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This item is filmed at the reduction ratio checked below/ Ce document 6«t film* au taux de reduction indiqu* ci-dessous. 10X 14X 1£X 22X 26X 12X 30X 16X 7 20X 24X 28X 32X e itails 8 du )odifier r una Imbge rrata o )elur«. J 32X Tha copy filmad hara haa baan raproducad thanka to tha ganaroaity of: Law Library York University Toronto Tha imagaa appaaring hara ara tha boat quality poaaibia conaidaring tha condition and iagibility of tha original copy and in kaoping with th« fiiming contract spacificationa. Originat copiaa in printad papor covara ara filmad baginning with tha front covar and anding on tha laat paga with a printad or illuatratad impraa- •ion, or tha back covar whan appropriata. Ail othar original copiaa ira filmad baginning en tha firat paga with a printvd or illuatratad impraa- •ion, and anding on tha laat paga with a printad or iliustratad impraaaion. 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Toua laa autraa axamplairaa originaux aont filmte an commandant par la pramlAra paga qui comporto una amprainta d'impraaaion ou d'iiiuatration at an tarminant par la darnlAra paga qui comporto una talla amprainta. Un daa symboiaa auivants apparaltra sur la d'irniAra imaga da chaqua microficha, salon la caa: la symbols — ^ signifia "A SUIVRE", la symboia y signifia "FIN". Laa cartaa. planchaa, tablaaux, ate, pauvant dtra filmte A daa taux da reduction diffirants. Lorsqua la dc^umant ast trop grand pour Atra raproduit an un saul clich«, il eat film* A partir do I'anglo sup«riaur gaucha, da gauche A droite, et do haut en baa, 9n prenant le nombre d'imagea n^cassaire. Las diagrammtM suivants illustrent la m^thode. 1 2 3 A, m 5 6 IvEXTKR • ; ;■ V' '--V''''' TO THE / ■ ':...■••^;:';'^i.■^;>'^ ' ■ « ■- ■ • , ■ . V.J?-. ... : •■ v", '- ■ RELATING TO .'■•/. •:f¥i^n:- WASHINGTON,- D.C.' '•>*'' Gibson Bro^,, Printers and Bookbinders. , 1888. ^iftSsiiiS8iifii^ HMH ■'■:■. ..V n ■Vfif' P i87or ^••: e; ■ -■; ^1 y ;■ ,-:\'^ ■"^ f^^^^*li^^~ ' r-. maiosita^idS^: f ' ■' V .^/^•■»'j ^si'vr ' T ') .-,-:-^.v^i;:ipe* mmaauummi . .■•IT" ■*y ,n.'- ■■.■Tt-.'. • • •' •■•'*,;• •„ ■f-'w V. • .V 1 70* CO* S-iAc 50° 40' 30' ■:.';'**:yTP*'nl • »1 •» )■■;!*< 5^.* m 'St.\^tc; ti:i 'tP^m ■'r-^S' 'i «<-■■■*'■. Cd ■'i'..'.i H' .V:2:. vfi ■■^r- !^.'-, Vll t.-*! «■■,-■.' ''S'li^. )£i-# •^^tL^^.j kAjS.jAak.'an't ^>''i;.V4.H ^"fT'if iii"ii7lliii>n , WASHrNoroN, D. 0., January 14, 1888. IIoii. Thomas F. Bayard, Secretary of State. .-.owa, ,;K £s^f -jr 'l'"' I. have boon «J^^ !J1^ ^"'T""'''° """"^""''^'^ " I>o,.s ..outing .„' ir. ; Sea Z; " l' "jr, T "' notated by the SfnfA Ho . ^" -^ ^''nuies, compiled nnd un- -on J'^^::s:zrz:z2''' ^-^'^^ -- - ll>e result of my exuminutioii I be- i.e8Dcctf..IW f . i -. to your considei'ufio.. wIM. ft i ''''«=/ ^'^P^^"'»li.V to submit " i".vo been do rivo/ft.ontRl"!"''' 'V™'<=''^ "'Ij^ont thereto " to t«.e the history of temi.,Hn, '"'TT^' thoretoro, " the Russian possesLnl In Vi . °^ "'" ^""'^^ States to ;; Ah.slca to the'STs „ e"s i r 807^' "^^X^"" ■'"''''''" "^ «»\ ■ :^ I. — Thk Contention. Whatever may have been the contention or claims of tho United States and Great Britain prior to the conventions of 1824 and 1825 with Russia, in reference to thoir respective riglits to frequent the northwest coast of America, those treaties adjusted and settled them ; and it is scarcely worth while now to recur to the antecedent correspondence, which is fully set forth in the pamphlet, in order to learn the preciso object of this Government at that time, but rather content ourselves with ascertaining wl>at it actually secured. This, 1 presume, will be attained by a careful examination of ilio treaties themselves— taken as entireties, with " the restrictions '• and conditions " that define and control their general terms. Before referring to the conventions, I beg to allude to tho incidents which produced them. I need not remind you that the Imperial Ukase of 1709 conferred upon tlio "Russian American Company" exclnsivo jurisdiction of all the Russian Possessions in North America, from tho extreme north to the 55th parallel of north latitude on tho coast of the Pacific ocean ; and on the west coast to the border of Japan. ' This grant was followed by occupancy, and no objection was interposed by the United States, Great Britain, or any other power. In 1821, a new charter was issued, by wliich tho jurisdiction ^ji^iM'- i^ '^i^' ^.# ^&"''vf •^»?Vi'lt,S;:^V ^;*v'i-->;?H'-i;Ui'-iirs (£ of the company was extended four degrees further south, to latitude 51°. This was in conformity to the bccond article of the original charter, which directed the company " to make " new discoveries, not only north of the 55th degree of north " latitude, hut further to the Routh, and to occupy the new « lands discovered, aa Hussian possessions, pccording to pro- " scrihed rules, if they have not been previously occupied by " any other nation, or been dependent on another nation." In the meantime, foreign traders, by the sale of spirituous liquors and firearms to the natives of the country, in exchange for furs, had come in conflict with the Russian-American Com- pany, not only interfering with its business but demoralizing the inhabitants. To remedy this, the Ordinance of Septem'^cr 16, 1821, was issued by the Emperor Alexander, defining the extent of his jurisdiction in America, and forbidding foreign vessels from approaching the coast or islands north of 51° north latitude, or " to within a distance of less than orie hundred Italian miles." To this extension of jurisdiction Mr. Adams eiitercd a pro- test. The tenor of that instrument, while asserting our right to navigate the high seas, does not repel the right asserted by llnssia, except as to wiuit he terms " the assertioii of a new pretension," viz., the extension of Russian jurisdiction to the 51st parallel of north latitude, and the prohibition to the ves- sels of other nations to approach within one hundred Italian miles of the coast. And, to the suggestion of Mr. Poletica, that " the extent of sea, of which these possessions form the "limits, comprehends all the conditions which are ordinarily " attached to shut seas (mers fermc^es).'' Mr. Adams replied : " It may sufKce to say that the distance from shore to shore ," on this sea, in latitude 51® north, is not less than ninety do- " grees of longitude, or four thousand miles." In his instructions to Mr. Middleton, Mr. Adams said : ?' AVith regard to the territorial claim, separate from the right " of tralKc v/ith the natives, and from any colonial exclusions, ** we are willing to agree to the boundary lino within which ^M;.: vf'/wr-' ■^Cn-;' 'i-A," ■..3^^-: r.V.' ■ 6 " tho Einporor Pnul had granted exclusive privileges to tiio ♦'■ Riissid • Vinoriean Company ; that ia to say, latitude 55*." In Ilia despatch to Mr. Kubii, of Mio samo date (July 22, 1823), Mr. Adams said : , " The riglit of carrying on trade with tho natives through- " out tlie nortliwost const they (tho Unitod States) cannot lo- " nounce. Witii tho Kussian settlements at Kodiak, o"at Kow " Archangel, they may