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THE difTcrenccrt iMjtwwn Great, Britain and tho United State's of Amoricu, tho vubjcct of this Arbitration, arisn out of claims by tho United Htatcs of Am'»nca to limit ond intorfcro with British resscbi fishing in tiio waters uf Btthring Sea otlior than the territorial waters thereof. Priw to the year 188« Britisii ves,wls liad, in common with tho vt^tseis of tho United States and those of other uationH, navigated and fished in tho non-territorial waters of Behring Sea without interference. In 1886 tho British wihooner " Thornton " was arrested when fishing 70 miles south-east of St. George Island, the nearest land. The vessel ^vas liltelled in tho United States' District Court of Alaska by tho District Attorney, the charge formulated being that tho rcssci was "found engaged in killing fur-seals within the limits of Alaska Territory and in the waters thereof, in violation of Section 1056 of the Itovifu^ Statutes of tho United States." .TUq*. vessel was condemned, and the master ; •'■., '"idAd.mata jtft{{iisttivMl and fined. •:•" ' XStp •Jftritisli'helMKjners "Carolena" and"On- A«^.'' wvri)«ei;ip44t tho same time when fishing iiindoksamilht circimiltancc" tad all those vessels wore subsequently ocndemned by tho District Court. Tho Judge (in summing up the case of the "Thornton") ruled that the Law above men- mentioned applied to all tho waters of Behring Sea cast of 193" of west longitude. Certain other vessels wem also subsoriuontly seized in non-territorial waters, and tho fishing of British vessels interfered u ith under the cireum- stonccs hereinafter stated. Great Britain protested against this action on the part of tho United States, and nego- tiations took place, which eventually resulted [644] B i^'i-S u ■ G 152907 i? in tho Treaty and CJonrention entered into at Tmty md Con* Washington on the 29th February and the 18th '•»"«» "' ""'• April, 1802. Tha Treaty is as follows :— 'Hor Migeitjr tho Queen of the United Kingdom of Great Uritain and Ireland and tho Uuitou States of America, l)cing denirous to provide for an amicable settle- ment of tlie quoAtions which have arisen between their reapcctivu Guvnrnmcnts concerning the jurisdictional rights of tho United States in the waters of Dehring Sea, and concerning also tho {irescrvation of the fur-seal in or habitually resorting to tlio said sea, and tho rights of the citizens and subjects of cither country as regards the taking of fur-seal in or Imbiiually resorting to the said waters, have resulvcd to submit to arbitration the questions involveeyoud tho three months .in this Article provided, shall be allowed. " If in the case submitted to the Arbitrators either party \1 ■b'^ll hari tpocifled or alloen aihluced us ovitlonoe, giving in each inatanoo notice thereof within thirty daya after delivery vf tba Caae ; and tho original or copy ao rci|uoato«l aliall be delivered aa aoou as nmy W', and within a period not exceeding forty day* aft«r receipt of notice. -AIITICLK V. "It sliall be the duty of the Agent of each party, within one month after the expiration of the time limited for tho dulivcr}' o.' the count«'r cose on Iwth sides, to dolivur in duplicate to oarh of the said Arbitrators and to the Agent of the other party a printed argument showing tho points and referring to tho evidence upon which his Oovemnioiit rulics, and either imrty may also support the same before tho Arbitrators by oral argument of ccmnsel ; and the Arbitrators nmy, if they desire further elucidation with regard to any i>oint, re(|iiire a written or printed statement or argument, or oral argument by counsol, upon it ; but ' such case tho other porty sholl be entitled to reply ei^ ur orally or in writing, as the uas«< may ba "ARTICLK VI. " In deciding tho matters submitted to the Arbitratora, Questions for tbe it is agreed tliot tho following five poiula shall be sub- di«l«ioB of tbe mittcd to them, in order that their award nhall embrace a distinct decision upon each of said five points, to wit :— " 1. What exclusive jurisdiction in the sea now known as tho lichring Sea, and what excliuivo rights in the seal flshcrieti therein, did Itusnia ositert nnd exercise prior and up to the timo of tin; cession of Alaska to the United States ? " 2. How far were tliCRo claims of jurisdiction as to the seal fisheries recognized and conceded by Ureat Driluin ? " 3, Was tho body of water now known as tho Behring Sea included in tho phroso ' Tacifie Ocean,' as used in the Treaty of 182G between (>it>at Hritain &nd Itussia; and what rights, if any, in tho liehring Sea, were hold and exclusively exercised by Itussia after said Treaty ? * 4. Did not all tho rights of ICussia as to jurisdiction, and 08 to tbe seal fisheries in Behring Sea oast of tbe water boundary, in the Treaty between tho United States and Bussia of the 30th &farch, 1867, ituss unimpaired to the United States under that Treaty ? " 5. Has the United States any right, and, if so, what rig'it, of protection or proix^rty in tho fur-scais frequenting the islands of tho United States in Bohring Sea when suob seals are found outside the ordinary S-mile limit 7 " ARTICLE VIL " If the determination of tiie foregoing questions oa to the exoloiive jurisdiction of the United States shall leave Uio ftibjfict in «uch potition that tlia conourroDoo of Gnat Britain ix noceunry to thn citalthaliiiiout of Rof^ilatiou for liio proiHir protection anil proHervatiou «( iho fur-wal in, or littbiluully renoriinK to, tlio Ik-iiring .Sia, Uio Arbi- tr»ion ihall tlicn dotcrmino what concurrent llogulalioni onUido the juriadictional liniita of tho respective (lovorn- menta art- ncccaeary, and over what vrntot* mich Iloj^iila- tions ibuuld ex end, and to aid uicrn in that dvioniiiuation, Uio IU!|)ort of n .Inint Commission, to Iw aptminlud by tho reepcctivo riorommonUi, ohall lio laid before tlieni, with ■nob other evidemo aa cither Qovcmment may Hul>mit "The High CoDtmcting I'nrtiefl furthonnoru agno to oo-oporato in accuring the adhesion of other rower* to ■ucb l%ni1alioiu. "ARTICLK VIII. " Tlio lli«ii Contracting Partica liaving found thonisc^vcs unablo to agree upon n reference whicli sliall imluthj the .{ucatinn of the liability of each for the inj\irie.i alleged to have l)eon sustained by tho other, or by its ciiizcni, in connection with the claims presonton which they may be tiuuble to agree. "These licporla shall uot bo made public until they ■hall bo submitted to tlio Arbitrators, or it shall apjiear that tho contingency of their being used by the Arbitrators cannot arise •■ABTICLE X. "Each Govcmmont shall pay the expenses of its members of the Joint Commission iu the investigation referred to in tho precetliug ArUcle. 1,644.] 1/ ■ ( i mtmi mifi^^mifm^ i "ARTICLE XI. " The docisioD of the Tribunal shall, if possible, bo made vitliin three months from the close of the argument on both sides. " It shall bo made in writing and dated, and shall be signed by the Arbitmtora who may assent to it. " The decision shall bo in duplicate, one copy whereof shall bo delivered to the Agent of Great Ilritoin for hia Government, and the other copy shall be delivered to the Agent of the United States for his Government - ARTICLE XIL " Each Govcmroent shall pay its own Agent, and pro- vide for the proper remuneration of the counsel employed by it and of the Arbitrators appointed by it, ond for the expense uf pre])aring and submitting its cose to the Tribunal. All other expenses connected with the Arbitra- tion shall be defrayed by the two Governmorts in equal moieties. "ARTICLE XIIL " The Arbitrators shall keep an accurate record of their proceedings, and may appoint and employ the necessaiy officers to assist them. " ARTICLE XIV. " The High Contracting Parties engage to consider the result of the proceedings of the Tribunal of Arbitration aa a full, perfect, and final scttlemeiit of all the questions referred to the Arbitrators. "ARTICLE XV. "The present Treaty shall be duly ratified by Her Britannic Majesty and by the Prrsidcut of the United States of America, by and with the advice and consent of tlic Senate thereof ; and the nitiftcntions shall bo exchanged citlier at Washington or at London within six months from the date hereof, or earlier if possible. " In faith whereof, we, the respective rieniiwteiitiaries, have signed this Treaty, and have hereunto affixed our seals. "Done in duplicate, at Wasliington, the 29th day of Fetruaiy, 1892. (LS.) "JULIAN PAUNCEFOTE (LS.) "JAMES O. BLAINE." The general outline of the argument on behalf of Groat Britain will be as follows : — That Behring Sea, as to which tho question arises, is an open sea in wliich all nations of tl.? world have the right to navigate and fish, and that tho rights of navigation and fiwhing cannot be Uken awayor restricted by the mere declaratioa or claim of anj one or more nations. They aro natural rights, and exist to their full extent unless specificr.lly modified, controlled, or limited by Treaty. That no mere non-user or ahsence of exercise has any effect upon, nor can it in any way imi)a'p or limit buch rights of nations in the open seas. They arc common rights of all mankind. In support of these principles, which aro clearly estahlishcd, and have never hecn seriously disputed by jurists, authorities will bo cited. That in accordance with those principles, and in the exercise of these rights, the subjects and vessels of various nations did from the earliest times visit, explore, navigate, and trade in the sea in question, and that the exercise of these natural rights continued without any attempted interference or control by Russia down to the year 1821. That in 1821 when Russia did attempt by Ukase, i.e., by formal declaration, to close to other nations, the waters of a great part of tho Pacific Ocean, including Behring Sea, Great Britain and the United States immediately pro- tested against any such attempted interference maintaining the absolute right of nations to navigate and fish in tho non-territorial waters of Behring Sea and other non-territorial waters of the Pacific Ocean (over which non-territorial waters Russia had attempted to limit and inter- fere with these rights) ; both countries asserted that these rights were common national rights, and could not bo taken away, or limited by Ukase, Proclamation, or Declaration, or otherwise than by Treaty. That in tho years 1824 and 1825, in conse- quence of these protests, Russia unconditionally withdrew her pretensions, and that subsequently Treaties were made with the United States and with Great Britain which recognized the rights common to tlio subjects of those countries to navigate and fish in t?io non-territorial waters of the seas over which Russui had attempted to assert such pretensions. That from the date of such Treaties down to tho year 1807, (in which year a portion of tho territories which had been rbferred to in and affected by the Ukase of Russia in tho year 1821, 8 yfaa purchased l>y and ceded to the United States), the vessels of several nations continued, year by year, in largely increasing numl)ers, to navigate, trade, and fish in the waters of Behring Sea, and that during tlio whole of that period of nearly fifty y?ars there is no trace of any attempt on the part of Ilussia to reassert or claim any dominion or jurisdiction over the non-territorial waters of that sea, but, ou the contrary, the title of all nations to navigate, fish, and exercise all common rights therein was fully recognized. That on the j)urchase and acquisition of Alaska by the United States in the year 1867, the United States were fully aware and recognized that the rights of other nations to navigate and fish in the non-territorial waters adjacent to their newly-acquired territory, existed in their full natural state, unimpaired and unlimited by any Treaty or bargain whatever. That, from the year 18G7 down to the year 1886, the United States, while they lawfully and properly controlled and legislated for the shores and territorial waters of their newly-acquired territory, did not attempt to restrict or interfere with the rights of other nations to navigate and tish in the non-territorial waters of Behring Sea or other parts of the Pacific Ocean. That, under changed conditions of territorial ownership, and in view of certain new circura- s'ancos which had arisen in consequence of the growth of the industry of pelagic scaling in non- tciritorial waters, the United States reverted, in the first instance, to certain claims based upon those of the Russian Ukase of 1821, which the United States, together with Great Britain, had successfully contested at the time of their pro- mulgation ; but that in the course of the discus- sions which have arisen, such exceptional claims to the control of non-territorial waters have been exchanged for various unprecedented and indefinite claims which appear to be based upon un alleged property in fur-seals as such. 8a Finally, that while Great Britain has from the —i o - J first strenuously and consistently combatted BOUi Cong. 2Bd ' . i • x-ii Sett,. 8«n»te, all the foregoing claims, she has been and is stul Ei^ Uoc. No. 106, favourably disposed to the adoption of exceptional Blue Book, United measures of control of the fur-seal fishery should totei, o. 3, , ^j^^^ j^^ found necessary or desirable, with a view to the protection of the fur-seals, provided I'.iat these be equitable and framed on just grounds of common interest, and that the adhesion ot other Powci's is secured as a guarantee of their continued and impartial execution. Arrangement of Case. It will be convenient to state the arrangement and order of the Case on behalf of Great Britain. The first three points of Article VI are as follows : — " 1. Wliat exclusive jurisdiction in the sea now known as the Ijcliring Sea, and what exclusive rights in the seal fisheries therein, did Kussia assert and exercise prior and np to the jtimo of the cession of Alaska to the United States? " 2. How far were these claims of jurisdiction as to the seal fisheries recognizetl and conceded by Great Britain ? " 3. Was the body of water now known as the Behring Sea incluilod in the phrase ' Pacific Ocean," as used in the Treaty of 1825 between Great Britain nnd Russia ; and what riglits, if any, in the Behring Sea, were held and exclusively exercised by Russia aftei said Treaty ?" Heads of Argument. It is proposed in tlio first instance to deal with those points, which relate to the original claim by Russia to certain rights in Behring Sea, and the alleged recognition nnd concession of these rights by Great Britain. Article VI. The questions therein raised will be considered under the following heads : — Chipter I. (A.) The user up to the year 1821 of Behring Sea and other waters of the North Pacific. Chapter II. (B.) The Ukase of 1821 and the circumstances connected therewith leading up to the Treaties of 1824 and 1825. Chapter III, (C.) The question whether the body of water now known as Behring Sea is included in the phrase " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia. Ohipter IV. (D.) The user of the waters in question from 1821 to 1867. [644] 0» 8b It ia then proposed to consider point 4 of Artiole VI, which ia aa follows : — " 4. Did not all the rights of Russia as to jurisdiction and OS to tlio sool fisheries in Dohring Sea cast of the 'watei boundoty, in the Treaty between the United States and Russia uf the 30th March, 18G7, pass uuimpaiied to he United States under that Treaty ?" This point will be considered under the follow- ing heads : — (£.) What rights passed to the United States Chaptsr T. nnder the Treaty of Cession of Marxsh 30, 1867 P (F.) The action of the United States and OhaptorV^ Bussia from 1867 to 1886. (G.) The various contentions advanced by the Chapter VBL United States since the year 1886. Point 5 of Article VI is as follows : — " 5. Has the United States any right, and, if so, what ChapUr VIIL right, of protection or property in the fur-seals frequenting the iskuds of the United States in Uehring Sea when such seals are found outside tlie ordinary 3-milo limit ?" This will be briefly considered, but the proposi- tion which appears to be embodied in this question is of a character so unprecedented that, in view of the absence of any precise definition, it is impossible to discuss it at length at the present time. It will, however, bo treated in the light of such official statements as have heretofore been made on the part of the United States, its discussion in detail being necessarily reserved till such time as the United States may see fit to produce the evidence or rllegations upon which it relies in advancing such a claim. Article VII is as follows : — " If the determination of the foregoing questions as to Article VIL the exclusive jurisdiction of the United States shall leave the suliject in such position that the coucuiTence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Seo, the Arbi- trators shall then determine what concurrent Reguhtions outside the jurisdictional limits of the respective Govern- ments are necessary, and over what waters such Regula- tions should extend, and to aid them in that determination, the Report of a Joint Commission, to be appointed by the respective Governments, shall bo laid before them, with such other evidence as either Govemmenti may submit "The High Contracting Parties furthermore agree to co-operate in securing the adhesion. of other Powers to such Regulations." 80 The tomu of this Articio make it ncoesaary that tho consideration < f this question, and of any Regulations, must bo postponed until the dcdnon of tho Tribunal has been given on the previous questions. 8l) This Article will also bo briefly dealt with ia argument, but the decision must mainly depend upon the consideration of evidence .vluch will be respectfully submitted to the Tribunal. With regard to the point^ raised under Article VIII (which refer to questions arising out of claims for damages), it wUl be contended on behalf of Great Britam that the seizure of the ships was unlawful, and the Arbitrators will be asked to find that iu each case the seizure took place in non-territorial watei-s, that such seizures were made with the authority and on behalf of the Government of the United States, and that the amounts of damages which Great Britain is entitled to claim on behalf of the owners, masters, and crews are the respective amounts stated in the Schedule of particulars appended to the Case. u Ohapt :a I. Hbab {A).— The User, up to the year 1821, 0/ the Waters of Behring Sea and other Waters of the North Pacific, It is shown in the following series of historical notes chronologically arranged that the waters subsequently included in the claim made by Bussia under the Ukase of 1821, had been freely navigated over, and employed for purposes of trade and for other purposes, by ships of various nations, from the earliest times. Further, that the discovery and exploration of these waters and the coasts and islands washed by them, was largely duo to the navigators of various nationE, and in particular to those of Great Britain. The waters .iffected by the llussian Ukases of 1799* and 1821 include not only the entire area of Behring Sea (though that sea is not specifically mentioned by any name in the Ukases), but also other parts of the Pacific Ocean, and in con- sidering the nature of the user of the waters now in question, the entire area affected by the Ukase of 1821 is included, the facts relating to all parts of this area being of equal significance. It will be noted in this connection that the limit claimed under the Ukase extended south- ward to the 51st parallel of north latitude ; and that, therefore, any events occurring to the north of 54° 40', which is the southernmost part of the territory now known as Alaska, are well within this limit. The Pacific Ocean as a whole, was, in the last century and in the earlier part of the present century, variously named the Pacific, or Great Ocean or South Sea, the last name arising from the circumstance that it had been reached by sailing southward round the Cape of Good Hope or Cape Horn. Behring Sea is, and was at the time of the negotiations which arosv) immediately on the promulgation of the Ukase of 1821, recognized by geographers as a part of the Pacific Ocean. The name by which it is now known is that of the navigator Behring, but iu earlier times it was often named the Sea of Kamtcbatka. This sea washes the northern parts of the * The text of ii.u Uk;'.:c of ' 799 will be .'ound at p. »■ thit Cue; that of the Ukue of 1891 at p. . [614] D 1 10 coasts of North America and of Asia, and is regarded as extending from Behring Strait on the north to the Aleutian and Commander Islands on the south. Its area ia at least two-thirds of that of the Mediterranean, and more than twice that of the North Sea, while its extreme width is 1,260 miles. From north to south it extends over about 14 degrees of latitude, or more than 800 miles. From the south it is approached by numerous open sea-ways, one of which is 175 miles wide, another 95 miles, five more from 55 to 22 miles, and very many of smaller width. On the north, it communicates with the Arctic Ocean by Behring Strait, 4S miles in width. Behring Sea is thus the common highway to the Arctic Ocean with its valuable lisheries. It is Great Britain's highway to her jiossessions in the north visi the Yukon River, (of which the free navigation is guaranteed by Treaty), as well Treaty of as the route for such communication as may be ^Y"'"'"^"]?: '' May 8, 1871, held or attempted with the northern parts of the Article XXVL coasts of North America to the east of Alaska, and with the estuary of the great Mackenzie River. In 1728 and 1729, Behring, in his first expe- Bancroft, Hiatorr dition, outlined, somewhat vaguely, the Asiatic °^ ^laika, p. 37.* coast of Beliring Sea, and practically prove* the separation of the Asiatic and American continents. In 17 il Behring's second expedition, which Ibid., pp. 63-7<. sailed from Okhotsk, resulted in the discovery of the American coast. Unsatisfactory as the voyages of Behring and his associate Chirikof undoubtedly were from a geographical point cf view, it was upon their results that Russia chiefly based her subsequent pretensions to the ownership of the north-western part of North America. Hunters and traders followed Behring's lead, and Behring Island, and various islands of the Aleutian chaicj were visited from the Eam- tobatkan coast. In 1763, Glottof, on a trading voyage, ventured Ikid,, p. 141. as far eaat as Eadiak Island. In 1764 to 1768, Synd, a Lieutenant of the Ibid., pp. 167, 168. Russian navy, made an expedition along the goast to Behring Strait. • This work will be referred to throughout these pages by the (bort title of " Alaska." 1741. 1768. ^^s 11 1769. 1774. 1775. Ibid, p. 197. 177& Cook, Voyage to the Pacific Ocean, 1776-1760, London, 1874. 1779. Of the period from 1769 to 1779, Bancroft writes in his History of Alaska: — Alaiki, p. l"4. " From this time to the visit ot Captain Cook, singlti traders and small Companies continued the traffic with the islands in much the same manner as befoie, though u general tendency to consolidation was perceptible." Ibid^pp. 1M-I97. The extension of Russian influence did not pass unnoticed by Spain, and in 1774i Perez was dispatched from Mexico on a voyage of explora- tion, in which he reached the southern part of Alaska. In 1775, Heceta, also instructed by the Viceroy of Mexico, explored the coast of America as far north as the 57tli or 58th degree of latitude, taking possession of that part of the continent in the name of Spain. In 1778 Captain Cook, sent by the English Government, reached the American coast of the North Pacific with two vessels. In pursuance of his instructions, he explored the coast from about 44° of north latitude as far as the region of Prince William Sound and Cook River or Inlet, taking possession of the coasts there. At Cook Inlet he foimd evidence of Russian trade but no Russians. At Unalaska, one of the Aleutian Islands, he again heard of the Russians, and on the occasion of a second visit met Russian traders. Prom Unalaska he sailed eastward to Bristol Bay, landing and taking possession. Prom this he explored, and defined the position of the American coast northward as far as Icy Cape, beyond Beliring Strait. Cook was killed in the following winter at the Sandwich Islands, but his ships, under Clarke, returned in 1779 and made further explorations in Behring Sea and in the Arctic Ocean. Under this expedition, and for the first time, the main outlines of the north-western part of the Continent of America, and particularly those of the coast about Prince WilUam Sound and Cook Inlet, with the eastern coast of Behring Sea, TTere correctly traced. This expedition also opened up the trade by sea in furs from the north-western par< ,f America to China. Cook's surveys still remain in many cases the most authentic ; and these, with other results of the expedition were published in full in 1784. In 1779 another oflBcially accredited Spanish expedition under Arteaga and Quadra, explored Alatki, pp. 217- 331. 12 part of the coast northward from about lati- tude 55°, and westward to Mouut St. Elias. In 1783 the first attempt was made, following AUiki, p. 186. Cook's discoveries, to establish a Russian trading post on tlio American mainland, at Prince William Sound. It ended disastrously. Owing to this rjverse, for some years only one ibid., p. 191, small vessel war dispatched from Siberia for trading purposes, but in 1781, Shelikof visited Ibid., p. 324. Unalaska and reached Kadiak Island, with the intention of effecting a permanent occupation there. In 1785 Captain Hanna entered into the Bancroft, History trade between the north-west coast of America ?f ''"• North-west Connt, vol. 1, and China, for which Captain Cook's expe- pp. 173, 174.* dition had shown the way. Ho made a second voyage in the following year, but appears to have confined liis trading operations to the vicinity of the northern part of Vancouver Island. Other commercial adventurers were, however, practically contemporaneous with Hanna, and this year is an important one in connection wit1\ the whole region. The " Captain Cook " and " Experiment," from Alaik«, p. 248. Bombay, traded at Nootka and at Prince William Sound. An English vessel, the "Lark," Captain Peters, Sauer's account of from Bengal via, Malacca and Canton, after ^"fi ig^o?^''*"'* ti-ading at Pctropaulovsk in Kamtchatka, sailed pp. 279, 281, for Copper Island with the supposed purpose, as alleged, of obtaining a cargo of copper there. She was wrecked on Behring Island. In the same year, 1786, Portlock and Dixon, and Mcares, arrived upon the American coast, .•\nd traded and explored far to the northward. These voyages are important, because detailed accounts of both were published, in 1789 and 1790 respectively, while the voyages of other traders have generally not been recorded. Portlock and Dixon, who had sailed from «• a Voyage round London in 1785 in the "King George" and |Jj^»^^°''Jj^g''-" "Queen Charlotte," in 1786, first visited Cook Inlet, where they found a party of Uussians encamped, but with no fixed establishment. Trade waa carried on with the natives there, and subsequently at various other places on what is now the Alaskan coast, and several harbours •were surveyed. In the following year, Portlock and Ih'^on returned to the vicinity of Prince * Thin work will l;e rerrrrfd to tliiougiiout these pages bv the short title of " North-west Coast." 1783. 1785. 1786—1789. 12.1 Meares' royages 1790. Sry incomplete recordi, and in many cases no reeorda at all, exiat of the trading voyages made to the north-west coast. It is in aome caiea known that theao traders extended their operationa to the north of the limit mentioned in the Ukase of 1799, or that of the Ukaae of 1821. In other cases the extent of the Toyagea made ia unknown. The tradera went, in fact, whereTer skins could be purchased, aud, if disappointed or fore> stalled at one place, at once departed for another. None of theat trading.vesicU were Russian. 120 ITM. 1791. 179& 1798. 17M. .Mukm, p. 37». Ibid., p. 335. IbM., p. 385. Ibid., p. 274. Ibid., p. 279. Ibid., p. 348. North-wett Coait, vol. i, pp. 2S(>-257. Alailta, p. 344. Vancouver, vol. iii, p. 498. Viyage of Discovery to the Pacific Ocean. London, 1798. Alaslca, p. 296. VanTO'iter's voyage. Ibid. In 1700 Pidalgo sailed from Nootka, theu occupied by Spain, to oxaniino the north-west coast, including Prince William Sound, Conk Inlet, and Kadiak. Tbc trading - vessel " I'hcenix," Captain Moore, from the Ea.st Indies, was in I'rinco William Sound in tbis year. At this time, also, Russia and Sweden being at war, a Swedish cruizcr visited the Aleutian Islands, but finding no Government establislN mcnt to attack, and no one but traders living " in abject misery," her Commander refrained from disturbing them. In 1791 Malaspina, from Spain, under orders of his Government, visited several places upon what is now the Alaskan coast. Marchand, in the " Solidc," from Prance, on a voyage of trado and circumnavigation, also visited the coast, and Douglas, in the " Iphigenia," was in Cook Inlet in this year. Besides the above vessels, at least eight trading- vcsr«ls arc known to have been on the coast, of which seven were from the United States. In 1792 Caamano, setting out from Nootka, explored Port Bucarolli, 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 tlla same yea.., divided as follows: Prom England, 6; from East Indies. 2; from China, 3; from United States, 7 ; from Portugal, 2 ; from France, 1. The "Halcyon," Captain Barclay, visited Pctro- paulovsk for purposes of trade, and a PrencU vessel, " La Plavia," wintered there. In 1793 Vancouver, who had been dispatched by the English Government with the "Dis. covery" and "Chatham" for the purpose of finally deciding the existence or otherwise of a communication between the Pacific and Atlantic, by the ; "ploration of all remaining inlets on the north-west coast, was occupied in surveying operations on what now constitutes the south- eastern Alaskan coast. In 1794 he surveyed Cook Inlet to its head, and Prince William Sound, Kadiak, and the coast extending to Yakutat Bay, were in turn carefully laid down in detail. lie ascertained that the easternmost Bussian Establishment at this timo was at Port Etches on Prince William Sound. 12 D Concerning the Bussians here and there met v&neoDvar'i "With, Vancouver — " Clearly understood that the Itussian Goveiument had little to do with these Settlements ; that they were solely under the direction and support of independent nicrcantilo Companies Not the least attention whatever is paid to the cultivation of the land or to any other object bat that of collecting furs, which is principally done by tie Indians." voyage, vol. iiii p. 199. Near Yakutat Bay he fell in with the " Jac\;il," an English trading-vessel, which was then vj^ n the coast for the third consecutive season ; ^c.;l further to the south-eastward he met with the "Arthur," Captain Barher, from Bengal. Vancouver took possession of the coast south- ward from Cross Sound (latitude 58°) in the name of Great Britain. The results of his surveys were published in 1798. The names of four north-west coast, including the " Jackal," are *° ' '' ''■ known for this jear. In 1795 a trader, named the " Phoenix," from ibid., p. 8C4, Bengal, was on the north-west coast. In 1796 at least three trading- vessels are known ibid., p. aos. to have been on the north-west c^ast. In 1797 the names oE four trading-vessels ou ibid., p. 306. this coast are known, but these were probably but a small part of the Heet. f trading-vessels on the North-west Cout, 1T95. 1796. 1707. 13 1798. 1799. North-wett Oout, vol. i, p. 307. 17«8-1801. Korth.west Ooast, Is 1798 the names of six fradinsr vessels are Tol. i, p. SOS. , ' known. In 1799 the " Caroline," Captain Cleveland, from Boston, arrived at Sitka shortly after a Russian post had been established there. Alaika, p. 889. Several other American vessels, among them the brig " Eliza," mider Captain Rowan, visited Sitka during the summer and absorbed the trade while Russians were preparing to occupy the field in the futvre. The names of seven vessels trading on the north-west coast are recorded in this year. Nothing approaching to a complete record of the names or nationalities of vessels trading upon this part of the coast in the years about the close of the last century can now be obtained, and, in the absence of any published record of explora- tions, even incidental allusions to the presence of such traders become rare after the date of Vancouver's departure. That such trade was, however, continuously practised is evident from the general complaints made by the Russians as to its effect on their operations, and perhaps the best mode of making this clear is to quote from Ban- croft's " History of Alaska " a few allusions to such complaints referring particularly to these years. Writing the enterprises of BaranofF, Governor of Sitka, Bancroft says : — Aluka, p. 9£4 " At every point eastward of Kadiak where he had endeavoured to open trade, he found himself forestalled by English and American ships, which had raised the prices o! skins almost beyond his limited means." Again, referring specially to the nascent Establishment at Sitka, Baranoff himself writes : — lUdLt p. S96; " I thought there would be no danger with proper pro- tection from the larger vessels, thouj^h the natives thero possess large quantities of fire-arms and all kinds of ammunition, receiving new supplies annually from the English and from the IJepublicans of Boston and America, whose object is not permanent settlement on these shores, but who have been in the habit of making trading trips to these regions." On another page Bancroft writes : — lUd., p. S98. " BaranofT's complaints of foreign encroachment appear to have been well grounded. Witliin a few longues of Sitka the caj)tain;i of thrco Boston ships secured 2,000 skins, though paying very high prices, each one trying to outbid the other." IWd., p. 899. Further on Baranoff is quoted to the effect that the Americans had been acquainted with the [644] E 14, tribes in this region for two or three years, and Bent there annually from six to eight vessels. These vessels from the United States were just beginning to supplant the English traders, who had in earlier years been the more numerous. Once more Bancroft quotes Baranoff as follows : — "The resources of this region are such that millions AUika,p. 399. may be mado there for oor country wi*;h proper manage- ment in the future, but for over ten years from six to ten English and American vessels have called here every year. It is safe to calculate an average of 2,000 skins on eight, or say six vessels, which would make 12,000 a-yer" and if we even take 10,000 as a minimum, it would an. :it in ten years to 100,000 skins, which, at the price at Canton of 45 roubles per skin, would amount to 4,500,000 roubles." It wiU be convenient at tliis point to consider the circumstances which led up to the Ukase of 1799, the terms of that Ukase, and its effect. As early as 1786, the idea had become dominant with Grigor Shelikof, who had lately established the first permanent Russian colony at Kadiak, of a Company which should hold a monopoly of trade in the Russian possessions on the Pacific, and over all that part of the American Continent to which Russian traders resorted. Shelikof obtained but a partial success in the Charter issued for the United American Company ; but after his death at Irkutsk in 1795, his ambitious schemes were taken up by his son-in-law Rezanof, who succeeded in carrying them to comple- tion, and, in 1799, a Ukase was issued which granted the wished-for exclusive privileges to the new Russian-Americiin Company. Before this time, in 1798, i consolidation of the Shelikof Company with several smaller concerns had been effected under the name of the United American Company ; and at the date of the issuance of the Ukase there were but two rival Companies of im]iortance in the field, the Shelikof or United American Company, and the Lebedef Company, and these engaged in active competi- tion and hostility. Bancroft sums up the situation about 1791 and 1792 in the following words : — " Affairs were assuming a serious aspect. Not only wore ibiA, pn, %^ the Shelikof men excluded from the greater patt of the 339. inlet [Cook Inlet], but they were opposed in thtir advance sound Prince William Sound, which \Tas also claimed by the Lebedef faction, though the Orekhof and other Com- panies were hunting there .... 