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Behring Sea arbitration. Case presented on the part of the government of Her Britannic Majesty to the… Great Britain. Parliament 1893

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Array UNITED STATES. NO. 1 (1893). 
BEHRING SEA ARBITRATION. 
CASE 
PRESENTED ON THE PART OF THE
 GOVERNMENT OF HER BRITANNIC MAJESTY
 TO THE 
TRIBUNAL OF ARBITRATION
 
CONSTITUTED UNDER ARTICLE I OF THE TREATY CONCLUDED AT 
WASHINGTON THE 29TH FEBRUARY, 1892,
BETWEEN 
HER BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA.
 Presented to both Houses of Parliament by Command of Her Majesty. March 1893. 
London : 
PRINTED FOR HER MAJESTY'S STATIONERY OFFICE
BY HARRISON AND SONS, ST. MARTIN'S LANE, SALE OF GOVERNMENT PUBLICATIONS. UNITED   STATES.      No.   1   (1893).
 BEHRING SEA ARBITRATION.
 CASE 
PRESENTED ON THE  PART OF THE
 GOVERNMENT OF HER BRITANNIC MAJESTY
TO THE
 TRIBUNAL OF ARBITRATION 
CONSTITUTED UNDER ARTICLE I OF THE TREATY CONCLUDED AT
WASHINGTON ON THE 29th FEBRUARY, 1892,
 BETWEEN
 HER BRITANNIC MAJESTY AND THE UNITED
 STATES OF AMERICA.
 Presented to both Houses of Parliament by Command of Her Majesty. 
March 1893. 
LONDON : 
PRINTED FOR HER MAJESTY'S STATIONERY OFFICE
 BY HARRISON AND SONS, ST. MARTIN'S LANE,
 PRINTERS   IN   ORDINARY  TO   HER  MAJESTY.
 And to be purchased, either directly or through any Bookseller, from
 EYRE and SPOTTISWOODE, East Harding Street, Fleet Street, E.C., and 
32, Abingdon Street, 'Westminster, S. W.; or
 JOHN MENZIES & Co., 12, Hanover Street, Edinburgh, and 
90, West Nile Street, Glasgow ; or 
HODGES, FIGGIS & Co., Limited, 104, Grafton Street, Dublin. GENERAL CONTENTS.
The Case now submitted to the Arbitrators on the part of the Government of
Her Britannic Majesty contains a statement of the facts which that Government
considers to be material to enable the Arbitrators to arrive at a just conclusion upon
the points submitted to them by the Treaty of Arbitration.
It contains also some general propositions which that Government believes to be
in accordance with the established principles of International Law, and upon which it
intends to rely.
The Case is arranged as follows:—
Pages.
Introductory Statement and Outline of Argument ..            ..             ..
1-9
Arrangement of Case and Heads of Argument     ..
9-12
Chapter^, Head (A).
The User, up to the year 1821, of the Waters of Behring Sea and
other Waters of the North Pacific    ..            ..            ..            • •
13-36
Chapter II, Head (B).
The Ukase of 1821, and the circumstanees connected therewith leading
up to the Treaties of 1824 and 1825 ..             ..             ..            ..
37-58
Chapter III, Head (C).
The question whether the body of Water now known  as Behring
Sea is included in the phrase "Pacific Ocean," as usedin the
Treaty of 1825 between Great Britain and Russia          ..            ..
59-76
Chapter IV, Head (D).
The User of the Waters in question from 1821 to 1867        ..            ..
77-90
Chapter V, Head (E).
What rights passed to the United States under the Treaty of 30 th
March, 1867         ..             ..             ..             ..             ..            ..
91-102
Chapter VI, Head (F).
The action of the United States and Russia from 1867 to 1886
103-120
Chapter VII, Head (G).
Various contentions of the United States since the year 1886
121-131
Chapter VIII.
Has the United States any right, and, if so, what right, of protection
or property in the Fur-Seals frequenting the Islands of the United
States in Behring Sea when such seals are found outside the ordinary 3-mile limit ?              ..
135-140
Chapter IX.
General Conclusions upon the whole Case              ..            ..            ..
141-157
Chapter X.
Recapitulation of Argument     ..             ..            ..             ..             ..
158-160
Conclusion ..            ••            ..           ..            ..            ..
161 BEHRING SEA ARBITRATION.
Case presented on behalf of the Government of Her Britannic Majesty to the
Tribunal of Arbitration.
Introductory Statement,
Seizures of British ships.
INTRODUCTORY STATEMENT.
THE differences between Great Britain and
the United States of America, the subject of this
Arbitration, arise out of claims by the United
States of America to prevent and interfere
with British vessels fishing in the waters of
Behring Sea other than the territorial waters
thereof.
Prior to the year 1886 British vessels had, in
common with the vessels of the United States
and those of other nations, navigated and fished
in the non-territorial waters of Behring Sea
without interference.
In 1886 the British schooner " Thornton " was
arrested when fishing 70 miles south-east of
St. George Island, the nearest land.
The vessel was libelled in the United States'
District Court of Alaska by the District Attorney,
the charge formulated being that the vessel was
"found engaged in killing fur-seals within the
limits of Alaska Territory and in the waters
thereof, in violation of Section 1956 of the
Revised Statutes of the United States."
The vessel was condemned, and the master
and mate were imprisoned and fined.
The British schooners " Carolena " and " Onward " were seized about the same time
when fishing under similar circumstances, and
were subsequently condemned by the District
Court.
[218] B 2 The Judge (in summing up the case of the 50th Cong., 2nd
Snot     ^ onfl-tf^
"Thornton") ruled that the Law above men- Ex. Doc. No. 106,
tioned applied to all the waters of Behring Sea PP- 12°~}Z0-
rx m Blue Book, United
east of 193 of west longitude. States, No. 2,1890,
Certain other vessels were also subsequently Rp 2.' l9» j?#
x j        I   oee Appendix,
seized in non-territorial waters, and the fishing of vol, iii.
British vessels was interfered with under the
circumstances hereinafter stated.
Great Britain protested against this action
on the part of the United States, and negotiations took place, which eventually resulted
in the Treaty and Convention entered into at
Washington on the 29th February and the 18th
April, 1892.
The Treaty is as follows :— Treaty of 1892.
I Her Majesty the Queen of the United Kingdom of
Great Britain and Ireland and the United States of
America, being desirous to provide for an amicable settlement of the questions which have arisen between their
respective Governments concerning the jurisdictional rights
of the United States in the waters of Behring Sea, and
concerning also the preservation of the fur-seal in or
habitually resorting to the said sea, and the rights of the
citizens and subjects of either country as regards the
taking of fur-seal in or habitually resorting to the said
waters, have resolved to submit to arbitration the questions
involved, and to the end of concluding a Convention for
that purpose have appointed as their respective Plenipotentiaries :
" Her Majesty the Queen of the United Kingdom of
Great Britain and Ireland, Sir Julian Pauncefote, G.C.M.G.,
K.C.B., Her Majesty's Envoy Extraordinary and Minister
Plenipotentiary to the United States; and the President of
the United States of America, James G. Blaine, Secretary
of State of the United States;
I Who, after having communicated to each other their
respective Full Powers, which were found to be in due and
proper form, have agreed to and concluded the following
Articles:—
"ARTICLE I.
" The questions which have arisen between the Government of Her Britannic Majesty and the Government of
the United States concerning the jurisdictional rights of
the United States in the waters of Behring Sea, and concerning also the preservation of the fur-seal in or habitually
resorting to the said sea, and the rights of the citizens and
subjects of either country as regards the taking of fur-seal
in or habitually resorting to the said waters, shall be submitted to a Tribunal of Arbitration, to be composed of
seven Arbitrators, who shall be appointed in the following
manner, that is to say: two shall be named by Her
Britannic Majesty; two shall be named by the President 3
Treaty of 1892. of the-United States; his Excellency the President of the
French Republic shall be jointly requested by the High
Contracting Parties to name one ; His Majesty the King
of Italy shall be so requested to name one; and His
Majesty the King of Sweden and Norway shall be so
requested to name one. The seven Arbitrators to be so
named shall be jurists of distinguished reputation in their
respective countries: and the selecting Powers shall be
requested to choose, if possible, jurists who are acquainted
with the English language.
I In case of the death, absence, or incapacity to serve of
any or either of the said Arbitrators, or in the event of
any or either of the said Arbitrators omitting or declining
or ceasing to act as such, Her Britannic Majesty, or the
President of the United States, or his Excellency the
President of the French Republic, or His Majesty the King
of Italy, or His Majesty the King of Sweden and Norway,
as the case may be, shall name, or shall be requested to
name forthwith, another person to act as Arbitrator in the
place and stead of the Arbitrator originally named by such
head of a State.
| And in the event of the refusal or omission for two
months after receipt of the joint request from the High
Contracting Parties of his Excellency the President of
the French Republic, or His Majesty the King of Italy,
or His Majesty the King of Sweden and Norway, to
name an Arbitrator, either to fill the original appointment or to fill a vacancy as above provided, then in such
case the appointment shall be made or the vacancy shall
be filled in such manner as the High Contracting Parties
shall agree.
"6*
"ARTICLE II.
"The Arbitrators shall meet at Paris within twenty
days after the delivery of the Counter-Cases mentioned in
Article TV, and shall proceed impartially and carefully to
examine and decide the questions that have been or shall
be laid before them as herein provided on the part of the
Governments of Her Britannic Majesty and the United
States respectively. All questions considered by the
Tribunal, including the final decision, shall be determined
by^a majority of all the Arbitrators.
" Each of the High Contracting Parties shall also name
one person to attend the Tribunal as its Agent to represent
it generally in all matters connected with the arbitration.
"ARTICLE III.
" The printed Case of each of the two parties, accom
panied by the documents, the official correspondence, and
other evidence on which each relies, shall be delivered in
duplicate to each of the Arbitrators and to the Agent of
the other party as soon as may be after the appointment
of the members of the Tribunal, but within a period not
exceeding four months from the date of the exchange of
the ratifications of this Treaty. 4
"ARTICLE IV. Treaty of 1892.
" Within three months after the delivery on both sides
of the printed Case, either party may, in like manner,
deliver in duplicate to each of the said Arbitrators, and to
the Agent of the other party, a Counter-Case, and additional
documents, correspondence, and evidence, in reply to the
Case, documents, correspondence, and evidence so presented
by the other party.
" If, however, in consequence of the distance of the
place from which the evidence to be presented is to be
procured, either party shall,- within thirty days after the
receipt by its Agent of the Case of the other party, give
notice to the other party that it requires additional time
for the delivery of such Counter-Case, documents, correspondence, and evidence, such additional time so indicated,
but not exceeding sixty days beyond the three months in
this Article provided, shall be allowed.
" If in the Case submitted to the Arbitrators either party
shall have specified or alluded to any Report or document
in its own exclusive possession, without annexing a copy,
such party shall be bound, if the other party thinks
proper to apply for it, to furnish that party with a copy
thereof; and either party may call upon the other, through
the Arbitrators, to produce the originals or certified copies
of any papers adduced as evidence, giving in each instance
notice thereof within thirty days after delivery of the
Case; and the original or copy so requested shall be
delivered as soon as may be, and within a period not
exceeding forty days after receipt of notice..
"ARTICLE Vf
"It shall be the duty of the Agent of each party,
within one month after the expiration of the time limited
for the delivery of the Counter-Case on both sides, to
deliver in duplicate to each of the said Arbitrators and to
the Agent of the other party a printed argument showing
the points and referring to the evidence upon which his
Government relies, and either party may also support the
same before the Arbitrators by oral argument of counsel;
and the Arbitrators may, if they desire further elucidation
with regard to any point, require a written or printed
statement "or argument, or oral argument by counsel, upon
it; but in such^case the other party shall be entitled to
reply either orally or in writing, as the case may be.
"ARTICLE VI.
" In deciding the matters submitted to the Arbitrators, Questions for the decision of the Tribunal.
it is agreed that the following five points shall be sub- 	
mitted to them, in order that their award shall embrace a
distinct decision upon each of said five points, to
wit:—
" 1. What exclusive jurisdiction in the sea now known
as the Behring Sea, and what exclusive rights in the seal
fisheries therein, did Russia assert and exercise prior and up
to the time of the cession of Alaska to the United States ? Treaty of 1892. " 2. How far were these claims of jurisdiction as to the
seal fisheries recognized and conceded by Great Britain ?
" 3. Was the body of water now known as the Behring
Sea included in the phrase ' Pacific Ocean,' as used in the
' Treaty of 1825 between Great Britain and Russia; and
what rights, if any, in the Behring Sea, were held and
exclusively exercised by Russia after said Treaty ?
" 4. Did not all the rights of Russia as to jurisdiction,
and as to the seal fisheries in Behring Sea east of the water
boundary, in the Treaty between the United States and
Russia of the 30th March, 1867, pass unimpaired to the
United States under that Treaty ?
"5. Has the United States any right, and, if so, what
right, of protection or property in the fur-seals frequenting
the islands of the United States in Behring Sea when such
seals are found outside the ordinary 3-mile limit ?
"ARTICLE VII.
I If the determination of the foregoing questions as to
the exclusive jurisdiction of the United States shall leave
the subject in such position that the concurrence of Great
Britain is necessary to the establishment of Regulations
for the proper protection and preservation of the fur-seal
in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations
outside the jurisdictional hmits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination,
the Report of a Joint Commission, to be appointed by the
respective Governments, shall be laid before them with
such other evidence as either Government may submit.
"The High Contracting Parties furthermore agree to
co-operate in securing the adhesion of other Powers to
such Regulations.
"&■-
"ARTICLE VIII.
