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Pacific Ocean, lying between Bohrins Strait on the north and the Aleutian Islands and Peninsula on the south. Xlie (Irea of this sea may be said to be at least two-thirdVjis f^reat as that of the Mediterranean, and more t\u iwiee that of the North Sea. From the southern to the northern part of what are now known as the North and South Pacific Oceans was in the beginninff of this century termed the Pacific or South Sea, being reached in the days of Cook and Vancouver by sailing south, rounding "The Cape," or doubling "The Horn. ' ^ts*f'~ This sea is the KarU-'s highway taJJicAxc^ 6Sratn. It is (jini ft t'*fet wTr's highway to Hct possessioT^^in the north viil the Yukon River. ; • .luilSyO the British schooner "Thornton" was • ■Avi'CfStod when 70 miles south-east of St. George isL-nid, ■• : T)ij; vessel a,t.s lil)elled in a District Court of •■ \W ITnited States by the District Attorney. The charge being that the vessel was " nd cn<'a"ed in killing fur-seal within the limits of /Vlaska Territory and in the waters thereof, in violation of Section 1956 of the Revised Statutes of the United States." The "Thornton," "Anna Beck," and "W. P. Sayward," were all condtnnned in 1SS7 by the District Court of Alaska upon the stated ground that Russia had ceded not only Alaska and the islands within cert^iin limits of Behring Sea, but the sea itself within those limits. [607] B -M >1. Ts-\>/ >• 152903 Great Britain formally protcsU'd against this action on tlift part of the United States, and negotiations took place, wMeh — reaultwl in ft Treaty ana Convention \m9t^ entered into at Wasliiii£»ton on the 29tli February and the "iSth April. 1892. 'J'his Treaty declares that Her Majesty the QueiMi of the United Kint^dora of Great Itritain and Ireland and the United States of America, being desirous to provide for an amicable settle- ment of the questions which have arisen between their respective Governments concerning the jurisdictional rights of the United St.ates in tlie waters of Behring Sea, and concerning also the preservation of the fur-seal in or babitiially 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 \vat(M's, have resolved to submit to Arbitration the ijuestions involved, and to the end of concluding ;i Convention for tliat purirose have appointed their I'lenipolcntiaries, &c. By Article I it is jirovidcul that the questions which liave arisen Ix'tvveen their res))e('tive Govcriunents concerning the jm-isdictional rights of the United States in the waters of Behring Sea, and eniieerning also the pn^servalion ol the fur-seal in or liabitually resorting to the said sea, and tlu! rights of the citizens and subjects of either country as regards the taking of fur-seal in or liabitually resorting to tlw said waters, shall be " submitted to a Tribunal of Arbitration to be composed of seven Arbitrators," to b(' appointed as therein specified. By Article VI it, is provided that: — " III ili'cidiiii,' I 111' iJial.liTs siiliiiiiUcil lo tlir Arliiliiitois, it is ;iniC(.'il llial tlic fnllowiiij; live poiiitN shall lie siili- uiitted to tliiiiii, in oilier lliiit their awaiil shall ciiilmice a distinct ileeisidii upnii each nf saiil five jioiiilj, to wit : — • 1. Wlial exclusive jiirisiliclion in the sea riuw known as tlie lieliring .Sea, and what oxclnsive right-s in the seal fishoiies llieruin,diil liussia assert and exercise ]iiioranil np to the time of llie ■ ession of Alaska to the United States ? "2. How far were these claims of jurisdiction as to the seal fisheries recognized and conceded liy (Ircat I'ritain ? " 3. Was the lx)dy of water now known as the Behring Sea incluilod in the jilirase ' I'acilic Ocean ' as used in the Treaty of 1825 between (ireat lirituin and Itussia, and wliat rights, if any, in the lieliring Sea were held and exclusively exercised by Russia after said Treaty ? 5/ / V ^mm > ■7 8 "4. Did not ill! tlio riKlii-" "I l.'ussiii as to jurisiliclion, aiiil as Ui tho seal liHliorics in licliriii;; Sea cast of tliu waU^r boundary, in the Treaty lietwreti the; I'liitcd States and Russia of thf! itOtli March, IHt'i", pitsa iiiiiiii|iaiM>il to tlio Unitoil States under tliat Treaty ) " 5. ITa.! tlie Uriitod States any ri^'ht, ami. if so, what right, of protection or properly in the fiir--eals frii|ueiitiuK the islands of tlie llnitcil States in I'ehiin;,' Sea when such seals are ronml oulsiilelhe ordinary o-iiiilu limit '." By Article VI f it is providi-d (lint :— • If the deterniiii:itii>M iil' the rore;,!'iin;4 iiuestjuns us to the exclusive jurisdiction of llie I'nited Slates shall leave the suliject in such [osition that tlio concuiTence of (ireat liritoin is necessary to the establishnieul of I!ei;ulalious for tho proper protection and preservation of tin; fui-seal in, or habitually resortin;^' to, ilie lictlirin.; Sea. Ilio Arbi- trators shall then determine vvliat concurrent IJe^'uhiliims outside the jurisdictional limits of the respective Govern- menLs are necessary, and over what waters such 'Ic^ula- tions shoidd exUuid. ami to aid tlicni in that deTerniinatiou, the Ite|H)rt of a Joint Commission, to be appoinled by the respective Governments, shall be laid before them, with such other evidence as either Governments may submit. "The Hi;;Ii (^lntractin;^ Parties furtheiiuoie n<;ree to co-operate in seiurin'.^ the adhesion of other I'owers to such Itc^'ulations." By Article VTII it is provided that : — "The llinh Controctin;; I'arties havim,' found themselves unable to agree upon a refeience which shall inclmle the ■jucstion of the linljilily of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it ; and, Ix-'ing solicitous that this subordinate i[uestion should not interrupt or lunger delay the sulmiission and deter- mination of the main nuestions, do agree that either may submit to the Arbitrators any (piestion of fact involved in said claims, and ask for a linding thereon, the question of the liability of either (ioverumcnl upon the facts founil to 1k> the subject of further negotiation." Art id.' IX:— " Tlie High Contracting I'arties having agneil to ajipoint two Commissioners on the part of each (lovcrnnicnt to make the joint investigation and Heport cotiteni]ilaied in the preceding Article VII, and to include the terms of the said Agreement in the present Convention, to the end thai the joint and .several llcports and lecuinmendalioiis of said Commissioners may be in due form submitted ti' the Arbitrators, should the contingency tberofm- arise, the said Agreement is occordingly herein included as follows: — " Each Goveinmcnl shall appoint two Coiuniissioneis to investigate, conjointly with the Commi.ssioners of tho other Government, all the facts having relation to seal lifo •% i ill lichrin^! Svn, ami the imiuiuros iicccssnry for iUt proper protoction ami jirrscrvaiinii. "Till! four ('umuiH:iioDr i sliiill, so fur m they may Ixi iibl. to u'^Tv,-. riiako ii j int licport to racli of thr two (loviiniiiuiil.-", Jiiut llii'y .'-li.ill uImo npoit, uilliiv joMitly or scvfiiilly, til each (invurmiionl on any poiiitn u|ion whinli tlicy may In- unaliU' lo ajjri'f. " Tliiau J!t')"irts sliall not lit' uimli' piiMic until thry sliall 1h' suliniillo |HHi i i rs "jktf^ I''*' (li'l<>riiiiii;iti>>••««» ./t. •». , 3* *-r - • !-. \> u a'> J ' I If CJ'' j.t. (1.- (y-Jc' ' I.' r: ^^y^ Points A CASE CnAPtra I. I Y^;^-j ^^^«^ ^''•^'^ ,yi *»• T AND II.— TAf Ma tt PiMf n«rf rt* J7.«fr 0/ ^..'> 1, fl, O.BHil h rw l ttU to R« SBia ' »-ol it altriiilit In iiii nrnt i finrFj^lm nrrr i irr of ■iwyyMwiitiiatiaa wvar UM'iirii'i>P''a . The following position was, it is submitted, , ^ , / w.^> •• •'.-"- V _ /"^ ♦*•,/* «C ««■< "^ -H*-/ "- T 'J T ^ /../'•»/•• ^ i!,'Jlr.5 correctly taken by tbc United States, and, it is ""''X t- ttAj^^- > preaumod, will bo adhered to by tliat country , , ^ LjfL-o ^"^ 18G2, Spain pushed her claim to an [ >w p^^.u-- ' '• ■••— ^^^ ^l^ '^'^/fxtendcd jurisdiction around the Island of Cuba. ^^/ Ji,^^ "i '"**'• ^ -'I Sccrcbry Seward's response was : — /ii'^,., 4<,>*^"* "It cannot be aJrailtetl, nor, indeed, is Mr. Tessara f^i,^''^ unilcrstood to claim, that the mere assertion of a Sovereign, uf^^ by an ad of legislation, however solemn, can have the f^***" ^'*nZ^( effect to establish and fix its external nmritimc jurisdic- ifitfj tion Ho cannot, by a mere Decree, extend the ^ I limit and fix it at 6 miles, K>cause, if he could, h: could A.A.-'/^- '*"■ //> -t, Ls fi^J / / f21. .. CK. J^ — '' -^ ^ -T > ^'\''' ^r- ^ the same manner, and upon motives of interest, '^ , ambition, and even upon caprice, fix it at 10, or 20, or ^'l* 50 miles, without the consciit or aequicscenco of other Powers which have a common ri'^'ht with hiiiisolf in the freedom of all the oceans. Such a pretension could never bo successfully or rightfully maintained." ; (^' '«♦ '<- The following authorities also refer to this : — , (( ; A"^^~ rhiUimore I, § I?!— £. ^ f * ** " The riglit of navigation, fishing, and the like upon tho ojicn sea, being jnra mtrcc facultatis, rights which do not r('i|uire a contiimous exercise to maintain their validity, but which may or may not be exercised according to llie frill wdl and pleasure of those entitled to tlicm.can neither b') lost by non-user or prescribed against, nor acquired to tlie exclusion of others by having licen immeniorially exer- cised by one nution only. No presumption can arise that tlio,>io who hare not hitherto exercised such rights have .':bandoned the intention of ever doing so." [607] v-'^/l m 6 Calvo recognizes the temptation which the proximity to the coast of "fish, oysters, and other shell-fish" affords to nations to extend their sovereignty beyond the 3-mile limit. Yet, instead of permitting such an extension, espe- cially when supported by long use, he distinctly says: — "Si de pareillcs d(!rogations aux priucipes universelle- raeut reconnus ont lieu, c'est qu'ellca sent dictdci par un int^rut maritime do premier ordre, notamment I'exploita- tion de pi-chcs cotitres d'une nature exceptionuello, des bauc8 d'huitres on autres coquillages ; il faut qu'eUcs se rcufermcnt dans la limite de I'objet spdcial qui les a fait adopter ; et elles ont besoin pour de"enir obligatoiresi cCHre sanctionnits par des Convcntunu exprisses et icritts." V. i r The raucn which fla ws ■ flSia tho n a tmo a i •,' '^c prescription/liowever, is sufficient to establish the \^^r point in Question., without t be=a idb rf a uthoi it T . Unlike adverse possession or limitation, prescrip- ; tion rests for its validity on a presumed prior grant. Now, in international law there is no room for such a presumption. HaimmX "■"'"'"°ii nri i i nnt nn nnnnrpliihln nf -irhUriaa wiii dM(HMtiaa«84»«*H^MRtopnMi Aiiiwiwin- 4M^ pkab«MBattiMbiiiiaHw4iMMd4»w. The controversy between Grotius and Selden as to the right of appropriation by a nation of the sea beyond the immediate vicinity of the coast is thus reviewed by Wheaton :— V ,^ /A.^t--V»*' " There are only two decisive reasons applicable to the Wheaton, question. The first is physical and material, which would '•'*"'*'"•• § '°'- alone be sufficient, but when coupled with the second reason, which is purely moral, will be found couclusive of the whole controversy : — " 1. Those things which are originally the common pro- perty of nil mankind can only become the exclusive pro- perty of a particular individual or society of men by means of possession. In order to establish the claim of a particular nation to a right of property in the sea, lliat nation must obtain and keep possession of it, which is impossible. " 2. In the second place, the sea is an element which belongs equally to all men, like the air. No nation, then, has the right to appropriate it, even though it might be physically possibhi to do so. " It is thus di'Uionstratod that the sea cannot become the Cf Ortolan, exclusive property of any nation. And, consequently, the " Dip'omsii" 9^ and ^hat exclusive rights in the seal fisheries yAercin did Russia assert and exercise prior and ujt\^o the time of the cession of Alaska to the United Sl^(£s ? (2.) How far were these claims to ju^t^tion as to the seal fisheries recognized and concemd by Great Britain ? In 1786, the idea became dominant with Shelikof, who had lately established the first permanent Colony of Kodiak, of a Company which should hold a monopoly of trade in the Russian possessions on the Pacific, and over all that part of the American Continent to which Russian traders resorted. Shelikof obtained but a partial success in tlie Charter issued for the United American Company ; but after bis death at Iskutsk in 1795, his ambitious schemes were taken up by his son-in-law Rezanof, who succeeded in carrying them to comple- tion, and, in 1790, 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 Imd been effected under the name of the United American Company ; and at the date of the n ! m> 2/, issuance of the Ukaso there were hut two rival Companies of ini])ortancc in the fiehl, the Shelikcf or United American Corapany, and the Sehedef Company, and there enf^tiged in active hostility. Ahout 17!)1 and 1792 Jiancroft sums up the situation in the following words : — "Affairs were ossiiiniiiy a serious aspect; not only were Bancroft, Alaika, tlie Shelikcf men excluded from the greater iiait of the PP- ^^*' ''^• inlet (Cook's Inlet), hut tliey were opposed in their advance towards Prince Williniu Sound, which was also claimed hy the Sebedcf faction, though the Orckhof and otlier Com- panies were hunting there. . . . Thus the history of Cook Inlet during the last decade of the eighteenth century is replete with romantic incidents — midnight raids, am- buscades, and open warfare — resembling the doings of niedioeval ra nhritters rather tlian tlio exploits of ppaceable traders Robbery and brutal outrage continued to be tlie order of the day, though now committed chiefly for the purpose of obtaining sole control of the inlet, to the neglect of legitimate pursuits." V k' V j> Again, in another place, the same author " writes, with regard especially to the position of Baranoff^hen he took charge of the Slielikof Colony of Kodiak : — " Thus, on every .side, rival establishments and traders Ibid,, p. Sil. 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 tliero were Itussians, but to the BOuth-ea.st the ships of Englishmen, Americans, and Frenchmen were also traversing the tortuous channels of the Alexander Archipelago reaping rich harvests of sea- otter skins in the very region where Uaranoff had dec'ded to extend Kussian dominion in connection with Company sway." It was only in the later years of the competi- l.iid., pp. 302, 391, I y^ tion hctween the rival Russian Companies that ll'H'i t lw w p hegan to assume hostile attitudes ob« to ^ another. The growing power of some of them favoured the assumption of this position ; and the increasing scarcity of the sea-otter, which was already heginning to he felt, accentuated this hostility. At first, and for many years after Behring's initial voyage, the nMc traders from Siheria contented themselves with robhing the natives of the '.. 'ands and coverts visited by them in every conceivable way. Tribute in furs was exacted from the Aleuts on various pretexts, and whenever the traders came in sufficient force these people were virtually enslaved. Not only were the companies of traders under no sufficient or recognized control by the Bussian Govern* 393. */ J Baneroil, Alaska, p. SOI. Ibid., p. 299. Ibid., p. 308. Ibid., p. 309. 9 mont, but they even disliked and resented in some measure the advent or presence among them of commissioned officers of the Govern- ment. The effect of the reports of the subordinate members of Billing's expedition, as to the unsa- tisfactory state of affairs in the Aleutian Islands and on the American coast, tended to favour the project of the establishment of a monopoly, by disclosing the abuses which existed by reason of the existing competitior. Bancroft more than hints that bribery closed the mouths of the superior officers ; and Billing's lleport, whatever its tenour may have been, was never published. In the end it became in a degree imperative for the Russian Government to put a stop to the scandals and abuses which flourished in this remote and scarcely more than nominally con- trolled portion of the Empire, and the easiest way in which this could be done, and the least expensive, was to put 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 3799 and the absorption of the smaller concerns, appears to have followed without any great difficulty, BaranofL as the executive head of the new Corporationfon the American coast, coming to the front as the natural leader. When Shelikof presented his initial petition for the right to monopolize the trade, at St. Petersburgh, a Report was asked for on the subject from Jacobi, the Governor-General of Eastern Siberia, and in Jacobi Shelikof found an able advocate. Jacobi stated that it would be only just to Shelikof to grant his request, that it would be unfair to allow others to enjoy the benefits of the peace which Shelikof had established at Kodiak." The Empress then ordered the Imperial 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 Solikof for exclusive privileges should be granted. Though among the arguments advanced in favour of the grant of a monopoly we find it urged that the beuefits of trade accruing should bo reserved to Russian subjects, the history of [C07] D « 10 /.- the occupation of the coasts and the records con- ccriung it show conclusively that this ohjcct was amonfj the least of those which pfnotkJttU y induced Shelikof to apply for such a monopoly, llis Company had the utmost difllculty in sus- taining its position against hostile natives, while not less serious were the difficulties arising from the (jompetition, and scarcely veiled hostility of riviil Russian traders. The increasing trade hy foreii^nurs, together with the numerous exploring and surveying expeditions dispatched to the north-west coast of America by various Powers were no doubt distrusted by the Russian traders, but at the same time these traders were often obliged to depend on such foreigners for support and assistance. Nowhere in the annals of the times previous to, and during the operation of the Ukase of 179i), do we find any reference to attempts to interfere with, or restrict the opera- tions of, foreigners upon the American coasts or in the Aleutian Islands. Even the scientific expeditions of the piiriod Avere often largely interested in trade as well as in (>xploration, but all vessels meeting with the Russians report a favourable, if not a hospitable, reception. Such an attitude on the part of the traders and the Company is, in fact, .strictly in accord witli the Ukase of 175)5), which is' purely domestic in its character, and in which no exclusive rights against foreigners arc asserted. It must further bo remembered that the trade in furs or the hunting of fur-bearing animals on or in the immediate vicinity ol the coast wer(!, during practically the whole time covered by the Ukase of 1770, the only objects which it was desired to safeguard, and that foreigners were even admitted to share in these without question. No sea fisheries properly so called had been developed. The whale fishery had not extended to the North Pacific, and even down to the latest period of the Russian occupation of America the modes of taking the fur-seal at sea had not been practically developed. rr i, fi,..i. .inf!.;*^ ;, .1 f ^^^^ grnnt n f Ukme of P«ul I, any. >it,hH B i i t>(it(impt ^n i iimnjim juriiidiotiop on the ^^^^' p cM f * at " g i H g DJa iH thnt rnflinn wii hy h Uha sc [iinntnd Vy Pr-' T t" t h i ^^utviin i^mnrirnn Cam "Xt of w'"'"'' /'■'■ following is ..ranslationj^taken from "fiolovnin," in rialni," i., 77-80 :— literal ' Mate- ■ V ^ ^ ^''X' 11 Usncrofl'ii works, "By thu ^mcu of a merciful (Jml, wu, I'aiil F, Ijiipuror Tol. xixiii, Hiitory i„„| Aiitiicmt "f All tlici Itussias, fee. To llj. To use and profit by everything vvliich lias lieen or shall bo discovered in those localities, on the surface and in the bo.soni of the earth, without any ciiiii|'etitiuii by otliei's. ■'4. We most graciously iierniit this Company to esta- blish .Settlements in fului^- times, wherever they aro wanted, according to tlieir best knowledge and belief, and fortify them to insure the safely of the inhabitant.s, and to send sliips to thosi 1' ,es with goods and hunters, without any obstacles on ti,, part of the Government. " 5. To extend their navigation to all atljoiuiiig nations and hold business intercourse with all siirroiuuliiig Powers, upon obtaining their free consent lor the jpur[iosc, and under our highest pniteclion, to enable Iheiii to pmsecuto their enterprises with greater force and advantage. " 0. To employ for na\Hgation, hunting, and all ni'icr business, free and unsuspected people, having no illegal views or intentions. In consideration of the di.staUce of the localities where they will be sent, the provincial autho- ■ Ml 12 ritics will gifint to all persons sent out as settlers, hunters, and in oUier capacities, passports for seven years. Serfs und liouse-aorvants will only be oniployod by the Company ■with the consent of their land-holders, and Government taxes will be paid for all serfs thus employed. " T. Thougli it is forbiuden by our highest order to cut Government limber anywhere without the permission of the College of Admirahy, this Company is hereby per- mitted, on account of the distance of the Admiralty from Okhotsk, when it needs timl>cr f(jr repairs, and occasionally for the construction of new ships, to use freely such timber as is required. " 8. For shooting animals, for marine signals, and on all nnexpected emergencies on the mainland of America and on the islands, the Company is permitted to buy for casli, at cost price, from the Government artillery magazine at Irkutsk yearly 40 lbs. or 50 lbs. cf powder, and from the Nertcliinsk mine 200 lbs. (jf load. " 0. If one of the partners of the Co)npany becomes indebted to the Government or to private persons, and is not in a condition to pay them from any other property except what he holds in the Company, such property cannot be seized for the satisfaction of such debts, but the debtor shall not be perniittwl to use anything but the interest or dividends of such property until the term of the Company's privileges expires, when it will be at his or his creditors' disjiosal, " 10. The exclusive right most graciously granted to the Company for a period of twenty years, to use and enjoy, in the above-described extent of coantry and islands, all profits and ailvautage.s derived from lmnti:ig, trade, indus- tries, and discovery of new lands, prohibiting the enjoy- ment of those [jrotits and advantages not only to those who would wisli to sail to those countries on their own account, but to all former hunters and trapper.'* who have lieen engaged in this traile, and have their vessel.s and furs at those places; and other Companies wiiieh may have been formed ^vill not be allowed to continue their business unless they unite with the present Company with their free consent ; l)ut such private Companies or traders ius have their vessels in those regions can either .sell their property, or, with the Company's consent, remain until they have obtained a cargo, but no longer tlian is lequired for the loading and return of their vessel ; and after that nobody will have any privileges but this one Company, which will be protected in the enjoyment of all the advan- tages mentioned. " 11. Under our highest protection, the Russian- American Cosapany will have full control over all above-mentioned localities, and exercise judicial powers in minor cases. The Company will also be permitted to use all local facilities for forlificatious in the defence of the country under their control against foreign attacks. Only partners of the Company shallvlje employed' in the administration of the new possessions in charge of the"Corn'pany. "In conclusion of this our most gracious order for the lenefit of the Ilussian-Amcrican Company under highest IS M protection, we enjoin all our military and civil authorities in the above-mentioned localitiea not only not to prevent them from enjoying to the fullest extent tlie privileges granted l>y us, liut in case of need to protect them with all their power from loss or injury, and to render them, upon application of the Company's authorities, all necessary aid, assistance, and protection. " To give efl'ect to this our most gracious Order, we subscrilie it with our own hand, and give orders to confirm it with our Imperial seal. "Given at St. Petersburgli, in the year after tlie birth of Christ 1700, the 27th day of December, in tlie fourth year of our reign. (Signed) " I'ai-l." |ir|v> ( *•• - at.:- / 'I ^- 1 'k^; vV'- •, x.^r Bancrofti Alaiki, 8. The Ukase, it will be observed, granted to the Russian-American Company exclusive i-ights as against other Russian subjects only, and made no reference to foreigners, a8 "^id~thu TJluiii tS . I B I I I . The rights and privileges under the grant extended to the hunting grounds and establish- ments then existing on the main coast of America from Behring St.i'ait down to the 55th degree of north latitude. . The southern limit of the exclusive coast privileges granted to the Company extended to Japan. Not only were the main coasts of Asia and America covered by the Ukase, but the same privileges were granted on the Aleutian, Kurile, and other islands " situated in the North Eastern Ocean." Special privileges in the purchase of powder for shooting animals "on the mainland of America and on the islands " were conceded, and the exclusive right " to use and enjoy in the above-described extent of country and islands " the hunting and trading. \\ plninl'" mrtin nn fhim t" exclusive jurisdic- tion over the sea, nor were leaaf. measures taken under it to restrict the commerce, navigation, or fishery of the subjects of foreign nations. , On the contrary, within the very area jj^' the Ukase di g p w wi ' on a. woFO otill ongRgod aw ploiting ■'*"""-■" "."*"-»• «.i.^]p».. 1.^^ ..^ii jiiit irnn'iril *''°"1 nir' r"l"C''' l<"r.fir.p. 1in A. /U /: !»'■ ^ r :/ ^^ "l h^t^ "/ 14 fix. j-v^ii was upon their results that Russia chiefly based her suhsequent pretensions to the ownership of the north-western part of North America. Hunters and traders followed this lead, and Bchiing Island, and others of the Aleutain chain, were visited from the Kamachatkan coast. In 1768 a Lieutenant of the Russian navy made an expedition along the coast to Bchring Strait, b u t- ^vi th — uuaatinfaotoi j — geegraphiml Of the period from 17G9 to 1779, Bancroft writes : — U- ».. J ^'' '^"■h- 0^ — A.' f?'*' " From this time to the visit of Captain Cook, single Bancroft, Alwka, traders and small Companies continued to tradic with th(^ P* * • islands in much the same manner as before, though a general tendency to consolidation was perceptible." /5' ^^t.^^ r: f-'/y .^*f*- In 1774 Perez was dispatched by Spain. He extended his voyage to the southern part of Alaska. In 1775, Ilecata, from Spain, explored the coast of America as far north as the 57^ or 58° of latitude, taking possession of that part of the continent in the name of Spain. In 1778 Captain Cook, sent by the English Govomment, reached the American coast of the Nortli I'anific with two vessels. In pursuance of his instructions, he explored the coast from 41° of north latitude as far as the region of Prince William's Sound and Cook's River or Inlet, taking possession of the coasts there. At Cook's Inlet he found traces of Russian traders but no Russians. At Unalaska, one ol' the Aleutian Islands, he again heard of the Russians but did not meet witli tliom. Thence be sailed eastward to Bristol Bay, landing and taking possession. Prom this ho explored, and fined the position of the American coast northward as far as Icy Cape, l)eyond Behring Strait. Cook was killed in the following winter at the Sandwich Islands, but his ships under Clarke returned in 1799 and made furthcir explorations in Bi'bring Sea and the Arctic Ocean. Under this expedition and for the first time tlie main outlines of the north-western part of the Continent of America, and particularly those of the eastern coast of Behring Sea, were correctly traced. 