15 Ahiki, p. 331. Ibid., pp. 302, 391, 383. Ibid., p. 301. Ibid., p. 999. "Thus the history of Cook IiJet during the last dccada of the eighteentli century is replete with romantic inci- dents — midniglit raids, amhuscades, and open warfare — resembling tno doings of medioival raubritters, rather thau the exploits of peaocablo traders .... "Robber)' and brutal outrages continued to be the order of the day, though now coramitt«d chiefly for the purpose of obtaining sole control of the inlet, to the neglect of legitimate pursuits." Again, in another place, the same author writes, with regard especially to the position of Baranoff, Governor of Sitka, when he took charge of the Shclikof Colony of Kadiak : — " Thus, on every side, rival est«ablishments and traders were draining the country of the valuable staple ujxia which rested the very existence of the sch'-me of coloniza- tion. To the east and north there were .'issians, but to the south-east the ships of Englishmen, Americans, and Frenchmen were already traversing the tortuous channels of the Alexander Archipelago, reapins; rich harvests of sea- otter skins, in the very region where Baranoff ho''. aecided to extend Russian dominion in connection witli Company away." It was only in the later years of the com- petition between the rival Russian Companies that they began to assume hostile attitudes to one another. The growing power of some of them favoured aggression, and the increasing scarcity of the sea-otter, which was already beginning to be felt, accentuated it. At first, and for many years after Behring's initial voyage, the traders from Siberia were sufficiently occupied in turning to advantage their dealings with the natives of the islands and coasts visited by them, and this not in the most scrupulous manner. Tribute in furs was exacted from the Aleuts on various pretexts, and whenever the traders camo in sufficient force these people were virtually en- slaved. Not only were the companies of traders under no sufficient or recognized control by tho Russian Government, but they even disliked and resented in some measure the advent or presence among them of commissioned officers of the Government. Tho effect of the reports of the subordinate members of Billings' expedition, as to the unsa- tisfactory state of affairs in the A leutian Islands and on the American coast, tended to favour the project of tho establishment of a monopoly, by disclosing tho abuses which existed by reason of the existing competition. Bancroft more than hints that tho superior officers of the expedition •mm 16 "Nvere induced to keep silence from interested motives; and Billing's Report, whatever its tenour may have been, was never published. In the end, however, it became in a degree imperative for the Russian Government to put a stop to the scandals and abuses which nourished in this remote ar ' scarcely more than nominally controlled portion of the Empire;, and the easiest way in which this could bo done, and the least expensive, was to vest exclusive rights in the hands of the most powerful of the existing rival Companies. This, being also in the interests of the Company in question, wrs not found difficult of achievement, and, as a consequence of the Ukase of 1799, the absorption of the smal'er concerns still existing appears to have followed without any great difficulty, BaranofT, as the executive head of the new Corporation on the American coast, coming to the front as the natural leader. When Shelikof presented at St. Petersburg his AUika, p. 308. original petition for the right to monopolize the trade, a Report was asked for on the subject from Jacobi, the Governor-General of Eastern Siberia, and in Jacobi Shelikof found an able advocate. Jacobi stated that it would be only just t M Shelikof to grant his request, and that it would bo unfair to allow others to enjoy the benefits of the peace which Shelikof had established at Kadiak. The Empress then ordered the Imperial ibid., p. 309. College of Commerce to examine the question, and a Committee of this body endorsed Jacobi's J^cport and recommended that the request of [Shelikof and Golikof for exclusive privileges should be granted. Tliough, among the arguments naturally ad- vanced in favour of the grant of a monopoly, ■\vo find it urged that the benefits of trade accruing would thus bo reserved to Russian sub- jects, the history of the occupation of the coasts nnd the records concerning it, show conclusively / that this object was not that which to any great extent induced Shelikof to apply for such a monopoly. Ilis Company had the utmost diffi- culty in sustaining its position against hostile n >ti"es, while not less serious were the difiSculties arising from the competition, and scarcely veiled hostility of rival Russian traders. The increasing trade by foreigners, together with the numerous exploring and surveying expeditions dispatched 17 to the north-west coast of America by various Powers, were no doubt distrusted by the Bussian 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 1799, do wo find any reference to attempts to interfere with or restrict the operations of foreigners upon the American coasts or in the Aleutian Islands. Even the scientific expeditions of the period were often largely interested in trade as well as in exploration, but all vessels meeting wi^ the Eussians report a fjivc^irable, if not a hospitable, reception. Such an attitude on the part of the traders and the Company is, in fact, strictly in accord with the Ukase of 1799, which is purely domestic in its character, and in which no exclusive rights against foreigners are asserted. "Vkua of Pkut I, 17«9. Aluka, pp. 879- aso. 17*0*8 of 1799. The following is a literal translation of the Ukase in question, taken from Golovnin, in "Materialui dla Istoriy Busskikh Zasseleniy," i., 77-80:— " By the grace of a merciful God, we, Paul T, Eir.perot and Autocrat of All the Ruesias, &c. To the Russian* American Company, under our highest protection, the benefits and advantages resulting m our Empire from the hunting and trading carried on by our loyal sub- jects in the north-eastern seas and along the coasts of America have attracted our Royal attention and considera* tion ; therefore, having taken under our immediate protec- tion a Company organized for the above-named purpose of carrying on hunting and trading, we allow it to asaume the appellation of ' Russian- American Company imder oiu highest protection;' and for the purpose of aiding the 'Company in its enterprises, we allow the Commanders of our land and sea forces to employ said forces in the Company's aid if occasion requires it, while for further relief and assistance of said Company, and having examined their Rules and Regulations, we hereby declare it t arrival of supplies. He ordered that the best men should be moTed to the Fribyloff Islands [644] O 22 to collect there the furs accumulated by the naiives. These islands had not been visited for many years. Captain O'Cain, of the United States' vessel " O'Cain," exchanged goods for furs with Baranoff at Sitka, and also took Aleutian himters to the Califomian coast to hunt fur- seals and sea-otters. " Thus was inaugurated a series of hunting expeditions beyond the borders of the Bussian Colonies, which continued for many years." The names of five vessels trading on the north- west coast are known. 1804. Sitka was reoccupied and rebuilt in this year by the Russians. Two United States' vessels, one being the " Juno," were there. The names of four vessels are known as trading on the north-west coast. In 1805 the " Juno " and another vessel from the United States were at Sitka, and wc hear of six vessels, including the " Juno," as trading on the north-west coast. In 1806 the Russian Envoy Rezanoff visited the Pribyloff Islands on the "Maria," and en- deavoured to stop the wasteful slaughter of fur- seals. He recommended the Emperor to " take a stronger hold of the country," as the traders in ships from Boston were undermining the trade with China. He reported that the "Bostonians" had armed the Kolosh Indians. In the same year the " Juno," with her cargo, was purchased by Baranoff, and the "Eclipse" (Captain O'Cain) saUed for China with furs; but was lost on the way back. The names of four vessels trading on the north-west coast arc known in this year. Eezanoff, in 1807, sent the "Juno" to the Califomian coast for provisions. The " Myrtle," an English ship (Captain Barber), was pui'- chased by Baranoff. Six north-west coast trading- vessels are known by name for tliis year. In 1808 the United States' vessel " Mercury " obtained at Eadiak 25 bidarkas, or skin-boats, for hunting and trading to the southward. Four United States' trading-vessels are known to have been on the Alaskan coast in 1808 and 1809. AUska, pp. 477, 478. North-west Cout, vol. i, pp. 3ia-317. Ibid,, pp. 318, 319. 18(ML Ibid., p. 330. 1806. isoe. AIulu, p. 446. Ibid., p. 451. Ibid., p. 454. Ibid, pp. 478, 479. 1807. Ibid., p. 461. Ibid., pp. 479, 480. 1808. 1809. 23 1810. Alaska, p 4S7. 1811. 1817. Ibid., p. 470. North-weat Oouti Tol. i, p. 335. Alaska, p. 429. Ibid., p. 4fi3. North-wett Coast, Tol. i, p. 326. Alaska, p. 472. Ibid., p. 480. 1812. North-west Coait, vol. i, p. 329. 1814 Alaska, p. fi03. Ibid., pp. 504, 505 1815. Ibid., p. 506. 1816. Ibid., p. 60i. North-weat Cent, yol. i, p. 335. p. . pany, which was *^" Appendii. organized in 1799, under a Charter from tho Emperor Paul, with tho power of administrotion throughout the •whole region, including the coasts and tho islands. In tliis respect it was not unlike the East India Company, 27 which has played such a part in English history ; but it may bo more properly compared with the Hudson Bay Company, of which it was a Kussian counterpart. Tlio Charter was for a term of years, but it has been from time to time extended, and, as I understand, is now on the point of expiring. The powers of the Company aro sententiously described by the ' Almauach do Gotha ' for 1867, where, under the head of Russia, it says that ' to tho present time Russian America lias been the property of a Company.' " And, referring to as late a period as 1867, ho remarked : — " It is evident that these Russian Settlements, distributed through an immense region and far from any civilized neighbourhood, have little in common with those of European nations elsewhere, unless we except those of Denmark, on the west coaat of Greenland. Nearly all are on the coast or the islands. They aro nothing buo ' villages ' or ' factories ' under ths protection of palisades. Sitka is an exception, due unquestionably to its selection as the liead-quarters of tlie Government, and also to tho eminent character of the Governors wlio have made it their home." Article XVIII, Norlh Araeriean Beview, to), xt. Quarterly Review, 1821.32, to). xxTi. See Appendix. Adams to Middle- ton, July 32, 1823. See Appendix. Alaska, p. S91. Touching Russia's claims to exclusive juris- diction over more than certain islands in tho Pacific Ocean on the American coast, Mr. Adams, moreover, in 1823 brought forward, with approval, articles which appeared in " Tho North American Review," published in the United States, and in the " Quarterly Review," published in England. The facts stated in these articles show the grounds upon which the Government of tlu3 United States considered themselves justified in the contention advanced by Mr. Adams, that " the rights of discovery, of occupancy, of un- contested possession,'* alleged by Russia, wero " all without foundation in fact," as late as tho year 1823. Again referring to the circumstances in tho year 18G7 (the date of the cession of Alaska to tho United States), its historian Bancroft writes : — " Moreover, Russia had never occupied, and never wished to occupy, this territory. For two-thirds of a century she had been represented tlicre, as wo have seen, almost entirely by n fur and trading Company under the protection nf Government. In a measure it had con- trolled, or ondeuvourod to contioL tlie alTairs of that Com- prny, and among it« stockholders were several members of the Royal I'liraily ; but Ala-ska had been originally granted to tho Ru.ssian-Anierican ('oni])any by Imperial Oukaz, and by Impciial Oukaz tlie Charter liad been 28 twice renewed. Now that the Company hail declined to accept a fourth t'harter on tlio terms proposed, something must be done with the territory, and Russia would lose no actual portion of her Empire in ceding it to a Eepublic ■with which slie was on friendly terms, and whoso domain seemed destined to spread over the entire continent." Deductions. The foregoing historical summary establishes — That from the earliest periods of which any record exists down to the year 1821, there i:. no evidence that Russia either asserted or exercised in the non-teriitorial waters of the North Pacific any rights to the exclusion of other nations. That during the whole of that period the shores of America and Asia belonging to Russia ns far north as Bchring Straits, and the waters lying between those coasts, as well as the islands therein, wore visited by the trading-vessels of all nations, including those sailing under the flags of Great Britain, United States, Spain, and j?rance, with the knowledge of the llii'jsian authorities. That the only rights, in fact, exercised by iliissia or on her behalf were the ordinsry territorial rights connected with settlements or annexations of territory consequent upon such settlements, aud the only rights she purported to deal with or confer were rights and privileges given to the Russian-American Company, as being Russian subjects, in preference over other Russian subjects, Ohaftbb II. Voyage, M. de Kruaenatern, ToL i, p. 14, No. 384, p. 454. American State Papera, Foreign Ralationa, toI. t. American State Papen, toI. t, pp. 438-443. Alatka, p. S28. Tikbmenief, later. Oboa. I, citsd in note to Alaaka, p. 532. See also Alasla, p. 446; Rezanof'a complaint in 1806. Ukaae of Alexander, 1821. Head B. — The Ukase of 1821, and the circrnn' stances connected therewith leading up to tht Treaties of 1824 and 1825. ShorOy before the date of the renewal of the Charter of the E/Ussian-Ainerican Company in 1821, the aspect of affairs had considerably changed. The Company had long before fully succeeded in getting rid of its Russian rivals, but trading- vessels from England and from the United States frequented the coasts in increasing numbers, and everywhere competed with the Company. Goods were brought by these vessels at prices which the Company could not successfully meet, and furs were taken by them direct to Chinese sea-ports, while the Company, as a rule, had still to depend on the overland route from Okhotsk to Kiakhta on the Amoor. Domestic competition had in fact ceased, and the most serious drawback to the success of the Company consisted in the competition from abroad. The difficulties resulting to the Company on account of foreign competition appear pro- minently in the complaints made by its agents at this time, and the new claim of the right to exclude foreigners from trade is embodied in the Ukase of 1821. The following is the translation of the Ukase which was issued by the Emperor Alexander in 1821 : — "Edict of HU Imperial Majesty, Autocrat of All t!ie " liussias. "The Directing Senate maketh known to all men: Whereas, in an Edict of His Imperial Majesty, issued to the Directing Senate on the 4th day of September [1821], and signed by His Imperial Majesty's own hand, it is thus expressed : — "•Ob3er\ing from Reports submitted to us that the txado of our subjects on the ^Vleutian Islands and on the north-west coast of America appertaining uuto Russia is subjected, because of secret and illicit traffic, to oppression and impediments, and finding that the principal cause of these difficulties is tbo Tfant of Rules establishing the boundaries for navigation along these coasts, and the orcier of naval commouicntion, as well in these places as on the [644] I 30 whole of the oostem coast of Siberia and the Kurile lalonds, we have dcemtd it necessary to detormine these communications by specific Kcgulations, which ore hereto attached. "'In forwarding these Begulations to the Directing Senate, we command that the same be published for universal information, and that the proper measures be token to carry them into execution. (Countersigned) '"Count de Gumef, "' Minister of Finaneu. "' It is therefore decreed by the Directing Senate that His Imperial Majesty's Edict be published for the infor- mation of nil men, and that the same be obeyed by all whom it may concern.' (L.S.) " The original is tignnd by tlic Dlrectini; Senate. On the original is written in tlie handwriting of His Imperial Majesty, thus : Bo it accordingly, ALiXiLNDER. " Rules established for the Limits of Navigation and Order of Communication along the Coast of the Eastern Siberia, the Nortli^west Coast of America, and the Aleutian, Kurile, and otlur IslaTids. " ' Section 1. The pursuits of commerce, whaling, and ggg Appendix, fishery, and of all other industry, on all islands., ports, and gulfs, including the whole of tlie north-west coast of America, beginning from Behniig Straits to the 51st of northern latitude ; also from the Aleutian Islands to the eastern coast of Siberia, as m'cU as along the Kurile Islands, from Behring Straits to the south cape of the Island of Urup, viz., to the 45° 50' northern latitude, is exclusively granted to Eusaian subjects. "'Section 2. It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles. The transgressor's vessel is subject to confiscation, along with the wliole cargo.' " By this Ukase Russia first attempted to assort, as against other nations, exclusive jurisdiction or rights over the shores of America and Asia bounding the Pacific Ocean, certain islands therein, and over a portion of the Pacific Ocean including what is now known as Behring Sea. The purpose of the Ukase, so far as the Uaron Nicolai to attempted oxolusion of foreigners from 100 miles ^"'^ Londonderry, of the coasts, from 51° north latitude to Behring October 31 Strait is concerned, is explained by Baron de [^"J®"'^'" "^ Nicolai in his note to Lord Londonderry, the gjg Appendix. Slst October (12th November), 1821. 81 He insists that the operations of " smugglers " and " adventurers " on the coast — "Have for their oliject not only a fraudulent commerco in furs and other articles \vliich are exclusively rescrv d to the liussion-Americun Cimipany, but it appeal's tliut they often lietny a hostile tendency. " It waa," ho continues, " therefore necessary to take severe mouaures ayainst these intrigues, and to protect tlio Company against the considorablo injury that resulted, and it was with that end in view that the annexed Kegulatiun has been published." And again : — "Tlie Government, however, limited itself, as can Im seen by the newly-published Regulation, to forbidding all foreign vessels not only to land on the Settlements of the Americon Company and on the peninsula of Kamtchatkii and the coa.st3 of tlie Okhotsk Sea, but also to sail along the coast of these possessions, and, as a rule, to opproach them within 100 Italian miles." The istification for the Ukase, and the Regu- lations ade thereunder, is stated on the face of the Ukase in the words : — " And finding that the principal cause of these difficulties [i.e., impediments caused by 'secret and illicit traffic'] is want of Rules establishing the boundaries for navigation along these coasts." See Appendix. That the object of the Ukase was to extend territorial jurisdiction over tlio north-west coast and islands and to prohibit the trade of foreigners, rather than to protect any existing or prospective fishery is further indicated by No. 70 of the Regulations of the Russian- American Company. This Regulation reads : — " 70. A ship of war, after visiting, not only the Com- pany's Settlements, but also, and more particularly, the channels which foreign merchant-vessels are likely to frequent far the ■purpose of illicit trading vnth the natives, will return to winter wherever tlie Government orders it" Poletica to Adami, February 28, 1822. See Appendix. The motive and purpose of this Ukase is further explained by the letter of !M. de Poletica, Russian Minister at Washington, dated the 2Sth February, 1822, in which he defines the main, if not the sole object which prompted it. That Russia's aim was to acquire a vast North American Territory appears by the construction put by M. de Poletica on the Ukase of the Emperor Paul, as conveying to the Russian- A'Tierican Coiipany Iho grant of a torritovial concession do^vn to the Suth degree of latitude, and by liis justification of its further extension to the Blst degree. He proceeds to defend the policy of exclusion contained in the Ukase of 1821 by explaining that, as Russian possessions extend from Bohring Strait to the 51st degree north latitude on the north-west coast of America, and on the opposite coast of Asia and the islands adjacent, to the 4i5th degree, the sea within those limits (viz., that part of the Pacific Ocean) was a close sea, over which Russia might exercise oxcliisivo jurisdiction, but he goes on to say that Russia preferred asserting only her essential right without "taking any advantage of localities," and on these grounds, the limit of 100 Italian miles is justified. The measure he declares to be directoJ : — " Against the culpable enteriirises of foreign adventurers, wlio, not content with exercising upon the coast above mentioned an illicit trade, very prejudicial to the rights reserved entirely to the Eussiiin-Amorican Company, take upon thorn 'josidea to furnish arms and ammunition to the natives in the Russian j)ossession3 in America, inciting tliom likewise in every manner to resist and revolt against the ii'.ithorities there established." The same view is expressed in the Confidential See p. ^Icmorandum inclosed in the Buke of Welling- ton's letter to Mr. G. Canning of the 28tli November, 182'.'. Upon receiving communication of the Ukase, the British and United S^fites' Governments immediately objected botli to the extension of the tcrritoii il claim and to the assertion of maritime jurisfiiction. Aband( dicti Protest of Great Britain. The Ukase was brought to the notice of Lord The protMt of the Londondcri-y, Secretary of State for Poreign ^*^ ^''""'• Affairs for Great Britain, in the letter already See Appendix, quoted of the litli November, 1821, by Baron do Nicolai, ihou Russian Ciiargc dAffaires, .IS connected with the territorial rights of the Russian Crown on the north-west coast of America, and with the comii - and riavigalion of tlic Emperor's subjects he seas adjacent tliereto. On the 18th January, 1822, four months after the issue of the Ukase, Lord Londonderry, then 38 British Foreign Secretary, wrote in the following terms to Count Lieven, the Russian Ambassador in London : — See Appendix. " In the meantime, upon the subject of this Ukase generally, and especially upon the two main principles of claim laid down therein, viz., an exclusive sovereignty alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the maritime limits therein set forth, llis Britannic Majesty must be understood as Iiereby reserving all his rights, not being prepared to admit that the intercoatae which is allowed on tho face of this instrument to have hitherto subsiated on those coasts and in those seas can be deemed to be illicit, or that the ships of friendly Powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown in these vast and very imperfectly occupied territories, could, by the acknowledged law of nations, he excluded from navigating wUhin the distance of 100 Italian miles, as therein laid down from the aast, the exclusive dominion of which is assumed (but as His Majesty's Government conceive in error) to belong tc His Imperial Majesty the Emperor of All the Bussias." Ibid. Abandonment of claim to extraordinary juris- diction. The Duke of Wellington having been appointed British Plenipotentiary at the Congress of Verona, Mr. G. Canning addressed to him, on the 27th September, 1822, a despatch in which he dealt with the claim in the Ukase for the extension of territorial rights over adjacent seas to the distance — "unprecedented distance," he terms it — of 100 mUes from the coast, and of closi'jg " a hitherto unobstructed passage." In this despatch Mr. Canninf;,' says : — " I have, indeed, the satisfaction to believe, from a con- ference which I have had with Count Lieven oo this matter, that upon these two points, — the attempt to shut up the pa-ssage altoget'ier, and the claim of exclusive dominion to so enormo'js a distance from the coast, — the Russian Government are prepared entirely to waive their pret' .isions. The only effort that has been made to justify t'.e latter claim was by reference to an Article in the Treaty of Utrecht, which assigns 30 leagues from the coast as the distance of prohibition. But to this argument it is sufhcieut to answer, that the assumption of such a space was, in the instance quoted, by stipulation in a Treaty, and one to which, therefore, the party to be affected by it had (whether wisely or not) given its deliberate consent No inference could be drawn from that trans- action in iavour of a claim by authority against all the world. " I have little doubt, therefore, but that the public noti- fication of the claim to consider the portions of the ocean included between the adjoining coasts of America and the [644] K 84 Kussian Empire as a mare elausum, and to extend the exclusive territorial jurisdiction of Russia to 100 Italian niilea from the coast, will be publicly recalled, and I have the King's commands to instruct your Grace further to require of the Russian Minister (on the ground of the facts and reasonings furnished in their [sic] despatch and its inclosures) that sucli a portion of territory alone shall be defined as belonging to Russia as shall not interfere with the rights and actufd possessions of His Majesty's subjects in North America." On the 17th October in the same year, the Duke of Wsllington, at Verona, addressed to Count Nesselrode, the Russian Plenipotentiary at the Congress, a Confidential Memorandum con- taining the following words :— " Objecting, as wo do, to tliis claim of exclusive Sm Appendix, sovereignty on tlie part of Russia, I might save myself the trouble of discussing the particulai- mode of ''.a exercise as set forth in this TJTcaac, irat we object to the mode in which the sovereignty is proposed to be exercised under this Ukase, not less than we do to the claim of it IVe cannot admit the right of any Power poastssing tlie sovereignty of a country to exclude the vessels of olliers froin, the seas on its coasts to the distance of 100 Italian miles." In reply, Count Nesselrode communicated to the Duke of Wellington a " Confidential Memorandum " dated the 11th (23rd) November, 1822, which contains the following passages : — " The Cabinet of Russic has taken iuto mature con- Confidential Memo sideration the Confidential Memorandum forwanlcd to fandum iuc'oicd in them by the Duke of Welliugton on the 17th October last, WeiJ'i„"g,o„''Jo "^ relative to the measures adopted by HLs Majesty the G. Canning, Emperor, under date of Uic 4tli (ICth) September, 1821, Jg^g"''*'' ^^' for defining the extent of the Russian possessions on the o a i north-west coast of America, and for forbiddiag foreign vessels to approach bis possessions within a distance of 100 Italian miles. ". . . . It wai, on the contrary, because she regarded those rights of sovereignty as legitimate, and because imperious considerations involving the very existence ot the commerce which she carries on in the regions of the north-west coast of America compelled her to establish a system of precautions which became indispensable tlsat she caused the Ukase of the 4th (16th) September, 1821, to be issued. ". . . . Consequently, the Emperor has charged his Cabinet to declare to the I)ul:e of Wellington (such declaration nut tc prejutlice his rights in a.iy way if it be not Bocopted) that he is ready to fix, by means of friendly negrtiction, and on the hnsw of mutual ftncnraaiodation, the degrees of latitude and longitude which the two I'uwors .iliajl regard ,13 the utmost limit of tlieir ponessicns and of their eslabiishmeals on the aorth-west coast ol Ani«ri('.a. 8ff " His Imperiei Majesty i» pleased to believe that thia negotiation can be completed without difficulty to the mutual satisfectiou of the two States ; and the Cabinet of Eassia can from this moment assure the Duke of Wellington that the measures of prciiauiion and super vision which will then be taken on the llussinn part of the coast of America will iie entirely in conformity with the rights derived from sovereignty, and with the ' established customs of nations, and tliat tliore will be no possibility of legitimate cause of complaint against them." Again, on the 28th November, 1822, the Duke of Wellington addressed a note to Count Lieven, containing the following words : — 8«e Appendix. " The second ground oa which we object to the Ukase is that His Imperial Majesty thereby excludes from a ertaln considerable extent of the open sea vessels of othe.- nations. We contend that the assumption of this power is contrary to the law of nations, and we cannot found a negotiation upon a paper in which it is again broadly a.'^serte'' W^ contend that no Power whatever can exclude another from the use of the open sea. A Power can exclude itself from the navigation of a certain coast, sea, &c., by its own act or engagement, but it cannot by right be excluded by another. Tliis wo consider as the law of nations, and wo cannot negotiate upon a paper in which a right is asserted inconsistent with this principle." TTkaae. 1831, abandoned At an early date in the ccirso of the negotia- tions with the TTaitcd States &iA with Great Britain the execution the of Ukase beyond the territorial imit of 3 miles wjjs suspended. Indeed, as far u.t the waters of Behriug Sea are concerned, it may safely bo said that it was never put into pr^etical execution beyoi-d this limit. The note from Count Nesselrode tc Mr. Middlcton on the >ubject was dated thi; 1st August, 1822, and is thu t alluded to by Mr. Middleton ii. a despatch to M: . Adams of the 19th September, 1823 :— "Upon Sir Charh. i fBagot] cxpresmng Lis wish to be informed respdcting ho actual state of the north-went question betwwn the United States and Russia, so far iS it might be known to no, I saw no objection to malciug a confidtntiul coTO'-'-.loation to him of the note of Count Noasehodi', (hited the 1st August, 1822, by which, iu .act, staying the execution of Che Ukase above mantlonad, Russia has virtually libandonod the pretensions thoiein odvoo' )d." d«« Ippeij*!. T7ie oomniunioation to the British Government on < he same subject was made in August 1828 ia. 86 the shape of an extract from a despatch from Count Nesselrode to Count Lieven, dated the 26th June, 1823. The following passage in it shows how complete was the abandonment of the unusual claim of maritime jurisdiction : — "That the Commanders of our ships of war must confinR thpir surveillance as nearly as possible to the mainland, i.e., over an extent of sea within range of cannon-shot from the shore ; that they must not extend that surveillance beyond the sphere where the American Company has effectually exercised its rights of hunting and fishing since the date of its creation, as well as since the renewal of its privileges in 1799, and that, as to the islands ou which are to be found colonies or settlements of the Company, they are all indistinctively comprised in this general rule. " . . . , Your Excellency will observe that these new instructions — which, as a matter of fact, are to suspend provisionally the effect of the Imperial Ukase of the 4th September, 1821 — were sent from St. Petersburgh only in August of lost year." Mr. Lyall, Chairman of the Ship-owners' See Appendix. Society, of London, wrote on the 19th November, 1823, to Mr. G. Canning, asking whether official advices had been received from St. Petersburg that the Ukase of 1821 had been annulled. Mr. Canning having privately submitted his proposed reply to Count Lieven for his comments, caused the following letter to be sent, which had received Count Lieven's approval : — " I am directed by Mr. Secretary Canning to acknow- i^rd p. Conynff- ledge the receipt of your letter '' ' 19th instant, ham to Mr. Lytll, expressing a hope that the Ukase of Sej^..^.... been annulled. " Mr. Canning cannot authorize me to state to you in distinct terms that the Ukase has been ' anr.ulUd' because the negotiation to wbicu it gave rise is still pending, embracing, as it does, many points of great intricacy as well as importance. "But I am d.irected by Mr. Canning to acquaint you that ori'.ers have besn sent out by the Court of St. Peters- burg M their Naval Connmandcrs calculated to prevent any collision between Rusiiian ships and those of other nations, and, in eifect, suspeading the Ukase of September 1821." 1821 had fa";*"'*"*'^ See iVppcndix. O.n the 15th January, 1824, Mr. G. Canning s«6 Appendix, writes Sir C. Bagot, the British Ambassador at St. Petersburg : — " . . . . Ihe questions at issue between Great Britain and Russia are short and simple. The Russian Ukase contains two objectionable pretensions : First, an extra- vagant assumption of maritime supremacy ; secondly, an unwarranted claim of territorial dominions. 