fairly claim tho advantage of a free " trado, having so long enjoyed it unmolested, (vnd because it " has been, and would continue to bo, fts advantageouf) at least' " to those settiomenta us to them. ; But they will not contest " tho right of Russia *o prohibit the traffic, aa strictly confined " to tho llussian settlement itself, and not extenuing to tho '* original natives of tho coast." This, tlicn, was the attitude of the United Stater ;^rior to the treaty of 1S24, and tlicso wore tho questions to bo adjusted 17 the proposed treaty. It will be remembered that no protest or objection had been made to the claim of oxclusivw jurisdiction by Hussia to tho 55th parallel of north latitude ; and, as wo have just seen, tho )^i United States admitted tho territorial claim to that extent, and *' tho principal object of the negotiation was to iix by treaty a definite boundary lino and t^ettlo tho controversy in refcroiKio to trading with tho natives inhabiting tho coast of tiio Patulic ocean. Now, it will bo observed, tluit this contention related ex- clusively to the coast of tlio Korth Pacific ocean proper, for there is no reference to any other region of country, or coast, or sen. Tho debatable ground was tiio coast between 55° and . 51" north latitude, where, in the language of Mr. Adams, " tho sea is four thousand miles from shore to shore." Kodiak and New Archunglo are mentioned as points at which tho Unitct' States " miglit fairly claim tlic advantage of a free trado ;" and while tiio Ukuso embraced tho Aleutian and Kurilc ishuidti there is no reforonco to them in the protest, nor in tho correu- pondenco or negotiation, nor in tho treaty. *' ■rrjf: ;'V'i^'- \l \\ If f Tlio explanation of this is, tliat there had heen no conflict Itclweei) American or English traders and tlio Rnssian-Anieri- can Company. except on this particilar coast. The exclusive dominion of Kussia over the Aleutian and Knrilo islands was not disputed, and her territorial right on the coast of the Nortli Pacific to the 55th parallel was tacitly, at lest, assented to \,y all the powers, the United States included. It seems clear to me, that if the protest and negotiations ^related to the southern helt of Russian territory, both land and [[^wftter, and that the qoptentiou.vi'as not confined to the coast of the Nortli'Paeific ocean proper' there would have been some reference made to the Alaska peninsula and the group of Aleutian islands which, in their prolongation, extend far south of 55° north latitude. Yet, we look in vain for any intimation ui.ywiicro questioning Russia's title to tliat peninsula and group ..f islands which she had held in undisputed possession from Ihc date of their discovery ; and when, in his instructions to Mr. Middleton, Mr. Adams stated: " We are willing to agree "to the boundary line. within which, the Emperor Paul ^," had' gmnted exclusive Vprivilegos 'to.; the Russian-American "Company; that is to say, latitude 65,r» he had reference to • a locality in relation to whose title and boundary there was n .lispute ; or, as ho stated the case to Mr. Poletioa, ^< that, in I' assuhiing now the latitude of 51° a new pretension is as- " sorted." And it was to this new pretension that he en- tered his protest ; yet, at the same time, and from the date of discovery until the cession of Alaska, tlicre was a large extent of territory, botl^ land and water, comprising a part of Russian America, extending south of the 54th parallel, that was in the tindisputed possession of Russia, and which the United States in ISGT'purchased from Russia and paid for. Not only this, but, as we shall see further on, by the treaty which followed (1824), Russia stipulated that she would form no establishments on the northwest coast south of 54° 40' nortli latitude. And yet heV title to Alaska peninsula and the Aleu- I'fiii islands, extending hundreds of miles south of tliat parallel wore, and always had boon, undisputed. ' ' 1 (. . 1 -r - j'^'i-iftrr'v % jv- mm- ■.T.'' ; /^*VV!,.,' 8 I maintain, therefore, that the contention had reference to the coast of the North Pacific ocean proper, and had no nioru relation to Bohring Sea, or its islands, than it had to tlio Alen- tian gronp, or the coast of Asia. I cite those facts in order that we may understand precisely what the questions were which the f raraers of the treaties had before them for adjustment. ' il.— Thb Tbbaties. ■^ ; The first article of the treaty between thieiUnited States and ■Russia (1824) provides ^■^;>:v(;'^PlS■fe^;^^ii^^^^^^ ,>: " Article I. It is agreed that, in any part of the grcjit " ocean, commonly called the Pacific ocean or South Sea, tlio " respective citizens or subjects of the high coritructing powers " shall be neitlier disturbed nor restrained, either in navigatiun " or in fishing, or in the power of reporting to the coasts, upon ** points which may not already have been occupied, for the " purpose of trading with the natives, saving always the re- " strictions and conditions determined by the following ur- " tides." , >. • ■ The " restrictions" and conditions referred to in the forego- ing article are: 1 . Citizens of the United States siiall not resort to any point where there is a Russian establishment without permis- sion of the Governor or commander of such establishment {Article 2). . 2. Citizens of the United States are not to form any estul)- lishments upon the nortii west coast of America, nor in tho islands adjacent, to the north of 54° 4.0' north latitude (Arti- cle 'S). , ; . ; . : .; :.!V . . • - • ■• .^ 3. For the term of ten years from the signature of tiie con- vention, the ships of botli parties are permitted to frequent tiie interior seas, gulfs, harbors, and creeks upon the coast mentioned in the preceding article for the purpose of fishing and trading witli tlio natives of the country {Article 4). 11 9 4. Spirituous liquors, firo-arms; anil munitions of war aro ex- cepted from this coiiiuierce (Article 5). The first article of the convention between Great Britain and Eussia (1826) provides : I- Si: "Article I, It is agreed that tlie resppctive subjects of the " higli contracting parties shall not be troubled or molested, in " my part of the ocean commonly called the Pacific ocean, either « in navigating the same, in fishing therein, or .in landing at «* such parts of the coast as shall not have been already occu- rh." \^}^^» "' order to trade; with the natives, under the restric- i% lotions and conditions specified in the following articles " The restrictions and conditions referred to in this article aro as follows: 1. British subjects must not land at any place where there is A Russian establishment without })ermi88ion of the Russian Governor or Commandant {Article 2). 2. No establishments are to be formed by either party with- in the limits assigned by the 3d and 4tli articles to the pos- session of the others (^?'^2C^e 5)4, .