" The High Contracting Parties having found themselves
unable to agree upon a reference which shall include the
question of the liability of each for the injuries alleged to
have been sustained by the other, or by its citizens, in
Connection with the claims presented and urged by it;
and, being solicitous that this subordinate question should
not interrupt or longer delay the submission and determination of the main questions, do agree that either may
submit to the Arbitrators any question of fact involved in
said claims, and ask for a finding thereon, the question of
the liability of either Government upon the facts found to
be the subject of further negotiation.
"ARTICLE IX.
I The High Contracting Parties having agreed to appoint
two Commissioners on the part of each Government to
make the joint investigation and Report contemplated in
the preceding Article VII, and to include the terms of the
Ii said Agreement in the present Convention, to the end that Treaty of 1892;
the joint and several Reports and recommendations of 	
said Commissioners may be in due form submitted to the
Arbitrators, should the contingency therefor arise, the said
Agreement is accordingly herein included as follows:—
" Each Government shall appoint two Commissioners
to investigate, conjointly with the Commissioners of the
other Government, all the facts having relation to seal life
in Behring Sea, and the measures necessary for its proper
protection and preservation.
I The four Commissioners shall, so far as they may be
able to agree, make a joint Report to each of the two
Governments, and they shall also report, either jointly or
severally, to each Government on any points upon which
they may be unable to agree.
" These Reports shall not be made public until they
shall be submitted to the Arbitrators, or it shall appear
that the contingency of their being used by the Arbitrators
cannot arise.
I ARTICLE X.
"Each Government shall pay the expenses of its
members of the Joint Commission in the investigation
referred to in the preceding Article.
"ARTICLE XL
" The decision of the Tribunal shall, if possible, be made
within three months from the close of the argument on
both sides.
" It shall be made in writing and dated, and shall be
signed by the Arbitrators who may assent to it.
I The decision shall be in duplicate, one copy whereof
shall be delivered to the Agent of Great Britain for his
Government, and the other copy shall be delivered to the
Agent of the United States for his Government.
"ARTICLE XII.
" Each Government shall pay its own Agent, and provide for the proper remuneration of the counsel employed
by it and of the Arbitrators appointed by it, and for the
expense of preparing and submitting its case to the
Tribunal. All other expenses connected with the Arbitration shall be defrayed by the two Governments in equal
moieties.-
"ARTICLE XIII.
I The Arbitrators shall keep an accurate record of their
proceedings, and may appoint and employ the necessary
officers to assist them.
"ARTICLE XIV.
'The High Contracting Parties engage to consider the
result of the proceedings of the Tribunal of Arbitration as Outline of Argument.
a full, perfect, and-final settlement of all the questions
referred to the Arbitrators.
"ARTICLE XV.
"The present Treaty shall be duly ratified by Her
Britannic Majesty and by the President of the United
States of America, by and with the advice and consent of
the Senate thereof; and the ratificationss hall be exchanged
either at Washington or at London within six months
from the date hereof, or earlier if possible
■ In faith whereof, we, the respective Plenipotentiaries,
have signed this Treaty, and have hereunto affixed our
seals.
" Done in duplicate, at Washington, the 29th day of
February, 1892.
(L.S.) "JULIAN PAUNCEFOTE. •
(L.S.) "JAMES G. BLAINE,"
Outline of Argument.
The general outline of the argument submitted
to the Tribunal of Arbitration on behalf of
Great Britain will be as follows:—
That Behring Sea, as to which the question
arises, is an open sea in which all nations of the
world have the right to navigate and fish, and
that the rights of navigation and fishing cannot
be taken away or restricted by the mere declaration
or claim of any one or more nations; they are
natural rights, and exist to their full extent
unless specifically modified, controlled, or limited
by Treaty.
That no mere non-user or abseDce of exercise
has any effect upon, nor can it in any way impair
or limit such rights of nations in the open seas.
They are common rights of all mankind.
In support of these principles, which are
clearly established, and have never been seriously
disputed by jurists, authorities will be cited.
That in accordance with these principles, and
in the exercise of these rights, the subjects and
vessels of various nations did from the earliest
times visit, explore, navigate, and trade in the
sea in question, and that the exercise of these
natural rights continued without any attempted
interference or control by Russia down to the
year 1821.
[24.8] C 8
That in 1821 when Russia  did attempt by Outline of Argument.
Ukase, i.e., by formal declaration, to close to
other nations, the waters of a great part of the
Pacific Ocean (including Behring Sea) Great
Britain and the United States immediately protested against any such attempted interference,
maintaining the absolute right of nations to
navigate and fish in the non-territorial waters of
Behring Sea and other non-territorial waters of
the Pacific Ocean. Both countries asserted
that these rights were common national rights,
and could not be taken away, or limited by
Ukase, Proclamation, or Declaration, or otherwise
than by Treaty.
That in the years 1824i and 18254in consequence of these protests, Russia unconditionally
withdrew her pretensions, and concluded Treaties
with the United States and with Great Britain
which recognized the rights common to the
subjects of those countries to navigate and fish
in the non-territorial waters of the seas over
which Russia had attempted to assert such
pretentions.
That from the date of such Treaties down to
the year 1867 (in which year a portion of the
territories which had been referred to in and
affected by the Ukase of Russia in the year 1821,
was purchased by and ceded to the United States,)
the vessels of several nations continued, year by
year, in largely increasing numbers, to navigate,
trade, and fish in the wraters of Behring Sea, and
that during the whole of that period of nearly
fifty years there is no trace of any attempt on
the part of Russia to reassert or claim any
dominion or jurisdiction over the non-territorial
waters of that sea, but, on the contrary, the title
of all nations to navigate, fish, and exercise all
common rights therein was fully recognized.
That on the purchase and acquisition of Alaska
by the United States in the year 1867, the United
States were fully aware and recognized that
the rights of other nations to navigate and fish
in the non-territorial waters adjacent to their
newly-acquired territory, existed in their full
natural state, unimpaired and unlimited by any
Treaty or bargain whatever.
That, from the year 1867 down to the year
1886, the United States, while they lawfully and
properly controlled and legislated for the shores
and territorial waters of  their newly-acquired 9
Outline of Argument.
territory, did not attempt to restrict or interfere
with the rights of other nations to navigate and
fish in the non-territorial waters of Behring Sea
or other parts of the Pacific Ocean.
That, under changed conditions of territorial
ownership, and in view of certain new circumstances which had arisen in consequence of the
growth of the industry of pelagic sealing in non-
territorial waters, the United States reverted, in
the first instance, to certain claims based upon
those of the Russian Ukase of 1821, which the
United States, together with Great Britain, had
successfully contested at the time of their promulgation ; but in the course of the discussions
which have arisen, these exceptional claims to
the control of non-territorial waters were dropped,
and in their place various unprecedented and
indefinite claims put forward, which appear to
be based upon an alleged property in fur-seals
as such.
Pinallv,' that while Great Britain has from
the first strenuously and consistently opposed
all the foregoing exceptional pretensions and
claims, she has throughout been favourably disposed to the adoption of general, measures of
control of the fur-seal fishery, should these be
found to be necessary or desirable with a view
to the protection of the fur-seals, provided that
such measures be equitable and framed on just
grounds of common interest, and that the
adhesion of other Powers be secured, as a
guarantee of their continued and impartial
execution.
Arrangement of Case.
Arrangement of Case.
Article VI.
It will be convenient to state the arrangement
and order of the Case here presented on behalf
of Great Britain.
The first three points of Article VI are as
follows:—
" 1. What exclusive jurisdiction in the sea now known
as the Behring Sea, and what exclusive rights in the seal
fisheries therein, did Russia assert and exercise prior and
up to the time of the cession of Alaska to the" United
States ?
12. How far were these claims of jurisdiction as to the
seal fisheries recognized and conceded by Great Britain ?
[248] C 2 10
" 3. Was the body of water now known as the Behring Arrangement of Case.
Sea included in the phrase ' Pacific Ocean,' as used in the 	
Treaty of 1825 between Great Britain and Russia; and
what rights, if any, in the Behring Sea, were held and
exclusively exercised by Russia after the said Treaty ?"
It is proposed in the first instance to deal with
these points, which relate to the original claims
by Russia to certain rights in Behring Sea, and
the action of Great Britain respecting these
claims.
The questions therein raised will be considered Heads of Argument.
under the following heads:—
(A.) The user up to the year 1821 of Behring chapter l.
Sea and other waters of the North Pacific. Head A-
(B.) The Ukase of 1821 and the circumstances   chapter II.
connected therewith leading up to the Treaties of     Hea<* **•
1824 and 1825.
(C.) The question whether the body of water chapter III.
now known as Behring Sea is included in the     Head c*
phrase 1 Pacific Ocean," as used in the Treaty of
1825 between Great Britain and Russia.
(D.) The user of the waters in question from  Chapter iv.
1821 to 1867. HeadD-
It is then proposed to consider point 4 of
Article VI, which is as follows :—
" 4. Did not all the rights of Russia as to jurisdiction
and as to the seal fisheries in Behring Sea east of the
water boundary, in the Treaty between the United States
and Russia of the 30th March, 1867, pass unimpaired to
the United States under that Treaty ?"
This point will be considered under the following heads:—
(E.) What rights passed to the United States Chapter V.
under the Treaty of Cession of March 30,1867.        Head E-
(E.) The action of   the  United  States   and Chapter VI.
Russia from 1867 to 1886. Head F-
(G.) The various contentions advanced by the Chapter VII.
United States since the year 1886.
Point 5 of Article VI is as follows:—
" Has the  United States any right, and, if so, what Chapter VIII.
right, of protection or property in the fur-seals frequenting lc e     '   ° 11
Arrangement of Case.
the islands of the United States in Behring Sea when such
seals are found outside the ordinary 3-mile limit ?"
This will be briefly considered, but the proposition which  appears  to   be   embodied   in   this
question is of a character so unprecedented that,
in view of the absence of any precise definition,
it is impossible to discuss it at length at the
present   time.    It   will,   however,   be   treated
in   the   light   of   such   official   statements   as
have hitherto been made on the part of the
United   States,   its   discussion   in detail being
necessarily   reserved   till   such   time   as   the-
United  States   may produce   the   evidence   or
allegations upon Which it relies in advancing such
a claim.
.Article VII is as follows :—
Article VII. " If the determination of the foregoing questions as to
the exclusive jurisdiction of the United States shall leave
the subject in such position that the concurrence of Great
Britain is necessary to the establishment of Regulations
for the proper protection and preservation of the fur-seal
in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent-Regulations1
outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination, -
the Report of a Joint Commission, to be appointed by the
respective Governments, shall be laid before them, with
such other evidence as either Government may submit.
"The High Contracting Parties furthermore  agree to
co-operate in securing the adhesion of other Powers to*-
such Regulations."
The terms of this Article make it necessary
that the consideration of any proposed Regulations should be postponed until the decision
of the Tribunal has been given on the previous
questions.
Beyond, therefore, demonstrating that the
concurrence of Great Britain is necessary to the-
establishment of any Regulations which have forr
their object the limitation or control of the^
rights of British subjects in regard to seal fishing
in non-territorial waters, it is not proposed to
discuss the question of the proposed Regulations,
or the nature of the evidence which will be
submitted to the "Tribunal.
Article VIII. With    regard   to   the   points   raised   under
Article VIII (which refer to  questions arising 12
out of claims for damages), it will be contended
on behalf of Great Britain that the seizure of the
ships was unlawful, and the Arbitrators will be
asked to find that in each case the seizure took
place in non-territorial waters, that such seizures
were made with the authority and on behalf of
the Government of the United States, and that
the amounts of damages with Great Britain is
entitled to claim on behalf of the owners,
masters, and crews are the respective amounts
stated in the Schedule of particulars appended to
this Case.
Arrangement of Case. 13
Chapter I.
User of Waters up to 1821.
Area to be considered.
Pacific Ocean."
Behring Sea.'1
Head (A).—The User, up to the year 1821, of the
Waters of Behring Sea and other Waters of the
North Pacific.
It is shown in the following series of historical
notes, chronologically arranged, that the waters
subsequently included in the claim made by
Russia under the Ukase of 1821, had been freely
navigated over, and frequented for purposes of
trade and for other purposes, by ships of various
nations, from the earliest times. Eurther, that
the discovery and exploration of these waters
and the coasts and islands washed by them, was
largely due to the navigators of various nations,
and in particular to those of Great Britain.
The waters affected by the Russian Ukases of
1799 and 1821* include not only the entire area
of Behring Sea (though that sea is not specifically
mentioned by any name in either Ukase), but
also other parts of the Pacific Ocean, and in
considering the nature of the user of the waters
now in question, the entire area affected by the
Ukase of 1821 is included, the facts relating to
all parts of this area being of equal significance.
It will be noted in this connection that the-
limit claimed under the Ukase extended southward to the 51st parallel of north latitude on the
American coast; and that, therefore, any events
occurring to the north of 54° 40', which is the
southernmost point of the territory now known
as Alaska, are well within this limit.
The Pacific Ocean as a whole, was, in the last
century and in the early part of the present
century, variously named the Pacific, or Great
Ocean or South Sea, the last name arising from
the circumstance that it had been reached by
sailing southward round the Cape of Good Hope
or Cape Horn.
Behring Sea is, and was at the time of the
negotiations which arose immediately on the
promulgation of the Ukase of 1821, recognized
by geographers as a part of the Pacific Ocean.
* The text of the Ukase of 1799 will be found at p. 25 of this
Case ; that of the Ukase of 1821 at p. 37. 14
The name by which it is now known is that of
the navigator Behring, but in earlier times it
was often named the Sea of Kamtchatka.
This sea washes the northern parts of the
coasts of North America and of Asia, and is
regarded as extending from Behring Strait on
the north to the Aleutian and Commander
Islands on the south. Its area is at least
two-thirds of that of the Mediterranean, and
more than twice that of the North Sea, while
its extreme width is 1,260 miles. Erom north to
south it extends over about 14 degrees of
latitude, or more than 800 miles.