37 8«e Appendix, " As to the first, the disavowal of Russia is, in substance all that \vc could desire. Nothing remains fur negotiation on that head but to clotlio that disavowal in i)recise and satisfactory terms. We would much rather that those terms sliould bo suggested by llussia herself tlrn have the air of pretending to dictate thnm ; you will 'horefora request Count Nesselrnde to furuisli you with iiis notion of such a declaration on tliLs point as n: .y bo satisfactory to your Government. Tliat declaration ii..»y bo made the preamble of the convention of limits." .... Again, in a despatch, 2ditli July, 1824', to Sir C. Bagot, Mr. G. Canning says: — " . . . . Your Excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question. The first, the asauraption of the base of the mountains, instead of the summit a; the lino of boundary ; the second, the extension of the right of the navigation of the Pacific to the sea beyond Behring Straits. " As to the second point, it is, perhaps, as Count Lieven remarks, new. But it is to be remarked, in return, that the circumstances under which this additional security is required will bo now also. " By the territorial demarcation agreed to in this 'projot,' Kussia will become possessed, in acknowledged sovereignty of both sides, of Behring Straits. " The Power which could think of making the Pacific a mare datisum may not unnaturally be supposed capable of a disposition to apply the same character to a strait comprehended between two shores of which it becomes the undisputed owner ; but the shutting up of Behring Straits, or the power to shut them up hereafter, would be a thing not to be tolerated by England. See ante, p. . " Nor could we submit to be excluded, either positively or constructively, from a sea in which the skill and science of our seamen has been and is still employed in enterprises interesting not to this country alone, but to the whole civilized world. " The protection given by the Convention to the American coasts of each Power may (if it is thouQ;ht necessary) be extended in terms to the coasts of the Russian Asiatic territory ; but in some way ov other, if not in the form now prescribed, the free navigation of Behring Straits and of the seas beyond them must be secured to us." See Appendix. Mr. George Canning in a despateh to Mr. Stratford Canning, who had been appointed British Plenipotentiary for the negotiation of a Convention at St. Petersburg, under date the 8th December, 1824, after giving a summary of the negotiations up to that date, goes on to say :— " It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial [64.4] L IMAGE EVALUATION TEST TARGET (MT-S) A ^/ ^A^ V A .y^ ^4^ 4go :/. %i 1.0 U4 11.25 ISO [28 12^ vi lii |2.2 •^ I'o 112.0 I: B 6" 1.8 U IIIIII.6 Va Va v: y /^ Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) S72-4S03 I # i(^ L. 8 possession on the continent of America, but the preten- sions of llio Kussian Ukase of 1821 to exclusive dominion over the Fanific could not continue longer unrepealed without comi>clling us to toko some measure of public and effectual remonstrance against it. " You will therefore tal^o core, in the first instance, to repress any attempt to giro tliis change to the character of the negotiation, and will declare without reserve that the point to which alone the solicitude of the Britislt 'Government nnd the jeahusy of the British nation attach any grcot importance" is the doing awoy (in a manner as little disagreeable to Russia as possible) of the effect of the Ukase oi 1821. Writing to Mr. 8. Canning in 1824 (8th Decem> ber), Mr. O. Canning remarks : — " That Uiis Ukase is not acted upon, and that instruc- tions have been long ago sent by the Russian Government to their crulzers in the Pacific to suspend the execution of its provisions, is true ; but a private disavowal of a published claim is do security against the revival of that olaim. The suspension of the execution of a principle may be perfectly compatible with the continued main- tenance of the principle itself, and when we have seen in the course of this negotiation that the Russian claim to the possession of the coast of America down to latitude 69° [tie] rests in fact on no other ground tlian the presumed acquiescence of the nations of Europe in the provisions of an Ukase published by the Emperor Paul in the year 1799, against which it is aflirmed that no ]iublic rumon- straucc was made, it becomes us to bo exceedingly careful that we do not, by a similar neglect, on the present occasion allow a similar presumption to be raised as to an acquiescence in the Ukase of 1821." " The right of the subjects of His Majesty to navigate freely in the Pacific cannot bo held as a matter of indul- gence from any Power. Having once been publicly questioned, it must bo publicly acknowledged. " Wo do not desire that any distinct reference should be made to the Ukase of 1821 ; lut wo do feel it necessatj that the statement of our right should be clear and posi- tive, and that it should stand forth in the Convention in the place which properly belongs to it, as a plain and sub- stantive stipulntinn, and not be brought in as an incideiiUil consequence of other arrangements to which we attorS comparatively little importance. "This stipulation stands in the front of the Conventiou Sesfoilkp. concluded between Russia and the United States of America ; and we see no reason why upon similar claims we should not obtain exactly the like satisfaction. "For reasons of the same nature we cannot consent that the liberty of navigation tlirough Uering Strait! ■hould be stated in the Treaty as a boon fh)m Russia. "The tendency of such a statement would bo to give eovntenuoe to those claims of exclusive jurisdiction agoiust which we, on our own behalf, and on that of tlio whole civilued world, protest * m * * " It will of course strike the Russian Plenipotentiaries that, by tho adoption of liio American Artielu ruspcctiu}; navigation, &c., tho provision for an exclusive flshery of 2 leagues from tae coasts of our respective possessions folia to the ground. " But tho omission is, in truth, immaterial. "Tho law of nations assigns tho exclusive sovereignty of 1 league to each Power on its own coasts, without any specitio stipulation, and though Sir Charles Bngot wa-i autliorizcd to sign tho Convention witli the specific stipu ■ lation of 2 leagues, in ignorance o( what had been decided in tho American Convention at tho time, yet, after that Convention has been some n™fT 28, isaa, , . . ., ,. , . , , . , . American State explaining tho motive which dctermmed the I'sDcn, Foreign Imperial Government in framing the Ukase. Hei«ii6ni, toI. if, He wrote : — pp. 86I-863. See Appendix. " I shall be more succinct, Sir, in tlie exposition of tho motives which determined the Impi^rial Qovemmcnl to proliiliit foreign vessels from approncliing tho norlli-west coast of America Ijclongiiig to llussia within tlio distance of at least 100 Italian miles. This measure, however sovci-e it may ut first appear, is, cfter all, but a measure of pievontion. It is exclusively directed against tho culpable enterprises of foreign adventurers, who, not content with exercising upon tho coasts above mentioned an illicit trade very prejudicial to tho rights reserved entirely to the Itussian-Americoii Company, take upon them besides to furnish arms and ammunition to the natives in the Kussian IMJSsessions in America, exciting them likewise in every manner to resist and revolt against the authcrities there established. " Tlie American Oovemmont doubtless recollects that tlio irrogulor conduot of these adventurers, tho majority of whom was composed of American citizens, has been the object of tho most pressing remonstrances on the part of Itussia to the Federal Government from tl'f imie that Diplomatic Missions were organized between tho countriesa These remonstrances, repeated at different times, remain constantly without effect, and the inconveniences to which they ought to bring a remedy continue to increase. .... " I ought, iu the lost place, to request you to consider, {Jkue Sir, that the Kussian possessions in the Pacific Ocean doetrinaof extend, on the north-west coast of America, from Behring Strait to the Slst degree of north latitude, and on tlie opposite side of Asia and tho islands adjacent, from the 40* same strait to the 46th degree. The extent of ica of which these possessions form the limits comprehends all the conditiona which are ordinarily attached to ihut ttat ("mere fermdes"), and the Russian Oovemment might consequently judga itself authorixed to exercise npon thia ■ea the right of sovereignty, and especially tliat of entirely interdicting the entrance of foreigners. But it preferred only assorting its Ofusential rights, without taking any advantage of localities." To this Mr. Adams replied (30th March, 1822). He said : — Sir Appendix. "This pretension is to be considered not only with reference to the question of territorial right, but also to that prohibition to the vessels of other nations, including those of the United States, to approach within 100 Italian miles of the coasts. ] leigntjr over the Pacific Ocean oa a closo sea, bocanae it cloima territory both on ita Amcricau and Asiatic ohorca, it may luffloo to lay that the distance from shore to shore on this sea, in latitude 01° north, is not less than OO" of longitude, or 4,000 milus." SOlh Otmg., Hh Urn- Sen. Ei. noe., No. lOS. •I, (U Polttiea to Vlr.J. Q. Adami, April i, 1839. 8m Appendii. The Russian ReprasentatiTO replied to this note on the 2nd April following, and in the course of his letter he said : — " In the same manner the gr torial jurisdiction upon the theory of a shut sea and having no other basis) : — " The extension of territorial rights to the distance of Amcrieaa Suis IOC miles from the coasts upon two opposite continents, and the prohibition of approaching to the same distance from these coasts, or from those of all the intervening islands, are innovations in the law of nations, and measures unexampled. It must thus be imagined that this prohibi- tion, bearing the pains of confiscation, applies to a long line of coasts, with the intermediate islands, situated in vast seas, where the navigation is subject to innumerable and unknown difficulties, and where the chief employment, which is the whale fishery, cannot te compatible with s regulated and well-determined course. " The right cannot be denied of shutting a port, a sea, or even an entire country, agaiust foreign commerce in some particular cases. But the exercise of such a right, unlras in the case of a colonial system already established, or for some other special object, would bo exposed to an unfavourable interpretation, as being contrary to the liberal spirit of modem timea, wherein we look for Uie bonds of amity and of reciprocal commerce among all nations being more closely cemented. " Universal usage, which has obtained the force of law, has established for all the coasts an accessory limit of a moderate distance, which is sufBdent for the leooritj oC Ptpen, Foreifa Relations, toL r, f.4M. r^ Amcricin Slat* Pipcrt, Foreign Ktlitiont, vol, T , pp, 48S-460. the oooatiy tnd for the conveniflnce of ita inhabitanta, bat which Uys no restraint upon tho univonal righta of DftUoDa, nor upon the freedom of commerce and of naviga- tioB.' (Vattel, Book I, Chapter 23, section 28U.) At the fourth Conference (8tli March, 1824) which preceded the signature of tlio Treaty of the 6th (17th} April. 182i, Mr. Middlcton, the United States' B«pre8entatiTe, submitted tc Count Kenaelrode the following paper : — " (Ti - •ion.) "Tbb I'inion cannot be acquired but by a real oeonpaMo I and possesaion, and on intention (' aoinnu *) to e<<*^q>us of 1824 and 1825 declared and recognized the rights of the subjects of Great Britain and the United States to navi- gate and fish in all parts of the non-territorial waters with which the Ukase proposed to interfere. Ohaftib III. HbaO O.'^The question whether tiu, body of water now known at the Behring Sea is included in the phrase " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia. It will be remembered that the Ukaso of 1821 included the Facitlo from the Behring Strait south' ward to the Slat parallel, and that this claim was protested against in toto, on the ground that the ooast was almost entirely unoccupied, and that maritime jurisdiction, even where the coast was occupied, could not extend beyond 3 miles. In the first Articles of the Conventions of 1824 and 1825 the claim to an extraordinary jurisdiction at sea was definitely abandoned, and the abandonment was a complete withdrawal of the claim made. It was principally n gainst this very claim that the protests of Great Britain and the United States were directed, and its relinqiiishment was therefore, and purposely, placed at the head of each of the resulting Con- ventions. Article I of the Convention between Russia and the United States is as follows : — "It is (igrced that in any port of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the High Contracting Powow shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points wliich may not already have been occu- pied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following Articles." Article I of the Convention between Great Britain and Russia is as follows : — "I. It is agreed that the respective subjects of the High Co'jtracting Parties shall not be troubled or molested in any part of the ocean, commonly called the Pacific Ocean, either in navigating tlie same, or fishing, therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the nistrictions and conditions specified in the fol- lowing Articles." It has been contended, however, on the part of the United States, that the renunciation of claims contained in the Articles above quoted did not extend to what is now known as Behring Sea. On this point Mr. Blaine, Secretary of State for the United States, writes : — r 44] 60 "The United States contends that the Behring Sea was Mr. BUioe to fir not mentioned, or even referred to, in either Treaty, and i* P^Mjefotf. Bin* .,,,.,, .^ ^ > Book, United was m no sense included in the phrase 'Pacific Ocean. States, No. 1,1891 K Great Britain can maintain her position tliat the P- 37- Behring Sea at the time of the Treatios with Russia of 1824 and 1825 was included in the Pacific Ocean, the Government of the United States has no well-grounded complaint against her." In order to uphold tlie contention thus advanced by the United States, it is, however, further found necessary to maintain that the words " noi'th-west coast " and " north-west coast of America," which frequently occur in the correspondence connected with those Conven- tions, refer only to a portion of the coast of the continent south of Behring Sea. This portion of the coast Mr. Blaine endeavours to define precisely in his letter, which hap. just been quoted, illustrating his meaning by Maps, and endeavouring to restrict the appUcation of the term to that part of the coast which runs south- ibid., p. 38. ward continuously from the 60th parallel. The meaning of the phrase "Pacific Ocean ' and that of the term " north-west coast " are thus intimately associated in the contention of the United States, and it will be convenient to treat them together. Meaning of the phrase "Pacific Ocean" and the term "North-west Coast" in thu Treaties and Correspondence, It will be found that such a construction of M. dc Poletic* to these phrases as Mr. Blaine has striven to place *?!; *'^'"'' ,.„„ ^ _ _ '■ tebrunry 28, 1822. upon them cannot be reconciled Tith the corrc- See Appendix, spondence. In the first place, it has already been shown that Russia's object was not the acquisition of the control of the sea between Behring Strait and latitude 51° — this she distinctly denied — but the exclusion from her coasts in Asia and America, and on the islands, of the traders whose ventures threatened the success of the Bussian-American Company. No claim had been advanced by Russia which could possibly render a distinction between Behring Sea and the main Pacific of the slightest importance. On the contrary, in the Ukase of 1799, Russia assorted jurisdiction over her subjects on all hunting grounds and establishments on the coast of America from the 55* north latitude to Behtiug Strait and southward to Japan, and oa 51 the Aleutian, Kurile, and other Islands in all the " north-eastern " ocean. Throughout Russia was endeavouring to assert a title to the whole coast from Behring Strait to 51° north latitude on the American, and latitude 45° 50' on the Asiatic coast. Her claim to an extraordinary maritime juris- diction over the waters of the ocean non- territorial waters was definitively abandoned at the outset of the negotiations, and the discussion was thenceforward confined to the protection of her rights within territorial limits. Russia's object was the recognition and pro- tection of the Russian Settlements in America, Accordingly, the Conventions provide against " illicit commerce," landing " at any place [from Behring Strait to the southernmost boundary] where there may be a Russian establishment without the permission of the Governor or Com- mandant," and against the formation of Establish- ments by eituisr Power (in the respective Con- ventions) on territory claimed by, or conceded to, the other. See Appendix. With the same object rules were made by Russia, headed " Rules established for the Limits of Navigation and Order of Communication along the coast of the Ea8te:ni Siberia, the north-west- coast of America, and the Aleutian, Eurile, and other Islands." This obviously included the American coast of Behring Sea in the term " north-west coast." Baron Nicolai to Lord Londonderry, 31st October (12th November), 1821, says : — " (Translation.) " The new Regulation does not forbid foreign vessels to naviRdte tho .jcas which wash the Kussian possessions on ._ .' tKo>i coaat of Behring Sea is included in the term. Pacific Ocean appears twice, and in hoth includes the Behring Sea. A Map, of which a copy is included among the documents annexed to this Case, was for- warded by Sir Charles Bagot to Lord London- derry, in a despatch dated the I7th November, 1820, in which it is thus described : — " I have the honour to transmit to your Lordship, under a separate cover, an English translation of the Uka£e, and I at the same time inclose a Map of the north-west coasts of America, and the Aleutian and Kurile Islands, which has been published in the Quartermaster- General's Depart- ment here, and upon which I have marked all the prin- cipal Bussiau Settlements." It will be seen on reference to this Map that the words "part of the north-west coast of America " include the whole coast line from a point north of Behring Straits down to k itude 5i° north. Again Lord Londonderry writes to Count Lieven: — " The Undersigned has the honour hereby to acknow- Lord Londonderry ledge the note, addressed to him by Baron de Nicolai of j,nu«rv 18 1823. tlie 12th November last, covering a copy of an Ukase See Appendix, issued by His Imperial Majesty the Emperor of All the r.ussias, and bearing date the 4th September, 1821, for various purposes, therein set forth, especially connected ■with the territorial rights of his Crown on the iwrth- ve-iicrn coast of America, bordering upon the Pacific, and the commerce and navigation of His Imperial Majesty's subjects in the seas adjacent thereto." And Mr. S. Canning writing in February 1822 to Lord Londoaderry from Washington, where lie was then British Minister, observes : — " I was informed this morning by Mr. Adams that the Mr. Ftntford Hussian Envoy has, within the last few days, comrauni- Canning to the . Marquis of cated officially to the American Government an Ukase of LondlmdeRT, the Emperor of Hussia, which has lately appeared in the February 19, 1899t public prints, appropriating to tlie sovereignty and ex- clusive use of His Imperial Majesty the north-ivest coast of America down to tlie 51st parallel of latitude, together with a considerable portion of the opposite coasts of Asia, and the neighbouring seas to the extent of 100 Italian miles from any part of the coasts and intervening islands 80 appropriated, In apprizing me of this circumstance, Mr. Adams gave me to understand that it was not the intention ui. the American Cabinet to admit the claim thus See Appendix. 08 notified on the part of Russia. His objection appears to lie mo'e particularly against the exclusion of foreign vesselB to so great a distance from the shore." See Appendix. Again M. dc Poletica, writing to Mr. Adams on the 28tli Tebraarj-, 1822 :— " The first discoveries of the liussians on the north-weat 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 thia great Monarch, to find a passage from the icy sea into the Pacific Ocean." • • • • " When, in 1799, the Emperor Paul I granted to the present American Company its first Charter, he gave it the exclusive possession of the norlh-^ccst coast of America, which belonged to Kussia, from the 55th degree of north latitude to Behring Straits." • • • • " From this faithful exposition of known facts, it is easy. Sir, as appears to me, to draw the conclusion that the rights of Russia, to the extent of the north-ivest coast, specified in tlie Regulation of tlie Russian-American Company, rest," &c. • • • • " The Imperial Government, in assigning for limits to the Rtissian possessions on the north-v:cst coast of America, on the one side Behring Straits, and on the other the 51s< degree of north latitude, has," &c. Hudion'a Bny Company to tl e Marquis of Londonderry, March 27, 1833. fee Aiftndix. Mr. Adama to Mr. Rush, July S2, 183S. American State Papers, Foreign Relations, vol. V, p. 446. See Appendix. " I ought, in the last place, to request you to consider. Sir, that the J^tissian possessions in the Pacific Ocean extend on the north- west coast of America from Behring Straits to the 51s< degree of north latitude, and on the opposite side of Asia and the Lslauds adjacent from the same strait to the 45th degree." Tlirougliout this note the phrase " north-west coast " includes the coast of Beliring Sea, and the last passage sliows unmistakably that the Russians at that time regarded the Pacific Ocean as ex- tending to Behring Strait. The attention of the British Government was called to the Ukase by the Hudson's Bay Com- pany in the following terms : — " It has fallen ui.dcr the obser^-ation of the Governor and Committee of the Hudson's Bay Company that the Russian Government have made a claim to the north-icest coast of America from Behring Straits to the 51st degree of north latitude ; and in an Imperial Ukase have pro- hibited foreign vessels from approaching tlie coast within 100 miles, under penalty of confiscation. Mr. Adams, in 1823, dealt with the Bussian claim as one of exclusive territorial right on the north-west coast of America, extending, as he said, from the " northern extremity of the continent." Articles in the "North American Review" (vol. xv, Article 18), and " Quarteriy Review " (1821-22, [644.] P u .463. See Appendix. Tol. xxvi, p. 341), published at tho time of the controversy, and already referred to as mentioned with approbation by Mr. Adams, in 1824i-26, use the words " north-west coast " witli the same signification. Mr. Adams in his despatch of tho 22nd July, Amerieui Suto 1823, referred to the Ukase of the Emperor Paul ^/JJ^J'^'jif^ as purporting to grant to tho American Company p. 436. the " exclusive possessioa of the north-west coast See Appendix. of America, which belonged to Russia, from the 55th degree [sic] of north latitude to Behring Strait." The fact that the whole and not mer-ly a particular portion of the territorial and maritime claim advanced by the Ukase was in question, and was settled by the Treaties of 1824 and 1825, also appears from the Memorial laid by Mr. Middleton, on tho part of the United States, before the Russian Government on the 17th December, 1823:— " With all the respect which we owe to the declared American Suta intention and to the determination indicated by the Ukase, ^'J",' "^ ' '' it is necessary to examine the two points of foot ; (1.) If the country to tlie south and cast of Behring Strait, as far as the 51st degree of north latitude, is found strictly unoccupied. (2.) If there has been, latterly, a real occupation of this vast territory? .... The conclusion which must necessarily result from these facts does not appear to establish that the territory in question had been legitimately incorpo- rated with the Russian Empire. "The extension of teiritorial rights to the distance of 100 miles from the coasts upon two opposite continents, and the prohibition of approacliing to the some distance from these coasts, or from those of all the intervening islands, ore innovations in the law of nations, and measures unexampled." In an earlier part of the same paper, Mr. Middleton observes :— "The Ukase even goes to the shutting up of a strait which has never been till now shut up, and which is at present the principal object of discoveries, interesting and useful to the sciences. " The very terms of the Ukase bear that this pretension has now been made for the first time." The same appears from Mr. G. Canning's despatch to Sir C. Bagot of tho 24.th July, 1824f (which has been ah-eady quoted in another connection) : — " Tour Excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question. The first, the assumption of the base of the mountains, instead of the summit as the line of boundary ; the second, the extension of the right of pavigation of the Pae\/ie to the tea beyond Befmng Straits. £5 Sm anU, p. " As to the second point, it is perhaps, aa Count Licvcn remarks, new. But it is to bo remarked, in return, tlmt tho circumstances under which this additional security is required will be now also. " By the territorial dewnrcation agreed to in this ' Projct,' Russia will become possessed, in acknowledged sovereignty of both sides, of Behring Straits. " Tho Power which could think of making tho Pacific a marc clausuvi may not unnaturally be supposed capable of a disposition to opply the same character to a strait com- prehended between two shores of which it becomes tho undisputed owner ; hut Oie sltntling up of Dehring Straits, or tlie power to shut t/iein up lureafier, would be a thing iiot to he tolerated by England. " Nor could we submit to be excluded, ciHier poailiveli/ or constructively, from a sea in which the skill and science of our seamen has been ami is still employed in enterprises interetling not to this country alone, but to the whole civilized vcrld. "Tho protection* given by the Convention to tho American coasts of each Power may (if it is thouglit necessary) be extended in terms to the coasts of the Russian Asiatic territory ; but in some way or other, if not in the form now prescribed, the free navigation of Behring Straits, and of the seas beyond them, must bo secured to us." It would have been of little advantage to secure the right to navigate through Behring Strait unless the right to navigate the sea leading to . it was secured, which would not have been the case if the Ukase had remained in full force over Behring Sea. The frequent references to Behring Strait and the seas beyond it show that there was no doubt in the minds of tho British statesmen of that day that, in obtaining an acknowledgment of freedom of navigation and fishing throughout the Pacific, they had also secured this right as far as Behring Strait. As corroborative proof of the usual practice of the British naval authorities, in the nomenclaturo of these waters, reference may be made to tho instructions given in 1825 by the Lords Com- missioners of the Admiralty, which will be found in the " Narrative of a Voyage to the Pacific and Behring Strait, &c.," under command of Captain F. W. Beechey, R.N., in the years 1825-26-27-28, published by authority in London, 1831. These instructions from the Lords Commis> * (t.«.) Sj tie extenaion of territorial jurisdiction to two leagues, as originallj propo.ied in the coune of the negoliationt between Great Britain and Ruasia CO sioners, which are full and detailed, make reference only to Behring Strait and the Pacific Ocean, and do not mention the Sea of Kam- tchatka or Behring Sea. Common meaning of " Pacific Ocean " and " North- West Coast." The works of Mr. Hobert Greenhow, Trans- lator and Librarian to the United States' Department of State (well known in connec- tion with the discussion of the "Oregon ques- tion"), afford a detailed and conclusive means of ascertaining the views oificially held by the United States' Government on the meaning of Pacific Ocean, Behring Sea, North-west' coast, and the extent to which the claims made by Russia in the Ukase of 1821 were abandoned by the Con- yentioa of 1S2'1'. A " Memoir " was prepared by Mr. Greenhow, on the official request of Mr. L. P. Linn, Chairman of Select Committee on the Territory of Oregon, by order of Mr. John Forsyth, Secretary of State. rt includes a Map entitled " The North-west Coast of North America and adjacent Territories," which extends from below Acapulco in Mexico to above tlic mouth of the Kuskoquim in Behring Sea, and embraces also the greater part of the Aleutian chain. Touching the signification of the terms North- west coast and Pacific Ocean, and the meaning attached to the relinquishment of Russian claims by tlie Convention of 1824, the first part of the " Memoir," under the heading " Geography of the Western Section of North America," con- tains the following passage: — "The north-west coast* is the expression nsuully em- ployed in tl'.o United Stites at the ^ sent time to distingnisli the vast portion of the American continent whieli extends north of the 40th parallel of latitude from the Pacific to the great dividing ridge of the liocky Mouniains, together with the contiguous islands in tliat ocean. Tlio so'-iiiuin part of this territory, which is drained almost entirely by the River Columbia, is commonly called Oregon, from the supposition (no doubt erroneous) that such was the name applied to its principal stream by the aborigines. To the more northern parts of the continent many appellations, which will hereafter bo mentioned, have been assigned by navigators and fur traders of various nations. The territory Iwrdering upon the Ppcific soutliward, from the 40th parallel to tho * N.B.— Th* italia io tliU uil lulneqsent qnoUtloni an thcM cmplofwl ht Gnenboir hlmielf. GrMnhow'a worki. ■'Hemoir H:ftorial ind FolUiol of th« nortb-wett cout or North America tnd the >4J*eent territoriM, iilnitiat^* bj • Ibp tad t g«agr»pbicsl view of theao conntriei, Ky Bobeit GKenbow, Truulator and Ubrariin to tb« Dejnrt- ment of State." Senate. 2.ring upon the Atlantic. The north-west coast and the west coast of California, together form the weU coast of North America; as it has been found impossible to separate the history of these two portions, 80 it will be necessary to include them both in this geographical view " (p 1). Mr. Greenhowr here gives the following note : — "In the following pages the term coast will be used, sometimes as signifying only the sea-shore, nnd sometimes as embracing the whole territory, extending therefrom to the sources of the river ; care lias Ijeen, however, taken to prevent misapprehension, where the context does not sufTiciently indicate the trae sense. Tn order to avoid repetitions, the north-west coast will be undei-stood !■■ bo the north-west coast of North America ; all latitudes will be taken as north latitudes, and all longitudes as west from Greenwich, uidess othenvise expressed. l'» • • • • " The northern extremity of the west coast of America is Cape Prince of WalcJi, in latitude of G5° 52', which is also the westernmost spot in the whole continent ; it is situated on the eastern side of Beerinij's Strait, a channel 51 miles in width, connecting tbo Pacific with the Arctic (or 1(1/ or A'orth Frozen) Ocean, on the western side of which .strait, opposite Capo Prince of Wales, is East Cape, the eastern extremity of Asia. Beyond Boering Strait the shores of the two continents' recede from each otlier. The north coaM of Americc lias been traced from Cape Prince of V/nles uorth-oastward to Ca^w Barrow!' &c., \>\>. 3-4. The relations of Bchring Sea to the Pacific Ocean are doftned as follows in the " MomoiL'": — " Tlie part of the Paeifie north of the Aleutian Islands which bathes those shores is commonly distinguished as the Sea of Kavitchathi, and sometimes as Bthrimj Sea, in honour of the Russian navigator of tliat name who first explored it " Cpp. 4-5). "The Ueofraphjr of Oregon mid C»liforni» «'iil llic other UnltoriM on the north-wett cewt of Ivor'h Amvric*." New York, IgW. Again, in the "Geography of Oregon and California," Mr. Qreonhow states as follows : — "Cape Princo of Wales, tlie westernmost point of America, is the cn.storn pillar of Bchring Strait, a passage only 60 miles in width, Bcparatiiig that ediitineiit from Asia, and forming the only direct communication between the Pacific and Arctic Oceans. IQU} ije^A'.fifi' •• 'i 58 " The part of the Pacific called \iheSeaof KxTfUchatha,cit Behring Sea, north of tho Aleutian chain, likewise con- tains several islands," &c. (p. %). GreenlioVs " History " was officially presented to the Government of Great Britain by the Government of the "United States in July 1845, in connection with the Oregon discussion and in pursuance of an Act of Congress.* I. t.'is History the Sea of Kamtchatka, or Behi. .{ is again referred to as a part of the Pacific KJ In respeci. jf the understanding by tho United States that the claims advanced hy the Ukase of 1821 had been entirely relinquished bj the Russian and United States' Convention of 18;i4, "The Hiitot; of Oregon and Califomb and the oUiar urrltoriea on tU* nottb-weat eout of Nortli America, by Robert Qrecnhon, Translator and Librarian to the Depart- ment of State of tbo United States ; author of a Memoir Ilietorieal and Political, on the north-west eout of North America, published in 1340 bj direction of the Senate of the irnitv4 Statoe." New York, 184E. This is a second edition, and in the prelsee it is ezplaised that its issue was rendered ncceassry to supplj 1,SOO copies of the work which bad been ordered for the Oeneral GoTemment. The same work. First edition, London, 1841. Both editions contain Maps, which appear to be identical, but different from tho JMaps accompanying the Memoir, though including nearly the ome limit* with them. * The following is the conospondeuce accompanying the presentation bj the Government of tho United States : — " Mr. Buchanan to Mr. FakenJiam. " Department of State, Washington, "Sir, " July 12, 18i5. " In pursuance of an Act of Congress approved on the 20th Febmary, 1845, I have the honour to transmit to you herewith, for presentation to the Government of Great Britain, one copy of the 'History of Oregon, California, and the other territories on the Kortli-west Coast of America,' by Eol)ert Grecnhow, Esq., Translator and Librarian of the Department of State. " I avail, &c. (Signed) "James Bcchanan." "Mr. Pakenham, to the Earl of Aberdeen. — {Received " August 16.) " My Lord, " Washington, July 29, 184.5. " I have the honour herewith to transmit a copy of a note which I have received from tho Secretary of State of the United States, accompanied by a copy of Mr. Green- how's work on Oregon and California, wiiich, in pursuance of an Act of Congress, is presented to Her Majesty's Government. "Although Mr. Grccuhow's book is already in your Lordship's possession, I think it right, in consoquonco of the official character with whicli it is presented, to forward to your Lordship the inclosed volunio, behig tho identical one which has been sent to nio by Mr. Duchanan. "I have not failed to acknowledge tho receipt of Mr. Buchanan's note in suitable terms. " I have, Ac, (Signed) "R. PAKsaiiUM." 1 TlUnnenieft Appendix. 