^r^^f. .,,•!; 3. English. vessels, or thpse belonging 'to English subjects, may frequent « the inland seas, gulfs, havens and creeks on *• the coast mentioned in article 3, for the purpose of fishing " and of trading with the natives" {Article 1). ■ 4. The foregoing liberty of commerce shall not extend to trade in fire-arms or spirituous liquors witli the natives of the coinitry (Article 9). : While it is true that by the first article of each of these treaties, there is . stipulation tljat the subjects and citizens of the contracting parties are free to navigate the Pacific ocean, fish in its waters, land at such points on its coast as aro not occupied, in order to trade witli t.he natives, yet this stipula- tion rests upon express and distinct conditions whicli restrict its operation to the limits winch I shall endeavor to point out. These " restrictions And conditions " aro intended to ppeciti- willy define and qualify the meaning of the instrument taken if*;' iA''>y^:V r .,'1 •»;. 'm 'J-.f'iJi r -'.'Si fiW^.: ■i^kf^' wM 10 ;>.■■?■; in its entirety; for by the very terms of the stipuliition, and couplod vvitli it, 18 the declaration that the acts porniitted hy it are to be performed " under the restrictions and conditions " of the following articles." Tlie restricting clause of the treaty of 1824, between Russia and the United States, is substantially equivalent, and is aa follows : " Saving always the restrictions and conditions de- " termined by the following articles." Now, if the succeeding articles which contain the " rcstric- " tions and conditions" prescribe the method by which the ?l acts permitted , by the first article -are to lie performed ; or ' confine them to a particular locality or region of country ; or limit their performance to a specified period of time ; it must be conceded that tiio particular method, locality, and period tlms designated were intended by the stipulation in the first article. To adopt a different rule of interpretation would con- vert a mortgage into a deed, apd a penal bond into a contra(*t to pay the penalty, without regard to forfeiture or perform- ance. Take for illustration tlie 5th article of the treaty (1825). Thia is one of the restricting articles referred to in the first article ; it prohibits the sale of fire-arms and spirituoup liquors to the natives of the country. Would it be claimed, tliat under tho stipulation of the Ist article wliich permits trading with tlio natives in general terms, that such commerce is sanctioned by tho treaty ? . Again, by tlie first article our citizens are to be " neither ' " disturbed nor restrained, either in navigation or in fishing, nr " in the power of resorting to tlio coasts, upon points wliicli " may not already have been occupied, for tiie purpose of " trading with the natives ;" but, by the second article thoy are not permitted " to resort to any point where there is a Eus- " sian establishment without the permission of tlie Governor " or Commander." So, too, in regard to tlio 4th article, which provides : '* It ia « nevertheless understood that during a term of ten ycui*a, m I i i ii iii i i ni iii a i Mi i i i 11 SA,' " coimtiii*itrM^?^^^^^ .,;?: Under tliis construction of tiio;tmty,th^ conferred by it, in reference to the nbrtliWes't •coast^^e^^^ in April,' 1834," and have not since been renewed ;altIiougli urgently requested by tliis Governmunt, it was peremptorily refused by Russia. That the foregoing is the proper and settled construction of ihe treaty I sliall endeavor to establish. Where two or moi-e appt;rently conflicting propositions are contained in the same instrument, they should he construed so as to give effect, if possible, to all ; if this is not possible, then the later is preferred to the former,' as the final conclusion of the maker of the instrument on the subject-matter in question. But whore the former proposition, in itself refers to the later, and adopts it, in tiiat case, the later becomes a part of the former and governs it; 'thus reconciling the apparent con- l^ict and givino- effect to both. Now, the apparent conflict between the first and fourth articles of the Convention of 18:^4, arises from the fact that the stipulations of the former are substantially repeated in the latter, but, by the latter, the operation of fiie stipulation 18 restricted to a specific period of duration. The first article contains a oreneral assertion of tlie right of Russians and Americans to do certain acts, wliich Mr. Adams claimed were authorized by natural law, and Mr. Forsyth by the law of nations. Admitting that to be true, it was nevertheless com- petcnt for the United States to restrict or surrender them upon such considerations as soemcd satisfactory to them. :'V„ '>5-: '. ; \f ■'. ■ ■■ - ■Ik %V--.-':itiii3&*iyi^ai.aamm%i, . '- ■^'^-'^'^-"•'■^fei^t'^^uiato^ . 'KVf°Ti"" -'"'y-*^ 12 ' In the same article that asserts this right, and coupled with that assertion, there is a proviso or stipulation prescribing tho manner in which the right slmll • be exercised ; the particulur acts permitted by the tirst article are to be performed " under " the restrictions and conditions of the following articles," ono of which, the 4th article, restricts that performance to t\\^ period of ten years from tho signature of the convention. By this construction, we reconcile the apparent conflict be- tween the first and fourth articles, and give effect to both; ^^^^^® * different interpretation would destroy tliem both, bo- p^^^^Ji^' cause, if tho stipulations of the first are not limited to ten years by the 4th, then the latter is surplusage and void ; while tho former being, as claimed, but the assertion of a natural right confers nothing, restricts nothiog, and is without force or effect. Mr. Dallas, in his dispatch to Secretary Forsyth, August IG, 1837, said: "My conviction, however, arising from the lan- " J?"ago of the Rusbian precautionary record or protocol " (which Mr. Middleton rather avoided than rejected) is that " Count Neselrode will deem himself apd Mr. Polotica to iiavo ** attained by this fourth ' article, through the use of other " words, the substance of , the clause to which Mr. Middleton " objected, and that he will consider both Governments to " have buried all controversy aljout the rights incident to tho " prior discovery of savage and unoccupied lands, and to have " consented that, at the expiration of ten years, tlie TInitcd " States sliould be esteemed to possess in full domain tho " coast and islands to the soutli, and Russia the coast and " islands to the north, of 54" 40' north latitude. He may aslc, " and with some plausibility, with what other object the fourth " article was framed. It uses no phraseology tantamount tO\ " * estuMishments ^ or 'settlements' or * points already occu- " pied ;' but p-Tiects from any hindrance for ten years only " tho power to rn.quent tlio interior seas, gulfs, .iiarboi's, and " creeks upon the coast, for the purpose of fisliing and trading " with the natives, a power already duly enunciated, without r-m 13 " limit oftime^ for both countries by the first article ; and, if " it was not intended rautually to yield tiie power in relation " to the sections divided by the parallel of Ifititude at the ex- " piration of the term, why disturb the opeifation of the liret " article at