IMAGE EVALUATION TEST TARGET (MT-3) 4 // {■/ ^ ^^p '<">>* .^' A 1.0 I.I 11.25 • so ■^* 12.5 i:s IIIIIM 111^ U 1II11I.6 V] . VI •c*l <,>.. -(S^ '•^y*.'^ '/ Photographic Sdences Corporation 23 WEST MAIN STRtET WEBSTER, NY. \4580 (7U) 872-4503 iV A^ ^ s? \\ '*■'*. "^ '^o' >5> ^■"1%^ <> CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Technical and Bibliographic Notes/Notes techniques et bibliographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. L'Institut a microfilm^ le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. 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This item is filmed at the reduction ratio checked below/ Ce document est filmd au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 12X 16X 20X 26X 30X a4x 28X J 32X The copy filmed here ha* been reproduced thank* to the generosity of: Vancouver Public Libt'ik into a series of islands and rocks. These islands stud the Pacific Ocean until Attou is reachod. lioring Sea is described in the Qcographies and Gazetteers of Eiifjland and of tho United States as being " that part of tho North Pacific Ocean between Aleutian Islands and Bering Strait." The aggregate widths of the " Passes " through the Aleutian chain of islands exceed by much the similar measurement of the islands them- selves. From the southern to the northern part of what are now known as the North and South Pacific Oceans was in the beginning of (his century termed the Pacific or Soutli Sea, being readied in the days of Cook and Vancouver by .sailing soutl;, rounding " Tho Cape," or doublinij "The Horn." Russian, Englisli, French, and Portuguese, as well as citizens of the United States, traded with the natives of the north-west coast both before and after 1799, when Emperor Paul of Russia granted to the Russian-American Com- pany certain exclusive privileges of ctmmerco on all the coasts of America on tlic Pacific north of latitude 55° nortli — " exclusive," iu tlie words of Mr. .iVdams, tiie then Sccretaiy of State for the United States — "with reference to other Russian subjects." In 1821, Alexander, Emperor of Russia, pro- claimed for the first time the sovereignty of Russia over the ojien waters of the Nortli Pacific Ocean. Hy a Ukase, Russia, in this year, claimed exelusiv(> jurisdiction over the Pacific Ocean i'rom Rermg Straits to 55" north latitude. The position was relinquished hy Russia after much negotiation and (correspondence, and on Scp American the 17th April, 1821, a Convention was ccm- I""''.''"'',"'' ' Foreign UclotiODs, eluded between the Utnied States and that vol. v, p. 433. co\mtry, which was ratified at "Washington on the 12tli .laiuiaiy, 1825, and of MJiich the 1st Article is as follows : — July 22, io^3 Mr. f. 'ams to Mr. M.ldletOD. "It i.-; ,ngi(;i'(l tliiit in any piiit ct llio (licnt Oicaii, " State Papers," lommoiily callwl tliu I'i>';ific Ocimii "V So\itli ^v», iUv vol. xii, p. 693. resiicctivu (•ili/.i'iiH or sulijiiU of llic lli},'li (Jontnuliiij; rowers slmll 1/u nuitlK't' disturlx'il nor ruMtriiiiitMl, citliiT in imviK.'ilioii oi ill liHliiiij,', or in llir powir of n'sortin-,' to lliis coasts upon ijoints wliicli may not ulivaily liuvu lii'cii ocoupied for the purixisf of trnilin;,' wilii tin- unlives, sHvinK alvvays tliu restrictions anil enniliiinnM ilrtiiiiiincil by tlio follow ini; Artielcs. " The conditions and n-^,trictiuus rehilc chiclly to the j)i'(!vi'iitii)n lor illit-it trado in spiritiioua liquors, lire-arms, ttc. Negotiations Ijetwecn (ireat Hritain and lUissiii on the subject of the same Ukasi- resulted in a Treaty between tho two Pcwcrs, coiieluded on tlie 28tli February, 18'J5. This Treaty eontaine( llic iLiritury oedeil til llic lIait(Ml States liy tliu KmixTdr nf Iliissia by Tr<'iit\ I'diiciiidcil lit Wasliin^jtoii mi tin- Wt\\ day of March, a.h. ISil", sci far «■< the sn'iie inny Imi appIiialiU' tlll'lfto. "Section ID.'G. Ni. iicraou sliall kill any ullfi iiiiiik, iii'xiti'M, snblo, or fur-seal, er othor fnr-lH'nrin),' animal within tho limits (if Alaska tcrritury, or in IIk^ waters Ihc'ViMil. . . . "Sfctiiin I'.i.j". . ■ Tlir colleitnr and di']nily eiillcctors appointed foi Ala-ka ti'liitinv, iind any peismi aulhorized in writing liy either <•{ llieni, or by tho Secretary of thn Treasury, shall have po er to arrtiit persons and hcizo vcsseli and nierchandi/ liable to fines. |H.Mmltie3, or fovleiturcs under this and the other Iiuvh extended over the territory. . . ." On this date also was approved "An Act to prevent the Extermination of Knr-bearing Animals in Alaska." Undcn' tliis Act a law was executeil the .'Ird Augnst, 1870, on behalf of the United States' Government in favour of the Alaska Commercial Company. It covered the Islands of St. George and St. Tanl only. The Committee of "Ways and Me.ans of the House of Representatives in 1870 reported, after taking testimony, that — For the Act to prcTent extermina- tion of fur-b. S6, Ibid. 4; St 'Vng., 2n, ves8cl» continued t(» visit and hiuil in Jierini; Sen without interference when outside of tlie ordinary ferritori.MJ jurisdiction, Sehoonoi-s from Uritish Colutnliia were tlshintf in 1S(H; ; seals to the nuinlie • of 20,0(10 a-year were reported as Ix'inj^ taken south of St. Oeorgc and SI. I'aul in 1S72. In that year expeditions for JJerinj; Sea wore fitted uiil in Anstmlia and liritish Columhia. Jn 187") a steamer was roj)orted as hunting? ainon<; tue son! islands. ' u 1880 V(!SHol8 wore fitted oi I in San Francisco, and rei^ularly cruized in IJcrinf;; Sea for the piii'])ose of huntiii;,' seals. Scnling-vesscls and their catches were reported hy the United States' cutter " Corwin," but none were interfered with when outside of the 3'mile limit. An Agent of the United States' Oovernnicnt reported in 1881 that 100 vessels had been scaling about the PrihylolV Islands for twenty years. The Agents of the United States' Goverjiment sent to the seal islands previous to 18S(( ortion of Bering Sea and .Vla.'-kn on the main- land. The instructions given from time to time to Cominauders of the Beveuue Scivico, or of siiips ot war of tlio United States cniiziii^ in Jkriiig Sea, ori,'aiii/.iiij,' a Goverunient in Alaska luiil •^iiardiiii,' tlu! interests of the Alaska Commereial Company U])on the islands leased to theComjiaiiy, contain no suggestion of the intention of that Government to assert ii elaini so vehemently disputed v.lien advanced hy Russia. On the contrary, while vessels from Hiilish Colunihia ami i-lsewhei'e were tradini; and fishing generally in the Uering Sea, the instructions relating to the fisheries given to revenue marine ships by the United States' Government until 1886 were confined to the protection of the seal islands from those who were in the habit of landing thereon. The seizure of Uritish sealers in the open seu followed the Report on the cruize of the revenue marine steamer "Corwin" in the year 1SS5. In this Itcport it is among other things stated that a special look-out was kept for vessels sealing when shaping a course for St. Paul. The Cajitain in liis Report says : — ■Wliilf we wcru in llii; viuiiiily ul tin- mmI isl;iiiil.-- a look-out was kc'iit nl the mastliead for vessuls mii/ini,', sealing;, f pviiili'l in tlm western paiiers, partieulriily tho^e nt San Fianeiseo, California, and V'ietoiia, liritish Colunibia, the -.i.tiiuis o the law relating to the kiUing of fm-liearing auiia;.!- in Alaskan waters, ami ilefinin^ in -.|i|.(ilii- ternis wli.a i meant liy Alaskan wateiN. " :;. That a revenue eutter he sent to eriiize in tlio vicinity ol' the I'riliyloll' Ishuuls ami .VU'n'iaii group iluring the sealing season." While the lirst suggestion was never adopted, no notice nor Act having yet detined wiiat is meant by Alaskan waters, it seems thai, in accordance with this Report and other similar representations, the United States' Government sent revenue cutlers in 188(5 with instruction? I'or the ru>f time to take sealing-vcsscls. 8 In 1880 tlic Hiitisli schooner "Tliorntoii " was Firtt aiieriion oi accordingly arrested when 70 miles soutl^(•a^t nf ^'X^of" St. (!(M)r!,'(! Island. iJering Sen. 'I'lic vi'.sscl Mas libelled in a District Court of the United States, and the iihel filed hy tlie Attorney for th(> United States alli-ged that the vessel was " I'onnd eiif^aged ii> killing- fur-seal within the limits of Alaska territory and in the waters tliereof, in violatiou of section ]'.)")(; of the Hevi«ed Statutes of the United States." Other seizures followed. Tlie "Thornton," "Anna Heck." and "VT.V. SayAvard " were all condemned in 18S7 hy the District Court of Alaska ii])on the njround that lUissia had ceded not only Alaska and the islands within certain limits of Berini; Sea, but the sea itself within those limits. The counsel, Mr, A. K. Delaney, who appeared ncring Sea laid to for the United States' Government, fded a ''''"'' ''''»°'' "»»"• " brii.'f," in which the foUowint;- doctrine was put forward : — "Bering Sea Inland WuUr. " It tlius tp|iears lliat fruiii mir earliest liistorj', conteinpiiraiieously with uur accejitauce of tlie iniiiciiile of tlie marine league belt, and supported by the Baiii(> high authorities, is the assertion of the doctrine of our right to (louiiniou ovei- our inlani! waters under the Treaty of 18G7, anilon this rule of intornatioiml law we liasc our claim to Jurisiliilion and dominion over the waters of the Bering Sea. AVhile it is, no donlil, true tliat a nation cannot hy Tre.ity ae(iuire dominion in contraven ion of the law of nations, it is none the less tnic that, whatever title or ilominion our grantor, liiissia, possessed under the law of nations at the time of tliu Treaty of C'es.sion in 18G7, passcj this fiovenrjient in taking, and vit/wut reference to any exo.plinivii nviriiv jnnsilldiun that tuiiiht properly be cliiinuil for that end, it is deemed ailcisahh, and I am instniitcd by the President so id inform you, to (•tlniii the Jcsiiid ind>, hi/ INTERNATIO.n'AI. Cn-nPERATluN, " Under these circumstances, iind in view of the comimm intcMsls of ALL nativHii in preventing the indiscriminate destruction and consef[nenl exterminatiiai of an animal which contributes so materiallv to the commercial vealth 11 >\itd ;/cni nil i/.*' ground siiy;g(!sted l>y the Bill as first reported ti])on hy llie Committee of Marine and Fisheries. In a despateh to the Minister at the Court of St. James' (the 7tii Fehriuiry, 188S), when dealing with the slaughter of seals in IJcring Sea, he wrote; : — > "The only way of ohvialin^ the lamentahle |-es\dt aliovi! predicted ajipears to lie liy the I'liileil Slates, Great IJritaiii, ami other interested I'owers takin>_' eoncerted action to previjnt their eitizens or snlijects from killini» fur-seals with fire-arms or other destructive weajions north of .50° of north lati'udc, and between 1G0° of lonuitnda west and 170" (.f longitiule east from Greenwich, u from "Oolovniii," in " Material iii," i, 77-SO :— Uancrofl's works, " l>.y ttiu gmcii uf ii iiiiMcil'iil (.ii«l, wo, I'aiil 1, Kmin'iui- Tol. xxxiii, History ,,„(i Autocmt of All thu Riissias, &c. To llic liii.-isiaii- oi' Alaska, 1730- , . ,, , i • i . , ,■ .i 1885 up. 379-380. Amoi-icaii < iim|):iiiy, iimli'i' our li]i,'lii-i? ]ircil.M'tioii, llio buiielits iind adviiiitages rcsnUin;^ In oiii- Kiii|iire i'raiu the hunting and trading carried nn liy u\ir loyal s\ili- jects in the north-eastern seas and along the coasts ol' America have attracted our lioyal ^utontion anil considera- tion ; therefore, having taken under our ininiediiLte protec- tion a Company organized I'or the idiovc-namcd purpose of carrying on hunting and trailing, we allow it to assume the npiiellalion of ' Kussian-Ameiicau Company under our highest protection;' and for the purpose of aiding the Company in its enterprises, we allow llie Commanders of our land and sea foites to employ said forces in the Company's aid if ocoa-sion rcfiuires it, while for further relief and assistance of said (.'ompany, and having examined their Kules and liegnlations, «■(■ hereby declare it to Ijo our highest Im]ierial will to grant to this Company for a period of twenty years tlie following lights and privi- legea : — " 1. 15y the right of discovery in \\\\-X times hy liussian navigators of the north-eastern part of America, heginuing from the 35th degree of north latitude and of the chain of islands extending from Kamschatka to the north to America and southward to .Fapau, and by right of pos- session of the same by liussia, we most graciously permit the Company to have I lie use of all hunting grounds ami establishment-i now cNisiiiig mi llie north-eastern \si.c\ coast of Auierica, from the above-mentioned "loth deyTee to I3ering Stiiiit, and on the same also on the Aleutian, Kurile, and other i-^lands situated iu Ihe north-east' rn atli To make new discoveries ni'l only n"illi of the legree of north latitude but farther to tile south, and to occupy the now lands discovered, as Russian pos- sessions, according to prescribed rules, if they have not. been previously occupied by any other nation, or been deiieiulent on another nation. ":!. To use and |irolit by everything which has been or shall be discovered in those localities, on the surface and in the bosom of ihe earth, willnait a. y iMmpetitiou liy others. ■■■i. We mos! graciously povmil llii< (.'ompanv to esta- lilisli Settlements iu furuie times, wherever they are wautcd. according to tlicir best knowledge and iielief. and fortify them to insure the s.d'ely of the iuli.djitaMis, and to send ships to thiwe shores with goods and hunters, wiijioiil, any obstacles on the part of the Coverinneut. "u. To extend lliei,- navigation to all adjoining n.itioim 16 iiiiil lidlil liii,-iiic.-.-i iiiloicouKo Willi nil bUiriMUi'lin.L; I'ijwit^, iijiiiM cililiiiniii^ tlk'ir fi'cf cnnsnit lur llic iuiviiosl', ami iiiiikr mil' liiulii'sl |.i'oti'iliiiii, to Diir.lilc llii'Ui to iPinsccnU' llicii- iMiliTini.si's wilh grcalor forcu iiml advaiitiiyi'. "(1. To oiiiiiliiy fill- navigation. Imntinj;, niul all otliur Imsincss, free ami iiiisuspcctud licniilc, liavinu no ilK'j;nl views or inti ntions. ]n consideration of the clistance of (ho l(pr;dilii.s when' tlicy will 1k' sent, liii' laovincial antlio- ritiis will m'iint to all iiiMsons sent out as sclllurs, Imntcrs, and in otbcr cai)aciiics, passports foi seven yenrs. Serfs and liouse-survants will only bo oniploycd by tlie Company with tlie consent of their land-holders, ami Oovemnieni ta.M'^ will be paid I'or all soils tlni? eni]jloyed. "7. TliiHiLjli it is forbidden by our hi;.dn'sl order to cut (iovernnienl limber anywhere without the penaission of the Colh'ge of Admiralty, tliis Comiiany is hereby per- mitted, on account of the distance of the Admiralty from Okhotsk, when it lU'cds timber for repairs, ami oecisionally for the construction of new ships, to use freely such timber as is required. " S. For shooting animals, for m.arine sii.'nal.s, and on all unexpected cnu'rgencies on the maiidand of America and on tlie islands, the Company is permitted to buy for cash, at cost price, from the liovernmenl artillciy magazine at Irkutsk yearly 40 lbs. or 50 lbs. of powder, and from the Ncrteliin.sk mine 200 lbs. of lead. "9. If one of the partners of the Company becomes indebted to the (.ioveriinient or to pi-ivate iici-sons, and is not in n condition to jiay them from any other property excc])t what ho holds in the C'oiii]iany, sueh jiroperty cannot bo .seized for the satisfaction of such debts, but the debtor shall not be permitted to nse anything,' but the interest or di\idends of such property until tluj term of the Coin]iniiy's privileges expin^s, when it will be at bis or his creditors' disjiosal, " 10. The exclusive right most graciously gTanted to the Company for a period of twenty years, to use and enjoy, in the above-described extent of co.a.iry and islands, all profits and advantages derived from hunting, trade, indus- tries, and discovery of new lands, prohibiting the enjoy- Jiienl (.if those profits and advantages not only to those who would wish to ,cail to those countries on their own account, but to all hauler hunters and trappers who have been engaged in tliis trade, and have their ves.sels and furs at those places ; and other Conijmnies w liicli may have been formed \\ill not be allowed to continue their business unless they unite with the present Company with their free consent ; but such private Companies or traders as have their ves.sels in those regions can either sell their property, or, with the Company's consent, roniaiii until they have obtained a cargo, but no longer than is rei|uiied for the loading and return of their vessel ; and after that nobody will have any privileges but this one Company, which wdl be iiroteeted in the enjoyment of all the advan- tages mentioned. " 11. Under our highest protection, tiie IJussian- American Company will have full control over all above-mentioned 17 localities, niul exercise judicial powers in minor cases. The Comiiiiiiy will also l>e peniiitti'il to use all local facilitit'H fur tortilicatioiis in tlio detunco of tlic country under thciv control uuainst forL•i,^'u altaikn. < )nly paitiiera of till) Comijany sliall bo enipluyed in tli.- a.lniini'.tratiou of till! new possesiioiiH in cliai-ge of the Company. " In eouolusion of this our most griieious order for tlio htiielilof the liussian-Aiiiirioan Oniipaiiy under Iii;Iiest protection, wo enjoin all our military and civil authorities in the ahove-mcutioned localities not only nut to prevent them from enjoying to the fullest extent the privileges granted by us, but in caso of need to protect them with all their power from loss or injury, and to ivuder them, upon application of the Company's authnritics, all ncicssary aid, assistance, and protection. "To give efl'ect to this our most gracious Or.ler, vo subscribe it with our own hand, and give orders to coiilirni it with our Imperial seal. " Given at St. Tetersburgh, in the year after the birth of Christ 1799, the 27tli day of December, in the fourth year of our reign. (Signed) " I'.U'L." This Cliarter, it will be observed, granted to the llussiaii-Aiucric . Company the exeliisivo right of Imiitiiig, trade, industries and dis- coveries of new hind on the north-west coast of America from Bering Strait to the uutli degree of north latitude, with permission to tho Company to extend their discoveries to the south and to form establisliraents there, provided they did not encroach upon tho territory occupied by other Powers. The southern limit thus provisionally assigned to tlic Company coiTcsponds, within 20 or 30 miles, with tliat which was eventually agreed upon as tho boundary between llie British and Eussian possessions. It comprises not only the whole American coast of Bering Sea, but a long reach of coast- line to the south of the Alaskan Peninsula, as far as the level of the southern portion of Prince of Wales' Island. The Charter, which was issued at a time of great European excitement, attracted apparently little attention at the moment, and gave ri.so to no remonstrance. It made no claim to exclusive jiu-isdiclion over the sea, nor do any measures appear to have been taken under it to restrict the commerce, naviga- tion, or fishery of tho subjeels of foreign iiafions. It refers to tho Aleutian Islands and tho Kurilc Islands as situated in the "ISorth-casteiii [sic] Ocean." [570] F 18 It rofiirs also to tho nortli-itesi coast of Amoriea ns tlio " mtrtU-enstern part of America." Troin this period until 1H21 llicrc is no pretence, either by tho Ukaso or afterwards by acts of tho Company or of the Ihissian Government, of exclusive rights as against tho world outside of the ordinary territorial limit. jMr. Adam-;, Secretary of the United States, Russian territorial clnim in 1821. established clearly that even as late as 1823 B.ussian rights in the region under consideration " were confined to certain ishiml.s north of the 55th degree of latitude," and had " no existence in the continent of America." Bancroft, the United States' historian, tells us that in 1709 there was no Russian Settlement outside of the islands. The limits in the Ukase within which the Russian Company were given these exclusive hunting rights extended from 4.5° of north latitude to HI" north on the western coast of America. That llussia had no authority to concede ex- clusive rights as against subjects other than her own over that coast or sea, where discoverers of every nation were continually exploring, and ■whither traders resorted from various parts of the world, is clearly shown by Mr. Adams. Writing (22ml July, 1823) to Mr. Middleton, Mr. Adams observed : — "It lines not ft)] tliat tlicre ever lins lieeii a American State periimiient J!ii! i;iu jjcttlei i 'lit on tliis continent south of „ P"'" """[S" Relations, vol. v l.ititudo 50°, tlml of Kum- Ardinngcl, cited by M. I'oleticn, p. 436, in latitude 57° 30'. I'l .g upon an island. So far ns prior discovery can constiliiti) a foundation of right, the papers which I havo referred to jnovu that it belongs to tlie United States as far as 50° north, liy the transfer to them of the rights of Spain. There is, iiowcvcr, no part of tho globe where the mere fact of discovery could be held to give weaker claims than on the north-west coast. The great sinuosity, says Humboldt, foi'iued liy the coa.st between tlie 55tli and GOtli jiarallels of latitude, enibniccs discoveries made by Gali, Bering, and Tehivilioft", Quadra, Cook, La Pcrousc, Malaspier, and Vancouver. No European nation has yet formed an estaldishinent upon the immense extent of coast from Capo Mendosino to the 59th degree of latitude. ISeyoud tliat limit the Itussian factories commence, most of wljich are scattered and distant from each other like tlio factories established by the European nations for the last three centuries on tlie coast of Africa. Most of these little llussian Colonies communicate with each other only by sea, and the new dominations of Eussian-America or Russian possessions in tlie now continent must not lead us to believe that tlie coast 10 of Ik'iiiiH liny, tlio I'oninsulii uf Al' ;ka, ui tlio com ti^ of tlio Iscliugatsclii Imvo iHJcoinn Itinsinii proviiues in tho ani'io HPiiMr^ nivcii to llni word win ii s|iciikiiij,' if tlu) SimiiiHli I'luviiici'.s (if Sommi di- Xi\v liismy." ( lluiii'.iolilt'a "Now ^;)nin," vol. ii, liooVc :), t'lmp. .S, |i. .100.) " In .".:. J oleticri's letter of tho li8tli Feliriiaiy, 1K1.'2, to uio, ho snys tlmt whoii the Knipcn.! I'iml I hi'H'Il'iI t" tho liri'.«ciit Aniciiiiiu ('oiii|iiuiy its first Clinrtcr in ITiJO, ho guv(^ it tho CMliLiifc jmsHCiniiiii of tho mirth-wij.-tl ooii.st of Amcricn, which K'l<)n',c(l to Itussiii, from the, u."th degree of north Intitmln to llorinf,' Strait. "In hi.s Icttorof tlio L'ml .\\n\\, ISJL', ho says tliat the Charter to tho liUs.siim-Aiiicrii.an (,'(ini|iany in ]~'.i'J wa.i nioroly conceding to thcni a part of tho .sovereignty, or ralhrr certain ej:cluince 'privHi^/dt of commerce. "This i.s tho most correct view of tho snlijeit. Tho Eni|)eror Paul granted to tho lius.sian-Amorican Company cortaiu exclusive privileges of coninierco — e.\i;lusiv« with reference to other Ilus.