184CJ Ibid. 69 the following is found on a later p^ge of tlio Tolumo last refeiTed to : — "This Convention does not appear to offer any grounds for dispute as to the construction of its stipulations, but is, on the contrary, clear, and enualiy favourable to botli nations. The rights of both parties to navigate every pait of the Pacific, and to trade with the natives of any places on the coasts of that sea, not already occupied, are first acknowledged, &c. " (p. 342). It is thus clear, as the result of the investiga- tions undertaken hy Grcenhow on hehalf of iho United States' Government — That Behring Sea was a part of the Pacific. That the north-west coast was understood (o extend to Behring Strait. That Ilussia relinquished her asserted claims over " every part of the Pacific," That the phrase " Pacific Ocean " in the Treaty included Behring Sea is stUl further shown by the reply of the E-ussian Government to Governor Etholin in 18-42, when he wished to keep Ameri- can whalers out of Behring Sea : — " The claim to a, mare dausiim, if we wished to advanca such a claim in respect to the nortlmn i)art of tlie Pacific Oci'.an, could not be vheoretitally justified Under Article I of the Convention of 1824 between Russia and the United States, %vhich is still in force, American citizens have a riijht to fish in all parts of the Pacific Ocean.. But under Article IV of the same Convention, the ten years' period mentioned in that Article having expired, we have power to forbid American vessels to visit inland seas, gulf', harbours, and bajs for the purposes of fishing and trading with the natives. That is the limit of our rights, and wo have no iwwer to prevent American ships from taking whales in the open sea." Again, in the reply of the Russian Government to the Governor-General of Eastern Siberia, the following words occur : — " Wo have no right to exclude foreign ships from thct part of the great ocean which separates the eastern shore of Siberia from the north-western shore of Auierica," &c. Sea p. The instructions which were finally issued to the Bussian cruizcrs on the 9th December, 1853, are to the same effect. The Legislature of the Territv.; ; of Washington, in 1806, referred to " fishing banks known to navigators to exist along tl e Pacific coast from the Cortes hank to Behring Strait." CO It is clear that the Honourable Charles Sumner, Mhen propc ing to the Senate, in the year 1807, the adoption of the Treaty of Cession of Alasfea, understood tho words "North Pacific" in the sense in which these words are defined by the authorities just cited. In his speech on that occasion, Mr. Sumner thus referred to the waters in question : — " Sea-otter seems to belong exclusively to the North See Appendix. Pacific Its present zone is between the parallels of C0° and 65' north latitude on the American and Asiatic coasts, so that its range is very limited." Mr. n. W. Elliott, who was engaged in the Report on the Seal study of the seal islands of Alaska for the United walhinrton Vmi States' Government as late as the year 18S1, in PP- 6> ?• Lis official Report on the seal islands of Alaska 13 marked, concerning the seals : — " Their range in the ^'o-rth Facifie is virtually confined to four islands in Bering Sii.i, namely, St. Paul and St. George, of the tiny Piibyloff group, and Bering and Copper of the Commander Islands." Again, he says : — " lu the North Atlantic no suitable temtory for their reception exists, or ever did exist ; and really nothing in the Nortli Pacific beyond what we have designated in Boring Sea." He also describes the rookeries in Behring Sea as " North Pacific rookeries." And also : — " Geographically, as well as in regard to natural history, jtid., p. 110. Boring Island is one of the most curious islands in the northern, ^mrt of the Pacifio Ocean." The above arc, however, only a few from among very many similar instances which might bo quoted of the continued usage of tho name " Pacific Ocean " as including Behring Sea. In 1882 a portion of Behring Sea is referred to by the Russian Government as " Russian waters of tho Pacific " and as " our Pacific waters," in connection with a Notice published by A. K. Pelikan, His Royal and Imperial Majesty's Consul, Yokohama, on the 15th November, 1881, from which the following is an extract ; — At the request of tho local authorities of Behring and ■• Cong., 3nd other islands, the Undersigned heroby notifies that tho x>l'(i''So''\Q6' p. 2fi9. lYvP- %u^.\\\y&f^ 61 Eussian Imperial Government publishes for general know- ledge the following : — 1. Without a special permit or licence from the Governor-General of Eastern Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, &c., on the Eussian coast or islands in the Okhotsk and Behring Seas, or on the north-eastern coast of Asia, or within their aea boundary-line." 50t)i Cong., 9nd Sess,, Sen. Ex. Doc. Ko. 106, p. 262. In the correspondence between the United States and Russia, touching the meaning of this Regulation, the Notice is alluded to by M. de Giers as "relating to fishing, hunting, and trade in the Russian waters of the Pacific," and as relative to fishing and hunting in " our Pacific •waters." In the same correspondence the Secretary of State of the United States and tlio United States' Minister at St. Petersburg similarly speak of " Pacific Coast fisheries " and " our Pacific Ocean fisheries." Writing on the 8th (20th) May, 1882, to Mr. Hoffman, the American Minister at St. Petersbui'g, M. de Giers said : — " Eeferring to the exchange of communications ■which has taken place between us on the subject of a Kotice published by our Consul at Yokohama relating to fishing, hunting, and to trade in the liussian waters of the Pacific, and in reply to the note whicla you addressed to me, dated the 15th (27th) March, I am now in a position to give you the following iufonaation : — " A Notice of the teuour of that annexed to your note of the 15tli March was, in fact, published by our Consul at Yokohama, and our Consul-General at San Francisco is also authorized to publish it. " This measure refers only to prohibited industries and to the trade in contraband ; the restiictious which it establishes extend strictly to the territorial waters of Russia only. It was renuu'ed by the numerous abuses proved in late years, and which fell with all their weight on the population of our sea-shore and of our islands, whose only means of support is by fishing and hunting. These abuses inflicted also a marked injury on the interests of the Company to which the Imperial Qovernment had conceded the monopoly of fishing and hunting (^exportation'), in islands called the ' Gcmmodore ' and the, ' Seals' "Beyond tliis new Regulation, of which the essential point is the obligation imposed upon captains of vessels who desire to fish and to hunt in the Jiussia^i waters of tht Pacific to provide themselves at Vladivostock with the permission or licence of the Governor-General of Oriental Siberia, the right of fishing, hunting, and of trade by foreigners in our territorial waters is regulated by [04 d] R 62 Article 560, and those following, of vol. xii. Fart II, of the Code of Lawa. "Informing you of the preceding, I have, &c." Bancroft writes, in his "History of Alaska" (pp. 19, 20) : " The Anadir, which empties into the Pacific." Again : " Thus the Pacific Ocean was first reached by the Russians on the shore of the Okhotsk 8oa." And yet again : " The ascent of the Lena brought the Russians to Lake Baikal, and showed them another route to the Pacific, through China by way of the Amoor." So, in 1887, it is found that the American 50th Gang., Snd Representative at St. Petersburg informed no'.'No.'^ioe^ Mr. Bayard (17th February, 1887) that the p- 268 Notice already quoted prohibits fishing, &c., on "the Russian Pacific coasts." This corre- spondence related to a seizure which had been made in Behring Straits. Geographical uic of " Pacific Ocean " and " North- West Coast." In the discussion of the question of jurisdic- tion between the United States and Great Britain, special reference .las been made by the United States to the marking of Maps, from which it has been insisted that the waters of Behring Sea had been given a name distinct from that of the Pacific Ocean. Prom this it was urged that the words " Pacific Ocean" in the Conventions were used with great care, so as to reserve the waters of Behring Sea under the exclusive jurisdiction of Russia. It is very noteworthy in studying any series of Maps chronologically "arranged, particularly those published before the middle of the present century, that Behring Sea is frequently without any general name, while the adjoining Sea of Okhotsk is in almost every instance clearly designated. On various Charts issued by the United States' Hydrographic Office, including the latest and most perfect editions now in actual use, the ex- pression "Pacific" or "North Pacific Ocean" is used as including Behring Sea. Thus :— No. 909. Published March 1883 at the Hydro- graphic Office, Washington, D.C. : — "Pacific Ocean. Behring Sea, Plover Bay, from a survey by Lieutenant Maximov, Imperial Russian Navy, 1876." (Plover Bay is situated on the Asiatic coast, neai the entrance to Behring Strait.) 68 Malhtm, John, "N»nl GMtittMr,'' 179S. Brook«a. R,, " Genenl Ouetttn'/' 1802. Gullttli, J. G. 1822. ' Geographtu'aei Wtfrtarbnob," Ptttb, ' Dlctioiintiie QtoinpUqae UQiTerial," 1828, Belli, Dr. i. C, T»rtcrbuch,' Geognphiuhu Peith, 1822, HalbenUdl, StAtlatlKbai 1829. Hand- ArrowimiUii " Gisinmu of Modem QMfnpby," 1BS2. No. 010. Published October 1882 at tbo Ilydragrapbic Office, Washington, D.C. : — " North racilic Ocean. Anadir Hay, Bohring Sea. From a Chart by Engineer Bulklcy, of New York, in 18C5," &c. (Anadir Bay is situated between latitudes Gl' and Co" on tlie Asiatic side of Behring Sea.) Similar evidence is afforded liy tlic titlo-pago of the work issued by the same llydrographic Office in 1809, as follows :— "Directory of Behring Sea and tlie coast of Maska Arranged from the Directory of thv. Pacific Ocean." The British Admiralty Chart of Behring Sea, corrected up ;o November 1889, but originally compiled in 1881 (No. 21G0), is likewise entitled :is followa: — " North-west Pacific. Kamchatka to Kadiak Island, including Behring Sea and Strait." Tho definitions touching the Pacific Ocean, Behring Sea, &c., to be found in gazetteers, dictionaries, and geogi-aphics of the world, both Oi the present and past dates, moreover, show conclusively that Behring Sea was and is now understood to form an integral part of the Pacific Ocean. Such formal definitions are naturally more trustworthy than inferences drawn from tho construction of Maps. A few of these will suffice, tliough many more might be quoted : — " Becriiig's Straits, wliich is the passiigo from the North Pacific Ocean to tlie Ai'ctic Sea. " Deeriug's Island. An island in the I'acifio Ocean, [liehring's Island is in Behring's Soa.] " Kaniscliatka. Boumled east and south by racific. " Stilles Meer. Vom 5 nordl. Br. an bis zur Berings- strasse aufwarts stets heftigo Sturme. [Behring's Strait ia at tho northern extremity of Behriujj'g Sea.] " Mer Pacifique. II s'etend du nord au sud depiu's lo Cerclo Polidre Arctique, c'est-i-dire, depuis le Detroit do Behring, qui lo fait communiquor k I'Ocdan Glacial Austral. "Stilles Meer. Vom .30 sUdlicher Breite bis zum 5 nordlicher Breite verdient es durch seine Heiterkeit und Stille den namen des Stillen Meers; von da an bis zup Beringsstrasse ist est heftigeu Sturmen unterwofen. " Bhering's Strait connects the Frozen Ocean with the Pacific " The Anadir flows into the Pacific Ocean. " The principal gnlfs of Asiatic Russia are : the Gulf of Anadir, near Bhering's Strait ; the Sea of Penjina, and tha Gulf of Okhotsk, between Kamtchatka and the mainland, of ItuBsia — all three in the Pacific Ocean. mm CI " L'Ocdan Pacifique Boreal s'^tend depuis le Detroit do Behring jusqu'au Tropique de Cancer. " Le l)(5troit de Behring. A commencer par ce ddtroit, le Grand Ocean (ou Octian Pacifique) forme la limite orientalo de I'Asie. "Behring (detroit c(^dobro). II joint TOcoan Glacial Arctique au Grand Oc6an. "The Pacific Ocean. Its boundary-line is pretty '.ve)I determined by the adjacent continents, wliich ripproach one anotliev towards tlio north, and at Beliring's Strait wliicli separates tlieiii, are only about 36 :niles apart. This strait may be considered as closing the Pacific ou the north. " Behring (Detroit de) b 'I'extremittS nord-est de I'Asie, B^pare ce continent do I'Amerique et I'Ocean Glacial Arctique de TOcean Pacifique. "Behring (Mer dc), partie d-^ I'Ocean Pacifique. " Behring (Detroit do). Canal de VOccf-an .... unissant les eaux de I'Ocean Pacifique a celles de I'Ocuan Arctique. "Pacific Ocean. Between longitude 70" west and 110° east, that is, for a space of over 180", it covers tlip greater part ot the earth's surface, from B.diring's Straits to the Polar Circle, that separates it from tl e Antarctic Ocean. " Beliring Sea is that part of th.e North Pacific Ocean between the Aleutian Islands in latitude 55° north and Behring Strait in latitude 60- north, by which hitter it communicates with the Arctic Ocean. " Behring Sea, somet'rues called the Sea of Kamtchatka, is that portiuii oi the N nrtli Pacific Ocean lying between tlie Aleutian Islands and I'ehring's Strait. " Behring (Detroit do). Canal du Grand Oc»5an unissant les caux de I'Oeean Pacifique a celles de I'Ocdan Glacial Arctiipic. " Pacific Ocean. Its extreme southern limit is the Antarctic Circle, from which it stretches nortliwartl through 132° of latitude to Behring's Strait, which separates it from the Antic Ocean. " Behring (Detroit de). Canal ou bras do mer unissant les caux de I'Ocean Glacial Arctique h, celles do I'OccJan Pacifique. " P.elning (Di5troit do). Pa.ssage qui unit I'Ocean Glacial Arctique au Grand Occ'an." / " I'eliring Sea, or Sea of Kamclmtka, in tli.it part of the North Pacific Ocean between the Aleutian Islands in latitude 55° north and Behring Strait in latitude 66 " north, by wbich latter it communicates with the Arctic Ocean. " P.eringRstrassc. Mocrcnge dus nordoslicliste Eismeer mit dem Stilleii Ocean verbinciend. "Beliring's Strait, connecting the North Pacific with the Arctic Ocean. " Beliring's Sen, sometimes called the Sen of Kamchatka, is that portion of the North Pacific Ocean lying between the Aleutian Islands and Bchring's Strait." "Pr"ew York, 1887, p. 44. Finally, a few passages may be quoted from English and American publicists of acknowledged eminence, to show the manner in which the general question has been viewed by them. In referring to the Russian Ukase of 1821, Wharton, " Digest of International Law of the United States," Washington, 1886, vol. i, sec- tion 32, p. 3, speaks of Russia — " Haying asserted in 1822 to 182-t an exclusive jurisdic- tion over the north-west coast and waters of America from Behring Strait to the fifty-first degree of north latitude." Mr. Davis, Assistant Professor of Law at the United St:i rs' Military Academy, " Outlines of Internni nal Law," New York, 1887, p. 44 : — "Eu8.sia, in 1822, laid clai • to exclusive jurisdiction over that part of the Pacili> Ocean lying north of the 61st degree of north latitude, on the ground that it pos- sessed the shores of that sea on bot'i continents beyond that limit, and so had tlia right to restrict commerce to the coast inhabitants." Jai. B. Angell, in the " Forum," Norember 1889; •'American Rlghta in Belirinj Sea." See Appendix. A recent United States' writer. Professor J. B. Angell, discussing this subji it, writes: — "Tile Treaty of 1824 .spouml to us the right of naviga- tion anil fishing ' in any \'MI of liie great ocean, commonly colled tlio I'acific Ocean, or South Sea, and (in Article IV) for ten years that of frequenting tlio interior seas, gulfs, harbours, and creeks >ij)un the coast for the purpose of fishing and trading. At the expiration of ten years Russia refused to renew tliis last provision, and it never was formally renewed. But, for nearly fifty years at least, American vessels have been engaged in taking whales in Behring Sea without being disturbed by the Kussian Government. Long before tlie cos.sion of Alaska to us, hundreds of our whaling vessels annually visited the Arctic Ocean and l!i'lu'ing Sea, and l)rouglit homo rich cai'goes. It would seem, therefore, tliat Russia regarded Behring Sea as i\ |)art of thn I'aeilif Ocean, and not as one of the ' interior seas,' access to which was forbidden by the t«rmiuutiou of the IVth Article of the Treaty." [644] 8 66 Sir B. Fhillimore, in his 3rd edition of the Fhiiiimore,«Lav •• Law of Nations." vol. i. p. 290, remarks :- S^d^'iS^o,. ;, «' The contention, advanced for the first time by the P* ''^''• United States in this controversy, after an acquiescence of more than sixty-five years in the world's construction of the Treaties of 1824 and 1825, that the phrase ' Pacific Ocean,' as used in those Treaties, was not intended to include, and did not include, the body of water which is now known as the Behring Sea, because the words ' Beliring Sea ' were not used in either Treaty, is without any foundation, as will be subsequently shown ; and yet the concession is made by the United States that, ' if Great Britain can maintain her position that the Behring Sea at the time of the Treaties with Bussia of 1824 and 1825 was included in the Pacific Ocean, the Government of the United States has no well-grounded complaint against her.'" (Ex. Doc, No. 144, H. 11., 51st Congress, 2nd Session, p. 27.) Mr. "W. E. Hall, "Principles of International Hall, " Inter- ^ Iiaw," Clarendon Press, Oxford, 3rd edition, 3rd"edHion,'p. 147. 1890, p. 147:— "Note. — A new claim subsequently sprung up in the Pacific, but it was abandoned in a very shoit time. The Buasian Government pretended to be Sovereign over the Pacific north of the 51st degree of latitude, and published an Ukase in 1821 prohibiting foreign vessels from approaching within 100 Italian miles of the coasts aud islands bordering upon or includ ;d in that portion of the ocean. This pretension was resisted by the United States and Great Britain, and was wholly given up by Conventions between the former Powers and Bussia in 1824 and 1825. The arguments contained in the foregoing chapter establish — That the Treaty of 1825 between Great Britain and Russia applied, and was intended to apply, to all the non-territorial waters of the North Pacific, extending from Behring Straits upon the north to latitude 51° upon the coast of America, and to latitude 45° 50' upon the coast of Asia (being the whole extent of sea covered by the Ukase). That at no stage of the controversy was any distinction drawn, or intended to be drawn, between the seas to the north and the seas to the south of the Aleutian Islands. That the expression " north-west coast of America" included the coast up to Behring Straits. That Behring Sea was included in the phrase "Pacific Ocean" as used in the Treaty of 1825. 67 AUilu, pp. 534, 538. ua. 1822. North-weat Coait, ▼ol. i, pp. 340, 341. Alaska, pp. 537- 939. 1828. Ibid., p. 540. Ibid., p. £46. Ibid, pp. 536-539. Chaptbu IV. Head (D). — The User of the Waters in question from 1821 to 1867. Aa legards the user of the waters in question, it has heen seen that down to the year 1821 Russia made no attempt in practice to assert or exercise jurisdiction over foreign vessels when beyond the ordinary territorial jurisdiction. With the exception of the incidents connected with the Ukase of 1821, already referred to iu Chapter II, the same is true of the period between 1821 and 1867. To resume the historical statement in chrono- logical order : — In the year 1821 Mouravief was sent out to take control at Sitka under the new Charter. He assumed the name of " Governor " in place of that of " Chief ilanager," which had pre- viously been employed. The names of seven trading-vessels on the north-west coast are known for this year.* In 1822 the Russian vessel " Rurik " arrived at Sitka from Kronstadt with supplies. About the close of the year the Russian sloop-of-war " Aj5ollon " also arrived, with instructions that all trade with foreigners should cease. This interdict remained iu force for two years, and seriously interfered with the proiits of the Company. In this year also the Russian sloops-of-war "Krcisser" and " Ladoga " arrived to enforce the provisions of the Ukase, and remained for two years. An exploratory cxpe weit coast. None of ti:cse tradinij-veiscls were Russian. 68 coastci'S to the volae of more than 300,000 roubles in scrip." In the same year, the "Bob Boy," from KorUi-wMt Cotii; Boston, is known to have been on the north-west *° " '' '■ ' coast. In 1821 Kotzebue, in the " Predpriatie," called Alukt^ p. S40. ; at Sitkn. About this time the shareholders of ibid., p 64i. tho Russian Company protested against the interdict of foreign trade, and Sitka was, in con- sequence, again opened to su h trade. Acting under the authority of the Ukase of D«ir§ Aluki, 1821, the United States' brig "Pearl," when on l'P-238.234, a voyage from Boston to Sitka, had been in the year 1822 seized by the Bussian sloop " Apollon." Count Nesselrode, in his despatch to Count Lievcn, 26th June, 1823, when communicating See Appendix, the suspension of the Ukase of 1821, says the advices to this effect were sent from St. Peters- burg in August of 1823, and that tho ofTicer of the "Apollon" could not receive them before September 1824, and that, tlierefore, he could not liave known of them at the "time of tho occurrence of the incident reported by the American press." In 1824 tlie " Pearl " was released, and com- jj, t„ ji,g „ p^^j .. pensation was paid for her araest and detention. '«« s. Canning to In the same year four vessels are recorded April 23, 1823. as having visited the north-west coast, and some Appe'"'«- of them are known to have repeated their visits ^o''^-"*'' Coast, '■ vol. 1, p. 341. in laler years. In 1825 the " Elena " arrived at Sitka with Alaska, p. 539. supplies. Kotzebue also again called at Sitka. Remonstrances were addressed by the Russian- ibid., p. 544, American Company to tho Bussian Government as to the effect of the Conventions of 1824 and 1825. The name of but one vessel trading on the north-west coast has been preserved in this North-we«t Coa«t year. ^o'- '. p- 341. In 1826 C?Jiistiakof wrote to the Directors of Alaska, p, 582. the Company asking that an experiericed whaling master should be sent out. In July of this year ijeechey's Voyage Her Maiesty's ship " Blossom," under Captain *° '•'<' Pacific and -o 1 -1 1 ii. 1 -n T • Q • i ii ""'■""8 Strait, Beechy, sailed through Behring Sea into the Lcndon, 1831, Arctic Ocean. *"'• "' P- 838. In 1827 Liitke, sent by the Bussian Govern- Ahikn, p. 546. ment, arrived at Sitka, and thereafter made explorations in the Aleutian Islands and in Behring Sea. Two vessels only of the trading fleet on the North-west Coast, north-west coast are in this year known by '"'''■ name. 1824 1826, 1826. 1827 69 t82a AlMki. p. 846. 1829, Letter of Brewer to Amor;, p. 8S, Ex. Doc. No. 177, Snd Sell., 40tb CODR. Aluka, p. S65. 1830. Aliiki, p. S47. North-weft Cout, vol. i, p. 341. 1832 or 1833. Altika, pp. 548- SS8. 1838. Ibid., p. SS5. 1834 1836. Ibid., p. 633. North-weit Cout, vol. i, p. 341. Ibid., pp. 341, 343, In 1828 two vessels belonging to Mtko'a ex- pedition carried on surveys in Behring Sea. The trading-vessel " Eliza " was at Sitka in this year. In the years 1826, 1827, and 1828 the " Chin- ohella," a United States' brig, Thomas Meek, master, was trading between Sitko and China. In 1829 a Russian vessel was sent from Sitka to Ohile to trade. Some explorations were also made by the Bussians in the inland country. In 1830 explorations were made in Behring Sea by Etholen. The names of four or five foreign vessels trading on the north-west coast in this and the following year are recorded. Wrangell relieved Ghistiakof in command. In 1832 or 1833 Tebenkof established a post near the mouth of the Yukon, and explorations were conducted inb id. In 1833 the Hudson's Bay Company sent the British vessel " Dryad " to form an Establishment at the mouth of the Stikine, but Wrangell, having heard of the enterprise, occupied the place in advance, and turned the vessel back. Damages to the amount of 20,0002. were claimed through the British Government from Russia. A United States' whaling master, under a five- years' Contract with the Russian Company, arrived at Sitka, but achieved little. In 1834 the name of but one of the foreign vessels trading on tho north-west coast in this year is known. In 1836 the "Eliza" was again 'at Sitka, and three foreign trading. vessels are recorded to have visited the Alaskan coast. Case of the " Loriot." In the same year the United States' brig " Loriot " sailed from the Sandwich Islands for the north-west coast of America for the purpose of procuring provisions, and also Indians to himt for sea-otters on the coast. When in the Harbour of Tuckessan, latitude 54° 56' north, and longitude 132° 30' west, a Russian armed brig ordered tho "Loriot" to leave. This action was based on the expiration of the period named in the IVth Article of tli« Treaty, whereby, for ten years only, liberty to touch and trade at Russian Establishments on the coast was granted. [644] T 70 The United States protested against the inter- «oth CoDg. 8ad ference with the "Loriot," characterizing it as E5ri^!"N^'. 106. an " outrage," and the following is an extract See Appendix, from instructions which were sent hy the United States' Secretary of State to Mr. Dallas, the ■ Minister at St. Fotersburg, under date 4th May, 1837 :— "On the other hand, should there prove to be no Busaian Establishments at the places mentioned, this out- rage on the ' Loriot ' cssumes a still graver aspect. It is a violation of the right of the citizens of the United States, immemorially exercised, and secured to them as well by the law of nations as by the stipulations of the 1st Article of the Convention of 1824, to fish in thosd seas, and to resort to the coast, for the prosecution of their lawful commerce upon points not already occupied. As such, it is the President's wish that you should remonstrate, in an earnest but respectful tone, against this groundless assump- tion of the Russian Fur Company, and claim from His Imperial Mcy'esty'a Government for the owners of the brig 'Loriot,' for their losses ai.d for the damages they have sustained, such indemnification as may, on an investigation of the case, b« found to be justly due to them. Mr. Dallas subsequently wrote that he was led ^^ ^a,,*"'' to believe that Russian Establishments had been Ez. Doc. No. lOS, made at the places mentioned. Se^^Appendix. Nevertheless, the United States contended that lya., p. 386. at the expiration of the IVth Article, the law of nations practically gave United States' ships the privileges therein mentioned. Mr. Dallas (16th August, 1S37), when repre- senting the United States at St. Petersburg, wrote to the Secretary of State :— " The 1st Article asserts for both countries general and ibid., p. 934. permanent rights of navigation, fishing, and trading with See Appendii. the natives, upon points not occupied by either, north or Bouth of the agreed parallel of latittidt." Mr. Forsyth, Secretary of State for tho United ibid., p. 2S8. States, writing to Mr. Dallas on the 3rd Novem- S** Appendix. ber, 1837, and referring to the 1st Article of the Convention of April 1824 between tho United States and Bussia, said : — "The 1st Article of that instruii ent is only declaratory of a right which the parties to it possessed under ibe law of nations without cc '^ntionol stipulations, to wit, to navigate and fish in thn jcean upon an unoccupied coast, and to resort to ' uoh . for the purpose of trading with the nr.uves. <» * • • • • "The Unit<:d L'^aied, in agreeing not to form new ests- blishments to the north of latitude of 64° 40' N., made no n > icknoivledg uitA of the right of Bassia to the territory Above that line." And, again : — " It can not follow that the United States ever intended to abandon the just right acknowledged by the lat Aiticle to belong to them nndor the law of natione — to frequent onjr part of the unoccupied coast of North America for the purpose of fishing or trading with the natives. All that the Convention admits is an inference of the right of Russia to acqviire po38C8,iion by settlement nc ;h of 64° 40' N. Until that actual possession is taken, the Ist Article of the Convention acknowledges the right of the United States to fish and trade as prior to its nego- tiation." 90th Con^., Stiti Utat., Seutttt E». Doc. No. 106, p. 938. S«e Appendix. In his despatch of the 23rd February, 1838, Count Ncsselrode wrote to Mr. Dallas :— "It is true, indt-^d, the lat Article of the Conven- tion of 1824, to which iho proprietors of the 'Loriot' appeal, secures to the citizens of the United States entire liberty of navigation in the Pacific Oce^n, as well oa the right of landing without disturbance upon all point* on the north-wait coast of Avierica, not already occr.pied, and to tiude with the natives." Again, Mr. Dallas, m a despatch to Count Ne8seJjx>de, dated the 5th (17th) March, 1838, interpreted Article I of the Convention as being applicable to any part of the Pacific Ocean, He wrote : — Ibid., p. 34 1 . " . . . . The right of the citizens of the United States to 8m Appendix. navigate the Facifiu Ocean, and their right to trade with the aboriginal natives of the north-west coast of America, without the jurisdiction of other nations, are rights which constituted a part of their independence as soon as they declared it. They are rights founded in tlie law of nations, enjoyed in common with all other independent sovereign- ties, and incapable of being abridged or extinguished, except with their own consent. It is unknown to the Undersigned that they have voluntarily conceded tlie.se rights, or either of thera, at any time, through the agency of their Govornmont, by Treaty or other form of obligation, in favour of any community. • « • • "There is first u mntual and permanent agreement decloxatory of their respective rights, without disturbance , or wotraint, to navigate and fish in any part of the I'acific Ocean, and to resort to its coasts njK>n points which may not already have been occupied, in onler to trade wiib the natives. Those rights pinexisted in each, and were not tneh liberties rcwdting from the stipulation. To navi- . gate, to fish, and to coast, as described, wc'? rights of equal certainty, springing fiom the same source, and attached to 12 the same quality of nationality. Their exercise, howerer was subjected to certain restrictions and conditions, to the effect that the citizens and subjects of the contracting sovereignties should not resort to points -where establish- ments existed without obtaining permission; that no future establishments should be formed by one party north, nor by the other party south, of 54° 40' north latitude ; but that, nevertheless, both might, for a term of ten years, without i-cgard to whether an establishment existed or cot, without obtaining permission, without any hindrance whatever, frequent the interior seas, gulfs, harbours, and creeks, to iish and trade with the natives. Tliis short analysis leaves, on the question at issue, no room for con- struction. >i> >ii * <> "The Undersigned submits that in no sense can the fourth Article be understood as implying an acknow- ledgment, on the part of the United States, of the right of Russia to *^^ possession of the coast above the latitude of 64° 40' north." In transmitting the papers to Congresa, the Pusident President of the United States observed :— „^^_ December"'' 1 838, Unitod States' " The correspondence herewith communicated, will show State Papers, the grounds upon which we contend that the citijens of **"' ^' The United States have, independent of the provisions of the Convention of 1824, a right to trade with the natives upon the coast in question at unoccupied places, liable, however, it is admitted, to be at any time extinguished by the creation of Ilussian establishments at such points. This right is denied by the Russian Government, which asserts that, by the operation of the Treaty of 1824, each party agreed to waive the general right to land on the vacant coasts on the respective sides of the degree of latitude referred to, and accepted, in lieu thereof, the mutual privileges mentioned in Article IV. The capital and tonnage employed by our citizens in their trade with tho north-west coast of America will, perhaps, on adverting to the official statements of the commerce and navigation of The United .'States for the last few years, be deemed too inconsiderable in amount to attract much attention ; yet the subject may, in other respncts, deserve the careful coniiideration of Congress." 73 1837. Noith-weit Cout, vol. i, p. 84S. 1838. Aluki, pp. S83, flS8. North-wnt Cout, Tol. i, p. 342. 1839. Alaika, pp. 856, 657. 1840. n>id.,p.SS7. Ibid., p. 683, Tikhmcnieff. See Appendix. 1841. 1842. Ibid., p. 659. Ibid., p. 5£8. Ibid., p. 583. To return again to the chronologicaJ order of events :— In 1837 one foreign trading-vessel is named as having been on the north-vest coast. In 1838 further exislorations were undertaken in the north by Ghemof and Malakhof. Three foreign trading-vessels are noted as having been on the north-west coast in this year, and one is known to have visited Alaskan waters. In 1839 a Commission met in London to arrange the dispute between the Hudson's Bay and Russian-American Companies, arising out of the interference by Russian officials with the British vessel " Dryad." The claim for damages by the former Company was waived, on condi- tion that the lattor should grant a lease of all their continental territory noi-thward to Cape Spencer, Cross Sound {about latitude 58°), on a fixed rental. This arrangement was for ten years, but was renewed, and actually continued in force for twenty-eight years. In 1840 tlie British flag was hoisted and saluted at the mouth of the Stikiue, the Hudson's Bay Company taking possession. A post was also established by the Company at Taku Inlet. At this time whalers were just beginning to resort to Behring Sea; from 1840 to 1842 a large part of tho fleet was engaged in whaling on the "Kadiak grounds." Writing in 1842, Etholcn says, that for some time he had been constantly receiving reports from various parts of the Colony of the appearance of American whalers in the neighbourhood of the shores. In the same year Etholen relieved Kuprianof as Governor at Sitka. In 1841 the Charter of the Russian-American Company was renewed for a further term of twenty years. Etholen reported the presence of fifty foreign whalers in Behring Sea. In 1842, according to Etholen, thirty foreign whalers were in Behring Sea. He asks the Russian Government to send cruizers to preserve this sea as a mare clausum. {644] 74 His efforts were, however, unsuccessful, the Minister for Foreign Affairs replying that the Treaty between Russia and the United States gave to American citizens the right to engage in fishing over the whole extent of the Pacific Ocean. Inland explorations by Zagoskin, which con- Alukt, pp. us, tinned till 1844, began. Sir George Simpson, "^• Governor of the Hudson's Bay Company, reached *'''^- PP- »«8-«6o. the Stikine post just in time to prevent an Indian uprising. He also visited the Russian Establishment at Sitka and completed an arrange- ment between the Companies to interdict trade in spirits on th'> . >ast. About tVj) tine the Russian- American Com- pany became al .rmsd at the danger to their fur trade. Every effort was, therefore, put forward by the Company and the Governors to induce the Foreign Office of the Russian Government to drive off these whalers from the coasts, and by excluding them for a great distance &om shore, prevent trespasses on shore and the traffic in furs. In 1843 explorations were carried on on the ibid., p. 676. Sufitchina and Copper Rivers. The whalers, from 1843 to 1850, landed on ibid., pp. S8S, sb4. the Aleutian and Eurile Islands, committing depredations. United States' captains openly carried on a traffic in furs with the natives. Tikhmenieff writes : — "From 1843 to 1850 there were constant complaints by TikhmenieS. the Company of the increasing boldness of the whalers." ^** Appendix. 