all? " ' ' . In the case of the American brig Zoriot, which sailed from the Sandwich islands Aug. 22, 1836, bound for the northwest coast to procure provisions and Indians for hunting sea otter, and anchored in Tuckessan harbor, latitude 54° 55', at which point there was no i Kussian settlement, and yroA boarded by ' the oflScers of an armed brig of the Russian navy, by whom her captain was ordered to leave the dominions of Russia, and compelled to get under way and abandon her voyage ; the United States protested and presented a claim for indemnity, which was peremptorily denied by the Russian government, on the ground that, by the expiration of the ton years' limit, of the operations of the iirst article, as expressed in article four, the right of the citizens of the United States to frequent the seas, gulfs, &c., north of 64* 40' had cea'cd to exist. ; In his note of February 23, 1838, Oount Noselrode informed ■:^ Mr. Dallas that : ' 'h^^^r-^'>im^^^;§M^i'^^^ ■'•■'■■ ' ' *; i " It is true, indeed, that the first article of the convention of "1824, to which the proprietors of the Loriot appeal, se- " cures to the citizens of the United States entire liberty of " navigation in the Pacific ocean, as well as the right of land- " ing without disturbance upon all points on the northwest " coast of America, not already occupied, and to trade with " the natives. But this liberty of navigation is subject to " certain conditions and restrictions, and one of these restric- " tions is that stipulated by the fourth article, which has " specinlly limited to the period of ten years the right on the . " part of the citizens of the United States to frequent without " disturbance, the interior seas, the gulfs, harbors, and creeks, " north of the latitude of 64 degrees 40 minutes. Now this " period had expired more than two years before tlie Loriot •' anchored in the harbor of Tuckessan." In communicating to his government the refusal of Russia IG (I '•VI ;■ " Other party, freoly wliore it is freely granted to .^uch otljor nation, on yiekUn<; the same compensation, when the grant " is conditional." Upon this state of facts, the writer of the note ahovo roforroel to conclndcs that, by the operation of the section jnst rocitoil, the renewal by England and Russia of their treaty of 1825 revived tlie 4th article of the treaty of 1824 between Rnsbia and tho United States ; and, therefore, that the said 4th article is still in force. / •.■ v:.#|fi*^>!i»?;-^A'?^'>V-??f''^^^^^ ^ ^ It is a fact worthy of notice thttt,'frpra, Jnly, (1835, to April, -^^ 1838, the United States persistently urged the renewal of tins /". article, and that the Russian ■ government peremptorily re- fused. I do not forget that by the hypothesis stated \u the note I am considering, the Uth article of the treiity of I8i52 did not take effect until the renewal of the English treaty of 1825 by the convention of 1843, and after the refusal of the Rus- sian Cabinet to renew the 4th article; but I mention the fact of refusal, a.id the reasons for it as stated by Count Nosel- rode, in order to rebut the presumption that the inaperial gov. ornment esteompd it to he the office of the llth article to accomplish by indirection or implication that which it had so persistently refused to sanction. The treaty of 1843, which revived the. convention of 1825, was a treaty bctwee^i Great Britain and Russia; the United States was not a party thereto, and, of course, could not bo bound by its stipulations. The stipulations of the treaty of 1825, which had e.Kpirud and were revived by the treaty of 1843, were : • 1. The privileges enumerated in the 7th article in reforonco to the frequenting the inland seas, gulfs, havens, ^c.- mentioned in article three. 2. That for the space of ten years the port of Sitka was to be open to British commerce. Now, it will be observed that the 7th article of the British treaty (1825) and the 4th article of our treaty (1824) aro ''.u\A ■:',■. iiv^ fi*i- i.7 .iMular in tl.eir terms ; thoir diffo.-onco con.sists in tl,o fact .., by t..o i.l, article, tl.e .tip..l,.tcd privilogo. extend to tl ai enovtl>wc8tceast of the Pucific ocean; wlnle, by the 7.1 kle, British enbjects are restricted to " the c^a.t mentioned " narticleS," wlm-.l, is the coast of .hecontinent border.ug on • ,„e Pacitic ocean, between 54" 40' north latitude and .U ...tor- section with the Hist parallel of west long.tndo ; so ha he privileges granted to Great Britain were not those o wl.ieh the Umted States were entitled, and the renewal of the treaty of 1835 1824. If wooonoeae tnai uioro.io"— "- =- „ .", o. . tl^o 4th article at all, it could only renew to the Unitod States the same privileges that it restored to England ; winch, as we l,Hvo scon, refer only to a comparatively snuvU section of the eastern coast of the Pacific ocean, more tlian a thousand nn les remote from Behring Sea. Therefore, the question as to the jurisdiction of the United States over « our part of Behring « Sea," as the eastern half of that sea is described by Mr ' - « . . • .1 ^«.«u1/>4- iTT/M-iin nor. Siunner bo rJ-tJ ^ea," as the eastern half of that sea is described by Mr : ^^^• mner in the speech referred to in the pamphlet, would not ,j^. affected one way 'or the othef>?,ji:;>|f|f^mS7|;A:^tVV;-./ J^^p^^^^ r . ■ ■.■^.i^-j-'-^vmm'^^^ ■■■■■■■■ .. i'5 IV •.' XV. Thb Sbvkntii Abtiole. . TiiG remaining question is in respectto the present right of British subjects to frequent the inlana seas, gulfs, havens, and creeks of the northwest coast by virtue of the provisions of the treaty of 1826 between England and Russia. 1., The 7th article of that treaty provides : "It is also understood that for the space of ten ye'^^^f^"^ ' "the siL'natureof the present convention the vessels of the " two powers, or those belonging to their respective subjects, *. hall^nummlly be at liberty to frequent, without any hi«- •' Irance whatever, all the inland seas, the gulfs, havens, and /creeks on the eo^st mentioned in article 3^ for the purpose •' of tishing and of trading with the natives. „..\^r,r.- '■}■' rMl ... r' itrt 18 Tt will bo obsorvod tlmt this urtiolo rostricts the opomtioii of tho first ftrticlo to the period of ten yetirs, pi-ooisoly m the 4th article of the treaty of 182i restricts the iirst article of that treaty. ^y tho 12tli and 20th articles of the treaty of 1843 between England and Russia, the treaty of 1825 was renewed for a period of ten years, '» and further, until the expiration of " twelve months after either of the high contracting parties " shall have given notice to the other of its intention to put " an end thereto." . . ■y^'^ •iih'K U'*\i- . V = W''' ^^*^"' ^y *^® convention;; pf January - 12, 1859, there was fc >^^v|tv^'' a similar renewal, with the same right reserved to either party, p ' ; ^f to put an end to the treaty after twelve mouths' notice. In 1867, the territory was ceded to the United States. By tlie sixth article of the treaty of cession it is declared : "Tlie cession of territory and dominion heroin made ia " hereby declared to be free and unencumbered by any rcsor- " vations, ^n'y/%d,v, franchises, grants or possessions, by any " associated companies, whether corporate or incorporate, " Russian or any other, or hy any other partieSy except merely " private individual property holders.". ,,,, ;.,..,. ?f!'V^#^'J\. ^'^® question now arises :•/* Did thd'stipulatione of the t ' ' ^ ' '" revived treaty of iG25 betwepn' G^reat Britain and Russia " survive tlie transfer of the territory by Russia to tho '* United States?" Russia, having parted with her title to the territory, had deprived herself of the right to give tlio notice required by tho renewal treaty ; and the United States, not being u party to the treaty, was not required to give such notice ; but I hui inclined to tlie opinion that the transfer of title by Russia constituted a notice within the meaning of the renewal treaties; and, if so, tha privileges conferred on British subjects by tho treaty of 1825 ceased to exist at the expiration of twelve months from the treaty of cession. 