg to Mr. Frolinghuysen, Secretary of State : — Mr. HoflVnann to Mr. FreliDgbuyxD, Mareb 14, 1689, 80th Congren, 9nd Swa., tieoate Ex. Doc., No. 106, p. 960. " In tho time when Russia owned the whole of thesa islands her lioprc^entntivc) in Siberia claimed that tim Soa of Okhotsk was a inare clausum, for that Russian jurisdiction extended from island to island and over 2 marine leagues of intermediate sea from Japan to Kamtchatko. " But about five years ago Ituasia ceded the southern group of these islands to .Japan in return for the half of the Island of Saghalien, wliich belonged to that Power. " As soon OS t'.iis was done, it became impossible for tlio Siberian authorities vo maintain their claim. My infor- mant was not aware that this claim Imd ever been seriously made at St. Petersburg." Ibid., p. 261. And Mr. Frelinghuysen, in reply, wrote on the 27th Marcb, 1882 :— Mr. HofTman to " I do not tbink that Itu.ssia claims that the Sea of Mr. Frelipghuyiieii, Okhotsk is a mare dattguvi, over wliich slie has exclusivo Marcb 27, 1883. SOlli ConijreM, jurisdiction. If she does, her claim is not a tenable one, 2nd Se»»., Senate since the cession ot part of the group of the Kurile Islands Ex. Doo., No. 106, ^ . .... ' ^ ,1 / .• ■• __ 261. to Japan, if it ever were tenable at any time. Professor James B. Angcll, one of the United States' Pleniifoteiitiarics in the negotiation of the Fisheries Treaty at Washington in 1888, and an eminent jurist in an article entitled " American Rights in Behring Sea," in " Tho Forum " for November 1889, wrote : — " Can we sustain a claim that Behring Sea is a closed sea and 80 subject to our control ? It is. perhaps, impossible to frame a definition of a closed sea which the publicists of all nations will accept. Vattel's closed sea is ocq " entirely inclosed by tho land of a nation, with only a communication with tho ocean by a channel of which that nation may take pujscssion.' Ilautcfeuille sulutantially adopts this statement, asserting more specifically, however, that tho channel must l;c narrow enough to be defended from the shores. Perols, one of the more eminent of tha later German writers, practically accepts Ilautcfeuillc'a definition. But so norrow a channel or opening as that indicated by tho eminent Frencli writer can hardly ba insisted on. l'ri)bably, most authorities will regard it as a reasonable recjuiioment that tho entrance to the sea should be naiTOW enough to mnko the navnl occupation of it easy or practicable. We, at least, may bo4?xpocted to prescribu no definition which wouM make tho Gulf of St. Lawrence a closed sea. "Bohrmg Sea is not inclosed wholly by our torritoiy From tho most western i.sland in our po!!sp«sion to tha nearest point on tho Asiatic shore is more than 3U0 miles. 162 From our most western island (Attou) to the neaieat Bussian island (Copper Island) is 183 miles, The see from cast to west measures about 1,100 miles, and from north to south fully 800 miles. The area of the pea must be at least two-thirds as great as that of the Mediterranean, and more than twice that of the North Sea. The Straits of Gibraltar arc less than 9 miles wide, The chief entranco to the Gulf of St. Lawrence, which is entirely Surrounded by British territory, is only about 60 miles in width. Behring Sea is open on the north by the straits, 36 miles wide, which form a passage way to the Arctic Oceaa On what grounds and after what modem pre- Dedent we could set up a claim to hold this great sea, ^th its wide approaches, as a mare ciausum, it is not easy to see." i Sana, in a note to Wheaton's "Elements," says: — " The only question now is, whether a given sea or Sm HsIlMk^ sound is, in tact, as a matter of politico-physical geography, within the exclusive jurisdiction of one nation. The claim of several nations, whv,ro bonlers surround a largo open sea, to combine and make it mare ciausum against the rest of the world, cannot bo admitted. The making of such a claim to the Baltic was the infirmity of tho position taken up by tho Armed Neutrality in 1780 and 1800, and in the Russian Declaration of War against England in 1807." It is further claimed, on behalf of Great Britain, that — (/.) From the acquisition of Alaska by the "United States in 18C7 down to the year 1886 no attempt was made by the United States to limit or interfere with tho right of Great Britain or of any other nation to navigate aaid fish in the iiou-territorial waters of Behring Sea. (g.) That, as regards tho right claimed by the United States of protection of property in fur- seals Avhen found outside the ordinary 3-mile limit, no property exists, or is known to inter- national law in animals /eri« nalurec until deduced into possession by capture, and no nation has any right to claim property in sueli animals when fiimd outside territorial waters. Tlieir 07ily right is to prevent the ships and subjects