1 «f- Tri^ -/: { -/'wy //v i. ^^V'^^^ v*/* 15 Sauer's account of Billing's expedition, London, 1803, pp. 279, 281. Cook's surveys still remain in many cases tho only authority. This expedition also opened up the trade in furs from the north-western part of America with Cliina hy sea. In 1779 an official expedition sailed from Spain under Arteaga and Quadra , who explored part of the coast nortliward from about lati- tude 55°, and westward to ilount St. Elias. In 178G the " Captain Cook " and " Experi- ment," two vessels from Bombay, visited and traded at Nootka and Prince William Sound. An English vessel, " The Lark," Captain Peters, from Bengal vii'l Malacca and Canton, after trading at Petropauloyski in Kainsehatka, sailed for Copper Island witli the supposed purpose, as alleged, of obtaining a cargo of copper there. She was wrecked on Behring Island. Also in the same year Puttock, Dixon, and Mcares arrived upon the American coast, traded and explored far to the northward. Puttock and Dixon, who had sailed from London in 1785 in the " King George " and " Queen Charlotte " first visited Cook's Inlet, where they found a party of Russians encamped but with no fixed establishment. Mearcs sailed from Bengal in the " Nootka " early in the year, and reached the Islands of Atka a n d Sulia of the Aleutian chain. Mcares coasted from Unalaska to Cook's Inlet and Prince William Sound. In 178G La Pcrouse began his voyage round the world under instructions of tlic French Government. lie first made land at Mt. Elias. Thence he sailed eastward and southward calling at places on the Alaskan coast. At Atna Bay he obtained in trade 1,000 otter skins. In this year the Russian Pribyloft' discovered tho islands in Behring Sea now known by his name. In 1788 a Spanish expedition, the " Princess " and San Carlos," under Martene/ and Ilaro, set out. " ■■" They visited Prince William Sound and found no Russians, Ilaro, however, discovered a Russian colony at Three Saints, on Kodiak Island. 16 This was the easternmost place which had at this time a permanent Russian Settlement. The voyagers took possession of Unalaska for Spain, but afterwards discovered a Russian port. Upon tlic eonilietof interests at tliis time upon this part of the Alaskan coast and the rival claims to territory there, Baneroft makes the following remarks : — " Tho ovfiuts (if 1787-8S must linvc been jni/zliiig tn tlie Bancroft, Alaska, natives of I'rince Williiim Soiuul. Englishmen niidcr the P- 217. English llag, Englishmen under tho Portuguese Hag, Spaniards, anil Itnssians were cruizing about, often within a few mihis of eauii diher, taking possession for one nation or the ollirr of all the land in sight." Referring to a Russian scientific exploring expedition in 17S7, along the Asiatic Coast north from Okhotsk, l?ancroft says ; — " The geographical results may be set down as next to Ibid., p. 297. nothing, with the exception of the thorough surveys of C'aptain'.s l!ay in Illinilik Harbour on Unalaska Islai..]. Every other part of (he work had already lieen done by Cook. ' The complaints of her nn lives against the practices of single traders and adventurers brought back by this expedition was the beginning of tho future grant of a monopoly of the trade in tlic hands of the Russian Company. In 1788 vessels from the United States traded History of the on the north-west coast. North-west Coast, p. 18o. In 1789 twelve vessels at least are known to ibid., pp. 504-212. have been trading on this coast. The well-knoM'n " Nootka " seizures by the Spanish occurred in this year. Hundreds of vessels, nearly all American, Robert Groenhow, annually visited the North Pacific coasts nf slat"'' CongrY"s,'*'' America for trade and settlement after 17S!), nad Hart's Magazine, , i. 1 1 1 • 1 " February 1842. B ot one was oaptiii'od ny dotam cd. In 1787 vessels sailed for this coast from Boston, in the United States ; they were foUoMed by others, and a competition in the fur trade between them and vessels of other nations (mostly English) sprang up. In 1801 there were sixteen ships on the north- west coast, fifteen American and one English. These vessels exchanged with the natives of tho coast for furs parts of their cargoes, and, pro- ceeding to Canton, returned to their respective countries with cargoes of teas. 17 Korth AinerictD Review, 18'J2, Article XVin. , /,^' Bancroft, Alaska, p. 273. Ibid., p. 3SS. Alaska, p. 285. Ibid., p. 274. Ibid., p. 275. Nortli-went Coast, pp. 250-257 Alaska, p. 244. Vancouver, iii, p. 498. Alaska, p. 296. Vancouver, ill, p. 199. Upwards of 18,000 sea-otter skins, besides other furs, were in 1801 collected by the Ameri- cans alone for the Ciiina market. Bancroft is an authority for the statement that in 1799 there was no Russian Settlement outside of the islands. In 1790 Fidulgo sailed from Nootka, then occupied by Spain, to examine tlie north-west coast. He called at Kodiak. The trading-vessel " Phoenix," Captain Horse, from the East Indies, was in Prince William Sound in this year. At this time Kussia and Sweden being at war, a Swedish cruizer visited the Aleutian Islands, but finding no Government establishment to attack, and no one but traders living " in abject misery," her Commander refrained from attack. In 1791 Malaspieca, from Spain, under orders of the Government, visited several places in what is now the Alaskan coast. Douglas, in the " Iphigenia," also visited Cook Inlet this year. Besides these three vtsi-jls, at least eight trading-vessels are known to have been on the coast, of which seven were American. In 1792 Cramano, 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. "Halcyon," Captain , Barclay, visited Pctro- polovsky for purposes of tradr, and a French vessel, " La Flavia," wintered there. In 1793 Vancouver, who hnd 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 Pacilie and Atlantic by the exploration of all remaining inlets on the north-west coast, was occupied ou what now constitutes the south-eastern Alaskan coast. In 1794 he surveyed Cook's lulot to its head. Prince William Sound, Kodiak, and the coast extending to Yakutat Bay, were iu turn carefully laid down. Touching the Russians here and there dis- covered, Vancouver "clearly underatood that tho [607] F t „^mi 18 Russian Government had little to do with these Settlements; that they were solely under the direetion 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 tiiat of collecting furs, which is principally done by the Indians." Near Yakutat Hay he fell in with the "Jackal," an English trading- vessel, which was then upon the coast for the third consecutive season, and further to the south-eastward ho met with the "Arthur," Captain Barker, from Bengal. The names of four trading-vessels on the North-west Coait, north-west coast, including the "Jackal," were P-SSl- found for this jear. In 1795 a trader, named the " Phccnix," from ibi,i„ p. so-i. Bengal, was on the north-west coast. In 170G at least three trading-vessels are known im., p, 305. to have been on the north-west coast. In 1797 the names of four trading-vessels on Ibid., p. 306. this coast arc known, but were probably a small part of the fleet. In 1798 the names of six traders are known. Ibid. In 1709 the "Caroline," Captain Cleveland, from Boston, arrived at Sitka. v. Several other American vessels, among them iHncrofi, .Maska, the brig " Eliza," under Captain Rowan, visited •'' "^^ the bay during the summer and absorbed the trade while Russians were preparing to occupy the field in the fiiiaro. The names of srvtn vessels trading on the North-west Coa^t, ncrth-west coast are r^ corded in this year. P' In 1800 the s'rp " Enterprise," from New York, arrived at Kodiak. The name of seven traders on the north-west Ibid., p. 308. coast are given in this year. In 1802 the Russian Establishment at Sitka was destroyed, and nearly all the Russians there were massacred by the natives. According to Sisiansky, the natives were assisted by three deserters from an United States' vessel, the " Jenny," which had called at Sitka not long before. Shortly afterwards, the English vessel, the Alnskaj pp. 404- " Unicorn," Captain Barber, arrived at Sitka, *'^^- and two other vessels, reported by the Russian survivors as English, but one of these Bancroft believes to have been the United States' vessel the "Alert." In this year the news of the Charter granted ibid., p. 416. to the Russian - American Company reached Barauoff, the Governor of Sitka. M'*"' /?'ir I'M '^^ 10 Si.'*" Nortli-we»t Coast, pp. 318, 319. Aliakii, p. 443. f(/^- It ..(/t^\ \ vV-' { Ibid., p. 384. In this year also Krusanstciii, Laving visited China, ^m'scntcd a ifcmorial to tlic Ru.ssian Govcrnmeiit, calling attention to the advantaLfos olTerod hy t'.io trodc in furs I'roni Anierica direct to Chinoso ports, and suggesting Russia should engage in it. The United States' vessel " O'Cain," Captain O'Cain, in 1803 exci)anged goods for furs with BaranolT. In 1801. Sitka was reoccupicd and rcl)uilt on a new site. The names of four vessels trading on the north- west coast can be found in this year. In 1805 two United States' vessels, one named " Juno," were at Sitka (then called New Archangel) . The names of six vessels, including " Juno," arc known as trading on north-west coast in this year. Nothing approaching to a complete record of tJie names or nationalities of vessels trading upon th . ^ part of the coast in the years about the close of the last century can now be obtained, and, in the absence of explorations, of which the results were published, from the time of Vancouver's departure, even incidental allusions to the presence of such traders are scarce. That such trade was, however, continuously practised is evident from the general complaints made by the Russians as to its cficct on their operations, and perhaps the best mode of making this clear is to quote from Bancroft's " History " a few allusions to such complaints referring particularly to these years. "^ ^/ ^, ^^.j^ Writing of Uil/jyiuH's enterprises, Bancroft savs : — ■\ " At evi y point ea-stward of Kodiak where h(; liad endeavoured to open trade, he found himself fore.stalled by English and American ships, which had raised the price of fura almost beyond his limited means." Again, referring specially to the nascent Establishment at Sitka, Baranoff himself writes : — Ibid., p. 896, " I thought there would be no danger with proper pro- tection from the lar r i i 1 ii niiii I i«uk-r r,nln-ii'" i — RoquetV'uil, a French ofliccr, arrived at Sitka in the " Hill Jolais," a trading-vessel. Sailed for Prince of Wales Archipelago, but Ibid., p. 522, 525. disagreed with natives and r<>turnod to Sitka. Russians also made attempts at exploration at this time without great success. Tills year Roquefcuil found an United States' Nortli-»cst Coast, and a Uritisli trading-vessel in Alaskan waters. P" In 181!) the United States' traders obtained Alaska, p. 588. most of the trade, bartering with the Ivoloeli fire-arms and rum for skins. They obtained about S,000 skins a-year. Tlie Russians could not compete with tl:"m. Tiie Russian twenty-year Charter was about to expire, and Golovinin was inst-uetcd to inquire as to its operations. Ilis Report was not favour- able. III! writes : — "Throe things are wanting in the organization of tlii^ Ibid, p. 631. Company's colonies: a dearer dellnition of the various officers, a ilistinction of rank, and a regular uniform, so lliat foreigners visiting these ports may see something indicating the existence of ports and troops belonging to the liusiian sceptre — something resendding 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 were operating on North-west Coast, the north-west coast. P- ''"'■ W^' Ri:ssian Ivussiii .Vnii'i \.ff 23 North-west Coast, p. 522. The extent of Russian occupation at about the date of the expiry of the first Charter can bo shown by the Census taken in 1819 : — %\ I :i:3siun territorial claim in 1821. Men. A\*o:aen. Sitka, or New Arohangol 108 11 Kodiak ami adjoining islands . . 73 Island of Vokamok . . 2 Kntmai ■1 Suth Kumokoi iJ Voskrfssevskv Harbom- , • o Fort Constnntine 17 Nikolai, Cook Inlet ., 11 Alcxandrnvsk, Cook Inlet 11 Ross Si ttlement, California 27 Pribvloff Islands 27 Nusha);ak (the only Settlement on the continent north of the Alcntian Islands) ;i o Total 378 13 re is Hi) prcttMico, any or on the part of 'I'nt, of exclusive ric;hts (1 outside of the orditiary liii'i.'^ia hml no title to any portion of the North Aiiii'ricnn Continent. American State I'ttpcri, Foreign Relations, vol. v p. 436. Fro\ either the Piussi^ as against tt territorial limit.^ Mr. Adams, Secretary of the United States, established clearly that even as late as 1S23 Russian riglits in the region under eoiisideratiou " were confined to certain ishuuls north oL" the 55th degree of latitude," and had '• no existence in the continent of America." Writing (22nd July, 1823) to Mr. iliddlccon, Mr. Adams observed : — " It does not apiicar that tliere ever has been ;i permanent Russian Settlement on tliis continent south of latitude 50°, that of Xew Arehau.i,'el, cited liy M. I'olutica, in latitude 57° .">0', heiiig upon an island, .So far as prior discovery can constitute a fouudation of right, the jiapers wliich I have referred to prove that it belongs to the United States as far as 59° north, liy the transfer to them of the rights of Spain. Tliere is, liowcvor, no part of the globe whore the were fact of discovery cotdd be lield to give weaker claims than on tiie north-west coast. The great sinuosity, says Humboldt, formed by the coast between the 55tli and GOth parallels of latitude, enibiMco.-i discoveries made by Ciali, Bering, and TchivikoU" Cjhiadra, Cook, La I'erouse, llalasiiier, and Vancouver. No P'uropean nation has yet formed an establisliiueut upon the iunuense extent of coast Iroiu Cape Mendosiro to the 50tli ilegree of latitude. Beyond tliat limit the llussian factories comuieuc'e, most of which are scattered anil ilistant from each other like the factories establislicd by the European nations for the last three centuries on the coast of Africa. 5Iost of these little Itussian Colonies communicalo witli eacii other ouly liy sea, imd the new ' 1* \./ / Mm 24 dominations of riussian-Anicricn or Russian possessions in the WW cnntincnt must not Icixil us to beliove that the coiust of liurinj; I!ay, the Peninsula of Alaska, or the country of thu Isthuf^atschi have DeconKj llussian jnovinces in the same sense f;ivcn to the wonl when spcakinf^ of the Siiani^li I'nivinces of Seiidrii or N(!W Biscay." (lluniljolilt's "New Spain," vol. ii, Hook .'!, chap. 8, p. 4'Jt>.) "In M. I'oletiea's letter (if the L'Sth February, 1H22, to me, he says that when the Enipornr Paul I t^rantod to the present American Company its lir.st Charter in 1709, ho gave it the f.irliisice pofsctalon of the north-west coast of America, wliidi lielim^ed to Russia, from the 5,'th degree of north latitude to Boring Strait. " In his letter of tlie 2nd April, 1822, ho says that the Charter to thu Russian-American Company in 1709 was merely conceding to tlicm a part of the sovereignty, or rather icrtaiii cvclusicc privileges of commcrre. " Tliis is the ino.st correct view of the snliject. The Emperor Paul granted to the Russian-American Company certain exclusive iirivileges of commerce — exclusive with reference to other Russian subjects ; but Russia liad never before assertal a right of sovereignty over any part of the American continent ; and in 1700 the people of the United States had been at least fur twelve years in the constant and \niinterrupted enjoyment of a protitalile trade with the natives of that very coast, of which the Ukase of the Emperor Paul could not deprive them." Touching the question of Russia's claims, up to 1821, to exclusive jurisdiction over more than certain islands in the Pacific Ocean on the American coast, Mr. Adams, moreoTcr, hrought forward, with approval, articles which appeared in " The Is'orth American Review," puhlishcd in the United States, and in the " Quarterly Review," puhlishcd in England. From the facts disclosed by these articles it appears that the Government of the Unitcc' States took the ground explained bj Mr. Adams, that " the rii,'ht of discovery, of occupancy, of imeon tested possession," alleged by Russia, were " all without foundation in fact," as late as the year 1823. While the subjects of Russia, Spain, Great Britain, and the United States were doubtless making claims on the part of their respective Rulers from time to time, so uncertain were their claims and the merits of each that in 1818 (20th Octohei'), in the Convention between the United States and Great Britain, it was agreed that any "country that may be claimed by either party on the north-west coast of America, westward of the litony Mountains, shall, together •with its harbours, bays, and creeks, and the Appendix I. Article XVIII, North American Review, vol. XT, Quarterly Iteview, 1821.22, vol. xxvi. See also Adams to Rush, July 33, 1823, p. 446; American Stale Papers, Foreign Relations, F. O., p. 446; and also Confi- dential Memorial inclosed in letter, Middleton to Adams, December 1 (13). 1823, p. 449, American State Panrr?, Foreign Kelatious, F.O. )^ Extent of ] Seal Fisher oV'^ The Ukasf i^ [Extent of Enssian occupation in 1821 " Tikhmenief; note to p. S22. ^Seal Fisheries of minor inijjortauco in 1821. Sumner's spi eoh, p. 178. H. R.. Kx. Uoc. Nos.lf)7-180, -2nil Sos8., 40lh 'Jonji., infra. See \ Appcudix. Tlic Uknsp of Paul purely domestic. IB American Papers, F State oreign ^^^H Relations, , vol. V \ p. 461. K^K |9|K Q\ (.w ^ 95 navigation of all rivers within the same, ho free and open for the term of ten years from the date of the signature of the Convention, to the vessels, citizens, and suhjects of the two Powers, it heing well understood that this agreement is not to ho constnied to the prejudice of any claims which either of the two High Contracting Parties may have to any part of the said country, nor shall it be taken to affect the claims of any other Power or State to any part of the said counti-y, the only object of the High Contracting Parties in that respect being to prevent disputes and differences between themselves." The actual extent of Russian oicupation in America at this time (CenVus of 1819) was at vol. i, pp. 252-a53. Novo Archangclsk, 198 meu,Vl women ; Kadiak, Appendix, Ban- . \ croft's " Alaska," and adjoining islands, 73 men ; Island of Ooka- mok, 2 men ; Katmai, 4 mon ; Sutkhumokoi, 3 men ; Voskrcssensky llarLouA 2 men ; at Fort Constantine, 17 men ■- at Nikolai Von Cook Inlet), 11 men ; at Alcxandrovsk (also on Cook Inlet), 11 men ; at the Ross Settlcmen\ (California), 27 men ; on the seal islands, 27 nien ; and at Nushagak,* 3 men and 2 women ; total 391, of whom 13 were women. The placesXin italics were the only Settlements in, or on thtn coast of, Eohring Sea, other than Aleutian Island Touching the imporlaace now given to the subject of seals and seal life, it is to be noted that the otter, and not the seal, was the most valuable fur-bearing animal sought by hunters and traders at this time. ("Voyage of M. de Kruscndern," vol. i, p. li, given in American State Papers, Foreign Relations, vol. v, F. O., p. 453.) Eiaallyr '■ -■■•i ng to the Ukase of E^^jj Mr. Middloton, in giving Mr. Adams a narrative of the proceedings, 7th (19tli) April, 1821, leading to the Convention, remarked : — " The confusion provailiiii,' in Europe in 1799 porinittcil Russia (who alone seems to Iiave kept her attention tixeil upon this interest during that period) to tflke a decided step towards the monopoly of tliis trude, hy the Ukuse uf that date, which trespassed upon the iioknowledseil rights of Spain ; but at that moMRMit the Emperor Paul had declared war against that country as being an ally of France. This Ukase, which is, in its form, an act purely domestic, was never notified to any foreign State with injunction to respect its provisions. Accordingly, it ap- r L' f * Th a nnijr fl r ft^rmi^ nt nil th i Mii li»« nt iimlU n f ili 1 11 lll l llll u. [607] 152903 \ V I:' I |™«S \ 26 pears to have been passed over unobserved by foreign Powers, and it remained without execution in so far as it militated against theii' rights." From 1799 to 1821, therefore, there is no evidence upon which it can be said that Russia either assorted or exercised exclusive jurisdiction in Behring Sea outside of the ordi- nary territorial limits. tf^ f ^' V.\^ V A-- V Bs^^^ ^w^_\ , , ^\ \ .T-" , • '■- r i^^Bf '^ -VC-; y- ^ ^^ , . y ,.,^ .,:■• ;. ^> \^> ..V V' h hB 1 I ^ ■■ N- i^^^^K m .' V \ -. ,. ;•• WB Ukase of . I ■ H Vex., "^'^>: S ^B 'O V ..•■', .c- I^H " •.>#;,,, ^^Hb ""^ .^- ■ \ %y iMmm'" ' ^' I /■ ,^-v.,^^ ■■■B 1 %"•*- ■-'■ ■ ' ^^B 1 ^ v.>' . ^^B 1 ' I y ' ^/■•••"■'' 1 ;>• .^. ^R '^^ ;.• ^^ 27 ^ ClIAPrER II. Points I and II. — T/ i * [ffrnrr; the Neg o tiation s or TroHlim httnwen 18911 and 18 25. '^'■- ( t. \ V ^ V Voyape, M. de Kruscnstcrn, Tol. i, p. 14, No. 384, p. 454. American State Papers, Foreign Relations, vol. v. American State l*apor8, vol. V, pp. 438-443. Bancroft, p. 328. '* Tikhmenief," Isler. Obos. I, cited in note to Bancroft, p. 532. See also Bancroft, vol. xxniii, p. 44G; OresanofTs com- plaint in 1806. • \r v>-- Bancroft, 531, cap. xxvi (1886). Ukase of Alexaiidcr, 1821. \ V .^e^;'- V^ ,v^ .. ,/'^ Shortly before the date of the renewal of the Charter of the llussian-American Company in 1821, the aspect of affairs had considerably changed. The Company had long before fully succeeded in getting rid of their Eussian rivals, but trading- vessels from England and from the United States haunted the coast 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 Riatcha 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 appears 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. fn 1021 llussi^i first 4»e6ett£(l oxclusivt; juris- diction ipver a Innga. portion of the Pacific Ocean,; ■ now known asliekriug Sen. ' When the term of the First Charter expired, the Russian - Amt^ricjiu Company numbered among its shareholders Russians of high rank, as well as menibors of the Royal Family, and the Emperor Alexander himself Avas a sharelioldcr. Accordingly, a Ukase was issued as follows : — "Edict of His Imperial Mnjratii, Autocrnt of All (he " Eiissias. "The DirectinR Senate ninki'lh known unto all men: Whereas, in au Ediet of llis linpeiiiil Majesty, issued to tliu Directing Senate (Jti the -Itli day of Sejitewilier, 1821, and signed by His Imperial Majesty's own hand, it is thus expressed : — "'Obscrvinf; from Reports sn'imitteil t^> "« that the *TOdo of our subjects on the Aleutian Islands and on the norHi-west eoa.";t of America appertaining unto Itussia ia subjected, because of illicit and secret trallic, to oppression «ud impudimcnts, and tiuding that the principal cause of {>' u.-l X 'i \t/ \k./ 28 these difficulties is the want of Rules estiilJisliing the boundaries for navigiition along these coasts, and the order of navnl communication, as well in these iilaces as on the whole of the eastern coast of Siberia and the Kiirile Islands, wc have deemed it necessary to determine these communications by specific llegulations, which are hereto attached. "'In forwarding these I'cgulations to tlie Directing Senate, wo conmiand that the same be published for universal information, and that the proper measures be taken to ccrry them into execution. (Countersigned) '•'CofM I)E Gurief, "'Minister of Finances. " ' It is therefore decreed by the Directing Senate that His Imperial ilajesty's Edict be published for tlie infor- mation of all men, and that the same be obeyed by all whom it may concern.' " The original is signed by the Directing Senate. " On the original is written in the handwriting of His Imperial Majesty, thus: "lie it accorilingly, " Alexander. "'Section 1. The pursuits of commerce, wlialing, and fishery, and of all other industry, on all islands, ports, and gulfs, including the whole of the north-west coast of America, beginning from liering Straits to the 51st of northern latitude ; also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurilo Islands, from Hering Straits to the south cape of the Island of Urup, viii., to tlie 45° 50' northern latitude, is exclu.sively granted t(i Kussi.in sulijects. " ' See. 2. It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated alinve, but also to approacli them within less than 100 Italian miles. Tiio transgressor's v(Msel is subject to confiscation, along with the whole cargo.' " (\," 'I \ \ V ^ V- V / ^' ^^ •■V \ ^ oV The RuptSK^Amorirohibition to tlit>, vessels ol otlier nations, including those of tlu^ United States, to approach within 100 Italian miles of the coasts. From the period of the e.xisteuce of the United States as an independent nation their vessels have freely navigated those seas, and the right to navigate them is a jiart of that iiulepeudence. "AV^itli regard to the suggestion that the Russian Government might have justilied the e.\ercise of sove- reignty over the Pacific Ocean as a close sea, because it claiiii territory Ixith on its American and Asiatic shores, it may siiliice to say that the distance from shore to shore ,• on thif sea, in latitude 51° north, is not less than !I0° of \^ longitudi', or 4,000 miles." <3 \- ^ ^ V J ■o Tlic Jlussian llepre.scntativo replied to this note on the 2nd April following, endeavouring to prove tliat the territorial rights of Russia on the nortu-uest eoast of Ameriea were not eonlined to the limits of the Concession granted to the Ilussian-.Vineriean Company in 1709, and arguing that the great extent of the Pacifie Ocean at the olst degree of latit iide did nnt invalidate the right wliieli I'aissia might Iiave to considr-r tliat part of Hie c;:-ean as closed. But he addef' tliat further di.seiission of this point was unnecessary, as the Imperi.a! Government had nol; tliouglit tit to tfike advantage of that right. 0)1 the 22nd July, 1823, Mr. Adams wrote to Mr. Middletou as follows : — " From tlie tonour of the Ukase, the pretentions of the For letter in full. Imperial (ioveriiment extend (o an exclusive territorial '** Appendix. jurisdieticiii from the 45111 degree of north latitude, on the A.siatic I'oast, to the latitude of 51 north on the western coast of the American t.'ontiiient ; and they assume the right of interdicting the tuii-it/alion and the fi.shery 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 lishing is jjcrfect, and has 31 been in constant exercise from tlie earliest times, after the I'eace of 178:5, throughout tho whole extent of tlio Southern Ocean, suhjei't only to the ordinary e\C('|itioiis and exclusions of tint territorial jurisdic-tious, whirli, >o far iis Russian rights arc concerned, are conlincd to certain isla7id)i north of the Hoth degree of latitude, ami have no existence on the Continent of America. " Tlie correspondence between M. I'olelica aud lliis Department contained no rctinsiiiii therein advanced." .\-< Tlie followini; extract from a dcspat(!h from For despatch, see Count Ncssolrode to Count Licvcn, dated the '''""" ""' 26t!i June, 1823, show.s how eompletc the siisjiension was : — " That the Comniaudors of our ships of war must confine their surveillance as nearly as po.ssiblo to the mainland, i.e., over an extent of sea within range of cannon-shot from the shoie ; that they must not extend that surveillance beyond the sphcrc where the American Company luis eflbctually exercised its rights of hunting and fishing since the date of its creation, as well as since the renewal of its privileges in ITHO, and tli!'' as to the islands on whicli an' to be found cohtnies or settlements of the Company, lliey are all indistinctively comprised in this general rule. ". . . . Your Kxcellency will observe tliat ihese new instructioiLS — which, as a matter of I'act, are to suspend provisionally the ellect of the Imperial Uka.so of the 4th Se])teiiiber, 1821 — were sent from St. I'etersburgh only in August of last year." I ^ -^ ^ ■^Miy^Sht^fc w?is — 111 (ViM'j !l'l hiU' hccm isaidj'ISo ^ /exercise; of extraordinary exclusive jurisdiction on the part of Russia, for the pretensions set up in the l]l north, and bis justification of its extension to the 51st degree north latitude. lie proceeds to defend the policiy of exclusion ' contained in the Ukase of 1821 by explaining that, as Russian possessions extend from Rebring Strait to the 51st degree north latitude on the north- west coast of America, and on the opposite side of Asia and the islands adjacent to the 'loth degree, the sea within those limits, viz., that part of the Pacific Ocean was a close sea, over wbich Russia could exercise exclusive jurisdiction, but be goes on to say that Russia preferred only asserting its essential right without " taking any ad\antage of localities." Their object he declares to be the prevention of illicit trade on the part of foreigners, and the furnishing of arms and anummition to the natives in '* the Russian possessions in America. " to the injury of the Russian- American Company, and exciting the natives to resist the authorities. The object of the Ukase, so far as the [607] K i^-tt.. u attempted exclusion of foreigners from 100 miles of the coasts, from 51° north latitude to Behring Strait is concerned, is further explained by Baron de Nicolai in his noto to Lord Londondeny, the 31st October (12th November), 1821. lie insists that the operations of " smugglers " and " adventurers " on the coast " have for their object not only a fraudulent commerce in furs and other articles which are exclusively reserved to the Russian- American Company, hut it appears that they often betray a hostile tendency." " It was," he continues, " therefore nocessai-y to take severe measures against these intrigues and to protect the Company against the hurtful prejudices that resulted, and it wan with that end in view that the annexed Regulation has been publislicd." And again. "The Government, however, limited itself, as can he seen by the newly- published Regulation, to forbidding all foreign vessels not only to land on the Settlements of the American Company and on tiic peninsuhi of Kamscluitka and the coasts of tlie Okhotsk Sea, but also to sail along the coast of these posses- sions and, as a rule, to approach them witliiu 100 Italian miles." In Ihot the Ukase is predicated upon similar reasons, and proceeds to say : — "- " ('(lUsiikM'iiif,' that tlie jjiitioiiml rausc of these losses is the iilisi'iicfc of positive Kegiilutioiis teiidiiii,' to fix tlic limits of navigation along these coasts." That the oi))eel of the Ukase was to extend territorial jurisdiction over llu; novtii-west coast and islands and to prohibit the trade of foreigners rather than to jn'oteet any possible fishery of that dat(> DP laliT on is further iiuli- at; il by 70 oi' the«, llegulatio'is umli. ' i i I i f Uka.