-^ian subject.s ; hut lluusia had never before asserla! a right of sovereignty over any part of tho American continent; and in 170!) tho people of tho United States had been nt least for twelve years in tho constant and uiiintetrupted enjoyment, of a prolitalile trade with tlii^ natives of that very coast, of which the Ukaso of tho Euipcror Paul could not deprive them." Appendix I. Article XVIII, North American Review, vol. xt, Quarterly Review, 1821-22, vol. xxvi. See alio Adams to Hush, July 22, 1823, p. 446; American State I'aperi, Foreign Relations, F. O., p. 446; and alio Confi- dential Memorial inclosed in letter, Middleton to Adams, December 1 (13). 1823, p. 449, American State Papers, Foreign Relations, F. O. Touching the question of Russia's cltiiius, up to 1821, to oxclusiro jurisdiction over more than certain islands in the PaeiCie Ocean on the American coast, Mr. Adams, moreover, hrought forward, with approval, articles which appeared in " The North American Review," puhlishcd in the United States, and in the " Quarterly Review," published in England, Annex 1. From the facts disclosed hyllicsc articles the Govcniment of the United States took the ground explained by Mr. Adams, that " the right of discovery, of occupancy, of uncontested possession," alleged by Russia, were " all without foundation in fact," as late as the year 1823. P ussia, Spain, Great Britain, and the United States were, through their citizens, all engaged in trading, as well as in the establishment of trading ports upon tho north-western coast of America. While the subjects (■" ?ach country were doubt- less making claims on the part of their respective Rulers from time in time, so uncertain were their claims and the merits of each that in 1818 (20th Oetobei:), in tho Convention between the United States and Great Britain, it was agreed that any "country that may he claimed by either party on the north-west coast of America, westward of the Stony Mountains, shall, together 20 ■with its harbours, hays, and crcolvs, and the navigation of all rivers within (ho same, he free and open for the term of ten years from the date of tho signature of the Convention, to the vessels, citizens, ami subjects of the two Powers, it l)oing well understood that this agreement is not to bo construed to the pi'cjudicc of any elaims which either of the two Iligli Contracting Parties may have to any part of tho said country, nor shall it bo taken to affect tho claims of any other Power or State to any part of tho said country, tlie only object of the High Contracting Parties in that respect being to prevent disputes and differences between themselves." The actual extent of Russian occupation in " Tikhmenief," America at this time (Census of 1819) was at A^nex'elBancrof'; Novo Archf. ngclsk, 198 men, 11 women ; Kadiak, "Alaska," note to ^ • 522 and adjoining islands, 73 men ; Island of Ooka- mok, 2 roou; Katmai, 4 men; Sutkhumokoi, 3 men ; Voskressensky Harbour, 2 men ; at Tort Constantino, 17 men ; at Kikolai (on Cook Inlet), 11 men ; at Alexandrovsk (also on Cook Inlet), 11 men ; at the Ross Settlement (California), 27 men ; on the seal islands, 27 men ; and at Nushacjttk,* 3 men and 2 women: total 391, of whom 13 women. Places in italics the only Settlements in, or on the coast of, Jiehring Sea, other than Aleutian Islands. Touoliing the importance now given to the subject of seals, it is to bo noted that tlie otter, and not the seal, was the most valuable fur- bearing animal sought by hunters and traders at this time. ("Voyage of .M. do Krusendern," vol. i, p. 11, given in American Stale I'Mpers, Foreign Relations, vol. v, J". ()., p. J");?.) See also " Abstract of Diplomatic CorresponihMice," p. 455, &c. Finally, referring to the Ukase of Paul, Mr. Middlclon, in giving ^fr. Aduns a nanvitive of the i;roceedings, 7lh (19th) April, 182 1, leading to tho Convention, remarked : — "The confusion prevailing in Kuro]ie in 1709 jiennii' 1 Amcricnn State Rus:>iii (who alone sceina to liiivc ki-pt liur iittHition tixod Pnp"". I'orcign ,,• • . . 1 ■ .1 ■ ■ IX 1 , 1 . Ko'atioDS, vol. T, upon this interest ihinng llmt peiURl) tr . ,'. ii ileciil. n p_ 4g|_ .step tow.irils the nionn]icily of this Inide, l" iU-- '"knse of that date, which tresptt3.sod upon the iiek'ii wled;,'eil ri^rh:-' of .Spain; but at thot moment the Kiii /eror I'aul 'lad declined war against tliut eountry as 1« nig an idly of France. This Uliasu, which is, i-i its i'orui, a i act purely domestic, was never notified to any foreign Staty with * The only SetlleineDl on the cAntitK>nt north of ih<- .^li'utian JiUndi. 2) injunction to respect its provisions. Accordingly, it ap- pears to have been passed over unoljservfil Ijy foreign Powers, and it remained witlnnit execution in so far as it militated ogainst their rights." Ukase of Alexander, 1821. Bancroflt 531, cap. xxri (1886), Voyage. M. de Krusenstern, vol. i, p. 14, No. 384, p. 484. Amcvicau Slate Papers, Foreign Rel.itioii!:, vol. V. Americr.n State Papers, vol. v, pp. 438-443. Bancroft, p. 528. " Tiklinit'nief," Ister. Obos. I, cited in note to liancroft, p. 332. Trom 1799 to 1521, tliercl'ore, llioro is no evidence upon whicli it can be said that Russia daimrd exclusive jurisdiction in IJering Sea outside of the ordinary ttn-ritorial limits. It was not tintil 1821 that Itussia ventured to assert, or, in other words, attonipied (d vindicate, a cliiim or title to the islands and a piu'tion of the mainland of the continent of America. Tli2 casual visit of an explorer or ot a trader, the temporary establishment of small military posts either on a continent or an island, is not an assertion or vindication of title or of juris- diction. In 1821 Russia claimeil and attempted to assert exclusive jurisdiction over the continent and a large portion of the Pacific Ocean, now known as Bering Sea. "When the term of the First Charter exi)ired, the Russian - American Company numl)ered among its shareholders Russians of high rank, as well as members of the Royal Family. Emperor Alexander was a shareholder. The main object of the Company had been tlio same as that of the English or American traders, viz., the trafTle in th(> fui' for tlie Chinese markets. They, however, fouiul themselves imable to eoinpete with the Americans, who, diuinu' tlie period, were trading on the coast and in tlie Aleutian Islands, exchanging arms and liquor jjith the natives for furs. Accordingly, a Ukase was issued. It was as follows : — " Kitiii (if nU Iiiiprria/ M'ljii/i/, Ai'locmt of All Ike " lins.iia.f. " Tlic Dirx'ting Senate nmlolli known nnl.i all nicii : Whereas, in an Edict of His Impel inl Majesty, issued to the Directing Senate on the -till day of tSepteinber, 18l'l, and ■igned by His Imperial Majesty^ own hand, it is thus expr(!ssed ; — '"Olwcrving linm Itepurl'^ iuliniitii d In n> ilmt iho trad(^ iif our subjeuls im the .\leutian lsliind-< and on iho uorUi-we.it coast of .Vmericn appertaininj,' unto IJn.iHia is subjected, because of illicit uml secret tiallic, to oppression and inipi'dinii'uts, and lindiiig that tlii' [iriucipal cause of these dilliiMiltuH is the want of llnlei estaliji.sliing tho [670] G 22 linuiidiirio;; lor iinvigiiliou iilniig these coasts, iiiiil the urder of naval nimiiuuiication, as well in these places as on the whdlc (jf I la; eastern coast of Siberia nnil the Knrilc Islanils, we liavo ileenied it necessary to determine tliesc conimiuiioations by specific Eoyulations, M-Iiicli are hereto attached. '"In forwardiiiL; these Regtilations to the Directing Senate, we cujnniand tliat the same be published for nniversal information, and that the proper measures be taken to carry them into execution. (Countersij;ned) "'Count de Guhikf, '" Minister of Fina7iccs. " ' Tt is therefoie decreed by the Directing Senate that His Imperial Majesty's Edict be published for the infor- mation of all men, and that the same bo obeyefl by all whom it may concern.' " The origmal is signed by the Directing Senate. " On the original is written in the handwriting of His Imperial Majesty, thus: " lie it accordingly, " Alexaxdek. "'Section 1. Tlie pursuits of eommorce, whaling, and fishery, and of all other industry, on all islands, ports, and j^ dfs, indudiuL' the whole of the north-west coast of America, beginning from Bering Straits to the 51st of northern latitude ; also from the Aleutian Islands to the ca.steru coast of Siberia, as well as along the Kurile Islands, fron: Bering Straits to the smith cape of the Island of Urup, viz., to the ■i'l'' 50' northern latitude, is exclusively granted to Russian subjects. " ' Sec. 2. It is therefore prohibited to all foreign vessels not only to laud on the coasts and islands belonging to Eussia, as stated above, but also to ajipruach them within less than 100 Italian miles. The transgressor's vessel is subject to coniiseation, along with the whole cargo.'" The Russian-Amfi-ican Company then obtained For Charter, 1821,' au extension of their Cliartei' for anoilior period '^* Appendix, of twenty years. The jurisdietion of tlic Cmnpany was esta- blished hy thi.s Charter from the northern cape of Vaneouver Island in latitude 51^ north to Behring Strait, and beyond and to all islands belonging to that coast, as well as to those between it and the eoast of Eastern Siberia ; also to the Ki.u'ilc Islands, where they were allowed to trade as far as the Island of Oeeupa to the exclusion of other Russian subjects or of foreigners. Russia, therefore, at this time may be said to Lave claimed, if she did not actively "assert," dominion on the American continent 250 miles further south than ever before. United States' Protest against Ukaso of 1821. By tliis Ukase she gave notice also of an extra- ordinary pretension to maritiiuo jurisdiction. This claim to exclude vessels from fur-scaling or trade or other pursuit within 100 miles of the coast was founded expressly on the doctrine of mare clausum. Baron Nicolay to the Marquis of Londonderry the 31st October (12th November), 1821, says :— " . . . . The lUTniiHement ujipears to mc to be as lawful as il is urgent ; for, if it is shown that the Iiiiiniial Govornnient had strictly the right to close to fonigncvs that portion of the Pacific Ocean which is houndofl by our possessions in America and Asia, <) fortiori llic right in virtue of which it has just adojitcd a nmch loss restrictive measure .should not be called in question." Upon receiving communication of the Ulcase, the British and United States' Governmen' ; promptly objected both to the extension of the territorial claim and to the assertion of maritime jurisdiction. On the 30th January (or 11th February) 1822, il. Pierre de Poletl a, the Envoy Extra- ordinary and Minister Plenipotentiary of the Russian Emperor, transmits the Edict to IMr. Adams, Secretary of State for the United States. On the 25th February, 1822, Mr. .Vdams wrote M. Polctica : — "Department of State, Wuxhinijton, "Sir, " /lin/flcy U5, 1822. " I have the honour of receiving your note of the 11th instant, inclosing a jninted copy of i j Regulations adopted tjy the Russian-American Company, and sanc- tioned tiy His Imperial Majesty, relating to the commerce of foreigners in the waters liordi'riug on tlie establishments of that Company upon the uorth-west coasts of America. " I am ilirectod by the President of the United States to inform you that he has seen with surinise in this Etlict the assertion of a territorial claim on the part of Russia extending to the .">lst degree of north latitude on tliis continent, .and a Kegulation interdicting to all commercial vessels other than Piussian upon the penalty of seiziu'e and confiscation the approach upon the high seas within 100 Italian miles of the shores to which that claim is made to apply. The lelations of the United .States with His Imperial Majesty have always been of the most friendly character, and it is the most earnest desire of this Ciovcrnment to preserve them in that state. It was expected, Ijefore any Act which would detini' the bound.'iry between the territories of the United States and liussia on this continent, that the same would have been arranged by Treaty between the parties. To exclude the vessels of our citizens from the shore, beyond the ordinary distance to 24 which tlic tenitoriul jun.s(Uctioii cxtciuls, hiw uxcitod still groiiter surprise. " Tliis Ordiimnce affoctH so deeply llie right of tho Unilcil States iiiul of tlieir citizens, that I am iustructoil to UKiuIre whether you are authorized to give oxplanatious of the grounds of riglit, upon principles generally recognized by tlu! laws and usages of nations, which can warrant tlie cliiiius and Regulations contained in it. " I avail, &c. (Signed) " .John Quinxy Adams." The protest contained in this despatch covers exactly the description in tho Regulations under the Edict. Both the Regulations and the protest apply to the waters now known as the Rchring Sea. The Russian Representative? replied at length, Russian defence of Ukaaa. defending the territorial claim on grounds of discovery, first occupation, and undisturbed possession, and explaining the motive " which detiM'mincd the Imperial Government to prohibit^ foreign vessels from iipproacldng the north-west coast of America belonging to Russia, within the distance of at least 100 Italian miles." "This measure," he said, "however s(!vere it may at lirst view appear, is after all but a measure of prevention." He went on to say Muit it Avas adopted in order to put a sto}) to an illicit trade in arms and ammur.ition with tho natives against which the Russian Government had frequently remonstrated ; and further on he observed : — " 1 ought, in the last place, to reipiest you to consider. Sir, that the Ru.s3ian possessions in the Pacific Ocean extend, on the north-west coast of America, from Boring Strait to tho 51st degree of north latitude, and on t'le opposite side of Asia and the i.sliiiiils adj.aeent from the same .strait to the 4jtli degree ; the extent of m",\ of which these po.ssessions form tlie linuls comprehends all tin' conilitions which are ordinarily attached to shut seas (" mer.s ferm(!cs "), and the liussian (ioverimieut might, eonsequeully, judge itself authorized to exercise Mj)on this sea tho right of sovereignty, and (^specially that of entirely interdicting the entrance of foreigners. 15ut it preferred only asserting its essential ri,i;hts, without taking any advautngo of localities." To this Mr. Adams replied (30th March, 1822). He said : — "This pretension is to he considered not (jnly with i'„r tlic letter of reference to the 'juestion of territorial right, but also ti> March 30, 1822, that prohibition to the vessels of other nations, including ' ' "" those of the I'liitod States, to approach within 100 Italian niiUrt of the coast.s, I'rom the period of the existence of 25 the United States as an iiulepanduut nation tlicir Nossels Imve freely navigated tlioKc seas, and tlio right to navigate them is a part of that indoiKMnUaice. "Witli regard to tlie suggestion that the I'ussiau Oovornnient might have justified the exercise of sove- reignty over the I'aciiic Ocean as a close sen, liecause it claims territ(/vy hoth on its American and Asiatic shores, it may siilficc to say tliat the distance from shore to shore on this sea, in latitude 51° north, is not less than OO' of longitude, or 4,000 miles." Mr. Hush to Mr. Adams; American State Papers, Foreign Relations, vol. v, p. 542. The Russian Iloprcscntativc replied to this note, endeavouring to prove; that the territorial riglits of Jlussia on the north-west eoast of America were not confined to the limits of the Conee.ssion granted to the Ru.ssian-Amcriean Company in 1799, and arguing tliat the great extent of the Pacific Ocean at the 51st degree of latitude did not invalidate the riglit which Tlussia might have to consider that part of the ocean as closed. But 'c added that further discussion of this point was unnecessary, as the Imperial Government had not thought fit to take advan- tage of that right. Mr. Rush thus dealt with the claim : — " Tlic extension of territorial rights to the distance of lOl) miles from the coasts upon two opposite continents, anil the prohibition of aiiproaching to the same distance from these coasts, or those of all the intervening islands, are innovations in the law of nations, and measmcs unexampled. It nnr t thu.« bo imagined that this prohibi- tion, bearing the pains of confi.scation, applies to a long line of coasts, with the intermediate islands, situated in vast .seas, where the navigation is subject to ininiMerablo and unknown dillicullics, and where the chief emploj'mcnt, which i- the whale fi.shery, cannot be compatible with a regul 1' '" (iiid well-determined course. " The right cannot bo denied of shutting a port, a sea, or even an entire countr)-, against foreign commerce in some particidar cases. f>ut tlie exercise of such a riglit, unless in the case of a colonial system already establislied, or for some other special object, would bo exposed to an unfavourable intei'pretation, as being contrary to the liberal spirit of modern limes, wherein we look for the bonds of amity and of reciprocal conuuerce among all nations being more closely cemented. " Universal usage, which has obtainetl tlie force of law, has established for all the coasts an accessory limit lc™''= '•i«'«"C'^'. "'''i"-^'' •« «"liicient for (he .security ,>f the claim prepared by Mr. Middleton, United 'he country, and for the convenience of its iidialiitants, lint whidi lays no restraint upon the univereal rights of iiatious, nor upn-i the freedom of commerce and of na\'iga- tion." States' ISIinister at St. AppentUx.) (See Vattel, B.I., Chapter 23, section 289.) I'etersburgh, The claim of Russia attracted much attei.lion [570] H 152902 at tlie time. Moume : — Mr. Madison wrote to rresident " Till! CVjuveiitiou with Russia is a propitious ovont, as subsliuitiiig auiicivljlu iiilJHstmuut fur tliu risk of liostilo collisiiiii. But I give tlie Empuror liUlo crcilir, howevor, for liis iissout to tlio priiicipk' nf ' mare !ihc}'iim ' iu the North Pacific. His pretensions wore so absurd and so disgusting to the iiiaritiiuo world, that ho could not do iM'tler than retreat from them tlirougli the form of nego- tiation. It is well that the cautious, if not courteuu.s, policy of Eug'and towards Russia has had the effect of making us, in tlie public eye, the leading IViweriii arresting her expansive ambition." Mr. Middloton (lOtli Soiitcmlier, 1823), writing Ukase, 1821, abandoned. Mr. Adams, said: — "Upon Sir Cliarles (Hagot) expressing his wish to lie informed respecting the actual state of the north-west iiuesliun lietween tlie United States and Russia so far as it miglit 1)0 known to me, I saw no objectimi to making a coufideiitial tommimication to liiin of the note of Count Ne.sselrode, dated tlic Isl Augu.st, 1822, by whioli, in fact, staying the execution of the Ukitse above iiieiitioiied, Russia has virtually abandoned the pretension tlierein advanced." The I'laim wa.s tlieroforp abandoned before the sligirtest " exei'cisi;" oi' it luid occurred. The Ukase was brought to tlic uotioc of Loi'd Londoiidevry (better Iciiown as Lord Castlereaijjh), tlic 12lli Novemlier, 1S21, by IJarou de Xicolui, then Russian Cliavgc d'All'aires, as connected witli tlie territorial rights of the Russian Crown on the nortli-wcst coast of America, and with tlie comiiicrce and navigation of the Emperor's subjects in the seas adjacent thereto. On the 18tli .Tamiary, 1822, four montlis after llio issue of the Ukase, Lord LoiidoiKJerry, then Rritish Uoioign Secretary, wrote in tlie following terms to Count Lieveii, the ihrssian Ambassador in London : — " Upde to funiisli you with his notion of such declaration on this point ns may be satisfactory to your Oovernment. That declaration niaj' be made tlie preamble of tlie convention of limits » • • . • '■.... Your E.xeellency will obsene that there are but two points which have struck Count Lieven as susceptible of any question : the first, the assumption of iho base of the mountains, instead of the .suuimit, a.s the line of boundary ; the second, the extension (jf tlie right of the navigation <•( the Pacific to the sea beyond Behring Straits. » • • • " As to the second pf)int-, it is, perhajis, as Count Lieveu remarks, new. But it is to be remarked in return that the circumstances under which this additional security is required will bo new also. " By the territorial demarcation ngn^ed to in this 'projet,' Russia will become possessed in acknowledged sovereignty of both sides ot Tiering Straits. "Tlie Power wl'irh would think of making the Pacific u marc clatisio,! may not unnaturally be supposed capable of a disposition to apply the same character to a'strait comprthended lietween two shores, of which it becomes tiie undi-ecured to us." Mr. G. Canning wrote to the Diikoc7r W(.'llint;. ton on the 27th September, 1822. lie also dealt in this (lospatch witli (he claim in the Ukase for the extension of territorial rights over adjacent Bcas to the distance—" un^jrccuilented distance," 29 Abandonment of claim to extraordinary juris- diction. he terms it — of 100 miles i'fom the coast, and of closing "a hitherto unohstnicted passage." In this despatch 5Ir. Canning says : — '• I have, indeed, the satisfaction to lielievo, fiorn a con- ference wliich I have had -.vith Count Lioven on this matter, that upon these two points — the attempt to slmt up the passage altogether, and the claim of exclusive dominion to so enormous a distance from t' e coast — the Iiussian Government are prepared entirely t(j waive their pretensions. The only effort tliat has been made to justify tiie 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 sufficient to answer that the assumption of such a space was, in the instance fiuoted, 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 inferepxe could be drawn from that trans- action in favour of a claim by authority against all the world. " I liave 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 Russian Empire as a marc claiisum, and to extend the exclusive territorial jurisdiction of Russia to 100 Italian miles from the coast, will be publicly recalled ; and I have the King's commands to instruct your (iraco further to require of tlie Russian Minister (on the ground of the facts and reasonings furnished in this despatch and its in- closures) that such a portion of territory alone shall be defined as belonging to Russia as shall not interfere with the rights and actual possessions of His Majesty's subjects in North America." There was, as has been said, no exercise of extraordinary exclusive Jurisdiction on tlii^ part of Ilussia. Tlic pretensions set up in the Ukase of 1821 were undoubtedly promptly suspended. Writing to Mr. S. Caniung in 182 1 («th Decem- ber), the High t Honourable G. Canning remarks : — As to suspension " That this Ukase is not acted upon, and that instruc- of Ukase, see Lyall tJQ^g jmyg ig^g [,„„ |Jge^ g^jj (,y [),,, iJusgiun Government Convngliam to *° ''"-'''' <^f">zer3 in the Pacific to suspend the execution of Lyall, November its provisions is true." 1828, Appendix. Mr. Canning to Sir C. Bagot, the 20tli January, 182i :— Ft 529, C. 6131. "The (luestious at issue between Great Rritain and Russia arc short and simple. The Russian Ukase contains two objectionable pretensions : first, an extravagant as- sumption of maritime supremacy ; secondly, an miwar- ranted claim of territorial dominion. " As to the first, the disavowal of Russia is, in substance, all that wo coidd desire. Nothing renmins for negotialicin on that head but to clothe that tlisavowal in precise and [570] I 80 satisfnctoiy terms. Wo would much mtlier that those terms shouKl lie suftgestecl by Russia herself than have the air of pretending to dictate them. You will, therefore, request fount Nesselrode to furnish you with hia notion of such a Declaration on this point as may he satisfactory to youi (iMVuiinuent. Tiiaf Declaration may ho made the preamble of llie Convention of Limits." The Convention between the United States and The Treaty (Ru«8i« Russia of the 17th April, 1821, put an end to sJateo!""""