of otSier nations entering territorial waters for the purpose of their capture. Before analogous questions similar principles have frequently been maintained and invariably recognized; thus, with reference to tho right to search neutral vessels upon the high seas. In 1804 Great Britain claimed, during the war IBS Mr. Htdiwii to Mr. Monroe, JiDuarv S. 1804, laid before Con- «Le I.ouii." 1816, See Dodioa's Admiralty Cans, Tol. ii, p. 210. with France, to search neutral vessels on the high seas, and to seize her own suhjeots when found Barring under a neutral flag. The position taken on this subject bj the United States was not only in opposition to such a right, but that country insisted that in no eate did the sovereignty of any nation extend beyond its own dominions and its own vessels on the high seas. A similar view has been adopted by all nations in relation tc the Slave Trade, although It cannot properly be argued that the taking of seals in any manner whatever is comparable with the immorality or injustice attaching to that trade. Yet, even in the case of vessels engaged in that trade, the rights of nations have not been allowed to be overruled on such pleas. Upon this point legal authorities both in the United States and in Great Britain are quite clear. In 1810 a French vessel sailing from Mar- tinique, destined on a voyage to the coast of Africa and back, was captured 10 or 12 leagues to the southward of Cape Mesurada, by the " Queen Charlotte" cutter, and carried to Sierra Leone. She was proceeded against in the Vice- Admiralty Coiurt of that colony. It was alleged that the vessel was fitted out for the purpose of carrying on the African Slave Trade, after that trade had been aliolislied by the internal laws of France, and by the Treaty between Great Britain and France. The King's Advocate admitted the proposition to be true generally that the right of visitation and search does not exist in time of peace, but denied it to be so universally. Occasions, it was argued, may and must arise, at a period when no hostilities exist, in which an exercise of this power would be justifiable. The rule of law could not be maintained as a universal proposition, but was subject to exceptions, and within those exceptions must be included the present transaction, which was a transgression, not only of municipal law, but likewise of the general law of nations. In whatever light the Slave Trade might have been viewed in former times, it must no Icuger be deemed within the protection of the law of nations. Since the Declaration of the CongreJis of Vienna, that the Slave Trade was repugnant to the principles of humanity and of universal morality, traflic in slaves must be considered a [630] 2 R ■Piili 164 crime, and it was tho righu and duty of every nation to prevent tho commission of crime. On the whole, it was submitted that tho " Lo Louis," having been enga^'ed in a traffic prohibited by the laws of her own country and contrary to tho general laws of humanity and justice, ought not to bo restored to the claimant. Sir William Scott, afterwards Lord Stowell, held, however, that trading in slaves is not a crime by universal law of nations. He observed : — " Neither this Court nor any other can carry its private See Dodion'i apprehensions, independent of law, into its public judg- ^^^^'^^nAg ments on the quality of actions. It must conform to the judgment of the law upon that subject ; and acting as a Court in the administration of law, it cnnnot attribute criminality to an act whcro the law imputes none. It must look to the legal standard of morality ; and upon a question of this nature, that standard must be found in the law of nations as fixed and evidenced by general and ancient and admitted practice, by Treaties and by the general tenour of the laws and ordinances and the formal transactions of civilized States. " . . . . Much stress is laid upon a solemn declaration Ibid, p. 389. of very eminent persona assembled in Congress, whose - rank, high as it is, is by no menus the most respectable foundation of the weight of their opinion that this traffic is contrary to all religion and morality. Great as the reverence due to such authorities may be, they cannot I think be admitted to have tho foico of overruling the established course of the general law of nations." "It is next said that eveiy country has a right to enforce its own navigation laws ; and so it certainly has, so far as it does not interfere with the rights of others. But it lias no right, in consequence, to viusit ami search all the apparent vessels of other countries on the high seas." " It is said, and with just concern, that if not permitted in time of peace it will bo extremely difficult to suppress the Traffic. It will be so, and no rnan can deny that the rappres ion, however desirable, and however souglit, is attended with enormous difficulties ; difficulties which have baffled the most zealous endeavoura for many years. To every man it must have been evident that without a general and sincere concurrence of all tho maritime States, in the principle and in the proper modes of pursuing it, comparatively but little of positive good could bo acquired ; so 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 established habits of trade, to their real or pretended wants, to their different modes of thinking, and to their real mode of acting upon this particular subject, it must be equally evident that such a concurrence was matter of very difficult attaiumerst. 