Erom the south it is approached by numerous
open sea-ways, one of which is 175 miles wide,
another 95 miles, five more from 55 to 22 miles,
and very many of smaller width.
On the north, it communicates with the Arctic
Ocean by Behring Strait, 48 miles in width.
Behring Sea is the common highway to the
Arctic Ocean with   its valuable fisheries.     It
is  Great Britain's highway to her possessions
in the north via the Yukon River (of which the
free navigation is guaranteed by Treaty), as well Treaty of "
as the route for such communication as may be j\jay 8,1871,
held or attempted with the northern parts of the Ar,ic,e XXVI,
coasts of North America to the east of Alaska,
and with  the estuary of the great Mackenzie
River.
Description of Behring Sea.
Historical Outline.
In 1728 and 1729, Behring, in his first expedition, outlined, somewhat vaguely, the Asiatic
coast of Behring Sea,  and practically proved o/Afeska, p"^*
the separation of   the Asiatic   and   American
continents.
In 1741, Behring's second expedition, which ibid., pp. 62-74.
sailed from Okhotsk, resulted in the discovery of
the American coast.
Unsatisfactory as the voyages of Behring and
his associate Chirikoff undoubtedly were from a
geographical point of view, it was upon their
results that Russia chiefly based her subsequent
Historical Outline
1741
* This worK will be referred to throughout these pages by the
short title of "Alaska."
For the period discussed in this Chapter reference may be
made generally to " Lyman's Diplomacy of the United States,"
2nd edition, Boston, 1828, vol ii, chapter XI. 1769.
15
1 '4J- pretensions to the ownership of the north-western
part of North America.
Hunters and traders followed Behring's lead,
and Behring Island, and various islands of the
Aleutian chain,   were visited  from the  Kam-
tchatkan coast.
Alaska, p. ill. In 1763, Glottof, on a trading voyage, ventured
as far east as Kadiak Island.
1768- Ibid., pp. 157,158.      ln 1764 to 1768, Synd, a Lieutenant of the
Russian navy, made an expedition along the
coast to Behring Strait.
Of the period from 1769 to 1779, Bancroft
writes in his History of Alaska:—
Ibid., p. 174. " From this, time to the visit of Captain Cook, single
traders and small Companies continued to traffic with the
-islands in much the same manner as before, though a
general tendency to consolidation was perceptible."
1774. Ibid., pp. 194-197.      The extension of  Russian influence did not
pass unnoticed by Spain, and in 1774 Perez was
dispatched from Mexico on a voyage of exploration, in which he reached the southern part of
Alaska.
1775. Ibid., p. 197. In   1775,   Heceta,   also    instructed   by   the
Viceroy   of   Mexico,   explored   the   coast   of
America as far north as the 57th or 58th degree
of latitude, taking possession of that part of the
continent in the name of Spain.
1778. Cook, Voyage to In 1778, Captain Cook, sent by the English
the Pacific Ocean,     ^ . -i-iji* • j     n   n
1776-1780 Government, reached the American coast ot the
London, 1874.        North Pacific with two vessels.
In pursuance of his instructions, he explored
the coast from about 44? of north latitude as far
as the region of Prince William Sound and Cook
River or Inlet, taking possession of the coasts
there. At Cook Inlet he found evidence of
Russian trade but no Russians. At Unalaska,
one of the Aleutian Islands, he again heard of
the Russians, and on the occasion of a second
visit met Russian traders. Erom Unalaska he
sailed eastward to Bristol Bay, landing and
taking possession. Erom this he explored, and
defined the position of the American coast
northward as far as Icy Cape, beyond Behring
Strait.
Cook was killed in the following winter at the
Sandwich Islands, but his ships, under Clarke,
returned in 1779 and made further explorations
in Behring Sea and in the Arctic Ocean.
Under this expedition, and for the first time, the
[248] D 16
main outlines of the north-western part of the
Continent of America, and particularly those of
the coast about Prince William Sound and Cook
Inlet, with the eastern  coast of Behring Sea,.
were correctly traced.
This expedition also opened up the trade by
sea in furs from the north-western part of
America to China.
. Cook's surveys still remain in many cases the
most authentic ; and these, with other results of
the expedition were published in full in 1784.
In 1779, another officially accredited Spanish Alaska, pp. 217-
expedition under Arteaga and Quadra, explored      '
part  of the coast northward  from about latitude 55°, and westward to Mount St, Elias.
In 1783, the first attempt was made, following Ibid., p. isg.
Cook's discoveries, to establish a Russian trading
post   on   the   American   mainland,   at   Prince
William Sound.    It ended disastrously.
Eor some years after this reverse  only one Ibid., p. 191.
small vessel  was   dispatched from  Siberia for
trading purposes; but in 1784, Shelikof visited Ibid., p. 224.
Unalaska and reached Kadiak Island, with the "
intention of effecting a permanent  occupation
there.
In 1785,  Captain   Hanna entered into   the Bancroft, History
trade between the north-west coast of America £oast 'T°[ j"web
and   China, for which   Captain   Cook's expe- pp-173,174.*
dition had shown the way.    He made a second
voyage in the following year, but appears to
have confined   his   trading   operations to   the
vicinity of  the   northern   part   of   Vancouver
Island.    Other  commercial   adventurers   were,
however,   practically   contemporaneous    with,
Hanna, and this year is an important one in
connection with the whole region.
The I Captain Cook " and " Experiment/' from Alaska, p. 243.
Bombay, traded at Nootka and at Prince William
Sound.
An English vessel, the 1 Lark," Captain Peters,
from Bengal via, Malacca and Canton, after
trading at Petropaulovsk in Kamtchatka, sailed
for Copper Island with the supposed purpose, as
alleged, of obtaining a cargo of copper there.
She was wrecked on the Commander Islands.
In the same year, 1786, Portlock and Dixon,
and Meares, arrived upon the American coast,
and traded and explored far to the northward.
177S.
Sauer's account of
Billing's expedition,
London, 180.\
pp. 279, 28!.
1779
.783.
1786-1789.
* This work will be referred to throughout these pages by the
short title of " North-west Coast." - 17
1,80-1780. These voyages   are  important, because detailed
accounts of both were published, in 1789 and
1790 respectively, while the voyages of other
traders have generally not been recorded.
| A voyage round Portlock and Dixon, who had sailed from
London 1789.1 London in 1785 in the "King George" and
1 Queen Charlotte," in 1786, first visited Cook
Inlet, where they found a party of Russians
encamped, but with no fixed establishment.
Trade was eavried on with the native there,
and subsequently at various other places on what
is now the Alaskan coast, and several harbours
were surveyed. In the following year, Portlock
and Dixon returned to the vicinity of Prince
William Sound, where they found Meares, who
had spent the previous winter there. They
subsequently called at a number of places on the
Alaskan coast, as well as at ports now included
in the coast line of British Columbia, making:
very substantial additions to geographical
knowledge.
Meares' voyages Meares sailing from Bengal in the " Nootka "
79 .   See also      eariy in the year, reached the Islands of Atka
'■Annual Register, J J
]7?o, vol. xxxii, and Amlia of the Aleutian chain, staying
two davs at the last-named island, and holding*
communication with the natives and Russians
found there. He then proceeded eastward
along the Aleutian Islands, and was piloted
into Unalaska by a Russian who came off to
the ship. He describes the Russian establishment as consisting of underground huts like
those occupied by the natives; but being
anxious to leave the vicinity of the Russian
traders, he continued his voyage eastward to
Cook Inlet and eventually wintered.in Prince
William Sound, as above stated.
Meares' later voyage, in 1788 and 1789,
which is better known than his first venture, was
directed to that part of the coast lying to the
southward of the limits afterwards included by
the Ukase of 1799. In 1788, Meares built at
Nootka, in the northern part of Vancouver
Island, the first vessel ever constructed on the
coast of the north-western part of America.
She was intended for use in the fur trade,
and was appropriately named the f North-West
America."
1786 Alaska, p. 255. -^so m i1?86^ ^a P&ouse, on his voyage round
the  world,  under instructions   of   the  Erench
Government, first made the American land near
[2481 D  2 18
Mount St. Elias,    Thence he sailed eastward and
southward,  calling at places   on   the Alaskan
coast.   At Lituya Bay  he   obtained   in   trade Alaska, p. 243.
1,000 sea-otter skins.
In   the   same   year   the   Russian   Pribyloff Ibid., pp. 192-193.
discovered   the   islands   in   Behring  Sea,  now
known by his name.
In 1788, a Spanish expedition, in the vessels ibid., pp. 270-272.
" Princesa " and "San Carlos," under-Martinez
and Haro, set out. It visited Prince William
Sound, but found no Russians. Haro, however,
found a Russian colony at Three Saints, on
Kadiak Island. This was the easternmost place
which had at this time a permanent Russian
settlement. The voyagers took possession of
Unalaska for Spain, but afterwards found Russian
traders on the island.
In the same year, a Russian vessel explored Ibid., pp. 267-270.
Prince William   Sound,  Yakutat,  and   Lituya
Bays, all of which had previously been examined
by English or Erench voyagers.
In 1788, vessels from the United States first North-west Coast,
traded on the north-west coast.
Upon the conflict of interests at this time along
this part of the American coast, and the rival
claims to territory there, Bancroft makes the
following remarks:—
" The events of 1787-88 must have been puzzling to the Alaska, p. 267.
natives of Prince William Sound. Englishmen under the
English flag, Englishmen under the Portuguese flag,
Spaniards and Eussians, were cruizing about, often within
a few miles of each other, taking possession, for one nation
or the other, of all the land in sight."
Referring to Billing's Russian scientific exploring expedition, by which several voyages
were made from 1787 to 1791 in the Behring
Sea region, Bancroft says :—
" The geographical results may be set down at next to ibid., p. 296
nothing, with the exception of the thorough surveys of
Captain Bay in Ifliuliuk Harbour on Unalaska Island,
Every other part of the work had already been done by
Cook."
The complaints of natives, against the practices
of independent traders and adventurers, brought
back by this expedition, had much to do with
the subsequent grant of a monopoly of the trade
to the Russian-American Company.
.786-
1788.
1788. 19
1789
1790.
1791.
1792.
1793.
North-west Coasrj
vol. i, pp. 20-1-212.
Alaska, p. 273.
Ibid., p. 325.
Ibid., p. 285.
Jbid., p. 274.
Ibid., p. 275.
Ibid., p. 248.
North-west Coast,
vol. i, pp. 250-257
Alaska, p. 244.
Vancouver, vol. iii,
p. 498.   Voyage of
Discovery to the
Pacific Ocean.
London, 1798,
Alaska, p. 296.
Vancouver's
voyage.
Iii 1789, twelve vessels at least are known to
have been trading on the north-west coast.*
The well-known "Nootka" seizures by the
Spaniards occurred in this year.
In 1790, Eidalgo sailed from Nootka, then
occupied by Spain, to examine the north-west
coast, including Prince William Sound, Cook
Inlet, and Kadiak. The trading-vessel
"Phoenix," Captain Moore, from the East
Indies, was in Prince William Sound in this
year.
At this time also, Russia and Sweden being
at war, a Swedish cruizer visited the Aleutian
Islands, but finding no Government establishment to attack, and no Russians except traders
living "in abject misery," her Commander
refrained from disturbing them.
In 1791, Malaspina, from Spain, under orders
of his Government, visited several places upon
what is now the Alaskan coast. Marchand, in
the " Solide," from Erance, on a voyage of trade
and circumnavigation, also visited the coast, and
Douglas, in the " Iphigenia," was in Cook Inlet
in this year.
Besides the above vessels, at least eight trading-
vessels are known to have been on the coast, of
which seven were from the United States.
In 1792, Caamano, setting out from Nootka,
explored Port Bucarelli, in South-eastern Alaska;
and it is reported that in this year fully twenty-
eight vessels were upon the coast, at least half of
them being engaged in the fur trade.
Vancouver gives a list of 21 vessels for the
same year, divided as follows ; Erom England, 6;
from East Indies, 2; from China, 3 ; from United
States, 7; from Portugal, 2; from Erance, 1.
The t( Halcyon," Captain Barclay, visited Petro-
paulovsk for purposes of trade, and a Erench
vessel, " La Elavia," wintered there.
In 1793, Vancouver, who had been dispatched
by the English Government with the " Discovery " and  " Chatham"  for the purpose of
* In many cases no records exist of the trading voyages made
to the north-west coast, and the existing records are very incomplete. It is in some cases certainly known that these traders
extended their operations to the north of the limit mentioned in
the Ukase of 1799, or that of the Ukase of 1821. In other cases
the extent of the V03*ages made is unknown. The traders went,
iii fact, wherever skins could be purchased, and, if disappointed
or forestalledat one place, at once departed for apolher. Nope
of these trading-vessels were Russian, 20
finally deciding the existence or otherwise of a 1793.
communication between the Pacific and Atlantic,
by the exploration of all remaining inlets on the
north-west coast, was occupied in surveying
operations on what now constitutes the southeastern Alaskan coasts
In 1794 he surveyed Cook Inlet to its head, Vancouver's 1704.
and Prince William Sound, Kadiak, and the vo.va?e
coast extending to Yakutat Bay, were in turn
carefully laid down in detail. He ascertained
that the easternmost Russian Establishment at
this time was at Port Etches on Prince William
Sound.
Concerning the Russians here and there met Ibid., vol ||
with, Vancouver remarks that he— p*
I clearly understood that the Eussiah Government had
little to do with these Settlements; that they were solely
under the direction and support of independent mercantile
Companies Not the least  attention whatever is
paid to the cultivation of the land or to any other object
but that of collecting furs, which is principally done by
the Indians."
Near Yakutat Bav he fell in with the % Jackal,"
an English trading-vessel, whieh was then upon
the coast for the third consecutive season; and
further to the south-eastward he met with the
"Arthur," Captain Barber, from Bengal.