1 am the more inclined to this view for the reason that tho % I ■"■■ 'w:.-^!^^Lrsr'-r^'if^ff-?s-'^"T^y, 19 privileges conferred hy tlio treaty were rcciprocHlly given to tlio huhjects of Russia and Groat Britain. It was a joint rijijht, common to tlio subjects of botli powers ; and when Russia divested herself of her Mtle. and interest in tl\o territory in which these privilegee were to be exercised, and 'it became im- possible for her, for that reason, to continue to discharge her treaty obligations, it is difficult to see how England, alone, could maintain the integrity of the treaty, or enforce the stip- ulations against a power who was not a party to the treaty, and who had assumed no liability or obligation in reference to it. And, whether the termination of the treaty wore brou»o section we lire cotiBidering, the privileges it omunerutos nre .restiieted to the kainu locality, and there is nowhere in the treaty any refer- cuco to any locality which is not embraced in tiiis line of cou6t between the 5l8t parallel of north latitude and Mount St. Elias. V. — Thb Position of thb Tukasury Department. , On page 124'of . the pamphlet there isnhel following state- ment:, •■••''' ■''^'■'VV^ -i/'v-,^''^-;. „ The route of the fnr-soals to*' their homos in Alaska trav- erses the North Pacific ocean, and enters Behring Sea through llic channels which separate the Aleutian Islands; and the suggestion of Collector Phelps raised the question as to the right of the United States to intercept marauding expeditions from Ilonolula and elsewhere e7i route for Ounimak Pass, and other straits, leading from the North Pacific ocean into li^.h- ring Sea; and it was to that question that the attention of t\\K Secretary was invited, for, when we consider that the extent of our own territorial jurisdiction over Alaska and its waters had ' been fixed and determined by specific boundary lines hy the treaty of purditisc and that Congress had extended the laws of the UiiiU; * 3 atoR over all the territory included within that boundary, >vy {.m\M scarcely presume that an executive or administrative officer would question, or his ouperior deny, the ■'lu! "ii.\ ' V t- :■ '.: '■•?. "Kf 'T«-ri* L>v 2? V con- '4.^;V,. .■. ' if . . - ... *i. riglit of ]m govcnnncnt to exorciao the powor oxprcss' ferrcd by net of Congrosa. The question pmsontoil by tlio Phelps letter, therefore, wft» not whetlier the Soorotary had powor to employ revenue cut- ters to protc t Boal life in Behring Sea — for that power \vm undisputed, and'up to the present day no officer or agent of any department of the government has questioned it ; on tlio other hand it has been expressly affirmed by the Secretary of the Treasury, as 1 will presently show. • • The question presented to Secretary Boutwell was. whether or not the Secretary of the Treasury could send revenue cut- tors to Onniniak Pass, to prevent seal-killing by foreigners and others at that point, and at the narrow straits separating cer- tain Aleutian islands. * The fact that the President of the United States and tlio Senate had doterniinQd the boundary of Alaska, and that Con- gress had extended the laws of the United States over saiij territory, and had prohibited ti»e killing of fur-seals " within " the Territory of Alaska or the waters thereof " (except by authorized persons on the Pribolov islands), loft no discretion as to the right and duty of the Secretary to protect seal life in Alaska, by every menns and at all times ; and it would be un- just to assumo that Secretary Boutwell intended to defy an act of Congress, destroy the seal rookeries and tiio millions of rev- enue they yield, change the boundary line of the United States, and surrender hundreds of miles of territory fo.* wiiicli Congress h id appropriated afid expended the public money. 1 assume, therefore, that neither he nor CoUecto: Phelps, in this correspondence, had any reference to the interior of Alaska or its waters, so fur as related to the jurisdiction of the United States. The object of Collector Phelps was to pro- vent the marauding expeditions from killing fur-seals boforo they entered Behring Sea, viz., at Ounimak Pass, Secretary Boutwell, in considering that 8ul)ject, replied that he had learned that the seals did not approach these passes in droves, but scattered over " a large region of water ; " ho tlion :m ■ V * "in ^i.ji'U? ii^;i^';'}m^ :,•) >*:f.'.'T*TtTrr, ;,'j?5a;jj(vasJ'V.ifii*«gsBWE*?«y^^*^*^^*^"*-'' 23 adds that he "does not seo that the United States would Imve he jurisdiction or power to drive off parties going vp there for that purpose, unless they made such attempt within a ma- " rine league of the shore." ) It seems clear, therefore, tlmt all that Secretaty Boutwell in- tended to decide, and all that he did dedide was, that our rev- oiuie cutters could not interceptor drive off marauding parties so long as they remained in the North Pacific ocean, outside of the three-mile limit. . His language was: "I do not see ^ hat the United States would have the jurisdiction or power to - drive off^arties going qp there % (that is, parties goin^r up to Ounimak Pass through the Nortii Pacific ocean), for that pur- •«"f\he":^c:^'"' ""'^""' ^"^"^^ ^^^^'"" '^ "^"'•"- ^-^- The question of jurisdiction within the treaty boundary, was no presented to Secretary Boutwell by Uiis correspondence, and was not decided. But later on, that question came be- oro the Treasury Department, on the application of J). A U Ancona, ot San Francisco, California in 1881 In reply, dated March 12, 1881, the Department said : "exSi^'rili:^"'-''^;"^^?'"'^"^ any fu..' bearing animals, 4TaTa !^^l,lr'''' V^"^" provided, within the" limits of •Uhe kniinrrZvT ^'^« rt«'\thereof, and also prohibits "e killing of any fur-seals on the islands of St. Paul and •«S;:ta^^^^^^^^^^^^ '''^ ^^'^''^ ^^^-"^ ^'--to, except during ''You inquire in regard to the interpretation of the te.