^i ' ** i — IStfl. This Regiihilion reads: — • 7(1. A shi|) of war, after visiting, not only the Oom- liany's Settlements, Imt ihi, luul more particularly, the ( hannels which foreign merchant-vessels are likely to j'lri/iiJ hI for thf inirpiK,- nf illicit trmlinii n-ith llir iiatirrs, will return to wijiter whenever the (iovernmeiit orders it." So liule 20 of the " Uules established for the limits of navigation and order of eonununieation .along the coast of Eastern ^'" -ria, the nortii- ucsl coast of America and tlie .Aleutian, Kurile, and otlier islands," ai)pr()\e(l by the Ivrnperoi' on f^-A 36 the 4th September, 1821,* shows that trading vessels were alone in view when the Ukaso of 1821 was issued, as it gives a form of information to be given by every foreign ship boarded in the harbour or in the roads. This form refers only to cargo vessels. The result of these negotiations was the Con- vention between the United States and Russia The Treaty (Russia and tlic United States). For text of Treaty, of the 17th April, 1821, whieli put an end to April T? 1824. ^'^y lurtlier pretension on the part of llussia to restriet navigation or lishing in Behriug So;, so far as Amoriean citizens were concerned. Articles'^iul IV of this Treaty are as follows: — "AKTirLE I. "It is iigi'ceil tliitt in liny part of Iho Great Oi'uiii), commonly called the Pncific Ocean ov Sdiitli Sea, tlie respective citiz'jns or subjects of tlie Higli Cunlracting Powers sliall be neither disturbeil nur restrained, either in navigation or in fishini;, or in the power of resorting to the coasts upon points wliich may not already have been occu- pied for tlie purpose of trading with the natives, saving always the restrictions and conditions determined l>y tlie following Articles. .UkA-H *■- "'I'Mrdr tliii naumu Inkrn by (ircat lU'itain '" "''"" til' lllli lii"''U asseileil hy Rns.si;L (h.J>J' Tlu' protest of ilw Hritiali (ioTcru- meiit. / / A "AltTU'l.l': IV. " It is, nevertheless, understood, that during a ti'vni of ten ye.ivs, counting from the signature of the present. Convention, the ships of both Powers, or whicli liolong to their citizens or sulijects respectively, may reciprocally freipient, without any hindrance wluitever, t!ie interior seas, gulfs, harbours, and creeks upon thv coast; mentioned in the precediug Article, for the purpose of lishing ami trading with the natives of the country." (State Vapors, vol. xii, p. 59.").) The Ukase was brought to the notice of Lortl Ijondoiideny (better known as Lord Castloi'<'agh), the I2tli Novcntber, ]S:21, by ]?arou dc Nii-ohii, tlicii riussitiu Chiirgi' d'Alfaiivs, as connected will) tlie territoritd rights of the I'ussiaii ('rown on the north-west cccist d' Vmerica, :.i\d with tile eoiumeic(! tiiid ntiviLiiilioii of tlio Entpcror's subjects in tlie seas adjacent thereto. On tlie 18tli January, 1S22, four months after the issue of the Ukase. Lord Londonderry, then IkiLLJj JiWcwiii Scerettirv. wrote in the followinu; ^oe Appendix. terms to C.iunt Lievcn, the Ilussian Ambassador in London: — " In the nieanlinu', upon the subject of this I'kaso geni'ially, and cs|iecially upon the two main jainciples of * St'c Sir C H^ijinl 1(1 ihc .Marquis ul' Lundundetry, Novtrn- bur 17, 18il (;\ppeM.ii)t). 36 fl clftini laid down therein, viz., an cnlu.tive sovereignty alleged to belong to Russia over the territories therein described, as also the cxchunve right of navigating and trading within the limits therein set forth. His Britiinnic Majesty must bo understood as herrhy reserving all his rights, not being jireiiared to admit tliat tlie intercourse which is allowed ou the face of this instrument to have hitherto subsisted on those coasts and in those seas can be deemed to be illicit; or that the ships of friendly Powers, even supjiosing an uiuiuiilified sovereigi.ly was proved to appertain to the Imperial Crown, in these vast and very iniperl'ectly occupied territories, could, hg the acbwirledged law of nations, he ereluded from narUjating within, the didanee of 101) Italian miles, as therein laid down from the eoast, the exclusive dominion of which is assumed (but as His ^Majesty's Government conceive in error) to belong to His Imperial Majesty tlie Emperor of All llir IJussias." / ]Mr. Cr. Canniiii^ wrote to the Duke of Welling- Sm Appendix, ton on the 27th September, 1822. He also dealt in this d(;sj)atch with the claim in the Ukase for the extension ol" territorial rights over adjacent seas to the distance — "unprecedented distance." he terms it — of 100 miles from the coast, and of closiiiij " a hitherto unobstructed passage." In this despatch Mi\ Canning says : — '• I have, indeed, the satisfaction to believe, from a con- Abandonment of claim to extraordinary juris- ferencc wliicli I have had with Count Lioven on this dictiont mutter, that upon these two points — the attempt to shut up tlio passage altogether, and the claim of exclusive dominion to so enormous a distance from the coast — the Itussian Government are prepared entirely to v/aive their pretensions. The only efTort tliat has been made to justify the hitter claim was by reference to an Article in the Treaty of Utrecht, which a.ssigus 30 leagues from the coast as the distance of prohibition. But to this argument it is sulliciont to answer that the assumption of sucli a sjiace was, in the instance quoted, by .stipulation in a Treaty, and one to which, therefore, tlio party to be affected by it luad (whether wi^;ely or not) given its deliberate con.scnt. Xo inference could bo drawn from tliat trans- action in favour of a claim by authority against all the world. " I have little doubt, therefore, but that the public noti- fieation of the claim to consider the portions of tlio ocean included between the adjoining coasts of America and the Russian Empire as a 7nare elansum, and to extend the exclusive territorial jurisdiction of Itussia to 100 Italian miles from the eoast, will bo publicly recalled ; and I have the King's commands to instruct your Grace further to lequirc! of the IJussian Minister (on the ground of the facts and reasoning-! furnislied in this despuleh and its in- closures) that such a portion nf territory alone sli.all he defined as beloiiginu to lius.iia as shall not interfere with 87 !• / J ordinary juris< ^^ the rights and actual possessions of His Majesty's subjects in North America." On the 17tli October in tlio same year, the Duke of Wellington, Ambassador at Verona, addressed to Count Ncssclrode a note containing the following words : — See Appendix. " Objoctiiifr, as wo do, to tliis elaini of exclusive soveriiigiity on tlic part of Kussia, I mij,'lit save myself the troulilo of (lisoussing the particular mode of its exercise as set forth in tliis I'kase. l!iit we ol)iect to tlie sovereignty proposed to he exeiciscd under this Ukase not h'ss than we do to the chiini of it. Wc cannot nihnit the ri/jht of any Power possessing tlie soccrcignty of a cotmtry to exclude the vessels of others from the si:ason its coasts to the tUstance of 100 Italian niilcs." Again, on tlie 28th November, 1822, the Duke of Wellington addressed a note to Count Lieven, containing the following words : — See Appendix. " Tlie sctund ground on whicli we olijoct to tlie Ukase is that His Imperial Majesty tlierel)y excludes from a certain con.sidcrahle extent of tlie open sea ve.-ssels of oth'jr nations. We contend tliat the a.ssuniptioii of tliis 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 whatever can exclude another from tlie 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 iw the law of nations, and we cannot negotiate upon a paper in wliicli a right is asserted inconsistent with this principle. And on the 15tli January, 182i, Mr. G. Canning writes Sir C. 13a got : — Sec Appendix. " . . . . The questions at issue between Great Britain and Russia are short and simple. The Russian Ukase contains two objectionable pretensions ; First, sm extra- vagant assumption of maritime supremacy ; secondly, an unwarranted claim of territorial donunions. " As to the first, the disavowal of Russia is in substance all that we could desire. Notliing remains for negotiation on that head but to clothe that disavowal in precise mid satisfactory terms. We would much rather that those terms should be suggesteil by Russia herself than have the air of pretending to dictate them ; you will therefore request Count Nesselrodc to furnish you with his notion of such declaration on this point as may be satisfactory to your Clovernment. That declaration may bo made the preamble of the convention of limits And again, in a despatch, 24th July, 1824, to Sir C. Bagot, Mr. G. Caiming says :— See Appendix. " . . . . Vour ExceMency will observe that there are but two points which have struck Count Lieven as susceptible [607] L 38 of any ((\io3tioii: tho first, the nssumption of the base of thu iiKJiiiitaiiis, iiinteiul of thu .suiniuit, n.s tho line of bouiidury ; tlio secoiul, tliu uxtunsion of tlio riglit of tho navijjiitioii (if tho Pncitio to tho aea beyond Bchring StmitH. " As to the 900011(1 point, it is, perhiips, na Connt Lioven remiiiks, now. l!ut it is to be rotnarkcil in return that tho circumstances under whicli this additional security is reiiuired will bo new also. ■' I'ly tho territorial demarcation agreed to in tliis ' pioji't,' Ilu-ssiii will beeonu' po.ssessed in acknowledged sovereignty of liutli sides of lieliring Straits. " The Power which would think of making the Pacific a mart rfniminn may not unnaturally be supposed capable of a di.ipo.sition to npjdy the same characler to a strait comprehended between two .shores, of wliieli it becomes tho undisputeil owner. But the shutting iii> of Ik-ring Straits, or tho power to shut them up hereafter, would be a thing not to be tolerated by England. " Nor could we .uibiiiit to be excluded, either positively or couslruetively, from a sea in which tlie 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. " Tlie protection given by tin; Convention to tlio American coasts of each Power may (if it is thought necessary) be extended in terms to the coasts of tiio Russian Asiatic tonitoi y ; but, in some way or other, if not in the form now prcseiibed, tlie free navigation of lieliring Sti'aits and of the seas beyond them must be secured to us." '.4 ■'4 Mr. Goorgn Canning in a ilcspatch to Mr. For despatdi in Stratford Canning, wlion the latter was naniod " ' **^ '''"'" Plenipotentiary to ncgotiato tlie Treaty oi' 182"), under date the 8t1i Deeemlier, 182J', after giving a summary of the negotiation.s up to that date, goes on to say : — " [t is comparatively indifferent to us whether we liiislen or postpone nil (|uestions respecting the limits of territorial pos.session on the continc^nt of America, but the preten- sions of the Tlus.'siaii t'kase of 1821 to exclusive dominion over the Pacilic could not continue longer unrepealed without compelling us to take some measure of public and effcctuid rcmionstrauce against it. "Y(JM will, tlierel'ore, take enre, in the lirst instance, to repress any attempt to give this change to the character of the negotiation, and will declare, without reserve, that the point to which alone the solicitude of the IJritish Governiiient and the jealoii.sy of the British nation attacli any great importance is the dning away (in a manner as little disagreeable to Russia as possible) of the effect of the TJkaso ot 1821. » * * * "The right of the subjects of Hi'^. Majesty lo navigate freely in the Pacific cannot be held as a matl'.'r of iudul- genco from uny Power, lluvinj,' oucc licoii publicly questioned, it m\ist I)e publicly ncknowleilged. " \Vc do not desire that any distinct ri'lerence should bo inndc^ to tlin Ukase ul' IHlM, liut we (Id feel il neii'ssiiry that the statement of our ri','lit sliouM lie clear mid posi- tive, and that it should stand forth in llie Convention in 'the pi •'-.0 wlii(;h properly belon;,'s to it as a jilain and sub- stanltvc stipidation,and not bi' brou'^^dit in as an ini:i>lental conse(|uen<:e of otlier arran^jenieiits to which \vi' attach comparatively little inijiortance. "This slipnlalion stands in tiie },'rant id' the Cniivcnlion concdndi'd between Itussia and the I'nited Slates of America, and we ,see no reason wliy, npim similar clainw, wo should not obtain exactly the like .satisfaction. " Knr rca.sons of the .same nature, we cainiot, consent that ihi' liberty of nnvipation through lii'ring .Straits should be stated in the Treaty as a boon from IJussia. "The tendency of such a stateniciit wunld be tn j^ivc countenance to thoso claims of exclusive jurisdiction against which wo; on our own behalf and on behalf of thu wliole civilized world, ])rote3t. N< « Id * " It will, of course, strike tho Russian I'lcnipotentiaries that, by the adoption of tla! American Article respiicting navigation, &c., the provision for an excessive fishery of 2 leagues from the coast nf our respective possessions falls to tho ground. ■' Rut the oniLssion is, in uuth, immaterial. " The law of nations assigns the exclusive sovereignty of 1 league to i^ach I'ower olV its own coasts, without any speeitied .stipiilatiivn ; and though .Sir Charles liagot was authorized tn sign the Convention witli the specific stipu- lation ii( 2 leag\U!s. in ignorance of what had been decided in the American Convention at the time, yet, after that Convention has been some months bott!;oti:iti()ns resulted in ;i Convention Britain and Uussia), . , ., February 28, 1825. With (iivat JSntaiii. Signed oil the IStli Febniiuy, 1825^ substantially similar to that with tho ■United States. The following ai'C some of the important clauses of this Convention : — '■ I. It is agreed that tlit respective subjects of tho High Contracting Parties shall not be tnuibled or molested in any part of the ocean, commonly called the I'acifK; Ocean, either in navigating the same or tisliing llicia, cr in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under tho ro.strictious and conditions specified in the fol- lowing Articles : t t 40 *'^,?». "TI. Ill order to prevent tlio rip;ht of navigating and fisliiiig, exercised upon tlie (iceaii by the subjects of the High Contrnetlng Parties, from becoming the pretext for an illicit cniiiMiercc, it is agreed that the subjects of His Britiiunie Jlajesty sliall not bind at any pbice where there ■•uay be a IJussian esliilili.~limeiil williout the peiniisHion of tl.'? Governor or Cuiumaiidaut; and, on tlie oilier hand, tha. Itussian subjects sliall not land, without permission at any liritisli establisliment on the north-west coast. "HI. The line of deiiiarcation between the possessions of the High Contracting Parties, upon the coast of the contineiif, and the islands of America to the north-west, shall bo drawn ii: the manner following : "Commencing fr.im the .southernmost part of the island called I'rince of '\\;d<:s' Ishind, wliich point lies in the parallel of 54° -t(>' north latitude, and between the 131st and tlie lIKiid 'legree of west longitude (meridian of Greenwieh), the aaii', line shall ascend to th? north along the ehaniie! called I'ortland Chaniie!, as far i,s the point of the coii'.inont where it strikes ibi; Sfitli (leg.ee ot north latitude; from this last - mentioned point, the line ot demarcation shall follow the suinmit of the mountains situated parallel to the coast, as far as the point of inter- section of the 141st degi-ee of west longitude (of the .same meridian) ; and, finally, from the said point of intersection and the said meridian-line of the 141st degree, in its pro- longation as far as the Frozen Ocean, shall form the limit between the liussian and Ih-itish possessions on the conti- nent of America to the north-west. "IV. With reference to llie line of demarcation laid down in the preceding Article, it is understood — "First. That tlic i.sland called Trinee of Wales' Island shall belong wholly to Itussia. " Secondly. That wherever the summit of the mountains which extend in a direction parallel to the coast, from the 56th degree of north latitude to the point of intersection of the Iflst degree of west longitude, shall prove to be at the distance of more than 10 marine leagues from the ocean, the limit between the British p ssessions and the line of coast which is to belong to Ru.ssia, as above mentioned, shall be formed by a line parallel to the TS'indings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom. " V. It is moreover agreed, that no establishment shall bo formed l)y either of the two parties within the limits assigned by the two preceding Articles to tlie possession of the other ; conseipieiitly, British subjects shall not form any establishment i ither upon the coast or ujion the border of the continent c imprised within the limits of the Ilassian possessions, as designated in the two preceding Articles ; and, in like manner, m. establi.shiuenl shall be formed by Hussiau suhjeets beyond the said limits. "VI. It is understood that the subjects of His Britannic Majesty, from whatever (inarter they may vrive. whether from tlie ocean or firm the interior of t! "ont'nent, shall for ever enjoy the 'iglit of navigating l!.:i:!y, and v ithout any Lindranoe whatever, all the rivers and dtreams which, mf 41 in tlicir course towards the I'licitic Ucean, may i n'^s tlie line of (lomiirention upon tlic line of coast iluscrihcd iu Article III of tlic present Convention. "VII. It is also understood that, for tJie space <>[ ten yonrs froiu the signature of the present Conv(-ntiiii!, the vessels of the two Powers, or those ljeloni,'in(.; to tlieir respective subjects, shall mutually he at liberty to frequent, without any hindrance whatever, all the inland seas, the gulfs, havens, and creeks on the coast nientioneil in Article 111, for the purjioses cjf lisliin^' niid of ii;idin,n willi the natives." The claim of Russia attracted much attention at the time. Mr. ^Madison wroti; to President Monroe : — "The Conveiiliou witli Kusjia is a jnopitinus evrnt, as substituting amicaljle adjustment for tlie ri.sk of liostile collision. But I give the Emperor lit'le credit, however, for his a.s.9ent to the principle of ' marr lihevian ' in the North Pacific. His pretensions were so absurd and so disgusting to the maritime world, that he could not do better than retreat from tliem tin nigh the form o:' nego- tiation. It is well that the cautious, if not courteous, policy of England towards Hussia has had the eflect of making us, in the public eye, the leading I'ov^er in arresting her exiiansiv(i ambition." ^ ^N>^ Mr. Stratford Canuing, in his despatcli of tlie l.st ^[arch, 1825, iuclosiui; Ihe Convention as sit,'ned, says : — See Appendix. ■' With respect to liering Stiuits, I am happy to have it ill my power to iwsure you, on the joint authority of the Kussian Plenipotentiaries, that the Emperor of All the Kussias ha.s no intention whatever of maintaining ary exclusive claim to ilie navigation of these straits, or of '„he sea.s to the north oi them." Mr. Canning, writiui,' to the Right llonourahlc G. Caimiiig, 3rd (loth) April, 1825, said :— See Appendix. "... With respect to the right of lisliing, no explana- tion whatever ttn^k place between the I'lenipotentiaries and myself in the course of our negotiations. As no olijection was started by them to the Article which I olfered in obedience to your instructions. I thoughl it inadvisable lo rai.se a iliscussion on the (picstion, and tin,' dislancc from the coast at which Ihe right of lisliing is to be exercised in eoniinon pas.sed without speciticatioii, and conse(pi(^ntly rests on the law of nations as generally received. " ( 'ouceivhig, however, at a later period, that you niii;!;l possilily wish to declare the law of nations thereon jointly with th(' Court of Ku.ssia in .some ostensible sli.ape, I broached the matter anew to Count Xesselrode, and [607] M ■Si suggested tlifit he slioulil uutliorizu Coiiiil Lieven, on your inviUitiou, to oxclmugu notes with you declaratory of the law us fixing the distance at 1 marine league from the shore. Count Nesselrode replied that he slKJuld feel emliiin.issed in sulimitting this suggestion to the Kmjieror just al the moment when tlie ratifications of tlio Conven- tion Av ere on the ]ioint of being dispatched to London, and he suemed exceedingly desirous that notliing sliould hapiicii to retard the aeconiplishmenl of that essential formaUty. He assured me at the same tirao tliat his Government would be content, in executing the Conven- tion, III abide by the recognized law of nations, and that if any ipiestiou shoultl luireafttr be raised upon the subject, he sliould not i-efuse to join in making the suggested decliiratiou on being satisfied that tlie general lule under the h'.w of nations was such as wo supposed. "Having no authority to press tlie point in ijuestion, I took the assurance lluis given by Count Xesselrode ns suflicicnt in all probability to answer every national purpose. . . ." In reforoncc to this Convention of 1821, United States' AYharton, in Itis "DiMst of the Internntioiial in'^Pf^tation of Law of th<^ United Staie.s of Ameriea," section 159, Treaty, vol. ii. ]) 220, cites {.'resident ironvoc's cornmu- nicatioi! to Mr. Madison on the 2nd August, 182 !■. to tlip oircct that "hy this Conveniion the claim of marc clfiusu:ii is given up; a very liigh uorliK-rn latitude is established for (lie hoiuidary with Iiussia, and our trade witli the Indians placed lor ten years on a ])erfectly free footing, ;ind after tliat term left'ijxni i'or negotiaticni. . . . EnL;i;iiid will, of cinirse, have a similar stipida- tion ill favour ol tlie free n!iviu;atioii of the I'acilie, hut we shall have tlie credit of having taken the lead in the ail'air." These extracts show conclusively — 1. That Engliiiid refused to admit any jiart of the ussiaii claim asserted hy the Ukas(! of 1S2] f'l a maritime jurisdiction siiid e.\(dusiv(> right of iishiiu; throughout the whole •.'ctciit of that claim. iVom Behring Straits to the filst jiiu'allel; 2. That the (.'oinentioii of 182") was regarded ■HA both sides ;is a reimuoiaticn on the pari of llnssifi of th:it diiim in its entirety. AVluitcvor exclusive jurisdiction either in Hohring Sea, or in the seal (isiieries thereof, w!is claimed hy liussi.'i, is covered liy the lan- guage of the Ukase of Aleyaiidcr, or was never set up. It hits been shown tliat tlie claims to ex<'lusive jurisdiction or control of the lisheries or of iiuvi- gatioii put forward by the Ukase from Uelirlng ■> ,>%ttsMfcH«rfa^- 43 Sea south were neither recognized nor conceded by any Tower. The objection and protest by Great Mritain and the United States of America were as wide as the claim. It will b(' observiHl, as, for instance, in the Convention between Great Britain and llussia, how coniphitcly the pretensions of tlic Uknsc of 1821 were, dissolved. Tlie right of navigating and of lisliini;' is con- ceded to Jirilisli vessels "in any ]);irt of the ocean commonly called the Paeilic Ocean." A Conventional boundary-lino is agreed upon, and, wliile it is agreed that no Settlcuieiits north of this will he madi; by Great Britain and none south by Russia, British vessels aw expressly allowed, not only to navigate and fish in all parts of the ocean, hul may trade on any part of the coast which " shall not already have been occupied," and this as far north as riic Frozea Ocean. fe'*«S ..r^^MXyiUiyii^itf^^i^ - 44 Chai'teb, fii2SL Points I and II. — The User of the Waters In question from 1H21 to 1867. tors ULum'sliim, ^ As regards tlic usoj; oC Iljc\v;itcr it Iins 1)i;oii .seen lliat frtiiii 17t)» did not attempt Id assert or oxereise jurisdiction over foreign vessels wlien outside of the ordinary territorial jiirisdictiou. The same is true (j1' the period i)et\vcen 1821 and 1S()7, 1S21. Mourn viel' was sent out to take conti'ol Alaska, pp. .534, at Sitka uiid(M- tlic new Oliarter. Tie assumed the nann> of " Governor " in place of tliat of " Cliict' .Manager," which iind previously heen employed. The names of seven trading-vessels on the North-west Coast, ,, , . , p ti • pp. 340, 341. north-west coast are known tor this year. ^^ 1822. The " llurik " arrived at Sitka from Alaska, p. 539. Kronstadt with supplies. .Vhout the close of the year tiie Russian sloop-of-war "Apollo" also arrived, with instructions that all trade with foreit;'nors should cease. This iul(;rdiet ren;ained in force for two years, and seriously interfer/ed with the ])rolits of the Company, '^ot satislied Avith prohihitiug foreign trade, tli^lJussian Government issued an Order l'oihid(^t? the approach of any foreign vessel within 30 of the coast." In this yeai^ also the Russian sloops-oi'-war " Kreisser" and "Ladoga " arrived to • ' the provisions of the Ukase, and remained for i.vo years. The American hrig "Pear] " was seized. In 1822, aoting under the authority of tlu; Ukase of 1821, the United Slates' hrig " I'earl," when on a voyage Irom Boston to Sitka, was seized hy the Russian sloop " Apollo " She was, however, released in 182t, and com- pensation was paid fur her arrest and detention. Coimt Juisselrode, in his despatch to Count Lieven, 2ijth .Time, 1823, when communicating tlie suspension of the Ukase of 1821, say.s the advices oi it wore sent from St. Petersburgh in August of 1823, and that the ofliccir of tlio " Apollo " could not receive them before Septem- ber 182-i, and that, therefoi'c, he could liot have known of them at the " t iine of the occurrence of the incident reported hy the Anterican ])ress." Dale's Alaska, pp. 233, 234. w 46 AInaka, |>, 546. Hehriiig Sea, which tr:.. North-west Coast, |i. :i4i. Alaska, p, olO. Ibid., |> 541. An exploratory oxpcdition was dispatchid from Sitka to the eastern slion! < remained absent two years. C^ / Ibid, pp. 137-139. jL 1K23. T Rmit l ' i im -Jfiiyyuiiou at Sitka and on its coast, ^'tlie "Rurik" and an Aincrican vessel Avliieli had been pnreliased, were sent to Calit'ra'nia and the Sandwich islands for snpplies. " As in this instance, the Colonies liad fre- qnently hcon relievrd I'roni want by trade with forciujners ; and, indeed, this was too t)rten the only means of uvertini? starvation. Even between 181S and 1822, when sn)»plies were comparatively abundant, i^oods, consistinfj mainly of prr)visions, were obtained by tralTic with American and English coasters to the value of more than 3(70,000 roubles in scrip." The " Uob Hoy," from Boston, is known to have l)een on the north-west coast. 182 f. Ivot/.ebiie, in tlie " I'redpria^ie," called at Sitka. About this time the shareholders of the Eiissian Company protested ai^ainst tin- inttM'dict of foreii,'n trade, and Sitka was, in con- sequence, aLjain opened to sucii trade. The American brig " Pearl" was released, and com- peiijatiori paid to tlie owners. Four vessels arc recorded as having visited the north-west coast, and some of them are knoTn to have repeated this visit in later years. 1825. the "Elena" arrived at Sitka wifli supplies. Kotzcbue also again called at Sitka. Remonbtranccs were addressed by the Com- pany to the Ilussiaii Government as to the effect of the ConvcntioiLs of 182 I and 1825. 