1843. In 1846 the Governor-General of Eastern Siberia asked that foreign whalers should not be allowed to come within 40 Italian miles of the Russian shores. TikhmeniefE thus describes the result of these representations : — "The exact words of the letter from the Foreign Office are as follows : — "'The fixing of a line at sea within which foreign 1846, 76 Tessela should be prohibited from whaling off our Bborea would not be in accordance with the spirit of the Conven- ' tion of 1824, and would be contrary to the provisions of our Convention of 1826 with Great Britain. Moreover the adoption of such a measure, without preliminary negotiation and arrangement with the other Powers, might lead to protests, since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea.' " In 1847 a representation from Governor Tebenkoff in regard to new aggressions on the part of the whalers gave riiie to further correspondence. Some time before, in June 1846, the Governor-General of Eastern Siberia had expressed his opinion that, in order to limit the whaling operations of foreigners, it would be fair to forbid them to come within 40 Italian miles of our shores, the ports of Petropaulovsk and Okhotsk to be excluded, and a payment of 100 silver roubles to be demanded at those ports from every vessel for the right of whaling. He recommended that a ship of war should be employed as a cruizer to watch foreign vessels. The Foreign OfQce expressly stated OS follows, in reply : — " ' We have no right to exclude foreign ships from that part of the Great Ocean which separates the eastern shore of Siberia from the north-western shore of America, or to make the payment of a sum of money a condition to allowing them to take whales.' " The Foreign Office were of opinion that the fixing of the line referred to above would reopen the discussions formerly corried on between England and France on the subject. The limit of a cannon-shot, that is about 3 Italian miles, would alone give rise to no dispute. The Foreign Office observed, in conclusion, that no Power had yet succeeded in limiting the freedom of fishing in open seas, and that such pretensions had never been recognized by the other Powers. They were confident that the fitting out of colonial cruizers would put an end to all difficulties ; there had not yet been time to test the efficacy of this 1847. 1848. 1849. Tlkhnwnleff, lee Appendix. AUtki, p. 684. In lS4i7 traffic in fur-seal skins was carried on by a United States' whaler at Behring Island in open defiance of the Russian authorities. In 1848 foreign whaling vessels entered the Arctic Ocean by way of Behring Straits for the first time. In 1849 the whaling fleet in the Arctic and northern part of the North Pacific numbered 299 vessels. Two-thirds of these are said to have been United States' vessels, but others wore French and English, the latter chiefly from Australasia. A Russian Whaling Company for the North Pacific was formed at Abo, in Finland, with special privileges. This Company sent out six vessels in alL 76 In 1850 the British vessels "Herald," "Plover," and " Investigator," all despatched in search of Sir John Franklin's expedition, met in Kotzebue Bound, after passing through Behring Strait. In the same year an armed Russian corvette y^OB ordered to cruize in the Pacific, and in this year it is estimated that 300, and in later years as many as 600 foreign whalers visited the Arctic and neighbouring waters. Tcbenkof's administration came to an end in this year. In 1851 Nulato, a fort on the Yukon some way inland, was surprised by Indians and the inmates butchered, including Barnard, an English officer of Her Majesty's ship " Enterprise," ono of the ships engaged in the expedition in search of Sir John Franklin. The " Enterprise" passed Behring Strait on the 6th May, 1851. The United States' whaling fleet is said to have been as nuiucrous as in 1849. The interval between the close of Tebenkof 's administration and the beginning of that of Voievodsky was filled by the temporary appoint* mcnt of Boscnburg and Budakof . In 1852 buildings at the Hot Springs, near Sitka, were destroyed by the Indians. The value of catch of the whaling fleet in the North Pacific in this year is estimated at ld.000,000 dollars. After 1852 the whaling industry gradually decreased. In 1853 war impending between England and Russia, the Hudson's Bay and Russian- American 'lompanies influenced their respective Govern- ments to prohibit hostilities on the north-west coast of America. In the same year the Russian-American Com- pany again specially requested the Government to prohibit whalers from entering Okhotsk Sea, but without success. Instructions were, however, issued lo Russian cruizers to prevent whalers from entering bays or gulfs, or from coming within 3 Italian miles of the shores. Tikhmenieff gives the following details : — Some time before the Company had written to the Foreign Office {22nd March, 1853) :— Alukt, p. 673. Ibid., p. 184. 1860. Ibid., p. 188. Ibid., p. <73. " Eneyclopadia Dritannica," vol, lix, p. 331. Ibid., p. 886. Ibid., p. 674. Ibid., p. 669 Ibid., p. 670. Tikhmenieff. See Appeudix. isai. 1862. 1853. " If it is found impracticable entirely to prohibit for a Tilihmenieff. time fisliing })y foreigners in the Sea of Okhotsk, as an "*• Appendifc inland sen, would it not, at any rate, be possible officially to prohibit whalers from coming close to our shores and whaling in the bays and among the islands, detachdog 77 one of the cruizers of the Kamtchalku flotilla for this ■ervice t" 1854. 1856L 1866. 1867. fiOtb ConfT., 2nd Sess. 8en. Ex. Doc. No. 106, p. 251, Seward to Clav, February 24, 1868. See p. of Case. 1859, Alaska, p. 592. 1860. Ibid., pp. 578, 570. The instructions to cruizcrs wero approved on the 0th Dcccinl)cr, 1853. The cruizeis wore to seo that no whalers ontorcil the hays or gulfs, or came within 3 Italian miles of our .shores, that is, the shores of Russian America (north of 54° 41'), the Peninsula of Kamtehatka, Siberia, the Kadjak Archipelago, the Aleutian Islands, the PrihylofT and Commander Islands, and the others in Behring Sea, the Kurilcs, Sakhalin, the Shantar Islands, and the others in the Sea of Okhotsk to the north of 40° 30' north. The cruizcrs \.ere instructed constantly to keep in view that : — " Our Ooveruraent not only does not wish to prohibit or put obstacles in the way of whaling by foreigners in the northern part of the Pacific Ocean, but allows foreigners to take wliales in the Sea of Ukliutsk, which, as stated in tlicso instructions, is, from Us (jeographkul position, a Hussian inlcuul sea." (These words are in italics in the original.) Alaska, p. 884. In 1854, 525 foreign whalers were in Behring Sea and its vicinity. Ibid., p. 585. Voievodsky was elected Governor for the Com- pany. Ibid, p. 898. In 1855 the Abo Whaling Company went into liquidation. Ibid., p. 584. In 1856, BOG foreign whalers were reported as in Behring Sea and vicinity. Bancroft reports that in the year 1857 : — Ibid,, p. 668. " Of tlie 000 or 700 United .States' whalci-s that wero fitted out in 1857, at least one-half, including most of tho larger vessels, wero engaged in tlio North Pacific .... including, of course, Behring Sea. Captain Manuel Euos, of the United States' barque " Java," stated in 1807 that ho had whaled unmolesled in the bays of Okhotsk Sea for seventeen years previously. In ir^iO the cession of Alaska to tli United States began to be discussed privately. In 1800 the Russian-American Company ap- plied for a new Charter for twenty years, to date from the 1st January, 1802, and Reports ar. to the condition of the Company were called for by tho Government. Ibid,, p. 880. The Russian population of tho American Colonics at this date, apparently including [Gli] X 78 native wives, numbered 781: Creoles, 1,700; native population estimated at over 7,000. In 1SG2 the value of the catch of North Pacific ■whaling fleet Avas estimated at 800,000 dollars. In 1863 the United States' brig " Zimandra " was engaged in the cod tishery ofl Soghalien Island, Okhotsk Sea. In succeeding years a number of vessels resorted to this sea for the cod fishery. I'n 1864i Maksutof took temporary charge for the Russian Government of the Company's affairs. In 1865 negotiations between the Ilussian Com- pany and the Government continued, but terms such as the Company would accept could not be an'ived at. In the spring of tiiis year, the " North Pacific cod-fish fleet" was organized. It comprised seven vessels, all of which are believed to have fished in Okhotsk Sea. In 1866 the Ilussian Government still con- templated renewing the Company's Charter on certain terms. A Californian Company entered into treaty for a lease of the " coast strip " of Alaska, then held by the Iludsou Bay Company. Eighteen vessels were engaged in the Okhotsk Sea cod fishery. The "Por^wiso" initiated the fishery in the Shumagan (iroup, Alaska, finding there "safe harbours, fuel, water, and other facilities for prosecuting tliis business." Several British Columbiaii schooners also fished in ./Uaskan waters. In 1867 Alaska was sold l)y llussia to the United States for 7,200,000 dollars. Nineteen United States' vessels fished for cod in Okiiotsk Sea or in Alaskan waters, the Shuma- gan fleet consisting of three vessels. The total catch amounted to nciarly ] ,000,000 lish. In 1867, before the ei'ssion of Ala.ska, Uio whaling interest of the United States in these seas are thus referred to by a Philadelphia paper : — Alaska, p, 669. 1862. Fishery Induitriei of the United States, sec. v, vol. i, p. 2U9. 1863. Alaska, p. 570. 1864. Ibid. Fishery Industries of the United States, ser. v, vol. i, p. 210. Alaska, p. 580. Fishery Industrie! of the United States, sec. v, vol. i, p. aio. Ibid., p. 210. 1865. 18» 1867. " Out- -whalirg interests are now heaviest in the seas << pi, ladclphia adiftcent to Kussiau-Ainerica, both above and below Nortl. American T, 1 ■ c!. i" Gaitttt ," Friday, Behruig Stratt. April 12. 1867. El. Doc. No. 177, 3nd S< to the Hudson's Bay Company hj tlio Taissian- American Company expired. Statistics of United Slnt.es' Whaliny Industry. {North Pacific Grounds, including Okhotsk and Behring Seas and Arctic Ocean.) Tho growth and declino of the whalinij industry during the years dir,cusscd in this chapter may be conveniently illustrated by the following Table, which shows tho number of United States' vessels in tho North Pacific whaling fleet from 1811 to 18G7. It is taken from "The Fishery Industries of tho United States," 18S7, section 5, vol. ii, pp. 81-85. (This list docs not include whalers of other nationalities.) Year. 18U 18J2 1843 184t 18-15 1810 1847 1848 1849 1850 18ol 1853 1 85-'l 1851 1855 185(> 1857 1858 1859 1800 18C1 18f)2 1863 1804 18(15 180(i 1807 Nui.ber of Vessels. 20 29 108 170 263 292 177 159 ,, 155 144 138 .. 278 •• • • 238 232 • • •• 217 178 ^ ^ 143 • • •• 196 176 121 .. 76 ,. 32 , , 42 •• •• 63 59 • • ' ' 05 90 Tho wlialing-vossels frequenliiig Behring Sn;», and tho Arctic Ocean, from the lirst, engaged to Op. Cit., p. 314. a certain extent in walrus hunting, and about 1860 sueli hunting began to be an important secondary object with the wluilers. In subso- queut year.s many thousand bam>ls of walru? oil and groat quantities of skins and ivory weri> secured. 80 Bi'dud'Ons. The facts statcjd in iliiy ebapter establish — That from tlio year 1S21 to the year 1SC7 the rights of navigation and fishing in the waters of Pichving Sea were freely exercised by the vessels of the United States, Great Britain, and other foreign nations, and were recognized as existing by llussia. That thb watt>rs ot' Behring Sea were treated by Eussia as being subject to the provisions of the Treaties of 1821 and 1825. 81 Chapter V. The Cession of 1867 and what passed by it. The fourth question or point in Article IV of the Case is as follows : — Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary, in the Treaty between the United States and Russia of the 30i,' March, 1867, pass unimpaired to the United States under thai Treaty ? This question niay conveniently be treated under the following heads, as proposed on p. : — (E.) What rights passed to the United States under the Treaty of the 30tli March, 1S67 ? (F.) The Action of the United States and Russia from 1867 to 1886, (G.) The contentions of the United States since the year 1886. Head (G.) — What rights passed to the United Stales under the Treaty of March 30, 1807 ? TrMiy of Ceiiion, The following is the text of the Treaty of ***'• Cession of Alaska as signed : — "Sa Majesto I'B'mpereur de Toutes les Russies et les £tats-Unis d'Amerifnio, dosirant nitTemiir, s'il est possible, la bonne intclligciicti qui cxista cntre eux, ont nommd k cet tffet, pour leiirs I'lonipoteiitiiiirps, savoir: " Sa Miijosle rK.mpercur dn Toutes los Eussies, le Con- seiller Prive fidouard do Stocckl, son Envoyt' Extraordi- nairo et MiniKtre I'U'iiipotiiiitiairo nux Etats-Unis ; et " Le Prt'sideut des Ktats-Unis, lo Sieur William H. Seward, Secrt'taire d'fitat; " Lesqucls, upres avoi'- I'cliangiS leurs jileiiis pouvoiis, trouviis eii bonne et due forme, ont an'iitc et signd l"s Articles suivants : — " ARTICLE I. " Sr Miyesti^ I'Empereur de Toutes les Eussies s'engage, par cette Convention, a coder aux fitats-Unis, imnicdiato- jnent apris riSeliange des ratilications, tout le tcrritoiro avcc droit do souverainot<5 nctuellement possedtj par Sa Majesto sur le Continent d'Amdrique ainsi que les Ues [644] Y 82 contigiies, lo dit territolro dtant compris dans Jos limites gdogrnphiques ci-dossous iadiqu(Sc3, savoir: la limite oricntAlc est la ligno do ddmarcr.tinu entro Ics possessions Russes ct Britaiiniqucs dans rAmoriqiio du Nord, ainsi qu'ollo est I'tablie par la Convention concluo cntro la Hussio et la Graude-lhetagne, lo IG (28) FiSvrior, 1825, ot diJfinio dans les tcrmcs suivants des Articles III ct IV de la dito Convention : — "'A partir du point le plus miridional do I'lle dito Prince of Wales, lequel point so trouvo sous lo parallile du 54° 40' do latitude nord, et entre le 131* et le 133" degni do longitude oucst (mdrldien do Greenv?ich), la dito ligno remontera nu nord lo long de la passe dite Portland Channel, jusqu'au point de la terro forme, oii elle attoiut le 5G" dcgriS de latitude nord ; do cc dernier point la ligno do demarcation suivra la creto des montagnes aituiies parallfclement h, la cote jusqu'au point d'intcrsection du 141° degrtJ de longitude ouest (niuiue meridien) ; et finalemcnt, du dit point d'intei'sectiou la memo ligne miridienne du 141' degrd formora dans son prolongement jusqu'i la Mer Glaciole la limite entre les possessions Russes et Britanniques sur le Continent de I'^Vraiirique Nord-Ouest. " ' II est enteudu, par rapport h la ligno de d'hnarcation d^termindo dans I'Article prijci5dent : " ' 1". Que I'ile dite Prinee of Wales appartiendra toute ontiire 4. la Russio :' (niais dis ce jour eu vertu do cette cession aux fitats-Unis). "'2°, Que partout oi la crSte des montagnes qui 8'(Stendent dans uno direction parallile b, la cote, dopuis le SO""" degru de latitude nord au jioint d'intcrsection du 141'"' degrd de longitude ouest se trouverait k la distance de plus de 10 lieues marines de I'ocean, la limite entre les possessions Britanniques et la lisifere de cote mentionnde ci-dessus conmie devant appartenir a la Russie' (c'est-ii- dire la limite des possessions cediies par cette Conven- tion): 'eera formc'o par ime ligno paralU^le aux siuuositds de la coto ct qui lie pourra jamais en etro eloignco que do 10 lieues marines.' " La limite occideiitale des territoircs cedes passo par un point au Di^troit de ISeliring sous le parallule du soixauto- cinquieme degrtS tkonte minutes de latitude Nord it son iutersectioii ;>ar le mdridien qui separe a distance cgale les Isles Krusen tern ou Ignalooli ct I'lle Eatmanofi' ou Noonarbook, ( t romonto on ligne directc, sans limitation, vers le nord, jusqu'a co qu'clle se perde dans la mer Glaciale. Commenqant au meme point de depart, cette limite occidentalo suit de \k un cours presp ue sud-ouest, h, travers le Detroit de Beliring et la Mer uo IJeliring, de maniire A. passer Ji distance c-galo entre le point Nord-ouest de rile Saint-Laurent et le point Sud-cst du cap Cliou- kotski jusqu'au mdridien cent aoixante-douziime de longi- tude Ouest ; de ce point a partir de rintersection do ce meridien, cette limite suit uno direction Sud-ouest de maniero b. passer i distance cgale entre I'lle d'Attou ot I'ile Copper du groupe d'ilots Kormandorski dans I'ocdan Paoifiqu'j Septentrional, jusqu'au mdridien de cent quatre- 83 •viiigt-treizo (leRrus do longitude Oucst, do maniiro h on. clftvor, dons lo Tnrritoiro cddu, toutes los Ilea Aleoutes situties i Test do co mciridien. "ARTICLE 11. " Dans lo Tcrritoiro c(!du par rarticlo prdcc'dont il la SouvoraincW dcs fitats-Unis, sent compris le droit do pro- priettj Hur tous loa tormina ct pliicos publics, terres inoccu- ptSos, toutes lea constructions publiijucs, fortifications casornofl, ct autrea edifices (jiii no sont pas propriolu privda individuelle. 11 est, toutofbia entendu ct convenu que lei ogliaos, construites par lo Gouvernemont Uusse sur lo Tcrritoiro ci'M, restoront la pruprioto dcs inembrca do I'Egliao Grecquo Orienlilo rusidant dans ct! Tcrritoiro et appartenant a co culte. Tous lea archives, p.ipiera, ct docunienta du Gouvernemont, ayant trait au susdit Terri- toire, et qui y sent tnaintoiiant d('po3(is, seront places entro les rrmiiia do I'Ageut des i^tats-Unia ; niais les £tats-Unia fourniront, toujoura (piand il y aura lieu, doa copies lijgalisiioa de cos documents au Gouvernemont IIusso, aux offlciers ou sujets Russes ([ui pourront en fairo la deraando. "ARTICLE III. " II est reservd aux habitants du Territoire cede le choix de garder lour iiationalito et do rentror en Russie dans I'espacc da trois ans ; uiaia s'ils prcfirent tester dans lu Territoire aHo, ils seront admis, i I'exception toutcfoia des tribus sauvagcs, i jouir do tous les droits, avantages, et immunitcs dcs citoyens des fitats-L^nis, ct ils seront maintenus ct iirotegcs dans le plein exercice de lour liberty, droit de propriet<5, ot religion. Lea tribua sauvagcs seront assujettiea aux lois et ri'glements que les Etats - Unia pouiTont adopter, do teriqis eu temps, Sa I'dgard des tribua aborigfeiies de ce pays. "ARTICLE IV. " Sa Maje3ti5 I'Enipercur do toutes les Russies nommera, aussitOt que possible, un agent ou des agents charges do remniettre, formellement a I'agent ou aux agents nonimts par les fitnts-Unia, lo Territoire, la souverainele, lea pro- prietds, dopondances, ct appartenancea ainsi cddiies et do dresser tout autre acto qui sera ni'ccssairc ii raceomplisse- tnent do cetto transaction. Jlais la cession, avec le droit de possession inimediato, doit toutefois etre considerda complete et absoluo a reehango des ratifications, sans attendrc la remise formelle. "AETICLE V. " Immddiatement apris lechaiigo des ratillcations do cetto convention, les fortifications et les postea militaires qui so trouveront sur lo Territoire cddd seront romis il I'agent des fitats-Uni^, ct les troupes Russes qui sont stationndes dans le dit territoire seront retirees dans un terme praticablo et qui puisse coavenir aux deux parties. ■^%. ^, IMAGE EVALUATION TEST TARGET (MT-3) y A // ^ A ^ .A^ >^ .V^ I/. ^ 1.0 II I.I 1.25 -1^ 125 12.2 1^ 1^ 1^ 11° III 2.0 1.4 Hi 1.6 (7%. /a j> o v: 7 /A Photograpliic Sciences Corporation 23 WEST ^tAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 ^.^^ .% I "AimCLEVI. " En considi'rntion do la st:sdito cession, Ics l5tat8-Unis s'engageiit i\ jmyer h In Tr(!'Sorerio & Wnshington dans le tornio do dix iiiuis apr{!8 rc'clmngo deii ratification do cotte convention, sr])t niillinns deux cent mille dollars eu or, au Itcprt'scntant diploiniitiquo iiu tout iiulro ngent do Sa Majest' 'ly portion of the high seas — for the said western line is drawn, not so as to embrace any part of the high seas, but, as expressed in the apt language of the Treaty — "so as to include in the territoiy conveyed the whole of the Aleutian Islands east of that meridian." Had tlie intention been to convey the waters of tho Behring Sea eastward of the western limit, the words " ainsi que les lies contigiies " \vould not have been used, but words would have been chosen to indicate tho area of the open sea con- veyed, and it would have been unnecessary to specifically mention the islands. There was good reason for a line of demarca- tion of the character specified. Tho islands in tho Aleutian chain and in Bohriug Sea were not well defined, and could therefore not be used for the accurate delimitation of territory ceded. In fact, even the term Aleutian Archipelago was indefinite in its signification, often including islands which were on tho Asiatic side of Behring Sea, and far from tho Island of Attn, the western- most island of tho Aleutian group intended to be ceded. [611] Z 66 OrecnUow, for instance, writes : — " Tho AleiUinn Archipflii^o ia cnmUloKAhyiheUnaaianB Character of the wescem] geographical limit. as consistiug of Mrce orouM of islands. Neiirost Aliiuska ^d reason fox ita adopU(.ii. [Aleutian (ire llie Fo.r hUxrub, of which tho largest arc Unniuil; „ „ . ,,. _, , , ■, J , , Momoir, Hiito- Unalashka. ana Vmnak; next to tliosc iiro tnu Atulrcanowd-i/ ric»I lod Pblltiotl, Itlands, among which are Alsch- , Tonwja, and Kanaga, of Ihe North-weit with many smaller islands, sometimes called tho liat Xnierica 4c by latands; tho most western ({roup is that first cnllod tho Robert Grccnhow, Aleutian or AleoiUah/ Islands, wliich arc Allu, Mcdnui (or Jran.lator »nd . / Librarian to tks Copper Island), and Seerinft Island" (t^. 5). Depirtment of Sute " Senate, In the " History of Oregon and California," &c., ?Jt''8l;°,!'fi74], by tlic same nutlior, tbo Commander Islands ^^*0, (Copper and Hcliring Islands) arc again classed among the Aleutian Islands, which are said to bo included under two governmental dis- trios by the llussians, the Commander Islands belonging to the western of these districts (p. 3S). Qreenhow also states that tho name "Aleutian Islands " was first applied to Copper and Behring Islands. Indeed, in many Maps of rarions dates, tho title Aleutian Islands is so placed as impliedly to include the Commander Islands, in some it is restricted to a portion of the chain now recognized by that name. Similar diversity in usage, with frequent instances of the inclusion of the Com- mander Islands as a part of the Aleutian Islands is found in geographical works of various dates. From this uncertainty in usage in respect to tho name of the Aleutian Islands (though these aro now commonly considered to end to the west- ward at Attn Island), it is obvious that, in defining a general boundary between tho Eussian and United States' possessions, it might have given rise to grave subsequent doubts and questions to have stated mei-ely that the whole of the Aleutian Islands belonged to tho United States. Neither would this have covered the case presented by the various scattered islands to the north of the Aleutian chain proper, while to have enumerated the various islands which often appeared and still sometimes appear on different Maps under alternative names, would have been perplexing and unsatisfactory, from the very great number of these to bo found in and about Behring Sea. It was thus entirely natural to define con- Tentionally a general division fixed by an imaginary line so drawn as according to the best published Maps to avoid touching any known islands. 11 I 87 United Statea' Coait Survey. Coast Pilot of -Alatka 1869. Fart I, Appendix No. 9. Tho occasion for a western limit of the kind adopted is tUo more obvious, when it is borno in mind that many of tho islands in and about Beliring Sea arc even at tho present day very imperfectly surveyed, and more or lus3 uncertain in position. The followin£» is from the " Coast Pilot of Alaska" (United States' Coast Survey 1869):— " Tlio following li.Ht of tiio geographical positions of places, principally >ii«)n tho coast of Alo-ska, ans been compiled chiclly from IJiisHiiui uuthoritiu?!. In its prepara- tion tho intention wiw to introiluco all determinations of position that appeared to have been lumle by actual obser- vation, even when tho localities are fiuito close. In tho Archipelago Alexander most of Vancouver's latitudes havo been introduced, although in such \.-aters they arc not of great practical value. " It is believed the latitudes are generally within 2 miles of tho actual position, and in many cases where several observers had determined them independently, tho errors may bo less than a mile. Tho longitudes of har- bours regularly visited by vessels of the IJussian-Ainerican Company appear to be fairly determined, except toward the western temiinntion of the Aleutian chain, where largo discrepancies, reaching 30' of arc, are exhibited by tho comparison of results between Russian authorities and tho United States Exploring Expedition to tho North Pacific in 1855. Positions by different authorities are given in some instances to show these discrepancies. The comparison of latitudes and longitudes at Victoria, Fort Simpson, Sitka, Chilkaht, Kadiak, and Unalaska, between English and Russian and the United States' coast survey determinations, exhibit larger errors than might have been expected. " Tho uncertainties that exist in tho geographical position of many islands, headlands, straits, and reefs, the great dissimilarity of outline and extent of recent exami- nations of some of the Western Aleutians, tho want of reliable data concerning tho tides, currents, and winds, the almost total want of detailed descriptions of headlands, reefs, bays, straits, &c., and the circumstantial testimony of tho Aleutian fishermen concerning islands visited by them and not laid down upon the Charts, point to tho great necessity for an exhaustive geographical reconnais- sance of tho coast, as was done for the coast of the United States between Mexico and British Columbia," Even the latest United Slates' Chart of what arc now known as tho Aleutian Islands, (No. GS, published in 1891) is based chiefly on information obtained by the "North Pacific Surveying Expedition" under Rogers, which was carried out, in tho schooner "Fenimore Cooper" in 1855. On sheet 1 of this Cliart, (jmbracing the western part of the Aleutian. ipipipiPP'Wip Islands), such found ; — 88 notes as the following are "Tlio latest Ittir.mn Cburts plnco Bouldyr Island 10 milci duo south of tlio position given Iicro, which is from a dctcrminntion \>y Sumner's nielliod. "Tlio low idliiiids botweon Ooroloi iind louhikh, ex- ooptiiii; ihu west point of Unal;»(i, ore from liussian r.uthorities, which, however, arc widely discrepant." Siniilnrly, in tlio corresponding British Ad- miralty Chart (No. 1501) published in 1800 wo find the remark : — " Mostly from old and imperfect British, liussian, and American surveys." On tho Chart of Bohring Sea, published by the United States in 1891, a small islet is shown north of St. Matthew Island, near tho centre of the sea, which does not appear on the special Map of St, ^Miitthew Island published in 1875, and which could not be found in 1891. That the lino drawn through Bchring Sea between Russian and Ur"ted States' possessions was thus intended and egarded merely as a re:idy and definite mode of indicating which of the numerous islands in a partially explored sea should belong to either Power, is further shown by a consideration of tho northern portion of the same line, which is that first defined in tho Treaty. Prom tho initial point in Bchring Strait, which is carefully described, the "limite occi- dentale " of territories ceded to the United States " reniontc on ligno directe, saus limitation, vers le nord, jusqu'Ji cc qu'cllc sc pcrd dans la Mer Glaeialc," or in the United States' official trans- lation "proceeds due north without limitation into the same Prozen Ocean." Tho "geographical limit" in this the northern part of its length runs through an ocean which Lad at no time been suri'ounded by Russian territory, and which had never been claimed as reserved by Russia in any way; to which, on tho contrary, special stipulations for access had been made in connection with the Anglo-Russian Convention of 1825, and which sinco 1848 or 1849 had been frequented by whalers and walrus- hunters of various nations, while no single fur- seal has evei- been found within it. It is therefore very clear that tlic geographical limit thus projected towards the north could have ■WKmM 80—06 been Intended only to define the ownership o! guch islands, if any, as might subsequently be diseovered in this imporfoctly explored ocean; and when, therefore, the Treaty proceeded to define the course of "the same western limit" from the initial point in Behring Strait to the •outhward and westward across Ik-hring Sea, it is obvious that it continued to possess the Bamo character and value. Debates in Congress on the Cession of Alaska, 1867. 1868. Neither the Debates in Congress— which pre- ceded and resulted in the cession and its mtilica- tion by the United States, nor tlie Treaty by which it was carried into effect, nor the subse- quent legislation by the United States, indicate tiie transfer or acquisition of any exclusive or extraordinary rights in Behring Sea. On the contrary, they show that no such idea was then conceived. In anpwer to a Resolution of the House of [644] 2 A— 2 B 07 IBepresentatives of the 19th December, 1867* calling for all correspondence and information in the possession of the ExecutiTe in regard to the country proposed to bo ceded by the Treaty, the Memorial of the Legblature of "Washington Territory, which was made the occasion for the negotiation, together with Mr. Sumner's speeoh in the Senate, were among other documents transmitted. This Memorial shows that United States' citizens were already engaged in fishing from Gortez Banks to Behring Strait, and that they had never been under any apprehension of interference with sucb fishing by Russia, but desired to secure coast facilities, especially for the piu-poses of curing fish and repairing vessels. The Memorial is as follows : — United Sutra' Senate, Ex. Doe. No. 177, 40th Cong., Snd 8eaa., f 13a. "To his Excellency Andrew Johnsou, Freaident of the United States. " Your memorialists, the Legislative Assembly of Wash- ington Territory, beg leave to show that abundance of cod- fish, halibut, and salmon, of excellent quality, have been found along the shores of the Bussian possessiona Your memorialists respectfully request your excellency to obtain such rights and privileges of the Government of Russia as will enable our fisliing-vessels to visit the ports and harbours of its possessions to the end that fuel, water, and provisions may bo easily obtained ; that our sick and disabled iisliermen may obtain sanitary assistance, together with the privilege of cming fish and repairing vessels in need of repairs. Your memorialists further request that the Treasury Department be instructed to forward to the Collector of Customs of this Fuget Sound district such fishing licences, abstract-journals, and log-books as will enable our hardy fishermen to obtain tho bounties now provided and paid to the fishenmen in the Atlantic States. Your memorialists finally pray your excellency to employ ■uch ships as may be spared from the Pacific naval fleet in exploring and surveying the fishing banks known to navigators to exist along the Pacific Coast from the Cortez bank to Behring Straits. "And, as in duty bound, your petitioners will ever pray. "Passed the Uousu of Representatives, January 10, 1966. (Signed) "EDWARD ELDRIDGE, %ofar, " BouM of Jifpresentatives. "HARVEY K. mSES, Pretident " of the Council. "Passed the Council, January 13, 1866." In the debate which took place in Congress upon the subject of the acquisition of Alaska, [6iA] 9 ■ i the value of the proposed purchase, and the nature of the interests and property proposed to be acquired were fully discussed. The debate was protracted, and many leading Members spoke at length. To npnc of them did it occur to suggest the existence of an exclusive jurisdiction over any waters or fisheries distant more than 3 miles from land. On the contrary, Mr. Sumner, who had charge of the measure in the Senate, after pointing out that seals were to be found on the "rocks and recesses" of the territory to be acquired, which would therefore make the acquisition more valuable, in touching upon the fisheries and marine animals found at sea, admitted that they were free to the world, contending, however, that the possession of the coast gave advantages to the United States' fishermen for the outfitting of their vessels and the curing of their catch. With reference to the whole fishery he remarked : — " The Narwhal with his two long tusks of ivory, out of United Sutct' which was made the famous throne of the early Danish w "jj'j Jmh* kings, belongs to the Frozen Ocean ; but he, too, strays Cong., 2od Seit., into the straits below. As no sea is now mare clatisum, P- '^'■ all these may be pursued by a ship under any flag, except directly on the coast and within its territorial limit And yet it seems as if the possession of this coast as a commercial base must necessarily give to its people peculiar advantages in this pursuit" !Mr. Washburn, of Wisconsin, said : — " But, Sir, there has never been a day since Vitus (jnited States' Behring sighted that coast until the present when the Congreiiional people of all nations have not been allowed to fish there, •• Colnmiri nil and to cure fish so far as they con be cured in a country Globe," Deeember where they have only from forty-five to sixty pleasant ^'•lo^^n'ifrv' days in the whole year. England, whose relations with gndSeu. Russia aro far less friendly than ours, has a treaty with that Government by which British subjects are allowed to fish and euro fiah on that coast Kay, more, she has a treaty giving her subjects forever the free navigation of the rivers of Russian America, and making Sitka a free port to the commerce of Great Britain." In 1868 Mr. Ferrisa spoke as follows :— • Uuited Sutei' CongrenioiMl • That extensive Ashing banks exist in tljese northern Pj.'**'"' '^T?" . * ConffTMlioDlI teas is qmte certain ; but what exclusive title do we get Globe," JoIt I, to them ? They are said to be far out at sea, and nowhere '•^•' ''"* "• witliin 8 marine leagues of the islands or main shoie." ^'^g. 's^ldSiM. f ) 90 United SutM' OoDgreuional Debatei, from " CoDgrefiioDal GloK* July 1, 1868, Part IV, p. 3668, 40tb Cong., Snd Seii. Mr. Peters, in the course of his speech, remarked : — " I believe that all the evidence upon the subject proves the proposition of Alaska's wortblcssness to be tnie. Of course, I would not deny that her cod fisheries, if she has them, would be somewhat valuable ; but it seems doubtful if iish can find sun enough to bo cureti on her shores, and if even that is so, my friend from Wisconsin (Mr. Waah- bum) shows pretty conclusively that in existing treaties we had that right already." United Stetei' Congmiional Delntei, from Appendix to "Congnuionil Glob*," July 0, 1868, Put V, 3nd Sen., 40th Cong., p. 490. See alio AUika, p. 670. Mr. Williams, in speaking of the value of the fisheries, said :— "And now as to the fishes, which may be called, 1 suppose, the artfumeritum piscatonum, ... or is it the larger tenants of the ocean, the more gigantic game, from the whale, the seal, and walrus, down to the halibut and cod, of which it is intended to open the pursuit to the adventurous fishermen of the Atlantic coast, who arc 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 liimself, finds the foundations of this great Republic like those of Venice and Genoa among the fishermen. Beautiful as it shows above, like the fabled mermaid — 'df*init in piscem mvlier fomwsa superne,' 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, lie says, exhausted. The Falkland Islands are now only a resting place in our maritime career, and American liberty can no longer live except by giving to its founders a wider range upon a vaster sea. Think of it, he exclaims — I do not quote his precise language — what a burning shame is it not to us that we have not a spot of earth in all that watery domain, on which to refit a mast or sail, or dry a not or fish ? — forgetting, all the while, that we have the range of those seas without tlio leave of anybody ; that the privilege of landing anywhere was just as readily attainable, if wanted, as that of hunting on the territory by the British ; and, above all, that according to tlie ofTicial Keport of Captain Howard, no fishing buuk has been discovered within the Buaaian latitudes." Deductions. It is contended therefore — That Russia's rights "as to jurisdiction and as to the seal fisheries in Behring Sea," referred to in Point 4 of Article VI of the Treaty of ] 892, were such only as were hers according to inter- national law, hy reason of her right to the posses- sion of the shores of Behring Sea and the islands therein. 