* any furtlier ju'etension on the part of llus.sia to For text of Treaty, restrict navigation or llshing in Bering Sea, so April 17, 1824. far as American citizens were concerned ; for by Article I it was agreed that in any part of the Great Ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the lligh Contracting I'owers shall neither be disturbed nor restrained, either in navigation or fishing, saving certain restrictions Avhich are not material to the present issue. Articlrs I and IV of the United States-Russia Treaty arc as follows : — "ARTICLE L "It is agi-ood that in any part of the Great Ocean, coniuiouly called the Pacific Ocean or .South Sea, the respective citizens or subjects of the High Contracting Powers shall be neithei' disturbed nor restrained, either in navigation or in fishing, or iu the power of resorting to the coasts upon points which may not already have been occu- pied for the purpose of trading with the natives, saving always the restrictions and conditions determined 1)y the following Articles. "ARTICLE IV. "It i.=, nevertheless, understood, that during a term of ton ycai's, counting from the signature <•( the present Convitilion, the ships of both Towers, or which belong to their citizens or sulijects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbours, and iieeks upon the coast mentioned in the preceding Article, for the purpose of fishing and trading with the natives of the country." (State Papers, vol. xii, p. S'J.J.) In reference to this Convention of 1R24, United Statei* Wliarton, in his "Digest of the International in'erpretation of Kusso-Americaa Law of the United States of America," section 159, Treaty, Tol. ii, p. 220, cites President Monroe's commu- nication to JLr. Madison on the 2nd August, 1824, to the cITect that "by this Convention the claim of vuiip clnusum is given up ; a very high northern latitiido is establislicd for the boundary with Rus.«ia, and our trade with the Indians 81 placed for ten j'cars on a perfectly free footing, and after that term left open for negotiation. . . . England Avill, of course, have a siniilar stipula- tion in favour of the free navigation of tho Pacific, but Avc sliall Iiavo the credit of iiaving taken the lead in the all'air." It has already been seen that, at the linu^ thn Convention of 1821 vas agreed upon, tlie United States' Government expressly declared (1) that, by entci'iug into this Treaty, thoy did not intend to surrender their privilege under the law of nations ; (2) that there was no ground for alleging an abandonment to Russia of their rights beyond 51° 40' as to the coast. Mr. Forsyth, Secretary of State for the United States, writing to Mr. Dallas on the 15rd Novem- ber, 1837, and referring to the 1st Article of tho Convention of April 1821 between tho United States and Russia, said : — "The Ist Article of tli.it instruiiiciit is o.ily declaratory of a right which the parlies to it iinssessed umler tho law of nations without conventional stipulations, to wit : to navigate and lish in the ocean upon an unoccupied coast, and to resort to such coast for the purpose of trading with the natives. " It is a violation of the right of the citizens of tho United States, immeraorially exercised and secured to them, as '.veil by the law of nations as hy the stipulations of the Ist Article of the Convention of 1821, to fish in Miose seas and to rescirallcl of latitude." Iti 1838, Mr. Dallas, ia a despatch to Count Nesselrodc, interpreted Article I of tho Convcn- tion as being applicable to an\j part of the Pacific Ocean. Mr. Dallas, in tliis despatch of the 5th (17th) March, 1838, to Count Nossclrode, said : — " . . . . The riglit of tlio citizens of tlie United States to navigate tho Pacific Ocean, and their right to trade witli the aboriginal natives of the north-west coast of America, without tl\o jurisdiction of other nations, are rights which constitiiled a part of tlieir indeiiendencc as soon as tlioy declared it. Tliey are riglils founded in tlic law of nations, enjoyed in conunon witli all otlicr independent sovereign- ties, and incapable of being abridged or extinguished except with their om-ii consent. It is unknown to tlie Undersigned Uiat they have voluntarily concediMl tliese rights, or ealicr of tlieni, at any time, tlirough tlie agency of their Government, by Treaty or otlier form of obligation, in favour of any community. • « « * "There is, first, ii mutual and permanent Agreement declaratory of tlieir respective rights, without disturbance or restraint, to navigate and fish in any part of the I'acilic Ocean, and to resort to its coasts ujion points which may not already have been occupied, in order to trade willi the natives. These rights pre-existed in each, and were not fresh liberties resulting from the stipulation. To navi- gate, to fish, and to coast, as described, were rights of equal certainty, springing from the same source and attached to the same quality of nationality. Their exercise, however, was subjected to certain restrictions and conditions, to the effect that the citizens and subjects of tho contracting sovereignties should not resort to points where establish- ments existed without obtaining permission ; that no future establishnients should be formed by one party north, :ior by the other party south, of 54° 40' north latitude ; but that, nevertheless, both might, for a term of ten years, without regard to whether an establishment existed or not, without obtaining permission, without any hindrance Vv'hatever, frequent tho interior seas, gulfs, harbours, and 8S creeks, tn (Ish and Irndc with the natives. Tliis «hort aniilysis leaves, on the (iuusti(in ul issue, lui room lor con- structiou. « i|< >ii >i< " Thi UnJursisneil subniits thai in ni) sf the Russian [lossession.s, as designated in the two ])receding Articles ; and, in like manner, no estabhshment shall be formed by Itussian subjects lieyond the said limits. "VI. It is understood that the subjects of His liritannic Majesty, from wliate\er q\iarter they may arir.e. whether from the ocean or frmn the interior of the continent, shall for ever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers and streams which, in their coiu'se towards the Pacific Ocean, may cross the lino oi di'marcation upon thr line of coast describeil in Article III of the present Convention. "VII. It is also understood that, for the s)mce of ten years from the signature of the present Convention, the vessels of the two I'lr.vcrs, or tho.se btdoiigiiig to their res])ectivi' subjects, shall mutually be at liberty to freipient, without any hind'.ance whatever, all the inland seas, the gulfs, havens, and creeks on the coa.st mentioned in Article III for the purpo.scs of lisliing and of trading with the natives. ' .Mr. Goorge Caimint,' in a dcspatidi (o ^h: For despatch in Stratford Canning, wlicii the laUor wa.s named " • *** P"** Plonipotcntiary to ncgotiati) the Treaty of 1825, under date the 8th Dceemlx-r, 1 821, after giving a smnniary of tin; negotiations iij) lo lliat date, goes on to .>ay : — " It is comparatively indilferent to us whither we ha.sten or postpone all iiuestions respecting Ihe linnts of territorial possession on the continent of America, but the [ireteu- sions of the l!\is.sian Ukase of ISiil to e.xclnsivo dominion over the Pacific could not contiinn; longer nnrepealeecting navigation, &c., the provision for an excessive lisliei v of 2 leagui^s from the coasts of our respective posse.ssioii.'; falls to the ground. "But the omission is, in truth, immaterial. "The law of nations assigns the exclusive .sovereignty of 1 league to each I'ower off its own coasts, without any sppcilied stipulation , and though Sir Charles liagot wa.f Vt ay? and Means in the IIouso of Eepresentutives at "Washington (13 rd May, 1S70);- " <,'. Will) ;ii(i Wi.liains, Haven, unci Co. ? — A. Williams, .TIr,\eii, niv'. Co. are Mr. Ilciny P. Hiiven, of Connt'cticut, ■.vlio died last Sun liiy, unci llicliard 'Jli!i])el. Tlicy .lie wlinli'i-. Th^y took sciils i\n\ wlinlcs, and b.id boon at thai but.uess i i the Pacilic for ," great many years. " Q. Xlioy lii;'l an intcresr in these skins ? — A. Yes, Sir. 44th Cong., Ist They had a vx-jsel in the waters of the Okhnl.gk .Sea, I Sess., Keporl 623. think, .=cal-fisliir.;; in ISiT). While their vessel was at ((onohdii in 18t>i, tlie cajitiiin beeanio rcquainted witli a itussian eaiitain wlio put in tliere in distress with the remainder, or a |,iortif.!i, of the Ahiijka seal-skins taken liy the old liitssian Ctjrapany, and there th:'s captain learneil of this interi'.->t. He left iiis ve:se! at Honolulu, went to Conneeticu;, and conferred with his employers. Then Mr. CJiapel, one of the concern, went out to Hunohdii uiul fitted out this vessel and another one, and sent them to tlie Aliuska I.slands as early as Aiiril 1808." The llrni ol' Messrs, Lyndc? and ITougli, who Appendix, "wore engaged in tiio I'acilie cjast li.sherics, yearly sent vessels to tho Sea of Okhotsk, ilsbing from 10 to 20 miles from sliore. 'fhey became alarmed at a notice apparently excluding them from the Sea of Okhotsk and the Bering Sea. The Secretary of State (.Mr. lu'elinghuysen) inclosed a letter from Messrs. Lynde and Jlougli, together with tlic rcgnla(i.),'s "touching Uw, Pacific coast fisheries," as lie termed fliem, to the American ^Sfinister at St. Petersburgli. Mr. Ilolfman, the American Minister, acknow- ledged the receipt ol tin's desi)at(di, in re ■■ .ice to what he also called " Our racilii '_ .can fisheries." In the replies of ]\I. de (Jiers to 'Sir. ITon^nan, 41 United States' Papers relating to Bering Sen. Fisiicrief, Wash- iugtou, 1887, p 121. lie oxplaiiiod that these regulations apply only to territorial waters, and that tlio maritime waters A\ere, hy the Code, open to the use " of one and all." In 1867 the "Europa," a United States' wlialing vessel, complained that she ■^^■as driven from the Sea of Okliotsk. Mr. Seward imme- diately authorized the American IMinister at St. Petershurgl), Mr. Clay, to make inquiries. The Eussian Government explained that the vessel liad not l)eeu interfered witli, and went on to ol)scrvo tliat tiio right of fisliing was reserved to lluHsians only witliiu the distance of 3 miles from shore. Mr. Seward then expressed himself as satisfied. So, moreover, when the " Eliza " and " Ileu- rietta" were interfered with — tiie "Eliza," in 1881, for iuiuting Avalrus on tlie coast of Kamschatka and trading with tlie natives, the "Ueurietta," in 188(5, for Ashing and trading off East Capo and Bering Strait — ^Ir. Bayard, Secre- tary of State, in writing to Mr. Lotlirop, the American Minister to Eussia, claimed a riglit to redress if it should appear that, " Wliile the seizure was witliiu tlu? y-mile zone, the alleged ofl'enec was committed exterior to that zone and on the high seas." In the ease of the " Ilen- rietta," Mr. Bayard wrote the United States' Minister at St. I'etershurgh as follows ; — " Departmciil in^f north of the 51st degree of north latitude, on the groiind that it pos- sessed llic shores of that sea on both Cdiitinents lioyond that limit, and so had the riijlit to restrict coninieiee to the coast inliahitants, England and tiie United States entered vigorous protests against tlie right claimed by Russia as contrary to tlio principles of international law, and it was formally withdrawn in 182-1." Woolsey, Gtb edition, section 59, p. T-i : — " Ru.ssia finally, at a more recent date, based an ex- clusive claim to the Pacific north of the .")lst dcgre<', upon the ground that this part of the ocean was a passage to shores lying e.Kclusivoly within her jurisdiction ; Ijut this claim was resi.ited by our flovernment, and witlidrawn in the temporary CVinvention of 1R24. .\ Treaty of the same Empire with Great Britain in 182r> contains similar eon- cessions. "The recei.t controversy lietween f Ireat I'ritain and tlie United Stales involving the light ol' British subji'tis to catch seals in Nortli Pacific wat(!rs appears to i.o an attempted revival of these old claims to jurisdicliiju over broad stretches of sea. That an international ;igreonient establishing a rational close season for the fur-seal is wise and necessary no one will lUspute, buClo prevent fon.'iguers from sealing on the high sea or within llio Kanj.seliatkau Sea, which is not even inclosed liy Anverican territory, its west and north-west shores being Russian, is as unwar- ranted as if England should warn fishermen of other nationalities ofl' the Xewfoundland banks. " The right, of all nations lo the use of tlio bigli sea being the same, their right to fish upon tbr high seas or on banks or shoal places in them are cipinl." Hall, 3rd edition, 1S90, p. 117 :— • Xole. — A new claim suhseiiuently sprung up in iho Pacific, hut it was abandoned in a very short t-ran'. Tho Russian (iovernmeni pretended to be So>vroign over tho Pacific north of the ulst decix'o of latitndo, and jiublislied au Uknsc in 1821 pi\>hihiting foreign vessels from ■approaching within fOO Italian miles of tho coasts and islands bordering upon or incltideil in that portion of tho ocean. This preteusiou was resisted by the I'liilcd States and Ureio Britain, and was wholly given up by Conven- tions t>i'i«.;en tl'c fmiiKr I'owers and Russia in l.S2f and 182.1. . . Willi flagrant inconsistouey the United States, since acipiiiing possession i>f Ahiska, have claimed as attendant ujinn it, by virtue n[ oes-ion from Iiiissia, alioiit two-thirds of liie Bering Sea, n ^paee of 1,."(iO miles long and (lOii mill's w :,!.., Mini iii„.i. ;li,. .'r..nnd of this claim 44 liavo seized British vessels engaged in seal-fisliing. In nt least fine ease the masler nnd mnte of a vessel so taken have been fined and impvisoned ; the vessel was seized for fishiiiL,' at a distance or more than 7" miles from land." riiillimorc, Srd edition, vol. i, p. 200 : — "The couteution, advanced fur llie first tiiii'^ liy tlie Unitnil States in thij controversy, alter nn acqniescence of more than sixty-five years in tlie world's construction of tlie Treaties of 1824 and 182"), that tlie 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 Bering Sea, because the words •Bering 8ea' 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 Bering Soa at the time of the Treaties with Russia of 1821 and 1825 was included in the Pacific Ocean, the Goverinncnt of the United States has no well-grounded complaint against her.'" (Ex. Doc, Xo. 144, H. R., 51.st Congress, 2nd Session, p. 27.) Question 3 : — TJ'rti' the body of wulcr now knnm) as the Bering Sea included in the plirasc " Pacific Ocean," as nsed in the Trcahj of 1«25 hetween Great Rritain and Russia ; and ivhat rights, if any, in the Bering Sea, were field nnd exclusively exercised by Russia after said Treaty .^ The last portion of this question is covered hy Points 1 and 2, and lias been alrcadj considered. It lias Ijeen claimed on the part of (ho U'"'' ' States that, in the negotiations of 1824-23, Berin_;^ Sea was understood liy the three Signatory I890 Powers concerned to he "a sep-.irate body of water, and was not included in llic phrase 'Pacific Occnn ;' " .'■nd (hat h}- long nrcseiJption the words " nortli-we.st coast " mean the coast of the Pacific Ocean between (50^ north latitude and sr 40' only. It has bi.'en scmi that the whole controversy, which was ended by the Treaty, arose out of the Ukase. That document claimed not only the territorial right of sove»cig;nty from Bering Straits to 51° north latitude, but the right to exclude foreign vessels from .ipproaehing the coasts and islands witliin 100 Italian miles. In absence of a sjiecificd exception, tlie with- drawal should be held commensurate with the prelensiou. Mr. Blaine to Sir -n Pauncefote, cember, 4} Mr. Adams to Mr. Rush, July 22 182S. American State Pajicrs, Foreign Kolationa, vol. v, p. 436. It was protested against in into, on (ho !.;i'iuiii(l that 1h(^ coast was alniosl cutifoly unnccupiod, and tliat maritimo jurisdiction, even wiicrc it was occupied, shoidd not extend beyond 3 miles, Tiio coast of Bering; Sea was, moreover, less oe(!upied than the coast outside. Mr. Adam.s, in 1S2.'5, dealt with tin' Itussian claim as otu; of exclusive territorial right on tho nortli-west eo;ist of America, extending, he said, from the "northern extremity of the eontiiKMit." Articles in tho "North American llovicw"(vol. xv. Article IB), and "Quarterly Review" (1821-22, vol. xxvi, p. 3il], published at the lime of the negotiations of lH2i-25, so treat the >vords " north-west coast." Mr. Adams in his despatch of tiie 22nd .luly, 1823, referred to Emperor Paul's Ukase as pretending to grant to tlie American Company the " exclusive possession of the; north-west coast of America, which belonged to llussia, from the outh degree of north latitude to licrimj Strait." The Ukase was headed " llules established for the Limits of Xavigatiim and Order of Con\muni- eation along the coast of tho Eastern Siberia, tho north-west-coast of America, and the Aleutian, Kurile, and other Islands." It oiiviously included the coast of Bering Sea in f'le term "north-west coast." Baron Nicolay to Lord Londonderry, 31st October (12th November), 1821, f^ays:— " T.o iiouvo.iu Rr,'!ijiucul ii'iiil'.Tilit pnint aux li;Uiuiciils c'tviiiigers 111 navigiiticm dans le.s mt-rs qui bni.L'neiit Ics jios.'iossiuns Kiisscs .sur Ics cotes nord-ouest do rAiiu'-riinio et iiord-ou\sl de I'Asio." • » * • " Car, iruii autri! ci'iti' eii cousidi rant los jmsscssioiH lius.scs mii .s'i'tondout, taut sur la ci'ite iiord-oiu'st dc rAiiR'i'i(|iic, dc'iniis lo I'utroit do Ueriii^ jusi|u'au JV do latitiido septentrioiiale, qui; .sur la cotu npposci; du I'^Vsio ut los ilos ailja'-'ontos, dopuis lo momo dotroit ju.s.iu'au 45°," &c. » » • * " (.'ar, s'il ost di'inohtro quo lo Clouvoruoinent Inqiorial oul ou a la liLjuour la faculto de former entioroiuout aux t'ti'.'iM.i;ors cello parlio do t'Orain I'licijii/iir quo bnrdont iios possessions on Aiin'iiquo ot on Asia, a plus forto raisou lo droit on vortu auqucl il viont d'adcjplor iino uicsuro beau- couii nioins fji'iu'ralcnienl restrictive doit mo pas rtre n'voquo en doute." " 1.03 ollioiors ooiumandant los lialimonLs do ijuorru Russes c|ui .soul iloslinos ii vidlor dans I'Oooan Paciliquo au luaintion dos ilLspositions susnionliounoos, ont loou [570] N IMAGE EVALUATION TEST TARGET (MT-3) 1.0 l.i 1.25 |50 "■^~ lilies •^ 1^ 1 2.2 it ii£ lllllio 1-4 il.6 V] <^ /a 7 vl //a '^i y Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 :>. s> ^ .^^ 46 I'diilro (Ic cdiiimciicfv a Ics niLaiiv in vigiiciii- fiivors ceux lies imviivs I'tmiigors," &.'. Ill (liis note " iiortli-west coast of America" is nicntiDiuMl three times, and in cacli ease the coast ol' Hcrinj)f Sea is included in the teiun. Pacilic Ocean appears twice, and iul)otli inchidcs the Bering Sea. Again M. de Poletica, writing to Mr. -Vdams on flic 28th Pebniary, 18:22 :— " Till! liist (liscovfi'ios III' Uiii IJussians on llw r.dvtli-we.st onniimiit of Amriica go Iwck to tliu titiio of ilif Knipiiror JVtii T. They biloni,' to tlie altonipt, niaiic townrils the mil of tliu it'ign of this (,'rcnt Moiiarcli, to lini) a jiassago from //(>! ic'i wd into the Piii:ific (Man." « * • • " Wlion, in 1709, tin; Knijioror I'aul 1 gvautoil to thu lircsent Aniovican Company itsfii-sl Charter, he !;ave it the I'xchisive ])oslniit,t, end nn thr oilier Ihc 51,rf ihififi of north latitude, Ims," &c. "I ought, in tlie last place, to request you to consider, Sir, that the llussinn possesions in llo I'ueijie Oeean cxloid on the north-west coast of Anicrii'a from I'ering Straits to the 51st ilegree of north liitilude, ami on the opposite side of Asia and llie islaiuls adjacent from the same stniit to the 4."itli degree. ' Throughout this note the i)hrase " north-west coast " includes the coast of J5cring Sea, and the last passage shows unmistakably that the Russians at that time regarded the Pacilic Ocean ns ex- tending to liering Straits. That Russia regarded Bering Sea as included App^ndii. in tlie phrase " Pacific Ocean " is further con- clusively shown by the citation from Tikhmonieirs "History" as to the proceedings with regard to American wimjers in 1812 and in ]H,');j. The fact that the whole territorial and mari- time claim of the Ukase was in question, and ■was settled by the Treaties of 1821 and 1825, 47 Americin State Pa pen, vol. t, p. 459. also appears from the Mfniorial laid h\ Mr. Middloton Iwfore tlio Rus.sian GovcrnmL-nt on the 17th December, 1823 :— " With all till! n:s[H!et which we owe to the cleclarod inlciitiiiii, niid to llitMlt'turminatioii iiulicittcd by the L'knsc, it in iiuccssiuy to examine the two point.-t of fact. (1.) 1/ the rodiilri/ to Ihr mi'/h mid rani of Ilfriruj Strait, iis/ar as flit .'"il.i^ ili'jnr (if iioii/i liitiliiile, iii/< niiil strirttij iicciipiid. {'!.) If ihiTe has heoii latterly a real occupation of this vn.«t toiiitory .... The conclusion which must necessarily result from these facts Jois not appe remarkeil in return, tliat the circumstances under wliich this additional security is rei|uireil will be new also. I!y the territorial demarcation agreed to in this ' I'viijet,' Kussia will Ijecome |io-sessed la acknowledged sovereignty of \xA\\ sides of Ilcring Straits. "The power which could think of making the Pacific a marc i-lnKsiiiii may not unnaturally lie supjiosed capable of a disposition to ajipiy the .same character to a strait com- prehended between two shores of wliich it Ix-conies the undisputed iiwiier. Hut tin nhnllinii npif llirimi Strnitu, or till piiirir til shut lliciii Uj) III ri lifter, iroillH 'ontiiilii or ronttructircly, from a ata in which Ihi tkill ami scientt of 48 our Mamen luts liteii and U still emiiloyed in tnUrprittt inlcri!iliitij,nol to this country alone, hut to the vhole civilized worlil. " Till' ])rr)toi;tion* j,'ivoii liy tlio Convention u> Jio Anioiiciin coasts jf fiicli I'owor moy (if it is tliuuglit nfCfssarv) In- oxtcudol in tornis to tlie consta of tho liusr^ian Asialii' territory ; Iml in soiuf way or otlior, if mil in till' form now jircsentt'd, llio froo navigation of Uurinfj Straits, and of llic seat* iK'yund thorn, must be Bccnred to us." It would Imve been of little use seetirinj; the s«o Appendli, right to navi;jalc through JJeriiig Straits unless the right to navigate the sea leading to it was secuivd, which would not have been the case if the L'kaac had remained in full force over Bering Sea. The frequent i-elcreuces to Unring Straits and the seas beyond them show that there was no doubt in tho minds of the British statesmen that, in seeuring an acknowledgment of freedom of navigation and iisliing throughout the Paeifie, they had secured it right up to Bering Straits. That the phrase " Pacilic Ocean " in the Treaty included B(;ring Sea is shown by the reply of the Russian Government to Governor Etliolin in 1812, when he wished to keep American whalers out of Bering Sea : — "Tho ilaini to a mun vlansmit, if wi' wishi'd to advunco " TikhmeniefT.'' sudi a claim in ii;.si>ui;l to the imrllicni jiarl of the Pacific OcfUH, conld not he tlu'ori'tiially jiistitied. I'nder Article I of the Convention of 18li4, Utunn Jinssia and the United States, which is still in force. American ciliicHK hare a right /« JiiJi ill lilt pt'cts iif till Pricific Occiin. lint under Article IV of the same (.'ouvcnlion, tin- ten years' period mcutiuned in that Aiticle having exjiired, we have jjowor to forhid Aniericiin vessels to visit inland sens, K'dfs, harliours, and hays for th.