Vancouver took possession of the coast southward from Cross Sound (latitude 58°) in the
name of Great Britain. The results of his
surveys were published in 1798.
The names  of  four   trading-vessels   on   the w  .,      L n
° North-west Coast,
north-west coast, including the  "Jackal,"  are vol. i, p. 297.
known for this year.
In 1795, a trading-vessel, named the " Phoenix," ibid., p. 304. 1 |f|
Jrom Bengal, was on the north-west coast.
In 1796, at least three trading-vessels are known jyj  | 305
to have been on the north-west coast. 17%
In 1797, the names of four trading-vessels on Ibid., p. 306.
this   coast   are   known, but these   constituted 1797.
probably but a small part of the fleet.
In 1798, the names of six trading- vessels happen Ib;d  vol ;     306 ^'-qq
to have been recorded.
In 1799, the | Caroline," Captain Cleveland, 2799,
from Boston, arrived at Sitka shortly after a
Russian post had been established there.
Several other American vessels, among them Alaska, p. 389.
the brig | Eliza," under Captain Rowan, visited
Sitka during the summer and 1 absorbed the trade 21
1799.
while the Russians were preparing to occupy the
field in the future."
North-west Coast,
vol. i, p. 307.
The names of  seven vessels trading  on the
north-west coast are recorded in this year.
Nothing approaching to a complete record of
the names or nationalities of vessels trading upon
this part of the coast in the years about the close
of the last century can now be obtained, and, in
the absence of any published record of explorations, even incidental allusions to the presence of
such traders become rare in the years after the
date of Vancouver's departure. That such trade
was, however, continuously practised is evident
from the general complaints made by the Russians
as to its effect on their operations.
The following quotations from Bancroft's
" History of Alaska" allude to complaints
referring particularly to these years.
Writing of the enterprises of Baranoff, Governor
of Sitka, Bancroft says :—
1798-1801. Alaska, p. 384. "At every point eastward of Kadiak where he had
endeavoured to open trade, he found himself forestalled by
English and American ships, which had raised the prices of
skins almost beyond his limited means."
Again,   referring   specially   to   the   nascent
. Establishment    at    Sitka,    Baranoff     himself
writes:—
Ibid., p. 395. " I thought there would be no danger with proper pro
tection from the larger vessels, though the natives there
possess large quantities of fire-arms and all kinds of
ammunition, receiving new supplies annually from the
English and from the Republicans of Boston and America,
whose object is not permanent settlement on these shores,
- but who have been in the habit of making trading trips.to
these regions."
On another page Bancroft wrrites :—
Ibid., p. 398. " Baranoff's complaints of foreign encroachment appear
to have been well grounded. Within a few leagues of
Sitka the captains of three Boston ships secured 2,000
skins, though paying very high prices, each one trying to
outbid the other.".
Ibid., p. 399.- Eurther on Baranoff is quoted to the effect
that the Americans had been acquainted with the
. tribes in this region for two or three vears, and
sent there annually from six to eight vessels.
These vessels from the United States were at
this time just beginning to supplant the English
traders, who had in earlier years been the more
numerous. %%
Once   more   Bancroft   quotes   Baranoff   as
follows:—
I The resources of this region are such that millions Alaska, p. 899.
may be made there for our country with proper management in the future, but for over ten years from six to ten
English and American vessels have called here every year.
It is safe to calculate an average of 2,000 skins on eight,
or say six vessels, which would make 12,000 a-year, and
if we even take 10,000 as a minimum, it would amount in
ten years to 100,000 skins, which at the price at Canton
of 45 roubles per skin, would amount to 4,500,000
roubles."
Circumstances which led up to Ukase of 1799.
It will be convenient at this point to consider
the circumstances which led up to the Ukase of
1799, the terms of that Ukase, and its effect.
As early as 1786, the idea had become dominant Alaska, p. 305.
with Grigor Shelikof, who had shortly before
established the first permanent Russian colony
at Kadiak, of creating a Company which should
hold a monopoly of trade in the Russian possessions on the Pacific, and over all that part of the
American Continent to which Russian traders
resorted. Shelikof obtained but a partial success
in the Charter issued for the United American
Company; but after his death at Irkutsk in 1795, jj^ pPi 377.379
his schemes were taken up by his son-in-law
Rezanof, who succeeded in carrying them to completion, and, in 1799, a Ukase was issued which
granted the wished-for exclusive privileges to
the new Russiau-American Company. Before
this time, in 1798, a consolidation of the Shelikof
Company with several smaller concerns had
been effected under the name of__ the United
American Company; and at the date of the
issuing of the Ukase there were but two rival
Companies of importance in the field, the Shelikof
or United American Company, and the Lebedef
Company, and these engaged in active competition and hostility.
Bancroft sums up the situation about 1791 and
1792 in the following words :—
Circumstances which led up to Ukase
of 1799.
" Affairs were assuming a serious aspect.   Not only were Ibid., pp.
the Shelikof men excluded from the greater part of the s39-
inlet [Cook Inlet], but they were opposed in their advance
round Prince^ William Sound, which was &lso claimed bv
the Lebedef faction, though the Orekhof and other Companies were hunting there , . , .
338. 23
Circumstances which led up to Ukase | Thus the history of Cook Inlet during the last decade
oi n\)y. 0{ ^e eighteenth century is replete with romantic inci
dents—midnight raids, ambuscades, and open warfare—
resembling the doings of mediaeval raubritters, rather than
the exploits of peaceable traders ....
"Robbery and brutal outrages continued to be the
order of the day, though now committed chiefly for
the purpose of obtaining sole control of the inlet, to the
neglect of legitimate pursuits."
Again, in another place, the same author
writes, with regard especially to the position of
Baranoff, Governor of Sitka, when he took charge
of the Shelikof Colony of Kadiak:—
Alaska, p. 321. "Thus, on every side, rival establishments and traders
were draining the country of the valuable staple upon .
.which rested the very existence of the scheme of colonization. To the east and north there were Russians, but to
the south-east the ships of Englishmen, Americans, and
Frenchmen were already traversing the tortuous channels
of the Alexander Archipelago, reaping rich harvests of sea-
otter skins, in the very region whore Baranoff had decided
to extend Russian dominion in connection with Company
sway."
Ibid., pp. 302,391, It was only in the later years of the com-
petition between the rival Russian Companies
that they began to assume hostile attitudes to
one another. The growing power of some of
them favoured aggression, and the increasing
scarcity of the sea-otter, which was already
beginning to be felt, accentuated it. At first,
and for many years after Behring's initial voyage,
the traders from Siberia were sufficiently occupied
in turning to advantage their dealings with the
natives of the islands and coasts visited by them,
and this not in the most scrupulous manner.
Tribute in furs was exacted from the Aleuts on
various pretexts, and whenever the traders came
in sufficient force these people were virtually enslaved. Not only were the companies of traders
under no sufficient or recognized control by the
Russian Government, but they even disliked and
resented in some measure the advent or presence
Ibid., p. 301. among them of commissioned  officers   of  the
Government.
The effect of the reports of  the  subordinate
members of Billing's expedition, as to the unsa-
Ibid , p. 299. tisfactory state of affairs in the Aleutian Islands
and on the American coast, tended to favour
the project of the establishment of a monopoly,
by disclosing the abuses which existed by reason
of the existing competition. Bancroft more than
hints that the superior officers of the expedition
[248] E n
were induced to  keep  silence from interested Circumstances which led up to Ukase
of 1799'
motives;   and   Billing's   Report, whatever  its
tenour may have been, was never published.
In the end, however, it became in a degree
imperative for the Russian Government to put
a stop to the scandals and abuses which
flourished in this remote and practically uncontrolled portion of the Empire, and the easiest
way in which this could be done, and the least
expensive, was to vest exclusive rights in the
hands of the most powerful of the existing rival
Companies. This, being also in the interests of
the Company in question, was not found difficult
% of achievement, and, as a consequence of the
Ukase of 1799, the absorption of the smaller
concerns still existing' appears to have followed
without any great difficulty, Baranoff, as the
executive head of the new Corporation on the
American coast, coming to the front as the
natural leader.
When Shelikof presented at St. Petersburg his Alaska, p. 308.
original petition for the right to monopolize the
trade, a Report was requested on the subject
from Jacobi, the Governor-General of Eastern
Siberia, and in Jacobi, Shelikof found an able
advocate. Jacobi stated that it would be only
just to Shelikof to grant his request, and that
it would be unfair to allow others to enjoy
the benefits of the peace which Shelikof had
established at Kadiak.
The Empress then ordered the Imperial ibid., p. ?09.
College of Commerce to examine the question,
and a Committee of this body endorsed Jacobi's
Report and recommended that the request of
Shelikof and Golikof for exclusive privileges
should be granted.
Though, among the arguments naturally advanced in favour of the grant of a monopoly,
we find it urged that the benefits of trade
accruing would thus be reserved to Russian subjects, the history of the occupation of the coasts
and the records concerning it, show conclusively
that this was not the object which to any great
extent induced Shelikof to apply for such a
monopoly. His Company had the utmost difficulty in sustaining its position against hostile
natives, while not less serious were the difficulties
arising from the competition, and scarcely veiled
hostility of rival Russian traders. The increasing
trade by foreigners, together with the numerous
exploring and surveying expeditions dispatched
■-',.-■    -'-   '■.     ■""I" 25
Circumstances which led up to
Ukase of 1799.
Text of Ukase of 1799.
Alaska, pp. 379-
380.
to the north-west coast of America by various
Powers, were no doubt distrusted by the Russian
traders; but at the same time these traders were
often obliged to depend on such foreigners for
support and -assistance.
Nowhere in the annals of the times previous
to, and during the operation of the Ukase of
1799, do we find any reference to attempts
to interfere with or restrict the operations of
foreigners upon the American coasts or in the
Aleutian Islands. Even the scientific expeditions
of the period were often largely interested in
trade as well as in exploration, but all vessels
meeting with the Russians report a favourable,
if not a hospitable reception.
Such an attitude on the part of the traders
and the Company is, in fact, strictly in accord
with the Ukase of 1799, which is purely domestic
in its character, and in which no exclusive rights
against foreigners are asserted.
Ukase of 1799.
The following is a literal translation of the
Ukase in question, taken from Golovnin, in
'"Materialui dla Istoriy Russkikh Zasseleniy,"
i. 77-80 m
" By the grace of a merciful God, we, Paul I, Emperor
and Autocrat of All the Russias, &c. To the Russian-
American Company, under our highest protection, the
benefits and advantages resulting to our Empire from
the hunting and trading carried on by our loyal subjects in the north-eastern seas and along the coasts of
America have attracted our Royal attention and consideration ; therefore, having taken under our immediate protection a Company organized for the above-named purpose of
carrying on hunting and trading, we allow it to assume
the appellation of * Russian-American Company under our
highest protection;' and for the purpose of aiding the
Company in its enterprises, we allow the Commanders of
our land and sea forces to employ said forces in the
Company's aid if occasion requires it, while for further
relief and assistance of said Company, and having examined
their Rules and Regulations, we hereby declare it to be
our highest Imperial will to grant to this Company for a
period of twenty years the following rights and privi-
eges :-
" 1. By the right of discovery in past times by Russian
navigators of the north-eastern part of America, beginning
from the 55th degree of north latitude and of the chain of
islands extending from Kamschatka to the north to
America and southward to Japan, and by right of possession of the same by Russia, we most graciously permit
the Company to have the use of all hunting grounds and
[21.8] E 2 26
establishments now existing on the north-eastern [sie] coast Text of Ukase of 1799.
of America, from the above-mentioned 55th degree to
Behring Strait, and on the same also on the Aleutian,
Kurile, and other islands situated in the north-eastern
ocean.
" 2. To make new discoveries not only north of the
55th degree of north latitude but farther to the south,
and to occupy the new lands discovered, as Russian possessions, according to prescribed rules, if they have not
been previously occupied by any other nation, or been
dependent on another nation.
" 3. To use and profit by everything which has been or
shall be discovered in those localities, on the surface and
in the bosom of the earth, without any competition by
others.
" 4. We most graciouslypermit this Company to establish Settlements in future times, wherever they are
wanted, according to their best knowledge and belief, and
fortify them to insure the safety of the inhabitants, and to
send ships to those shores with goods and hunters, without
any obstacles on the part of the Government.
15. To extend their navigation to all adjoining nations
amd hold business intercourse with all surrounding Powers,
upon obtaining their free consent for the purpose, and
under our highest protection, to enable them to prosecute
their enterprises with greater force and advantage. ;
"6. To employ for navigation, hunting, and all other
business, free, and unsuspected people, having no illegal
views or intentions. In consideration of the distance of
the localities where they will be sent, the provincial authorities will grant to all persons sent out as settlers, hunters,
and in other capacities, passports for seven years. Serfs
and house-servants will only be employed by the Company
with the consent of their land-holders, and Government
taxes will be paid for all serfs thus employed.
" 7. Though it is forbidden by our highest order to cut
Government timber anywhere without the permission of
the College of Admiralty, this Company is hereby permitted, on account of the distance of the Admiralty from
Okhotsk, when it needs timber for repairs, and occasionally
for the construction of new ships, to use freely such timber
as is required.
" 8. For shooting animals, for marine signals, and on all
unexpected emergencies on the mainland of America and
on the islands, the Company is permitted to buy for cash,
at cost price, from the Government artillery magazine at
Irkutsk yearly 40 or 50 pouds of powder, and from the
Nertchinsk mine 200 pouds of lead.
"9. If one of the partners of the Company becomes
indebted to the Government or to private persons, and is
not in a condition to pay them from any other property
except what he holds in the Company, such property
cannot be seized for the satisfaction of such debts, but the
debtor shall not be permitted to use anything but the
interest or dividends of such property until the term of
the Company's privileges expires, when it will be at his or
his creditors' disposal.