'I'iie name ol' but one ressel trading on the north-west coast has been preserved in this year. 1820. Chistiakol' wrote to the Directors of the Company asking that an experienced whaler should be sent out. 1827. Liitkc, sent by th(; Russian Govern- ment, arrived at Sitka, and there often made exploration.s in the Aleutiait Islands and in Uehriug Sea. Two vessels only of (be trading fleet on the north-west coast arc in this year known by name. 1828. Two vessels belonging to Liitlvc's ex- pedition carried on surveys in Behring Sea. The trading-vessel " Ebm " was again at Sitka. In the years 1820, 1827, and 1828 the "Cliin- ehella," a United States' brig, Thomas :M(ek, master, traded between Sitka and China, and [607] N North-west C'^ast, p. 341 Alaska, p. 539. ibid., p. 544. North-west CoasI, p. 341 Alaska, p. 546. Ibid. North-west Co.ist, p. 341. Alaska, p. 546. Letter of Brewer to Aniorv, p. S5, Ex. Doc. No8. 157,180, 2iid Sess., 40tb Conp. 'fl .sr ^ ^ ^C>. S^J^t%^^^ IMAGE EVALUATION TEST TARGET (MT-3) 4 /. // /< M <^ 4 (^p. 1.0 l;;|28 |2.5 I.I 136 '""== 1.25 1.4 1 1.6 . 6" -^ V] <^ /a 7 /A '4*V^ ? Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 M V iV ^9> V ^ N> <^ 6^ ^ if 4 i^ 5 1^ 46 bclwi'cu 18A0 and 1845 ovcry year 300 whale- ships of the United States were on the north-west whalinsjf-gronnds, which extended from 50° to 00° north and from 130" to 170° oast, in(dudin<» Bristol Bay in Bchrin;^ Sea. 18'20. A vessel was sent from Sitka to Cliilo to trade. Som(< ('Xjjlorations were also made by the {{ussians in tlie inland country. 18.'{(). Exphji-ations in Bchrinij Sea by Etholen. Tiie names of four or live vessels tradini^ on the iKirtli-wcst coa.st in this and the following yc'ar are recorded. Wrangell relieved Chistialtof in command, 1h;52 or 183:i. Tcl)cnkof estal)Iishod a jiost near the mouth of the Yakon, and explorations were conducted inland. 1833. The Hudson's Bay Company sent the " Dryad " to form an listahlishment at tiie mouth of the Stikive, but Wrani^ell, havinj^ heard of tlic enterprise, oeeupiod tlie place in advance, and turned the vessel l)ack. Damatjes to the amount of 2(),()()()/. were claimed throu"?!) the British (Jovernmei't from Russia. An American whalinij; mastei', under a (Ivc-years' contract, arrived at Sitka, but achieved little. The whole (ishorios still riMuaiiied in the hands of foreiijners. 1831. The name of but one of the trading vessels i-n the north-west coast in this year is known. 183(1. The "Eliza" was again at Sitka in this year, and three trading vessels are recorded to have visited the Alaskan coast. In 1S3G the United States' brig " Loriot." B., master, sailed for the north-west coast of America for the purpos(! of procuring provisions, and also Indians to Inuif for sea-otters on the coast. ■\\lieH in till' Harbour of Saskessan, latitude ."it .'■>.")■ north, and longitude 132" 30' west, a I'lissian armed brig ordered the United States' vessel to leave, This action was based on the exjjiration of tlie l)eri<)(l named in the IVth Article of the Treaty, ulii'nl)y, for t(Mi years only, liberty to touch and trade at Russian Establishments on the coast was granted. The United States protested against this action as an " outrage." The Inliowing were the inslniclions of the United States' Secretary of State to Mr. Dallas, the .Minister at St. iVtersburgli : — Alaska, p. S6S. Ibid., p. 547. North-west Coaat, p. 341. Alaska, pp. 548- 552. Ibid., p. 9SS. Ibid, |>. SS3. North-west Coait, p. 341. Ibid. pp. 341, 343. Forsyth 10 UuIUb, Mny 4, 1837. 17 " On till' iitlic- liaii.l, -huiilil llii'iv piovc |.i lie iii> lilissiiili KsliilpliMlimeilts lit llir plaim iiii'litinliid, llii.s ciut- rugu on tlic 'Loiiot' assiiincH a >till ;,'r,ivcr iw-pict, ll is a violation ol' tlic ri^'lit of tlii! (ilizcns (jf the i'liilcd Stati-s, imnii^iiiorially t'xerciM'd, and .sim'uiuiI to thiiii in well liy thu law of nations as by llii' .stipulations of lUv Isi Ailicio of the Convention of 1824, to fish in tliosu seas, ami to resort to tlie coast, for tin prosicntioii of tljcir lawful commerce upon points not already (km iipiecl. As ■-uili, it is the President's wish that yon should remonstrate, in an earnest but respectful tone, aj;aiiist this ^loiwidli ss ii.-snmp- tioM of the Ifussiaii Knr Company, and cliiini fiom His Imperial Majesty's CiovcniiMeiit lor tlie owner< of tlie brij; 'Loriot,' for their lo.ssi's and for the (lama;.'e< tiny hav« sustained, such imiemnilicution as .nay, on an invc sti^'ation of the rase, 1)» foninl to bo justly that to iheiii. " I am, \i'. •MOlIN riil.'SVJH." Dallas to Fortytb, August 16, 1837. Forsyth to Dallas, November 3, 1837 (Appendit). From sul)scquent iiKiuirit-s, it iiiiiicaicd (Iiat. Ii.-k; 1)(>i limiii' ;it tilt! Russian Estal)lislimoiits plnces niciitiouod. Novci'tlielcss, till' United States coiitoiidcd tliat at the cxpiititioii of the IVtli Artidf, the !;i\v nf nations |)rac-lically i;:ivo Xliiitcd Stat<'s' slii|)s the. privileges tiierein nieiilii)iied. Mr. Forsytl), Secretary of State for the United States, writing to Mr. Dallas on the .'ird Xovein- l)er, isri7, and ref(M'ring to the 1st Artiele of tlio Convention of .Vi)ril 1S21 l)et\veen the United States and lUissia, said : — •The I'.l .\ili. le of that instrument is only declaritory of a rif^hl which the ])arlies to it jiossessed under the law of nations without eonventional stipulations, to wit : to nnvii;ate ami lish in the oee.iii upon an uiioocuiiied eoast, and to resoit to sucli coa-it for the ]iurpo.He of tradin;; with the natives. ' It is a v.'olatiou of tlie tiyht of the citizens of llio TTniied States, immeinorially cxertised and .'■ecuml ti> them, as well by the law of iintions as by the stipulations of the l.st .Vrtiele of the C'onvention of ISlil.to liJ Soiih Amcrira for tho 48 luirpcisc (if (isliiii^' i>ssi'S3i()n, liy sel'lciiicnt, luntli of M In N. I'lilil thai actual j>oii' 40' north littitude ; hut th;it. nevrrthcli-.-is, li,itli niifiht, for u term of ten yciirs, without re^iinl to whether an estahli.shiucnt oxi.sted or not. without obtaining |)ernii.-<.'iiori. without any hindiance whatever, freiinent the interior seas, gulfs, harbour.'', and creeks, to lish and Irnch! with the nalive.s. This short analysis heaves, on the (iuesli(pn at issue, no room for cou- 9t ruction. ♦ ♦ ♦ * " The Undei'sijined submits that in no .sen.so can the IVth Article be understtKMl a.s iinjilyin^' I'.ii aeknow- leilgnicnt on the part of the United States of the riyht of Itussia to ihe pos.se.ssion of the coast uIkivi' the latitude of 54*' 40' north." 1837. One tra(lin<,'-vcssel is named as having been on flu- nortli-wcst coast. 1S8S. J'lirtiier explorations were nndcrtaicini in the north by Chcrnof and ^lalakhof. Three fradiiii^-vcsjjels arc noted as havinLC been on the nortli-wcst coast in this year, and cue is known to have visited Alaskan waters. ISIii). A Commission met in London to arrange the dispute between the Uudson's Bay and Russian- American Companies. The claim for damnijes by the former Company was waived, on condition that the latter should grant a lease of all their continental territory northward to Cape Spencer, Cross Sound (about latitude 58 ), on a tlxed rental. This arrangement was for ten years, but was renewed, and actually con- tiimed in force for twenty-eight years. 1810. The British flag was hoisted and saluted at the month of the .Stikive, the ifudson's Bey Company taking possession. A fort was also establishi'd by the Company at Takn Inlet. Jitholon reporied the presence of fifty foreign whalers in Behring Sea. At this time whalers were just beginning to finil their way to Behriiii,' Sea, and in 1810 to IS 1-2 a large part of the fleet was engaged in whaling on the Kodiak grounds. Etholen relieved .Cuprianof as Governor at Sitka. IS 11. The Charter by the Uussiaii-American Comjany was renewed for a further term of twenty years. [G07] 60 According to Etholon, thirty foreign whalers Al»«k», p. S83. were in lii-hring Sea. lie askn tlio Russian Govornniont to send cruizcrs to preserve this soa as a iiiiiri' elausuin. 1M2. Inland explorations l)y Zcgoskin, which llnd., |i|>. 553, 664. continued till 184-1, lic^uu. Sir Ucorgu Simpson, Ibid., pp. 558-5C0. GoM'i'Mor of the Hudson's Hay Conipniiy, reached the Sljkivc post just in time to prevent an Indian uprising. II«' also visited the Itussian l!s(al(lishnient at Sitka and completed an arrange- nicnl hotween the Companies to int('rdi(!t trade in • [lirits ou tiie coast. 'I'lic whali^rs, from 1813 to 1850, landed on IncfriMtual uiiciniii ni Itiissiaii-AmiTitan Com- the Aleutian and Kurile Islands, committing P"«'y <" -^t-P f"^-in>llic and wl.«ling. depredations. American eaptains openly carried .Jg!"'^°'^' '"''' '*'' on ;i tralRc in furs with the natives. The Russian - American Company het^ame alarmed at tlie danger to their fur trade. Every ell'ort was, therefore, put forward liy the Coni]]aMy and the Governors to induce the Foreign OITiee of the Russian Governrai'Ut to drive olV these whalers from the coasts, ami hy oxcludill^■ tliem lor a irreat distaiu'e from shore, prevent the trespasser on shore Jind the trailic in furs. Aeeonlingly, in a letter (Vom the Department I iitcrpntatiiiii of Treaty by Uussia. of Jlanufuctures and Internal Trade to the Kuract from Governor of the ivi'ssian-.Vnu'riean Company of "' '34','"2'5"° the lull Deecmher, 1812, in reply tx) his com- Appcndit. plaint as to proce(Mlings of Anu'riean whalers In Beliring Sea, ihe following passage occurs: — "Till! claim to 11 iiiiiri clduniiiii, if wr wislunl in iiUvantc such ;i claim in lespiMt tu the nnrtliern part ol' ihr I'lieilic Ocrnii, could iKit lie tla'dH'tii'iillv JiistiliiU\. Explorations wen- carried on on the .Abski, p. 576. Sustcliina and Copper Rivers. ■' From 1S43 to 1.S50 tlicr' wore i-onstniit eoniplaints l.y TikhnignicH. the I'ljiiipany nf the increasing lioldiie.ss nf ih.- whalers." 1 81(5. The Governor-General of Eastern Siberia asked that foreign whalers should not he allowed 51 to como within 10 lUiliaii inilus <>( ihc l!ii--siaii shores, ami that n tax Iw imposed mi tlu'iii. Tin.' llussian roreii^n Office replied : — Tikhmenieff. ■ \\'v Imvc im ri^lil h> i x( liidi' loirij;!! -iliii s fmn. ilmt |Kirl III' till' (iriMt Oroaii wliicli sitpaniU.'it the i^ii.tU'i'ii Kliitni of Silirrill fpPlll llir nnrtll-Wiian Sea was found to lie a '^'oiid whaliiii,' i;round, and in immediately rollowing years wlialiiiu' lieLfiiii lluV3k ami Okhotsk to he cxtfhidid, avA a payment of iOO *ilv.cr.V<^ii'lil('>S',lt>>;l)u,'deniiuidcil at those jiorts from (iveiy vcJj'ser for tlio rifiht of whaling. l[e rocoinniended that a ship of war i-hould he eniploye'l ns a eniizT to watih f'orei^'ii vi'ssels. The foreign Olliee expres.sly stat(!d as follows, in reply; — "'We have no riLjht to exclude I'lieii,'!! ships i'riii;i that part of till-' j;reut oeeaii whieli separates the eastern .slioro of Silieria from !hi' nurth-we.sterii shore of Anieriea, or to make the payment of n sum of money a i"iiditiii'.i to allowing them to take whales.' •'The Foreign OlUce ware of opiniun that the lixiie.,' of the line referred to ahove would rcnpen (lie ili Hudson Bay Company. 1S()7. .Vlaska sold by Russia to the United States for 0,200,000 dollars. In (bis year twenty-three vessels were employed in the cod fishery, and 2,600 tons of salted llsh secured. Value of catch of North Pacific whaling fleet estimated at 3,200,000 dollars. 1868. The lease of the " coast strip " of Alaska to the Hudson's Bay Company by the Russian- ^Vmcrican Company expired in this year. " Lipincote's Magazine," Feb- ru»ry I, 1868. Ex. Doc, Noi. 1C7, 180, 2nd Seaa., 40th Cong., p. 114. Ttic " Java." Seward to Clay, February 24, 1868, No. 55, American Corresponiicncc, 1887. Alaska, p 598. Ibid . pp. 578, 579. Ibid., p. 580. Ibid., p. 669. Ibid., p. 57». Ibid. Ibid., p. .'(80. Ibid., p. 593. Ibid., p. 664. Ibid., p. 669. Ibid., p. 393. 55 ^^ / ^^^ lu^u-i 5l(t % .tAM.-«/NU ^ o Chapter IV. Points I ani> II. — User 0/ Waters in qurstioii from 1807 to 1886. In 1867 the cession of Alaska took place. Neither the Debates in Congress— which pre- ceded and resulted in the cession and its ratifica- tion hy tiio House. . . nor the 'I'rcaty by which it was carried into cfTect, nor the snbseqnent legis- lation by the United States, indicate the transfer or acquisition of any exclusive or extraordinary rights in Uehring Sea. ^ On the contrary, they show that no such wiaim was then ceatewptetcd: ; / > ? i- < • ' '^ -^ In answer to a Hesolution of tlic House of IJeprescntatives of the l!)th December, 1^07, calling for all correspondence and int'orniation in the possession of the Executive in regard to the country j)roposed to be ceded by tlic Treaty, the Memorial of the legislature of Washington Territory, which was made the occasion for the negotiation, together with ilr. Sumner's speech in the Senate, were anioni; other documents transmitted. Thi(S Memorial shows that Hm United States' citizens were already engaged in iishinu; from Cortez Bank/to IJchring Strait, and tliat they had t of any exclusion from the open sea by Russia, but desired to secure coast facilities, especially for the ptirposes of curing lish and repairing vessels. idjt is as follows : — V "Til his Kxcolloucy Andrew .lolni^ioii, I'li'siilonl nf tlie United State.". " Your nienioriaii.st.s, tlic Ix'^i-sliitive Asseuiljly nl' Wanli- inf;ton Teriitory, liej; leave In .slimv that aliiniilance nt' cikI- fiali. luililnit, and .sahnon, of excellent iiualily. have lieoa found along the shores of tlie Kus.sian |iossessious. Your meniovialisls respeetfuUy ri.'(inest your Kxcellency to olilain sui;li riylits and ]jrivilcge8 of the (iovernuienl of l{usaia as will enable our tisliing-ves.scls to visit I lie jiorta and harbours (jf il.s po.ssessions to the end that fuel, waler, and provisions may hi' easily ohlained ; thai our siik and iliaahled lishernien may obtain sanitary assistanee, to^'elher with the privilege of curing lish and rciiairiuL^ ves^i.ls in need of repairH. Your memorialists further reiiuesi that the Treasury Department be iuslrucled to forward to Iho Collector of Cu.stoms of this I'uget Sound district sm^h tishiug licences, ab.stract-jourual.s, and log-books as will 50 •Miiililc our hiirily ti.xlienmiii t" ulitniii tin' bountii'M w>\v prpvi(lors spoke at length. To none of them did it occur that a special property in seals was involved .ind no one suggested the existence of an exclusive jurisdiction over yQjMtel waters distant more than 3 miles from land. On the conti-ary, Mr. Suuincr, who had charge of tlie measure in the Senate, after pointing out that the seals wore to be found on the "rocks and recesses " of the territory lo he acquired, which would t heref ore make the acquisition more valuable, in touching upon the fisheries and marine animals found at sea, kc admitted that they were free to the world, contending, however, that the possession of the coast gave advantages to the United States' iishermcii for the outfilliug of their vessels rmd the curing of their catch. liis remarks, as reported, were : — "The narwlial (a sperm whale) with his two lung tusks of ivory, out of which was made the famous tlirunc i.f the early Danish KiTigs, belongs to the Frozen Oeeaii ; but In-, too, strays into the Straits below. As no sea is now muri- ctausnnt, all these (whales) nuiy be pursued by a ship under any Hag except directly on the coast and within its territorial limit. And yet it seems as if the possession of this coast as a coiimiereial base must necessarily give to its people peculiar advantages in this pur.suit." ■H'l 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 ctue fish so far as they can be cured in a cotuitry where they have only from forty-five to sixty pleasant days in the whole year. England, whose relations with JRu.ssift are far les.s friendly thau ours, has a Treaty with United States' Congrcsiional Debates, from " Congressional Globe," December 11, 18C7, P.art I, p. 138, 40th Cung., 2n(l ScEf. 87 that Government by which British subjects are allowed to fish and cure fish on that const. Nay, more, she iiaa a Treaty giving her subjects for ever tlie free navigation of the rivers of Ilussian America, and making Sitka a free port to the commerce of Great Britain," United Sutea' Congresaional Debates, from " Congreisional Globe," July 1, 1868, Part IV, p. 3667, 40th CoDg,, 2nd Seal. In 1868 Mr. Ferriss spoko as follows : — " That extensive fishing hanks exist in these northern sens is ijuite certain ; but what exclusive title do we get to theui ? They are said to hi- far out nt sea, and nowliere within .'i marine leagues of the islands or main sliore," Mr. Peters, (Umwmj the course of his speech, remarked : — " I believe tlu.t all the evidence upon the subject proves the proposition of Alaska's worthlessnoss to be true. Of course, I would not deny that her cod fisheries, if she has tliem, would be somewhat valuable ; but it seems doubtful if fish can find sun enough to be cured on her shores, and if even that is so, my friend from Wisconsin (Mr. Wash- burn) shows pretty conclusively that in existing Treaties we had that right already." United Statea' Congresaional Debatci, from Appendix to " Congreaaional Globe," JuIt 9, 1668. Part V, and Seas., 40th Cong., p. 490. Sec also Bancroft'! Alaska, p. 670. Mr. Williams, in speaking of the value of 'the fishes, said : — " And now as to the fishes, which may be called, I suppose, the arffumcntum piscatorium ... or is it the larger ten^'uts 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 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. Stevens), who discourses as though he were a true brother of the angle himself, finds the foundations of this great Republic like those of Venice or Genoa among the fishermen. Beautiful as it shows above, like the fabled mermaid — ' dcsimil in piscem mulkr formosa supcrne' it ends, according to him, as does the Alaska argument itself, in nothing but a fish at last. But the resources of the Atlantic are now, ho says, e.xhau3ted. The Falkland Islands are now only a resting place in our maritime career, and America)i lilnity 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 fjuote his precise language — what a burning shame, is it not, to us that we have not a .spot of cartli in all that watery domain on wliich to refit a mast or sail, or dry a net or fish ? — forgetting, all the wliile, that we have the range of those seas witliout the leave of anybody ; that tlie privilege of landing anywhere was just as readily attainable, if wanted, as that of Inmtiug on the territory by the British ; and, above all, that according to tlie official Ileport of Captain Howard, no fishing bank has been discovered within the Ilussian latitudes." [607] Q 08 On tho 27tli July, 18(58, aii Act pussod the Legislnliou in llie Uultcd SUiUa. Compress of the United 8tiik's,» cntith.-d " An Act to I'xtcnd till- Laws of :t, IKTO, on hehalf of the United States' Government in favour of the Alaska Commercial Company. It covered the Islands of St. George and St. r.-iul only. ..- The seal fisheries fflid n o t m ' jHBUtu t e a fffoafc . inntiilnnttina at the date of the cession of Alaska. prevent extermina- tion of fur-be.iring animala in Alaska, idix. from llniird Stales to Alaska Com- menial Company, August .3, 1890, soo Appendix. ^ //^iJ 0^ Ui. eyic-t * Now chapter iii of Title XXIII of the RcTJicd Statute!, tecs. 1964-1986. 69 111 Sru., Report No. «38. No importniicc ntUiclivd to sual fuhcrioa at tiiui- 6f ct'ssioii seal islands. The following correspondence shows the posi- tion assumed in 1872 hy the Treasury Depart- ment in relation to the extent of jurisdiction of the United States in Alaska waters : — " 3fr. PIulps to Mr. Boutwell. " Customs ffoitse, San Francisco, " Sir, " Collf dot's Office, March 2.j, 1 872. " I deem it proper to call the attention nf tlie Depart- ment to certain rumours which appear to bo wtdl authenticated, the siibstauce of whiih appears in the printed slip taken from the ' Daily Clironicle' of this date, herewith inclosed. " In addition to the .-ieveral schemes mmliorod in this paper, information has come to this oilice of another which is being organized at the Hawaiian Islands fur the same purpose. It is well known thal,dui'ing the iiiontli of Ma} and the early part of June in eacli ye.ir, the fur-seal in their migration from the southward to St. Paul and St. Gcorg(! Islands, uniformly move through Ounimak Pass in large numbers, and also tlirough the narrow straits near that pass which separate several small islands from the Aleutian group. " The object of these several expeditions is unquestion- ably to intercept the fur-seals at these narrow pa.ss.ages during the period above mentioned, and there, liy means of .small boats manned by skilful Indians or Aleutian hunters, make imliscriminate slaughter of those animals in the water, after the manner of hunting sea-otters. "The evil to be appreheudeil from such prof.'eeding3 is not so much in respect of the loss resultin;; from tho destruction of the seals at those places (although the killin g of each female is in efl'ect the destriictiou of two -»»^. 60 seals), but the danger lies in diverting these animals from their accustomed course to the Islands of St. Paul and St. George, their only haunts in the United States. " It is believed by those who have made the peculiar nature and habits of these animals a study, that if they are by any means seriously diverted from the line upon which they have been accustomed to move northward in their passage to these islands, tliere is great dunj^er of their seeking other haunts, and sliould tliis occur the natural selection would be Komandorslci Islands, wliieli lie just opposite the Pribyloff group, near the coast of Kamscliatka, owned by Russia, and arc now the haunts of fur-seals. "That the successful piosecutiou of the above-mentioned schemes would have the effect to drive the seals from their accustomed course there can be no doubt. Con- sidering, therefore, alone the danger wliich is here threat- ened tu the interest of tlie Government in the seal fisheries, and the large annual rev;Muie derived from the same, I have the honour to suggest, for the consideration of the Honourable Secretary of the Treasury, the question whether the Act of the 1st July, 1870, relating l(i those fisheries, does not authorize his interference by means of revenue cutters to prevent foreigners and others from doing sucli an irreparable mischief to this valuable interest. Should the Honourable Secretary deem it expedient to send a cutter into these waters, I would respectfully suggest that a steam-cutter woidd be able to render tlie most efficient service, and that it shouhl be in the region of Ounimak Pass and St. Paul and St. George Islands by the loth of next May. " I am, &c. (Signed) " T. G. Tiielps, Collector. " Extract from Sun Francisco ' Dailij Clironicle' March 21, 1872. " It is stated in reliable commercial circles that parties in Australia are preparing to fit out an expedition for tlie lap- ture fif fur-seals in liehring Sea. Tlie present high prices of fur-seal furs in London and the European markets has acted powerfully in stimulating eiiterj)rises of a like character. But a few days ago wo mentioned that a Victorian Com- pany was organized for catchin;^ fm-.^eals in the North Pacific. Anotlier party — an agent representing some Eastern capitalists — has been in this city for the past week making inquiries as to the feasibility of organizing an expedition for lilie purposes. "Sir, " Mr. Eoutwcll to Mr. Phelps. "Treasury Departnunt, Washington, D.C., "April 19, 1872. "Your letter of the 25th ultimo was duly received, calling the attention of the Department to certiiiu rumours circulating in San Francisco, to the effect that expeditions 61 Ky^^n^ are to start from Australia and the Hawaiian Islands to take fur-seals on their annual migiatiou to the Islands of St. Paul and St. George through the narrow Pass of Ounimak. You recommend — to cut off the possibility of evil resulting to the interests of the United States from these expeditions — that a revenue cutter he sent to the region of Ounimak Pass by the 15th May next, " A very full conversation was had with Captain Bryant upon this .subject while he was at the Department, iind he oouceived it to he entirely impracticable to make .such an expedition a paying one, inasmuch as the seals go singly or in pairs, and not in droves, and cover a large region of water in their homeward travel to these islands, and ho did not seem to fear tliat the seals would be driven from their accustomed resorts, even were such attempts made. " lu addition, I do not see that the United States wouW have the jurisdiction or power to drive off parties going up there for that purpose, unless they made sucli attempt 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 gather upon the subject " I am, &c. (Signed) "George S. Boutwell, Secretary." So in 1875, a question itiritiing as to Russia's authority to grant licences for the use of lier oour M(fU4Mis seas. Mr. Fish, Secretary of State for the United States of America, gives conclusive evidence as to the interpretation placed upon the Convention of 182t by the United States, " There was reason to liope that the practice which formerly prevailed with powerful nations of regarding seas and bays, usually of large extent, near their coast, as closed to any foreiyn commerce, or fishery not specially licensed by them, wrt.s, without exception, a prelcnsioii troff, Special Commissioner of the Seas. United States to the seal islands in the year 1880, says in his Eeport : — " As tliose seals jtasa up and down tliu coast as far as H. R., Ex. Doc. the Straits of Fuca and the mouth of Columbia River, No. 40, 46th Cong., quite a number of them are secureJ by hunters, who shoot 65 ' ' or spoar them as tlioy tinil thom asleej) at sea. Also, small vessels are fitted out in San Francisoo, which x'egidarly cruize in these waters for the purpose alone of shooting sleeping seal." v/ Sealing-vesscls and their catches were reported h. r., Ex. Doc. bv llie United States' cutter " Corwin," but JJ"- '"'.^2,"' ' Cong., Ist Sess. none were interfered with when outside of the 3-mile limit. An Agent of the United States' Government h. R., Ex. Doc. reported in 1881 that 100 vessels had been c°„ '''^^^•/j^'' scaling about the I'ribyloff Islands for twenty years. The Agents of the United States' Government sent to the seal islands previous to 1886 con- tinually reported upon the inadequacy of the protection of the islands.- ^-~rt.it^ Th^frc(]uently referred to depredations upon the rooli erics. From every source it appears that, during the years 18()7-8G, notwithstanding the presence of scal-liunting craft in Behring Sea, the United States' authorities confiued the exercise of juris- diction to the jjiaujland, t« ()ht islands, and to the (MSffeiawt-ierritorial limits i^tmmrf^. ^ir. JiinitwelK'< giin Booi ' otniy of .tka United - 8j^^;t^..T.ixuisur}P W--the -yefty-^he-' Ae^ 4er-4^iD " leasing and qi:«{Cuiy.atioa ^t' the -seal islands, was M ^ }.\t-«''i Uf^-S pusseih,,^ ^ c^ Hit IJeport nreccdcd the Act of the 1st July, 4iit Cong,, 2nd -, r,.-,^ A Sess., Ex. Doc. ^^'"- No. 109. This llcport discloses no suggestion of autho- rity at a greater distance than 3 miles from the shore-line. With the knowledge of the raids upon the islands and the existence of seal-hunting schooners, Mr. BoutwcU dwelt upon the means of l)rotecting the seal islands only. Mis. Doc, SOth Cong., Ist Sess., H. R., No. 602, p. 28. fU^ t 44th Cong., iBt Sess., Ex. Doc, No. 83. p. 30. 68 In the orders given to Lieutenant I. V.. Lutz by the Captain of the United States' revenue marine steamer "Corwin," 22u(l -May, 1881, _.„_^Jstaken to continc any interference with seal-hunterslo^taalutt attempt a landiu- cm tlie .seal i.slands. Acting under these instructions, Lieutenant Lutz arrested the " Adele,^' of Ilamburg, Oustavc Isaacson, master, with three officers and a crew of eighteen Japanese, when a mile from shore. The Lieutenant was careful to ascertain that tlie vessel was engaged in sealing ashore, and liaving waited the return of the ship's boat wliich came back loaded with seal carcasses, LicutciKuit Lutz reports : — " Haviug now secured all ikciss;ivj' evidoiite. I luiUlieil the captain of tlie seizure of tlie ve.s.sel." The following instructions from tlie Treasury Department show that the administration con- fined the interference of their officers to those seal-hunters only who attempted landing upon the islands : — " Tnnaurij Dcpurtiiinil, " Sqykiiih,;- 111, If^Tt'. ■■ The following Executive Order, relating to the importa- tion of arms into Ihe I.slands of St. Paul and St. (ieorge, within the di.strict of Alaska, is published for the infurnia- tion of officers of the Customs:— " Excc.utii-c Miiin^ii'tis, IVa.