155 But the difficulty of tbo attainment will not legalize meosurea tliat are othorwiso illegal To press forward to a groat principle by breaking through every other great principle tlmt stands in the way of its establishment ; to force the way to the liberation of Africa by trampling on the indopcndcncn of other States in Europe ; in short, to procure an eminent gooil by means that are unlawful ; is as little consonant to private morality as to pnblic justice. Obtain the concurrence of other nations, if you can by application, by renionatrouce, by example, by every peace- able instrument which man can employ to attract the con- sent of man. But a nation is not justified in assuming rights that do not belong to her, merely because she means to apply them to a laudable purpose ; nor in setting out upon a moral crusudc of converting other nations by acta of unlawful force. Nor is it to bo argued that because other nations approve the ultimate purpose, they must, therefore submit to every measure which any one State or its subjects may inconsiderately adopt for its attainment." "Antelope." 10 WbMtOB, 06. Ibid., p. 192. The Judgment of tho Vice-Admiralty Court of Sierra Lconc, condemning the French ship for being employed in tho Slave Trade and for forcibly resisting tho search of tho King of England's cruizers, was rovereed. Tho decision of the Supreme Court of tho United States in the case of tho " Antelopo " is to tho same effect. There Chief Justice Marshall delivered the opinion of the Court, holding that tho Slave Trade, though contrary to the law of nature, was not in conflict with tho law of nations :— "No principle of gcneml law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule oa another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of nil, can be devested only by consent ; and this trade, in which all have participated, must remain lawful to those who cannot bo induced to relinquish it As no nation can pMscribe a nile for others, none can make a law of nations ; and this traffic remains lawful to those whose governments have not forbidden it " It it is consistent with tho ' f nations, it cannot in itself be piracy. It can bo made so only by statute ; and the obligation of the sUituto cannot tmnsccnd tho legislative power of tho state which may enact it. " If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that; the right of bringing in for adjudication in tiuie of peace, even where the vessel belongs to a nation which has prohibited tho trade, cannot exist. Tho Courts of no country execute the penal laws of another, and the coursa of the American government on the subject of visitation 156 nud search, would decide any case iii which tliat right had been exercised by nn American cruizer, on the vessel of a foreign nation, not violating our municipal laws, against the captors. " It follows, that a foreign vessel engaged iu the Alrican slave trade, captured on the high seas in time of peace, by an American cruizer, and brought in for adjudication, vould be restored." The subject is fully discussed in Mr, Dana's note No. 108 to Wheaton's Internatioual Law (p. 258), where it •' lid of Chief Justice Marshall, in Church against Huhhart, 2 Crannh, 187 : — " It is true that Chief Justice Slarshall admitted the right of a nation to secure itself against intended violations of its laws, by seizures made within rea.sonable limits, as to which, he said, nations must exercise comity ,-\nd concession, and the exact extent of which was not settled ; and in the case before the court, the 4 leaguf s were not treated as rendering the seizure illegal. This remark must now be treated as an unwarranted admission It may be said that the principle is settled, that municipal seizures cannot bo made, for any purpose beyond territorial waters. It is also settled that the limit of these waters is, in the absence of treaty, the mai-ine leaguo or the cannon-sliot It cannot now bo successfully maintained, cither that municipal visits and search may bo made beyond the territorial waters for special purposes, or that there are different bounds of that territory for different objects. But as the line of territorial waters, if not fixed, is ik'i)cndent on thu unsettled range of artillery lire, and if lixed, must be by an arbitrary measure, the courts, in the earlier cases were not strict as to standards of distance, where no foreign Powers intervened in the causes. In later times, it is safe to inter that judicial as well as political tribunals will insist on one line of marine territorial juriiidiction for the exercise of force on foreign vessels, in time of peace, for all purposes alike." It is an axiom of intcrnationa' maritime law tl.at such action is only admissible in the case of piracy or in pursuance of «nccial international rgrccment. This principle nas been universally admitted by jurists, and was very distinctly laid down by Tresidcnt Tyler in his Special Message to C/ongress, dated the t.7th February. 