"10. The exclusive right most graciously granted to the 27
Text of Ukase of 1799.
The Ukase of 1799 considered.
Company for a period of twenty years, to use and enjoy,
in the above-described extent of country and islands, all
profits and advantages derived from hunting, trade, industries, and discovery of new lands, prohibiting the enjoyment of those profits and advantages not only to those who
would wish to sail to those countries on their own account,
but to all former hunters and trappers who have been
engaged in this trade, and have their vessels and furs at
those places ; and other Companies which may have been
formed will 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 vessels in those regions can either sell their
property, or, with the  Company's consent,, remain until
they have obtained a cargo, but no longer than is required
for the loading and return of their vessel; and after that
nobody will have any privileges but this one Company,
which will be protected in the enjoyment of all the advantages mentioned.
"11. Under our highest protection, the Russian-American
Company will have full control over all above-mentioned
localities, and exercise judicial powers in minor cases.
The Company will also be permitted to use all local
facilities for fortifications in the defence of the country
under their control against foreign attacks. Only partners
of the Company shall be employed in the administration
of the new possessions in charge of the Company.
I In conclusion of this our most gracious order for the
benefit of the Russian-American Company under highest
protection, we enjoin all our military and civil authorities
in the above-mentioned localities not only not to prevent
them from enjoying to the fullest extent the privileges
granted by us, but in case of need to protect them with all
their power from loss or injury, and to render them, upon
application of the Company's authorities, all necessary aid,
assistance, and protection.
" To give effect to this our most gracious Order, we
subscribe it with our own hand, and give orders to confirm
it with our Imperial seal.
" Given at St. Petersburgh, in the year after the birth of
Christ 1799, the 27th day of December, in the fourth year
of our reign.
(Signed) " Paul."
The Ukase, it will be observed, granted to the
Russian-American Company exclusive rights as
against other Russian subjects only, and in no
way interfered with the rights of foreigners, notwithstanding that the representations which led to
its promulgation contained, as has already been
indicated, complaints of competition by foreigners.
It will be noticed, for instance, that the details
incorporated in clause 10 of the Ukase respecting
the rights of independent traders are such as to be
applicable to Russian subjects or Companies alone.
The rights and  privileges under   the  grant 28
extended to the hunting grounds and establishments then existing on the main coast of
America from Behring Strait down to the
55th degree of north latitude.
The southern limit of the exclusive coast
privileges granted to the Company extended on
the Asiatic side to Japan.
Not only were the main coasts of Asia and
America thus covered by the Ukase, but the same
privileges were granted on the Aleutian, Kurile,
and other islands " situated in the North-Eastern
Ocean."
It will be noted, therefore, that the area over
which the exclusive privileges were granted to the
Russian-American Company extended both on
the coast of Asia and of America far beyond the
limits of Behring Sea.
Special privileges in regard to the purchase of
powder for shooting animals " on the mainland of
America and on the islands " were conceded, and
the exclusive right "to use and enjoy in the
above-described extent of country and islands "
the hunting and trading.
The Ukase in no wav claimed any exclusive
jurisdiction over the sea, nor were any measures
taken under it to restrict the commerce, navigation, or fishery of the subjects of foreign nations,
and this although, within the very area covered
by the Ukase, as has already been shown by the
facts stated, vessels of various nations had been
navigating and trading.
It will be seen, bv the account of the years
following 1799, that these operations on the part
of foreigners continued.
Referring to the Ukase of 1799, Mr. Middle-
ton, the United States' Minister at St. Peters-
burgh, writes, 7th (19th) April, 1824, to
Mr. Adams, the Secretary of State of the United
States, as follows:—
"The confusion prevailing in Europe in 1799 permitted American State
Russia (who alone seems to have kept her attention fixed Papers, Foreign
upon this interest during that period) to take a decided p 45]     ' '
step towards the monopoly of this trade, by the Ukase of
that date, which trespassed upon the acknowedged rights
of Spain;* but at that moment the Emperor Paul had
declared war against that country as being an ally of
* The rights of Spain are here mentioned because, by the
Ukase of 1799, Kussia claimed territory which Spain was also
understood to claim. In 1824 the United States was committed
in its own interest to support the old Spanish claim, in consequence of the Spanish cession to the United States in 1819.
The Ukase of 1799 purely domestic. 29
France. This Ukase, which is, in its form, an act purely
domestic, was never notified to any foreign State with
injunction to respect its provisions. Accordingly, it appears to have been passed over unobserved by foreign
Powers, and it remained without execution in so far as it
militated against their rights."
o o
Historical outline resumed.
1800
1801.
1802.
Alaska, p. 889.
North-west Coast,
vol. i, p. 308.
1803.
The accuracy of the views expressed by Mr.
Middleton appears clearly from the facts disclosed by the chronological statement relating to
the period subsequent to the year 1799 :—
In 1800, the ship "Enterprise," from New
York, arrived at Kadiak.
The name of seven trading^vessels on the
north-west coast are given in this year.
In 1801, there were at least thirteen United
Ibid., p. 310. States' vessels on the north-west coast.    These
SSLnoTu^ted vessels exchanged'with the natives of the coast
States' Department for furs parts of their cargoes, and, proceeding
of State, " History   ,     ^ . , -,   ,      ,,    . ,. ,   .
of Oregon and        to China, returned- to their respective countries
California,"pp. 266, with cargoes of teas, &c.    Upwards of 18,000
267. b . v
North American     sea-otter skins, besides other furs, were in 1801
Review, 1822        collected by United States' traders alone for the
Article XVIII. f J
See Appendix,        China market.
vol. i, No. 3. In 1802j the Russia]1 Establishment at Sitka
was destroyed, and nearly all the Russians there
were massacred by the natives. According to
Lisiansky, the natives were assisted by three
deserters from a United States' vessel, the
"Jenny," which had called at Sitka not long
before. Shortly afterwards, an English vessel,
the "Unicorn," Captain Barber, arrived at
Sitka, and two other vessels, reported by the
Russian survivors as English, but one of these
Bancroft believes to have been the United States'
vessel "Alert."
In this year also Krusenstern, having visited
China, presented a Memorial to the Russian
Government calling attention to the advantages
offered by the trade in furs from America direct
to Chinese ports, and suggesting that Russia
should engage in it.
Of the vessels trading on the north-west
vol. i, pp. 3U 312. coast jn knis year, the names of ten have been
recorded.
In 1803, Baranoff contemplated the abandon-
Ibid, p. 417.
Alaska, pp. 404-
409.
North-west Coast, 30
ment of  Unalaska, owing to  disease and non- 1803.
arrival of supplies.    He ordered that the best
men should be moved to the Pribyloff Islands
to "collect there the furs accumulated by the
natives.   These islands had not been visited for
many years.
Captain O'Cain, of the United States' vessel
" O'Cain,"   exchanged    goods   for   furs   with
Baranoff   at   Sitka,   and   also   took   Aleutian
hunters to the Californian coast to hunt fur-
seals and sea-otters.    "Thus was inaugurated a Alaska, pp. 477,
series of hunting expeditions beyond the borders      j
of the Russian  Colonies,  which  continued for
many years."
The names of five vessels trading on the north- North-west Coast,
west coast are known. To1, 'h **• 312"317-
In 1804, Sitka was reoccupied and rebuilt by Ibid., pp. 318,319. 1804.
the Russians. Two United States' vessels, one
being the "Juno," were there. The names cf
four vessels are known as trading on the northwest coast.
In 1805, the I Juno " and another vessel from ibid., p. 320. 1805.
the United States were at Sitka, and we hear of
six vessels, including the 1 Juno," as trading on
the north-west coast.
In 1806, the Russian Envoy Rezanoff visited
the Pribyloff Islands on the "Maria," and endeavoured to stop the wasteful slaughter of fur-
seals. He recommended the Emperor to "take Alaska, p. 446.-
a stronger hold of the country," as the traders in
ships from Boston were undermining the trade
with China. He reported that the " Bostonians " Ibid-> P- 451-
had.armed the Kolosh Indians.
In the same year the | Juno," with her cargo, ibid., p. 454.
was purchased by Baranoff, and the "Eclipse" Ibid., pp. 478, 479.
(Captain O'Cain) sailed for China with furs, but
was lost on the way back.
The names  of   four vessels  trading  on  the
north-west coast are known in this year.
Rezanoff, in 1807, sent the "Juno" to the 1807.
Californian coast for provisions.    The "Myrtle," Ibid., p.461.
an English ship  (Captain   Barber),  was   purchased by Baranoff.   Six north-west coast trading-
vessels are known by name for this year.
In 1808, the United States' vessel "Mercury " Ibid., pp. 479,480. 1808.
obtained at Kadiak 25 bidarkas, or skin-boats,
for hunting and trading to the southward.
Eour United States' trading-vessels are known 1ft0Q
to have been on the Alaskan coast in 1808 and
1809.
J 31
1810. Alaska,p. 467. In 1810, the Russian sloop-of-war "Diana"
visited Sitka. There were several United States'
vessels in the port at the time. Shortly after
the United States' vessels "Enterprise" and
I O'Cain " arrived. The | Enterprise " went to
Canton with furs.
Ibid., p. 470. Golovnin, Commander of the " Diana," writes
that at this time an American sailor and a
Prussian skipper composed the Diplomatic Corps
of the Russian-American Company.
North-west Coast,       In 1810 and 1811, four foreign vessels were
vol. i,.p. 325^ . §
engaged m sea-otter hunting, under Russian
contracts.
1811. Alaska, p. 429. In 1811, the | Enterprise " returned from and
went back to China with furs.    In this year the
Ibid., p. 483. 2£oss Q0]ony was founded in California to pro
vide agricultural products for use on the north-
North-west Coast, west coast. Eive vessels engaged in trading and
hunting, besides the four vessels under Russian
contracts, were seen on the coast of Southern
Alaska in this year.
Alaska, p. 472. In 1812, the United States' ship I Beaver 1
disposed of her cargo to Baranoff at Sitka, and
was then sent to. the Pribvloff Islands for fur-
seal skins as payment.
Ibid., P. 4so. Between 1809 and 1812, Baranoff made  six
additional hunting contracts with United States'
vessels. He received a proportion of the skins,
which were chiefly sea-otters.
1812. North-west Coast,       Between 1812 and 1814, there was scarcely any
trade, owing to the war between England and the
United States.
18 U. Alaska, P. 503. In 1814, Captain Bennett (United S:ates) sold
two vessels with their cargoes to Baranoff, and
took fur-seal skins from the Pribyloff Islands in
Ibid., pp. 504, 505. payment. Lozaref, sent by Russia, with two
ships, reached Sitka, but quarrelled with Baranoff
and returned.
I815- Ibid..p. 506. In 1815, the Russian vessel " Isabel" reached
Sitka with Dr. Sheffer on board.
181G. ibid., p. 501. In 1816, the Russian vessel " Rurik " (Captain
Kotzebue) touched at St. Lawrence Island and
explored   Kotzebue   Sound,  north   of   Behring
Strait.
Nbrth-we;t Coast,       Two United States' vessels visited the Russian
vol. i, P. 335. Settlements this year.
1817 In 1817, Kotzebue, on an exploring expedition
to the North, only reached St. Lawrence Island.
Alaska, p. 510.       An expedition in two vessels under Hagemeister,
sent by Russia, reached Sitka.
[248] P 32
In 1818, Hagemeister superseded Baranoff
under instructions.   Roquefeuil, a Erench officer, Alaska, pp. 522,
525.   '
arrived at Sitka in the | Bordelais," a trading-
vessel.     He sailed for Prince of Wales Archipelago, but   had a  conflict   with   natives  and
returned to Sitka.    Roquefeuil notes meeting a North-we3t Coast,
United   States'   and a British trading-vessel in vo '| p*
Alaskan waters.
In 1818 and 1821, expeditions were dispatched Encyclopaedia
by the British Government in seach of a north- voj_ xiXi m 319
west passage from the Atlantic to the Pacific.
These efforts were continued, and in 1824 and
1825 Parry, Beechey, and Eranklin were engaged
in the same quest, Beechey having been directed
to pass through Behring Strait and to rendezvous
with the others at Kotzebue Sound. These efforts
were stimulated by the offer by Parliament of
large pecuniary awards, and it is obvious that
the value of the discovery, if made, depended on
the free right of navigation for purposes of commerce through Behring Strait.
In 1819, the United States' traders obtained Alaska, p. 52s.
most of the trade, bartering with the Kolosh
fire-arms  and  rum  for  skins.     Thev obtained
about 8,000 skins a-year.    The Russians could
not successfully compete with them.
The privileges granted for twenty years to the
Russian-American Company were now about to
expire, and Golovnin was instructed to inquire
as to its operations. His Report was not favourable.
He writes:—
1818.'
1819.
"Three things are wanting, in the organization of the Ibid., p
Company's colonies: a clearer definition of the duties
belonging to the various officers, a distinction of rank, and
u regular uniform, so that foreigners visiting these parts
may see something indicating the existence of forts and
troops belonging to the Eussian sceptre — something
resembling a regular garrison. At present they can come
to ''no other conclusion than that these stations are but
temporary fortifications erected by hunters as a defence
531.
.against savages:
In 1820, four trading-vessels are known to have
been operating on the north-west coast.
The extent of Russian occupation at about the
date of the expiry of the first Charter can be.
shown by the Census taken in 1819, which states
the number of Russians as follows :—
Xorth-west Coast,
vol. i, p. 240.
Alaska, p. 522.
1820. 33
For Tikhmenieff's
complete Tables,
including natives,
see Appendix,
vol.  , No, 5.
Men.
w
Women.
Sitka, or New Archangel
198
11
Kadiak and adjoining islands
^ #
#
73
„ .
Island of Ookamok    ..
• •
,
2
t ,
Katmai
# m
#
4
, ,
Sutkhumokoi
m #
.
o
O
Voskressensky Harbour
% #
i
2
, ,
Fort Constantine        ..