-iliini/tvii, />.(,'., •• Scjikmhcr 'J, ISTd ■•■ So nuich of Executive Order of the -ith I'ehruary, I S70, as prohihit.s the importation and use of lire-arms and ammunition into and within the I.shuuls of St. I'aul and St. George, Ala.ska, is herel.y modified .so as t.. p.nuiit tho Alaska Commercial Company to take a limited .luantity of fire-arms ami ammunition to said islands, s\dijeet to tho direction of the revenue ofiieers ther.> and sui-h regulations as the Secretary of the Treasury may preseril.e. "U. S. .UiAXT, I'l-cxidnd. "The instructions issued by this Department ni its Circular of the 8th February, 187(t, are accordingly modi- fied so as to adjust them to the aboV(! Order. " Kevenue officers will, however, .see that the privilege granted to the .said Company is not abused; that no lire- arms of any kind are ever used by said Company in the killing of seals or other fur-bearing airl.uals, on or near said islands, or near the haunts of seals or sea-otters in tho district, nor for any purpose whatever, during ihe months of ,Tuue. July, August, September, and October of each year, nor after the arrival of .seals in the spring or before 64 llu'ir (ii'inuliuc III tin' liill, c'xci'iiling for iiecossuiy prutoc- tioii mill ilclriict' iiniiiiist raaiaiKlerc or imlilio enemies who inny unlawfully atti'uipt to laml upun tliu isliuuls, In all other resjietes, the instructions of the 8lii Keliruary, 1870, will rciiuiin in fnrci' ■WM. A. IMClIAliDSON, " Actinj Siirctd)'//." i> " Trt'(i.'t. I'aiil and St. (ieorge. "By the 4th Section of the Act of the lat .Tuly, 1870, entitled 'An Act to prevent the Extermination of Fur- bearing Animals in Ahiska,' it is provided that iho .Secre- tary of the Treasury, immedialely after the passage of .said Act, shall lease to projier and respoiisililo ])arlies, &c., &c., the rif,'ht to engage in the business of taking fur-seals on the Ishands of St, Paul and St. (Jeorge, and to send a Tassel or vessels to .said islands for the skins of such .seals, &c. "This lea.se ha.s been awarded to the Company above naineJ for the term of iwenty years, a copy of which is herewith inclosed ; and the rerpiest of General JefTries that an olhci.al aiinouiieemeiil be made of the award of .said lea.se, and that no vessels i^xcept lho.se of the (lovern- ment and of said Company will be allowed to touch or laud at either of said islands, may be complied with, and you will please cause such Notice to be published in one or more of the San Francisco newspapers, at the expense of .said Company. " I am, &C., (Signed) "AVM. A IIICHAIJDSON, " Aetin;i Si'crrtary. '• T. G. riielps, Esq., " Collector of Customs, "Sau Francisco, California. " Custom-house. Siai Franmcn, California, " Sir, " CoUi'Hor's Ofici:, ^•ptcmher 311, 1870. " I have the honour to acknowledge the receipt of your letter of the 19th instant, relative to the published Notice of the sailing of the schooner " Mtiry Zephyr " for the Islands of St. Paul and St. George, in Alaska. On seeing the advertisement in the "Alta," written Notice was immediately sent to the parties interested, that no vessel would lie permitted to land al said islands. I have caused 65 a Notice, as miggostcd liy llic! liim(iuriil)lt' Sucrcluiy, lo bo pulilislii'il. riciisir liml ii I'upy nf tliu Notito iiicluscil. " I am, &c., (SiHiiod) 'T. the- e.xeliisivL' riyht to cnga;.if in ilio linsiinws of iakinj; fur-seals on said islamls and lla; islaml.s adjacent llierelu. No ves.sels, otlier tluiu I lioso lieliiimiiig to said Alaska Connuercial Company nr to llie United Stales, will lie permittod to tontli or land al cillier uf said islands or the islands adjacent thereto, nor will any person be allowed thereon except (lie aiilliori/ed aj^'cnls of 'ho United States and of .said Company. (Si^medj -T. (I I'llKI.rS, ■' VoUaliir of Cos/iiiiix. " Ciislom-hoiise, Sun Francisco, Cnlifuriiii)ol hy force " any iittonipt to kill sciils in the lookerie.s or witliiii a riih' shot of the shore." Ivan iVtrolV, the Special .Vgenl of Ihe United States' Governmetit, in ISSO, in his licport on the seal islands, ri-inarked : — "The tur tradi' ^^^) 1^ ! ! i MduJlu . CyUti Tlie United States' Minister, Mr. I writing- in 1882, thus refers to it :-- "A glance nt t\w. JMap will .show that tlie Kuvi are (lotted across the entrance to the Sea of Ok cntiri," distance from Japan on the south of the most Cape of Kamtchatka on the north. " In the lime wijen liiissia owned the whole islands, Iter Ilepresentatives in Siheria claimed Sea of Okhotsk was a itiare clausiun, for that .jurisdiction extended from island to island an marine leagues of intermeiliate sea from Jajian chalka. "lUit about live years ago Pvussia ceded the group of these islands to Japan, in rcimn for tli the Island of Siighalin, which belonged to that l'( "As soon an this ions dsTic it bciaiiie impossih Sibcrinn authorities ht maintnin their chnni. My i was not aware that this claim had ever been made at St. Petersburgh." And in another letter he says : — " I do not think that liiissia claims that the Sea of Okhotsk is a viare clausum, over which alio iias exclusive jurisdiction. If slie 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." The following introductory statement appears in " Papers relating to Beli.-ing Sea Fisheries," published at the Govenuneut Printing OlUee in Washington, 1887 :— "Tills sea is a part of the waters to winch tlie Uiiase of 1821 applied, iiud which AI. I'uletica, in his .sidi.se(|uent correspondence with Mr, Adams, [trior Ui the Treaty of 1824, said His Imperial Majesty, the Emperor of all the Jiussias, niight have claimed as a close sea had lie chosen it L^^ 1^^ vr ^*^ "^ 0- P.^v^>-uy^ »-t~ t^ "^^^ t « tuo \ <»-v 67 trt.^. i-^-^i *i^>^ Mr. Seward asked the Russian Government f»«- /v-W^ tJte instructions .relating to the fisheries of this sea. It appears also that on tlie 27th July, 1867, the United States' bark " Java " was cruizing for whales in Shautar Bay and standing towards SUas llichard's Bluff, when a Russian Commander ordered liim out of the bay. ^^^ kcc^^^- '^Te following explanation ^ from M. dc Wertmann, Acting Minister of Foreign Affairs at St. Petersburghj^showsthe claim of jurisdiction of Russia to have been confined to 3 miles only in Russian gulfs and bays, jumU including the i very waters covered by the Ukase of 1821 :— "These are the circumstances: The schooner ' Aleout,' under the command of Lieutenant Etoline, had been sent in eomnussion from Nicolniovsk to Oudrk. The abundance of lloatin- ice having forced h;.J to enter into the Gulf of Tou.mursh, he there met, the 14th July, at about 20 miles to the south of the Straits of Chautarsk, near the eastert. coast, the American whaler Mava,' occupied in rendering the oil of a cap'ui-ed whale. Considering that foreign whalers are forbidden by the laws in force to fish in the Russian "ulfs and bays at a distance less than 3 miles from the^shore, where the right of fishing is exclusively reserved to Russian subj.vts, Lieutenant Et.dnie warned ('invita') the captain of the 'Java' to 'bear olf from the Gulf of Tougoursh, which he at once did. The same ,l.iy the 'Aleoul' made for the Bay ot Mawgou, v - .,v arrived on the nc.vt day the American whale schooner 'Caroline Foot,' whose captain, aocmnpanied by the captain of the 'Java,' caUed on Lieutenant EKdine, and 68 declared that he had no right to prevent them I'rom fishing for wliales wherever they liked. Lieutenant Etoline rcplicLi that there were in that respe(A estnblislied rules (' ri'^'h's '), and if they insisted al)solutely upon lirealvinj; them that ho would lie eoniiielled to prevent them. The captain of the sihoonor 'Caroline Foot' prutending ('ayanl pn'toiahi ') that he had entered into the Hay of Toiig(jursh in iiiusuiiuence of 'deviations from his course,' Lieutenant Etoline olVered at once all assistance in his power, and upon request, delivered him 7 poods of biscuit from the stores of the ' Aleout,' after wliich tlie two ships again went to sea. The li)th of July, that is, four days after- ward.*, tlic scIioouLT 'Aleout' met a whale, upon which the ('oniniander caused a trial fire to Ijc luiulc. At tlie same moment was seen, at aliout IG miles distance, a .sail, nana unknown, and, nearer, three 'ilialuupes,' tlie nearest of wliicli was at least .'! miles in advance in the direction of tlic cannon Bre. In the evening all these ships had disa)ii>eared. That incident is registered in the books of the ' Aleout ' in the following terms : ' The 19th duly, at 9 in the evening, at anchor in lli" liny of Mawgons, fired a cannon shot for practii'C at a wliale afloat.' From these facts (ieiuTal Clay will lie convinced that the incident alluded to has been exaggerated, and even jier- verted (' deiiattire '), nmch in order to fie represented as a cause of grievance against the (.'nmmaudcr of the ' Aleout ' on tlie part of the American whalers." \j, Tlic I'xplnnation was considered satisfactory. (fi^-'^^' Mr. Si'waril ^•'■'tiii'T; "the captain of the 'Java,' ' ' spoke unwarrantably when by implication he denied that the Russian autboriiies liave the right to prevent foreign vessels from fishing for wliab^s witliin 3 miles of their own shore." In ])assing it may be tioted that whalers took seals as widl as whales in thi;se waters. The following evidence was ijiven bellire the Whalers sometimes seal-hunters. Committee of Ways and Cleans in the Ilouse of Eepresentatives at Washington (3i'd ^lay, 1870) :— " (/ Who are Williain.s, Haven, and Co. ; — A. Williams, See American Haven, and Co. are Jlr. Henry 1'. Haveii, of Connecticut, P^P^"' 'Ss:. who died la.st Sunday, and liichard Cliaiiel. They are whalers. They took seals and whales, and had been at that liusiness in the Pacific for a great many years. " Q. Tliey had an interest in these skins '(—A. Ye.s, Sir. ^*''' Cong., l«t^ Tlioy had a vessel in the waters of the Okhot.sk Sea, I think, seal-fishing in 18GG. WhUe their vessel was at Houolulu in 1866, the captain became ncijuainted with a Uussian captain who jiut in trieie in distress with the remainder, or a portion, of tlie Alaska seal-skins taken by the ohl Itussian Company, and there this captain learned of this interest. Ke left his vessel at Honolulu, went to Connecticut, and conferred with his employers. Then Mr. Chapel, one of the concern, went out to Honolulu and Sc93., Report 623. Appendix, >i y \ fitted out this vessel and nuother one, and sent them to the Alaska Islands as early as April 1868." ,/ The firm of Messrs. Lynde and Ilougb, of San Francisco, wliu VVliie-in 1882 and liai been for years engaged in the Pacific coast fisheries. They yearly sent vessels to the Sea of Okhotsk, fishing from 10 to 20 miles from shore. Becoming alarmed at a notice apparently ex- cliuling them from the Sea of Okhotsk and the Bchring Sea, they wrote the Secretary of State ^of the United States. '^AJT The Secretary of State (Mr. Frelinghuysen) V inclosed their letter, together with the regula- tions " touching the Pacific coast fisheries," as he termed them, to the American Mmister at St. Petersburgli. Mr. Iloffman, the American ilinister, acknow- ledged the receipt of this despatch, in reference to what he also called " Our Pacific Ocean fisheries." In the replies of M. de Giers to Mr. Hoffman, he explained that these regulations apply only to territorial waters, and that the maritime waters were, by the Code, open to the use " of one and all." Mr. llofiman incidentally in the correspondence remarks : — " The best wlialiiig grounds are foi ■ il in the laijs and inlets of the Sea of Okhotsk. Into these the liussiau Government does not permit foreign whalers to enter, upon the groinul that the entrance to them, from headland to headland, is less than 2 murine leagues wide." vV Sec pp. 110, 111, Indeed, M. de Giers, writing to Mr. noffman fisheries, W'«sliiiig- as to sci'liiig, whaling, and fishing the rule was ' ' tlio same, and that the prohibition of vessels engaged in these pursuits extended only over the marine league from the shores of the coasts ^ VA , "and the islands called the 'Commander' and •• Eliia." \V' the 'Seals' in Behring Sea." The United States' schooner "Eliza" was seized by the llussian eruizer " Buyoboinck " in the Anadir Bivcr, which runs into Anadix Bay, a northern portion of Behring Sea, om thu Slat - July, 1884| . It was represented to the United States that she was trading and catching walrus. The Vicc-Consul-Gcneral at Japan termed the seizure " an act of piracy." [607] T 70 General Vlangaly, writing from the Depart- ment of Porcign Affairs on the 19th (Slst) January, 1887, explained that the " Eliza " was arrest(>(l, " 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 found, were trading with the natives on the coasts of Kamtchatka, as well as fishing for '..alius. Mr. Ljthrop, writing to Mr. Bayard, the United States' Secretary of State, remarks: — " I may add ihat tlic IluBsiiin Cnde ol' I'rize Law of 180!), Article 21, and now iu I'orci.', limits the jurisdictional Wttleis of Russia to 3 miles from the shore." The United States' schooni-r " Henrietta " was "Henrietta." seized off East Cape, in Rchring Strait on the 24.tb August, 1886. Explanations from tlic Russian Government were promptly demanded. It appeared she was arrested for illicit trading on the Russian coasts. Xevoi'thelcss, Mr. Bayard, writing to Mr. Lothrop on the lOth March, 1887, observed : — " If, as I am to conclude from ynui despatch, the seizure of the 'Henriitta' was made in llussian territorial waters, then tlie Dussian authorities had jurisdiction ; and if the condemnation was on proceedings duly instituted and administered before a competent Court and on adei^uate evidence, this Department has no right to complniu. But if either of these conditions does not exist, the condemna- tion cannot be internationally sustained. The lirst of these conditions, viz., that the proceedings should have been d\ily instituted and administered, could not be held to exist if it should appear that the Court before whom the proceedings wore had was composed of parties interested in the seizure. On general principles of inter- national law, to enforce a condemnation by such a Court, is II dcniid and perversion of justice for wbicli this Government is entitled to claim redress. " Tlic same right to redress, also, would arise ij it should appmr that while tltc seizure wan within the 'A-milc zone, the alleged offence was committed exterior to that zone and on the hi'jh scan. " You are, therefore, instructed to inquire not merely as to the mode in which the condemning Court was con- stituted, but as to the evidence adduced before sucli Court^ iu which the exact locality of seizure should be included." The instructions given from time to time to Commanders of the Revenue Service, or of ships oE war of the United States cruizing in Behring Sea, organizing a Govcmnnmt in Alaska and guardiin,' tlu! interests of Uw. Alaska Commorcial Company upon the islands leased to the Company, do not siig^'cst the intention of that Government to assert a elaim so vehemently disputed when advanecd by Russia. On the contrary, while vessels from British Columbia and elsewhere were trading and fishing gener.illy in the ]?ehring Sen, and while vessels— chielly those of the United States— were aetually raiding the rookeries, the instriielionS relating to the fisheries given to revenue iiKiriiio ships by the United States' Government until 188G were eonftned, as \\m been shown, K. tiie protection of the seal islands. The seizir of British sealers in the open se:i followed i\w 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 when shaping a course for St. Paul, The Captain in his Eeport says :— " While we were in Uu; vicinity "f the seal ishiii.h :i look-out w.as kept iit the masthead lor vessels eniizin-, sealing, or illicitly trading 'UDoji;/ thotic MamU" Having drawn attention to the number of vessels which sought the seals on the islands, and illustrated the great diniculty of preventing the landing thereupon, the Commander concludes as follows : — " In view uf the foregoing faels, I would respectfully suggest — ■'1 That the Department cause to he printed ui the western papers, particularly those of San Francisco California, and Victoria, British Columbia, the sections of the law relating tn tlie killing o{ fni-hearuig animals in Alaskan waters, and delining in specific terms what is meant li,> Alaskan waters. " 2. That a revenue cutter be sent to cruize in tho vicinity of the I'rihylolV Islands and Aleutian group during the sealing season." ■J ^i V.' 72 -<( Cdaptkr V. Points I and II. — Seisures by the United States and the grounds upon uhich they were junfified. Wli'^o the first suggostion just mentioned was never adopted, uo Notice or ActJ having yet dclir.cd Avliat is meant by Alaskali watejij it appears tliat, in accordanco with tliis Ecpwt M»d otj iof i nMwilnn I ' npi'n i mntat in w iiy the United States' Government sent revenue cutters in 188G with instructions for the first time to take sealing- vessels, when outside of the ordinary territorial limits, if pursuing seals in that part of Behi-ing Sea ivi|-|]iin \\\9 Ua*jTf'aiitiiftri»ti^r mentioned in the Treaty of Cession. It i.s snhniit ' tcd tha t this was the first attempt to eu 4ivol yv- ftBQcrt the t 'Ali' mn'ilinn i' y mnritim c N jjretcnsioi ujf' IjIk' IJlcase of lim. The Governor of Alaska distinctly referred to the action of the United States' cutters in 1686 and 1887 as the first assertion of the jurisdiction of the United States over that portion of Behring Sea within the line of demarcation. Sir L. S. Sackvillc West, British Minister in Washington, made a formal protest in the name of Her Jlajcsty's Government against these seizures. There was an apparent i T Ciiitfliioy on the part of the United States in the attempt to maintain this position. Attorney General Garland issued the following order after the British protest : — • \ In his Report, 1886-87. Hesitancy on part of United Sutes. ,.ilv.'^v cimiuitt< I- reported, upholding the claim of the United States to jurisdiction over ;ill waters and land included in the Treaty of Cession by Kussia to tlie United States, and construing diffei'ent Acts of Congress as (»ua- ■platiing the claim of national territorial riglils to covwr the open waters of Bering Sea outside of the ;J-mile limit. The concluding portion of tlx' Report states, among other things, as follows : — "Tliattlie cliief object of the purcha.se of .Alaska was tlin iieiiuisition of the valuable^products of ilic Bt'hring Sea. "Tliat at tho ilate of tlic ces.'sioii of ^Vlaska to the Uniti'il State.?, Ku.s3ia's title to lUiliriiij; Sen was perfect and nnJisputed. " That by virluo of the Treaty of Cession, tlie I'nitod States acquired complete title to all that portion of Behriiig Sea situated within tl)e limits prescribed by the Treaty. "The Committee herowitli report a Hill making necessary amendments of the existing law relating to these ,«iilijei'ts and recommend its passage." The Bill reported contained tlie following Section : — "Section 2. That section IDSG df the licvised Statutes of the United States was intended to include and apply, [(J07] U 74 and is hereby declared to include and apply, to aU the waters of Boliring Sea in Aliiaka embraced within the boundiiry-linos mentioned and described in the Treaty with Piussia, dated the 30th March, a.d. 1867, by which the Territory of Alaska was ceded to tlio United States ; and it sliall lie the duty of the Presideut, at a timely season in each year, to issue his Proclamation, and cause the same to lie published for one month in nt least one news]iiiijer published at each United States' port of entry on the Pacific coast, warning all persona against entering said Territory and waters for the purpose of violating the provisions of said Section ; and he shall also cause one or more vessels of the United States to diligently cruize said waters and arrest all persons aiul seize all vessels found to bo, or to have been, engaged in any violation of the laws of the United States therein." V^ y Till! Scnsite (Icclineil to go so far as this Section proposed. A Conference of the Houses resulted in the abandonment of this clause. The Act of the 3rd March, 1880, leaving the law in this respect unciiaiiged, was approved by the President. This Section, as finally adopted, reads as foUows : — "Till' (.'ommillee of conference on the disagreeing votes of the two Houses on the araciulmenls of the Senate to the Bill (sei-tiou ^^W■]) to provide for the protection of the .salmon lisheries of Alaska, having met, after lull and free conference, have agreed to recommend to tlu'ir respective House as follows : "That the .Senate recede from its disagreement to the amendment of the IIou.se, and agree to the .same with an amendment 'o read as folhiws : "'Section .3. That section 11)56 of the llevlsed Statutes of the United States is hereby declared to include and a]iply to all the dominion of the United States in llie waters of ISeliring Sea, and it shall be thi! duty of the Presiileiii, at a timely .sea.son in eacli year, to issue his I'nii'liiniation, and cause the same to be published for one moutli in at least one newspa]ier (if any such there be) imlilislied in eacli United States' port of entry on the I'acilic coast, warning all persons again.st entering .said wateis for the purpose of violating the provisions of said section, and lie shall cause laie or more vessels ol the United States to diligently ci'uize .said waters, and aiTest all per.sons and seize all vessels found to bi' or to have been engaged in any violation of the laws of the United .States therein.' " And the House agree to the same." On the 10th August, 1887, after the seizure of the " Sayward," and while she was in custody, the United States' Secretary of State wrote identic instructions to the United States' Ministers hi 75 France, Germany, Great Britain, Japan, Russia, and Sweden and Norway in the following terms : — Ex. Doo,, p. 106. ■' Keceiit occurrences liiive amwu the alleiiliui. <>f tliia Department to the necessity of Uking steps In-' the better protection of tlie fur-seal lislieries in liering Sea H'lthont raising any question as to the cm'iHional m-ws^rcs- which the particular character of the property in question mi'jM jusli/ij this (.lovernMient in takiiii,', and irithovt reference to any cca-ptiomd vwriiic jarisiJidiun that mi-jhl properly be chimed for that eml, it is deemed adcU:iUr, and I am instructed by the l-resident so to inform you, U, 'I'l'im the desired ends hj iN'TKnxATlOX.u. C(i-oi'i;i!.\TioN-. " Under these circumstances, and in view of the eoinmun interests of ALL nations in preventing the indiscriminate destruction and consequent extermination of an animal which contributes so materially to the commercial veallh and general use of mankind, you are hereby instructed to draw the attention of the Ciovernuuut to which you are accredited to the subject, and inritr it to enter into sncli an arrangement with the Governuient of the I'nited States as will prevent the citizens of either country from killing seal in Bering Sea at such times and places, and by such methods as at present pursiu^d, and which threaten the speedy exterraination of these animals and cuisequent serious losf to mankind." So to Mr. White, Secretary of the Inilcd States' Legation in London, witli reforcnec to this proposition, ho wrote : — "The suggestion made by Lord Salisbury, that it mag be nccessarg to bring other Uovernmcnts than the United States, Great I'.ritain, ami Russia into the arrangements, 7m(S already been met by the action of the 1 )ep;\rtment. As I have heretofore informed yo\i, at the same time the inei- ialion was sent to the I'.ritish Government U, negotiate a Convention for seal protection in Bering Sea, a like invita- tion was extended to various other Towers, wliicli have, without exception, returned a favourable respond'. In order, therefore, that the plan may be carried out, the Cou- vontion (iroposed between tiio United Slates, Cireat I'.iitain, and Hussia, .«/'/ contain a clause prodding for tin- siibse- (pient admission of other Povxrs." In 1888, moreover, Ihe Secretary of State for the United Stales apptu-ently considered it im- possihle to maintain the ground suggested hy tlio Bill as first reported upon hy Hie Commitlee of Marine and Fisheries. In a despatch to the Afiiiistcr at the Court of St. James' (the Tth Fehruurj, 1888), when 16 dealing ■\ritli tlie slauglitci" of seals in Bcliring Sea, he -wrote : — "Till! only way of obviiiliiiL; Uiu lamontnble result above jivodictcil aiipcars to Ix; liy tlio I'liitoil Stall's, (!reat lii'itain, auil otliur iiilorcatwl I'owoi's takiiii,' (■oiioritcJ actiuii to previint their citizfus or subjects Irinn killiuy lur-seals with liru-anns or other dostructivo weapons north of r.O" r)f north lalitiidc, ami between 10(1'' of lonyiuule west anil 17(i° of longiluilo east from (Ireenwicli, ihiviiis the period iiitervenin;,' between the 15th April and 1st Novoniber. To prevent the Uillinj; within a marine belt of 40 or 51) miles from the ishmda during! that period would lie iiu'fl'ectnal as a jireservative measure. This woidd clearly lie so durin;,' the ap]iroaeli of llie seals to tlic islands. And after their arrival there such a limit of protection would also he instillicient, since the rajiid jiroj,'ress of the seals through the water enaldes them to go great distances from the islands in so short a time that it has been calculated that an ordinary seal could go to the Aleutian Islands and back, in all a distance of :l()() or 400 miles, in less than a day." V The counsel, !Mr,'i!L...,E.. Bclauejvwho appeared Behring Sea iikiti to for tlie United Stales' Govennaent, to justify *" " '"^""^ '»'"■ the seizure of the "Thornton" in 1880; filed a " hrief," from whieli tiic following extract is taken : — "The informatinn in this case is based on section 1950 of chapter I) of the iievised Statutes of the United States, which provides that — " ' No person shall kill any otter, nunk, marten, sable, or fur-seal, or other fur-bearing animal, within the limits of Alaska Territory, or in the waters thereof,' "The offence is charged to have been connuitteil IMO miles north of the Island of Ounalaska, and therefore in the main waters of that part of the I'ehring Sea ceded by Kussia to the United States by the Treaty of 1807. The defendants demur to the information on the ground — " 1. That the Court has no jurisdiction over the defendants, the alleged oll'ence having been committed beyond the limit of a marine league from the shores of Alaska. " 2. That Jie Act uiuler which the defendants were arrested is unconstitutional, in so far as it restricts the free navigation of the IMiring Sea for (ishing and sealing ])ur- poses beyond the limits of a marine league from shore- The issue thus raised by the demurrer presents squarely the questions : — " (1.) The jurisdiction of the United Slates over Piehring Sea. " (2.) The power of Congress to legislate concerning those waters. m: 77 " TIk Arijiuafnl. " Tliii futiMif iho soconil (if IIk'.ii' prupositions (Iqieiida InrKt'ly uimii tlmt of Uio first, Icir if tliu jmimlictimi mid dominion of tlie United States as to tliuso wiitws bu mil sua- tainiid, the restrictive Acts of Congress must fall, and if our juviwdiction shall 1j(> sustained, small ((ucsticpu can lni made as to tlic power of Congress to regulate fishing and sealing within our own waters. The. gravi' iiuestion, one im- portant to all the nations of the civilized world, as well as to lh(! United States and Great lUitain, is 'the dominion of Bchring Sea.' " After concoding imreservctlly tlio general (loctriiic til' tlic 3-mile limit, he proceeds: — " It thus ajipcars that from our earliest history, contemporaneously with our aceeiitance of the principle of the murine league belt, and sujiported by the same high authorities, is the a.ssertion of the doctrine of our right to dominion over our inland waters under the Treaty of 18i;7, and on this rule of intoniatioiial law we base our claim to jurisdiction and dominion over the waters of the Bchring iSea. While it is, no doubt, true that a nation cannot by Treaty acquire doniiniim in contravention of the law if nations, it is none the less true that, whatever title or dominion our grantor, Itussia, possessed under the law of nations at the time of the Treaty of Cession in 1867, passed and now rightfully belongs to the irnited States. Having determined the law, we are next led to inquire as to whether !U;hring Sea is an inland water or a part of the open ocean, and what was Paissia's jurisdiction over it. " Behring Sea is an inland water." Beginning on the extern coast of Asia, this body of water, formerly known as the Sea of Kamtchalka, is bounded by the reninsula of Kamtchatka and Kastern Siberia to the ISehring Strait. From the American side of this strait the waters of the Behring Sea wash the coast of the mainland of Alaska as far south as the Veninsula 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 : — " llimia's Tilie and Dominion. " Enough luvi been said to disclose the basis of Paissia's right to jurisdiction ol' the Behring Sea under the law of nations, viz., original possession of the Asiatic coast, fol- lowed by discovery and po.sscssion of the Aleutian chain and the shores of Alaska North, not only to Hehring Strait, iHit to Point Barrow and the Frozen Ocean, thus inclosing within its territory, as within tlie embrace of a mighty giant, the islands and waters of T.elning Sea, and with this the assertion ami exercise of dominion over land and sea. "Such is our understanding of the law, such is the [607] X 78 recciid. Upon tliem tlie United States are prepared to abidu tlie .Tudgiiiunts of the Courts and the opinion of the civilized world." Oil the lOt-h September, 1887, the Marquis of Salisbury addressed Sir Lionel West, British Minister at Washington, as follows : — "The claim thus sot up appears to be founded on the exrcjitional title said to have heen conveyed to the United States liy Enssia at the time of the cession of the Alaska Territory. The pretension which tlie Russian Ciovcrnnient at one time put forward to exclusive jurisdiction over the whiil(; of Behring Sea was, however, never admitted either by this eoi.utry or hy the United States of America." Upon this ground of claim the discussion between llor ^Majesty's Government and the Government of the United States was carried on for some years until Mr. Blaine's despatch of the 22nd January, 1890, to Sir Julian Paiince- fotc, wherein it was for tlio first time sot up that it Avas contra honos inorrs to engage in the killing of seals at sea. Mr. lilaino wrote as follows : — "111 the opinicin of tlie I'resident, the Canadian vessels arrested nnd lU'lained in the liehrinj; Sea were engaj^ed in a jinrsuil that is in itself nniint honos mores — a pnrsiiit which of necessity invulves a serious and ])('niiiincnt iiijiiiy to the rights of the Coverument and peciple of tlie I'liited States. » » » » •' In llu! judgment of this Governiiient the law of the S(!a is not lawlessness. Xor can the law of the sea i>nd tlu; lilierty wliieh it confers, and wliich it protects be |)erverted to justify acls which are imnicjral in themselv(.s, wliieli inimitably li'ud to rcimlt against the interest and against till' wi'lfiiie of iiiaiikind." On the 1 7tli December, 18!)0, Mr. Blaine writes t(j Sir .luliiui I'aiinccfotc ; — "Legal and dipluiualii' iiuestions, apparently coni]ili- cated, are often found, after prolonged diseussion, to depend on the siiltlo'nenl of a single point. Such, in ihe jiidgiueiit of tlie President, is the position in wiiich tlie United Stales luid Great liritaiii find theniselvc in the pending controversy touching Hie 'nn' construction of the [{us.so-American and Anglo-liussian i . 