100 That the Treaty of Cession does not purport either expressly or by implication to convey any " dominion in the waters of Behring Sea," other than in territorial waters which would pass according to international law and the practice of nations as appurtenant to anyterri* tory conveyed. That no " dominion in the waters of Behring Sea " other than in territorial waters thereof did, in fact, pass to the United States by the Treaty of 1867. 101 ElUott. Centut VLt v**, p.35. H. R., F;-. Doc No. asaa, soth OoBg., iad Sesi., pp. 87, 88. Ibid., p, 70. United States' Statutea at Large, vol. XT, p. 341. Ibid., p. 948. 41it CoDg., Sod Sua., Ex. Doe. No. 109. Ghaptbb YI. Head (F). — The Action of the United States and Russia from 1867 to 1886. When, in consequence of the cession of iilaska as a whole, the llussians relinquished their sovereignty over the Pribyloff (or "Seal") Islands in 1867, sealers at once landed on the breeding resorts of the fur-seal on these islands. Sealers from the New England States found themselves confronted by competitors from the Sandwich Islands. They proceeded to laughter seals upon the breeding grounds in the manner usually practised by sealers on grounds where no Regulations were in force. In the year 1868, at least 240,000 seals are reported to have been taken, and 87,000 in the following year. In view of this wholesale destruction of seals, the United States' Govern- ment decided in the exercise of their undoubted right of territorial sovereignty to lease these seal rookeries, and to re-establish, by means of the necessary legislation, the lapsed Russian Regula- tions which had restricted the killing of the fur-seal. Accordingly, on the 27th July, 1868, an Act passed the Con,';jress of the United States, entitled "An Act to extend the Laws of the United States relating to Customs and Navigation over the territory ceded to the United States by Russia, to establish a Collection District therein, and for other purposes," of which section 6 pro- vides : — " That it shall bo unlawful for any person or persons to kill any otter, mink, marten, sable, or fur-seal, or other fur-bearing animal within the limits of sakl territory, or in the waters tliereof." On the 3rd March, 1869, a Resolution was passed by the Senate and House of Representatives specially reserving for Government purposes the Islands of St. Paul and St. George, and forbidding any one to land or remain there without permis- sion of the Secretary of the Treasury. Mr. Boutwell's Report, as Secretary of the Treasury, preceded the Act of the 1st July, 1870. This Report discloses no suggestion of jurisdiction at a greater distance than 3 miles from the shore- line. With knowledge of the raids upon the ifllands and the existence of seal-hunting schooners, Mr. Boutwell dwelt upon the means of [644] 2 P 11 > 109 protecting the seal islands only. Ho recom- mended that the Qoverument of the United Status should itself undertake the management of the business of the islands, and should "exclude everybody but its own servants and agents .... and subject vessels that touch there to forfeiture, except when they are driven to seek shelter or for necessary repairs." On the Ist July, 1870, the following Act wa« passed entitled, " An Act to prevent the extermi- nation of Fur-bearing Animals in Alaska " : — "Be it enacted by the Senate und House of Repre- sentatives of tlie United States of America in Congress assembled, that it shall be unlawful to kill any fur-seal upon the islands of St. Paul and St. Oeorge, or in the waUn adjacent thereto, except during the months of June, July, September, and October in each year ; and it Hhall be unlawful to kill such seals at any time by the use of fire- arms, or use other means tending to drive the seals away from said islands." .... " Section 2. And be it further enacted, that it shall be unlawful to kill any female seal, or any seal less than one year old, at any season of the year, except as above pro- vided ; and it shall also be unlawful to kill any seal in tht •waters adjacent to said inlands, or on the beaches, cliffs, or rocks where they haul up from the sea to remain." • • • • " Section 4. And be it further enacted, that immediately ofter the passage of this Act, the Secretary of the Treasury shall cease, for the rental mentioned in section C of this Act .... for a term of twenty years, from the Ist day of May, 1870, the right to engage in the business of taking fur-seals on the Islands of St. Paul ond St. George, and to send a vessel or vessels to said islands ft. the skins of such seals." • • • • ' ■Joction 6. And be it further enacted, that .... any pc) m who shall kill any fur-seal on either of said islands, o; tlu: waters adjacent tlurelo .... without authority ol J lessees thereof .... shall be deemed guilty of a nu jmeanour," lease was executed in 1870 on behalf of th United States' Government in favoiur of the A ;Ska Commercial Company, as provided for in this Act. It covered the Islands of St. George and St. Paul only. The following instructions from the Treasury Department show that the administration con- fined the interference of their officers to those seal-hunters only who attempted landing upon the ielanda : — " Treasury Departmmil, "September 10, 1&10. " The following Executive Order, relating to the importa- H. R., 44th Cong., lion of arms into the Islands of St. Paul and St. George, ijp. ^"^ aol ^'^' lOS wHhin the diitrict of Alaska, is published for tho informal tion of Ouioen of the Customs : — " Uxteutive Manning- Washington, D.C., " September 9, 1870. "So much of Executive Order of tho 4th February, 1870, as prohibits the importation and use of fire-arms and ammunition into and within tho Islands of St. Paul and St. George, Alaska, is hereby modified so as to permit the Alaska Commercial Company to take a limited quantity of fire-arms and ammunition to said islands, subject to the direction of tho revenue ofScera there and such regulationt as the Secretary of the Treasury may prescribe. " U. S. GItANT, President. "The instructions issued by this Department in itt Circular of tho 8th February, 1870, are accordingly modi- fied so as to adjust them to tho above Order. " Bevonue ofiicers will, however, see that the privilege granted to tho said Company :j not abused ; that no fire- arms of any kind are ever used by said Company in the killing of seals or other fur-bearing animals, on or near said islands, or near the haunts of seals or sen-otters in the district, nor for any purpose whatever, during the moutlia of June, July, August, September, and October of cich year, nor after the arrival of seals in tho spring or before their departure in the fall, excepting for necessary protec- tion and defence against marauders or public enemies who may unlawfully attempt to land upon the islands. In all other respects, the instructions of the 8th Februorj', 1870, will remain in force. "WM. A. RICHARDSON, " Acting Secretary." " Treasury Department, Washington, D.C., "Sir, " September l January, that "neither upon my Statei, p. 197. recollection of facts, as they were understood by me in 1872, nor upon the preseTit reading of the correspoudence, do 1 admit tlie claim uf Groat Britain th.-)! my letter is an uilmisaiou of any tight adverse to the claims of the United States in the waters known as Bchring SSea. My letter had reference solely to the waters of the Pacific Ocean soutli of the Aleutian Islands." But the United Stat:s' claim of rights in Alaskan waters was that of 40 leagues, or 100 Italian miles from the shores of the mainland, or of the islands of Alaska ceded by Bussia, and did not refer exclusively to the ihorea inside what is now known a* Behring Sea. 108 t»titiguous to her coasts, Mr. Fish, Secretary of State for the United States of America, gives conclusive evidence as to the interpretation placed upon the Convention of 182ii by the United States, as follows :— " There was renson to hope that tho practico whicb Fi«h to Boker, formerly prevailed with powerful nations of roKardiiic seas f?*"* '» '"'"i . , , ,. , . , . , . Wharton, vol. i., and bays, uauaUy of large extent, near tneir coast, as closed je^j, 32^ p io6. to any foreign commerce or JUiicrg not specially licensed by them, was, without exception, a pretension of the past, and that no nation would claim exemption from the general rule of public law which limits its maritime jurisdiction to a marine league from its coast. Wo should par- ticularly regret if llussia sho'-ii' insist ,11 ^ny such pretension." During the whole period discussed in this chapter, tho vessels of various nations were continuously engaged in hunting, fishing, and navigating in the waters of the North Pacific, including Behring Sea. Schooners from British Columbia wore fishing H- R> Ex. Doc. * 1 . ,r,«„ , 1 i i, , « No. 35, 44th Congr., for cod m 1866, and seals to the number of i,t Smi. 20,000 a-year were reported as being taken south of St. George and St. Paul Islands in 1870 and 1872. Whalers continued as before to frequent the Whaling Industry. waters both east and west of the line described in , , ., _, , „,„„_ ._, ,,»,.. ,. Fiihery Induatnes the Treaty of 18G7. The extent of their operations of the United appears from the following Table, which shows ^^'^f'^^ggl '**'*' the number of vessels composing the North Pacific whaling fleet after the date of the Alaska Cession.* Walrui Niiniltcr of ■ypar. United Stntcs' Vessels. Kemark?. 1867 90 Also eleven foreign vessels. 1868 61 Also seven foreign vessels. 1860 43 Also six foreign vessels. 1870 40 Also nine foreign vessels. 1371 35 All but seven of tho fleet were lost, including four foreign vessels. 1872 27 Also four foreign vessels. 1873 30 Also four foreign vessel". 1874 23 Also four foreign vessels. 1876 16 Also four foreign vessels. 1876 18 All b\it eight of the fleet lost, also two foreign vessels. 1877 19 Three of the fleet were loet ; one foreign vessel. 1878 17 One of the fleet lost. 1879 21 Three of tho fleet loat. 1880 19 * Foreign vessels in this I'oblr, of course, means all Tessels not sailing under the United States' ilng. Walnu Bunting. Fwhrry TndiiitriM of the Uniied Statei, wet. t, vol, ii, part 17, pp. 313 (( t»g. loe* Walrus hunting is also known to hare been continuously practised by the whalers during these years, and in some years large quantities of walrus iyory and oil were obtained : — " The Arctic whaling fleet from 1870 to 1880, incliuive, ia estimated to have captured 100,000 walnu, producing 1,U9G;000 gallons of oil and 398,868 lbs. of ivory, of a total value of 1,260,000 dollars." H. R., Ex. Doe. No. 83, p. 1S5, 44th Coog,, lit In 1872 expeditions for scaling in Bchring Sea were reported to be fitting out in Tarious places, as appears from Mr. Phelps' letter, already quoted, and in 1876 a schooner was reported as having been seen shooting seals among the seal islands. Iran Petroff, Special Commissioner of the United States to the seal islands in the year 1880, says in his Beport :— H, R.i Ex. Doe. "As these seals pass np and down the coast as far aa 8id82l^.*ioi?iyiX *•*" ^'""^ "^ ^"** ""^ *•** ""'"'*' "^ Columbia Biver. p. 65. qtiite a number of them are secured by hunters, who shoot or spear them as they find them asleep at sea. Also, •mall vessels are fitted out in San Francisco, which ngularly cruize in these waters for tiie puipose alone of shooting sleeping seal" itiSi] 2 B» 109 And ho adds :— H. R., Ex. Doc. "Tlio fur trade of this country, with the exception of Coiiir. 8rd S«ia ''"'' '^onfineil io the teal islands nnJ act apart by law, is tol. xflii, p. 68. froo to oU legitin»ite entiirpriro." H. R.. Ex. Doo. No. 153, 4gth CoDg., Itt 8cm. H. R., El. Doc. No. 3888, eOlh Cork., Snd Seas., p. 18. H. R., Ex. Dor., 80th Cbhg., 2nd Shi., No. 3883, p. 981. Sealing- vessels and their catches were also reported by the United States' cutter " Corwin," but none were interfered with when outside of the S-mile limit. In 1881 an Agent of the United States' Government stated that during the past twenty years probably 100 vessels had prowled about the Pribyloff Islands. The Agents of the United States' Government sent to the seal islands previously to 1886 con- tinually reported upon the inadequacy of the protection of the islands, and they frequently referred to depredations upon the rookeries by the crews of vessels sealing in Behring Sea. Early in 1881, Collector D. A. D'Ancona, of San Francisco, appears to have requested information from the Treasury Department at Washington in regan' to the meaning placed by that Department upon the law regulating the killing of fur-bearing animals in the territory of Alaska, and specially as to the interpretation of the terms "waters thereof " and " waters adjacent thereto," as used in the law, and how far the jurisdiction of the United States was to he understood as extending. In reply, Acting Secretary 11. F. French, of the Treasury Department, wrote as follows on the 12th March, 1881 :— "Sir, " Your letter of the 19th iiltirao, requesting certain information in regard to tlie meaning placeil by this Department upon the law regulating the killing of fur- bearing animals, except oa otherwise therein provided, within thi limits of Alaska Territory or in the waters thereof, and r so prohibits the killing of any fur-seals on the Islands of St. Paul and St. George or in the waters adjacent thereto, except during certain months. " You inquire in regard to the interpretation of the terms ' waters thereof * and ' waters adjacent thereto,' as used in the law, and liow far the jurisdiction of the Uidted States is to be understood as extendi ug. " Presuming your inquiry to relate more especially to the waters of Western Alaska, you ore informed that the Treaty with Kussia of the 3l)th March, 1870, by which the Territory of Alaska was ceded to the United States, defines the boundary of the Territory so ceded. This Treaty is found on pp. 671 to 673 of the volume of Treaties of the Revised Statutes. It will be seen therefrom that the limit of the cession extends from a line starting from the [644] 2 P 110 Arctic Ocean and running through Bering Strait to the north of St, Lawrence Islands. The line rans thence in a south-westerly direction, so as to pass midway between the Island of Attoo and Copper Island of the Kroman- boski [sic] couplet or gi'oup, in the North Pacific Ocean, to meridian of 193 degrees of west longitude. AU the waters witliin that loundary to tlie western end of the Aleutian Archipelago and chain of islands, are considered as com- prised within the waters of Alaska Territory. " All the penalties prescribed by law against the killing of fur-bearing animals would therefore attach against any violation of law within the limits before described. (Signed) , " H. F. French, " Acting Seeretixry." It does not appear from any official documents that any action was taken in accordance with the opinion expressed in this letter, and no seizures were made, and no warning was given to any British vessel enpaged in sealing beyond the ordinary territorial limits prior to 1886, although at least one British vessel is known to have been engaged in such sealing in 1881, and no less than thirteen were so engaged in 1883. Two of these 50th Cong., ynd vessels are stated to have been spoken by a United DM.'No°rt6^"* States' revenue cutter, but not in any way p- i84. molested. On the 22nd May, 1884, Lieutenant J. E. Lutz H. r., Mi«. Doc, was instructed by the Captain of the United l^iif ,^Nof fios" States' revenue steamer " Corwin " to watch and ?■ as. to seize or arrest any vessel or persons attempting to take seal contrary to law. Acting under these instructions. Lieutenant ibid., p. 33. Lutz arrested the " Adele," of Hamburg, Qustave Isaacson, master, with three officers and a crew of eighteen Japanese, when at anchor off shore. The Lieutenant was careful to ascertain that the vessel was engaged in sealing ashore, and having waited the return of the ship's boat which came back loaded with seal carcasses, Lieutenant Lutz reported that, having now secured all necessary evidence, he notified the captain of the .,eizure of the vessel. It is found that from 1867 down to and including 1885, vessels continued to visit and hunt in Behrlng Sea without interference when outside of the ordinary teiTitorial jurisdiction The p'rcumatances which appear to hayc *, 1 to a change of official policy in 1886 ml: uZ related hereafter. It may be convenient at this point to refor to questions which were raised by occurrences ^'n the Asiatic waters of the Pacific, adjacent to Russian territory. '^4*1- Wha] Noii4ir«n'.oii of ^lithsritT i>t«/ Uahriaif *■* '■>» Uait?'.. ,1 ',». (iriiw to 1 2>. 4. Ill Disputes with Biusia in Okhotsk and Behring Seas. tlsherr Industrie! of tha United State*, section 5, Tol. ii, p. ao. For extract from Tikhmenie6F, see Appendix, and onto, p. . Wbalen sometimes seal-htmters. H. R., 4«th Cong., l(t S«ss., Report 69S. Mr. HofTnitn to Mr. FrelinKhuyieu, March 14, ISH'J. fiOlb Cong:., Snd 8rs9., Knate, Ex. Doc, No. lOfl, p. 3bO. Disputes have more than once arisen respecting the rights of United States' whaling vessels in Okhotsk Sea. The main ohjection to these whalers was he- cause of their interfering with the fur industry, and it is on record that the mode of whaling practised in this sea was often to anchor the vessel in some harhour and to send the hoats there- from in pursuit of whales. The instructions to Russian cruizers dating from 1853 only pro- hihited these vessels from coming " within 3 Italian miles of our shores." The Sea of Okhotsk was covered by the Ukase of 1821, .'i,nd possesses a seal rookery (Rohbcn Island). Whalers from the United States and elsewhere began to frequent this sea about the year 1843. The toUowing evidence with reference to sealing and whaling in Okhotsk Sea given before the Committee of Ways and Means in the House of Representatives at Washington (3rd May, 1876), shows that whalers were also engaged in taking seals : — " Q. Who are Williams, Hnven, and Co. ? — A. Williams, Haven, and Co. aro Mr. Henry P. Haven, of Connecticut, who died last Sunday, and Eichard Chapel. They are wiialers. They took seals and whales, and had been at that business in the Pacilic for a great many years. " Q. They had an interest in these skins ? — A. Yes, Sir. They Imd a vessel iu the waters of the Okhotsk Sea, I think, seal-fishing in 1866. While their vessel was at Honolulu in 1866, the captain became acquainted with a Russian captain who put iu there in distress with the remainder, or a portion, of the Alaska seal-skins taken by the old Russian Company, and there this captain learned of this interest Ho left his vessel at Honolulu, went to Connecticut, and conferred with his employers. Then Mr. Chapel, one of the concern, went out to Honolulu aud fitted out this vessel and another one and sent them to the Alaska Islands as early as April, 1868." The United States' Minister, Mr. noffman, writing in 1882, thus refers to this sea : — " A glance at the Map will show that the Kurile Islands are dotted across tho entrance to the Sea of Okhotsk the entire distance from Japan on tho south of the southem- most Cape of Kamtchatka on the north. " In tho time when Russia owned the whole of these islands, her Ropresentativca in Siberia claimed that the Sea of Okhotsk was a innre clausum, f(T that Russian juriMiiotioD extended from island to island and over 112 2 marine leagues uf intermediate sea from Japan to Kamt- chatka. "But about five years ago Eussia ceded the southern group of these islands to Japan, m return for the half of the Island of Saghalin, which belonged to that Power. "As SC071 as this was done it hecame impMnble for the Siberian authorities to maintain, their claim. My informant was not aware that this claim had ever been seriously made at St. Petersburgh." And in another letter he says : — " I do not think that Eussia claims that the Sea of March 27, 188SI. Okhotsk is a mare clausuvi, ovsr which she has exclusive • P* " jurisdiction. If she does, her claim is not a tenable one since the cession of part of tlie group of the Kurile Islands to Japan, if it ever were tenable at any time." The following appears as an introductory statement in " Papers relating to Behring Sea Fisheries," published at the Government Printing Office in Washington, 1887 :— " This sea [of Okhotsk] is a part of the waters to which the Ukase of 1821 applied, and which M. Poletica, in his subsequent correspondence with Mr. Adams, prior to the Treaty of 1824, said His Imperial Majesty, the Emperor of all the Eusuias, might h>..j claimed as a close sea had he chosen to do so. As has been seen, all question as to the right of citizens of the United States, as well as of the subjects of Great Britain, to navigate and fish in those waters, was given up by Eussia once for all in the Treaty of 1824 with tlie United States, and of 1825 with Great Britaia " The following correspondence between Eussia and the United States in the years 1867 and 1868 contains an explicit disavowal by liussia of any claim to interfere with the fishing operations of citizens of the United States in the Sea of Okliotsk." The correspondence referred to shows that the • Europ»." captain of the " Europa," a United States' whaling-vessel, complained to the Department of State at Washington that the Captain of a Bussian armed steamer had stated that he was authorized to drive Un'ted States' whalers away from the vicinity of the Settlement of Okhotsk, ixi the Sea of Okhotsk, and that he had fired on the ship's boat of the bark "Endeavour" of New " Endeavour."* Bedford. It appears also from the same coiTcspondencc "Java." that on the 27th July, 1867, the United States' bark " Java " was cruizing for whales in Shantar Bay and standing towards Silas Richard's Bluff, when a Russian Commander ordered him out of the bay, and thereupon Mr. Seward inquired 118 WeitmuD to United Stetn' SacreUrjr of State, JaW 31, 1868, aOth Cong., -Jnd Sets., Senitc Ei. Doc., No. 106, p. m. of the Enssi&n GoTemment what instruo tions had heen issued relating to fisheries in this sea. In reply to this inquiry, the following ezpla- nation was received from M. de Webtmann, Acting Minister of Poreign Affairs at St. Peters* burg, which shows the claim of jurisdiction of Russia to have been confined to 3 miles only in Russian gulfs and bays, in this part of toe very waters covered by the Ukase of 1821 : — "These are the ciroomstances : The schooner 'Aleont,' tinder the command ot Lieutenant EtoUne, had heen sent in commission from Nicolaievsk to Oudrk. .Hie abundance of floating ice having forced him to enter into the Gulf of Tougoursh, he there met, the 14th July, at about 20 miles to the south of the Straits of Chautarsk, near the eastern coast, the American wlialer ' Java,' occupied in rendering the oil of a captured whale. Considering that foreign whalers are forbidden by the laws in force to fish in the Knssian gulfs and bays at a distance of less than 3 miles from the shore, where the right of fishing is exclusively reserved to Russian subjects. Lieutenant Etoline warned (' in vita ') the captain of the ' Java ' to ' bear off' from the Gulf of Tougoursh, which ho at once did. The some day the ' Aleout ' made for the Bay of Mawgon, where arrived, on the next day the American whale schooner ' Caroline Foot," whose captain, accompanied by the captain of the ' Java,' called on Lieutenant Etoline, and declared that he had no right to prevent them from fishing for whales wherever they liked. Lieutenant Etoline replied that there were in thai respect established rules (' rigles '), and if they insisted, absolutely, upon breaking them, that he would be compelled to prevent them, The liaptain of the schooner 'Carollue Foot' pretending ('ayant pr6t«ndu ') that he had entered into the Bay of Toug jsh in consequence of 'deviations from his course,' Lieutenant Etoline offered at once all assistance in his power ; and, upon request, delivered him 7 pouds of biscuit from the ■tores of the 'Aleout,' after which the two ships again went to sea. The 19th of July, that is, four days after- wards, the schooner 'Aleout' met a whale, upon which the Commander caused a trial fire to be made. At the same moment was seen, at about 16 miles distaroc, a sail, name unknown, and, nearer, three ' chaloupes,' the nearest of which was at least 3 miles in advance m the direction ot the cannon fire. In the evening all these ships hod disappeared. That incui' nt is registered in the books of the 'Aleout' in the foil jwing terms: 'The 19th of July, at 9 in the evening, at anchor in the Bay of Mawgons, fired a cannon shot for pru-'tice at a whale afloat.' From these facts General Clay vill bo convinced that the incident alluded to has beon exaggerated, and even per- verted (' ddnaturd ') much in order to be represented as a cause of grievance against the Commander of the ' Aleout ' on the part of the American whalers." [64.4] a G 114, The explanation \ras considered satisfiictoiy. Mr. Seward observing that " the captain of the ' Java,' spoke unwarrantably when by implication he denied that the Russian authorities hare the right to preyent foreign vessels from fishing for whales within 3 miles of their own shore." In the year 1881 the Eussian Consul at Yoko> hama issued, on behalf of the Eussian Imperial Government, a Notice, of which the following is a translation : — " Nonoi. " At the request of the local authorities of Behring and 60tli Cong., 9nd other islands, the Undersigned hereby notifies that the ^"''^"loef*' Russian Imperial Government publishes, for general p. 2S9. knowledge, the following : •"1. Without a special permit or licence from the Governor-General of Eastern Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, &c., on the Bussian coast or islands in the Okhotsh and Behring Seas, or on the north-eastern coast of Asia, or ^thin their aea boundary-line. " ' 2. For such permits or licences, foreign vessels should apply to Vladiyoatock exclusively. "'3. In the port of Petropaulovsk, though being the only port of entry in Eamtchatka, such permits or licences shall not be issued. "'4 No permits or licences whatever shall be issued' for hunting, fishing, or trading at or on the Commodore and Robben Islands. "'5. Foreign vessels found trading, fishing, hunting, &c., in Eussian waters, without a licence or permit from the Governor-General, and also those possessing a licence or permit who may infringe the existing bye-laws on hunting, shall be confiscated, both vessels and cargoes, for the benefit of the Government. This enactment shall be enforced henceforth, commencing with a.d. 1882. " ' 6. The enforcement of the above will be intrusted to Bussian men-of-war, and also to Russian merchant-vessels, which, for that purpose, will carry military detachments and be provided with proper instructions. "'A. Pelikan, "•S.I.E.M.Comul. "•Yokohama, November 16, 1881.* " The firm of Messrs. Lynde and Hough, of San iby., p, jjs. Francisco, was in 1882, and had been for yean, ^^^^ ""* Hough engaged in the Pacific coast fisheries. They Fsbriury'is, 1888. yearly sent vessels to the Sea of Okhotsk, fishing from 10 to 20 miles from shore. The attention of the firm being called to tue above Notice, they wrote the Secretary of State of the United States calling attention thereto. Both Cong., 3Dd Smi., Scntta Ex. Doc. No. 106, D.361. Mr. Holfnian to Mr. Frclingfauymi, Maroh 37, 1883. Ibid., p. 363. M. de Gien to Mr. Hoffman, M«7 8 (30), 1883. 116 Tho Secretary of State (Mr. Frelinghuysen), on tbo 7th Marcb, 1882, inclosed their letter, together with the regulations "touching the Pacific coast fisheries," as he termed them, to the United States' Minister at St. Petersburg. Mr. Hoffman, tho United States' Minister, acknowledged the receipt of this despatch, in reference to what he also called " our Pacific Ocean fisheries." Mr. Iloffman, having made inquiry of M. de Giers, the Russian Foreign Minister, the latter, in bis reply, dated the 8th {20tb) May, 1882, explained that these Regulations applied only to "territorial waters of Russia," and, in a subse- quent letter of tho 1st (13tli) June, quoted Article 560 of the Russian Code, which is as follows : — " ABTICLE 5C0. Ibid., p. 363. M. de Giert to « The maritime waterx, even when they wash the shores, Xne 1°(13)°1882 '"^s™ t'"^"' '^ " permaneii nopulation, can not ba the subject of private possession ; they are open to the use of one and alL" Ibid., 360. Mr. Hoffman, in a letter to Mr. Frelinghuysen of the 14th March, 1882, shows what ho under- stood to be the meaning applied by M. de Giers to the words " territorial waters." He writes : — " The best whaling grounds are found in the bays and inlets of the Sea of Okhotsk. Into these the Kussian Government does not permit foreign whalers to enter upon the ground that tlic entrance to tliem, from headland to headland, is less than 2 marine leagues wide." Ibid., pp. 863, 363. "EliM." Indeed, M. de Giers, in the letter of the 8th (20tb) May, i"'''' already quoted, makes it clear that, as to * ' n^ and hunting, the rule was the same, and that the prohibition of vessels engaged in these pursuits extended only over the marine league from the shores of the coasts "and the islands called the 'Commander' and the •Seals.' " The island referred to as the " Seals " is Robben Island, and the reference to this and the Commander Islands indicates that M. de Giers, under the term of "hunting," was referring specially to the sealing industry. On the 2l8t July, 1884, the United States' schooner " Eliza " was seized by the Russian cruizer "Razboinik" in the Anadir River, which runs into Anadir Bay, a northern portion of Behring Sea. It was represented to the United 116 States that she was there trading and hunting «Oth Cong,, 2nd walrus. The United States' Vice-Consul-General Doc.,'No"io«. " at Japan termed the seizure "an act of piracy." P- *69. General Vlangaly, writing from the Depart- ment of Foreign Affairs ou the 19th (31st) Ibid., p. 370. January, 1887, explained that t!in "Eliza" was arrested, " not for the fact of sed hunting," hut for violating the prohibition touching trading, hunting, and fishing on the Russian coasts of the Paeiho without special licence. The crew, it was found, were trading with the Ibid., p. 869. natives on the coasts of Kamtchatka, as well as hunting walrus. This appears to have been accepted as a valid < explanation ; but with reference to the seizure of their ship and of the " Henrietta," Mr. Lothrop, United States' Minister at St. Petersburg, writing to Mr. Bayard, the United States' Secretary of State, remarks : — "I may add that the Russian Code of Vvize Law of 18C9, Article 21, and now in force, limits the jurisdictional waters of Kussia to 3 miles from the shore." The United States' schooner "Henrietta" had "H»nrietu." been seized on the 29th August, 1886, ofif East lyj,, p. je?. Capo in Behring Strait by the Russian corvette "Kreysser." Explanations from the Russian Government Jbid., p. 869. were promptly demanded by the United States, and it was alleged she was arrested for illicit trading on the Russian coasts. Nevertheless, Mr. Bayard, vrriting to Mr. Lothrop on the 16th March, 1887, observed : — " If, as I am to conclude from your despatch, the seizure United 8uit«n' of the 'Henrietta' was made in Russian territorial waters, R«l»''<'n«. I387> p. 954. then the Russian authorilios had jurisdiction ; and if the condemnation was on pDcecdings duly instituted and administered before o competent Court and on adequate evidence, this Department has no right to complain. But if either of these conditions doea not exist, the condemna- tion cannot be internationally sustained. The first of these conditions, viz., that the proceedings should have been duly instituted and aJmiDistered, could not be held 10 exist if it sliould appear that the Court before whom the proceciHnga were had was composed of parties ^terosted in the seizure. On general principles of inter- oaticnul law, to enforce a condemnation by such a Court ia a denial and perversion of justice, for which this Qovemmcut is entitled to claim redress. " The same right to redress, also, would arise if U should apptcr thai, while the leisure was viilhin the S-mile zone, tht alltged offence wai committed exterior to that ton* and on the high leai. u u ^■ r^-' H. R., Ex. Doc. ISS, 49th Cong., 1st Sena. 117 " You are therefore instructed to inqtiire, not merely as to the mode in which the condemning Court was con- stituted, but as to the evidence adducbd before nuch Court, in 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 of -war of the United States cruizing in Bchring Sea, in Alaska and guarding the interesis of the Alaska Commercial Company upon the islands leased to the Company, do not even suggest the intention of that Government to assert a claim so vehemently disputed when advanced by Russia. On the contrary, while vessels from British Coliunhia and elsewhere were trading and fishing generally in the Bchring Sea, and while vessels — chiefly those of the United States — were actually raiding the rookeries, the instructions relating to the fisheries given to Revenue Marine vessels by the United States' Government, until 1886, were confined, as has been shown, to the immediate protection of the seal islands. The seizure of British sealers in the open sea followed the Report oa the cruize of the Revenue Marine steamer " Corwin " in the year 1885. In this Report, it is among other things stated^ that a special look-out was kept for vessels sealing while shaping a course for St. Paul. The Captain writes : — " While we were in the vicinity of the seal islands a look-out was kept at masthead for vessels cruizing, sealing, or illicitly trading avion;/ those islands. lUit uo such vusnels were seen." Having drawn attention to the number of vessels Avhich had taken, or had endeavoured to take seals ou the shores of the islands, and illustrated the great difficulty of preventing the landing thereupon, the Commander concludes as follows : — "In view of t.lm foregoing facts, I would respectfully suggest — " 1. That the Department cause to be printed in the Western papers, particularly those of .San Francisco, California, and Victoria, British Columbia, the sections of tho law relating to the killing of fur-bearing nniuials in Alimkan waters, and defining in spocilic. terms what is meant by Alaskan watcre. " !?. That o revenue cutter bo sent to cruize in the vicinity of tho i'ribyloff Islands and Aleutian group during tlie sealing season." [644] 3 H 118 Tlie suggestion that the meaning of the words Saatu Ex. Doe, " Alaskan waters " should be defined in specific "ig.,'^Nofi06* terms was never adopted, but on the 16th March, p. iss. 1886, Mr. Daniel Manning, Secretary to the Treasury, wrote to the Collector of Customs at San Francisco as follows : — " Treasury Department, •• Sir, " March 16, 1886. " I transmit herewith, for your information, a copy of a Be« ante, p. letter addressed by the Department on the 12th March, 1881, to D. A. D'Ancona, concerning the jurisdiction of the United States in the waters of the Territory of Alaska, and the prevention of the killing of fur-seals and other fur-bearing animals within such areas, as prescribed by chapter 3, title 23, of the Revised Statutes. The atten- tion of your predecessor in office was called to this subject on the 4th April, 1881. This communication is addressed to you, inasmuch as it is understood that certain parties at your port contemplate the fitting out of expeditions to kill fur-seals in these watei'S. You are requestsd to give due publicity to such letters in order that such parties may be informed of the construction placed by tliis Department upon the provision of law referred to. " Yours, &c. (Signed) " D. Manning, " Secretary." Deductions. The statement of facts in this chapter estab- lishes — That from the year 1867 down to the year 1886 the action of the United States and Russia, the parties to the Treaty of Cession of 1867, is consistent only with the view that the rights possessed by the United States and by Russia respectively in the waters of Behring Sea were only those ordinarily incident to the possession of the coasts of that sea and the islands situated therein. That during that period, notwithstandinjj: the presence of seal-hunting craft in Behring Sea, the United States' authorities confined the exercise of jurisdiction to the land and waters included within the ordiuai'y territorial limits. 