• •
i
17
. ,
Nikolai, Cook Inlet    ..
^
^
11
. ,
Alexandrovsk, Cook Inlet
m m
9 t
11
•
Ross Settlement, California
*  .
m
27
m t
Seal Islands
^            Q
m
27
.
Nnshagak  [the only  Settlement
on
the
continent north of the Aleut
an
Islands]
3
2
Total       ..
378
13
Uncertainty of territorial claims in 1818.
See also Adams to
Rush, July 22,
1323;
American State
Papers, Foreign j
Relations, vol. v,
p. 446;
and also Confidential Memorial
inclosed in letter,
Middleton to
Adams, December
1 (IS), 1823;
American State
Papers, Foreign
Relations, vol. v,
p. 449.
See Appendix,
vol. ii, Part II,
Nos. 4 and 5.
For text of
Convention, see
American State
Papers, vol. iv,
p. 406.
While the subjects of Russia, Spain, Great
Britain and the United States were doubtless
making claims on the part of their respective
countries from time to time, so uncertain were
these claims and the merits of each, that in 1818
(20th October), in the Convention between the
United States and Great Britain, it was agreed
that any—
" country that may be claimed by either party on the
north-west coast of America, westward of the Stony Mountains, shall, together /with its harbours, bays, and creeks,
and the navigation of all rivers vnthin the same, be free and
open for the term of ten years from the date of the signature of the present Convention, to the vessels, citizens,
and subjects of the two Powers, it being well understood
that this agreement is not to be construed to the prejudice
of any claim which either of the two High Contracting
Parties may have to any part of the said country, nor shall
it be taken to affect the claims of any other Power or
State to any part of the said country, the only object of
the High Contracting Parties in that respect being to
prevent disputes and differences amongst themselves."
Russian territorial claim in 182]
American State
Papers, Foreign
Relations, vol. v,
p. 436.
See Appendix,
vol. ii, Part II,
No. 3.
Mr. Adams, Secretary of State of the United
States, in a despatch to Mr. Middleton, the
United States' Minister at St. Petersburgh, dated
22nd July, 1823, contended that even as late as
that year Russian rights in the region under consideration " were confined to certain islands north
of the 55th degree of latitude," and had "no
existence on the continent of America."
In the same letter Mr. Adams observed:—
" It does not appear that there ever has been a
permanent Russian Settlement on this continent south of
latitude 59°, that of New^Archangel, cited by M. Poletica,
in latitude 57° 30', being upon an island. So far as prior
discovery can constitute a foundation of right, the papers
[248] F 2 34
which I have referred to prove that it belongs to the
United States as far as 59° north, by the transfer to them
of the rights of Spain. There is, however, no part of the
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, 'formed by the coast
between the 55th and COth parallels of latitude, embraces
discoveries made by Gali, Bering, and Tchivikoff, Quadra,
Cook, La Perouse, Malaspina, and Vancouver. No
European nation has yet formed an establishment upon
the immense extent of coast from Cape Mendosino to the
59 th degree of latitude. Beyond that limit the Russian
factories commence, most of which are scattered and
distant from each other like the factories established by
the European nations for the last three centuries on the
coast of Africa. Most of these little Russian Colonies
communicate with each other only by sea, and the new
denominations of Russian-America or Russian possessions
in the new continent, must not lead us to believe that the
coast of Bering Bay, the Peninsula of Alaska, or the country
of the Ischugatschi, have become Russian provinces in the
same sense given to the word when speaking of the
Spanish Provinces of Sonora, or New Biscay.' (Humboldt's
t New Spain,' vol. ii, Book 3, chap. 8, p. 496.)
"In M. Poletica's letter of the 28th February, 1822, to
me, he says that when the Emperor Paul I granted to the
present American Company its first Charter in 1799, he
gave it the exclusive possession of the north-west coast of
America, which belonged to Russia, from the 55th degree
of north latitude, to Bering Strait.
"In his letter of 2nd April, 1822, he says that the
Charter to the Russian-American Company in 1799, was
merely conceding to them a part of the sovereignty, or
rather certain exclusive privileges of commerce.
"This is the most corrrect view of the sub ect. The
Emperor Paul granted to the Russian-American Company
certain exclusive privileges of commerce — exclusive with
reference to other Russian subjects; but Russia had never
before asserted a right of sovereignty over any part of the
. North American continent; and in 1799 the people of the
United States had been at least for twelve years in the
constant and uninterrupted enjoyment of a profitable trade
with the natives of that very coast, of which the Ukase of
the Emperor Paul could not deprive them."
The Honourable Charles Sumner, speaking in
the United States' Senate on the occasion of the
cession of Alaska to the United States, in 1867,
said:—
"It seems that there were various small Companies, of H. R., Ex Doc.
which that at Kadiak was the most considerable, all of l77, ??d SeS8''
i ■ i n     n     jy       j  •   , i ~ 4Cth Cong., p. 149,
which were finally fused into one large trading Company, 1867-68.
known as the Russian-American  Company, which was ^ee Appendix,
organized in 1799, under a Charter from the Emperor VoI> ''N° 6'
Paul, with the power of administration throughout the
whole region, including the coasts and the islands.   In
this respect it was not unlike the East India Company,
Russian territorial claim in 1821. 35
which has played such a part in English history; but it
may be more properly compared with the Hudson Bay
Company, of which it was a Russian counterpart. The
Charter was for a term of years, but it has been from time
to time extended, and, as I understand, is now on the
point of expiring. The powers of the Company are
sententiously described by the ' Almanaeh de Gotha' for
1867, where, under the head of Russia, it says that' to the
present time Russian America has been the property of a
Company '
Extent of Russian Settlements.
And, referring to as late a period as 1867, he
remarked:—
,; It is evident that these Russian Settlements, distributed
through an immense region, and far from any civilized
neighbourhood, have little in common with those of
European nations elsewhere, unless we except those of
Denmark, on the west coast of Greenland. Nearly all are
on the coast or the islands. They are nothing but
' villages' or \ factories' under the protection of palisades.
Sitka is an exception, due unquestionably to its selection
as the head-quarters of the Government, and also to the
eminent character of the Governors who have made it
their home."
Article XVIII,
North American
Review, vol. xv,
Quarterly Review,
1821-22, vol xxvi.
See Appendix,
Adams to Middle-
ton, July '2=1, 1823.
See Appendix,
vol. ii, Part If,
No. 3.
Touching Russia's claims to exclusive jurisdiction over more than certain islands in the
Pacific Ocean on the American coast, Mr. Adams,
moreover, in 1823 brought forward with approval,
vol. >, Nos. 3 and 4. articles which appeared in " The North American
Review," published in the United States, and in
the | Quarterly Review," published in England.
The facts stated in these articles show the
grounds upon which the Government of the
United States considered themselves justified in
the contention advanced by Mr. Adams, that
" the rights of discovery, of occupancy, of uncontested possession," alleged by Russia, were
| all without foundation in fact," as late as the
year 1823.
Again referring to the circumstances in the
year 1867 (the date of the cession of Alaska to the
United States), the historian Bancroft writes :—
Alaska, p. 591. "Moreover,  Russia had never   occupied,   and   never
wished to occupy, this territory. For two-thirds of a
century she had been represented there, as we have seen,
almost entirely by a fur and trading Company under the
protection of Government. In a measure it had controlled, or endeavoured to control, the affairs of that Company, and among its stockholders were several members
of the Royal Family; but Alaska had been originally
granted to the Russian-American Company by Imperial
Oukaz, and by Imperial Oukaz the Charter had been 36
twice renewed. Now that the Company had declined to
accept a fourth Charter on the terms proposed, something
must be done with the territory, and Russia would lose no
actual portion of her Empire in ceding it to a Republic
with which she was on friendly terms, and whose domain
seemed destined to spread over the entire continent."
The foregoing historical summary establishes—
That from the earliest periods of which any
records exist down to the year 1821, there is no
evidence that Russia either asserted or exercised
in the non-territorial waters of the North Pacific
any rights to the exclusion of other nations.
That during the whole of that period the
shores of America and Asia belonging to Russia
as far north as Behring Straits, and the waters
lying between those coasts, as well as the islands
therein, were visited by the trading-vessels of all
nations, including those sailing under the flags
of Great Britain, the United States, Spain, and
Prance, with the knowledge of the Russian
authorities.
That the only rights, in fact, exercised by
Russia or on her behalf, were the ordinary
territorial rights connected with settlements or
annexations of territory consequent upon such
settlements, and the only rights she purported
to deal with or confer were rights and privileges
given to the Russian-American Company, as
Russian subjects, in preference over other
Russian subjects. 37
Chapter II.
Ukase of 1821. Head B.—The  Ukase of 1821,  and  the  circum
stances   connected  therewith   leading  up  to   the
Treaties of 1824 and 1825.
Voyage, M. de Shortly before the date of the renewal of the
vol. i, p. 14.' Charter of the Russian-American  Company in
American State       182i   the  aspect   of affairs   had   considerably
.Papers, Foreign x |
Relations, vol. §     changed.
pp.  o3, 454. rpj^ Qompariy nad i0I1g "before fully succeeded
Competition by Foreigners. in getting rid of its Russian rivals, but trading-
vessels from England and from the United States
American State      frequented the   coasts in  increasing numbers,
Papers, vol. v, .
pp. 438-443. aild everywhere competed with the  Company.
Alaska, p. 528. Goods were brought by these vessels at prices
Tikhmenieff, which the Company could not successfully meet,
Ister. Ohos. I, l      J .
cited in note to and furs were taken by them direct to Chinese
Alaska, p. 532. sea-ports, while the Company, as a rule, had still
See also Alaska,      to depend on the overland route from Okhotsk
p. 446; Rezanof's    ,     tt-. -, ■, ■ ,-,       .
complaint in 1806.   to Kiakhta on the Amoor.
Domestic competition had in fact ceased, and
the most serious drawback to the success of the
Company consisted in the competition from
abroad.
The 'difficulties resulting to the Company on
account of foreign competition appear prominently in the complaints made by its agents
at this time, and the new claim of the right to
exclude foreigners from trade is embodied in the
Ukase of 1821.
Text of Ukase of 1821. The    following    is    the    translation  of    the
„ ,. Ukase   which   was   issued   by   the   Emperor
oee Appendix, " x
vol. i, No. 1. Alexander in 1821:—
"Edict of His Imperial Majesty, Autocrat of All the
" Russias.
" The Directing Senate maketh known to all men:
Whereas, in an Edict of His Imperial Majesty, issued to
the Directing Senate on the 4th day of September [1821],
and signed by His Imperial Majesty's own hand, it is thus;
expressed:—
" {Observing from Reports submitted to us that the
trade of our subjects on the Aleutian Islands and on the
north-west coast of America appertaining unto Russia is
subjected, because of secret and illicit traffic, to oppression
and impediments, and finding that the principal cause of
these difficulties is the want of Rules establishing the
boundaries for navigation along these coasts, and the order
of naval communication, as well in these places as on th©
J 38
whole of the eastern coast of Siberia and the Kurile
Islands, we have deemed it necessary to determine these
communications by specific Regulations, which are hereto
attached.
'•' In forwarding these Regulations to the Directing
Senate, we command that the same be published for
universal information, and that the proper measures be
taken to carry them into execution.
(Countersigned)       '"Count D. Gurieff,
" | Minister of Finances.
Ukase of 182L
" | It is therefore decreed by the Directing Senate that
His Imperial Majesty's Edict be published for the information of all men, and that the same be obeyed by all
whom it may concern.'
(L.S.)
[The original is signed by the Directing Senate. On the
original is written in the handwriting of His Imperial Majesty,
thus:] Be it accordingly, Alexander.
" Rules established for the limits of Navigation and Order
of Communication along the Coast of the Eastern Sibei'ia,
the North-west coast of America, and the Aleutian,
Kurile, and other Islands.
"' Section 1. The pursuits of commerce, whaling, and see Appendix,
fishery, and of all other industry, on all islands, ports, and v"°l h No. '•
gulfs, including the whole of the north-west coast of
America, beginning from Behring Straits to the 51st
of northern latitude; also from the Aleutian Islands to
the eastern coast of Siberia, as well as along the Kurile
Islands, from Behring Straits to the south cape of the
Island of Urup, viz., to the 45° 50' northern latitude, is
exclusively granted to Russian subjects.
"' Section 2. It is therefore prohibited to all foreign
vessels not only to land on the coasts and islands belonging
to Russia, as stated above, but also to approach them within
less than 100 Italian miles. The transgressor's vessel is
subject to confiscation, along with the whole cargo.'"
By this Ukase Russia first attempted to assert,
as against other nations, exclusive jurisdiction
of rights over the shores of America and Asia
bounding the Pacific Ocean, certain Islands
therein, and over a portion of the Pacific Ocean
including what is now knoAvn as Behring Sea.
The purpose of the Ukase so far as the
attempted exclusion of foreigners from 100 miles
of the coasts is concerned, is explained by Baron
de Nicolay in his note to Lord Londonderry, the
81st October (12th November), 1821.
First assertion of exclusive jurisdiction.
Purpose of Ukase of 1821.
Baron Kicolay to
Lord Londonderry,
October 31
(November 12),
1821.
See Appendix,
vol. ii, Part I, No. 1. To prevent illicit traffic.
39
He insists that the operations of " smugglers "
and " adventurers " on the coast—
" Have for their object not only a fraudulent commerce
in furs and other articles which are exclusively reserved
to the Russian-American Company, but it appears that
they often betray a hostile tendency.
"It was," he continues, "therefore necessary to take
severe measures against these intrigues, and to protect the
Company against the considerable injury that resulted,
and it was with that end in view that the annexed Regulation has been published."