'alies of 182-4 and ISlio. Great liiitain contends that ^' ••. phrase ' Pncilio Ocean' as used in the Treatin, Wa _nded lo imliidi', and does include, the body of 'vati r wnicli is now known as tlie I'ehring Sen. Th. United S*. «s contends that llii' Uehring Sea was not nieuiioni'd, or even referred In, iu 79 either Treaty, :uid was in no sense included iu lliu pliruso ' rnoific Oceiin.' 11' Gw :t liritain can maintain licr positio I that the Buhring Sen iit the time of the Treaties with jlussia oi' 1824 and lSl'5 was included iu tin- I'acific Ocean, the Government oi: llie United States lias no well- groi'flded complaint against lier. If, un tlie nt.lier liand, this Government can prove Ijcyond all doulit that tlie Behring Si a, at llie date ot tlie Treaties, was understood by tlie thrie Signatory Towers to be a separate liody of water, and was not included in tlie phra-e ' Taeific Ocean,' then the American Case against Great Bntain is ci>ni[iletc and uudeiiialile." In the same note Mr. Blaine disavows tlic con- tention that the Beliring Sea is mare clau-'iiini, hut claims that exchisivi; jurisdiction over 100 utiles from the coast in tlic Bohring Sea is vested iu the United States. In this note the Secretary of State i'or the United States tlius expressed himself : — "The repeated assertions that the Government of the United States demands that the Bering Sea be pro- nounced marc liinmuii are without foundation. . The Government has never daiined it, and never desired it. It expressly ilisavows it. » « « » "The United Suites desires only such contivl over a, limited extent of the waters in the Behring Sea, tor a part of each year, as will be suihcieut to in.snro the protection of the I'ur-seal tish.'M-ies, .dready injured, possildy, to an irrep.irable extent by I hi' iutnision uf Canadian ve.ssels." Tliis disavowal is iiyain reCcrred to in Mr. Blaine's despatch ^\ the 14th April, 1891. Ou tlie 21st Fehrntiry. 18'.)1, in answer to the despatch of Mr. Blaine of th(> 17th Deccmher, 1890, Lord Salisbury writes : — "The effect of the discussion which lias Ihmii canieil .m between the two (bivernmeMts has been malerially to narriiw the area of controversy. It is now ipiite clear that, the advisers of the I'residcnt do not claim Bchriug Sea as a man- ilcisicm, and indeed that they repudiate thai cniiten- tioii in express terms. Xor do they rely, as a justilicalion for the seizure of British .ships in the ojien sea, upon the conleiilion that the interests of the seal tisheries give to the Unitiid States' Government any right for that piiriio.se which, according to international law, it would nnt olhcr- wiae possca.s. What<.'ver im|iorlance they atlarli hi the preservation of the fur-seal species — and they .justly look on it as an object de.si'rviiig thi^ most serious solicitude — I hey do imt cmicei'" tliiit it confers upon any Maritime I'ower ri!j,hts aver the ojieii ocean which that I'owcr could not as.serl on other uround.s. "The chum of the United States to prevent the evereise iif the .seal lishery by other nations in Hehring Sea re.-ttn 80 now oxclusivtily upuu tlie iuti'iv.st wliich by purchase tlioy possess iu a Ukase issued liy llie Eiuijcior Alexander I in the year 1821, wliicli prohiliits foreign vesjels from approafhinj,' witliiu 100 Italian miles of the coasts and islands then lieloni,'iii<,' to liassia in I'ehrinf; Sea." On the 1/lth April, 1891, in reply to this, Mr. Blaino said : — " In the oiiinion of the rresideut, Lord SalisLiiry is wholly and straiij.'uly in emn- iu making the following statement : ' Nor do tluiy (the advisers of the President) rely as a justilieation for the seizure of British ships in the open sea on the contention that the interests of the seal fisheries give to ihe United States' Government any right for that purpose which, according to international law, it wouM not otherwisi! possess.' The (io\'ernment of the United Slates has steadily held jnst the reverse of the position Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habits of the seals in regularly resorting thither and rearing their young thereon, that their going out frfpui the islands in seuroli of food, and regularly returning thereto, and all the facts and incidents of their relation to the islands, give to the ITiiited States a property interest therein ; that this property interest \ias claimed and exercised by Ku.ssia iion. Prom the Conventions with the United States and Great Britain, it is evident that Russia's object was the rc(!Ognition and protection of the Russian Scttliiments in America. e Conventions provide against D rdingly, [607] / illicit commerce, landing "at any place" ( froni Beliring Strait to southernmost boundaryT" where there may be a Hussian Establishmcni without the permission of the Governor or Commandant," and against the formation of Establishments by I mil iilliir n"^°"'° "^ ri^ ^ > . i ^tt i ff - >^l^t^u,^^^ T a iirliing llin i r ii ni liii " iiiii H i i ii il iiiii n li " m ii l 4htii .'i^iiiIiLaliuuuj"it will be remembered that tlie Ukase of ] 821 included the Paeiiic from the Straits down lo 55° north and mot with protests in toto, on the ground that the coast was almost entirely unoccupied, and that maritime jurisdic- tion, even where it was occupied, should not extend beyond 3 miles. - Thu - cujML ■ CT " T )elirlij f : ^':Sg 4'°^glS;: rteiw i Ji,d 8s^ ocftnpiwMitRitrfSB ieoas^'%el^ Mr. Adams to Mr. Rush, July 22, 1823, American State Papers, Foreign Relations, vol. v p. 436. Appendix. " Lc nouvcau Ri'gloment ii'interdit point aux batiments ('trangers la uavigatiou dans les luers Ciwi baignent Ics possessions Russes sur les cotes uord-ouest de I'Amerique et nonl-est do TAsie." • • • • " Car, d'un autre cotd en considerant los possessions Kusses qui s'etendont, tant sur la cote nord-ouest de I'jVmc'rique, depuis le Detroit de Bchring jusqu'au 51" de latitude septentrionale, que sur la cote npposee de I'Asie OM^ ^ •^4 J ^ ct 103 ilea adjncentes, dcpuis lu uu-mt; detroit jiwqu'au 45°," &c. • • • " Car, s'il est dimontri quo le Gouverneniont IiupLrial eut eft 11 la rigueur la facultd do termer eutieromeiit aux Strangers cettu partie do rOcfan racijujuv que bordent nos possessions on Amuriquo et en xYsia, a plus torte raison lo droit en vertu au(iuel il vient d'adopter une mosure beau- coup moiuB gi'neralemeut restrictive doit no pus etro ri5voqu6 en doute." . • • • "Los officiers commandant les batiraents de -uerro Russes ipii sotit destines k veiller dans I'Ocean raciti(iuo au maintien des dispositions susmentionnees, ont regu I'ordre do commenoer k les raettro en vigueur unvers ceux des navires etrangers," &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 hoth inchides the Bering Sea. Again M. do Poletica, writing to Mr. Adams on the 28th Fehruary, 1822 :— •■ The first discoveries of tlie Russians on the north-west continent of America go back 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 llw icji sm into the Pacific Ocean." ♦ • • • iffk* " When, in 17i)9, the Emperor Paul I granted to the present American Company its lirst Charter, be gave it the exclusive possession of the north-west coast of America, whicli belonged to Russia, from the 33th degree of nortli hitilude to Behriug Straits." " Ero'.a this faithful exposition of known facts, it is easy, Sir, a^ appears to me, to draw the conclusion tliat 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 2tos3Cssiuns on Ihc ■mrth-iccst coad of America^ on the one >iidc Bchrinij Strails, and on the otlicr the 51st degree of north latitude, has," &c. " I ought, in the last place, to request you to consider, Sir, that the Russian jiosscBsiuns in the Paeific Ocean extend on the north-west coast of Amorica from I'.eliring Straits to the 51st degree of north latitude, and on the opposite ^ido 84 i. " Ueuolr llUtorical anil Politkftl of the north-west cout of North Ameriia and tho atljacent terriloiicii, illaitiat«d by a Map and a ^uoKrapbical viuw o( thuao coautrjei, by Kobert (irecDbow.Tranilator and Librarian to the Depart- ment of State.*' Sonutc, iflth Coon., \ai Heaaion (174), 1H40. The '411111' Mniinir.aeparately priotcd, ui'^iarcntly iu identirul form, and with the Hanii> Map, and pngination, W'lloy and FiitDani. New York, IHIO. " The Gedgraphy of Oregon and CaUforiiia and the other territorieH on Ihu north'WCHt cowt >ti North America." New Vorlt, 1840. "Tho Iltatory of Oregon und <'uliforniu and the ottier torrltoricH on the north-weHt eoasi of Nortli America, )>} Robert Orcunhon. Traniilator and LibrarJau to the Depart- ment of Stale of the United .States; liuthoi of « Memoir Hiatorical und I'olitir-al. on iho nortli-wcst coast of North America, nuhliithed in 1H40 by direction of the -Scuaie ol the United States.*' Now York, 1S4,'; ThiH U ■* Ficcond etlition. and in the preface it U explained thai its iaHuc wu^ rendered neceiwarj to Hupply l,5U0 copi'ju of tho work which had been ordered forttio General GoTemmeot. The same work. First edition, LonduQ. 1844. Both ediliona contain Map^, which appear to be identical. but ditferent from tlie Mapi) accompanying llie Memoir, thouKh tncliidini; nearly tlie aauic limita with them. ^^/i. A Memoir was prepared on the ofiieial rcjquest of L. i\ Linn, Cliairinan oi' Sc^lcet Commit ti'c on the territory of Oregon, l)y order of .Tolm Forsyth, S(H'rctary of State. It includes a W^^\> cTifiiled "The North-west Coast of North Ameriea and adjacent Territories," which extends from hcloTT Aeapui(;o in Mexico to above the Kuskocjuim iliver mouth in Bein-ini; Sea, and embraces also the i^reater part of the Aleutian chain. (Jrecnhow's " History" was oflicially ])resented to the Government of CIreat Britain hy tho (iovernment of the United States in .July 1815, iu connection with lli(! Oregon dis(!Ussion and in pursuance of an Act of Congress, \i. 141. In tho " History of Oregon and California," the Sea of Kanitchatka, or Uehring's Sea, is again referred to as a part of the I'acilic Ocean. In respect of the umhu'standing hy tho United States of the entire relinquishment of tlie claims advanced hy the Ukase of 1S21 in the llwssian and United States' Convention of 182 1, the following is found on a later page of the volume last referred to : — " Tliis Convention ilocs not appear to offer any grounds for dispnlo as to the con.struction of its slipnhitions, Imt is, on the contrary, clear, and equally I'avouriiblo to l)oth nations. The rights of both parties to navigate eveiy part of tho Pacific, and to trade with the native.^ of any places on tlie coasts of that sea not already occupied, are first acknowledyed " (p. .342). The following is tho correspondence accom- panying the presentation by the Government of the United States : — ■•/f ■//^ " Mr. Buchanan to Mr. rahnham, " Department of State, Washington, "Sir, "Juhj\2,\%\o. " In pursuance of an Act of Conf^ress approved on the 20th Febraary, 1845, I have the honour to transmit to you herewith, lor presentation to the (iovernment of Great Britain, one copy of tho ' History of Oregon, California, anil iho other territories on the Norlli-west Coast of America,' by Kobert Greeuhow, Esq., Translator and Librarian of the Department of .State. " I avail, &c. (Signed) "James Buchanan." [607] Z 86 " Mr. Pakenlmm to the Earl of Aberdeen. — {Eeceived " August 16.) " My Lord, " Washington, July 29, 1845. " I have the lionour herewith to transmit a copy of a note ^^■luch I have received from the Secretary of State of the United States, accoiiipaiiied by a onpy of Mi. Green- how's worlv on Oregon and California, whioli, in pursuance of an Act of Congress, is presented to ?Ier Majesty's CJoverMiiient. " Altliough Mr. Greenhow's book is already in your Lordship's possession, I think it riglit, in consequence of the official character witli whicli it is presented, tu forward to your Lordsliip the inclosed volunie, being the identical one ^\■lucll lias been sent to me by Mi-. Buchanan. " I hav(! not failed to acknowledge the receipt of Mr. lUicliaiian's note in suitable terms. " I have, &c. (Signed) " R. Pakenham." Touching; the moaning of the forms north-west coast and Pacific Ocean, and the m(,'aning attached to the relinquishment of Russian claims by th(! Convention of 18"24, in the fii-st part of the " Mcnoir," under the heading; " Geograpliy of the Western Section of North America," the following passage occurs : — "Tlie iiorth.-wed coast* is the expression usually era- ployed in the United States at the present lime to distinguish the viust portion of the American continent wliiiii e.xtend.s north of the 40tli )iarallel of latitude from the Pacific to tlie ;..rroat dividing ridge (jf thi' Rocty Mountains, together with the contiguous islands in that ocean. Tlic .southern part of tliis territory, wliieh is (or Ity nr \orf/i Frozen) Or,an, on the western side of wiiich strait, oppotite Cape I'riuec of Wale?, ia Ha^t Cti/ie, tho cistern eitreniity nf Asia. Heyond Heoriog"* Strait tlie shores of tlie two eontinenlB recede from eaeh other. The mtrt/i eniist nf America has ijeeji traced from Capo Prince of Wales aorth.eastwaid to Cape Harrow,^' atc, pp 3-1. '■^»p=^ 88 The fact that the whole territorial aud mari- time claim of the Ukase was in question, and was settled by the Treaties of 1821 aud 1825, also aj)iK'ars from flie ^Memorial laid h\ ilr. Middletou before the Russian Government on the 171 h DceeinlHT, 1823:— " With nil tli(! resju'i't which wo owe to the deckrctl Ameficin State intention, niul to tht'dolunninalioii iiulicated by the Ukase, ''''5rn' '"'' ^' p. 452. it IS netessaiy to uxariuno tiie two points of lact. (1.) // fhi: cmintrji to the south and east of Ikhring Strait, as far a.i the tilst il'^/rcc of north latil u/e, vsfonwl slridli) iici:u/iii:d (2.) If then; has been latterly a real occupation of thiff vast territory .... The conclusion which must nec.n.-isnrily result IVnm tlu'se facts does not appear to e.stal)li.ih tli.at the territory in q\iestion has been legitimately incorpo- ratetl with the Uussian Empire. The extension of terri- torial rij,'hts to tlu^ disUmce of 1 00 miles from the coasts upon two opposite contiaents, and the pi-ohibitiou of approaching to the same distance from these coasts, or from those of all the iutorveniiig islands, are innovations in till.' law of nations, and measures unexampled." In an earlier part of the same paper, Mr. IVIiddlcton ol)serve.s : — " The Ukase even goes to the sliutting up of a strait which has never been till now shut up, and which is at present the ])rincipal object of discoveries, interesting and useful to the sciences. The very terms of the Ukase boar that this pretension has now been made for the first time." Tlie same appears from Mr. G. Canning's despatch to Sir C. Bagot of the 24th July, 1821 :— " Your Excellency will observe that there are but two points which have stnick Count Licven as susceptible of any question : the first, the assumption of tne base of the mountains, instead of the summit, as the line of bouiularj' ; the second, llie extension of the right of naniijatimi >•( the Pacific to the sea bei/ond Ikrinij Straits. " A.S to the second point, it is, perhaps, as Count Lieven remark.s, new. But it is to bo remarked in return, that the circumstances under which this additional "eourity )., requii'cd will be new also. By the territorial demarcation agreed to in Ihis ' Projct,' Ifussin will become po.'^s-jssed in acknowledged sovereignty of both sides of I'eliring Strait.-:, " Tl'.e Po'^^cr wb-icii i.'ould ilimk of makin<; the I'aciiic a mure, elausuiii may not unnaturally be supposed cafiable of a disposition to ujiply the same character to a stiait com- prehended between two .ilior^js of which it becomes the undisputed owner. But the rkiittimj up of Jkhring Straiis.or tin. p'iii:cr to find thrni ?ij) hereafter, inovld be a thivj Hot to le.tolcraUd hy England. 89 Se» Appendix. " rikhmenicff." Appendix. "Nor could we submit to he excluded, either jm^/ivel;/ or constructively, from a sea in which the skill and science of our seamen has been and is ptjl cmj/loi/cd in enkrjrrises intercsliii{/,not to this country alone, but to the whole eirilized loorld. " Tho protection* given by the C'oiivenliou Ic tbo American coiists of each I'ower may (if it is thought necessary) Ije oxtcndcd in lenns to the coasts of the Russian Asiatic territory ; Ijut in some way or otlier, it not in the form now jnesonted, the free navigaliou of Behring Stiaits, and of the seas beyond tliem, must bo secured to us." It would Lave been of little use securing the rii^iit to navii^'iito through Behring Straits anles.s the riglit to navigate tlio sea leading to it was secured, whieli would not have been the case if the Ukase had remained in lull force over Behring Sea. The frecjucnt references to Behring Stvaits and the seas beyond them show that there was no doubt in the minds of the British .statesmen that, in securing an acknowledgment of freedom of navigation and fishing throughout the Pacific, they had seciwed it riglit up to Behring Straits. 'I'iiat the phrase " Pacific Ocean " in the; Treaty included Behring Sea is also shown by tlie rejily of the Russian Government to Governor Etholin in lbl:J, wlien lu; wished to keep American wlialers out of Behring Sea : — "Tliu claim to a mare rlaitsnm, if we wi.shed to advance audi a claim in respect to the northern jmrl of the Pacific Ocean, could not be theoretically justified. Under Article I of the Convention of 1824, between Russia and the United Stales, which is still in forci, American citizens hare a rifiht to fish in all parts of the Ptfific Ocean. Uut uudiT Article IV of the same Convention, the ten yeai-s' jjeriud mentioned in that Article having expired, we have j)ower to lorbid American vessels to visit inland seas, gidfs, hurbo\u's, and bays for the purposes of fishing and trading with the natives. That is tin- limit of our rights, and we have no power to prevent American sliiiis from t.ikiug whales in the open .sea." &i'e also reply to Governor-General of Eastern Siberia, 1810 :— •' We have no right to exclude foreign sliips from that part nj the great ocean which separates the eastern shore of Silieria from the north-western shore of America." &c. ; and the instructions which were fiiuilly issued to the Russian cruizers on the 9th December, 1853. * (i.ff.) By ti.e exiension of lerritorial jurisdii'tuiii ti> two Ii',i<;ucs, as origlually |iropu.x(dusivi' jiirisdif'tion of Russia. -j4t<^ hat dli i if - *' argument has been y^' seriously -(tt^ Majis or the words "north- west coast" would iiiTtifc^^H^rcrri'd Id In the con- sideration of the Couventioii The Legislature of the Territory of Washington, in 18GU, referred to " lisbing l).inks known to navigators to exist .ilong tlu' Pacific coast from the Cortes bank to Pchring Strait." So, in 18S7, it is found that the Amoricaa Representative at St. Petersljurgh informed ton, 1887, p. lia: Mr. Bayard (17th February, 18S7) that tlio Notice already quoted prohibits fishing, itc, in "the RuL.sian Pacific coasts." This corre- Papcrs relating to Helirinp Sea Fislicrius, Wasliin;;- ^*- '~ ^%^ v>*^>^^o >i^. -. «^^^ .<6. IMAGE EVALUATION TEST TARGET (MT-3) y A {•/ y. r/. W/. 1.0 I.I I: 1^ 25 2.2 2.0 1.8 11-25 i 1.4 i 1.6 v^ <^ n 'el ^/\ /A ^/^^i '■/ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. U580 (716) 872-4503 d -y^ iV iV % V ^ v> 6^ Sir %^ IP. Vj h ^ v> ^ *,^ 'V \ 92 spoudonce related to n seizure which had been made in Bciiring Straits. yrafossor 11. W. Elliott, of the Smithsonian Report on ih« Seal Instil lite, who was engaged in the study of the Waihinffton, 1884. seal islands of Alaska for the United States' Government as lat<^ as the year 1880, in his official lleport on (he seal islands of Alaska remarked, concerning the seals : — " Tlieir raTigo in llir Xorth Pacific is virtually cunlined t¥ith miah fnatii tiic rinc; Sea and Iho P.'U'ili *' nirtioDnaire Qeograpbit|Ui- UiuTiT»el,'* 1828. 'Prfcii il« la Oi^graphii' Uni»er«lle," par Maltc-Bnin, Tol. ii., p. IHl, I'll. 183.5. Ibid., viiL fiii, p, 4. Luigloia, " Diotiunnairv dv 0(caii Glacial Aictique. " Huhriii); (Detroit de). (.'anal nu Imis do incr iinissant les eaux de I'Oct'au (ilacial Ai(ti<[Ue a cellc> de rOceaii I'rtciliqiie. " Hehriug (Uetniit de). Pa.ssa(,'e qui unit TOeean Glacial Arctique an Ornnd Ocean." It is clear that the Uonourable Charles Sumner, when projiosing to the Senate the adojition of the Treaty of Cession of Alaska, understood the words "North Pacilic " in the sense in wliicli these words arc doliued by the autiiorities just cited. [607] 3 B 94 In 1)18 Npocch on that occasion, Mr. ijumner thus rcfciTcd to the waters in <|U08tion :^ ■Seii-ottrr siTiin to lieUiiiK t'xolnsivi'ly to thi' North 8m> p, 3IS, racilic Its |irc'Sfiit zoii.- ix Ik'twc", il;,- immllcl.s "<'*"<''» Report, of l'>0' Mill) 0.'" north liilltuilu on thr Aiiifricun and Aaiutii: co;isi-4. so ihiit its miijfe is very litnitcd." I'liiliiniore, in iiis Srd edition of the " Low of Nations," vol. i, p. 200, remarks : — "Thit contention, advanced for the first linii' liy the United States in this rnntroversy, nfttr im luiiniescence of molt) t'saii sixty-five years in tlie wurld'o cnn«tnicti(in of the Treiities of 1824 and 1825, tliat tlio phmso ' Piicific Ocenii,' 118 used in thosi; Ti-eaties, was not intendi^d to inchide, and did not include, the liody of water which is now known as the liehrini; Sea, Ixjcauw: the words ' lieliriiif; Sea ' were not used in either Treaty, is wiliiout any foundation, as wiU be suli.sei|uontly shown ; and yet the C,"oncc3.!ioii is inaih; liy thi; I'liilcd States that, ' if Oreat Ijritain laii iiiiiiiitaiii lier |iosilioii th.al the Ik-lirin^ Si!a at the lime of the Treati.-i «iih Uiwsia of 1824 and 1825 w.-w included ill the I'acilie Dtc'an, the Govcnimcnt of the United .States lias no well-jp-ouniicd complaint against her.'" CEx. Doc., No IK, II. li.. .Msl Countess, 2nd Session, i). 27.) TiiJil till' TIkasc of 1S21 was abandoned in the Interpretation of the Convention of 1824 and rcco-nitiou of flic e.^isting ri^'ht in all nations 1825 by writers on international law. has lifcii miivcisally and uniformly considered by writ or;; of intornatioiial law from the date of the Conventions until now. Wharton, seetion li'I, ]i. Ill : — liussi.i li.ivins iis.serted in 1822 to 1824 i.n I'xolusivc Ti,g,e Treatiei juiiadictioii over the north-west coast waters of .\iii('iica universally Iroiii liehiiii.' Strait to the r.lst degree of north latitude, •"""I"'';' ""''' "°1!' " ° as un .iliaudoniDent thij elttim wiw resisted by the United States anil (iMnil of Kussin's cluim. r.riUiin, and was siineiuh^leil in a ''ouventioii between Wharton, si-c. 159, ... , 1 t- • . . . -1 w.it 1 ■ where, also, lawsia and llie I aited Slates in April lo24 . . , and in President Monroc'a a (Jonvcntioii IxiUveeu (ircat liritoin and liussia in Feb- construction of the ruary 1825."— (2 Lyman's "Diplomacy of the United ''""»'? "PP^ar.. States," chap. 11.) V ])av i^S 1' 41:— " liussia, in 1822, laid claim to exclusive jurisdiction oV!T that part of the Pacific Ocean lying north of the 51st degree of north latitude, on the ground that it po8< scssed the diores of that sea on both continents beyond that limit, and .so had the riylil to restrict commerce to the coa.st iiihabilaiits. F^ngland and the United ."^tates entered vigorous protests aj^ainst the right claimed by IJussia as contrary to the principles of international law, and it wns formally withdrawn in 1824." 05 T. S. WoolHcy, Professor of Internet ioiml Law at the Yale Law School, in th\,-nn:i; "ixiii the 1,'roun.l llml tlii^ part nf tho ocoaii \viw a pimsa^.! to ulioros lyiti); i;\<;Iiisivcly within iiri jniiKihrtioii . hut this claim v.ius iiMisU-d If "nr r.oviTiimciil, unit witliiiiawii in iho tomv'miry Cnnveiition iif IH'M. A Tri-iity <.! the sami' Fnipiri! with (ireat liritain in IHL'". .(intaiiis similar (•un- CCSsioMH.' Hall, :Jrd edition, IHDO, p. 1 17 :— "AW.— A new claim suVisciiuciitly s|ininj,' up in ilic Pacilic, hut it was ahandirticd in a very short tiim-. Tho Pussinn r.ovi'riimunl pflcnacil to Ijo Sovorfij-n nvcr tho I'acifir nortli ul' ihi' r,lsl iIi-ht nf latitiuU;, ami i.nlrli>h«il an Uknnc in ISlil )Mi>liil'itin;4 IV)rf th(! 'oasts and Lshuuls lK)nlerini; uipon ur included in that imrtion of tho ocean. This iircli^nsinn was r..si.4e(l liy thn rnitcd Statr.s and (iri'al liritMin, and wan wholly •Jtiviii nji hy fonvun- tious between ihi' fi.incr Towers ami iUt-'Mti in Is-Jl and 1825. . . . With tlagrant ini<>n.ii.steni'y the I'niteil Stales, since nc(|uiriii}; ixjaswision of Alaakn. have ciaiined nx attendant uiioti it, hy virtue of cession frora llussia, aliout two-thirls of the jiehrini; .'