- purjKjses of lishin^; and trndinj; with the natives. That ii> the limit of our right.s, and we have no jiower to prevent Amcriiaii ships from Inkinjj whnl<>s in the open sea." See also reply to Oovernor-Genoral of Eastern Siberia, 181C :— " We have no rifjlit to i.'xehide foreign ships from that part of the yreal nccnn which separates the eoatern shore of Siberia from the north-western shore of America," &c. ; and the instructions which were finally issued to the Ttiissian cruizcrs on the 9th December, 1863. • (i.».) Uy lie, I'XtciihiDii of Icrrltorin! jurisdii.tiun to two leagues, ati orif^iiiiilly iirufioscil in ilie otirie of llu- nogotiationt bctveen tJreat Dritr.in and Ruiiia. 49 Writing in 1882 the 8th (20th) :May, M. do Giors said : — "ItcforriiiK lo tliu exclitmgt of communicntionf) which haB taken iiliu'c Lclwcfii us on tlie suliject of a Notico publislifd liy imr Consul at Yokoliariia relatiiif; to finliing, liuntinj,', and to trailo in the Jliiiiiuk '.caUn of the Pacific, M\i\ in reply to tin! noti! which you aililrussuil to nic, dated tlu) 15tli (JTth) Munli, I am now in a iwsition to give you tin- following; information : — " A Xotii-u of tho tcnoUi of that annexed to your notu of tlio loth Mureh waa, in fact, iiulilished hy our (-'onsul at Yokoiiama, and our Consul-tieuend at San Francisco is also aiithorized to puhlish it. " This measuru refers oidy to prohibited industries and to the tmdi! in contraliaud ; tlu; restrictions which it esUblishcd extend ulrictly to the lerrUorial waters of Russia only. It was rei{uircd by the numerous abuses proved iu late yjars, and wliicli fell with all their weight on the population of our sca-shorc and of our islands, whoso means of support is by (ishinj; and hunting'. The.fe abuses inflicted also a marked injury on the interests of tho Company to vhieli the Imperial Government had emuedtd the monojioly o/Jishiny niul huntiny {exportation), in islands called the ' Commodore ' and the ' >Seals.' "Ueyond this now Herniation, of which the essential point is the ' been consistently sup- plied with a distinctive name on all Maps, it would, however, by no means necessarily follow that it was intended to maintain that it was not a part of the Pacific Ocean. An ocean may, and in all cases actually does, inchulc numerous seas and gulfs as subordinate divisions. The mere fact that tho name of the North Pacific Ocean, or equivalent name in use at different periods, is not usually engraved [tartly upon the area of Bering 8ea iu the Maps, affords no solid argu- ment for such separation. The name of this ocean is generally found to be engraved, in large characters, upon the widest and most open tract somewhere to the south of the 50th parallel, and [570] P B4 between that latitude and the equator. It is almost a physical necessity that it should he so placed, in order that it may have due prominence. A lew cases are nevertheless found, in Avhich, owing to the shape or extent of particular Maps, portions of the name applied to the Pacific Ocean encroach on the areas of Bering Sea and the Sea of Okhotsk. Fortunately, however, from a geographical point of view, we are not required to rely, for the settlement of such matters, on JIaps alone, as to do so would leave many similar points in douht in all parts of the globe. In tlic particular inst ice of the Pacific or North Pacific and Ucring Sea it has been found easy to show, by reference to the strict verbal definitions of geographers in various standard works of i-efercnco and in oflQcial publications, that Bering Sea was and is understood to form an integral part of the Pacific Ocean. The following ai'c definitions foi.nd in the gazettcei's, dictionaries, and geographers of the world, both of the present and old dates, touching the Pacific Ocean, Bering Sea, Kamts- chatka, &c. : — " KoHh Pacijic Ocean. — Stretches iiortliwanl lluougb 132 degrees of latitude to 15eliring Straits, which separate it from tlie Arctic Ocean." " Boreal or North, extending from Uehring Strait or the Arctic Circle t(i the Tropic of Cancer. ... In tlic north the I'acilic gradually contracts in width ; the continents of America and A.siu stretching out and approximating, so a.s to leave the (Comparatively Uiinow channel of Behring Strait as the only communication between the Pacific and Arctic Oceana. Between the strait on the north, the Aleutian Islands on the .south, and the reumikalile peninsulas of Alaska on the east and KuniLliatka im the west, one nf the lai-gest and liest defined brauthes of the I'acilic is the Sea of Behring." " Extend.^ from the Arctic to the Anlnrcjtic (Circle, through 127 degrees of latitude." "... It narrows e3])ecially towards the north, where It communicates with the Arctic Ocean by Behring Strait." "Extends from the Arctic to the iVntarctic Circle, through 120 degi'ces of latitude." ". . . . It narrows especially towards tlie nortii, whole it communicates with the Arctic Ocean by Behring Strait." "Behring Island, the most westerly of the Aleutian group in tlte North Pacilie, in yi' north latitude, McCnUoch'a "Geographical Diotiomry," yu\. IH, Biullili work. BlacUe'a "Imperial Gautteer." vol. ii, Gngllah work. Harp«r's "Unirersal OazcHoer," American work. Alio .'ohnaton'B " Diclioaary of Geography," Engllah woA. John«toii'« " General Gazetteer." English work. " Encjclopeion> " Dicilonarj of Geography." "Imperial Gautteer," vol.1, llarpir'a " Univeraal Oaiet- tocr;" aod Murray's " Giuctlccr of the World." Scotch work. GItc« same description. 11)0° east longitude. It is rocky and desolate, and is unly remurkablc as being the jdace where the navigator. 6.0 ■ ■ Worc«»t«r'« Dictionary." Mulliani, J:er," 1705. ltrook«8, R.. " Qtncnl OszetUer," 1802. ]iohrin"g, wns WTockt'd ami ilicd in 1741. Poinilation, 2,500." " Iteliring .Strait, tliu iiiinow sea between t'le noilli-i'ast part of Asia and tlic imith-west [lait nf Xoitli Anieiica, connecting tlui Nortli I'acilio with the Arctic Ocean." "IJehiing .Strait, whicli connects the racilii; with thu Arctic. . . ." " Ijchring Island i.s situated in the North Pacific. . . ." " Kamchatka, a peninsul.i i.rojectinj; from the north- ca.stern part of Asia into llie Paiiiio Ocean, i.i., into IV'hrinj; Sea. ' EAiiil. — Tlie racific Ocean, formerly called tlio South Sea, and sometimes .still so named hy the Frencli and (lerman.s (la Mer .Sud ; Suds<'e, Aii.itralocean), witli wliom, however, la Mer (I'Oa'an) raciliipie, and Grosser Ocean, or Stilles Meer, are the more usual designations, is luniuded on the north by liehring Strait and the coasts of Itiissia and Alaska ; on the east by the west coasts of North and South America; on the south the imaginary line of the Antarctic Circle ilivides it from the Antarctic Ocean, while its westerly boundary is the east coast of -Australia, the Mahiy Archipelago .separating it from the Indian Ocean and the eastern coasts of the Chinese Knipire. Some modern geographers place the southern limit of the Atlantic, racific, and Indian Oceans at the 40th parallel, and name the body of water which surrounds the earth between that latitude and the Antarctic Circle the Southern Ocean. "Although differing from tlie Atlantic in its general form, being more nearly land-locked to the north, the Pacilic Ocean resembles it, in Ipcing open to the south, forming, in fact, a great projection northwards of that vast .Southern Ocean of which the Atlantic is another arm. " The Pacilic is the largest expanse of water in the world, covering more llian a (piartcr (jf its sn])erlicies, and comprising; fully one-half of its water surface. " It extends through U52 ilegrees of latitude— in other words, it measures 9,000 miles fnjm north to south. From ea.st to west its breadth varies from about 40 miles at lieliring Stmit, where Asia and America come within si;;ht of each other, to 8,500 miles from California anil China, on tlii^ Tropic of Cancer, and to more than 10,000 miles on the Kipiator, between Quito and the Moluccas, where the ocean is the widest. The area has been vaiiously estimatei3 zur Ikrings- stras.se aufwart.s stets heftige Sturnic. [Reining s Strait is nt the northern exlnniity of TJehring's Sea.] All island in the North I'aeifio 1822. "Eilinliurgh Gazrtteer," tdiUoB 1822, rol. i, p. 492. "Qi'ticral CiaztUcor," London, 1828. " New I.oDdon Univornal Oi.zcllccr." 1828. " Dktionuairc G6ogrophlqiic PnlTcrMl," 1»2H. Hctti, Dr. J. C, " GuographiiuhM BtatiitlKhea Rand- wiirlorbiich," PMtb, 1622. HnlborBtadt, 1»2!>. " Penny National Library Geograpby and OaietlMr," 1830. Arrowjmitb, " Grammar of Modern Oeograpby," 1832. " Precia do la Gt'ogrupbie UairorBcIIc." |iar Maltc*Brun, vol. ii, p. 181, edition ;88S. Ditto, vol. vlli, p. t. Langlois. " Dictlonnalrc dc Oeographie," 1838. " Penny CyelopKdla," 1840. "Dictionnairc Univerwl d'lliitoire ct de Geograpbio," par M. N. Boaillet, I'arii, 18<2. " Dietionnaire GCoirrapbiqQc ct Statiatlqus," par Adrian Ouibcrt, Paris, 18IiO. "Tbc New American Cyclopicdia." edited by Oaorg* Ripley and Cbarica A. Dana, New York, 1881. " Grand Dictionnairc do (iuographic Universello," par M. BcHcborolle, atnv, 4 vole., 1K6B. Imperial Gazetteer. 1886. Fullarton'p " Gazetteer of tbe World," 18J6. Cydopwdia of Geograpby," by Cbas. Knight, 1866. " liehring's Island, Ocean, '• I"' 'Oring's Ishind, In the North raeific Ocean, " Heeling's Island, In the racitic, " Mer raeiliiiue. II s'etend du nord an sud depuis Ceivlu Tolaire Aiotinue, e'est-a-dire, dcpiiis le Detroit dc McCuUoch'a " Geogropbical Dictionary," edited by F. Beliiiiig, iiui !e fait coiumuninuer i\ I'Ocean Glacial "."'.,' . ,, , , ., .. „, , "' ' * "Grand Diotlonnaira I'nWcrMl," par M. Piarre Larouiae, AustriiL Paris, 1867. "Stilles Jleer. Voni 30 sudlicher Itreite his zuin r> " Encydopiodia BriUnnica," 1875, St, MarUn. , ,|, , 1, ,, ^■ , 11 Ti 1 1 1 . 1 "NouTean DIctionnairo dc Gcognipbio Univeraelle," Paris, nordlieher lireite vcnlient es dureh seme Ileiterkeil und jg^J Stille den nanieii des StiUcn Meer.s; von da an his ziir Lippincott's " Oaietteer of ibe World," Pblladolphia, 1880. Beiingsstia,s»e ist os lieftigen Stiirnien unterwofen. Hryco and Jobnsion, " Cyclopedia of Oeograpby," London T. . , r , , , , ^r , .. .„ ,. and Glaagow, 1880. " ncenngs Island. In the North I'ncihc Oeeau. Brookbans' ■■ Conversations Lexicon," Leipzig, 1882. " liheriug's Strait connects the Frozen Ocean with the Riticre "Geosrapbiecb Sla'.-atiach Lexicon," Leipiig, 1888. Pacific. " Pocket EnoyclopiBdia," Sampson Low, 1888. " The Anadir Hows into the I'acilic Ocean. Chambera' •• EnoycloiiKdia," 1888. „„„ • ■ , ir r » • .• Tl • »i /-. IP r Blackio'8 "Modem Cyclopicdia," 1880 edition. "llie i)iiiKi])al gulfs of Asiatic IJussia are: the Gulf of Anadir, near liheriug's .Strait ; tlie Sea of I'cnjina, and the Ciulf cf Okhotsk, hetwcen Kanitchatka and the mainland of Eussiii — all three in the Pacific Ocean. " L'Ocean raciliqiic Uori^al s'etend depuLs le Detroit de Boliving jusqu'au Irupinue de Cancer. " Le IJeti-oit de Beliring. A eoinmeiicer jiar ce detroit, le Grand Ocean (ou Ocean I'acilique) forme la liniite orientale de rA.sie. " Hehring (detroit celebre), II joint I'Ocean Glacial Arctique an Grand Ocean. "Tlio I'acilic Ocean. It,s boundary-line is pretty well determined liy the adjacent continents, which approach one another towards the north, and at Behring's Strait which sejiamtes them, are only about ^0 miles apart. This strait may be considered as closing the Pacilic on the north, " liehring (Detroit de), a rextremiti' nord-est de I'Asie, '' B(5parc Continent de rAme'riciue et I'Oceau Glacial Arctiiiue de rOci'an Pacitiqiie, " Beliring (Mer de) iiartio de I'Oceau I'aciiique, " Beliring (Dt'troit de). Canal de rocean . . , , nni.ssant Jcs eaux de I'Oceau I'acifique i\ celles de I'Ocif'an Arctique. 67 HaDd- "I'licilic Oi'uaii. Botwecii loiigitiulc 70° west niul 110° cost, tliut is, fur II simce of over IKU^, it covers tliu greater pnrt of llio eartli's surfucu, from licliring Strnits to the I'oliir tJircle, that sepnlatm it from tlie Antarctic Ocean. '• lieiiriiii,' (Detroit ile). (,'aual ilii (iraud (Jceaii iinissnntl lea caux de I'Ucijan racili(iiie a cclles de rOciiiii Glacial Arcti(iue. " iJchriiig Soa, sometimes called the Sett of Kamtchatka, is that iiortion of the North I'acilic Ocean lying l«t\veen the Aleutian Islunds and IJeliriiig's Strait. "Uelning'H Island. An island in the Ncrth I'acifio Ocean. " I'ehring's Strait, which connects the I'acific wilh t' j Arctic Ocean, is formed hy the approach of the continents of America and Asia. "I'acilic Ocean. Its extreme .southern limit is the AntaTctic Circle, from which it stretches ucjrlhward tliruiigh 132° of latitude to Behriiig's Strait, which separates it IVom the Arctic Ocean. " Behring (Detroit de). Canal ou bms de mer unissant les caux de I'OoSan Glacial Arctiquo & cslles de TOa'au Pacifique. " Behruig's Strait. The uarrovp sea between the north- east part of Asia and the north-west part of North America, couuecting the North I'acilic with the Arctic Ocean, " Behring Sen, or Sea of Kamchatka, is that part of the North I'acitic Ocean between the Aleutian Islands in latitude 55° north and Behring Strait in latitude CG° north, by which latter it communicates with the Arctic Ocean. "Behring, or Bhering. A strait, sea, island, and bay, ITorth I'acihc Ocean. "Bering's Meer. Der nordostllchste TeU dcs Stillen Ocean's. " Beringsstrasse. Meerenge das nordostllchste Eismeer mit dem Stillen Ocean verbindend. " Beliring's Sea. North-east part of the Pacific between Asia and America. "Behring Strait connects the Pacific with the Arctic Ocean. " Behring Sea. A part of the Pacific Ocean, commonly known as the Sea of Kamchatka. " Behring's Strait, connecting the North Pacific with the Arctic Oceaa " Behring's Sea, sometimes called the Sea of Kamchatka, is that portion of the North Pacific Ocean lying lietween the Aleutian Islands and Behring's Strait," The United States' Government attached importance to the very early employment of some distinctive name for Bering Sea, and refcrcnco has been made to several of the older Maps. It is, liowever, submitted that even in restricting the argument to Maps, the important question is tliat relating to the Maps and Charts of the years immediately antecedent to 1824 and 1825, in [570] Q 68 which the Conventions denlinq-.vith tli < Ukaso of 1821 were concludcij. To such Maps tho negotiutors donhtlcHs referred, and it will i)e of special importance if any certainty can h(> arrived at ns to the particular ilnps whicli were in thoir bands. Reverting, however, to th(! earlier Jfaps specially instanced hy the United Stat(?8' Govern- ment, it will 1)0 found that even these do not hear out the assertions hased hy him upon them. A Alap showing Cook's voyages, and puhlislied in 178 1, is first referretl to as showing the " .SVn of Kamschatlta " in " ahsohito contradistinction to tho Great ifouth Sea or Pacilic Ocean." This is douhtless the Map included in the list attached to tho despatch, and said to have heen puhlishcd hy William Faden, a ilap v.hieh has so far eluded our search. Turning, however, to the IVfaps in tho olTieially published account of Cook's third voyage of tho same date, hoth those in the quarto and octavo editions, and those also in French and (ierman translations of later date, it is found that Bering Sea appears ahsolutely and markedly without any distinctive name. The Map puhlishcd in the " London Jfagazine " in 17G4, which is next referred to, is, as already explained, a reduction of Sliiller's Map, which is also particularly cited. The circumstances under Avhich the nam i Sea of Kamschatka and Sea of Anadir apjjoar on these Jilaps 1 ive been noted on a previous page, and are sucl as to show that these names, nor either one ( ' them, can bo justly referred to as applying to ; area of Bering Sea as now known. The list ot 05 Maps referred to in Mr. Blaine's despatch of le l7th December, 1890, tliongh apparently rmidablc from its very length, is found to e- jnd from the year 1743 to the year 1829, both inclusive, and consists solely of those Maps upon wliieh a special designation of some kind is supposed to be found for Bering Sea. Aa already stated, this proves nothing with regard to the relation by Bering Sea to tho Pacific as a whole, while it is further observable that, in compiling the list, many Maps of very doubtful or imperfect characters have been heterogenoously brought together. Thus, in respect to Cook's explorations, not a single obscure Map is cited, while the official and original Maps arc ignored, as has already been explained. 00 North-weit eout. Agftiu, from Thompson's lurgo Atlna of dato 1817 but a singlo Map is cited, and tlll!^ m itliout such reference ns can cnalilo it to be idoiitillcd; while, as a matter of fact, in this Atlas liering Sea appears upon those Maps as the Sea of Knmlxchatkii. On lliroo otiier Maps ibis namo is evidently confined to the waters immediately adjacent to tlio peninsula of the same name, and on two the greater part of IJering Sea is included without any names. Under date 18 IS), a Map by Barney is quoted as showing the name .SVrt of Kamtschatka applied to Bering Sea, but the only Map by that author and of that date Avliieh wo have been able to find is a " Chart of the north coast uf Asia and of the sea to the north of Bering Strait," in which the greater part of Bering Sea is included, but without namo, wliile the northern portion of the Sea of Okhotsk, also included, is prominently named. Still, again, under 1825, a Map in Buttar's Atlas (doubtless No. IC) is quoted as showing the name Sea of Kamtschatka, while the first Map in that Atlas upon which Bering Sea appears without name, though the Sea of Ochotsk and other similar seas are named, is ignored. This particidar criticism applies, however, to a small portion of the entire list, since the whole list was not examined. The term north-west coast, or, more fully, north- west coast of North America, is a descriptive ono of a peculiar character. Looking at the Jfap, it will bo seen that the coast, which has not infrequently been so named, is in reality the westerly or south-westerly, facing coast of North America, which forms the eastern and north-eastern coast-line of the North Pacific. Tills term, however, appears in the title of some very early Maps, such as that by Miiller, dated 1761, which is entitled, " A Map of the Discoveries made by the Russians on the North- west Coast of America;" that accompanying the original edition of Cook's third voyage, dated 178d, and entitled, "Chart of the North-west Coast of America [and the North-east Coast of Asia;" and that in Vancouver's voyage (1708), named "A Chart showing part of the Coast of North-west America." The last-named Map, however, affords a clue to the meaning of the term, and shows that, in these instances, we should read in full " north- , western part of the North American continent," GO and, conversely, "north-eastern part of the continent of Asia." Tliis is particularly obvious, when it is remembered that, especially in the case of the first of the Maps above referred to, the explomtions set down were conducted from Russia, l)y way of Okotsk, in the sea of the same name, and that, consequently, if directions from the point of departure had been considered, M'hat is named the north-cast coast of Asia would have in reality been the north-west coast of that continent. It is verj' probable that a special and somewhat different meaning came to bo connected with the north-ircst coast of America at a later date, when it was regarded and spoken of by inhabitants of the United States, situated in a south-easterly bearing from all this part of the North American coast ; but, in admitting this, it is also evident that the north-xuest coast, as thus secondarily applied, must have included the whole coast lying north-westerly from the point of observation or trending from any giveii point of departure on the west coast of the continent in a general north-westerly direction. It has, however, been maintained that at some still later date the term north-irest coast came to bear a quite definite signification as referring to a certain particular i^art of the western coast of North America. In this case such usage may be expected to be found recorded on the Maps at some particular cpocli, and thereafter to have been continued with precision. The term is not found as a geographical one defined verbally, and thus it is to JIaps alone that we may turn witli the hope of finding it with this particular meaning. As the result of the examination of a largo series of Maps relating particularly to the dates near to that of the Ukase of 1821 and the Conventions of 1824 and 1825, it is, however, disappointing to observe that this term is seldom met with, and ihcn only in a very lax and general sense. Mailer's Map of 1701, republished by Jeffrey's in London, baa already been referred to. The description " north-west coast of America " here occurs in the title only, while the coast delineated extends to what is now known as Eering Strait. A Map published in the " London Magazine" in 1704 also refers to "north-west coast of America" in its title, but as it is 61 merely a reduced copy of Muller's Map, docs not thro'7 any further light on the subject. Coming down to the date of Cook's third voyage in 178i, we again find a corresponding title, viz., " Chart of the North-west Coast of America and North-east Coast of Asia." This Chart is drawn so as to include the coast from the vicinity of the point wlu^re it was first reached by Cook, about latitude 44°, to Say Cape, to the north of Bering Strait, and in the Arctic Ocean. The same remarks apply to the corre- sponding Map in the French edition of Cook's Voyage, dated 17S5. In 1798, Vancouver's Voyage contains "A Chart showing part of the coast of North-west Ameri^-'a," and this includes the coast-line con- tinuously from latitude 30° to a poiijt a little west of Kadiak Island. A few years later, in 1802, wc find Charts 1 to 3 published in connection with the voyage of the " Sutil" and "Mexicaua," in Madrid, entitled "La costa nord-oucst de America." These continuously include from about latitude 17° northward and westward to TJualaska Island in the Aleutian chain. In Rossi's Atlas, published in ililan in 1820, on Map C, the name costa nord-ouest actually appears engraved on the face of the Map, and runs from a point a little to the west of the head of Cook's inlet on the continental land southward to about the 50th parallel, while on another Map in the same Atlas (No. 39) the words parte della costa nord-ouest dell'Ainerica are shown extending along the land from the longitude of Kadiak southward to latitude 39°, or much further than in the first instance, notwithstanding the restric- tion of the title. In " Roqucfouil's Voyages," published in Paris in 1823, a ^[ap occurs, entitled " Carte de la C6tc Nord-ouest d'Amerique," and this includes an extent of coast from latitude 31° 30' northward and westward to the mainland coast west of Kadiak Island. Some years later, in 1BJ4, on the elaborate Map accompanying M. Duilot de ilorpas' work, published in Paris in ISlt, " Cote Nord-ouest de I'Am^rique," is engraved running to seaward of tiiat part of the coast whicli extends from latitude 00° to the entrance of the Strait of Fuca. The above are all of the Maps included in the list, elsewhere given, upon or in connection with which the term north-west coast or north-west [570] E 62 coast of America, or its equivalents, has been found. None of the works published in the United States at about the dates specially referred to have been found to include it. Mr. Blaine, in liia despatch of the 17th December, 1890, specially refers to a Map "published by the Geographic Institute at ■Weimer" in 1803, as showing the Nord West Kuste, which is said to include " the coast from the Columbia River (49°) to Cape Elizabeth (60°)." It has so far been impossible to consult this Map, but the description given of it may doubtless be assumed as correct. It ^vill be noted that the usage here found does not precisely agree with that on any of the above-cited Maps, though not nearly to that of Duflot de Morpas. In Barney's " Chronological History of North- eastern Voyages of Discovery," Loudon, 1819, chaiitcr 19, is entitled " Captain Cook on the North-west Coast of America," This title is continued as a side-note to the pages following as far as to p. 229, or from the point at which Cook first sighted the laud in latitude 44.