And again—
"The Government, however, limited itself, as can be
seen by the newly-published Regulation, to forbidding all
foreign vessels not only to land on the Settlements of the
American Company and on the peninsula of Kamtchatka
and the coasts of the Okhotsk Sea, but also to sail along
the coast of these possessions, and,' as a rule, to approach
them within 100 Italian miles."
The justification for the Ukase and the Regulations made thereunder, is stated on the face of
the Ukase in the words :—j
" And finding that the principal cause of these difficulties
[i.e., impediments caused by ' secret and illicit trafic']
is want of Rules establishing the boundaries for navigation
along these coasts, * * * *."
To extend territorial jurisdiction.
See Appendix,
vol. i, No. 2.
That the object of the Ukase was to extend
territorial jurisdiction over the north-west coast
and islands and to prohibit the trade of foreigners,
rather than to protect any existing or prospective
fishery is further indicated by No. 70 of the
Regulations of the Russian-American Company.
This Regulation reads :—
"70. A ship of war, after visiting, not only the Company's Settlements, but also, and more particularly, the
channels which foreign merchant-vessels are likely to
frequent for the purpose of illicit trading with the natives,
will return to winter wherever the Government orders ic."
Poletica to'Adams.
February 28, 1822.
See Appendix,
vol. ii, l'att II,
No. 1.
The motive and purpose of this Ukase is
further explained by the letter of M. de Poletica,
Russian Minister at Washington, dated the
28th February, 1822.
That Russia's aim was to acquire a vast North
American Territory appears by the construction
put by M. de Poletica on the Ukase of the
Emperor Paul in 1799, as conveying to the
Russian-American Company the grant of a terri-
[248]
G
L 40
torial concession down to the 55th degree of
latitude, and by its justification of its further
extension to the 51st degree on the American
coast.
He proceeds to defend the policy of exclusion
contained in the Ukase of lS21"by explaining that,
as Russian possessions extend from Behring Strait
to the 51st degree north latitude on the north-west
coast of America, and on the opposite coast of
Asia and the islands adjacent, to the 45th degree,
the sea within those limits (viz., that part of the
Pacific Ocean) was a close sea, over which Russia
might exercise exclusive jurisdiction; but he goes
on to say that Russia preferred asserting only her
essential right without U taking any advantage
of localities," and on these grounds the limit of
100 Italian miles is justified.
The measure he declares to be directed :—
" Against the culpable enterprises of foreign adventurers,
who, not content with exercising upon the coasts above
mentioned an illicit trade, very prejudicial to the rights
reserved entirely to the Russian-American Company, take
upon them besides to furnish arms and ammunition to the
natives in the Russian possessions in America, inciting
them likewise in every manner to resist and revolt against
the authorities there established."
The same view is expressed in the Confidential See p. 42.
Memorandum inclosed in the Duke of Wellington's   letter  to  Mr.   G.   Canning  of  the  28th
November, 1822.
Upon receiving communication of the Ukase,
the British and United States' Governments
immediately objected both to the extension of the
territorial claim and to the assertion of maritime,
jurisdiction.
Protest of Great Britain.
* The Ukase was brought to the notice of Lord The protest of the Blitish Government.
Londonderry,   Secretary  of   State   for   Foreign 	
Affairs for Great Britain, in the letter already vol. ii Part I No. l.
quoted of the 12th November, 1821, by Baron
de   Nicolay,   then   Russian   Charge*   d'Affaires
as connected with the territorial rights  of the
Russian   Crown   on   the   north-west   coast   of
America, and with the commerce and navigation
of the Emperor's subjects in the seas adjacent
thereto.
On the 18th January, 1822, four months after
the issue of the Ukase, Lord Londonderry wrote 41
Correspondence between Great Britain.
and Russia.
See Appendix,
vol. ii, Part 1,
No. 7.
in  the  following terms  to  Count   Lieven, the
Russian Ambassador in London:—
" In the meantime, upon the subject of this Ukase,
generally, and especially upon the two main principles of
claim laid down therein, viz., an exclusive sovereignty
alleged to belong to Russia over the territories therein
described, as also the exclusive right of navigating and trading
within the maritime limits therein set forth, His Britannic
Majesty must be understood as hereby reserving all his
rights, not being prepared to admit that the intercourse
which is allowed on the face of this instrument to have
hitherto subsisted on those coasts and in those seas can
be deemed to be illicit, or that the ships of friendly
Powers, even supposing an unqualified sovereignty was
proved to appertain to the Imperial Crown in these vast
and very imperfectly occupied territories, could, by tlic
acknowledged lavj of nations be excluded from navigating
within the distance of 100 Italian miles, as therein laid
down from the coast, the exclusive dominion of which is
assumed (but as His Majesty's Government conceive in
error) to belong to His Imperial Majesty the Emperor of
All the Russias."
Ibid., vol. ii,
Part I, No. 14.
Abandonment of claim to extraordinary jurisdiction,
The Duke of Wellington having been appointed
British Plenipotentiary at the Congress of Verona,
Mr. G. Canning, then Secretary of State for
Foreign Affairs, addressed to him, on the 27th
September, 1822, a despatch in which he dealt
with the claim in the Ukase for the extension of
territorial rights over adjacent seas to the distance
—" unprecedented distance," he terms it—of 100
miles from the coast, and of closing "a hitherto
unobstructed passage."
In this despatch Mr. Canning says :—
" I have, indeed, the satisfaction to believe, from a conference which I have had with Count Lieven on this
matter, that upon these two points,—the attempt to shut
up the passage altogether, and the claim of exclusive
dominion to so enormous a distance from the coast,—
the Russian Government are prepared entirely to waive
their pretensions. The only effort that has been made to
justify the 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 quoted, by stipulation in a
Treaty, and one to which, therefore, the party to be affected
by it had (whether wisely or not) given its deliberate
consent. No inference could be drawn from that transaction in favour of a claim by authority against all the
world.
" I have little doubt, therefore, but that the public notification of the claim to consider the portions of the ocean
included between the adjoining coasts of America and the
[248] G  2
J 42
v Russian Empire as a mare clausum, 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 Grace further to
require of the Russian Minister (on the ground of the facts
and reasonings furnished in their [sic] despatch and its
inclosures) that 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."
Correspondence between Great Britain
and Russia.
On the 17th October in the same year, the
Duke of Wellington, at Verona, addressed to
Count Nesselrode, the Russian Plenipotentiary at
the Congress, a Confidential Memorandum containing the following words:—
'•'Objecting,  as   we   do,  to   this   claim   of   exclusive Confidential Memo-
sovereignty on the part of Russia, I might save myself the randnm inclosed in
trouble of discussing the particular mode of its exercise as "vVeiiiueton to
set forth in this Ukase, but we object to the mode in which G. Canning,
the sovereignty is proposed to be exercised under this r^Ji!mber *8>
Ukase, not less than we do to the claim of it.    We cannot See Appendix,
admit tJie right of any Power possessing the sovereignty of a vo'- lli * ar* *>
^country to exclude the vessels of others from the seas on its
coasts to-t7ie distance of 100 Italian miles."
In   reply,   Count   Nesselrode  communicated
to   the   Duke of  Wellington  a  "Confidential Ibid.
Memorandum " dated the 11th (23rd) November,
.1822, which contains the following passages:—
': The Cabinet of Russia has taken into mature consideration the Confidential Memorandum forwarded to
them by the Duke of Wellington on the 17th October last>
relative to the measures adopted by His Majesty the
Emperor, under date of the 4th (16th) September, 1821,
for defining the extent of the Russian possessions on the
north-west coast of America, and for forbidding foreign
vessels to approach his possessions within a distance of
100 Italian miles.
".... It was on .the contrary, because she regarded
those rights of sovereignty as legitimate, and because
imperious considerations involving the very existence of
the commerce which she carries on in the regions of the
north-west coast of America compelled her to establish a
system of precautions which became indispensable that
she caused the Ukase of the 4th (16th) September, 1821,
to be issued.
". . . . Consequently, the Emperor has charged his
Cabinet to declare to the Duke of Wellington (such
declaration not to prejudice his rights in any way if it be
not accepted) that he is ready to fix, by means of friendly
negotiation, and on the basis of mutual accommodation,
the degrees of latitude and longitude .which the two
Powers shall regard as the utmost limit of their possessions
and of their establishments on the north-west coast of
America. 43
Correspondence between Great Britain
and Russia.
% His Imperial Majesty is pleased to believe that this
negotiation can be completed without difficulty to the
mutual satisfaction of the two States; and the Cabinet
of Russia can from this moment assure the Duke of
Wellington that the measures of precaution and supervision which will then be taken on the Russian part
of the coast of America will be entirely in conformity
with the rights derived from sovereignty, and with
the established customs of nations, and that there will
be no possibility of legitimate cause of complaint against
them."
See Appendix,
vol. ii, Part I,
No. 15.
Again, ou the 28th November, 1822, the Duke
of Wellington addressed a note to Count Lieven,
containing the following words :—
1 The second ground on which we object to the Ukase is
that His Imperial Majesty thereby excludes from a certain
considerable extent of the open sea vessels of other nations.
We contend that the assumption of this power is contrary
to the law of nations, and we cannot found a negotiation
upon a paper in which it is again broadly asserted. We-
contend that no Power whatever can exclude another
from the use of the open sea. A Power can exclude itself
from the navigation of a certain coast, sea, &c, by its own
act or engagement, but it cannot by right be excluded by
another. This we consider as the law of nations, and we
cannot negotiate upon a paper in which a right is asserted
inconsistent with this principle."
See Appendix,
vol ii, Pait I,
No. 31.
American State
Papers, Foreign
Relations, vol. v,
p. 448.
At an early date in the course of the negotiations with the United States and with Great-
Britain the execution of the Ukase beyond
the territorial limit of 3 miles was suspended..
Indeed, as far as the waters of Behring Sea are
concerned, it may safely be said that it was
never put into practical execution beyond this
limit. The note from Count Nesselrode to Mr.
Middleton on the subject was dated the 1st August,
1822, and is thus alluded to by Mr. Middleton in
a despatch to Mr. Adams of the 19th September,.
1823 :—
" Upon Sir Charles [Bagot] expressing his wish to be-
informed respecting the actual state of the north-west
question between the United States and Russia, so far as-
it might be known to me, I saw no objection to making a
confidential communication to him of the note of Count
Nesselrode, dated the 1st August, 1822, by which, in fact,
staying the execution of the Ukase above mentioned,
Russia has virtually abandoned the pretensions therein
advanced.
See Appendix, The communication to the British Government
No! 2D. ai   '        on the same subject was made in August 1823 in 44
the shape of an extract from a despatch from
Count Nesselrode to Count Lieven, dated the
26th June, 1823. The following passage in it
shows how complete was the abandonment of
the unusual claim of maritime jurisdiction:—
"That -the Commanders of our ships of war must
confine their surveillance as nearly as possible to the
mainland, ie., over an extent of sea within range of
cannon-shot from the shore; that they must not extend
that surveillance beyond the sphere where the American
Company has effectually exercised its rights of hunting
and fishing since the date of its creation, as well as since '
the renewal of its privileges in 1799, and that, as to the
islands on which are to be found colonies or settlements
of the Company, they are all indistinctively comprised in
this general rule.
" Your Excellency will observe that these new
instructions—which, as a matter of fact, are to suspend
provisionally the effect of the Imperial Ukase of the
4th September, 1821—were sent from St. Petersburgh
only in August of last year."
Mr. Lyall, Chairman of the Ship-owners' See Appendix,
Society, of London, wrote on the 19th November, Nos.33 34, and 35.
1823, to Mr. G. Canning, asking whether official
advices had been received from St. Peterburg
that the Ukase of 1821 had been annulled.
Mr. Canning having privately submitted his
proposed reply to Count Lieven for his comments,
caused the following letter to be sent, which had
received Count Lieven's approval:—
"I am directed by Mr. Secretary Canning to acknow- Lord F. Convng-
Iedge the receipt of your letter of  the  19th instant,
expressing a hope that the Ukase of September 1821 had 1823.
been annulled. . See Appendix,
"Mr. Canning cannot authorize me to state to you in jfo 36* I'     '
distinct terms that the Ukase has been '■annulled', because
the   negotiation to which it gave rise is still pending,
embracing, as it does, many points of great intricacy as
well as importance.
" But I am directed by Mr. Canning to acquaint you
that orders have been sent out by the Court of St.*Peters-
burg to their Naval Commanders calculated to prevent
any collision between Russian ships and those of other
nations, and, in effect, suspending the Ukase of September
1821."
Correspondence between Great Britain
and Russia.
Abandonment of claim to extraordinary jurisdiction.
ham to Mr. Lyall,
November 26",
On the 15th January, 1824, Mr. G. Canning See Appendix,
wrote to Sir C. Bagot, the British Ambassador at l?]- "' Ialt I
° No. 37.
St. Petersburg i-m
" The questions at issue between Great Britain
and Russia are short and simple. The Russian Ukase
contains two objectionable pretensions: First, an extravagant assumption' of maritime supremacy; secondly, an
Unwarranted claim of tenatorial dominions. Correspondence between Great Britain
and Russia.
Abandonment of claim to extraordinary jurisdiction.
45
" As to the first, the disavowal of Russia is, in substance
all that we could desire. Nothing remains for negotiation
on that head but to clothe that disavowal in precise and
satisfactory terms. We would much rather that those
terms should be suggested by Russia herself than have the
air of pretending to dictate them; you will therefore
request Count Nesselrode to furnish you with his notion
of such a declaration on this point as may be satisfactory
to your Government. That declaration may be made the
preamble of the convention of limits." ....
See Appendix,
vol. ii, Part I,
No. 44.
Again, in a despatch, 24th July, 1824, to
Sir C. Bagot, Mr. G. Canning says :—
". . . . Your Excellency will observe that there are but
two points which have struck Count Lieven as susceptible
of any question. The first, the assumption of the base of
the mountains, instead of the summit as the line of
boundary ; the second, the extension of the right of the
navigation of the Pacific to the sea beyond Behring
Straits.