( a vcs-sel .so taken have heen fined and imprisoneil; the vess(d wa.s si'izeil for flshinu at a dlslanct: of more than 70 miles from laml." CnAPTKH Vil. 1*0 1 M IV. — The Cexnion of 1807 and what passed bij it. Tlio luurth (iiiustioii or point in the cose is as follows : — lYul not nil the rights of Russia as to jurisdiction niifl as to Ihf seal lisliTirs in Hrhrina Scd past of the water hnuuihinj in the Treaty between the United Slates and Russia of the SOth ^farch, 1HG7, pass unimpaired to the United Slates under that Treaty f The cession of Alaska took placo in 1807. that Tn.'aty, ratificil by the llnitcil States on llio 28tli May, ISfw, RussIt coded to (lio Ui/tod States a tract of which — " Tin; woslerii limit wilhiii Mliicli llii; lurriK^os iiiid Joiuiiiion coiivoyi^d aio cniituincd passes tliiouf,'tf a point in lieliring Straits im tliu pnriillul of (i5 :iO' ■.iir* Intitudi!, at its intorsettion liy tliu meridian which sdcH midway between tlio I.sliinds of KrusenNtcrn, or If;njl/ok, and the Island of RatinanolV, nr Noonnrbook, and A)rnoeeds due north, without limitntion, into tlie Hamnl'"rozen Ocean. The same western limit, beginning at ye same initial point, proceed:! thence in course nearly so/th-west, throujjh Behrinj' Straits and Heliring Sea, so a/ to pass midway between the north-west point of tlie Island of St. Lawrence and the soutli-enst point of Cape ybhoukotski, to the meridian of 172" west longitude; tl/nce, from tho inter- section of that meridian, iu a soutl/wcsterly direction, so as to pas3 midway between the ItJanil of Attou ami the Copper Island of the Korniandomki conflict or group in the North Pacific Ocean, to th/ meridian of IQM" west longitude, so as to include in tiie territory conveyed the whole of the Aleutian Islands east of that meridian." In a sea so full of isfcnds as the Bchring, a line similar to the one/drawTi above was neces- sary for a clear divisipn of the sovereignty of those islands. It avoi/ls an enumoration. There was no grant of sea Mlected by the delimitation. Russia took earc Ao grant only the territories with a right of soveipignty within those liiujs. No attempt is mide to describe by miles and bounds the terrinjry, but it is said to be contained within certain geographical limits. The " territory '1 will be found on the continent and in the adjaceat islands within those limits. ^••lOD, i 07 Tlu! following is tlio Treaty of Cession "Sn Mnjfisti' rKmiHTi'iir dc Tmitrs !j« ot lea £tat«-Uni.H irAMi('iii|ii(', il('»imiit niMrriiiir, h'jI est posHiblo, la Ixiiinc iiiti'lli.i.M'iico i|iii cxiMUi oiitru (mix, oiit iiommi^ h cut cirt-t, iKnir liMir^ rii'iiiiuili'iiliaii-es, wivciir: " Stj Miijcst«! rKiiii)or«ur do ToiitcH Km ItiiiisiiM, lo (,"on- acillcr I'rivt' rMmmnl dii Hlocckl, hiui Kiiv aiix Klat.s-Uni.s ; ot " Lc Tri'siil Ua* f'.taU-Unis, lu Siuur Williiiin H. Sownnl, S^'cn'tain I'tat; "LcxquulH, nprj-a :.vuir dclmngd luura phniis pouvoin, trouv(!ft vn Imnr' c. due formo, cuit anvli vt sinnd leu Articles hh. iits: — " ABTICLE I. " Sn Mniosic l'Eiiii)crcur de Toutes Ics Hussies s'engage, par cettc Conveiilion, h ciider aux fttata-Unis, imniediate- mcnt npri'S IVclmnii^'' les mtidcntiuns, tout le tcrritoiro avcc droit de souvcniiii(,'t<5 actuc!)' inent possedi? par Sa Majestt! sur le CiPiitiiu'iit d'Anitrique aiu.^'i nim les ilea contigues, lo dit territoire ilanl conipris daus les liniites gc^ogniphiciues ci-dessous iiidiipK^ea, savoir : la liinite orienliile est la ligiiu de demarcation eiitre les possessions Kusses et lirilanniiines dans rAnu'riipio du Nord, ninsi qu'clle est c'talilic ]iar la Convention cunclue entro lu Kussie et la Giande-lJrelagno, le 10 (U'8) Fevrier, 1825, et d(5iinie dans les U-rnies suivants dcs Articles III et IV tie la dite Convention ; — "'A partir du iiniiit le plus meridional de I'lle dite Prince of Wales, lei|uel point se trouve sous le paralli'le du rA° 40' de latitude nord, et eiitre le Kil* et le 133* di'gre de. longitude oucst (incridien de Urecnwicli), la dite lignc reinontero au nord le long de la posso dite Portland Channel, jusiju'au point de la terre fernie, oi\ elle atteint le 50* degri5 de latitude nord ; de ce dernier point la ligne de demarcation suivni la Crete dcs niontagues situees parnllMement lY la cute jus(iu'au point d'intei-section du 141" dcgni do longitude ouest (nu'nie nieridien); et finalemcnt, du dit partout oil la cn'tc des montagiU'S qui s'lilcndont dans \ine direction parollele i\ la cote, depuis le 5ti' degrt^ do latitude nord au point d'intersection du 141* degre de longitude ouest se trouverait A la di.stance de plus de 10 lieues marines de I'occan, la liniile ontre Ics [6.7] 2 C n\ 98 possessions Britanniqucs et la lisivre de cdte nientionude ci-dessus coiuiiie devanl nppiirteuir it la Hussiu' (c'est-i- dire, la li;..ite des possessions cidees pur cette Conven- tion) : ' sera forinee par uno ligiic panilU'li' aux siuu(isit^ A VvvfcXi/.irr fact, the Aleutian A. hipelago in cluded i n l^, its goBOPnl signification .islands which were on the Asiatic side of Behring Sea, and far from the Island of Attn, the westernmost island of tho Aleutian group intended to be ceded. I'u. - fiiat-uu.iiUon e ). From l]ut dlVSiFgity in usage in respect to the name of the Aleutian Islands, though these aro now commonly considered to end to the west- ward at Attou Island, it is obvious that, in defining a general boundary between the Russian and United States' possessions, it might have given rise to grave subsequent doubts and questions to have stated merely that the whole of the Aleutian Islands belonged to the United States. Neither would this have covered the case offered by the various scattered islands to the north of the Aleutian eJiain proper, while to have enumerated the various islands which often appeared and still sometimes appear on difiFcrent Maps under alternative names would have been perplexing and imsatisfactorj', from the very great number of these to be found in and about Bering Sea. It was thus entirely natural to define conven- tionally a general line of di\ision fixed by agfiu- nnrt^ianJ .jniit'""' i I" ^ drawn as acconling to the best published Maps to avoid touclung any- known islands. . As showing that in Wipulating for a geo- graphical limit of this clmracter Russia did not [607] \ 2D i'Vu U/t 102 r- taki' ;ui unnecessary step, even as regards the Arelic Oecaii, the action of Captain Jlijopcr, of the Initcd States' revenue cutter " Cor vin," in IHSl, may bo cWeA, lEavinf? readied i\^\ islami known as Wranjjcll Land, to the uort i of the Sibeiian coast, and within Hh? limit** i>i tttt! ' '^^-^^ C«sw«»ti, lie went 1hrouf;h the form of iioistini; and s.'ilutinu' th(! llai^ of the United Statis there, and rechristcned i\\v island " \ew Coiinnl)ia'' (Ci'iii/c of the " Corwin," 1881). ' 'liie foUoAvins^ is from the "Coast Pilot" of ISO!):— •' 'I'lii' I'lillfmiiit; list of tlio ','('i)i;ra|iliii'iil iiiiMitioii nf Appendix No. 9. ].liioc-, iniMcilHilly \ii)uii Ww mnaX of Alaska, lia.s been Uni"''! States' .,,,.,, r ,, ,, ... , ., Coint Survey. cdiiiinleil iliiclly irdiii l(iis.siaii uiitlKintii'H. In Us prejiara- po„t V'\\o\ of ticiii the inttuilioii was tn iiitrodiiu; all dulcriiiiniilioiis <>f Alaska 1869. I"isitiiiii that ajijieanMl to liavo lieoii iiiaile \ " is the more ohvious, when it is borne jn mind that many of the islands in and about Behring Sea arc even at the present day very 0^ 103 ■ 1 * t • imperfectly surveyed, and more or less uncertain in position. Thus, i!vi;a the latest United States' Clmrt/* of what arc now known as tlio Aleutian Islands (No. (iS, piihlishi'd in 1^01) \m tit t lit r d chiefly tH to the "North I'acitic Survcyins,' Expedition" under Rogers, which was carried out in the schooner " Fcnimoro Cooper " in 1855. ^ ^B,--^^ sheet 1 of thu 3Jap juit reliirrMil l.»r[r'inl)racTng ^'^« . the western part of the Aleutian Islands), such C'{tit\j\ notes as the following are found : — •'Till' klcst Ru3.siaii Charts plmu lloulilyr Isluiul lU mili:3 due smith of tlio jicsitiou f,'iven iicre, which is from u (UaormiiiatiuM hy .Sumiicr's iiiethiul. "Tho h)W ishiiuls tictwcKii (iiiroloi iin4 Smilukli, cx- LejititiR tlio west point of Unul','a, are from I{us.^ian aiithoritins, wliich, howovur, arc widely discrepant." Similarly, in the corresponding liritish Ad- miralty Chart (No. 1501 ) jiuhlisluHl in 1890 wc find the remark :— " Mostly from old and imperfeel British, Kussiiiii, and American surveys." Even on tiic latest Chart of Beriui,' Sea, liuhlished by the United States in I'-V.)!, a small islet is shown north of St. Matthew Island, near the centre of the sea, which does not appear on the special Map of St. ]\Iatthcw Island published in IS75, and \v-hicli could not be found in 1891. That the line drawn throu!,'h Beliring Sea between Russian and United States' possessions was thus intended and regarded merely as a ready and dctinite mode of d afiu i* H ,' which of the numerous islands in a partially explored sea should belong to either Power, is further shown by a conalderation of the northern portion of the same line, which is that first defined in tin; Treaty. From the initial point in Rehring Strait, which is carefully described, the "limite ocei- dentalc " of territories ceded to the United States is said to •' remonte en ligne ,cte, sans limita- tion, vers le nord, jusijuTi ce ([u'elle se perd dans la M' 1' Glacialc," or in the United States' otfici;!! iiislation " iiroeceds due uortli without, liuiiiaiiou into the same Frozen Ocean." The "geographical limit" in this part of its length runs through an ocean which iiad at no time been surrounded by Russian territory, and which had never been claimed :i« rc'^crved by 104 Hussia in any way^ »»tl to which, on the contrary, special stipulations for access had been made in connection with the Anglo-E-ussian Convention of lb25, and which since 1848 or 181() has been frequented by whalers and walrus-hunters of various nations, while no single fur-seal has (-ver been found within it. It is therefore very cleai" that tiu? geographical limit thus projected could have been intended only to define the ownership of such islands, if any, as might subsequently be discovei'cd in this imperfectly explored ocean ; and when, tlierefore, in the order of the Treaty, it ' .3 proceeded to define the course of " the same ireslpin limit " from the initial point to the southward and westward across Bebring Sea, it is obvious that it continued to possess the same I) liave a md there H(tild bare md stipulate character and value. If intendcfl different signiDeation in Bebring S to partition dominion over waters, i^ been necessary to specially mention this circumstance, which was not dine. It is therefore contended that the Treaty does not purport cith(T expressly or by implication to convey any " dominion in the waters of Bebring Sea," and^ -tf- an y dominion -hv Btwt- watoro paaa e d Iw^ said Treaty it mu s t hftv o pu s ned as an ine i d pnt or appurtenant to ^£ territory ( m thcKtinutiuL'u t and -iii. the aUjaoeut i(«laads according to"i;jtcr- national law and the practice of nations Russia's rights " as to jurisdiction and as to the seal fisheries in nebring Sea," referred to in the Point of the Case under consideration, were such as became hers according to international ' law, llMuiii liuii' iilrihiLs to the possession of the islands and other territory situated in this sea. Admitting, in the consideration of this question, that Russia's title before 1867 was (;omploto to the coast of Bebring Sea and to the islands _^J within those waters,v an examination of the principles of iiiteruational law and the practice of nations will show that her jurisdictif)n was confined to the distance of 1 marine league or 3 miles from iter shores. The principle of the marine league was in 1875 applied, by Mr. Fish, the Secretary of State, to the Avaters now in question. Mr. Fish wrote to the United States' Legation in Russia on the 1st December, 1875 : — "There was reason to ho]ie Diat tlio i)niclice, whieli for- Wharton's merly prevailed willi puwerl'ul nations, of regarding seas " I^'K"'!" P- 106| and linys, usually of largo e.\tent near their coast, ns closed '1^ 106 to any foreign comniorce or fishery not spooi.iUy lii'pnsed by them, ^va3, witliout exception, a pretension ol' the past, and tliat no nation would claim exemption from the general rule of piblic law, which limits its maritimi' juris- diction to 1 mariiio lca,c;ue from its coast. We should par- ticularly regret if llussia should insist ou any sucli preten- sion," Wheaton's " Inter- national Law," vol. i, sec. 32, pp. 100 and 109. Ibid., pp. 2-100. /. <-. r? \ Ibid., p. 101. Ill view of the following reference to this sub- ject, from the brief of the United States in the case of tlic " Thornton " in 1880, already referred to, it is not supposed that the general doctrine will be disputed : — ■' Conceruint; the doctrine of international law esta- blishing what is known a.s the marine league belt, wliich extends the jurisdiction of a nation into adjacent seas for . a dislauee of 1 marine league or 3 miles from its shores, and following all the indentation.s and sinuosities of its coast, there is at this day no room for discussion. It must be accepted as the settled law of nations. It is sustained by the highest authorities, law-writers and juriats. It has been sanctioned by the United States since the foundation of the Oovernment. It was alliruied by Mr. .lell'erson. Secretary of State, as early as 1793, and has been re- aftirmed by his successors— Mr. Pickering, in 1700 ;• Mr. Madison, in 1807 ; Mr. Webster, in 1842 ; Mr. Buchanan, in. 1849 ; Mr. Seward, in 1862, 1863, and 1804; Mr. Fish, in 1875 ; Mr. Evarts, in 1879 and 1881 ; and Jlr. Bayard, in 1886. "Sanctioned thus by an unbroken line of precedents covering the first century of our national existence, the United States would not ab.indon this doctrine if they could ; they could not if they would." And again : — " It thus appears that our Govennuent asserted this doctrine in its infancy. It was announced Viy Mr, Jefferson as S(!cretary of State and by the Attorney-General in 1793, Mr. rickering, .Secretary of State in 1796, re-.- affirms it in his letter to the Governor of Virginia, in the following language : ' Our jurisdiction has been lixeJ to extend 3 geographical nules from our shores, with the exception xclnsive, snr le.s.iuels I'fiial a acquis (l.ar ..ccu- pation on convention) et continue la .sonverainete. S.ait de ce nona)re; (1) les parties ,le loo''an qui avoisituMit le territoire .■ontine.ntal .le I'Ktat, du moins, d'aprcs I'Mpinion presque gdneralcment adoptee, antant qu'elles so trouvenfc sous la portde dn canon qui scrait plac(5 snr le rivage ; (2) les parties de loccau (pii a'ctendeut dans le territoire 108 cnntinental de I'Etat, si dies peuvent fitre gouvernccs par le canon ties deux bords, ou quo I'entree seulenient en pout ("tio di'fondiio aux vaisseaux (jiolfos, l)nio3, ct cales) ; (3) los di'troits (jui si'jjiiront deux continents, (^t ((ui i';,'alo- nicnl .sunt sous la portoo dii canon jilacc Kur lo rivago, rm dont rontrco tt la sortie peuvent ctro dOl'onduos (detroit, canal, liosphore, sonde). Sont encore du monie iiombre ; (4) Il'S golfos, di'troits, et mors avnisinant lo tciTitoiro continental d'un fitat, lu.sfjnel.s, quoifiu'ils no sont piLS cnticrement sons la porteo du canon, sont ncanmoins rcconnus par dauires I'ui.ssanccs comme raer fcrnioe; c'ost-iVdirt', toninie soumis a une domination, et, par con- S(!qucnt, inaccos.siMos aux vai.sieaux ctrangers qui n'ont point obtenii la perniission d'y iiaviguer." Ortolan, in Ills " Diplomatic dc la Mor," pp. 115, 153 (edition 18G1), say.s : — " On doit vaii,L;cr sur la inerne lifjnc iiu(^ lades, ot les portcs, Ics yolfes, et les bales, et tons les enfoncemonts connus sous d'autres d^'noniinations, lorsi|U(' ces cnlbnce- inents, fnrnn's par lers Icnrs d'un nii'mi! foat, no d('])assent pas n\ largeur la controversy. This is dated the 17tli December, 1890. Some light appears there to be thrown upon the subj('ct i)y the wording of the fifth question which the President, through Mr. Blaine, therein sugg(;sts for decision, l)ut which was not accepted in that form. The question is as follows : — " What are now thi^ rights of the United States as to the fur- seal iishcries in tlie waters of Behring sea ontside the ordinary territorial limits ; whether such riglits grow out of the cession l)y Russia of any special rights or juris- diction held hy her in such fisheries or in the waters of Beliring Sea, or tnU of llu: oiencrship of the hrccding islands and Ih- haliils of the scats in rcaisfiwj thilhur and narimj thiir yoviiij tken-on and (joimj out from Ike islands for fml, or out oj any other fad or incident connected vnth t/n rchi- tion of these seal fisheries to the tcrrilorial possessions of the United SltMs ?" It is furiiher slated in a later part of this despatch that the Government of the United States— " Do not lark abundant authority, according to the ablest exponents of international law, for holding a siuall section the liohring Sea for tla^ protection of tho fur-seals. Con- trolling a comparatively restricted area of water for that one spocilic purpose is by no means the ecpiivalent of "Jj'l'-''^'"n 111" SL'a, or any part thereof, mare clunsum.' 607] 2 G lU What this "small section" of Bchring Sea means is more fully explained in a l\)regoing portion of the despatch, as follows : — "Tlie President will iisk the Ooveriunent of Great Britain to agree to the iliHtaiice of 20 luariue lengues, within wliiuh no ship shall hover around the islands of St. Paul and St. George from the IHtli May to the 10th October in each year. This will prove an effective mode of preserving the seal fi.sheries for the use of the civilized world The United States desires only sucli control over a limited extent of the waters in the Pcliring Sea for a part of each year as will be sufficient to insure the pro- tection of the fur-seal fisheries." In the (lucstiou as now propounded for decision by arbitration there appears, however, to be an iindc-rlying claim to some exceptional if not absolute right of property in the fur-seals in- dividually or collectively which cannot be admitted. It is scarcely conceivable that any Government would endeavour to maintain such a jjroposition of ownership in tlie fur-seal as has been advanced forFinst:inc(' by ^Ir. Elliott, but the mere fact that such a ciium has bi„:a even infoiinally stated, renders it necessary to guard against any miscoucc])tiou in this r(>gard. Mr. Elliott, in a foot-note to p. 157 of his Census Report, 1891, writes as follows : — 'Tlie fiir-se.'il.s of Alaska, collectively and indiviihially are the prii])(!rty of the general Government, and for their special and sole jnotectioM the e.\tra legishuion of July 1870 WU.S designedly enacted. Everj' fur-seal playing iu the waters of liehring Sea around about the I'ribyloff Islands, no matter if found so doing 100 miles away from those rookeries, belongs there, lins been begotten and born thereon, and is the animal that tlie explicit shield i>f tho law piote(!ts ; no legal so])hism or (piibble can cloud the whole tmth of my statement. Construe the law otlu!.- wise, th(.'n a marine licence of hunting beyond 1 marine league (I! miles) from tlie .shores of the I'ribyloll' Islands would soon raise up .such a nuiltitudinus fleet that its cruizing could not fail, in a few short years, in .so hara.s.sing and irritating the lueediiig-seals as to cause their with- drawal from the Alaskan rookeries, and probable retreat to tiiose of Itussia, a source of nndouhted Muscovite delight and emolument, and of corresponding shame and loss to us." Anotluir later, but again unoHicial, exponent of the theory of " property " in fur-seals is found in the Tlonourablo Mr. E. J. Phelps, who, in an article on the general subject contributed to a 115 popular mai,'a/.inc, scoins inclined to take irnnuul similar to that adopted l)y Mr. Elliott, though less definitely. Speaking of right on the liii,'h sons, ho says :— " It never aulhorizes injury to the property or just 'ij^l'ts of otliers, which are as sacreil at sea as on shore. This colony of seals, iiiakin<; tlieir home on American soil, and unahle to exist willioiit a lionie uijon soni.: -oil, 1 clong to tlie pro]irietors of the soil, and aiv a part of their pviipcrty, and do not lose this nuality hy passing; froii! one part of the territory to anothei' in a re^'ular and jieriodical migration necessary to their life, even llioiigh in making it they pass temporarily through water tliat is more than 3 miles from land." Other passages which may he cited Irom Mr. Phelps article to the same effect an- : — " The simple question presented is wheiher the United States has a right to protect its property and the business of its people from the wanton and barbarous distruction liy foreigners whieli it has made criminal by Act of Cougre.s.s. • • • • " These aniraals, as has been pointed out, are a large and valuable property, an established and ))roper source of public and private revenue and of useful industry. ' Still further, in reviewing hriefly the general aspects of the question in his opening remarks, he writes : — " The Alaskan I'ur-seal lishery is the most important in the world. It was a material element in the value of that province whim purchased by the I'nited States from Ku.ssia, at a heavy post, and one of tlie princijial induce- ments upon which the purchase was made. " The context of the first quoted passages show that the theoiy of i)roperty is based, in so far as it is propounded hy Mr. Phelps, on riuu'.amenlally erroneous conceptions of the habits and migra- tions of the fur-seals, it is stated, for instance, that the seal — " Is not a denizen o' the sea .dnne, 4ill /<'.« a ' lainikrcr nf Ihc sea.' .... It has a (ixed habitation on the Alaskan shoiv, J'rriiii ii:liicli it mter lonij departu It is the liabit of this colony of seals to cross through the sea duvinij brcetlin;/ liim' to the I'ribyhilf Islaiul.'! In mahiiiy the paasaijejhc satU Htv>.«.s((//7^ cmsii a portion ■ it r>ihring Sea which is more tlian :l miles out.side of either sliore. .... It has liecn Ibe custom for several years past for certain Canadian vessels litted out for the jnirpose to 1 1 i IIG <>nlcrrqit the mds on this jmsxniic wliile niUsidi' tlio :"!-iiiil(> line, 1111(1 to sliool lli(!ni ill llip watm." Fr.)m iill wliifli it would appcfir to be believed that ilio I'ur-soal 'spends most of its time ashore on tlic breeding islands, and that it leaves terri- torial waters somowliere at the breeding season merely to cross a certain extent of open sea. These and otlier points which seem to be arrived in tliis ])Mrtienlar contention are more fully dealt with later. J? The point raised in tlie last citation from Mr. Phelps' article appc'ars, however, to be new, and may be disjiosed of at once. So far from the existnnee of the fur-seal having been a prin- cipal inducement for the purchase of Alaska by the United States, it is actually the fact that there is a singular and well-nigli complete absence of allusion to the arrival in all the pleas urged at the time in favour of this fur-close. Mr. Elliott is particularly definite on this point. In his OfTieial Report pu])lished in con- nection \\itii the Tenth Census of the United States (pp. G8, fiO), he writes :— "Stuanoe Ionoranck (pf tiieu: Valuk IN' 18i'p7.— Coii- siduriiifj tlmt this return [that obtained from sciil-skiiis] is the only one niiide 1)y tliu Government of Alaska since its transfer, and tliat it was never taken ii:lo account at first by the most ardent advocates of tlie purcliase of Jiussian America, it is in itself highly creditable and interestinj,' ; to Senator Sumner the friends of the acquisi- tion of lliis territory in 1807 delofjated the task of making the iirinoip.il argument in its favour. KverylhinL; that was written in strange tongues was carefully translated fur tli(^ choice bits of mention which could be found of Alaska's value. Hence hia speech on the subject possesses this interest ; it is thi! embodiment of everything that could 1)S scraped tog(!llier having the faintest shadow of authenticity, by all the eager friends of the purchase, which gave the least idea of any valu.djle natural resources in Alaska; therefore, when, in summing all this up, h.e makes no reference whatever to tlie seal islands, or to the fur-seal itself, the extraordinary ignorance at home ami .abroad relative lu the I'ribyloff Islands can be well .appre- ciated." The passage cited from Elliott, at least, lias, however, the merit of formulating a definite claim with reference to property in seals, but merely to state such a claim in plain terms is to show its untenable char.aeter, for the assumption is made that the Unitc;l States can, by its indi- Tidual action, and under cover of a domestic law. 117 control tho rights of other Powers upon the high seas Tho chiim, it is true, is in this inst;uic'e made only in respect to seals; but any such principle once acknowledged might, on very similar grounds, ho extended to other fisheries, and more particularly to the taking of salmon or other fishes at sea, tl\c natural hrceding-j)laces of which are found in rivers, and thus witliin recognized territorial limits. Apart from tho ordinary limits of marine jurisdiction attaching to coast-lines, or to some exceptional claim to arcal jurisdiction over some tract of sea, however limited or houndca, there is ;il)solutely uo pre- cedent for the assumption of the right to property in a free-swimming animal, t^c course of which is uncontrolled, and not controllable by man. (Jn this point, it is submitted, that Lord Salisbury's statement of the law contained in his letter to Sir Julian Pauncef. e of the 22nd :May, 1891, is entirely conclusive, lie writ'',s : — " Fur-Sfuls are indisputalily animals fa-n- natuiv. and these liave lieeii universally regarded by jurists as ns nuUUis until they are caught; no person, therefore, can have property in them until he has actually reduced them into possession by capture." If the seals arc pro])erty, why are they so only in IJchring SeJi ? Outside liehring Sea citixcns of the United States have pursued the seals for years as Canadians have done, and are doing, without let or hindrance, and with the full knowledge and approval of the United States' Government. The proposition mi .t on one side of the passes of the Aleutians a seal is the property of the United States, and on the other it is the property of any man who can catch it, can only he sup- ported on the ground that the Behring Sea is the domain of the United States, in other words, a mare clausum J and on the grounds set forth by Mr. Dana, it would not necessarily follow that the United States had the right to prohibit other nations from engaging in the fishery. It is, moreover, submitted that if seals before capture constitute special property, the larceny of a seal on the high seas by a vessel not be- longing to the United States is not cognizable by the United States' Courts, and that any claim to protection of seals outside of territorial jurisdic- tion must involve mare clausum. The remaiuiuj; ]607] 2 B. 118 ground would be, that taking a seal constitutes piracy ! The only known analogous cases in which a I'iglit of property in seals has been doiined or declared is found in the Newfoundland Act, entiiled " An Act to Regulate the taking of, and right of Property in. Seals " (52 Vict., cap. 23). Even hero the enactment applies only to vessels sailing under the Britisli flag. The clause referred to is as follows : — ' I. ti. any actidii or proooiHling tor the recovery of, or ill Illation to, tlie property in seals or seal pelts, killed liy persons eiip;agcd in or prosecuting the seal fishery in steam- vessels grring to seals, it ('Mil lie shown that the (Jnited States lias more than once distinctly asserted the fur-seal fishery to he part of the ocean fishery, even claiming that, unless under exceptional circumstances, it should be free not alone without, but also within, the 3-mile limit. Tlie United States' Government on no occasion since tlie acquisition of tlic I'libyloif Islands in 1807 has attempted to enforce sucli a principle hy legislation or otherwise either on behalf of itself or of its lessees of the islai'ds. Tlie I^aw for the protec'jon of the seal islands has never li.ieii enforced either against vc'ssels of llie TJiiiled States or other countries outside of Beliring Sea, therefore a large part of the year they are found all over the waters of the North Pacific. Prom the ofTicial correspondence it has been made clear that the suggestion embodied in tiiis question is an after thought. ilr. Elliott's contention in respect to " pro- perty " in fur-seals (and apart from liis assumption that such claim may be enforced as against all comers) appears to depend essentially on the statement that all fur-seals found in the North U!) Vuciiic uvo " begottou :ind born " on tlic I'lilnloff Islands, belonging to the United States, and though not equally clearly advanced by Mr. BInine, the contention of the United States' Government to the same effect appeal's also to rest on this or very similar premises. lu opposition to sueli claim, it may be sad (1) that such premises are unsound, and (2) that, even if sound, the conclusions are unwarranted, either in law or on grounds of equity or precedent. 