-J-° to TJnalaska. After tliis point " west coast " is substituted for "north-west coast," showing very clearly where the author, who was a member of Cook's expedition, supposed the north-west coast to end. Greenhow's works (well known in connection with the discussion of the " Oregon question ") afford a detailed and conclusive means of ascer- taining the views officially held by the United States' Government on the meaning of Pacific Ocean, Bering Sea, north-west coast, and the extent of abandonment of claims made by Russia in Ukase of 1821, by the Convention of 1824. A Memoir was prepared on the official request of L. F. Linn, Chairman of Select Committee on the territory of Oregon, by order of John Forsyth, Secretary of State. It includes a Map entitled "The North-west Coast of North America and adjacent Territories," which extends from below Acapulco in Mexico to above the Kuskogunu River mouth in Bering Sea, and embraces also the greater part of the Aleutian chain. This " History " was officially presented to the Government of Great Britain by the Govern- ment of the United States in July 1845, in connection with the Oregon discussion and in pursuance of an Act of Congress, p. 141. Robert Greenliow, Translator and Librarian to the United States' Department of State. "Memoir Illetorictl and Politic.'. o( the nortli-fresi cout of Nortli Amerira and ttio n'!jaccnt territories, itluat.'ated by a Map and a geographical view of thoee eountriea , by Itobort Grocnhow, Translator and Ltbmriin to tlie DepirU ment of State," Senate, 2()lli Cong., let Beuion (174), 1810. The same Memoir, leparotely printed, appirentl7 in identieil form, and with the suno Map,aame pagination, Wiley and Putnam, New York, 1840. "Tlic Geography of Oregon and California and the other territories on the north-west coast of Nortli America." New York, 1845. " The History of Oregon and California and the other territories on the north-west coast of North America, hy Robert Orecuhon, Translator and Libi«rian to the Depart- ment of State of the United States ; author of a Memoir Historical and Political, on the north-weit eoaat uf North America, nubliahed in 1840 by direction of the Senate of the Cnited States." New York, 1841!. Vhis it a second edition, and in the preface it ta eiplained that its issue was rendered necessary to supply 1,600 copies of the work which had been ordered for toe Oontral Ooremment. The same work. First edition, London, 1844. Both editiona contain Maps, which appear to Im idestleal, but different nrom the Maps accompanying works (a) and (»), though tneludiog nearl? th« mme UsTti wiU> Uttni. 6S The following is the correspondence accom- panying thie presentation : — " Afr. Buchanan to Mr. Pakcnham. " Department of &tatc, Washington, "Sir, ''July 12. lUo. "In pursuance of nti Act of Congress approved on tlio 20th Februniy, 1845, 1 Imvo the honour to tiansniit to you lierewith, for presentation to the C'i'ivcrnmcnt of Great Britain, one copy of the 'Histoiy of Oregon. California, and the other tenitories on the North-west Coast of America,' by Robert Greenliow, Esq., Trunalator and Libi'nrian of the Department of State. " I avail, &c. (Signed) "Jame.s Buchanan." "Mr. Pakenluim to the Earl of Aberdeen — (Eecciced " Aug%ist IC.) " My Lord, " Washington, Jtihj 29, 1845. " I have the lionour herewith to transmit n copy of a note which I have received from the Secretai-y of State of the United States, accompanied liy a copy of Mr. Green- how'a work on Oregon and California, which, in pursuances of an Act of Congres.s, is pre.sented to Her Majesty's Government. "Although Mr Greonhow's book is already in your Lordship's possession, I think it right, in conseiiucnce of the official character with which it is presented, to forward to your Lordsliip the inclosed volume, being llie identical one which has been sent to me by Mr Bucliauan. "I have not failed to acknowledge the receipt of Mr Buchanan's note in suitable terms. " I Iiave, &o, (Signed) "K. Pakesham." Touching the meaning of the terms north-west coast and Pacific Ocean, and the meaning attached to the relinquishment of Russian claims by tLo Convention of 1824, in the first part of the " Memoir," luider the heading " Geography of the Western Section of Nortli America," the following passage occurs : — " Tlio north-west cousl* is the expression usually em- ployed in tlic United States nt the present time to distinguish the vast portion of the American continent which e-xtends north of tlie 40th parallel of latitude from the Pacific to tlic great dividing ridge of the Hocky Mutmtains, togetlier witli tlio contiguous islands in that ocean. The southern part of this territory, wliich is drained almost entirely by the Eivcr Columbia, is commonly • N.B.— The c7a/tc» in tbii and eubsoquoat qaoUlIona arc thceo cmplojed b; Grocoboir bim'.olf. GI called Omjon, from the supposition (no doubt erroneous) that sucli was the name ajipliod to its principal stream by the aborigines. Vox tlie more northern parts of the I'ontinuiit many appellations, which will hcrcnftor be mentioned, hiivn been assigned by navigators and fur traders of various nations. The territoiy iiorderin;,' upon tlie rniiilic suiithward, from the 40th parallel to the <'.\lremity of tlie peninsula which stretches in that direction us far as the Tropic of Cancer, is called California, n name of uncertain derivation, formerly applied by tho Spaniards to the wliole western section of Xorth America, as tliat of Floritla was employed l)y them to designate the regions bordering upon the Atlantic. Tlie north-west coast and the west coaft of California together form the nrst i-onst of North America; as it has been found iinp(jssiblu to separate Ihe history of tliese two portions, 80 it will be necessary to include them both in this geographical view."* The relations of Bering Sea to the Pacific Ocean are defined as follows in the Memoir : — " Tlic part of tlio Pacific north of the Aleutian Islands which bathes tliose shores is commonly distinguished as the &a of Kanmi-hntka, and sometimes as Beerinfs Sea, in honour of the Kussian na\-igator of that name who first explored it " (pp. 4-5). Again, in tho " Geography of Oregon and California," as follows: — " Cape Prince of Wales, the westernmost point of America, is the eastern pillar of Bering's Strait, a passage only 50 miles in width, separating that continent from Asia, and forming the only direct communication between the P.icific and Arctic Oceans. • • • » " The part of the Pacific called the Sea of Kamlchalhi, or jiering's Sea, nortli of the Aleutian chain, likewise con- tains several islands," &c. (p. 4). • In the following pages Ihe term eoatf will be u^cd, sometimes as signifying only the sea-fclioro, and sometimes as embriicing the whole territory, extending therefrom to the soarcesof the river; care has been, liowever. taken to prevent misapprehension, wlicro the context does not suflicicntly indicnte the true sense. In order to avoid repetitions, tho n'rrib-u'cat coatt will be understood to be the narth-iceat coatt of North Amei-ica ; all tatitiidea will be taken as north tatitutlen, and all tonffituden as vent/rom Greentrich, unless otherwise expressed. " Tho northern extremity of the west coast of America is Cape Prince 0/ Tlaffi, in latitude 65 degrees 62 minutes, which la also tho western- most spot ia tho whole continent ; it la situated on the caalem side of lieering't Strait, a channel 51 miles in width, connecting the PaelBc with the Arctic (or ley or Sorih Frozen) Ocean, on the western side of which strait, oppo. ite Cape Prince of Wales, is Ea>l Cape, tho eastern extremity of Asia. Beyond Bcerlng's Strait tho shores of tho two c'jntinenls recede from each other. The north coaat of America has been traced from Cape Prince of Wales north-east waid to Cape Bamw," Sic., pp. 8-J, 65 In tho "History of Oregon and California," the Son of Kamtcliatka, or Boring's Sea, is again referred to as a part of tlio Pacific Ocean. In respect of tho uudoratanding 1)y the United States of the entire relin([uishmcnt of the claims advanced hy the Ukase of 1821 in tho Russian and United States' Convention of 1821, the following is found on a later page of the volume last referred to : — " Tliia Convention does not appear to offer any grounds for (lisiintc as to thu (.unstniction of its stipuliUions, but is, on tho contrary, clear, luid e(|Uftlly favourable to both natiouH. 'I'lio riglits of both parties to navigate every part of the raeifie, and to trade witli tlie natives of any places on tho coasts ot that sea not already occupied, are lirst acknowledged " (p. 342). It is thus clear, as the result of the laborioug investigations nndertakcn by Greenhow on behalf of the United States' Government, and accepted by that Government in an official document : — 1. That Bering Sea was a part of the Pacific. 2. That the north-west coast was understood to extend to Bering Strait. 3. That Russia relinquished her asserted claims over " every part, of the North Pacific." Coming down, however, to much later times, the same laxity is discovered in the use of this term to prevail, even in tlie case of those likely to be best informed on the subject. Thus, in the United States' " Alaska Pacific Coast Pilot," Part I, 1883, which was edited by Mr. W. n. Dall (a gentleman whoso familiarity with all historical and geographical points con- nected with the west coast is well known), on p. 287, under "List of Charts issued by the United States' Coast and Geodetic Survey- Sailing Chavts—Norlh-west Coast of America," is found catalogued " No. 4, Cliirikoff Island to Unimak." This particular Chart is entered as " in preparation," but its title carries the term " north-west coast " up to or beyond latitude 60° within Bering Sea. In Mr. Blaine's despatch of the 17th December, 1890, particular importance is attached to a small and rather poorly engraved Map Avhich appears in Mr. H. H. Bancroft's works, vol. xxvii (1881), which is the first of two volumes entitled " History of the North-west Coast." This Map is entitled " Map of the North-west Coast," and is actually reproduced in fac-simile in [570] S 66 tlic despatch. This Map appears to be regarded aa an argument conclush e in itself, and it is said of it, " The Map will bo found to include pre- cisely 1 ho area wliich has been steadily maintained by this Government in the pending discussion."* If I\[r. IJlaine had written "precisely that part of the west coast of America," he would have been more accurate, for of this coast the Map in question actually includes from about latitude 40°, in the vicinity of Capo Mendicino, to the vicinity of that part of the coast where latitude 60° reaches the Pacific. The area of the Map is, however, a very different matter, as it stretches eastward so as to include Hudson Bay and Strait, Doris Strait, and the St. Lawrence Eiver nearly to its moutli ; in fact, almost the entire northern width of the North American Continent. Wc are fortunately, however, not obliged to criticize this point by the exigencies which determined the lines upon which this particular Map was cut off by the draftsman alone — for it is evidently by its con- struction a reproduction of some part of a more inclusive 3Iap of the continent. The text of the work to whi(!li it is an appendage explains the limits which the historian has placed himself under, and, at the same time, very clearly shows that he did not suppose the title of his work alone would render this clear to his readers. On the second page of the fli-st volume, and in explaining the scope of his work, Mr. Bancroft writes : " The term north-west coast, as defined for the purposes of this history, includes the territory known in lalcr times as Oregon, Wasli- ington, and Britisli Columbia ;" thus i-endering it obvious that for convenience lie embraced under that term certain parts of the west coast which subsequently shaped t^liemselves into three distinct territorial divisions. As he had already treated of the history of California (vol. ), this was excluded, and as he i)roposcd to treat Alaska cparately (V * Mr. lUiiino doca not appc.u- to Ikivi" noticed one curious circumnlauce connected witli this " carefully prepared .Mnp." In llie northern part of the Map, each tenth degree of latitude is iiulicntcd, including 70°, CO , and 50", and, on the west coast, the ■'.Oth puniUel is also shown hy a line correctly placeil, lo the »outh (if ('ape Mendicino. Il is indicalcd in the margin as lalitude "42." On tlic opposite or eastern side of the Map the li:ie of li.lilndo actually shown is la'itude 4J, and il is correctly s ) named. This peculiar mistake occurs holh on the original and on the reproduction. 67 Treaty of .Ceiiion, 1867. eliminated. As a matter of fact, however, ho found it convenient to include in bis ITtip a greater extent of the west coast than tliat above defined, to the north and south, as wc iiavo already seen he did not scruple to do to the oast. His Map actually includes a iionsiderable part both of the coast and the interior of Alaska in one direction, and of what is now the State of California in the other. The fourth (question or point iii the ease is as follows : — Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Bering Sea east of the wafer boundary in the Treaty between the United States and Russia of the 30th March, lfc'67, pass unimpaired to the United States under that Treaty ? The cession of Alaska took place in 1867. In that Treaty, ratified hy the United States on the 28th May, 1867, Russia ceded to the United States a tract of which — "The western limit within v.hioli the territories and dominion conveyed are eoutained passes through a point in Bchring Straits on the [laniUel of 05" iiO' north latitude, at its interseetion by the meridian which passes midway between the Islands of Krusonstern, or Ignalook, and the Island of Eatmanofl', or Xuouarbjok, and proceeih! due north, without limitation, into the same Frozen Ocean. The same western limit, beginning at the same initial point, proceeds thence in course nearly south-west, throne' i Behring Straits and Behring Sea, so as to pass midway between the north-west point of tlie Island of St. Lawrence and the south-east point of Cape Choukotski, to the meridian of 172° west longitude ; thence, from tho inter- section of that meridian, in a south-westerly direction, so as to pass midway bot"-co'i the Island of Attou and tlio Copper Island of the Koru:ar.dorski couplet or group in the North Pacific Ocean, to the meridian of 193° west longitude, so as to include in the territury conveyed tlie whole of the Aleutian Islands east of that meridian." In a sea so full of islands as the Bchring, a line similar to the one drawn above was neces- sary for a clear division of the sovereignty of those islands. It avoids an enumeration. Tlierc was no grant of sea ell'ected hy the delimitation. Russia took care to grant only the territories and dominion within those lines. Nu attempt is miulc to di'serihe hy miles and hounds the territory, but it is said to ho contained within e<'rtain g('(>gnipliifal limits. The "territory" will be found on the continent and in the adjacent islanav la Convention conchie entre la Kussie ct la Giande-ISretagne, le IC (28) Fevrier, 1825, et definio dans les termes suivants des Articles III et IV de la dite Convention : — " ' A partir du point le plus mdridional do I'lle dite Prince of Wales, Icquel point .'^e trouve sous le parallele du .'54° 40' de latitude nord, et entre le 131' et le 133° degii5 de longitude ouest (nieridien de Greenwich), la dite ligne remontera au nurd le long de la passe dite Portland Channel, jus(iu'!Ui point de la terre ferme, oA elle atteint le 50" dogr6 de latitude nord ; de ce dernier point la ligne de demarcation .suivra la crete des niontagnes situces parallelement -^ la cote jusqu'au point d'intersection du 141° dega' de longitude oue.'^t (meme nieridien); et finalement, du dit point d'intersection la nicr'L> ligne mdridienue du 141"' degre formera dans son prolongement jusqu'i'i la Mer Glaciale la limite entre les possessions Russes et Britanniques sur le Continent de I'Aineriquo Nord-Ouest." • * • • • " La limite occidentale des territoires cedes passe par un point au Detroit de I'ehring sous le parallele du 6')° 30' de latitude nord a son intei-section par le mi5ridien qui separe a distance egale les Isles Krusenstern ou I'l nlouk ot I'lle RatnianofI' ou Noonarbotjlc, et remonte en ligne directe, sans limitation, vers le nord, juscpi'a ce (ju'elle .se pcrde dans la Mer Glaciale. Coninien(;ant au menie point do depart, ectte limite occidentale suit de h\ un coins presque 1570] T 70 8ud-ouoat, i trovers le Detroit de Behring et k Mor de Behring, de mnuiire i\ passer h distance dgale outre le point nord-ouost de I'lle Saint-Laurent et le point sud-est du Cap C'lidukotski jusqu'im meridien 172 de longitude ouest; de ce ])()int i\ partir de I'intersection de ce niiiridien, cette limitc suit une direction sud-ouest de mauiire i passer & distance egale entre I'lle d'Atiou et I'lle Copper du groupe d'ilots Konuundorski duns I'Ocdan Pacifique septentrional, jusqu'au iu(5ridien de 193° de longitude ouest, de mauiAre h encliiver, dans le tcnitoire cede, toutes les lies AWoutes situues i Test de ce meridien. • • • • • " ARTICLE II. " Dans le territoire cidi par TAiticle prdcMent h. la souverainete des £tata-Unis, aont coiupris le droit de pro- friiti sur .... • • » ♦ » "ARTICLE VI, " . . . . et la cession aiusi faite transfere tous les droits, francliisss, et privileges apparteniint actuellenient i\ la Russie dans le dit territoire et ses drpendances." It will be obserred that in none of these Articles is there a direct reference to any extra- ordinary or special dominion over the waters of the Bering Sea, nor, indeed, over any other portion of the North Pacific Ocean. Neither is there a suggestion that any special • maritime right existed which could be conveyed. The language of the Convention is, on the contrary, most carefully confined to " territory with the right of sovereignty actually posseosed " by Russia at the date of the cession. Article I of the Treaty of 1867 refers to (Sec <■ Nouveau Dictionnaire de la Languc Franfoise; " tout le territoire avec droit ou souverainete actucllcment possddd par Sa Majesty sur le Cou- par ^i- Noel et tinont d'Amdriquc ainsi que les iles contiguiis, seizicme edition j ce dit territoire dtant compris dans les limites ^""' '857.") geographiques ci-dessous indiquees, savoir. . . ." These words are very freely translated in the Executive documents of the United States, M'liere the first words of the extract arc rendered as follows: "All the territory and dominion now possessed by His said Majesty." A correct interpretation of the French words would be " all tlie territory, with the right of sovereignty, now possessed by Ilis said Majesty on the Continent of America and the islands adjacent thereto." The word " dominion " occurs, however, in the translation as if the land and a separate dominion or right, apart from the laud, were intended. eii 71 Russia was, it will be seen, careful to convey- only the " tori'itoire," i.e., "cspaco dc tcrro Boumis h un Souverain qui depend d'unc juri- diction." In these Articles the limits of a portion only of the Bering Sea are defined to show the boundaries within which tho territory " on the Continent of America and in the adjacent islands " ceded is contained. In Article VI, Russia again makes it emphatic that she is conveying "the rights, franchises, and privileges now belonging " to her in the said " territoiro " (which the English translation referred to renders " territory or dominion ") and appurtenances thereto. Bid the geographical limits in the first Article within which the " territory on the Continent of America or in the adjacent islands " are said to be " contained," purport to include in the grant anything hut "the territory ON the Continent of America and IN the adjacent islands"? The eastern geograpliical limit is described as the " line of demarcation " between the Russian and British pcssessions ; and no explanation or qualification is superadded. But wlicu the western geographical limit is described, care is taken to repeat the language, introducing the description " within which tho territories conveyed are contained," each cou i^o carries with it an explanation, and the final clause loaves no room for doiibt, and distinctly negatives any implica- tion of an attempt to convey any portion of the high seas — for the said western line is drawn, not so as to embrace any part of the high seas, but, as expressei? in the apt language of the Treaty — "so AS TO INCLUDE IN THE TERIHTOKY CON- VFTKD THE WHOLE OF THE ALEUTIAN ISLANDS EAST OP THAT MERIDIAN." Character of the western googmphical liuiit, aud reason for its ftdoption. Almtian Idaiids, (tc. " Memoir, Hinto- rical and Political, of the Norlh-west Coast of NorMi America, &c„ by Robert Greenhow, Tranilator and Librarian to the Department of State "[U.S.] Senate, 26th Cong., IstScss. [174], , 1 840 ; also sepa- rately published. New York, 1H40. "The Aleiitiiui Arehipeliigo is cuiisiilered liy tlio Eussiaus as coiisisUiig of Ihru- i/miipt «( islands, of which the largest are L'nimn!:, ViKilashla, and Umnak ; next lo tlieae are the Andnanowsky /s'and-t, among which aro Affclia. Tonar/K, and Kniwya, with many smaller islands, sometimes called the h'((t lal'imls; the most wcsteni group is that first called the Aleutuni or - M'nuisl-ji Inlands, which are Atlu, Mednoi (or Copper I.dttiid), and Bafini/a hliind " (p. 5). In the " History of Oregon and Ciilifornia," &i\, by the same author, the Commander Islands (Copper and Bering Islands) are again classed 72 amoiii,' the Aleutian Islands, \vliii;li are said to I'c included undor two governmental dis- tiifts liy tlie lUissiaus, the Comniander Islands behuigingtothe western of these districts (p. 38). Gruvons also states that the name Aleutian Islands Mas first ajJidicd to Copper and Ucring Islands. In many Slajjs examined among those noted in the lists with regard to the uomeuclature of Bering Sea, and running from 17HJ- to about 1830, the title Aleutian Islands is so placed as impliedly to include tho Commander Islands, in some it is restricted to a portion of the chain now recognized by that name. Sec particularly for first-mentioned usage, Map of America by A. Arrowsmilh, 1804 (Brit. Mus. Lib. Cat. No. G9B10, 15). From the diversity in usage In respect to the name of the Aleutian Islands, though these are now commonly considered to end to the west- ward at Attou Island, it is obvious that, iu defining a general boundary between the Russian and United States' possessions, it might have given rise to grave subsequent doubts and questions to have stated merely that the whole of the Aleutian Islands belonged to the United States. Neither would this have covered tho case offered by the various scattered islands to tho north of the Aleutian chain proper, while to have enumerated the various islands which often appeared and still sometimes appear on different Slaps under alternative names would have' been perplexing and unsatisfactory, from the vci-y great number of these to be found in and about Boring Sea. It M-as thus entirely natural to define conventionally a general line of division fixed by astronomical positions, and so drawn as accoi'ding to the best published Maps to avoid touching any known islands. This is the more obvious, when it is borne in mind that many of the islands in and about Bering Sea are even at the present day vci-y imperfectly surveyed, and more or less uncertain in position. Thus, even the latest United States' Charts of what are now known as the Aleutian Islands (No. G8, publi.shed in 1891) arc credited chiefly to the " North Pacific SuiToying Expedition " under Rogers, which was carried out in tho schooner " Fenimoro Cooper " in 1855. On 73 fthcct 1 of tlio Map just rofcrrcd to (oml)raeiiig the western part of the Aleutian Islands), such notes as the following are found: — "The latest Russian Chnrts place Bouldyr Island 10 miles due south of the position given here, whicli is from 11 dcterniinQtion by Sumner's method. "The low islands between Oiuoloi and Soulakh, ex- cepting the west point of Unalga, are from Eussian nnthorities, which, however, are widely discrepant." Similarly, in the corresponding British Ad- miralty Chart (No. 1601) published in 1890 wo find the remark : — " Mostly from old and imperfect British, Eussian, and Amerif 111 surveys." Again, even on the latest Chart of Bering Sea, published by the United States in 1891, a small islet is shown north of St. Matthew Island, near the centre of the sea, which does not appear on the special Map of St. Matthew Island published in 1875, and which could not be found in 1891. That the line drawn through Bering Sea betweeu Russian and United States' possessions was thus intended and regarded merely as a ready and definito mode of defining which of the numerous islands in a partially explored sea should belong to either Power, is further shown by a consideration ot the northern portion of the same line, which is that first defined in the Treaty. From the initial point in Bering Strait, which is carefully described, the " western limit " of territories ceded to the United States is said to proceed duo north "without limitation into the same Frozen Ocean." The "geographical limit" in tliis part of its length runs across an ocean which had at no time been surrounded by Russian territory, and which had never been claimed as reserved by Russia in any way. To which, on the contrary, special stipulations for access had been made in connection with the Anglo-Russian Convention of 1825, and which since 1848 or 1849 has been frequented by whalers and walrus-hunters of various nations, while no single fur-seal has over been found within it. It is therefore very clear that the geographical limit thus projected could have been intended only to define the OAvnership of such islands, if any, as might subsequently [570] U 74 be discovered in this imperfectly explored ocean ; and when, therefore, in the order of the Treaty, it was proceeded to define the course of " the same western limit " from the initial point to the southward and westward across Bering Sea, it is obvious that it continued to possess the same character and value. If intended to have a different signification in Bering Sea, and there to partition dominion over waters, it would have been necessary to specially mention and stipulate this circumstance, which was not done. It is ihercfore contended that the Treaty does not purport expressly to convey any " dominion in the waters of Bering Sea," and if any dominion in said waters passed by said Treaty it must have passed as an incident or appurtenant to the territory on the continent and r the adjacent islands under tie law of nations. It matters not, however, so far as concerns the Letter to question of title, what Russia intended in this Jfu' u/t"io"i868 respect. Hussia could only transfer, as to jurisdiction and as to the seal fisheries, such rights as were hers by the rules and principles of international law. In 1862, when Spain pushed her claim to an extended jurisdiction around the Island of Cuba, Secretary Seward's forcible response was : — " It canuot be admitted, nor, indeed, is Mr. Tessara understood to claim, that the mere assertion of a Sovereign, by an act of hgislalion, however solemn, can have the effect to establish and fix its external maritime jurisdic- tion He cannot, by a mere Decree, extend the limit and fix it at C miles, because, if he could, lie could in the same manner, and upon motives of interest, ambition, and even upon caprice, fix it at 10, or 20, or .50 miles, without the consent ox acquiescence of other Powers which have a common right with himself in the freedom of all the oceans. Such a pretension could never lie successfully or rightfully maintained." That no extraordinary rights wore in contem- plation (ntlier before, at the time of, or for years after the Treaty of Cession is abundantly jiroved. When the cession of Alaska was before Con- gress for consideration, Mr. Sumacr, after a long and exhaustive speech covering the details of thu property about to be ac(iuirod by the United States, did not in any way touch upon nor suggest exclusive claims to (ioaslal Aval(-rs 100 miles from land, nor upon special property existing in seals. He did, however, remark: Debates in Congress, touching the cession by JJussia of Alaska, 18 07. 75 United States' CongresBional Debates, from " Congrcssioaal Globe," December 11, 1867, Part I, p. 138, 40th Cong., ZnrI Sess, " No sea is now mare clausum, and all of these (whales) may be pursued by a ship under any flag except directly on the coast or witbin its territorial limit." In view of the present contention, it is of interest to read the Report of the discussion wliicli took place in Congress upon tbc value of the proposed purchase and the nature of the interests and property. The debate was protracted, and many leading Members of Congress spoke at length. To none of them apparently did it occur tliat a special property in seals was involved. No one sug- gested the existence of an exclusive jurisdiction over coastal waters distant more than 3 miles from land. Mr. Washburn, of "Wisconsin, said : — "But, Sir, there has never been a day since Vitus Behring sighted that coast until the present wlien the people of all nations have not been allowed to fish there, and to cure fish so far as they can be cured in a country wliere they have only from forty-five to sixty pleasant days in the -H-hole year. England, whose relations with 1! isia are far less frientlly than ours, has a Treaty with timt Govennuent by which British subjects are allowed to fish and cui^ fish on that coast. N.iy, mor<'. she has a Treaty giving her -iil'j.'cts for ever the free navigation of the rivers of Rus-iau America, and ninkiug .Sitka a free port to the commerce of Cheat Britain United States' Congressional Debates, from " Congressional Globe," July I, 1868, Part IV, p. 3667, 40tb Cong., 'JncI Se.;i9. Mr. Terriss said : — " That extensive fishing bank-s '.xist in these northern seas is quite certain ; but wliat ■ \tlusive title do we get to them ? They an; said to be fai out at sea, and nowhere within 3 marine leagues of the islands or main shore." Mr. Peters, during the course his speech, remarks : — " I believe that all the evidence iii.on the subject proves the proposition of Alaska's worthlessness to be true. Of course, I would not deny that her cod fisheries, if she iias them, would bo Bomowbat valuable ; but it seems doubtful if fish can find sun enough to bo eurey Mr. .TelTerson, Secretary of State, as early as 17'J3, and lias been re- affirmed by his successors — Mr. Pickering, in 1796 ; Mr. Madison, in 1807 ; Mr. Webster, in 18-12 ; Mr. Buchanan, in 1840 ; Mr. Seward, in 1862, 1863, and 1864; Mr. Fish, in 1875 ; Mr. Evarts, m 1879 and 1881 ; and Mr. Uayard, in 1886. (Whcaton's ' International Uw," vol. i, sec. 32, pp. 100 and 109.) " Sanctioned thus by au unbroken line of precedents covering the first century of our national existence, the United States would not abandon this doctrine if they could ; they could not if they would." Mr. Jefferson, Secretary of State, wrote to tho Minister for Great Britain in 1798 : — " The limit of our sea league from shore is provisionally adopted as that of the territorial sea of the United States." In 1794, in a Treaty between Great Britain and the United States of America, there was a recognition of tho limit of inaritimc jurisdiction. Ai-ticle XXV laid it down that :— " Neither of the said parties shall permit tlie sliips or goods belonging to tlie subjects or citizens of llie other to be taken witliin cannon-shot of tlio coast, nor in any of the bays, ports, or rivers of their territ(u-ie3 by ships of war," &c. The Congress of the United States in the same year (Cap. 220, approved the Sth June, 1791) enacted that : — " The District Courts shall take cognizance of complaints, by whomsoever instituted, in cases of cap'mres made within tho waters of tlie Uniteil States, or within 1 marine league of the coa.its or shores tbereof." Again, in 1819, when Great Britain and tlie United States of America were settling their 80 fishery rights, the United States renounced all claim to "take dry or cure fish on or within 3 marine miles of the coast, bays, or harbours of " State Papers," nis Jh'itannic Majesty's dominion in America." p 350,' On thn 10th July, 1832, the United States' Charge d'Affaircs at Buenos Ayres, writing to the Ikienos Ayres I'oreign Minister on the question of the seal fishery at the Falkland Islands, says: — "Tlie oocan fislicry is a natural right %vhicli all nations ina}- enjoy in common. Every intciferentc villi it by a foreign Power is a national wrong. MHien it is carried on within the marine league of the coast which has been designated as the extent of the rational jurisdiction, reason seems to dictate a restriction ; if, under the pretext of canying on the fishery, an evasion of the revenue laws of the country may reasonably bo apprehended, or any other serious injury to the .Sovereign of the coast, he has a right to prohibit it ; but as such prohihilioii derogates from a natural right, the evil to be apprelicnded ought to be a real, not an imaginary, one." Article IX in the Convention between Great Britain and France (2nd August, 1839), a Treaty for the purpose of defining the limits of the exclusive right of fishery, provides : — "The subjects of Her Britannic JIaji;.sty shall enjoy the exclusive right of lislicry within the distance of 3 miles from low-water mark along the whole extent of the coasts of the British Islands," &t'. Article X provides that these miles shall be geographical miles, whereof sixty make a degree of latitude. Mr. Webster, in 1842, writes to Lord Ash- burtou : — "A vessel on the high seas beyond the distance of 1 marine league from the shore is regarded as part of the territory of the nation to which she belongs, and .subjected exclusively to the jurisdiction of that nation." Mr. Buchanan, Secretary cf State, 1819, wrote (Wharton's " Digest," p. 101) :— "Th; exclusive jurisdiction of a nation extends to the por'.s, harliours, bays, mouths of rivers, and adjacent parts i, sea inclosed by headlands, and also t . the distance of 1 marine league, or so ar x a cannon-shot will reach from the shore along all itj ^asts. Within these limits the .'Sovereign of tlie main', no "loy .incst, by due jirocess fif law, allejjOd offeiiu !rs on 1 jard of foreign nierelmnt- fihips." Wharton, in his "Digest of the Inter- national Law of the United States," 1880, f»l section 32, vo'. 1, p, 102, citing ^IS. notes, Spain, prints portions of a letter from Mr. Seward, Secretary of State, to Mr. Tassara on tlie 16th December, 18fi2, where, in connection with the maxim, " Terrie dominium finilur uhi finitur armnnim vis," ho lays down that — " The laiigo of a cannou-ball is shorter or longer 'jocording to the circumstances of projection, and it must be always liable to change with the improvement of the science of ordnance. Such uncertainty upcn a point of jurisdiction or sovereignty would be productive of many and endless controversies and conflicts. A more practical limit of national jurisdiction upon the high seas was indispcn'iably necessary, and this was found as the Unde- signed (Mr. .Secretary Seward) thinks in fixing the limit at 3 miles from the coast. Tins limit was early proposed by the pulilicists of all maritime nations. While it is not insisted that all nations have accepted or iicquiesced and bound themselves to abide by this riderp(;tual irrita- tion and the universal h.ostility which arc liUcly to ensue." The decision of tlic Sinnrinc Court of the 10 Wheaton, 66. United States in the ease of tlie " Antelope'' is to the same effect. Tlierc Cliief Justice Marsliall delivered the opinion of the Court, holding that tlie Slave Trade, though eontrary to the law of nature, was not in conflict witli the law of nations : — " Ko principle of general law is more universally acknowledged than the perfect equality of nations. Russia and (loneva have equal rights. It results from this equality that no one can rightfully impose a rule on another; each legislates fur itself, but its legislation can operate on itself alone. A right, then, which i.s vested in all by the consent of all, can be divested cmly by con.sent ; and lliis trade, in Wiii(h all have paiticipaled, must remain biwi'ul to tho.se who cannot be induced to relinquish it. As no nation cau prescribe a rule for others, none can make a law of nations, aud this trallic remains lawl'nl to those whose Oovernnients have uot forbidden it. "If it is I'ousi.slcnt with the law of nations, il cannot, iu itself, lie i>iraey. It cau be made so only by .Statute, and the obligation of the .Statute cannot transceml tlie legislative power of the State which may enact it. " If it be neither repugnant to tlic> law of uati(jns nor piracy, it is almost superfluous to say in tiiis Court that the right of bringing in for adjudi'Mlion in time of peace, even where the vessel Ijelon^s to a nation which bus .- . j»4ii_. . ..-.— ^-' 88 jiiuliil>ilod tlio trade, caiiuol exist. The Courts of lui country execute the peual laws of anothor, and tlio course of the Ameiican Govcrnnieut on the sul^ject of visitation and search woukl decide any case in nhich that right had heen exercised by an American eruizer on tlie vessel of a foreign nation not violating our nninicipid laws against the cajitors. " It follows that a foreign vessel engaged in the African .Slave Trade, captured on the high seas in time of peace liy nn American eruizer and iirmight in for adjudication, would lie restored." The whole siil)ject is t'tiUy di.sijosfd of iu Mr. Dana's note x\o. 108 to Wlicatoii (j). 258), ■\vlicre it is said oi: Cliief Justice ilarsluill, in Clmirli against Iliibbai'd, 2 Crancli, 187 : — " U is true that Chief Justice Marshall admitteil the ri,i;ht of a nation to secure itself against intended violations ol' its laws by seizures made within reasonalde limits, as to which, he said, n.itions must exercise comity and concession and the exact extent of which was not settled, and iu the case before the Court the 4 leagues were v.ot treated as rendering the seizure illegal. This remark must now be treated as an unwarranted admission It may be said that the principle is settled that municipal seizures cannot be made for any purpose beyond territorial waters. It is also settled that the limit of these waters is, in the aljsence of Treaty, the marine league or the cannon-.shot. It cannot now be successfully maintained cither that municipal visits and search may be made beyond the territorial waters for special purposes, or that there are difi'erent points of that territory for diflercnt oljjects ; but as the line of territorial waters, if not fixed, is dependent on the unsettled range of artillei-y fire, and if fixed must be by an arbitrary measure, the Courts in the oarliir cases were not strict as to standard of distance uhcrc 110 foreign Poinrs inttrrtnal in thr cnnms. In later times, it is safe to infer that judicial as well as political Tribunals will insist on one line of ranrinc territorial jurisdiction for the exercise of force on foreign vesse.ls in time of peace for all purposes alike." On the otli December, 1875, the German sbip (iormnn oaScial " Dcutscliland," on her voyago from Bremen to sirrnulDKof New York, was stranded on tlie iventisli Knock, " Deuischland," -.w T. 1- 1 •• 1 -1 f Ti -1 loid before the 17 Lnglisli iituitical miles Ironi llarwicli, BcichsLig .lammry Tlie Cermau Government were askc^l on the ]}' '^"'• Page I. btb December, 1875, I)y ller Majesty's Govern- ment, if tliey wislicd an otfii-ial iii(|niry on the niaiter to be beld in England. On the 11th December the German Govcru- incnt assented to this course. The iuijuiry took phtce before Mr. Rothery and Captains Harris and White, the German Goverumcnt being reprcscutc.l liy counsel. 89 Oermsn official The matter gave rise to an interpellation in 9iranding"of ^''^ German Rcielistag by a member named " Dcnuchlaiid," x)r. Capp, Avho asked for explanations on three laid before the , . , • , tt ]{ciciistBg, .Innuiiry points, the last 01 whicli was, " IIow eomes it 12, 187C, page 29 j.|j_^j. disasters of this kind occurring at a distance of some 17 miles from the English coast are dealt with exclusively by the English autho- rities ?" P»ge 86. In the debate which took place in the Reich- stag, Dr. Capp called attention to the fact, that according to the law of nations maritime countries had only jurisdiction to the distance of a tannon-shot from shore, which distance was commonly interpreted as 3 English nautical miles. England, he said, had in a Statute of George II, in 173G, positively laid down this distance as 4 English miles. It did not there- fore seem to be clear why England, in spite of this, had held an inquiry into a ease which had occurred 17 miles from her coast, where England had nothing to say to it — on the high sea, in fact, age 87. Kerr von Philipsbom, Pri^y Councillor and Director in the Prussian Foreign Office, ex- plained in reply that in England, under the Merchant Shipping i\.ct, the Receiver of Wrecks had the power to inquire into the circiunstancos of wrecks near the coas* both of British and foreign vessels, but, in the case of the latter, only when the wreck occurred within 3 nautical miles of the English coast. He went on to say that it was desirable to como to an understand- ing with the English Government, whereby the Wreck Receivers should he empowered to inquire into cases of German wrecks occurring outside the 3-mile limit. P&ges 48-67. Correspondruco took place on this subject between tlie British and German Governments, which ended in authority being given by Ger- many for the Brilisli Wreck Receiver to deal with such cases as occurred outside the 3-milo zone. The only condition attached was that the ,j authority was to be confined to cases where the ships or crews came to British iiarbours or coasts after the wreck. 'I'lie whole question, and the arrangement tinally concluded, arose entirely out of the recognition by both parties of the 3-mile zone. To the jrofore, that substantially all the foreign jurists are in accord in asserting that, by the coiiinion consent of all nation.s, each which is bordered by an open Bca has over 3 adjacent miles of it a territorial right. And the sense in wiiicli they all u.so that term seems to mo to be fully exjilaiiied liy Yattel (lib. i. c. 18, §205). He says:— " ' Lorsqu'iinc nation .s'cmpaio d'uii pays qui n'appartient encore i\ pei'sonnc, elle est censee y occuper rEuipire, ou la souverainete, en nieme temps que lo doniaino. Tout Tespaco dans lequel une nation dtend son Empire forme le res.sort do sa juridiction, et s'appelle son territoire.' At lili. ii, 55 84:' I,'Eiiipiie, uni tu domaine, etablit la juridic- tion de la nation dans le p.iys 'pii lui appartient, dans son territi>ire.' "This .seems iilaiii : sovereignty and dominion neces- sarily give or import jurisilietion, and do so throughout the territory. "Applying this to the territorial sea, at lil'. i. c. 23, (!; ''<, ]w says: — [070] 2 B IMAGE EVALUATION TEST TARGET (MT-3) 4 // // :/L ./<^' / .