1S4,3, when, after acknowledging tlic right to detain !i)id search a vessel on suspicion of piracy, ho goes on to say : — "With this single exception, no nation has, in tMuo of peace, any authority to detain the shiira of another Hi)on the high seas, on any prete.tt whatover, outside the territorial jurisdiction." X67 Ohafteb X. Under the reference embodied in the Vllth Article of the Treaty, Great Britain will contend, in the light of the facts &iid arguments which hare been adduced on the points included in the Vlth Article, that her ccncun'ence is necessary for the purpose of the establishment as between herself and the United States, by regulations for the preservation of the fur-seal in, or habitually resorting to, the Behring Sea. It will be shown, by reason of the known and ascertained habits of the fur-seal, that while this animal exists for the greater part of each year in non-territorial waters, and possesses during such time all the characteristics of a free swimming fish, . it resorts for certain months, and for breeding purposes, chiefly, but not exclusively, to Pribyloff and Commander Islands, which are Tinder the jurisdiction of the United States and Russia respectively, remaining, for the most part, either ashore or in Che territorial waters of these islands at this particular season. Further, it will be shown that, although in the main and in a general way thoso seals which resort at the breeding season to the Pribyloff Islands spend the winter months on the eastern side of the North Pacific, while those resorting to the Commander Islands spend the same months on the western side of the same ocean (in the vicinity of the coasts of British Columbia and .Japan respectively), that the seals pertaining to these two migration tracts are of the same kind^ and are not specifically distinguisliablc. That connection and interchange exists between the several breeding places, and that a similar or correlative change can bo traced in regard to the condition of the rookeries from year to year on the two principal groups of breeding islands ; while seals breeding elsewhere, whether on the Kurilo Islands, Robben Island, or at various isolated points to the south of Behring Sea along the coast of North America,, are also identical in kind and appearance. That apart from the inherent impossibility of proof of the actual place of birth of each par- ticular seal, and even If it be admitted (though this is denied) that all the fur-seals found in the eastern part of the North Pacific (say, to the east [636] 'as M A I 158 of the 180th degree of longitude) have been bom on islands under the control of the United States, the habits and necessjlry mode of life of the animal are such as to require its resort to the high seas for the greater part of each year. It is further contended, on the part of Great Britain, that while, for the purpose of preserva- tion of the fur-seal, special responsibilities un- doubtedly devolve upon the Powers under whose territorial jurisdiction the principal breeding islands of the fur-seal are included, become these Powers by an injudicious or excessive exercise of their rights, might seriously injure the general interests involved in the fur-seal fishery ; that no limitation of, or interference with, the right of killing the fur-seals upon the high seas can be justly or properly asked for by these Powers or either of them without a corresponding offer and stipulated limitation of the killing of seals upon the breeding islands with their adjacent territorial waters. That the demand for such limitation or inter- ference with the seal fishery has, so far, been made only on the part of and in the exclusive interests of the United States and their lessees on the Pribyloff Islands, and that even if the methods of control and restriction which are reported to have been exercised upon the breeding islands have heretofore been strictly and impar- tially enforced, without some specific guarantee of the continued exercise of such control, no curtailment of general rights upon the high seaa can be justified. Lastly, it is submitted that any general measures of control should be framed with due regard to all existing interests, and that the con- currence of the various Maritime Powers, as well as of those specially interested by reason of their control of the principal breeding islands, must be provided for. / 159 SU5IMARY OF ARGUMENT. Ihat the sea now known as Behring Sea is an open sea, free to the vessels of all nations, and tbat the right of all nations to navigate and fsh in the waters of Behring Sea, other than Iho territorial waters thereof, is a natural right. 