119 Chapter "VII. Head (Q.) — Various Contentions of the United States since the year 188G. The considerable development of pelagic scalin* in the North Pacific which had taken place in the years previous to 1886 had established a very strong competition against the Alaska Com- mercial Company. That Company, paying a considerable royalty to the United States* Government upon every skin, had now to face the competition of the pelagic scalers, who paid no rent or royalty. The Company therefore exerted all its influence, especially powerful at Washington, to check and, if possible, destroy this competition. Till the development of the pelagic sealing industry, the aotual circum- stances had been such as to allow the Company largely to control the markets for seal-skins, and to enable them to exercise a practical monopoly of sealing in the North Pacific. In the year 1886 the United States' Govern- ment for the first time furnished revenue cutters with instructions to prevent any vessel from sealing in any part of Behring Sea to the east- ward of the geographical limit mentioned in the Treaty of Cession. 8— p. . This action by the United States was the first Beport of Governor attempt to actively interfere with the right of p. 48**1 8*87, p. 36. ^^^ Vessels of other nations to navigate and fish in the waters of Behring Sea other than terri- torial waters. Three British vessels were seized during the year in pursuance of the above-mentioned orders, and subsequently condemned upon the ground that the waters in which they were fishing, though outside ordinary territorial waters, formed part of the waters of Alaska and were part of the territory of the United States. Sir L. S. Sackvillo West, British Minister in Washington, at once, by instruL'tion, made a formal protest in the name of Her Majesty's Government against those seizures of British vessels. 1-20 Attorney General Garland issued the following Blue Book, United T)rder, after the British protest :— p^^.''^"' ^' '^^"' " Washington, D.C., January 26, 1887. *' Judge Lafayette Dawson and M. D. BnU, United States' District Attorney, Sitka, Alaska. "I am directed by the Frasident to instruct you to discontinue all further proceedings in the matter of the seizure of the British vessels ' Carolena,' ' Onward,' and ' Thornton,' and discharge all vessels now held under such seizure, and release all persons that may be under arrest in connection therewith. (Signed) "A. H. Garland, " Attorney-General." laxf 000 vivi infi Mr. Bayard, however, the Secretary of State, Ibid., p. 40. ■wrote, on the 3rd Pcbruary, 1887, to Sir L. S. Sackvillo West that this order was issued " with- out conclusion of any questions Avhich may be found to be involved in these cases of seizure." Fresh seizures took place in July and August Renewed leiinres. of 1887, and renewed protest was made by Great Britain. No seizure occurred in 1888, though British sealing- vessels made large catches in that year in Behring Sea. In 1889 five British ships were seized in Behring Sea, and three others were ordered out of the sea. In 1890 no seizures were made, though a large number of sealers visited the sea and took seals therein. In 1891 an agreement was come to between the United States and Great Britain, resulting in •A modus Vivendi, for the purpose of temporarily regulating the fishery, pending the result of expert investigation into the necessities of the case. Vessels were forbidden to take seal': in Behring Sea for a limited period under pcualty of seizure and fine, and on the other hand the number allowed to be killed on tha islands was 120« largely reduced. The only seizures that have occurred since the establishment of the modus Vivendi haTe been made in consequence of its infraction.* * Tr> following Table ihowi the namn nf the British sealiDg-TMsela aeixed or warned by United States' revenue cniizers 1886-90, and the npproximnte distnnce frcim l»nd when seised. The distnnccs assiniicd in the cases of the " Carolenn," " Thornton," an.l " Onward," are on the authority of the United Stutjs' Naral Ccmmander Abbey (see p. , Port ). Kame of Vessel Date of Seizure, i Approiimatr Distance bom Land when seized. United States' Vessel making Seizure. Carolena . , • . August I, 18S6 7S miles . . Corwin. Tiiumton . . n 1. .. 70 i» Onwnrd II 2, „ lis Favourite . . . . »t 2, „ Warned by " Corwin " in about eame position as " Onward " W. P. Snyward July 9, 1887 58 miles Rush. Gmce .. n. .. 92 „ It Anim Deck .. June 28, „ 66 „ ti Dolphin July 12, „ 42 „ Alfred Adams August 10, „ 62 „ It Ada .. 25, „ IS „ Bear Triumph »l ^» »l Warned by " Rush " not to enter Behring Sea Junnitn .. .. July 91, 1889 66 miles Rush. Faihfiiider . . . . It 39, „ 50 „ w Triumph . . 1>. .. Ordered out of Behriug Sea by " Kush." [F] As to poaition when warned Black Diamond 11, .. 36 miles « Lily August 6, „ 66 „ t» Ariel . . . . July 30, „ Ordered out of Behring Sea by "Kush" Ksta August 13, „ Ditto . . •9 Minnie July IS, „ 65 miles »» FBtli6nder .. Moroh 27, 1890 Seized in Neah Bayt Corwin. f Neah Day is in the State of WashinRton, nnd the " I 'nthfindcr " was seised thrrc on charges made aguiust her in Behring Sea in the previous year. Sho ■v. released two days Lter. l'644J 2 R* Refuial of Congrpu to define claims nf United States. H.R., 50tb CoDg., 3nd Sess., Iteport No. 3883, p. i. To accompany Bill H.R. 12438. Ibid., p. 10. Ibid., p. xxiii. 121 The legality of the seizures made in 1886, 1887, and 1889 became a subject of much discussion and debate in the United States. The uncertainty of the claim of the Government of the United States is exemplified in the fact that United States' sealers entered Behring Sea to seal three or four years before the British sealers entered, and they rapidly increased in numbers, but were only occasionally interfered with or seized. During the fiftieth Session of the House of Representatives, in 1889, the Committee on Marino and Fisheries was directed " to fully investigate and report upon the nature and extent of tho rights and interests of the United States in the fur-seals and other fisheries in the Behring Sea in Alaska, whetlicr and to what extent the same bad been violated, and by whom ; and what, if any, legislation is necessary for the better ^»ro- tcction and preservation of the same." The Committee reported, upholding the claim of the United States to jurisdiction over all waters and land included in the geographical limits stated in the Treaty of Cession by Eussia to the United States, and construing different Acts of Congress as perfecting tho claim of national territorial rights over the open waters of Behring Sea everywhere %vithin the above-men- tioned limits. The Report states : — "The territory of Alaska consists of land and water. Exclusive of its lakes, rivers, harbours, and inlets, there is a large area of marine tenitory which lies outside of the 3-mile limit from tho sliore, but is within the boundary- lines of tho territory transfened by Russia to the United States." • • • • " That by virtue of the Treaty of Cession, the United States acquired complete title to all that portion of Behring Sea situated within the limits prescribed by the Treaty." The concluding portion of the Report states as follows : — " That the chief object of the purchase of Alaska was the aciiuisition of the valuable prolucts of the Behring Sea. " That at the date of tho cession of Alaska to the United States, Kussia'a title to Behring Sea was perfect and undisputed. " That by virtue of the Treaty of C'ssion, the United States acquired complete title to all that portion of Behring Sea situated within the limits prescribed by the Treaty. " The Committee herewith report a bill making necessary I [644] 2 I 122 amendments of the existing law relating to these suhjeots, and recommend its passage." The Report describes these amendments as declaring — " The true meaning and intent uf section 1956 of the Kevised Statutes which prohibit the killing of fur-seals, &c., in the waters of Alaska, and requires the President to issue an annual Proclamation, and cause one or more Government vessels to cruize said waters, in order to prohibit tlie unlawful killing of fur-seals therein. " The amendment increases the revenues of the Govern- ment from this source by at laast 150,000 dollars per annum." Ex. Doc. H.R., SOlh Cong., 2nenaltie8 proscribed by -Jaw against the killing of fur-bearing animiJs must there- fore attach against any violation of law within the limits before described. " If, therefore, the jury believe from the evidence that the defendants did by themselves or in conjunction with others, on or about the time charged in the information, kill any otter, mink, martin, sable or fur-seal, or other fur- bearing animal or animals, on the shores of Alaska, or in the Behring Sea, east of the 193° of west longitude, the jury should find the defendants guilh', and assess their punishment separately, at a lino of not less tlian 200 dollars nor more than 1,000 dollars, or imprisonment not more than six months, or by both, such fines within the limits herein set forth, and imprisonment." On the 10th Septemher, 1887, the Marquis of Blue Book, Salisbury addressing Sir Lionel West, British No''iw,f9or Minister at Washington, discussed the proceed- p- 89. ings iU the United States' District Court in the cases of the " Carolena," " Onward," and "Thornton." After stating that Her Majesty's Government could not find in these proceedings any justification for the condemnation of those - vessels, he wrote : — " The libels of information allege that they were seized Blue Book, tor killing fur-seal within the limits of Alaska Territory, and in the waters thereof, in violation of section 1956 of the Revised Statutes of the United States ; and the United States' Naval Commander Abbey certainly affirmed that the vessels were seized within the waters of Alaska and the Territory of Alaska ; but according to his own evidence, tliey were seized 75, 115, and 70 miles respec- tively south-south-east of St. George's Island. " It is not disputed, therefore, that the seizures in ques- tion were effected at a distance from land far in excees of the limit of maritime jurisdiction which any nation can claim by international law, and it is hardly necessary to add that such limit cannot be enlarged by any municipal law." "The claim thus set up appears to be founded on the exceptional title said to have been conveyed i.i the United States by Russia at the time of the cession of the Alaska Territory. The pretension which the Russian Government at one time put forward to exclusive jurisdiction over the whole of Behring Sea was, however, never admitted either by this country or by the United States of America." United Sute* No. a (1890),* p. 89. Upon this ground the discussion between Her 137 Sm Appendii. Mr. Bliine to Sir J. PaUDCefote, January 33, 1890. Blue Bonk, " United Statea' No. a (1890)," pp. 396-398. Ibid., p. 896. Blue Book, •' United Statea' No. 1 (1891)," pp. 37, 38. Majesty's Government and the Government of the United States was carried on for some years until the receipt of Mr. Blaine's despatch of the 22nd January, 1890, to Sir Julian Pauncefote, wherein it was for the first time set up that it was contra bonoa mores to engage in the killing of seals at sea. Mr. Blaine, after promising Sir Julian Paunce- fote, the British Minister at Washington, to put in writing the precise grounds upon which the United States justified the seizures, wrote as follows : — " In the opinion of the President, the Canadian veasels arrested and detained in the Behring Sea were engaged in a pursuit that is in itself contra bonos marts — a pursuit which of necessity involves a serious and permanent injury to the rights of the Government and people of the United States. He argues that the practice of pelagic sealing insures the extermination of the species, and continues : " To establish this ground, it is not necessary to argue the question of the extent and nature of the sovereignty of this Government over the waters of the Behring Sea ; it is not necessary to explain, certainly not to define, the powers and privileges ceded by His Imperial Majesty the Emperor of Russia in the Treaty, by which the Alaskan Territory was transferred to the United States, The weighty consideration growing out of the acquisition of that territory, with all the rights on land and sea in- separably connected therewith, may be safely left out of view while the grounds are set forth upon which this Government rests its justification for the action com- plained of by Her Majesty's Government." " In the judgment of this Government, the law of the sea is not lawlessness. Nor can the law of the sea and the liberty which it confers and which it protects be perverted to justify acts which are immoral in themselves, which inevitably tend to result against the interest and against the welfare of mankind. One step beyond that which Her Majesty's Government has taken in this contention, and piracy finds its justification " On the 17th December, 1890, Mr. Blaine again wrote to Sir Julian Pauncefote : — "Legal and diplomatic questions, apparently compli- cated, are often found, after prolonged discussion, to depend on the settlement of a single point. Such, in the judgment of the President, is the position in which the United States and Great Britain find themselves in the pending controversy touching the true construction of the Russo-American and Anglo-Russian Treaties of 1824 and 1825. Great Britain contends that the phrase ' Pacific Ocean ' as used in the' Treaties, was intended to include 196 and does include, the body of water which is now known aa the Behring Soa. The United States contends that the Behring Sea woa not mentioned, or even referred to, in either Treaty, and was in no sense included in the phrase ' Pacific Ocean.' If Great Britain can maintain her position that the Beliring Sea at the time of the Treaties with Russia of 1824 and 1825 was included in the Paoifto Ocean, the Govorniuent of the United States has no well- grounded complaint against her. If, on the other hand, this Government can prove beyond all doubt that the Behring Sea, at the date of the Treaties, was understood by the three Signatory Powers to be a separate body of water, and was not included in the phrase ' Pacific Ocean,' then the American Case against Great Britain is complete and undeniable." .... In the same note Mr. Blaine disavows the con> tention that the Behring Sea is mare clausum, but claims that the Ukase, which asserted exclusive jurisdiction over 100 miles from the coast in that Sea, was never annulled by llussia ; and, in con- clusion, he chims for the United States the right to hold for a specific purpose a " comparatively restricted area of water." In this note the Secretary of State thus expressed himself : — " The English statesman of that day hod, as I have Blue Book, before remarked, attempted the abolition of the Ukase of "^United Sui«% Alexander only so far as it affected the coast of the Pacific „ "jj ' ' Ocean from the 51st to the 60th degree of north latitude. It was left in fidl force on the shores of the Behring Sea. There is no proof whatever that the Russian Emperor annulled it there. That sea, from east to west, is 1,300 miles in extent ; from north to south it is 1,000 miles in extent. The whole of this great body of water, under the Ukase, was left open to the world, except a strip of 100 miles from the shore. But with these 100 miles enforced on all the coaats of the Behring Sea it would be obviously impossible to approach the Straits of Behting, which were less thon 50 miles in extreme width." "The Unii,ed Stotes desires only such control over a mj. p. 54. limited extent of the waters in the Behring Sea, for a part of each year, as will be sufficient to insure the protection of the fur-seal fisheries, already injured, possibly, to an irreparable extent by the intrusion of Canadian vessels." " The repeated assertions that the Government of the Ibid., p. 66. United States demands that the Behring Sea be pro- nounced mare daumm are without foundation. The Government has never claimed it, and never desired it. It expressly disavows it. "At the same time the United States does not lack abundant authority, according to the ablest exponents of international law, for holding a small section of the ^ 128* Blue Book, ••UniUd Slatei' No. 6, 1891," p. 87. Bine Book, " United Statea' No. 3, 1899," p. 4. Behring Sea for tlio protection of the fur-seala. Con- trolliog a comparatively restricted area of water for that one specific purpose ia by no means the equivalent of declaring the sea, or any part thereof, mare clausum." This disavowal of any claim to Behring Sea aa a mare clausum is again rcfernid to in Mr. Blaine's despatch of the llth April, 1891. On the 21st February, 1801, in answer to tho despatch of Mr. Blaine of the l"tU December, 1890, Lord Salisbury writes to Sir Julian Puuncefote : — " The effect of tho discussion which has been carried on between tho two Governments has been materially to narrow tho area of controversy. It is now quite clear that the advisers of tho President do not claim IV-hring Sea as a mare clattsinn, and indeed that they repudiate that conten- tion in express terms. Nor do they rely, as a justification for the seizure of Hiitish ships in tlio open sea, upon the contention tl at the interests of tlic seal fisheries give to the United Stales' tJoveniment any rigiit for that purpose which, according to international law, it would not other- wise possess. Whatever importance tlicy attach to the preservation of the fur-seal species, — and they justly look on it as an object deserving tho most serious solicitude, — they do not conceive that it confers upon any Maritime Power rights over the open ocean which tliat Power could not assert on other grounds. " The chum of tlie United States ta prevent the exercise of the seal fishery by otlier nations in Behring Sea rests now e.\cl'isively upon the interest whicli by purchase they possess in a Ukase issued by tho Emperor Alexander I in the year 1821. whicli prohibits foreign vessels from approa' hing within 100 Italian miles of the coasts and islands then belonging to Bussia in Behring Sea." In reply to this, Mr. Blaine wrote on the 14th April, 1891 :— "In tho opinion of tho President, I/)rd Salisbury ia wholly and strangely in eiTor in making tho following statement : ' Nor do they (the advisers of the President) rely as a justification for the seizure of British ships in tho open sea upon the contention that the interests of the seal fisheries give to tho United States' Government any right for that purpose which, according to international law, it would not otherwise possess.' The f''ivernment of the United Slates has steadily held just the rso of the position Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rearing their young thereon, that their going out from the islands in search of food and regularly returning thereto, and all the facts and incidents of their relation to the islands, give to the United States a property interest therein ; that this property interest was claimed and exercised by Bussia during the whole period of ita [644] 2 K* t~ ~ -*-- i"|l'W*W Stenographic Report of Argu- ments in Case of the 129 sovereignty over the land and ■waters of Alaska; that England recognized this property interest, so far as recog- nition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. " It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore pre- vailing." It does not appear, however, that the special rights now claimed hy the United States in respect of u special property in fur-seals have ever been otherwise advanced or more deiinitely formulated tlian as above mentioned. In 1891, in the course of the Argument before the Supreme Court of the United States in the "W. P. Sayward," ease of the "W. P. Say ward," one of the learned Judges inquired of Mr. Attorney-General Miller: — "Do you mean that the Political Department has decided in terms what constituti' the waters of Alaska, or only that the United States has jurisdiction over certain waters for certain purposes ? " ^ Judgment United States' Supreme Court, ex parte T. H. Cooper, owner and 'aimant of the schooner «W, P. tiayward." To whicli Mr. Miller replied : — "Tliat is what I understand they have decided; that they have jurisdiction, and that they have territorial juris- diction over those waters to the extent of 100 miles." Mn Chief Justice Fuller, delivering the opinion of the Supreme Court of the United State? in the case of the "W. V. Sayward," on the 29th February, 1892, referred to the seizures in the following terms : — " If we assume that the record sliows the locality of the alleged offence und seizure as staled, it also .shows that otficers of the United States, acting .;nder tin orders of their (lo\-einmcnt, seized this vessel engaged in catching seal ami took her intu the nearest port; and that the Law Ollicers of the (Jovcrr .lent libelled her and jirod'cded ogain.st her for the v olation of the laws of ihc United States, in the District Court, resulting in her condemna- tion. "How did it lm)))icii th;it the ollicers received such orders ! It must be admitted thai, they were given in the assertion on the part ut this (l(jvcrnnient of ten'itorial jurisdiction over Behving Sea tu an extent exceeding 59 r-iles from the shores of Alaska ; that this terrilnrial jurisdictiim, in thi? enforceiiiout of Ihi; laws protecting seal tisheries, was asserted by actual seizures during the seasoua of 1880, 1887, and 1880, of a numbt^r of Uritish vessels ; that tha tioverumcnt persistently maintains that such [614] 2 L ■ 130 jurisdiction belongs to it, based not only on the peculiar nature of the sed fisheries and the property of the Govern- ment in them, but also >ipon the position that this juris- diction was assertel by Russia for more than ninety years, and by that Government transferred to the United States; and that negotiations are pending upon the subject." Deductions. The facts stated in this chapter show — That the original ground upon which the vessels seized in 1886 and 1887 were condemned, was that Behring Sea was mare clausum, was an inland sea, and as such had boen convoyed, in part, by Russia to the United States. That this ground was subsequently entirely abandoned, but a claim was then made to exclusive jurisdiction over 100 miles from the coast-line of the United States' tcmtory. That subsequently a further claim was set up that the United States have property in and a right of protection over fur-seals in non-territorial waters. 131 Chapter VIII. Point 5 of Aeticle Yl.—Has the United Stalest any Right, and, if so, vhat Right of Protection or Properly in the Far-Seahi frequenting the Islands of the United States in Behring Sea when such seats are found outside the ordinary 3-mile limit ? The claim involved in this question is not only- new in the present discussion, but is entirely without precedent. It is, moreover, in contradiction of the position assumed by the United States on more than one occasion. The claim is, in tliis instance, made only in respect of seals, but the principle might be extended on similar grounds to other animals ferm naturce, as, for instance, whales, salmon, herrings. Apart from the ordinary limits of territorial jurisdiction o/er waters adjacent to coasts, or to some exceptional condition based upon agree- ment, there is absolutely no precedent for the assumption of the right to property in a free- swimming animal, whose movements are uncon- trolled and not controllable by man. Eur-seals are indisputably animals ferce naturfc and such animals have been universally rcardcd by jurists as res nullius until they arc caught. No person can have property in theui until lie has actually reduced them into posses- sion by capture. Why should there he a property in seals in Behring Sea alone ? Outsiili- Eeliriug Sea citizens of the Tj'nited Si:ii!'s have pursued the seals for years as Cana'^ians liave done, and are doing, without let or hindrance, and with the full knowledge oT tlic ri\ilU8e or absence of the exercise by any nation cannot in any \f?y impair or take away the light of tliat nation or of any other nation to exercise these rights. They are, in fact, the common heritage of all mankind, and incapable of being appro- priated by any one nation. The rights and interests of nations in the open sea are correctly stated by Chancellor Kent as follows : — "The open sea is not capable of beiug possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind, and the public jurists generally and explicitly deny that the main ocean can ever be appropriated." Tlio controversy Iwtween 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 : — " There are only two decisive reasons applicable to the question. The f t is physical and material, which would alone bo sufficient; but when coupled with the second reason, which ia purely moral, will be found conclusive of Uio whole controversy. " 1. Those things which are origiually the common pro- perty of all mankind can only become the exclusive pro- [644] »0 i I ^ 1 ^pp 14S t m* perty of a particular individual or society of men, by means of {Msicssion. In order to eatnblinh the claim of a particular nation to a right of property in the sea, that nation must obtain and ke«p poiwession of it, which ib impossible. " 2. In the second place, the sea is on 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 possible to do so. " It is thus demonstrated that tlio sea cannot become the Cy. Ortolan, oxclu'^ivn property of any nation. And, consoquuntly, the 'J,?,.™*''! Hvr, ton* l| use of the sea for those [nirposes, remains n]ioii and pp, 190-134. common to all mankind." In a note on thii passage of Wlicaton, Mr. Dana adds that — " The right of onu nation to an exclusive jurisdiction over an open sea was, as stated in the text, vested solely on a kind of preacription. But, however long acquiesced in, such an appropriation is itiadraissiblo in the nature of tilings, ond whatever may bo the evidence of the time or nature of the use, it is set aside as a bad usage, which no evidence can make legaL Sir R. Pbillimoro writes : — " The right of navigation, fishing, and the like, upon the Pbillimore, " Int«r> open sea, being jura mene facullalU, rigiits which do not 0*4'' d*!io ^'sJI require a continuous exercise to maintain their validity, I, f 174. but which may or may not 1>e exercised according to the free will and pleasure of those entitled to them, can neither be lost by non-u»tr or prescribal against, nor acquired to the exclusion of ithers by having been immemorially exercised by one nailon only. No presumption can arise that those who have not hitherto exercised such rights, have abandoned the intention of over doing so." The following position was correctly taken by Position taken by United States in 1862: CuUu the United States in 1802, and, it is presumed, will be adhei-ed to by that count-y to-day. In that year Spain pushed her claim to an extended jurisdiction around the Island of Cuba, Secretary Sewai-d wrote : — " 1>. cannot be admitted, nor indeed is Mr. Tessara Mr. Seward tn understood to claim, that the mere assertion of a Sovereign, by an act of legislation, however solemn, can have the effect to establish and fix its external maritime jurisdic- Mr. Tcrrsra. WhartoD Digest of " Internitionil Law," vol. i. tion He cannot, by a mere Decree, extend the ' " limit and fix it at G miles, because, if he could, he could in the same manner, and upon motives of interest, ambition, and even upon caprice, fix it at 10, or 20, or 60 miles, without the consent or acquiescence of other Powers which have a common right with himself in the beedom of all the oceans. Sucli a pretension could never be successfully or rightfully maintained." It is claimed by Great Britain that the facts already stated establish :— (A.) That from the earliest times down to the lilttfltl iHii 148 yeor 1821 the sliips of Grcnt Britnin anrl tlio United States ami of otiier foreign nations navi- gated tho non-territorial waters of Hehring Sea and tlie other parts of the North Pacific, and exercised freely tlio natural and common rights therein without interference or remonstrance by Russia. (B.) That ..hen. .n tiic year 1821, llussia, iii tho terms of tho Ukase of that date, ad vane, d claims to exercise control us over a mare clauxum, over a considerahle portion of the non-tcrritor.'al waters of tho North Pacifio (including a I.irgo part of tho non-territorial waters of Behring Sea) tho practice of nations and their gene- rally-admitted righls upon tho high seas woro already entirely opposed to any claim (o siich exclusive and exceptional rights as wero embodied in or implied by the Ukase. That this attempt on the part of llussia led to an immediate and emphatic protest by Grcnt Britain and the United States, which protests led to the withdi-awal of llussia's claims, and that those claims wero never recognized or conceded by Great Britain in the smallest degree. That, in view of tho continued practice of nations and tho growth of the principles of international law since 1821, the argrnients then used by Great Britain and the United States have to-day, if possible, even greater weight than at that period. (C.) That the body of water now commonly known as " Behring Sea " is included in tho phrnso " Pacific Ocean " as used in the Treaty of 1825 between Great Britain and llussia, and that tl.at Treaty was intended to declare tho rights of Great Britain to navigate and fish in all the waters over which Russia had attempted to control and limit her rights, that is to say, from Behring Straits ou the north to latitude 51° on the coast of Americo, and latitude 45° 50' on the coast of Asia. (T).) That for a period of more than forty years, that is to say, from 1821 to 1867, tho subjects and vessels of Great Britain and tho Uuited States ond other nations continued in increasing numbers to navigate, trade, and fish ia the waters of Behring Sea, and that during tho whole of that period no attempt was made on tho part of Russia to reassert or claim any dominion or juvisdiction over the non-territorial waters of that sea, but that, on the contrary, the right of all nations to navigate, fish, and exercise commoa rights was fully recognized. m. 141 (E.) That at the time of the acquisitiou of Alaska by the United States pursuant to the Treaty of the 30th March, 1867, Russia had no rights in respect of Bohring Sea other than those vhich belonged to her as possessing territories washed by its waters, and could not transmit to tlio United States any rights of exclusive domi- nion or control over navigation and fishing in non-territorial wafers, and the United States of America acquiring as they did all the rights of Russia, acquired no more. PurtLer, that at the time of the acquisition the United States of America were fully alive to the fact that the non-territorial waters of Behring Sea were open to the ships of all nations for the purpose of the exercise of the common rights of navigation and fishing. As to the rights which Russia possessed at the time of the Treaty of 1867, ai.d which Avere transferred to the United States by virtue t)f that Treaty, the ordinary rule as to the extent of maritime jurisdiction applies. Admitting, in the consideration of this question, that Russia's title before 1867 to the coast of Behring Sea and to the islands within those ■waters was complete, an examination of the principles of international Ipw and the practice c^f nations will show that her jurisdiction (subject tj the question of embay«>d or inlaud waters) was Ciufined to the distance of 1 marine league or 3 miles from her shores. This is sho^^•n beyond all possibility of dispute by the following (among other) authorities. Ortolan, in his "Diplcmatie de la Mer," pp. 145, 153 (edition 1864), says:— " On doit ranger sur la mSme ligue que les radea, ct Ics Proceedinei of pDTta, les golfes, et lea baiea, et tons les enfoncementa Halifkx Fisheriei connus sous d'autres dduominationa, lorsquo cos enfonce- '-^™™"">''> 'o'o nients, formds pav lea terres d'uu m6mo Etat, ne ddpasaent pas en largeur la double porWo du canon, ou lorsque I'cutr^e pout en fitrc gouvemeo pi»- I'artillerie, ou qu'ello est ddfendue naturellement par dea ilea, par des bancs, ou par des rocbes. Dans tons ces caa, en effet, il est vrai da diiQ que ces golfes ou ces bales sont en la puissance de r£tat maitre du tcrritoire qui les enserre. Get fitat en a la possession : tous les raiaonnements quo nous avons fait i I'dgard des rades et des ports peuvent so r(5p(!ter ici. Les bords ot rivoges de la mer qui baigne les c6tes d'un Ortolan d 183 £tat Bont les limitcs ranritimca naturdlea do cet fitat. Mais pour la protection, pour la defense plus efBcace do ces limites uaturellcs, la coutiune gdndralo des nations, d'accord avec beaucoup de Traitda publics, permot de tracer but mer, & une diBtonce convenable des c6tc8, et 145 suivant lenrs coDtoura, une ligne imaginoire qui doit 6tre considdrde comme la frontifere maritime artificielle. Tout Htiment qui se trouve k terre de cette ligne est dit Stre dans Its eavx de r£tat dont elle limite le droit de souve- rainotd et de juridiction." ProceedhiKs of Hiiifix Fitheries CommiMion, 1877, p. 153. Under the clauses of the ConTcntioa of the 8th February, 1853, the case of the " Washing- ton " (which had been seized in the Bay of Fundy and confiscated in the Vice- Admiralty Court at Yarmouth, N.S.) came before the Joint Commission for settlement of claims in London, and off the disagreement of the Commissioners was decided by the Umpire, Mr. Joshua Bates, in favour of the United States. In his decision he said : — "The question turns, so far as relates to the Treaty stipulations, on the meaning given to the word ' bays ' in the Treaty of 1783. By that Treaty, tiie Americans had no right to dry and cure fish on the shores and bays of Newfoundland; but they had that right on the shores, coasts, bays, harbours, and creeks of Nova Scotia ; and, as they must land to cure fish on the sliores, bays, and creeks, they were evidently admitted to the shores of the bays, d the headland doctrine to bays 10 miles wide; thus going beyond the general rule of international law, according to wliich no bays are treated as within the territorial jurisdiction of a State which are more than 6 miles wide on a straight line measured from one head- land to the other." HaHt'ax Fiaherin Comniinioo, 1877, p. 153 (note). The principle of the marine league was in 1872 applied by Mr. Boutwell, United States' Secretary to the Treasury, in a letter of instruc- tions to the Collector of Customs at San Francisco, dated 19th April, 1872, as follows : — "I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose [to take fur-seals], unless they made such attempt witliin a marine league of the shore."