-ms vate,, thereof and ' waters adjacent thereto,' as used he law, and how far the jfirisdiction of the Un ted S ates s to be understood as extending. _ "Presuming your inquiry to relate more especially to the waters of Western Alaska, you are informed h a t fe n-elty w th R„88,a of March 30, 1867, by which the Terr^ ry of Alaska was ceded to the United States, defines the boundan « It will bell H ' r° '! '''''\''' "^ '^'^ ^«^^«^^^ Statutes. " endH W '• ^''^''*^^«''^ f'»"f the limit of the cession ex- tends from a line starting from the Arctic ocean and rim- ^:^v 'm vvrrt,- ^6 .iif mw^ wu m ialip-,f.-irmr- Mh liiUlWi "imti M' 2^ " ning through Bchring's Strait to the north of St. Lawrcnco " isl'inds* " The line runs thence in a southwesterly direction, so as to « pass midway hetween the island of Attou and Copper island " of the Kormmandorski couplet or group in the North J^^^ « ocean to meridian of 173 degrees west longitude. All tlio « waters within that bovmdary to the western end of the Alcu- « tian Archipelago and chain of islands are considered as com- " prised within the waters of Alaska Territory. " All the penalties prescribed by law against the killing ot " fur « tion.. Very respectfully, •^ '«H. F. FRENCH, " Acting Sea'etanj." All the penalties prcBcnuuu uy ia.» «£«...«« ^..~ p -- r-bearing animals would therefore attach against any yiola- - on of law within the limits before de8cribed.;.^^p^r^;Jj/ « Very respectfnlly;^::.?^-;'^',^^:^"^^^-'-''^^:;:^::"^^;^ m On the IGth day of March, 188C, the following comn: inica- tion was addressed to the collector of customs at San Francisco: " Tkeasuby DEPAKTMiiNT, Mcivc/c 16, 1886. " CoLLEOTOB OF Customs, " San Francisco. , ' " Sir : I transmit herewith for your information a «opy ot " a letter addressed by the Department on IVLirch 12, 1881, " to D A D'Ancona, concerning the junsdictmn ot the " United States in the waters of the Territory of Alaska and " the prevention of the killing of fur-seals and other tur-beann{: " uuinials within such areas, as prescribed by chapter 3, title ^' 23 of the Revised Statutes. The attention «? your Pi;edeccs- « sor in otlice was called to this subject on April 4, 1881. 1 lua « couinmnicution is addressed to yon, inasmuch as it is under. " stood tiuit certain parties at your port contemplate the httmg « out of expeditions to kill fur-ecals in those waters. J«" J^''" <« requested to give duo publicity to such letters in oi^er hut « such parties may be informed of the construction placed by « this Department upon the provision of law referred to. " Kebpectfully yours, ^',^r^TrK,r^ ^ " D. MANNING, . " SecreiaryP While the above decisions of tiie Treasury Department arc not referred to in the " l\x\>^i-i relating to Bohriug Sea Fidl»- 25 cries," oompilcd by tlio Stato Department, I deem it proper to cito thorn in support of my (jonstniction of tlio Bontwell- IMielps corrospoudenco ; for if Acting-Secretary Fi-encli and Secretary Manning had construed the Boutwelj letter as a de- cision adverse to the claim of -the United States to exclusive dominion over Behring Sea, it is not to be supposed that they would reverse that decision without referring to it. Since writing the foregoing my views in reference to "Washington, i>. C^Janudi'v 16,' 1888. " lion. Geo. S. Boutwell, " Washington, D. 0. " Sir: In a pamphlet i-ecently issued by tlie Department of " State, entitled ' Papers relating to Behring Sea Fisheries,' ap- " pears a letter from the Collector of Customs of San Francisco, *' Mr. Fhclps, and a reply thereto by yourself, while Secretary of " tlie Treasury in 1872. I am advised that your letter is relied " on by the Dominion government, and quoted in its brief as " a decision of the Treasury Department adverse to the claim " of exclusive jurisdiction of the United States over Behring " Sea, and a note in the pamphlet of the Department of Stato, •' indicates that Mr. Bayard is inclined to the same view." ^^ " As a citizen of Now England and on behalf of friends resi- le dent' there who ht ve large interests dependent on a proper '' settlement of the various questions relating to theteeal Hslicries, I' may I ask you at your early convenience to express to me in " writing your understanding of the proper mcanini? to be at- " tached to that letter. " Bespectf ully yours, " W. W.EATON." • "• Washington, January 18, 1888. " Sir : Since the receipt of your letter of tlie ICth instant I have examined with care the letter addressed to me as Secrc- •' tary of the Treasury by T. G. Phelps, Esquire, tlien Ccilector w *?* ^"^^^™» »t the port of San Francisco, dated M-.rch 25, ^^ 1872, and also my official reply thereto, dated April lU, 1872, in relation to the purpose of certain parties to capture fur- "' llfUlilll— iiiii w. I .1 II -TWfgiHiiiiiii ';'>* (( 26 ■ " seal on their annual migration to the islanfia of St. Paul and St. " George through the Onnimak Paes and through the neighbor. " ing approachea to the islands. • Upon the examination of " the correspondence my rocollectioh is in a degree refreshed " and my li^5.-'«^-j^<-«?'?4 iflfcr^JiSWSU? - 27 « It is understood that the subjects of His Britannic Majesty, " from whatever quarter they may arrive, whether from the " ocean or from the interior of the .continent, shall forever " enjoy the right of navigating freely, and without any hind- " ranee whatever, all the rivers and streams wjiiich, in their " course towards the Pacific ocean, may cross the line of " demarcation upon the line of coast described in article throe " of the present convention." K I have already had occasion to point out " the line of coast ''^ »-""• 2. Tluvt the grants made '^f "«'»^, '',';" ''„n., t,,„ doctrine, .trued strictly against tl,e «'■-'-'' "° £ ^^gu ted are re that all rights and privileges not .pec.lical.y gu ,,i,,3d by f " =™';»';'^^^f„„ ,„i,„,it that the correspondence, In conclnsioii, 1 icspeuinujf Uopartmonl, » papers and extracts," con.pded 'yj'" ^'^°^^ .^^^.^ .„;,„in to the fullest extent the r,g t of ''^^^l\^.,^, , i,. the United States "-'^ '"-;;'; ;f/L"1:\,,et court tor the Treasury Department, and by "« ". ° ^^^ ^ ,|,o „.,t Territory-extending westward to «"= ™ '^,.. ^, ^ l,Uions (see P'""!''' " • P; f "j^ ' „,,, t„ „„i..te " the great ,U the territory described rn the ""PT' J^'^lt secti^in of . ,i„ht was tacitly conceded, sp.vnig only as to^ tne Jast on the north PaclHc ''o;--';;^ fb lo„"d o each of The right to -»--g'''V . tat "B Ssea" was not the powers by the law of nations , but ,,Behnng ^^^^ ,„d never l.s been "cmnmonlyeaM^ is, and always f ron, the tnne of rts '' «<-°™y ' ^^^„a Ubntified and regarded as a separate body of wa " , and .vs individual as the Mediterranean or the Baltic. 29 it is laid down in all tlie maps and charts ; in shipping: arti- cles, and the instructions to naval commanders and ofKcers of llic revenue and merchant marine, and can no more he re- ^Mirdcd in a proper or legal sense as the Paciiicj pcean than is the Gulf of Mexico to be considered the Atlantic ocean. In closing this communication I beg to Biibmit that, if it bo panic, as I maintain it is true, that the protest, negotiation aiid . . y& .