2. That no assertion of jurisdiction by Russia, the United States, or any other nation could limit or restrict the right of all nations to the free uso of the open sea for navigation or fishing. 8. That at no time prior to the Treaty of the 30th March, 1867, did Russia possess any exclusive jurisdiction in the non-territorial waters of the sea now known as Behring Sea. 4. That at no time prior to the said cession did Russia assert or exercise any exclusive rights in the seal flsb-.-ries in the non-territorial waters of the sea now known as Behring Sea. 6. That the attempt by Russia in the year 1821 to restrict the freedom of navigation and fishing by the subjects of other nations than Russia in the non-territorial waters of Behring Sea was immediately and effectually reaisted by Great Britain and the United States of America. 6. That the claims of Russia to limit and interfere with the rights of navigation and fishing by other nations in the waters of Behring Sen, other than the territorial waters thereof, were never recognized or conceded by Great Britain. 7. That the protests raised and the objections taken by Great Britain to the claims of Russia to limit such free right of navigation and fishirg were acquiesced in by Russia; and that no attempt was ever made by Russia to again assert or enforce any such supposed right to exclude or limit the rights of other nations to navigate or fish in the waters of the sea now known as Bcliring Sea, ota r than the territorial waters thereof 8. That the assertion of rights by Russia in tlio year 1821, end her ineffectual attempt to limit the rights of navigation and fishing, was iaopera< tivo and had no effect upon the rights of other nations. 9. That the body of water now known as the Behring Sea was included in the phrase " Pacific Ocean," as used in the Treaty of 1826 between Great Bri'ain and Russia. 10. That, from the year 1824 down to 1886, the vessels of Great Britain hare continuously, and ■wit! jut interruption or interference, exercised thf rights of navigation and fishing in the •wuters of Behring Sea othet than the territorial •waters thereof. 11. That the rights of all nations to navigate and fish in the waters of Behring Sea, other than the territorial waters thereof, has been repeatedly recognized and admitted both by Russia and by the United States of America, 12. That whatever territorial eights 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. Tha' the terms of the Treaty of Cession cf the 30th March, 1867, do not purport to ojnvey anything more than ordinary territorial dominion. IJi. That, from the acquisition of Alaska by the Uaited States in 1867 down to the year 1886, no attempt was made by the United States to assert or exercise any right to limit or interfere with the right of Great Britain, or of any other nation, ti navigate and fish in the waters of Behring Sea other than the territorial waters thereof. 15. That 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 that the property so acquired endures so long only as they are retained in control. 161 16. That the sole right of the United States in reBpeot of seals is that incident to ^rritorial possession, including the right to prevent the snhjects of other nations from entering upon land the territories helonging to the United States, or the territorial waters thereof, so as to prevent their capturing seal or any other animals or fish either on such lands or in such territorial waters. 17 That fur seals are animals fera nalurte, and that the Unitea 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. That the right of the subjects of Great Britain and of all nations to navigate and fish in the non-territorial waters of the sea now known as Behring Sea remains and txiots free and unfettered, and cannot he limited o interfered with except with the concurrence of Great Britain. (636] aT 168 CON0LXI8ION. It is respectfully submitted on behalf of Great Britain to the judgment of the Arbitratora, that the questions raised in this Arbitration lure of far greater importance than the mere preserration of a particular industry ; they involve the right of every nation of the world to navigate on and fish in the high seas, and to exercise without interference the 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 aU civilized nations, the above arguments are respectfully urged upon the consideration of the Tribunal.