* The same principle was affirmed in respect of the waters now in question by Mr. Fish, the United States' Secretary of State, who wrote to the United States' Legation in Russia on the 1st December, 1875 : — " There was reason to hope that the practice, which for- merly prevailed with powerful nations, of regarding seas and bays, usually of largo extent near their coast; as closed to any foreign commerce or fishery not specially licensed by them, was, without exception, a pretension of the past, and that no nation would claim exemption from the general rule of public law whicli limits its maritime juris- diction to a marine league from its coast. We should par- ticularly regret if Russia should insist on any such preten- sion." \Vh«rton'i " Digeit," tee. p. 106. 31. The same position was taken up by the United States in their brief filed with the Halifax lifiheries Commission in 1877. The Agent of the United States at Halifax, • See utile, p. Proceedingf of Halifax Fiahenea Commissian, I877| p. 163. 147 after setting out tlie rarious authorities under this head, concluded as follows : — " The jurisdiction of a State or country over its adjoining waters is limited to 3 miles from low-water mark along its sea-const, and the same rule applies equally to bays and gulfs whoso width exceeds C miles from headland to headland. Proiwrty in and dominion over the sea can only exist as to those portions capable of pennnnent posses- sion ; that is, of a possession from the land, which posses- sion can only be maintained by artillery. At one mile beyond the reach of coast-giius there is no more possession than in mid-ocean. This is the rule laid down by almost all the writers on international law." As to inland seas and seas over which empire may extend, the following authorities were referred to hy the Agent m the same hrief : — Ibid., p. 16t. "At present," says Vattcl, "Law of Nations," Book 1, ch. xxiii, §§ 289, 291, "the whole space of the sea within cannon-shot of the coast is considered as making a part of the ten'itoiy ; and, for that reason, a vessel taken under the guns of a neutral fortress is not a good prize. " All we have said of the parts of the sen near the coast may be said more particularly, and with much greater reason, of the roads, bays, and straits, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and straits of small extent, and not of those grent parts of the sea to which these names are sometimes given — as Hudson's Bay and the Straits of Magellan — over which tlio Empire cannot extend, and still less a right of property. A bay whose entrance may be defended may be possessed and rendered subject to the laws of tlie Sovereign ; and it is of importance that it should bo so, since the country may be much more easily insulted in such n place than on the coast, open to the winds and the impetuosity of the WBvei." Professor Bluntsclili, in his "Law of Nations," Book 4, §§ 302, 309, states the rule in the same •way: — Ibid., p. 163. " When the frontier of a State is formed by the open sen, the part of the sea over which the State can from the shore make its power respected — i.e., a portion of tlie sea . extending as far as a cannon-shot frjm the coast — is considered as belonging 1 1 tlio territory of that State. Treaties or ngreements can establish other and more precise limits." " Note. — The extent practised of this sovereignty has remarkably increased since the invention of far-shooting cannon. This is the consequence of the improvements made in the means ot defence, of which the State makes use. The sovereignty of States over tlie sea extended. 14.8 originally only to a stono's-throw from the coaat ; later, to an arrow-shot; fire-arms were invented, and by rapid progress we liave arrived to the far-shooting cannon of the present age. But still we preserve the principle : ' Ttrrcs dominium finitur, ubifinitur armorum vis.' " "Within certain limits, there are submitted to the sovereignty of the bordering State : — " (a.) The portion of the sea placed within a cannon- shot of the shore. "(6.) Harbours. "(e.) Gulfs. •• (d.) Roadsteads." " Note. — Certain portions of the sea are so nearly joined to the terra firtna, that, in st le measure at least, they ought to form a part of the territory of the bordering State ; they are considered as accessories to tiie terra firma. The safety of the State, aud the public quiet, are so depen- dent on them that they cannot be coDtcntcd, in certain gulfs, with the portion of the sea lying under the fire of cannon from the coast. Tliese exceptions from the general rule oi lie liberty of the sea cau only be made for wciglity reasons, and wlien the extent of the arm of the sea is not large ; thus, Hudson's Bay and the Gulf of Mexico evidently are a part of the open sea. No one disputes the power of England over the arm of the sea lying between the Isle of Wight and t)ie English coast, which coidd not be admitted tor the sea lying between England and Ireland; the English Admiralty has, however, sometimes main- tained the theory of ' narrow seas ;' and has tried, but without success, to keep for its own interest, under the name of ' King's ('hambers,' some cousideraMe extents of the se.i." Kliiber " Droit des Gens Modernes do I'Europe (Paris, edition 1831)," vol. i, p. 216 :— " Au territoire maritime d'un fitat appartiennent les districts maritimes, ou parages susccptibles d'une pos- session exclusive, sur lesquels I'fitat a acquis (par occu- pation ou convention) ct continud la souveraiuete. Sont lie ce nombre, (1) Les parties de I'ocdan qui avoisinent le territoire continental de I'l^tiit, du nioins, d'apris I'opinion presque g&^ralement adopti5e, autant qu'elles bo trouvent Bous la portee du canon qui serait place sur le rivage; (2) les parties de I'ocdan qui s'utendent dans le territoire continental de I'Etat, si elles peuveut Ctre gouvernues par le canon des deux bords, ou que I'entrufi seulement en pent €tre defendue aux vaissea ix (golfcs, baies, et cales); (3) les detroits qui separent deux continents, ot qui tgale- mcnt sont sous la portiic du canon placd sur le rivage, ou dont I'entrde et la sortie peuvent etre ddfendues (detroit, canal, bosphoro, sonde). Sont encore du mCnie nombre ; (4) les golfes, detroits, et niers avoisinant le territoire continental d'un £tat, lesiiuels, quoiqu'ils ne soient pas entiirement sous la portdo du canon, sont uiianmoins rcconnus par dautres Puissances commo mer ferm(je; Proecedings of Htlifix Fitberin Commission, 1877, p. 163. 149 r.'est-&-diTe, comme soumis iSi une domination, et, par con- sequent, inaccessibles aux vaisseaux dtrangera qui n'ont point obtcnu la permission d'y naviguer." Brief for the United SUtrn. KUd at Sitka October 12, 1887. "New York Herald," October 18. 1887. This riew, moreover, waa emphatically main- tained on behalf of the United States on the occasion of the seizures in the year 1886. The following is the extract from the Brief of the United States on this occasion : — "Concerning the doctrine of international law esta- blishing what is known as the marine league belt, which extends the jurisdiction of a nation into adjacent seas jr the distance of 1 marine league, or 3 miles from its shores, and following all the indentations 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 jurists. It has been sanctioned by the United States since the foundation of the Government. It was affirmed by Mr. JelTerson, Secretary of State, as early as 1793, and has been re- affirmed by his successors — Mr. Pickering, in 1796 ; Mr. Madison, in 1807 ; Mr. Webster, in 1842 ; Mr. Buchanan, in 1849; Mr. Sewanl, in 1862, 1863, and 1864 ; Mr. Fish, in 1875 ; Mr. Evarts, m 1879 and 1881 ; and Mr. Uayard, in 1886. (AVheaton's* " International Law," vol i, sec. 32, pp. 100 and 109.) "Sanctioned thus by an unbroken line of precedents covering tlie first century of our national existence, the United States would not abandon this doctrine if they could ; they could not if they would." And again : — "It thus appears that our Govenmient asserted this doctrine in its infancy. It was announced by Mr. Jefferson as Secretary of State and by the Attorney-General in 1793. Mr. Pickering, Secretary of State in 1796, re- affinns it, in his letter to the Governor of Virginia, in the following language : ' Our jurisdiction has been fl.\ed to extend 3 geographical miles from our sliores, with the exception of any waters or bays which are so laud-locked as to be unquestionably within tlie jurisdiction of the States, be tlieir extent what they may.' (Wlieaton's 'International Law," vol. i, sec. 32, pp. 2-100.) " Mr. Buchanan, Secretary of State, to Mr. Jordan, in 1849, reiterates this rule in the following language : ' The exclusive jurisdiction of a nation extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands.' (Ibid., p. 101.) "Mr. Seward, in the Senate in 1852, substantially enunciates the same doctrine by declaring that, if we relied alone ujion the old rule that only those bays whose entrance from headland to headland do not exceed 6 miles are within the territorial jurisdiction of the adjoining nation, our dominion to all the larger and more important arms of the sea on botli our Atlantic and Pacific coasts would have to be surrendered. Our right to jurisdiction [644] 2 Q 160 over these rests with the rale of international law which gives a nation jurisdiction over waters embraced within ita land dominion." The Russian claim to extraordinary jnrisdio- tion was expressly founded on a supposed light to hold the Pacific as mare clattsum, because that nation claimed the territory on both sides. If this claim hod been well founded the Treaty of 1867 destroyed it, since the sea was no longer shut in or surrounded by the territory of one nation : — " ' Un droit exdusif de domaine et de souverainetd de la Ortolao, " R^ln part d'une nation sur uno telle iner n'cst incontestable In'enntiontlef at qu'autant que cette mer est totalument euclavt-e dans lo Mm- " 4 ih Edition territoire de telle sorte qu'ello en fait pnrtie integronte, et toI. i, p. U7. qu'elle ne pent absolument scrvir do lien do communica- tion ct de commerce qu'entre les seuls citoyens de cette nation.' " laid down by Sir laternatiopul Law, Tol. i, cap. 6, pp. U3-145. The same proposition is Travcrs T«iss : — " If a sea is entirely inclosed by the territory of a « Riehti and nation, and has no other communication with the ocean Duties of Nations than by a channel, of which that nation may take pos- ifiBTVaBa."** session, it appears that such a .sea is no less capable of being occupied and becoming property than the land, and it ought to follow the fate of the country that sur- rounds it" So Holleck says : — "21. It is generally admitted that the territory of •> Halleck's State includes the seas, lakes, and rivers entirely inclosed within its limits. Thus, so long as the shores of the Black Sea were delusively possessed by Turkey, that sea might, with pro iety, be considered as a marc datumm ; and there seen; .- no reason to question the right of the Ottoman Porte exclude other nations from navigating the passage wL connects it with the Mediterranean, both shores of i/! passage being also portions of the Turkish territor But when Turkey lost a part of her possessions bord' Jig upon this sea, and liussia had formed her commercia' e-stivblishments on the shores of the Euxine, both that Empire and other Maritime Powers became entitled to participate in the commerce of the Black Sea, and consequently to the free navigation of the Dardanelles and the Bosphorus. This right was expressly recognized by the Treaty of Adriauople in 1829. ■tf * * * " 22. The great inland lakes, and their navigable outlets, are considered as subject to the same rule as inland seas ; where inclosed witlun the limits of a .single State, they are regarded as belonging to the territory of that State ; but if different nations occuj y their borders, the rule of mare daxisum cannot be applied to the navigation and use of tlieir waters," 1 ISl Mr. HolTiiuinn to Mr. Frelinghuytcn, iMareh U, I88t, 50th Cougrcu, 3nd Smi., Seoite E(. Doc., No. 106, p. 360. The United States' Govornr'»it liaa itself adopted the view cxi)rc8scd by the aboo autho- ritirs. For instance, on the lltli March, 1882, Mr. IIofTinau wrote from tlie I>'j^ation of the United 8tat{« at St. Petersburg to Mr. Frcling- huysen, .Secretary of State : — " In Uie time when Kusaia owned tlio wliole of theso islands hnr Iteprescntjitives in Sibcrin claimed llint lli« .Soo of Okhotsk was a' mare daitmm, for tliat lliissiau jurisdiction extended from island to island and over 2 marine leagues of intermediate sea from Japan to Kamk^ltatko. " But about five years ogo Russia codeil the soutlicni group of these islands to Japan in return for the half of the Isknd of Saghalien, which belonged to that Power. " As soon as this was done, it became impossible for tho Siberian authorities to maintain their claim. My infor- mant was not aware that t!iis claim hid ever been seriously mode at tit. Petersburg." Ibid., p. 861. And Mr. Frelinghuyscn, in reply, wrote on tho 27th March, 1882 :— Mr. Hoflmin to " I ^lo ""'' think that Russia claims that the Sea of Mr. I'reliughuyuD, Okhotsk is a inan clausum, over wliic.h she has exclusive 50th Conrreu jurisdiction. If she does, her claim is not a tenable one, 2nd Seas., Senate since the cession of part of tho group of the Kurile Islands ^26^°° ' ^°' '"*'' ^ '^apan. »f '^^ ever were tenable at any time." Professor James B. Angell, one of tho United States' Plenipotentiaries in the negotiation of tho Fisheries Treaty at Washington in 1888, and an eminent jurist in an article entitled " American Rights in Behring Sea," in " The Forum " for November 1889, wrote : — "Can we sustain a claim that Behring Sea is a closed sea, and so subject to our control ? It is, perhaps, impossible to frame a definition of a closed sea which the publicists of all nations will accept. Vattel's closed sea is one " entirely inclosed by the land of a nation, with only a communication with the ocean by a channel of which that nation may take possession.' llautefeuillo substantially adopts this statement, asserting more specifically, liowever, that the channel must bo narrow enough to bo defended from the shores. Perels, one of the more eminent of the later German writers, practically accepts Hautefeuille's definition. But so narrow a channel or opening as that indicated by the eminent French writer can hardly he insisted on. Probably, most authorities will regard it as a reasonable re"1816, Sec Dodton'a Admiralty CaMi, vol. U, p. SIO. ' raised to a special right of property in protection of the fur-seal. As to Point 5 of Article VI— That, as regards the right claimed by the United States of protection or property in fur- seals when found outside the ordinary 3-niile limit, no property exists, or is known to inter- national law in animals fera natura until reduced into possession hy capture, and no nation has any right to claim property in such animals when found outside territorial waters. Their only right is to prevent the sbips and subjects of other nations from entering territorial waters for the purpose of their capture. Upon analogous questions similar principles have frequently been maintained and invariably lecogniaed. Thus, with reference to the right to search neutral vessels upon the high seas. In 1804 Great Britain claimed, during the war with France, to search neutral vessels on the high seas, and to seize her own subjects when found serving under a neutral flag. The position taken on this subject by the United States was not only in opposition to such a right, but that country insisted that in no case did the sovereignty of any nation extend beyond its own dominions and its own vessels on the high seas. A similar view has been adopted by all nations in relation to the Slave Trade. Although it cannot properly bo argued that the taking of seals in any manner whatever is comparable with the immorality or injustice attaching to that trade, yet, even in the case of vessels engaged in that trade, the rights of nations have not been allowed to be overruled on such pleas. Upon this point legal authorities both in the United States and in Great Britain are quite clear. In 1816 a French vessel sailing from Mar- tinique, destined on a voyage to the coast of Africa and back, was captured 10 or 12 leagues to the southward of Capo Mesurada, by the " Queen Charlotte " cutter, and carried to Sierra Leone. She was proceeded against in the Vice- Admiralty Court of that colony. It was alleged that the vessel was fitted out for the purpose of carrying on the African Slave Trade, after that trade had been abolished [644] 2 R j 151 « I ^ by the internal laws of France, and by the Treaty between Great Britain and France. The King's Advocate admitted the proposition to be true generally that the right of visitation and search does not exist in time of peace, but denied it to be so universally. Occasions, it was argued, may and must arise, at a period when no hostilities exist, in which an exercise of this power would be justifiable. The rule of law could not be maintained as a tmiversal proposition, but was subject to exceptions, and within those exceptions must be included the present transaction, which - was a transgression, not only of municipal law, but likewise of the general law Of nations. In whatever light the Slave Trade might have been viewed in former times, it must no longer be deemed within the protection of the law of nations. Since the Declaration of thft Congress of Vienna, that the Slave Trade was repugnant to the principles of humanity and of universal morality, traffic in slaves must be considered a crime, and it was the right and duty of eVery nation to prevent the commission of crime. On the whole, it was submitted that the "Le Louis,* having been engaged in a traffic prohibited by the laws of her own country and contrary to the general laws of humanity and justice, ought not to be restored to the claimant. Sir William Scott, afterwards Lord Stowell, held, however, that trading in slaves was not a crime by universal law of nations. He observed : — " Neither this Court nor any other can carry its private g^ Dodwn't apprehensions, independent of law, into its public judg- Admiraly Caie*, ments on the quality of actions. It must conform to the ^°'' "• P" '■"■ judgment of the law upon that subject ; and acting aa a Court in the administration of law, it cannot attribute criminality to an act where the law imputes none. IC must look to the legal standard of momlity ; and upon a question of this nature, that standard must be found in the law, of nations aa fixed and evidenced by general and ancient and admitted practice, by Treaties and by the general tenour of the laws and ordinances and the formal transactions of civilized States. " . . . . Much stress is laid upon a solemn declaration j^^a p {jg of very eminent persons assembled in Congress, whose rank, high as it is, is by no means the most respectable foundation of the weight of their opinion that this treS&o is contrary to all religion and morality. Qreat as the reverence due to such authorities may be, they cannot I think be admitted to have the force of overruling the> established course of the general law of nations." • • • •• 165 "It ia next said that every country haa a right to enforce its own navigation laws ; and so it certainly has, so far as it does not interfere with the rights of others. Bat it haa no right, in consequence, to visit and search all the apparent vessels of other countries on the high sea&" « • • • " It is said, and with just concern, that if not permitted in time of peace it will be extremely difficult to suppress the TrafBc. It will be so, and no man can deny that the suppression, however desirable, and however sought, is attended with enormous difficulties ; diiHculties which have baffled 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 principle and in the proper modes of pursuing it, comparatively but little of positive good could be acquired ; so far at least, as the interests of the victims of this commerce were concerned in it ; and to every nan who looks to the rival claims of these States, to their established habits of trade, to their real or pretended wants, to their different modes of thinking, and to their real mode of acting upon this particular subject, it must be equally evident that such a concurrence was matter of very difficult attainment. But the difficulty of the attainment will not legalize measures t'.iat are otherwise illegal To press forward to a great principle by breaking through every other great principle that stands in the way of its establislimeut ; 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 application, by remonstrance, by example, by ever/ peace- able instrument which man can employ to attract the con- sent of man. But a nation is not justified in assuming lights that do not belong to her, merely because she means to apply them to a laudable purpose ; nor in setting oat upon a moral crusade of converting other nations by acta of unlawful force. Nor is it to bo argued that because other nations approve the ultimate purpose, they must, therefore submit to every measure which any one State or its subjects may inconsiderately adopt for its attainment." In accordance will tliis view of the law, ihe Judgment of the Vic^-Admiralty Court of Sierra Leone, condemning the French ship for being employed in the Slave Trade and for forcibly resisting the search of the King of England's oruizers, was reversed. '■Antalope." The decision of the Supreme Court of the WhtttoD, Report, United States in the case of the " Antelope " Tol. 10, p. 66. jg to the same effect. There Chief Justice Marshall delivered the opinion of the Court, holding that the Slave Trade, though contrary to the law of nature, was not in conflict with the law of nations :— 166 "No principle of general law u more imivcTBally Wbeaton, Heport, acknowledged than the perfect equality of nations. "'*' '"' f' *"'• Bussia and Geneva have equal rights. It rosulta from this equality, tliat no one can rightfully impofie a rule on another. Each legiululua for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by consent ; and this trade, in which all have participated, most remain lawful to those who cannot bo induced to relinquish it As no nation can prescribe a rule for others, none can moke a law of nations ; and this traffic remains lawful to those whose governments have not forbidden it " If it is consistent with the law of nations, it cannot in itself be piracy. It can be made so only by statvite ; and the obligation of tlio statute cannot transcend the legislative jrawcr of the state which mny enact it " If it be neither repugnant to the law of nations, noi 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 prohibited the trade, cannot exist The Courts of no country execute the penal laws of another, and the course of the American government on the subject of visitation and search, would decide any cose in wliich that right had been exercised by an American cruizer, on the vessel of a foreign nation, not violating our municipal laws, against the captora. " It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruizer, and brought in for adjudication, would be restored." The subject is fully discussed in Mr. Dana's note No. 108 to Wheaton's International Law (p. 258), where it is said of Chief Justice ^Marshall, in Church against Iluhbart, 2 Crancli, 187 : — "It is true that Chief Justico Marsli.ill admitted the right of n nation to secure itself against intended violations of its laws, by seiziires made witliin rcasoiuible limits, as to wliicli, he said, nations must exercise comity and conci'ssion, and the exact extent of wliicli was not settled y and in tlie case before the court, the 4 leagues were not treatiil as rendering the seizure illegal. This remcurk must now bo troited as an unwarranted admission It jray be said that the principle is sc-ttl'iil tlmt municipal seizures ctinnotbo made, for any purpose bujoud territorial waters. It is also sc'.tled that the limit of tliese waters is, in the absence of treaty, the merino league or the cannon-shot It cannot now bo successfully maintained, either that municipal visits and search may be mado beyond the territorial waters for special purposes, or that there are different bounds of that territory for difiSerent objects. But as the line of territorial waters, if not fixed, is dependent on the unsettled range of artillery fire, and if fixed, must be by an arbitrary measure, the courts, in the earlier coses were not strict as to standards of distonca -HggHg rHE 167 .whete no foreign Powers intervened in the causes. In later times, it is safe to infer that judicial as well as political tribunals will insist on one lino of marine tenitorial juristliction for the exercise of force on foreign vessels, in time of peace, for all purposes alike." It is an axiom of international maritime law that such action is only admissihle in the case of piracy or ia pursuance of special international agreement. This principle bas been universally admitted by jurists, and was very distinctly laid down by President Tyler in his Special Message to Congress, dated the £7th February, 184.3, when, after acknowledging the right to detain and search a vessel on suspicion of piracy, ho goes on to say ; — " With this single exception, no nation has, in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, outaide tha territorial jurisdiction." Ti iQ4A} ^Nf^BP c bvJ^i'^i'^ J^^^s^ - 1^ 169 (A^' ■i,-o • /7 . /-^^ I CiAPTBR X. iseal, that while this animal exists for t% greater part of each year in non-territorial waters, and possesses during such time all the attrib^ites of a free swimming fish, it resorts for^ eervain months, and for breeding purposes, chiefly, hut not exclusively, to PribylofT and Comnpander Islands, which are under the jurisdiction \of the United States and Bussia respectively, ren\aining, for the most part, either ashore or in the territorial waters of these islands at this particular season. Further, it will be shown that, although very probably ns a general ruleJiit may be the case that those seals which resort a|t the breeding season to the PribylofF Islands sp^nd the winter months on the eastern side of the North Pacific, while those resorting to the Commander Islands spend the corresponding months oa the western side of the same ocean (or in th.: vicinity of the coasts of British Columbia and Japan respectively), that tho seivis pertaining to these two migration-tracts are of the saDit; kind and are not specifically distinguishable. That connection and interchange exists between the several breeding places, and that a similar or correlative change can be traced in regard to the condition of the rookeries from year to year on the two principal groups of breeding islands; while seals breedi^'^ elsewhere, whether on the Kurile Islands, Robben Island, or at various isolated points to the south of Behring Sea along the coast of North America, are also identical in kind and appearance. That apart from the inherent impossibility of proof of the actual place of birth of each or any particular seal met with at sea, and oven If it be admitted (though this is denied) that all the fur- aeals found in the eastern part of the North [644] \ 2 T J 160 Pacific (say, to the east of the 180th degree of longitude) have heen horn on islands under the control of th9\ United States, the hahits and necessary mode l^f life of the animal are such as to require its pesort to the high seas for the greater part of each year. It is further contended, on the part of Great Britain, that while, for the purpose of preserva- tion of the fur-seal, special responsibilities un- douhtedly devolve upon the Powers under whose territorial jurisdiction the principal breeding islands of the fur-seal are included, because these Powers by an injudicious or excessive exorcise of their rights, might seriously injure the general interests involved in the fur-seal fishery ; that no limitation of, or interference with, the right of killing the fur-seals upon the high seas can be justly or properly asked for by the ,e Powers or either of them without a corresponding offer and stipulated limitation of the killing o* seals upon the breeding islands and in the adjacent territorial waters. That the demand for such limitation or inter- ference with the seal fishery lias, so far, been made only on the part of and in the exclusive interests of the United States and their lessees on the Pribyloff Islands, and that even if the methods of control and restriction which are reported to have been exercised upon the breeding islands have heretofore been strictly and impar- tially enforced, without some specific guarantee of the continued exercise of such control, no ciurtailment of general rights upon the high seaa can be justified. Lastly, it is submitted that any general measures of control should bo framed with due regard to all existing int,erests, and that the con- currence of the various Maritime Powers, as well as of those specially interested by reason of their control of the principal breeding islands, must be provided for. ;ii: 161 Chapter XI. Recapitulation of Argument. The following are the propositions of law and fact which, it is maintained on behalf of Gnat Britain, have been established in the foregoing Case: — 1. The sea now known as Behring Sea is an open sea, free to the vessels of all nations, and that the right of all nations to navigate and fish in the waters of Behring Sea, other than tho territorial waters thereof, is a natural right. 2. No assertion of jurisdiction by Russia, tho United States, or any other nation could limit or restrict the right of all nations to the free uso of the open sea for navigation or fishing. 8. At no time prior to the Treaty of the 30th March, 1867, did Russia possess any exclusive jurisdiction in tho non-territorial waters of tho sea now known as Behring Sea. 4. At no time prior to the said cession did Russia assert or exorcise any exclusive rights in the seal fisheries in the non-territorial waters of the sea now known as Behring Sea. 5. The attempt by Russia in the year 1S21 to restrict the freedom of navigation and fishing by the subjects of other nations than Russia in the non-territorial waters of Behring Sea was immediately and effectually resisted by Great Britain and tho United States of America. 6. The claims of Russia to limit and interfere with the rights of navigation and fishing by other nations in tlie waters of Bcliring Sea, other than the territorial waters thereof, were never recog- nized or conceded by Great Britain. 7, The protests raised and tho objections taken by Great Britain to the claims of Russia to limit such free right of navigation and fiahirg were acquiesced in by Russia; and that no attempt was ever made by Russia to again assert 162 or enforce any such supposed right to exclude or limit the rights of other nations to navigate or 15sh in the waters of the sea now known as Behring Sea, oti:r than the territorial waters thereof. 8. The assertion of rights by Russia in the year 1821, and her ineffectual attempt to limit the rights of navigation and fishing, was inopera- tive and had no effect upon the rights of other nations. 0. The body of water now known as the Behring Sea was included in the phrase " Pacific Ocean," aa used in the Treaty of 1825 between- Great Britain and llussia. 10. Prom the year 1824 down to 1886 the vessels of Great Britain have continuously, and without interruption or interference, exercised the rights of navigation and fishing in the waters of Behring Sea other than the territorial waters thereof. 11. The right of all nations to navigate and fish in the waters of Behring Sea, other than the territorial waters thereof, have been repeatedly recognized and admitted both by Russia and by the United States of America. 12. Whatever territorial rights passed to the United States under and by virtue of the Treaty of the 30th March, 1867, Russia had not the right to transmit, and the United States did not acquire, any jurisdiction over or rights in tiie soul fisheries in any part of the sea now known a?. Behring Sea, other than in the territorial waters thereof. 13. The Treaty of Cession of the 30*,h March, 1SG7, did not convey anything more than ordinary territorial dominion. IJi. From the acquisition of Alaska by the United States in 1867 down to the year 1886, no attempt was made by the United States to assert or exercise any right to limit or interfere with the right of Groat Britain, or of any other nation, to navigate and fish in the waters of Behring Sea other tlian the territorial waters thereof. , 168 15. The United States have not, nor has any subject of the United States, any property in fur-seals until they have been reduced into possession by capture, and that the property so acquired endures so long only as they are retained in control. 16. The sole right of the United States in respect of the protection of seals is that incident to territorial possession, including the right to prevent the subjects of o+her nations irom enter- ing upon land belonging to the United States, or the territorial waters thereof, so as to prevent their capturing seals or any other animals or fish either on such lands or in such territorial waters. 17 Fur-seals are animals /«•« natura, and that the United States has no right of protection or property in fur-seals when found outside the ordinary 3-mile limit, whether such seals frequent the islands of the United States in Behring Sea or not. 18. The right of the subjects of all nations to navigate and fish in the non-territorjid waters of the pea now known as Behring Sea remains and exists free and unfettered, and cramot be limited or interfered with except with the concurrence of any nations affected. 19. No regulations affecting British subjects can be established for the protection and pre- servation of the fur-seal in the non-territorial waters of Behring Sea without the concurrence of Great Britain. liMA] 2 U J 166 CONCLtrSION. It is respectfully submitted on behalf of Great Britain to the Tribunal of Arbitration, that the questions raised in this Arbitration are of far greater importance than the mere preservation of a particular industry ; they involve the right of every nation of the world to navigate on and fish in the high seas, and to exercise without interference the common rights of the human race; they involve the question of the right of one nation by Proclamation to limit and interfere with rights which are the common heritage of all mankind. In defence of these rights and in the interests of all civilized nations, the above arguments are respectfully urged upon the consideration of the Tribunal. J