> ^^ treaties relate to the section of the coast of the North Pacific J i;|§s0i^; ocean east of the 14l8t degree of west longitude, it must be' : ;' :- equally true that tlie entire territory, both land and water, west of that meridian remains precisely in respect to title and do- minion as though there had been no protest, negotiation^ or treaty, saving oidy,that by the transfer of Alasiai, the United States acquired Russia's title to that portion of tlie Russian possessions. So that, in 18G7, Russia's dominion as proclaimed ill the Ukase of 1821 over all the region now in question, was sbsoluto and undisputed. • r Respectfully submitted. N. L. JEFFRIES. Note.— In reference to the destruction of seal life in Alas- kan waters by English subjects and otliera, I horowilh submit an extract from the Report of Thomas Monat, Inspector of Fislx- oiiea for British Colui bia for the year 1887 (Sessional Tapers, vohl5, No. 16, p. 08): ■ . . " There were killed this year, so far, from 40,000 to 50,000 « fur-seals, which have been taken by schooners from San « Francisco and Victoria. The greater number wore killed in *' Beliring Sea, and were nearly all cows or female seals. This " enormous catchj with the inci-ease which will take place when "other vessels, fitting up every year, are ready, will, I am « afraid, soon deplete our fur-seal fishery, and it is a gi-eat pity « that such a valuable industry could not in some way be pro- jected." ♦ * ♦ ■ \ ' ■ \ ^ ■ '■^^^Xr-Si't'-i Mi'lcL El., f..v■««»■,' ^-'^•^I'^lxti^fri^.') i t> : I 4-. -*, ', 1 riy-::-.*. 'H''f^'- r^^i';¥ :jp1*''.'^ ^»';i;.5S' .•.«.«■> '^^'^ •'' t vV4 •* ill A'<, >^?v> VA " f., j-ftf Mf J •■ .y,.-.,a- !.":. -V' ■:fi: Mv^'r ' sj- '.^>;' *:>•■; ■e i .i,.:..."WV^'N:;v»>-!«~-' .nmM^aaiuiemiatimi ,• Washington, D. C, February 22, 1888. Tho Honorable Tuos. F. Bayabd, ' ' . ■ Secretary of State. Sir : In the event that the English or Dominion government should attempt to justify the invasion of Behring Sea by Eng- lish or Canadian seal hnnters, in violation of the laws of the United States and the regulations of the Treasury Depart- ment, by virtue of the privileges stipulated in tho first article of the treaty of 1825, between England and Russia, I beg to submit tho following for your consideration : If' The contention between England and Russia and between the United States and Russia had rofoi'ence to that section of tlie Nortli Pacific coast situate botw,oon parallel 51** N. lati- tude and tho 14lst meridian, iff, '.v,, . On the 51st parallel the ocean, according to Mr. Adams, is foiu' thousand miles wide, and tiio claim of 7/ucre chiuaum was for that reason repelled by Mr. Adams. Tiio right of trading on tliat coast was claimed by tho United States and Enghvnd and denied by Russia, and to settle this contention WQs the object of tho conventions of 1824 and 1825. Russia's jurisdiction as far soutli as the 55th parallel, how- ever, was concede;!, and her title to the chain of Aleutian ialanda was not then and never has been questioned, notwith- standing the fact that this chain of islands is situated far •outh of the 55th parallel, .riii- . There had been no conflict or controversy in reference to tny part of the Russian possessions west of tlie 141st tneridian ; and in the treaties pf 1824 and 1825 iljore is no reference to tny portion of the territory claimed by Russia, west of said meridian or nortli of Mount St. Elias ; so that, after these trotttios had been ratified and the contention adjusted, tho juris- .^ W^ ■*:*■ ■ ,' 'I vMmi )Ki-.»^WII*:'« diction of Russia over Bohring Sea, Us islands und coasts o„ ttTcoutinonts, remained nndispnted and nnqnest.oned. In th i^^ a tielo of tl>e treaty of 1825, between EngUnJ '" ^X^ltiaSX tS : to ...at was jntendea ;. the pln-ase " any part of the ocean -■"--^ t ; - fe d s:tira:^t::t:i::iW'of «; fouowmg articioswiucmn.. "IrETgulnnbiocts are permitted to navi ;ate said water, t;: KnIlisUsnWe.s™ay «s,>^^^^^^^^^ ,„ Zd. Thoy .nay land at »ncU P^'V"; . ,, j,,„ „„,ivoi. already l.,.ve been ^^^^:;;:^^:X^L wi.i.o..t ThcBO a.-o the privileges couleiiea »y ' i ..oference to tho " <-"<''«7/"'*/t itv alr^ votoi-ro-l, and limit tlieir exercise, and to which t have al.ea y and l^oretoforefnlly discussed. __^^.^^_ ^,__^^ „,^^ Xing in mind t^t U was legally^c^^^^^^^^^^^^ ^^^ by virtue of the facts ot -^-77? '^^;; j.":Hhhold .he- pnted possession and l--^-^' *°^f ^ :;„st„,ed strio.W 'privileges, a.ul th,it "'« f f ' ,f '" j'ttH^e that .lU rijil... ^inst the ^^'-:i^'^tl .■ot.a..cd i.y ..« and privileges not spcLinumjr ^ ,. , >, . ' grantors. r 8 Ist. At' to tho privilege of Navigation. It will not be cluinicd thftt tlic right to navigate Bchrliig Sea included tho riglit to kill far-seal, or to engage in tishing for the latter is cxclncied from tho right of navigation by speoitically granting the right to fsh as a separate and distinct privilege. - 2d. The right oi Fuhmg. -i= .' u, , . ..• . Tiiis elanso of the stipulation conoedod to Bi'itish Bubjects tho right to engage in fishing, but did not confei the riglit to take fur- bearing animals cither in the water, on tho islands, or on the coast. A fur seal is not a fish, and capturing or killing fur-seals is not fishing ; and, therefore, tho privilege of fishing would not include the right to take fur-seal, and, conceding for tho sake of argument the riglit of British subjects to navigate and fish iu Beiiring Sea by virtue of the article f am considering, there is no authority, expressed or implied, to take fur-seal. When tliis treaty article was framed, there were millions of fur-seals whose homes wore the seal rookeries of Behrins Sea. Uoru on Russian soil and protected by the iiussian govern- ment, they were regarded as Russian property, and the right to take fur-seals for their skins was, by the Government, con- forrod upon tho Russian-American Company on the payment of a royalty into the Imperial treasury. All other seal rookeries of the world had been destroyed by Indiscriminate slaughter, until Russia, by a wise foresio-ht. adopted measures for the protection and preservation of those iiiiuials, not only on the islands but in the waters of Behring Sea. Now it will not be presumed, that under a stipulation per- mitting British subjects to fish in Behring Sea, that it was in- tended that British subjects were to be permitted to destroy •oal life in Behring Sea which Russia was endeavoring to pro- lervo, and for which purpose sho had placed at the disposal of Uio Russian American Company her array and navy " to pro- " tcct them with all their power from loss or injury, and to •* render them, upon application of the Company's authorities, " all necessary aid, assistance, and protection " (see charter Doc. 27, 1799, last section). '1 I ■ 1 M , 1 ii I |i(| . 1 ■ 1 r n. B«. I do not «d,„it that the privilege* -'f ""f ^VaJe,!':! J.U of the English t-'^J^J'^tt 8 » Is " m i» I • G«o Tf it bo RBSorted tluU Deuuuo wjuc* r monly called the Pac.he ocoaa, and it is only to v that ocean that the privileges are extended ^_ ,, The langnageof f'^''? "LI"^*'' >.••■.'■.•'-•■ • i^^^s^fei j# '^ '--"'^ "»"t !:: S n^^^nte^^^^^^^ |f»*?