<9 \ \ 6^ A 94 " ' Qunud utio nation s'empare do certaines parties do la mer, file y occupc I'Einpiro aiissi bion que le domaine, &a Cos piutios do la inerBOiit do la juridiction du torritoire de la natiiiii. Le Souverain y commando ; il y doiine dos loiB, et peiil r<5primcr ccux inii Ics violent ; en lui mot. il y n lulls los monies droits (|ui lui npi)artiounont sur la tcrrc,' &c. " It scorns to mo that this is, in reality, a fiiir represen- tation of th'i accord or agreement of substantially all the lureifjii writora on international law ; and that thoy all agree in asserting that, by tlic consent of all nations, each which is bordered by open sea has a right over such adjacent sea as a tenitorial sea — tiiat is to say, tin o part of its territory ; ond that thoy all meap thereby to assort that it follows, as a conso(iuonce of such sea being a part of its territory, that each such nation has, in general, the same right to legislate and to enforce its legislation over that part of the sea as it has over its land territory. " Considering the authorities I have cited, the terms used by thom, — wholly inconsistent, as it seems to mo, with the idea that the adjacent country lias no property, no dominion, no sovereignty, no territorial right, — and considering th'! necessary foundation of the admitted rights anil duties of the iidjaoent cuiintry as to neutrality, which have always Won niadi^ to depend on a ri^;ht and duty as to its territory, I am of opinion that it is jHoved tliat, by the law of nations, made by the tacit consent of substan- tially all nations, the open sea within 3 miles f tlie tenitcjiy of sucli nation. r>y the same evidence which proves tliis proposi- tion, it is equally proved that every nation which possesses this water territory has agreed with all oilier nations tliat all shall have the right of live navigation to pas.s through such water territory, if such navigation bo with an innocent or harmless intent or purjiose, Tlio right of free navigation cannot, according to ordinary princi|iles, bo withdrawn witlioul common eonsMit ; !iut it by no nieaiis derogates from the sovereign uulhority ovim- all its terri- tory of the State wiiich has agreed to gnint tliis liberty, or oa.sement, or right, to all the world." Lord Chief Justice Cockburii delivered the Judgment of the Cotirt, from wVAvh tlic follow- ing i)assagc8 arc extracted : — " By the old common law of Kngland, every offence was triable in the county only in which it had been committed ; as, from that county aloni', the 'pais,' as it was teniied — ill oilier woixls, the jiiror>* by whom the fact was to be twertainod — could come, lint only .mi imich of the land iif the outer const as was uncovered by the iseii was ludd to be within the Ixidy of the adjoining county. If an oRence was eomniitted in a bay, gulf, or estuary, inlcr/iiucrs leirtr, the rouimon law enulil ileal with it, be(aus liij^Ii seas as to lie still within tlie jurisdiction of tlic Aihniial, is part of the territory of tlio realm, so as to make a foreigner in a foreign sliip within such Mi, though rm a voyage to a foreign port, sulijert tti our law, wliicli it is clear ho would not he on tlie higli sea heyond such limit. It is necessary to keep the old assertion of jurisd.'ction and that of to-day essentially di.stinct; aiul it .should 1h) liornu in mind, that it is hecause all jiroof of the actual cxcrci.se of any jurisdiction by the Aort, nn iissertion of .sovereignty, which, for nil iirnetieol pur- po.so.f, is, and nlwnys has been, idle and nnroiinded, nnd the invalidity of wliieh reiidiTS it necessary to have reLonrse (o the new doctrine, involves an inconsistoncy on which it woulil lie siiperlluons to dwell. I nnist confess niy.sclf nimble to coniprelieml how, when the ancient iloclrine as to .sovereignty over the narrow se.is is ndduceil, it.s oiicralion can be eoiiliiud to the :'>-iiiile zone. If the nrgiiiiicnt is good for anything, it must apply to the whole of the surrounding seos. But the ('oun.sel for the Crown evidently shrank from applying it to this extent, ouch a pieteii.siou would not be adiiiittod or endured by foreign nations. Tlial it is out of this extravagant asser- tion of sovereignty tlmt tho doctrine of the 3-milo jurisdiction, asserted on the pnrt of the Crown, nnd which, tho older cluiin being necessarily abandoned, we are now called upon to consider, has sprung up. I readily admit. " From the review of these authorities, we arrive lit the following results. There can bo no doubt that the sugges- tion of I!ynkershiH>k, that the sen surrounding the coast to the extent of ciiinon-ronge should be treated ns belonging to the State owning the coast, has, with but very few exceptions, been accepted nnd ndojitcd by the publicists who have followed him during the last two centuries. Ibit it is ecjually clear that, in the ]iractical appliciition of tlio rule in respect of the particular of distance, as also in the still more essential particular of the eh.imcter nnd degree of sovereignty nnd dominion to bo exercised, grent diffe- rcncc of opinion and uncertainty have prevailed, and still continue to exist. " As regards distance, while the majority of authors have adhered to the u-niile zone, others, like M. Ortolan nnd Mr. Ilallcck, apidying with greater consistency the prin- ciple on which the old doctrine rest, insist on extending the distance to tho modern range of cnniion — in other words, doulding it. This dilTerenee of opinion may be of little practical importance in tho present instance, iniis- mucli ns the place at which tho offence occurred was within the les.ser distance; but it is, neverth jle.s.s, not immaterial, ns showing bow unsettled this doctrine still is. The (piestiou of sovereignty, on tho other hand, is all- importniit. And hero wo have every shade of opinion. " One set of writers — as, for instance, M. Ilautofcuille — nscrilie to the State territorial property niiit suveroignty over the .3 miles of sen, to the extent of the right of excluding the ships of all other nations, even for tho purpose of passage, — a doctrine flowing iininodintely from 07 the iiriuci'ili; i>f tciTitoiiiil prdiicrty, Imt wliich U too moiistroiis to t).> mlinitti'd. Aiiulliur set contcile liiiitoiiul projxMij' iukI Hovea-iHiily, Imt iiiiiko it siilijuct to tin' vl^hl of otlicr nations to use th'jso watt'rs lor tin; 11111^090 of navigiition. OiIhth, nijaiii, liku M. Urtolmi ami M. (,'alvi), tlfiiy Hiiy riglit of ttiritorial luoiM'rty, )>ut coiiceilu 'jiiris- dictioii ;' l>y wliicli I miilcisUiml tliom to iiicaii llie iiowor of «|iiilyiii}{ the law, «iiiilicalilu to iiorsoiis mi lln' laml, to all who are witliin the tfirritorinl water, uiid the \)ower of icgislfttiii-,' in rusiicct nf it, so as to liiiul every one wlio coiiien witliiii tlic junsdicliiOi, whi-tlicr siilijiats or fon-igiioi-M. Some, like; M. Ortolan, would conliiiu lliis jurindiction to iHiriioscs of 'safely anil polite;' liy which I shoulil be (lispos'^il to iinilerHtaiid lucaaures for the pro- tection of the trvrilory, and for the reytdation of the navi- gation and the use of harhours and roadsteads, and the maintenance of ordrr nnionj,' the shiiipint; (herein, rather than the gencnd application of the critninal law. " Other nuthora— for instance, Mr. Manning— would restrict the jurisdiction l» icrtain spocitied purimsos in wlii'-h the local State has an ininu'diato intonst ; namely, the protection of its ifvcnue ond fisheries, the exacting of liarlwair and light dues, ami the protection of its coasts in time of wai. "Some of these authors, for instance, Professor llhmt- schli, make a most imiiortnnt distinction lietween a connnornnt and a passing ship. According to this author, while the commorant shi). is li.ihle to the local jurisdiction oidy in matters of ' militflry ami iiolice Kegulatinns made for the safety o( the territory and ]iopulation of the con.st,' none of these writers, it should he noted, discuss tlie (jucs- tion whether, or go the length of ossertiug that, a foreigner in u foreign ship, using the watei-s in fiuestion for the pur- pose of navigation sohdy, on its way to another country, is liable to the criminal law of the adjoining country for an offence committed on hoard. " To those who as.sert that, to the extent of 3 miles from the n)U.sl, liie sea forms part of the i-eahii of EnglaoJ, the question may well he \n\{, When did it become so ? Wa.i it so from the beginning f It certainly was not ileeniod to l)c 80 OS to 3-niile zone, any more than aa to tlie rest of the high seas, at the time the Statutes of Richard II were passed. For in those Statutes a clear distinction is made lH;tween the realm and the sett, as also lietween the iHxlies of counties and the sea ; the jurisdiction of tlie Admiral being (subject to the exce)>tion already stated as to murder and mayhem) confined strictly to thi' latter, and its exercise 'within the realm "prohibited in teniis. The lan;;uago of the first of these Stntutes is especially leiuark- ohle: ' The Admirals ami their deputies shall not m:;ddle from henceforth with anything ih ne I'ilhiii the realm 0/ £ni/!nii(l, hut i/iili/ villi tliiiii/.i done iipnn the sea.' "It if. impossible not to be striK'k by the di.^inctiou hero taken Ix'tween the realm of Kiigland and the sea ; or, when the two Statutes are taken together, not to see that the term 'realm,' used in the (iisl Statute, and ' bodies of counties,' the term used in the second Statute, mean one [57()J 2 C 98 itml tliu Haiiie tliiii){. Ill tlioiiu SlatutcD, liiu JurUiliotiuii uf till' Ailiiiinil is rustriL'leil lo lliu ' i|;li himui, iukI, in respect of miinli'r aurl iimyliciu, to tl.j great tiwTs Ih.-1i>w tlie liriilj,'.- ; wliilo wliali'vur in within llio realm — in otliur wiircU, witliiii tlii^ liixly o( u luiinty — in Icl't witliiii tliu (lumuiii uf tlio coiiiinoii law. Hut then.- is iin iliHtiiicliun taken livtweon one part i>( tliti hi^li gin and anntlier. Tliu :l-iiiili' zmiu is no luuru itiMilt witii us within the luuliii tliaii the si'a.s at litr){u. Tliu notion of u 3-iiiile zone wiw in lho!jc ilay» in the wonili of limi'. When it.- origin is trticod, it in found to Ik.- of coni|inmtivuly niutlnrii growth. . . . " For centuriuH before it was tlion<,'lit uf, tha Krent luud- iiiark^ uf our .judieial Hysteni had hctn »'.'t fast : thejurif- dictiiiii of the comuioa law over the land, and the inland waters contained witliiu it, rorniiiig t<>>;utlier the ruahii of Enghind ; that of th|)iirty or highway of inaiikiiid. " Kut to what, afUsr ull, do thuse auciuiit autlmrilies amounts Of what avail are thoy towardx oHtahlishing that the toil in the 3-niile zone Ih part of the territorial domain of the Crown ' Tlitsu assertions of soveroignty weif manifestly Uweil on the il "trine thai the narrow seaa are part of the reulni of England, lint that cloetrine in now exploded. Who at this day would venture to allirm tliot the .sovereignty tliii.s iisiieited in (Se limes now exist-' ' Wh'jt English lawyer \h tliere .vhci wouhl not shrink from maintaining, what foreign jurist who would not deny, what foreign Goveninieiit which \\ould not repel, such tt pret«'nsion ? I listened carefully to see whether any such a.s.sertii>n w;iuld Is' made; hut none woo made. Xo one has giuie the length of suggesting, lunch loss of openly a.s.%rting, that the juri.sdietion still e.\iats. It seems to me to follow that, when the sovereignty and jurisdiction from which the jiiopeity in the .-loil of the sua was inferred is gone, the territorial whiili was siiggesteil to be conseiiucnt upon it must necessarily go with it " liut we arc met here by a subtle and ingenious argument It is said that, although the doctrine of the criminal jurisdiction of the Admiral over foreigners on the four seas has ihed out, and can no longer lie upliehl, yet, as now, by the consent of other nations, sovereignty over this territorial sea is conceded to us, the jurisdiction formerly asserted may be revived and made to attach to the newly accpiired domain. I am unable to adopt this reasoning. AV mnressin, the juri.sdietion over foreigners in foreign ships never really existed ; at all events, it has long been clcad and buried ; even the ghost of it has been laid. Hut it is evoked from its grave, anil brought to life, for the purpose of applying it to a part of the .sea which was included in the whole, as to which it is now practically admitted that it never existed. From the time tlfc jurisdiction was asserted to the time when the pretension to it wos dropped, it was asserted over this portion of the sea as part of the whole to which the jurisdiction was said to extend. If it was bad as to the whole indiscriminately, it was bad as to every part of the whole. By why was it 99 lm\y bccnusu tho jmiidictioii ili.l not uxloiiil to lou'i(,'nuni in fcreix" ttliips "» tlio lii^li hcih. Itul tliu wnti^r^ in inu'stioii linv<' nlwiiy^ foriiitMl pint of tlio high Hi'iis. Thiy iiri; nllf^eil in thi^ iiiihotiiicnt In Iw so now. How, tlicn, i:nn tho A(hiiiral havo tho jiirisiliction over tliem contcMidi-d for if he ha " iMist, then, hit us sno linw tin) nmttcr staiuU ns n-^nriU TiunlicH. It iniiy hu iwsevti'l, h illupnt fi'ar of oontrailirlion, tb.t the ruU- tliut the soil siirrounJiu},' tliu ouinl is Ij l«! trimto , n part of tho iiiljiioont torritory, so tiiat tliu .Stiiti' sha ! vo exchisivu doriiiniun nvcr it, ainl tliat Iho Inw of tin latter shall li" gcnoraliy apiiiioalilo to thosu pBnning over it in tho ships of otiior nations, has never ' ' inado Li. . snljec'-ni.iiter of i;ny Troaty, or, 111 nmttcr ol lU^knowK i^^ed li !ii, has forniod ihi' Imsis of any "'renty, or has i^voii ouuii Iho suhjoct of diphmialic disonHsioii. It lins 1' 11 ciiiiroly tho cruation of thi^ writoi-s on inter- li'liouai l.iw. It is true that thu writers who have lieen < ;t liiial fislicuiien wuiilil Imve been aiiicniiblc, con- ^ist^■lltly with iiittrimtiiiiial law, to local k'^islatioii pro- hiliiliiij,' siii.h iiifriii.L;t'iiient, without any stiiuihitiou to that firuct liy Treaty. For what object, then, have Treaties lieeii resorted to ? Manifestly, in onler to ohviate all (|Mf'stiiMi.s as to cimcurreiit or conllii/tinf; rij,'Iilg arising nnikr llit law of nations. Possibly, after these iireccilents and all that has been written on this subject, it may not be too much to say that, independently of Treaty, the 3-ini!e belt of sea might at this day be taken as belonging, for these iiurposes, to the local State. " So nnioh for Treaties. Then liow stiiuds the matter ar to usage, to which reference is so frequently made liy the publicists, iu suiii)ort of their doctrine ? Wlien the matter is looked into, the only \isage found to exist is such as is cunnected willi navigation, or witli revenue, local fisheries, or neutrality; and it is to these alone that the usage relied on is confined. " It may well be, I s.iy again, that, after all lliat has been said and done in this respect, after the instances which have been mentioned of the adoption of the .'l-mile distance, and the repeated assertion of this doctrine by tlio writers on public law, a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it stdijoct to its law, for the prevention and punishment of offences, would not be considered as infringing tlie rights of other nati(ni.s. I!ut I apprehend that, as llie ability so to deal with tlie.se waters would result, not from any original or inherent right, but from the acquiescence of other States, some outward manifesta- tion of the national will, in the shape of open practice or municipal legislation, so as to amount, r.t least construc- tively, to an occu]iation of that which was before unappro- ])riatcd, would be necessarj" to render the foieigner, not pwiiously amenable to our general law, «ubject to its control. "And this brings me to the second branch of the argument, namely, that tiie jurisdiction having been asserted as to the narrow seas at the time the Statute passed, it must be taken to have been transferred by the Statute. The answei to such a contention is, that no leferenco being made in the Statute to this now-ex[)loded claim of sovereignty, wo must read the Statute as having transferred — as, indeed, it could alone transfer — such jurisdiction only as actually existed. Jurists are now agreed that the claim to exclusive dominion over the narrow seas, and consequent jurisdiction over foreigners for offences committed thereon, was extravagant and nnfounded, and the doctrine of the 3-inile jurisdictioi: has taken the place of all such jirctensions. In truth, though largely asserted in theory, the jurisdiction was never practically exercised in respect of foreigners. " Hitherto, legislation, so far as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of nentrid right.s and obligations, the 101 prevention of broaches of the revenue nnd fisliery laws, ami, under particular circunistancea, to cases of collision. In the two tirst, the legislation is altogetlier irrespective of the 3-mile distance, bein'; founded on a totally (HfTL-rent principle, namidy, the right of a State to take all necessary measures for th(! protection of its tenitory and ritrhls, and the prevention of any breach of its reveinie laws." Citing these decisions, the Agent for the United States, in 1877, at Halifax, remarked in his brief : — " Such are the general principles of Knglish law to-day as laid down by the Chief Justice of Enj;land. The jurisdiction of a State or country over its adjoining waters is limited to 3 miles from low-water mark along its sea-coast, and the same nde applies eqiially to bays and gulfs whose width exceeds miles from headland to headland. Property in and dominion over the sea can only exist as to those portions capable of permanent jiosses- sion ; that is, of a posse.S3ion from I lie land, which possession can only be maintjiiiieil by artillery. At 1 mile, beyond the reach of coast-guns, there is no more possession than in mid-oceati. This is the nile laid down l)y almost all the writers on intcrnationnl law, :i few extracts from whom — " The Agent proceeded to quote : -- " At present," says Vatlel, " I..aw of Nations," IJook 1, ch. xxiii, §§ 280, 291, "the whole space of the sea within cannon-shot of the const is considered as making a part of the territory; and, for that re.uson, a vessel taken under the guns of a neutral fortix>ss is not a gooil prize. " All we have said of the parts i.f tlw sea near the coast may bo said more particularly and with nnicli greater reason of the roads, bays, and straits, as still more capable of being occupied, and of greater importance U> the safety of the country. Hut I speak of the bays and straits of small extent, aiul not of those great parts of the sea to which these names are sometimes given — as Iluddon's liny and the Strait.s of Magellan — over which the Kmiiiro eainiot extend, nnd still less a right of jiroiierty. A bay whose entrance may be defended may bi- possessed and rendered subject to the laws of the Sovereign ; and it is of importance that it should be so, since the country may bo much more easily »nsulled in such a place than on tlu? coast, open to the whids and the impetuosity of the waves." Professor Bluntschli, in liis " Law of Nations," Book 1, §§ 302, 309, states the rule in the same way :— " When the honticr of a State is formed by the open see, the part of the sea over which the State can from the shore make it? power respected — i.i., a portion of the sea [370] 2 D mmm 102 €!\t('iii1inj; ns fur ns a ('niinoii-sliot from tlio coast — is coiisiili'iiil iis liuldiiyiiig to tlio lenitory of lliat State. Treaties or nffrccinonts can estaMish otlier and more, l>reeisi' liiiiitit still we preserve the principle : " Terror ilominiuvi finitur, vhi finititr armonim ris." " Within certain limits, there are submitted to the sovereignty of the liordering State: — " (((.) The jiortion of the sea jjlaced within a cannon- f:o depen- dent on them tliat they cannot be contented, in certain gulfs, with the portion of the .sea lying under the tiro of cannon from the coast. These exceptions from the general rule of the liberty of the sea can only lie made for weighty reasons, and wlion the extent of the arm of the sea is not large ; thus, Ihulsou's liay and the Gulf of Mexico evidently arc a part of the open sea. No one disputes the power of Enghiud over the arm of the sea lying between the Isle of Wight and the English coast, which could not bo admitted for the sea lying between 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 Chambers," some considerable extents of the sea. Kluber " Droit dcs Genr Modorncs de I'Europe (Paris, Mitiou 1831)," vol. i, p. 21G:— "Au territoire maritime d'un £tat appartiennent les districts maritimcs, ou parages susccptibles d'uno pos- session exclusive, sur lesfpiels I'Etat a acipiis (par occu- pation ou convention) et continue la souverainete. Sont de cu nombrc: (1) les parties do I'ocean (jui avoisinent le territoire continental de I'Etnt, du moins, d'ajiri^s I'opinion pres(|ue gijneralenient adoptee, autant qu'elles so trouvent 80U8 la portee du canon ([ui semil place sur le rivuge; (:.') les parties de Toci'^an (pii .s'etendeut dans le territoire continental de rEtot, si elles pen vent etre gouvemces par le 103 canon des deux bords, on (lue I'entri^e soulemeut i.'ii peut «tre d(5fendue iiux vaisscaux (golfes, baios, et ciilcs); (3) les diitroits ([tii si5parent deiix continents, ct cnii I'gale- ment 3ont sous la \miic dii canon place? sur le rivage, on dout rcntnl'o ut la sortio pfiuvcnt Ctre d(5fendues (dctroit, canal, bosphore, sonde). Sont encore du mSme noinbre ; (4) les golfes, detroits, et mors avoisinant le territoiro continental d'un fitat, lescpiels, quoiqii'ils no eont pas entiirement sous la port(5e du canon, sont ndanmoins reconnus par daxitrcs I'uissances comme mer ferniee; c'est-i-dirc, coninie soumis i\ line domination, et, par con- 8(/'iiient, iiiaocessibles aux vaisscaux I'trangers qui n'ont point obtenu la permission d'y naviguer." Ortolan, in his "Diplomatic de la Mcr," pp. 146, 153 (Edition 186A), after laying down the rule, that a nation had control over the navigation iu a strait or i-oad whose width did not exceed 6 miles, continues : — " On doit ranger sur la memo lignc que rades, et lea portes, les golfes, et les bales, et tons les enfonccments eonnus sous d'autres (k'nominations, lorsque ces enfonce- ments, formes par les terres d'un memo £tat, ne depussent pas en largcur la double port<5e du canon, ou lorsque I'entree peut en etre gouvemde par I'nrtillcrie, ou qu'elle est defendue naturelleraent par des iles, par des bancs, ou par des roches, Dans tons ces cas, en effet, il est vrai de diro que ces golfes on ces baies sont en la puissance de r£tat maitre du territoire qui les ensen'e. Oet fitat en a la possession ; tons les raisonnements que nous avons fait iV I'l^gard des ratles et des ports peuvcnt se ii^pi^aer ici. Les bonis et rivages de la mer qui baigne les cotes d'un Ctat sont les limites maritimcs naturdUs de cet £tat. Mais pour la protection, pour la di^fense plus efficace de ces limites naturelles, la coutume gunerale des nations, d'accord avec beaucoup de Traites publics, pcrmettre [sir] tracer aur mer, il une distance convenable des cotes, et suivant leurs contoui-s, une ligne imaginaire qui doit etre consiilt'ree comme la frontiere maritime aitilicielle. Tout batimcnt qui so trouvo a terre de cette lignc est dit etre dans lea caux de I'fitat dont elle limite le droit de souve- raincUS et de juridiction." nautcfcuillc, " Droits et Devoirs des Nations Neutres," torn. 1, tit. 1, eh. 3, § 1 :— " La mer est libre d'une maniiro absoliio, sauf les eaux baigiiant les cotes, ipii font partie du domaine de la nation riveraine. Ix-s causes de cette exception sont (1) epic ces portions de I'oct'an sont susceptibles d'une possession continue; (2) que le peujile (pii les possi'do peut en oxclure lea autres; (3) qu'il a inti.'ret, soit pour sa si5curiti', soit pour conserver les avantages qu'il tiro de la nior territoriale, i\ pronoucer cette exclusion. Ces causes eonnues, il est facile^ de poser les limites. Le domaine maritime s'arrete i I'endroit on cesse la possessinn IM continue, oii le peuple propridtaire ne pent plus cxcrcer sa puissance, !i I'oudroit oii il nc fjeut plus I'xcluro les dtmngers, enfin h I'endroit oii, leur prt^sence nV'tant plus dangcri'use pcur sa sftrett*, il n'a plus int^rft de les excluie. " Or, le ])oiiit oi cesaeut les trnis causes (pii rcmlent la mer susceptibls de possession piivde est le nierae : c'est la limite do la puissance, qui est representee par les machines (le ;,'utTre. Tout Tespace parcouru par les projectiles Inuci's du rivnge, protegt' et d(5f('iuhi i)ar la puissnuce de ces umcliines, est teiTitorml, et souniia an dotnaine du niaitre rle la cote. Li» plus jjrande porU5e du canon inontO k terre est done r^ellement la limite de la mer ten-itoriale. " En eflet, cet cspace seul est rdelleraent soumis b. la puis- sance du Souverain territorial, li\, mais lii seulement, il pent fiiiro respecter et executer ses lois ; il a la puissance de punir les infmcteurs, d'exclure ceux (ju'il ne ))eut pas admettre. Dans cette limite, la pn'sence de vai.sseaux etrangers veut menacer sa sftrete ; an deli, elle est indif- forente pour lui, elle ne pent lui causer aucune inquietude, car, au dola de la portde du canon, ils no peuvent lui nuire. La limite de la mer territoriale est rcellement, d'apr^s le droit priinitif, la portee d'un canon place i\ teiTe. "Li! droit sucondaire a sanclionne cette disposition; la plupart des Traiti's qui out parld de cette portion do la mer out adopte la meme regie. Grotius, Hubner, Bynkerslioek, Vattel, Galiaiii, Azuni, Kliiber, et prescpie tons les publi- cistes modernes les i)lus justement estimes, out pri ; la p.ntde du canon comme la seu'e limite de la mer territoriale qui fut ratiounelle et conforme aux prescriptions du droit primitif. Cette limite naturelle a M reconnui! par un gi'and UGUibre de peuples, dans les lois et reglements interieurs. " Les cotes de la mer ne piiisentent pas une ligne droite et rdguliere ; elles sont, au contraire, prescpie toujours coupees de bales, de caps, &c. ; si le domaine maritime dovait toujours etre mesure de cliacun des points du rivage, il en ri'sulterait de graves inconv^nients. Aussi, est-on conveuu, dans I'usage, do tirer une ligne iictive d'un pro- montoire ^ I'autre, et de prendre cette ligne pour point de depart dc la portee du canon. Ce mode, adopte par presque tous les peuples, ue s'applique qu'aux petites bales, et non aux golfes d'une grando etendue, comme le Oolfe de Gascogne, comme celui de Lyon, qui sont en rikliti de gruudes parties de la mer complitenient ouvertes, et dont il est impossible de nier rassimilation complete avec la haute mer." The latest English writer, Mr. Amos, in his edition of Manning's " Law of Nations," which is praised and quoted with approval by Lord Cockburn in Queen v. Kcyu, extends the jurisdic- tion of a State to the watei-s of bays whose width is more than 6 miles and less than 10 : — " An obvious right enjoyed by every State equally, is 105 the claim to have uii ciiuftl slinre in tlio (!iijiivmeiit of nuch things lis arc in ihuir natuiu loninmn tn all, wIicIImt from not lieini,' Husccptiblo of ftpproiiiifttioii, or frim iioi liaving been ua yet, in fact, appropriated. Such a tliiiij,', [iro- eniinently, ia the open sea, whether treated for pHri)OS(;s of navigation or fishing Ncvortheless, for sonic limited purposes, a special right of jurisdiction, and even (lor a few definite purposes) of dominion, is conceded to a Slate in respect of the part of the otean immediately adjoining its own coast-lino. The purjOTses for which tliis jurisdic- tion and dominion have lieen recogni/.wl are (1) the regu- lation of fisheries, (2) the prevention of frauds on Customs Laws; (a> the exaction of Imrljour and liglit- houso .. sattribuer un droit exclusif .'