1. The Tribylofl' Islands, upon which all the breeding rookeries belonging to the United States arc situated, are not the only similar brfiediug rookeries in the North Pacific. Those of the Command(;r or Kamandaski Islands (Bering and Copper Islands) were discovered some years earlier by the Eussians, and have ever since been fref[uentcd by large numbers of breeding seals, and have yielded important annual returns of seal-skins. llobben Island, near Saglialicn Island, in tlie Okotsk Sea, has likewise been, ever since its discovery, oitcupied as a bveeding rookery, and large numbers of skins liave been obtained from it, notwithstanding the injurious (^IVects produced by raids upon its shores, which have been chiefly attributable to citizens of the United States. Considerable breeding rookeries like- wise existed on several of the Kurile Ishuids within the territorial jurisdiction of Japan and Russia, and some of these still survive, though in much diminish(>d form, consequent on the effect of raids and illegal and impolitic drstrue- tio'i on the shores of these islands themselves. T* IS moreover certain that tbc fur-seal formerly ■•esorted for breeding purposes to several places situated on the coast of British Columbia, and it is highly probably, if not absolutely <'ertain, that a considerable number of young seals avii still annually brought forth on various outlying parts of this coast. licaving aside, however, all doubtful or rela- tively unimportant cases of existing breeding places, we have the indclitable fact that a large proportion of the whole number of fur-seals frequenting the North Pacific are brought forth on the Commander Islands, still b<>longing to Russia. Thus, iv. "stablisli even a colourable claim to " property '" in any particular seals taken at sea, or to seals thus taken in any defined area, it 120 hecomoj necessary to prove that such seals have hecn brought forth on certain speciticd islands within tlie tei'ritorial jurisdiction of the United States. The onus of proof devolves naturally those working such a claim, and from the very natiu-c of the circumstances such proof is, it is subjnitted, impossible. Any exception to a so general claim, however small, must be considered as sufTicicnt technically to invalidate it, and even if in any particular year it should by some moans be found possible to substantiate the contention involved that all seals met with in the eastern port of the raeific— say, on. t of the 180th meridian — had been born on the Pribylolf Islands, the circumstances of another season, whether those connected with wind or weather, or those resulting from the migratory movements of the food-lishes of the seal, jnight in the following year change the conditions and the ownorsiiip of the seals in any given tract of sea. The opinions already jjublished by those who have given the greatest amount of attention to the habits of the fur-seal of the North Pacific are sufficient to show that there is a general agree- ment in respect to the primd facie probability of interchange and migration of seals between the principal breeding places. It is now generally admitted that the same seals do not return necessarily ov even usually to the same breeding ground year after year. Mr. Elliott quotes an experimoni made by the Hussians, in which 100 youg males were marked, at one locality on St. I'aul island. Xext year some of the seals so marked were inelud(!(l in the catch from " every part of the island." In 1870, again, a similar ex])eriment was made on the same island, and, n-sjiceting the 100 seals then marked, it is said: — "Of tills number, in tlie summer of 1872, when I wns Census Keport. there, the natives found in their driving of 75,000 senla P- ^^• from tlie diH'eient Imuliiig-grouiuls of St. Paul up to the •villiifio lrobably fallowing some" of the latest stragglers. They wander, however, almost at random, and tho majority are destroyed before tho ne.\t spring. This is proved by tho fact that the birds which return in syiring are, as a rule, not more nuraero\is than those which came the preceding spring, where.is those which went away in the autumn were two or three limes as numerous. . • • • " It is assumed by some writers that tho breeding place of a species is to be considered as it. true homo, rather than that to which it retires in winter, but this can hardly be accepted as a rule of universal application." After some further details relating particularly to the food of birds, he adds :— " For the purposes of the study of geographical distribu- tion therefore, we must, except in special cases, consider the true range of a species to comprise all the area which it occupies regularly f porary, ' luiluslries,' the extermination of seals is now being enl'r^l tically pursued in Jlanisli waters. It appears that in tliosc localities where the lithery industry has been ■10. 127 pursued with least success the seals most abound. A seal is seldom seen iu the neighbourhood of Middlefart in the Little Belt, as the fisheruion in tliat neighbourhood are very active in fishing and seal-hunting." " J 11. conimire, on the small Island of llosselo, north of Zealand, one man sent in the heads of no less than 120 seals, wliile anotlier man sent in 40 within the last ten montlis. IJuring this period 810 seals have been killed." It must further be remembered in connoetion with this branch of the subjoct, that whether bred upon the Pribyloff or Commander or other islands, the actual time spent ashore by the seals on such breeding-places, or in their immediate vicinity is but a small part of the year, and that even including the entire time during which the seals of all classes collect in the region of these breeding-places, this represents less than half the cycle of the annual migration. An additional argument in the interests of those claiming some exceptional monopoly in the benefits accruing from the taking of fur-seals upon their breeding-places, is supposed to have been found in insisting on the interests of the .so-called "natives" of the Pribylofi" Islands, which it is maintained must be taken into account. As a matter of fact, however, the I'ribyloiT Islands were uninhabited when dis- covered by the Russians, and a certain number of Aleuts were taken there solely for the purpose of obtaining the necessary labour for killing seals and curing the skins, in the intovosls of the Government or its lessees. The interests of these natives have at no lime breu allowed to conflict with those of the chartered beneficieries of the breeding-islands, and at the present time, the oflicial ligurcs of the Eleventh Census of the United States show that these people, composed partly of the descendants of those orii,'inally deported thither by the old llussian Companies ami iu ])art of more recent importations from the Aleutian Island, number scarcely more than 300 iu all. These inhabitaus of the i'ri])yiolV Islands have, in the course of events, become as a rule either half or three-quarters European in blopd, but unfortunately without attaining a eom- parai)le advancement in knowledge or improve- ment in their modi- of life. Still further, it must be noted tliat tlie regida- tions now imposed prevent the people of the y I I 128 same stock, and often the close relatives of thv inhabitants of the Pribyloff Islands, but who still remain in tlie Aleutian Islands, from killing the fur-seal, oven for food, though such killing must be regarded as among their primitive rights. The Indians of the coast of British Columbia have likewise been accustomed from time im- memorial to hunt the fur-seal, for food and skins. The development of what is now known as " pelagic sealing " has already, by aifording remunerative employment to many of them, materially aided in their advancement, and the money gained by those people actually constitutes a large part of the entire support of most of the Indians inhabiting the west coast of Vancouver Island, numbering several thousands. Tin; number of Indian hunters of British Columbia alone, at the present time engaged in pelagic sealing is about 400, and it is estimated that the amount of money gained by these men annually is probably about '10,000 dollars. This does not include the gains made by independent Indian hunters of the British Columbian coast who pursue the fur-seals in their own canoes from its shores, and which cannot be placed at less than 30,000 dollars annually. In so far as native and primitive vested interests in the fur-seal fishery go, therefore, not only are those of the Indians of the British Columbian Coast, together with those of the Makah Indians of the adjacent State of Wash- ington, and that of the autochthonous Aleuts of the chain of the same name, the more direct and legitimate, but quantitatively valued they are much the more important. Yet any claim to exclusive property in seals derived from the possession of the Pribyloff Islands, or from any other circumstances, implies an arbitrary denial of the title of these native peoples to their prescriptive right in hunting this animal 1 The known facts regarding the extraordinary profits derived by the lessees of the Pribyloflf Islands for twenty years or more, together witli the large sums accruing to the United States' Government in the shape of rent and taxes on the skins taken by the lessees, go far toward establishing an assumption against the strictly philanthropic motives which are at the present time prominently advanced. A singular contrast is found to the mode of procedure by the United States respecting seal* "Le Louis," 1816 129 ing, in that adopted by the same power in the case of the mackerel fisheries of the Atlantic. Here, although the use of the engine known as the f/jasse seine threatens tho very existence of these fisheries, tho Government has only cn^ deavoured indirectly to control its own citizens in such use by enacting that no fish taken before a given date may be landed at its ports. If the action taken in Behring Sea is justifiable, surely it would bo equally justifiable and on like grounds to seize vessels found in possession of purse seins anywhere within tho i ackerel fishing area of the Atlantic, It would be sufficient to aflirm that the use of such engines was contra bonos wares, and that action was taken in behalf of the human races. Admitting that, which is stoutly denied, the hunting of seals at sea is as injurious to seal life, as for instance the use of a purse seine is to mackerel fisheries of the Atlantic. Nevertheless, no nation under the principles of law and the practice among nations can, without the con- currence of all interested Powers, interfere with vessels engaged in this pursuit when outside of the ordinary territorial jurisdiction. Upon this point the authorities in the United States and in Great Britain arc quite clear. A iFvench vessel sailed from ]Martiniquc on the 30th January, 181G, destined on a voyage to the coast of Africa and hack, was captured 10 or 12 leagues to the southward of Cape Mesurda, by the "Queen Charlotte's" cutter, and sarried to Sierra Leone. She was proceded against in the Vice-Admiralty Court of that country. It was allogen that tho vessel was fitted out for the purpose of carrying on the African Slave Trade, and that trade had been abolished by the internal laws of France, and by tho Treaty between Groat Britain and Franco. The King's Advocate argued that occasions may [arise when justillable as in present case which is transgression of municipal law and law of nations Traffic In slaves is a crime, and it is duty and right of every nation to prevent crime. Vessels was engaged in Traffic pro- hibited by laws of her own country and contrary to the laws of humanity and justice therefore ought not to be restored to claimint. Sir William Scolt, afterwards Lord Stowcll, [G07] 2 L 180 held, however, that trading in slaves is not a crime by universal law of nations. He observed : — " Noitlicr UiIm Court nor nny other cnii carry its i>rivato approliensions, imlupoudont of law, into its i)ublic judg- ments oil the ([UHlity of actions. It must conform to the judfiment of the law upon that suliji-ct; and, actinji as ii Court in the aihninisti-.ition of law, it connot attriluito criminality to an act where the law imputes none. It must look to the le^'al standard of morality, and upon a question of this nature, that standard must lie lound in the law of nations as fixed and evidenced by fjeneral and ancient and admitted practice, by Treaties and l>y the general tonour of the laws and ordinances and the formal transactions of civilized States. " . . . . ]\Iu(h stress is laid upon a solenni declaration of very cminciut jiersons assembled in Congress, whose rank, hi^;h as it is, is Ijy no means the most respectable foundation (jf llie weight of tlieir opinion that this traftic is contrary to all relij.'iiin and morality. tSre.at as the revevance due to sucli autliorities may lie, they cannot, I ' think, be udmitted to have the force of oveiTuling the estabiislied course of the general law of nations. A country has right to enforce its navigation laws so long as it does not interfere with rights of others — no right, in consequence, to visit and searcli all the apparent vessels of other countries in high seas. " It is said, and with just concern, that if uot permitted in time of peace it will be extremely ditheult to suppress the tmfiic. It will be so, and no man can deny that the suppression, however desiralde and however sought, is attended with enormous difficidtics — dillicullies which liave banied the most zealous endeavours for many years. To every man it must have been evident that without a general and sincere concurrence of all the maritime States in the principh; and in the proper modes of pursuing it, comparatively but little of jiositive good could bo acquired, so far as least as the interests of the victims of this com- were concerned in it ; and to every man who looks to the rival claims of these States, to their established haliits of trnde, to their real or pretended wants, to tl\eir different modes of thinking, and to tlieir real mode of acting upon this jiarticular subject, it must be equally evident that such a concurrence was matter of very dillicult attainment. Hut the dilliculty of the attainment will not legalise measures that are otherwise illegal. To jiress forward to a great principle by breaking through every other great principle that .stands in the way of its estaljlishment ; to force the way to the liberation of Africa by trampling on the independence of other .States in Europe ; in short, to procure an eminent good by means that are unlawful is as little consonant to private morality as to public justice, Obtain the concurrence of other nations, if you can, by 181 appliciition, by romonstrance, by examplo, by every peacc- ftble instrument which man can uiiiplny tu attract the con- sent of man. liul a nation is not justified in assuming riglits tliat do not IjcIomr to lier. merely because she means to apply tliein to a laudaUu purpose, nor in setting out upon a mom' rusade of convorling otlier luitions by acts of unlawful lorco. Nor ia it to be argued that because other nations approve the ultimate purpose, tbey umst, therefore, submit to every measure which any one State or its subjects may inconsiderably adopt for its attainment." " Antelope." 10 Wheaton, 66. Tho Juili^mcnt of tlio Vice-Admiralty Court of Sierra Leone, condemning the Frcncli ship for being employed in the Slave Trade and for forcibly resisting the search of the King of England's cruizers, was reversed. The decision of the Supremo Court of the "United States in the case of the "Antelope" is to the '^ame effect. There Chief Justice Marshall d.livered tho opinion of the Court, holding tliat the Slave Trade, though contrary te the law of nature, was not in conflict with the law of nations : — "No principle of genend Uw is more universally acknowledged than the perfect equ.ility of nations. Russia and Cieneva have equal rights. It results from this equality that no one can rightfully impose a rule on 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 all, can bo divested only Ijy 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 prescribe a nde for others, none can make a law of nations, and this tvaflic remains lawful to those whose Governmouts have not forbidden it. " It it is consistent with the law of nations, it cannot, in itself, be piracy. It can bo made so only by Statute, and the obligation of the Statute cannot transcend the legislative power of the State which may enact it. " If it bo neither repugnant to tho lav/ of nations nor piracy, it is almost superfluous to say in this Court that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has proliil)ited the trade, cannot exist. The Courts of no country execute the penal laws of another, and the course of the American Oovornment on the subject of visitation and search would decide any case in which that right had been exercised by an American crui/er on tlu! vessel of a foreign nation not violating our municipal laws against tho captors. " It follows that a foreign vessel engaged in the African Slave Trade, captured ei)iiblic to interrupt, mole.st, du'.ain, or cajitiu'e any vessels helunging to citizens of thi United States of America, or any jiersona Ijeing citizen.s of those States, engaged in taking seals or whales or any species of fish or marine animals, in any of tlie waters, or on any of the shores or lands, of any or either of the Fiilkliind Islands Tieria del Kuego, Cape Horn, (jr any of the adjacent i.iliinils in t'jo Atlantic Ocean." On the 10th July, 1832, the United States' Charge d'Affaires wrote to tlic same Minister as follows : — " liiit again, if it lie admitted, hypothctically, that the Argentine liepublic did succeed to the entire rights of Spain over these regions, and that when .she succeede'i Spain was po.-isesscd of sovereign rights, the ipicstion is certainly worth examination whether tlie right to e.Nehide American vessels and American citizens from the fisheries there is incident to such a succesainn to sovereignly. " The ocean fisherv is a natina! right, which all nations may enjoy in coniinon. Every interferemo with it hy a foreign Tower is a national wrong. When it is carried on within the maiine league of the coast, which lia.s been designated as the extent of naliunal jtiiisdictinn, ii'ason seems to dictate a resliiction, if, under pretext of carrying on the fisheiv. an evasion of tlui Revenue Laws of the country may rea.sonably be apprehended, or any other serious injury to the Sovereign, of the coast, he has a right to prohibit it; but, lus such pniliibition derogatea from a natural right, the evil to be apiirehended ought to be a real, nut an imaginary one. No such evil can be appre- hended on a desert and uninhabik'd con.st ; therefore, such coasts form no e.-jception to the common right of fishing in the sens adjoining them. All the rea.sniiingnn this -lubjeet [C07j -M :.«ir::..arii:;ys^:v :mKmm:i 13t applies t(i till! lar{;e hays of the Ocean, the entrance to which caiiniit lie ilefeiulcd ; and this i.s the doctrine of Vattel, cha])ter 23, section 201, who expressly cites the Straits of Maiiellini as an instance for the application of the nil''. " . . . . The Treaty concluded between Great Britain and .Spain in 179i), already alluded to, is to bo viewed, in reference to this subject, because both nations, by restricting themselves from forminj,' settlements, evidently intended that the fishery should be left open, both in the waters and on the shores of these islands, ami [x^rfectly free, so that no individual claim for damages, for use of the shores, should ever arise. That case, however, could scarcely occur, for whales are invariably taken at sea, and f^enerally without the marine league ; and seals, on rocks and sandy b ■aelies, incapable nf cultivation. The stipula- tion in the Treaty of 1700 is clearly founded on the right to u.se the unsettled bliores for the juirpose of fishery, and secure its continuance." ^Ir. Robert Grocnliow, Lilirariaii of the Uiiilcd States' Congress, in a series of articles written for "Hart's ^Icreliant.s' Ma:j;a/,ine," in February 1812, on the Falkland Islands, refers to the claim set up by Bueuos Ayres respecting the jurisdiction of the Republic and the application of its laws and regulations, " especially those respecting the seal fishery on the coast.'' Mr. Greenhow says : — " To proceed another step in admissions. Supposing the Argentine I'epublio to liavo really and unquestionably inheriU'il fvom Spain the sovereignty of the territories adjoining it on the south and the contiguous island.s, that Government would still want the right to e.ttend its ' Kegulations respecting the seal fishery ' to the unsettled portions of the coasts of tho>e territories. That right was indeed assumed by .Spain, with many equally unjust, which were enforced so long as other nations did not tind it prudent to contest them. But as the Spanish power waned, other nations claimed their imprescriptible rights ; they insisted on navigating every part of the open sea, and of its unoccupied strait.s and harbours, with such limita- tions only as each might choose to admit by Treaty with another ; and they resorted to the Xorth Pacific coaattt of America for trade and settlement, and to the southernmost shores of the continent lor tlie seal fishery, without regard for the e.\clusive pretensions of Spain to the sovereignty of those regions. Of tin, himdredn oj vessels, nearly all Ami'i'iain, whieh nnnuallij J'rrqutnlcd (lie counts and seas above mentioned after 187i), not one was captured or detained hi/ the ,S/«ni/.sA uiitho, UIrs ; and long before the revolutions in Southern .Vnieriea began the ])rohil.itory Deeiees of the Court of Madrid and of its Governors relative to those ]>Hits of the world had become oh.solotc, and the warnings of its ollicevs were treated as jests. 135 " 'i'lio common ri,i,'lil of all nations to navigate nnd fish in I le open sea and in its indtfunsible straits, and to use thf;ir unsettled shores for temporary purposes, is now admitted amonj:; the principal Muritimo rowers, and the stii>ulation3 iu Treaties on those suljjtcts are intended to prevent disjmtes as to what cousin arc to he '•oii^iikred as unscll/al ; wluit atraits arc indr/tnsUile ; within whd distancr from a settled coast the sea ceases to be open, <£t. " Tlie Goveinments of Spanish American Kepulilics liavo, however, iu miiny instances exhibl'.ed a Etron;^ in dispcisiliun to cunfonii with theses and other such lieguU- tions of national law, though clearly founded on justice and reason, nnd intended clearly for the benefit of llie weak, to which class they all belong." He also refers to the case of tlio " Harriet " as follows :- - " . . . . The President at tlie same time diclareil that the name of the licpublic of Ituenos Ayres ' had been used, to cover with a show of authniity, acts injurious io the commerce of the United Status, and to the property and liberty of their citizens ; for ■which reason he had given oi-dcrs fin the dispatijli of an armed vessel to join the Americaii ~.|uadron iu tlie soutli seas, and aid in affording all lawful i)rulection to the trade of the Union which might be reiiuircd ; and he sliould without delay send a Minii^ter to Buenos Ayres to examine into tlie state of the ciBfumstances, and also of the claim set up by tliat Gnvernment Iu the Falkland Inlands. " . . . . The question had, however, bot;ome more com- jdicttted before tlie arrival of Mr. Haylies at Buenos Ayres. "The 'Lexington' reached lieikeley Sound on the 28t,li December, and lay at tin: entnr.ico, during a severe gttle, until the .'Jlst, when she went u\i and anchored in froiil of the harbour of Soledad, Boats were immediately sent a.shore with armed .«camen and marines, who made prisoners of Brisbane, Metcalf. and some other persons. and sent them on board the .shij> : the cannon mounted before the place were at the same time .spiked, some of the arms and ammunition were destroyed, and the .seal-skins and other articles ttikt ./ from the ' Harriett ' and ' Superior ' were removed from the warehouses, and [daced in the schooner ' Dash,' which carried them to the l.'nited StaU-s. Captain Duncan then gave notice to the inliabitanis that the seal (isheiy on lliose coasts wits in future tu be free to all Americans; and that the eaplure of any vessel of the United States would be rei{»rded as au act of piracy; ond having aflixed a Dechiration in writing to that effect on the tlovernmentdiouse, he took his departure, on the _'2nd .Tanuarw, 1 -.'li, carrying with him in the ' l.exiiigfoM ' Brisbane ami six other pei-sous as piismiors, with many of the negroes ond setthi-s as passengers." 'Die [iriiieiple sug:i;es(c(l in tlio (jiicstion lias been stoadily ijjnorcd liy all the I'mvers. t;';:.^-; 186 The Greenland seal-fishery was prosecuted from Dundee and Peterhead in Great Britain. Norwar was niueh interested. In 1874 the Swedisii Government suf^gested to Great Britain that some international arrange- ment mii,'ht probably be attempted with a view of imposinfj rcatrietive regulations to remedy the evil attending the practice of hunters. I'arties interested in sealing, both in Great Britain and Norway, were at once consulted, and an Act (" Seal Fishery Act, 1875 ") was passed empowering Her Majesty the Queen by Order in Council to fix a close season within an area between G7" and 75" north latitude and 5° east and 17° west of Greenwich. Representations were then made, by Great Britain to foreign countries which might bo interested, with a view of insuring reciprocal legislation on their part. In 1875 the Governments chiefly interested, Norway, Germany, ITolland, and Sweden, ex- pressed a willingness to provide the necessary legislation. Prom other Governments Great Britain re- ceived favourable replies, but from that of the United States the answer was as follows, and no other action was taken by that country. " Department of State, Waskiiujton, "Sir, " Orfofer 1, 1875. " Eefeiring to your nolo ot tho lOlh August and its accoinpiinimtnts in relation to an Act of Parliament pro- viding for the cstabli.slinient of a close time for seal fishing in the waters adjacent to the ca.stern coast of Greenland, I have to tliank you for the information, and liave the honour to inform you that after consultation with tlio Secretary of the Treasury, it is tlie opinion ot the Treasury, as well as of this Departmint, tliat the questions suggested in your note should be submitted to the ilttontion of Congress.* '• 1 lia-, e, &c, (.Signed) "1I\^^LT0^• Fisn. •• The Eight Honourable " Sir E. Thornton, K.C.B." An Order in Council in 1870 was passed in Great Britain so far as B.vitish subjects were concerned, but was revoked on ascertaining no action could be taken in Norway in that year. By March 1877 the Governments of Norway, • There is nolliing to tliow that this nag ever dono. 187 Kccorl of ilifl I'rocieilin;,'* of Ilalifai I'ishi'rics Coin'Mi-^Hion 1877, \i 259. Swoden, Gonnany, and lli-lliind liml all taken similar lei,'islativ(! action to Uiatot Great Britain. liilSTO Russia imposed similar restriction on licr own s\i!)jects. Mr. 11. il. Dana, jun., in his speech on helialf of tlio United States before the Halifax Fisheiics Commission in 1877, says : — " Thi^ ri'^lit to fish in tlic .sua is in it.s nuture nut real, U.S 111,, ooninion kw lias it, nor immovablo, as termed by the rivil law, l.nt ii.'V.sonal. It is a liberty. It is a frauohiso or a faculty. It is not proliurty pertaining' to or onneeted witii thfi Imiil. It i.s iiieorporeal ; it is abori,^'inal. The rij?ht of lishin-, (Iroppin- line or net into the sea, to draw from it the inean.s of sustenance, is as ohl na the human race, ami the limits that have been set aliout it have lieen set about it in recent and modern limes, and wlierever tlie tislierman is excluded a rea.son for excluding him should always lie given. I speak of the free-swiniraiug tish of the ocean, followed by the fishermen through the deep sea, not of the crustaceous animals, or of any of those that connect themselves with the soO under tlie sea or adjacent to the sea. nor do I speak of any fishing which requires posses- sion of the laud or anv touching or troubling the bottom of the sea. 1 speak of the deep-sea lishermen who sad over the higli seas pursuing the free-swimming tish of the high seas. Against them it is a .piestion not of admission, but of e>:clusion. Tliese fish are not property. Nobody owns them. They come we kno«- noi whence, and go we know not whither. » • • • " They are no man's projierly ; they belong by right cf nature to those who take them, and every man may take them who can." Trcitv, Septumlicr ,10, 1800, Fiance lad UniU'd Stales, American Slate I'apers, Foreign Relations, vol. ii, V. O., p. 295. So, in 1800, the United States joined France in a declaration that the whale and seal fisheries were free in every (iiiarter of the globe. [607] aN