« mai'i'N*"." ««"'"" to me, that It u.w ^ ,^^j^ have been omitted. Pacific ocean Tf the priviloL'CR were to be exorcised m tuo i at. it tlie puvi Lb commonly called tlio and not restricted to such pa ts as a ^ ,„ggest thein^W^. nd ^»^ 1^^^ th^ privileges «^,t^be ^. fc to restrict the, limits, wii ^ ^ <»mmortiy callal , ■;: exercised, to such parts of the »';«"^^«?' ,,„i^^ ;„ „„y of the Pacific ocean, therehy •» " '''''""f *"" 'J „f that ocean, the waters which might he claunod ^" ^^ " J^'^^^.^^ „„„„, „„,ess such water, wc. ---"1^-, would have no a. '^''''r"";d::\rtth cU honndaryof the Pacific euvate knowl dge «. to ho ^^ ^^^^^_, ^_^^,_ ,,, ocean in relation to <-'>"™';""= „„,, Behrins Sea; b«t there yellow Sea, the Sea of OUhotWan^^^^^^^^ could be "7''«7f ' fS^ocoan, Svithin the limits o , i„ eommonly ea led *> » ~.°,^^ ^^re to he exercised, which, and not beyond, these P''™;? j^^s^,, „ li,uiiation, , Surely .hero was some '•<>-«" l^;;^;*;;, ,„«„ onnttod. <"• '"; ^""'STre: y :: dontbalnied that, there were ' f' .1 ' 'i i V.J " . . ' i ' ■ ^;»;^?^^9^ >i tll ■■ otliers tluit woro not so ciillod, wators which wore connoctod with that ucoan, and which might, or might not, bo a part of it, hut which wero commonly called by a different name. If tiiia were not so, for what purpose were the words " commonly '• called," used at all? ■» ' > Take, for example, the Yellow Sea, the Sea of Japan, the Sea of Okhotsk, and Behring Sea, all those connect with the Pacific ocean, and whether or not thoy are parts of that ocean, they are not commonly called the Pacitio ocean, but are " called " by their own proper nun\es, and are mapped and laid , down in the charts as; separate! aAd. distinct bodies of water under their individual naniee/-^^>?i^}Vii<'V)7- - It is true that tlie phrase " any part of the ocean " is used, but at the same timo this phraseology limits it to " some part " of that ocean, and not only that, but to a part tliat is " com- " monlj called the Pacilic ocean," and cannot by any rule of interpretation extend its application to other bodies of water, which, by common acceptation, have a distinct individuality, characteristics, and designation of their own. That the words " commonly called " were used for a purpose is apparent from the fact that they al*e adhered to and ap- plied by its framers in the first article of the treaty of 1824 -glloti;^;;; between Russia and the. United States. In tiiat case the ''7';'-' "'^ phraseology is : ** In any part of the great ocean, connnonly *' culled the Pacific ocean, or Soiith sea." Is it not, therefore, evident that in both instances the words were used to limit the exercise of the privileges to wiiat was by general acceptation rogurded as the Pacific ocean proper, and about whicli there was no question or doubt as to whether it was the Pacific ocean, or something else ?,•;^^^lt#:*r^;r■ .. ;frt;It is worthy of notice that the phrase " commonly called ^v*1'ithe Pacific ocean," was suggested by Russia (and accepted ip'v by the United States) in the Projet submitted by Count Nessol- rodo, dated March 22, at the formation of the treaty of 182i, and for reasons that are now clearly apparent. In defining the western boundary of the coded tci ^ itory by the . ^ treaty of 1867 between, the United States and Russia, it is -.wit 1 1 lil >* iJ'^v^K: i®.' ■;s:*i ia';| I , «)iii | ii« ■ . ' liiiin w ru • •fjm*Ui • i)S*'f:/4 i HI 1 'i if {!}: 6 Btated : " tho lino proceeds in n (sourso nearly BOuthwoBt, thromjk " Belii-inj,' Sti-uits and liehnng Sea;' « • • '* bo as to pass " midway liotwcon tho islands of Attou and the Copper island " of tho Korinandorski couplet, or group, 2/1 the North Pacific *' oceuny From this it is plain tluit Russia in 1807 distinguished Bchring Sea from tho Pacitie ocean, just as she had by tlio treaty of 1825 'restricted the privileges of English subjects to tho waters f* commonly called/V- tliQ .Pacific ocean,, or the Pacific ocean propeiv.ji:',i:Myfr^iJSHj/tj^pv^ Tills distinction was recognized by the!' United States— they being a party to said treaty— and the declaration that tho boundary line " passes through Bohring Sea into the North «< rsicltic o(!oan " is the declaration of Russia and the United States. How is that declaration to bi construed if, in a treaty sense, B( 'iring Sea is tlie Pacific ocean ; and if Behring Sea is a mytli, what iuis l)ecomo of our western boundary ? I understand tliat in tlie claim of tlie British and Dominion governments it is alleged that their vobsoIb were seized by our revenue cutters- not in the Pacific ocean but in Behring • In 1709, the Emperor of Russia conferred upon the Russian- American Company the exclusive right and control of Ins Russian- American possessions for a period of twenty years; at its expiration it was renewed for a like period. For tins privilege a royalty was. paid by said Company to tho Russum government, which, in return, guaranteed to tlio Company complete protection. Foreign traders and navigators were ex- eluded ^vom the Russian dominions by imperial decrees. Tho jurisdiction of the Company originally extended to tho 55tl» parallel of north latitude on the coast of North America and to latitude 45" 50' on the continent of Asia. In 1821, on tlio application of the Company and for its better protection aguinst foreign traders, 'tlie Emperor Alex- ander issued tho famous Ukase with which we are all familiar m- 11 and in which, in addition to prescribing the penalties for its violation by foreign traders and navigators, he extended tlio jurisdiction of S-msia to the parallel of SI" north latitude. Then followed the treaties of 1824 and 1825.' An examination of those treaties and the I correspondence which preceded them— -l he correspondence bet.veen Hussia and the United States with reference to the renewal of the 4th article of the American treaty— the facts in the case of privileges and concessions as Russia chose to confer by the ^•■" treaties of 1824 and 1825, will disclose the fidelity with which Russia protected her rights and the charttred privileges of the Russian- American Company in hei- Russian-American posses- sions. And when we reflect that the contentions and the treaties which adjusted them had reference to a comparatively small section of the North Pacific coast, and consider how fo- vigorously the Russian government asserted and maintained its rights and tlio rights of the" Company it had agi =ed to pro- . tect, and that the privileges conferred by the treaties, with a few unimportant exceptions, expired in the space of ten years, it would require more than a strained implication, or a forced construction of a treaty clause, to establish the fact that Rus- sia, regardless of her fur-seal interest and the rights of the Company she was pledged to protect, had opened the waters, islands, and "coasts of Behring Sea on both the Asiatic and American continent .to foreign navigators and traders, with full permission to navigate the waters, to engage in fishing, and to land at such parts of the coast as had not already been occupied in order to trade with the natives. Respectfully submitted. < >: ' : xT. L. JEFFRIES. ! ul ( ,] YORK UNIVERSITY LAW LIBRARY CALL NO PRINT FIRMLY DATE DUE -1 ■ lyo 1 a.-> ■^COPY VOL 1 7 O. / 'y YEAR :1 v AUTHOR I uei.l"!^'!'^--'