■ur ces parties voisincs de la mer (mare proximum) sus- ceptiblea d'etre maintennes du rivage. On a I'nonce diverses opinions sur la distance k Inciuelle s'etendent loa droits du maitre du rivngo Aujourd'hui toutes les nations de I'Europe convienncnt que, dans la rfegle, les (Wtroits, les golfes, la mer voLsine, appartiennent au maitre du rivage, pour le raoins jusqu'a la portee du canon tpii pourrait etrc placi'' sur Ic rivage. " On verra ci-apres ([ue la pleine mer ne pent dovcnir I'objet d'une proprieto pilus ou raoins exclusive, d'une pait, [570] 2 E 106 pavce que sou usage est indpuisable et innocent en lui- mrnic, d'autro part parce que, n'dtant pas de nature k etre occupuo, persoune ne peut s'opposer h. sou usage ; mais do ce quo lii uier n'esfpas susceptible de I'appropriation de riiotuuic pav suite do rimpossibilitt' pour lui do la retenir sous son ob(5is3auce, et d'on exclure les aiitres horames ; et aussi, 4 raison de son immensite et de sa qualit<5 d'fitre int'puisnble, il iiisulte que pour les parties de I'ocdan qui n(i iviuiissent pas cos conditions, pour celles (pii par leur natiire pouvent subir la domination de riiommo et I'ex- clusion dos autres, pour cellos, enlin, dont I'usage oomm\m ne saiirait etre mnintenu sans nuire i\ la nation interossde, ct qui sont susceptibles de propridtt', le principe de la lil '. s'eliAce etdisparait. Cela a lieu notamment pour les mors territoriales et pour les uiers formdes. Par Texpres- siou de ' niers territoriales,' il faut entendre celles qui baiguont les cotes d'une nation et la servent pour aiusi rtiri! de frontiire. Cos niers sont souraisos ii la nation maitrosst de la cote qu'elles baignent, et peuvent etre nkluites sous la puissance de la nation propriijtaire, qui a dos lors le droit d'eu exclure les autres. La possession est soutenue, cntiire, de menie que s'il s'agissoit d'un llcuve, (I'un lac, ou d'une parlie de territoire continental. Aussi tous les Traites leconnaissent aux nations dans un intoret de navigation, de peclie, et aussi de d(!'fen8e, le droit d'im- jioser leurs lois duns les mors territoriales qui les bordent, de meme que tous les publicistes s'accordeut pour attribuer la proprit'ti' do la nier territoriale i\ la nation riveraine, Mais ou s'esl longleiups demaude quelle etait retonduo do cette partie priviV'giee de la nier. Les anciens auteurs portaient tres loin les liniites du territoire maritime, les uns a 60 niilles (c'otait Topinion generale au quator/ienie siecle), les autres a 100 niilles. Locccuius, ' de .Tur. Marit.,' lib. v, cap. iv, § 6, parle de deux jourmjes de chemin ; Valin, dans son ' Commentaiie sur I'Ordonnance de 1G81,' [Mopose la sonde, la port<5e du canon, ou une distance de 2 lieues. " D'autres auteurs out pcnsi'' que I'l'teudue de la nier territoriale ne pouvait etre nigleo d'une maniere uniforme, iiiais dcvait etre proportionnc'e a riniportance de la nation livoraine. An milieu ilu ce.s opinions contradictoires, il fiiiit, suivaiit Ilrtutefeuille, ' Droits et Devoirs des Nations Xfiutres,' 2ude (!'dition, tome i, p. 83 et suivantes, pour fixer ces pri iCipes, remoiiter aux causes ([ui ont fait exceptor de la regie dc la liborte des mors, les eaux biiignant les cotes, ct (|ui les ont fait ranger dans le doniaine de la nation riveraine. Ces causes iHant quo ces portions do la nier .sont susceptibles d'une possession continue ; que lo peuple qui les possedo peut en exclure les autres ; enfin, qu'il a interet i prononcer cette exclusion, soit pour sa sc^curite, soit h, raiton des avantages que lui procure la mer terri- toriale, le domaine maritime doit cesser la ou cesse la pos- session continue, la oil cessent d'atteindre les machines de guerre. En d'autres termes, la plus grniide jxirteo du canon placi' a lerre est la liiiiite do la mer territoriale, lcrr(K poteMas finititr, uhi Jinitur nrmorum vis; et nous aevons njouter ijue la plupart des Traites ont adoptd cette riglo • 107 Ijeaucoup dc pcuplcs I'ont lecoiinuo tlans lours lois ut leurs ivglements ink'riours; prcsque tous les publicistes I'ont regardc; comme rationnelle, iiotamment, Orotiiis Hubncr, Bynktrshoek, Vattel, Galiani, Azuni, Kliiber. " All resto, Ic domaim; maritime no se mesuro pas di' chacun Uos points d\i rivagu. On tin; liabitiielli'mcnt un ligne fictive d'un promontoirc I'l I'autn:, ut on la prcnd comme point de d.!part dc la port/o du canon ; ( cla se praticpie ainsi pour Ics pclites baics.los golfcs d'unc grande (■■tcndiii! I'laiit assiniik's a la plcinc mev. La conservation du domaino de la mer territorialc par la nation vivoraine n'est pas subordoinice h. I'utablisseuient ot a I'cntietion d'ouvragcs permancnts, tels ([ue batteries on forts; la souverainetc de la mer territorialc n'est jias plus subor- donm;e ii son mode d'exercice que la souverainetu du terri- toire memo. "Ajoutoiis un mot sur les mers fermees, ou interieurcs, qui sent les golfes, rades, baies, ou parties de la mer qui ne comnjunicpient h I'ocian que par un detroit assez rcssern' pour i-tre reputees faire partie du domaine maritime de l'£tat maltre dcs c6tes. La qualitc de mer fermie est subor- donnte i\ une double condition: il faut, d'une p;at, qu'il soit impossible de penetrer dans cette mer sans traverser la mer territorialc de I'fitat, tt sans s'expo.=er a son canon ; d'autre part, il faut (pie toutcs les cotes soient souniises a la nation maltresse du diitroit. "Mais uno nation ne peut-elle acqueiir un droit ex- clusif sur des ticuves, dcs dctroits, des golfcs trop larges pour etre coviverts par les ciinons du rivage, on sur les partii!S d'une mer adjacentc qui passent la portee du canon, ou mcme la distance de 3 Heues ? Nul doute d'abord qu'un tel droit exclusii' ne puissc etre riC(pu3 c-fintre vuio nation individuelle qui consent i le rcconnaitrf. Cepen- dant, il semble ineme cpie ce eousentcuient ne suit pas un requisite essentiel pour ime telle acipiisition, en taui que le maitre du rivage se voit en ('tat de maintenir a I'aide du local, ou d'une flotte, ct qu.; la surete de ses possessions territoriales ulVre une raison justificative pour I'excbision des nations ^trangeros. Si de telles parties de la mer sont s\iseeptiblos de domination, o'est une question de fait de savoir lesquels de ces detroits, goll'es, on mers adjacentes, situes en Europe, sont libres de dominalicju, lesipicls S(uit domines (i-liii(sa),uu quels sont ceux sur la lilieite desquels on dispute." 1)0 Cusscy. " riiases ct Causes Cc-liibrcs du Droit Maritimo dcs Nations." (Loipziir, Kd. 1860), liv. i, lit. 2, §§40, 11:- "Mais la protection du tcrritoire de I'fitat du eute de la mer, ct la [leclie, qui est la prineipale ressource des liabi- tants du littoral, out fait conqire'uhe la necessite de leeon- naflre un territoire maritime. Ou, mieux encore, une mer territorialc, dependant de tout Klat liiverain ards assert exclusive jurisdiction over a coastal limit of 100 miles in that sea, Buch au assertion established no right or authority according to international law. Phillimorc I, § 174 :— " The riglit of navigation, fi.'iliing, and tlie like upon tliu opeu sea, being jura incra- facidtotis, riglits which do not ro(iui]e a continuous exercise to maintain their validity, but which may or may not be exercised according to tlie free will and pleasure of those entitled to them, can neither be lost by non-user or prescribed against, nor acquired to the exclusion ot others by having been inimemorially exer- cised by one nation only. Ko lu'esnmption can arise that those who hat'e not hitherto exorcised such rights have abandoned the iutention of ever doing so." 109 Wheaton, Elements, J 187. Cf. Ortolan, " Diplomatie d* la Mer," torn. I, pp. lao-iae. Calvo recognizes the temptation wliieli the proximity to the coast of " fish, oysters, and other shell-fish " aiVords to nations to cxtcntl their sovereignty beyond the 3-mile limit. Yet, instead of permitting such an extension, espe- cially when supported by long use, he distinctly says : — " Do pareillt's derogations aux prineipus uiiiveiselle- ment recoiinus out l)esoiii, pour dcvonir DbligiUuires, d'etre sanctionndes par des Conventions expresses et dcrites." The reason which flows from the nature of prescription, however, is sufficient to establish the point in question, without the aid of authority. Unlike adverse possession or limitation, prescrip- tion rests for its validity on a presumed prior grant. Now, in international law there is no room for such a presumption. National archives are not so susceptible of oblivion and destruction as to call it into existence. Adverse possession and limitation have no place in raarine international law. The controversy between Grotius and Selden as to the right of appropriation by a nation of the sea 1)eyond the immediate vicinity of the coast is thus reviewed by Wheaton : — " There are only two decisive reasons applicable to tlie (lueslion. The first is physical and ninterial, which would alone be sufficient, but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy ; — i " 1. Those things which are originally the common pro l)erty of all mankind can only become the exclusive pro- perty of a particidar individual or society of men by means of possession. In order to establish the claim of a particidar [nation to a right of property in the sea, that nation must obtain and keep possession of it, which is impossible. " 2. In the second place, the sea is an element which belongs equally to all men, like the air. No nation, then, has the right to appropriate it, even though it might lie physically possible to do so. " It is thus demonstrated that the sea cannot become tiie exclusive property of any nation. And, consequently, the u.se of the sea for these purposes remains open and com- mon to all mankind." In a note on the foregoing passage of Wheaton, llx. Dana a^lds that— " The right of i r.e r.alion to an exclusive jurisdiction over an open »ea was, as stated in the text, vested solely on [570] 2 F 110 a kiud of prescription. But, liowever long acquiesced iu, such an uppropiiation is inadmissible in the nstare of things, 1111(1 whiitever iiiny be the evidence uf the lime or nature uf the use it is set aside as a bad usage, which no evidence can make legal. The only question now is, whether a given sea or sound is, in fact, as a matter of politico-physical geography, within the e.xclusive jurisdic- tion of one nation. The claim of several nations, whose borders surround a large open sea, to combine and make it marc damum against the rest of the world, cannot be admitted. The making of such a claim to the Baltic was the infirmity of the position taken up hy the Armed Neutrality in 1780 and 1800, and in the Eussian Declara- tion of War age'iin England in 1807." He then quotes the following authorities in support of his position: Ortolan, "Dip. de la Mer," I, 120-12G; Kent's "Comm." (Abdy's edit.), 1, 110-112 ; Wildman's " Int. Law." I, 71 ; Heffter, " Europ. Volkcrr.," § 7o ; De Cussy, "Droit Marit.," liv. I, lit. 2, § 39; Halleck's " Int. Law," I, p. 135 ; Woolsey's " Int. Law," §§ 51-56; Manning's "Law of Nations," 25; EayiK^val's " De la Libcrt«5 des Mors," II, 1-108 • Ilautcfeuille, " Droits des Nat. Neutr.," liv. I, lit. I, eh. I, § i ; " Twee Gehroeders," Rob. Ill, 336; " Forty-nine Casks of Brandy," Hagg. Ill, 290. Wheaton proceeds to state that — " By the generally approved usage of nations, which forms the ba-sis of international law, the maritime terri- tory of every territory extends : — " 1. Ti; the ports, harbours, bays, mouths of rivers, and adjacent part.s of the sea inclosed by headlands belonging to the same State. " 2. To the distance of a marine league, or so fur as a cannoii-.shot will reach from the shore, along all the coasts of ihe State. " 3. To the straits and sounds, bounded on both sides by gee also §§ 188- tbe territory of the same State, so narrow as to be com- 190. ihauded by cannon-shot from both shores, and communi- cating from one sea to another. " The liehring Sea can be brought under the head of neither strait nor marginal belt. In that it is not entirely surrounded by land, it falls short of the requisites of an inclosed sea. For not only is the Behring Strait 30 miles vide, and the distance between many of the islands forming the southern boundary of this sea far in excess of tliat, but the distance between the last island of the jVU^itian chain and the nearest Russian island of the t.'ouimander group is 183 miles. "Again, regarded as a bay or gulf, the Behriiig Sea fails lo enter the category of closed seas. For waiving all lihysico-geographical olijeotions to such a classitication. Ill Droit, &c., t. I, I. I, c. xxiii, §291. tlieic still ruiiiaiiis to its Lliaiiii'ttr ol' closed scu tliu instiiieniljlo olyoctiou of iiiii>03siliility of possession, "The iiiiiiiu buy or gulf does net iieees.siinly eany uitli it the idea of possessibility, and intenmtionul law, when importuned to aceord sueli a character to the liehrin.; Sea, cries out with Vattel : — '"Mais je parlo des haies et ditroils de jhmi d'i'tcndne, et Hon di' ces grands espaees de mtr, auxcpiels on donno quelquefois ces nonis, tels (pie la Haie do Hudson, lu Detroit do Magellan, sur lescpiels I'Knipire ne saurait s'etcudre, el luoins encore la proprietcV " Under the elausps of tlie Convention of the 8th Fcl)riiary, 1853, the case of tlie " Washing- ton " came heforc the Joint Commission for settlement of claims in London, and on tlii^ disagreement of the Commissioners was decided hy Mr. Joshua Bates in favour of the United States. In his decision he said : — " The cpiestion turns, so far as relates to the Treaty stipulations, on the meaning given to the word ' liajs ' in the Treaty of 1783. I)y that Treaty, th Vmericaiis had no right to dry and cure lish on the shoivs and hiijis of Newfoundland; hut they had that right on the sliores, coasts, bays, harhmin, and nneks of Nova Scotia ; and, a.s they mu.st land to cure lish on the shores, hays, and creeks, they were evidelitly adniittiHl to tlie sliores nf the btii/s, marine miles outside of this line ; thus closing all the bays on the coast or shore, and that great body of water, called the Bay of Fundy, against Americans and others, making the latter a liritish li.ay. This doctrine of tlic headlands is ni'W, and has received a proper limit in the Convention between France and Great ISriUun of tlie 2nd August, l8.'Si1 ;* in which ' it is agreed that the distance of 3 miles, li.\ed as the general limit for the exclusive right of lishery upon the coasts of the two countries, sliall, with respect to liavs • Tiiis Convention between Fr.iiice ami Otcat Ilritain cxtcndcil the headland docirino to ijavs 10 miles wide ; tluif» (;olng hovond the t; iiei-al rule of international law, i.ecording to which u^ t iivs ar.' treated as within the territorial jurisdiction of .t ^tute whieli arc more than miles wido on a etrai^ht line measured from one headland (o the other. 112 llii' imiutlis iif wliitli (In not I'Xfccil lO liiili's in wiiltli, lie iiii'ii^mcil I'liim a slrnij;lit line iliawii Ironi licmllaml In licuillaiiil.' • Till' Hii.v ul Kiiiuly is Imiii (i.'> tn ";"> miles widtt ami i:i(i III I 10 miles liiiif,' ; it Ims si'VltuI baya on its (•mist ; lliiis lln' word ' liay,' as applied to this f,'rciit body of wator, lias lliii saino mwiuiiiy as tliat iili|ilit'(l to tlic Hay of Hisray, the liay of nun;,'al, over wliicli no natinii ca'i liavc the li^lit to assunm soveri'ijjnty. One of the lifadlandH of till' liay of Fnndyis in tlie I'nitod Statcfl, and nliips bound to I'assamaiiuoddy nmst sail throiifjli u Inryo apnco of it. The islands of (irand ^lanau (Uriti.sb) and Utile Maiian (Amenean) are situated nearly on a liiiu from lieadland to headland. Th(;sc islands, as repro.sentod in all gpogmphica, lire silimt(^d in the Atlantic Ocean. The eoneliision Is IheR'fore in my mini! irresistible that the Hay of Fundy is not a liritisb bay, iiur a bay within the meaning of the word as used in tlie Treaties of \~K\ and 1818." The A'^eiit for the United States bcl'oro the Ualil'ax Fisheries Coininission, 1877, quotes this decision, and adds the following note : — "The I'tissiau claim to e.xlraordiiiary jiirisdiilion was expressly founded on a supposed right to hold the I'acilic as 'iiutre ihiusviii, because that nation ( laimed the ierrit(jry on both sides : — " ' Vn droit e.xelu.sif do doniainu el de souveraineti' de la Ortolan, " K(!gleit part d'une nation sur une telle mer n'est incontestable Jn.'e™""on»]e' «' ' Uiplomatie dc la qu'autant ipic crtle mer est tutalciiiciit ciirlttn'c dans ce .Mer," vol, i territoire de telle sorte qu'ello en fait partiu inh'grante, el. P- l'*^- qu'clle ue pent absolumcnt servir do lieu de coinmunica- tioii et de commerce ipi'entre les souls ci( i,in.'! de cette nation,' or, in the words of Sir Travers Twiss. ;- entirely inclosed by the territory of a natioii, and lia^ no oilier communication with the ocean than b • a ohuniul, of which that nation may take possess! -.ii (' Rights and Duties of Xalions in lime of I'eace,' p. 174.)" So Halleck says : — "21. It is geueiiiUy admitted that the territory of u Halieck's State includes the .se:w, lakes, and rivers entirely inclosed International Law, Tol. 1, cap. 0, within its limits. Thus, so long as the .shores of the pp. 143-145. Black Sea were exclusively possessed by Turkey, that sea might with propriety be con.sidered as a mnrc claiimm ; and there seemed no reason to question the right of the Ottoman Porte to e.\< hide other nations from navigating the passage which connects it with the Jleditcirauean, both shores of this passage being also portions of the Turkish teiritory. But when Turkey lost a part of her possessions bordering upon this .sea,andltussia had formed lier commercial establishments on the shores of the Euxino, both that Empire and other Maritime Powers tecame entitled to participate in the commerce c*" the Black Sea, and consequently to the free navigation of the Dardanelles and the Bosphorus. 'This right was expreasly recognized by the Treaty (f Adrianople in 1829. * * * * • 118 " 22. Tlio nTuat inland Inkus niul their navigaWo nutlets art" coiisiileri'd iis subject tn the samo ruk- as irilaml sens ; wluns iTiclcwt'iI witliii: llie liliiils ol a single Stale, tliey are regardeil a' '".!„. igiiij.' to tliu territory of tlinl State , but if dilfereut iiatioiis nccuiiv their Imrders, the rule of fitare ctaitaum cannot he ajiplied to the navigation and use of their waters." Professor Jaincs B. Angell, ono of the United Htntfs' l'l('iii2)ot(;iitiarics in the nogotintioii of tLo FislioricN Treaty at Waslilai,'toii in 1888, and an (uninent jurist in an article entitled " American Rights in Uorirg Sea," in "The Eorum " for Novemlior 188!), wrot(! : — "Can wo sustain a e.laiiii that liehriug Sen is a closed sea, nnd 90 sulijev.t; to our control ? It is. |)erlmii3, inipossilile to frame a definition of a elosed sea wliicli the publiciat-s of all nations will accept. Vattel's closed seu is one "entirely inclosed hy the land of a nation, with only a couiniiinication with the ocean hy a channel of which that nation may take possession.' Haut(!feuillp substantially adopN this statement, asserting more specilically, however, thai the channel nnist be narrow enough to be defended from the shores. I'erels, one of the more eminent of the later German writers, practically accepts Ilautefeuille's delinition. But so nairow a channel or opening as that indicated by the eminent French writer can hardly be insisted on, I'robaldy, most authorities will reganl it as a reasonable requirement that tlie eiitrance to the .sea should be luurow enough to make the naval occupation of it easy or practicable. We, at least, may be expected to pre.sc;ril)e no delinition which would make the Gulf of St. Lawrence a clo.sed sea. " Behring .Sea is not inclosed wholly by our territory. From the most western island in our possession to the nearest point on the Asiatic shore is more than 3u0 miles. From our most western island (Attou) to the nearest Uussian island (Copper Island) is 18:) miles, The sea roni east to west measures about 1,100 mUes, nnd from north to souih fully 800 miles. The area of the sea nnnt be at least two-thirds as great as that of the Mediterranean, and more than twice that of the Xorth .Sea. The Straits of Gibraltar are less than 'J miles wide. The chief entrance to the (!ulf (jf St. Lawrence, which is entirely surrounded by Britiih territory, i ■ ■m\y about 50 miles in width. Behring .Sea is open on tiie north by the straits, 3G miles wide, which form a passage way to the Arctic Ocean. On what grounds and after what modern pre- cedent we could set up a claim to hold this great sea, with its wide approaches, as a mtire claiisini'. it is not ea.sy to see." :ilr. T. S. Woolscy, Professor ot International Law at the Yale Law School, in the sixth edition of T. D. Woolsey's " Treatise on Iiitcrnatioiial f570] 2 G