See ante, p. 33.
" As to the second point, it is, perhaps, as Count Lieven
remarks, new. But it is to be remarked, in return, that the
circumstances under which this additional security is
required will be new also.
" By the territorial demarcation agreed to in this
'projet,' Russia will become possessed, in acknowledged
sovereignty of both sides, of Behring Straits.
" The Power which could think of making the Pacific a
mare clausum may not unnaturally be supposed capable of
a disposition to apply the same character to a strait
comprehended between two shores of which it becomes
the undisputed owner; but the shutting up of Behring
Straits, or the power to shut them up hereafter, would be
a thing not to be tolerated by England.
" Nor could we submit to be excluded, either positively
or constructively, from a sea in which the skill and
science of our seamen has been and is still employed in
enterprises interesting not to this country alone, but to
the whole civilized world.
'•' The protection given by the Convention to the American
coasts of each Power may (if it is thought necessary) be
extended in terms to the coasts of the Russian Asiatic
territory; but in some way or other, if not in the form
now prescribed, the free navigation of Behring Straits and
of the seas beyond them must be secured to us."
See Appendix,
vol. ii, Part I,
No. 52.
Mr. George Canning in a despatch to Mr.
Stratford Canning, who had been appointed
British Plenipotentiary for the negotiation of a
Convention at St. Petersburg, under date the
8th December, 1824, after giving a summary of
the negotiations up to that date, goes on to
say:— 46
" It is comparatively indifferent to us whether we hasten
or postpone all questions respecting the limits of territorial
possession on the continent of America, but the pretensions of the Russian Ukase of 1821 to exclusive dominion
over the Pacific could not continue longer unrepealed
without compelling us to take some measure of public and
effectual remonstrance against it.
1 You will therefore take care, in the first instance, to
repress any attempt to give this change to the character
of the negotiation, and will declare without reserve that
the point to which alone the solicitude of the British
Government and the jealousy of the British nation attach
any great importance is the doing away (in a manner as
little disagreeable to Russia as possible) of the effect of
the Ukase of 1821.
I That this Ukase is not acted upon, and that instructions have been long ago sent by the Russian Government
to their cruizers in the Pacific to suspend the execution of
its provisions, is true; but a private disavowal of a
published claim is no security against the revival of that
claim. The suspension of the execution of a principle
may be perfectly compatible with the continued maintenance of the principle itself, and when we have seen in
the course of this negotiation that the Russian claim to
the possession of the coast of America down to latitude
-59° [sic] rests in fact on no other ground than the presumed
acquiescence of the nations of Europe in the provisions of
an Ukase published by the Emperor Paul in the year
1799, against which it is affirmed that no public remon-
strance was made, it becomes us to be exceedingly careful:
that we do not, by a similar neglect, on the present
occasion allow a similar presumption to be raised as to an
acquiescence in the Ukase of 1821.
" The right of the subjects of His Majesty to navigate
freely in the Pacific cannot be held as a matter of indulgence from any Power. Having once been publicly
questioned, it must be publicly acknowledged.
." We do not desire that any distinct reference should
be made to the Ukase of 1821; but we do feel it necessary
that the statement of our right should be clear and positive, and that it should stand forth in the Convention in
the place which properly belongs to it, as a plain and substantive stipulation, and not be brought in as an incidental
consequence of other arrangements to which we attach
comparatively little importance.
" This stipulation stands in the front of the Convention gee pos( p gg
concluded   between Russia   and   the United States   of
America; and we see no reason why upon similar claims
we should not obtain exactly the like satisfaction.
•' For reasons of the same nature we cannot consent
that the liberty of navigation through Bering Straits
should be stated in the Treaty as a boon from Russia.
"The tendency of such a statement would be to give
countenance to those claims of exclusive jurisdiction
against which we, on our own behalf, and on that of the
whole civilized world, protest.
Correspondence between Great Britain
and Russia.
Abandonment of claim to extraordinary jurisdiction. I 47
Correspondence between Great Britain
and Russia.
Abandonment of claim to extraordinary jurisdiction.
" It will of course strike the Russian Plenipotentiaries
that, by the adoption of the American Article respecting
navigation, &c, the provision for an exclusive fishery of
2 leagues from the coasts of our respective possessions
falls to the ground.
I But the omission is, in truth, immaterial.
" The law of nations assigns the exclusive sovereignty
of 1 league to each Power on its own coasts, without any
specific stipulation, and though Sir Charles Bagot was
authorized to sign the Convention with the specific stipulation of 2 leagues, in ignorance of what had been decided
in the American Convention at the time, yet, after that
Convention has been some months before the world, and
after the opportunity of consideration has been forced
upon us by the act of Russia herself, we cannot now
consent, in negotiating de novo, to a stipulation which,
while it is absolutely unimportant to any practical good,
would appear to establish a contrast between the United
States and us to our disadvantage."
The Treaty (Great Britain and Russia)
February 28, 1825.
These negotiations resulted in a Convention
with Great Britain, signed on the 28th Pebruary,
1825, hereinafter referred to.
Protest of United States against
Ukase of 1821.
Protest of the United States.
On the 30th January (11th February), 1822,
2nd Sess. Sen.       M. Pierre de Poletica, the Envoy Extraordinary
Ex. Doc. No. 106,  and Minister  Plenipotentiary  of   the   Russian
p. 204. y J
Emperor, transmitted the Ukase to Mr. Adams,
Secretary of State for the United States.
ibid., p. 205. On the 25th Eebruary, 1822, Mr. Adams wrote
to M. Poletica:—
" Department of State, Washington,
" Sir, February 25, 1822.
"I have the honour of receiving your note of the
11th instant, inclosing^a printed copy of the Regulations
adopted by the Russian-American Company, and sanctioned by His Imperial Majesty, relating to the commerce
of foreigners in the waters bordering on the establishments
of that Company upon the north-west coast of America.
11 am directed by the President of the United States to
inform you that he has seen with surprise, in this Edict,
the assertion of a territorial claim on the part of Russia,
extending to the 51st degree of north latitude on this
continent, and a Regulation interdicting to all commercial
vessels other than Russian, upon the penalty of seizure and
confiscation, the approach upon the high  seas within
100 Italian miles of the shores to which that claim is
made to apply.   The relations of the United States with
His Imperial Majesty have always been of the most
friendly character;  and it is the earnest desire of this
Government to preserve them in that state.     It was
expected, before any Act which should define the boundary
[248] U 48
"1
between the territories of the United States and Russia 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
which the territorial jurisdiction extends, has excited still
greater surprise.
"This Ordinance affects so deeply the rights of the
United States and of their citizens, that I am instructed to
inquire whether you are authorized to give explanations of
the grounds of right, upon principles generally recognized
by the laws and usages of nations, which can warrant the
claims and Regulations contained in it.
11 avail, &c.
(Signed) "John Quincy Adams."
Protest of United States against
Ukase of 1821.
It will be observed that both the Ukase and
the protest apply to the waters from Behring
Strait southward as far as the 51st degree of
latitude on the coast of America.
On the 28th of the same month the Russian
Representative replied at length, defending the B      _ , .
~ M. de Poletica to
territorial claim on grounds  of  discovery, first Mr. J. Q. Adams,
occupation,   and   undisturbed   possession,   and *ebruary 28» 1822>
H       §H ± American State
explaining   the   motive which  determined the Papers, Foreign
Imperial Government in framing the Ukase. ® sTl-8^  N
He Wrote : — See Appendix,
vol. ii, Part II,
" I shall be more succinct, Sir, in the exposition of the ■" ° * •
motives which determined the Imperial Government to
prohibit foreign vessels from approaching the north-west
coast of America belonging to Russia within the distance
of at least 100 Italian miles. This measure, however
severe it may at first appear, is, after all, but a measure of
prevention. It is exclusively directed against the culpable
enterprises of foreign adventurers, who, not content with
exercising upon the coasts above mentioned an illicit trade
very prejudicial to the rights reserved entirely to the
Russian-American Company, take upon them besides to
furnish arms and ammunition to the natives in the Russian
possessions in America, exciting them likewise in every
manner to resist and revolt against the authorities there
established.
"The American Government doubtless recollects that
the irregular conduct of these adventurers, the majority of
whom was composed of American citizens, has been the
object of the most pressing remonstrances on the part of
Russia to the Federal Government from the time that
Diplomatic Missions were organized between the countries.
These remonstrances, repeated at different times, remain
constantly without effect, and the inconveniences to which
they ought to bring a remedy continue to increase	
" I ought, in the last place, to request you to consider,
Sir, that the Russian possessions in the Pacific Ocean
extend, on the north-west coast of America, from Behring
Strait to the 51st degree of north latitude, and on the
opposite side of Asia and the islands adjacent, from the
Russian Defence of Ukase.
Ukase based on doctrine of
- mare clansum. 49
Correspondence between United States
and Russia.
same strait to the 45th degree. The extent of sea of which
these possessions form the hmits comprehends all the
conditions which are ordinarily attached to shut seas
(" mers fermees"), and the Russian Government might
consequently judge itself authorized to exercise upon this
sea the right of sovereignty, and especially that of entirely
interdicting the entrance of foreigners. But it preferred
only asserting its essential rights, without taking any
advantage of localities."
5.0th Cong., 2nd
Sess., Senate
Ex. Doc. No. 106,
p. 207.
See Appendix,
vol. ii, Part II,
No 2.
To this Mr. Adams replied (30th March, 1822).
He said:—
" This pretension is to be considered not only with
reference to the question of territorial right, but also to
that prohibition to the vessels of other nations,.including
those of the United States, to approach within 100 Italian
miles of the coasts. From -the period of the existence of
the United States, as an independent nation, their vessels
have freely navigated those seas, and the right to navigate
them is a part of that independence.
"With regard to the suggestion that the Russian
Government might have justified the exorcise of sovereignty over the Pacific Ocean as a close sea, because it
claims territory both on its American and Asiatic shores,
it may suffice to say that the distance from shore to shore
on this sea, hi latitude 51° north, is not less than 90° of
longitude, or 4,000 miles."
M. de Poletica to
Mr. J. Q. Adams,
April 2, 1822.
50th Cong., 2nd
Sess., Senate Ex.
Doc. No. 106,
p. 208.
The Russian Representative replied to this
note on the 2nd April following, and in the
course of his letter he said :—
" In the same manner the great extent of the Pacific
Ocean at the 51st degree of latitude can not invalidate the
right which Russia may have of considering that part of
the ocean as close. But as the Imperial Government has
not thought fit to take advantage of that right, all further
discussion on this subject would be idle.
I As to the right claimed for the citizens of the United
States of trading with the natives of the country of the
north-west coast of America, without the limits of the
jurisdiction belonging to Russia, the Imperial Government
will not certainly think of limiting it, and still less of
attacking it there. But I cannot dissemble, Sir, that this
same trade beyond the 51st degree will meet with
difiiculties and inconveniences, for which the American
owners will only have to accuse their own.imprudence
after the publicity which has been given to the measures
taken by the Imperial Government for maintaining the
rights of the Russian-American Company in their absolute
integrity.
" I shall not finish this letter without repeating to you,
Sir, the very positive assurance which I have already had
the honour once of expressing to you that in every case
where the American Government shall judge it necessary
to make explanations to that of the Emperor, the President
[248] H a 50
of the United States may rest assured that these explanations will always be attended to by the Emperor, my august
Sovereign, with the most friendly, and, consequently, the
most conciliatory, dispositions."
Correspondence between United States
and Russia.
On the 22nd July, 1823, Mr. Adams wrote to
Mr. Middleton, the United States' Minister at
St. Petersburg, as follows :—
" From the tenour of the Ukase, the pretensions of the 50th Cong., 2nd
Imperial Government extend to an exclusive territorial ?fss''1fen^n«Ex'
* Doc. No. lOfi,
jurisdiction from the 45th degree of north latitude, on the p. 210.
Asiatic coast, to the latitude of 51 north on the western See Appendix,
,     r. ,.       .        . „      . ,    . .      vol. ii, Part II,
coast ot the. American Continent; and they assume the No. 3.
right of interdicting the navigation and the fishery of all
other nations to the extent of 100 miles from the whole of
that coast.
I The United States can admit no part of these^claims.
Their right of navigation and of fishing Is perfect, and has
been in constant exercise from the earliest times, after the
Peace of 1783, throughout the whole extent of the
Southern Ocean, subject only to the ordinary exceptions
and exclusions^ the territorial jurisdictions, which, so far
as Russian rights are concerned, are confined to certain
islands north of the 55th degree of latitude, and have no
existence on the Continent of America.
" The  correspondence between M.  Poletica and this
Department contained no discussion of the principles or of
the facts upon which he attempted the justification of the
Imperial Ukase.    This was purposely avoided on our part,
under the   expectation  that  the   Imperial Government
could not fail, upon a review of the measure, to revoke it
altogether.    It did, however, excite much public animadversion in this country, as the Ukase itself had already
done' in England.    I inclose herewith the North American
Review   for October 1822, No.  37, which   contains an
article (p. 370) written by a person fully master of the
subject; and for the view of it taken in England I refer
you to the 52nd number of the Quarterly Review, the
article upon Lieutenant Kotzebue's voyages.   From the
article in the North American Review it will be seen
that the rights of discovery, of occupancy, and of uncontested possession, alleged by M. Poletica, are all without
foundation in fact."
Mr. Middleton, writing to the Secretary of State
of the United States, on the 1st December,
1823, inclosed a confidential memorial which
thus dealt with the claim (which is properly
regarded by him as an attempt to extend territorial jurisdiction upon the theory of a shut sea
and having no other basis) :—
" The extension of territorial rights to the distance of American State
100 miles from the coasts upon two opposite continents,  « jot'ona vol v
p. 452. 51
Correspondence between United States
and Russia.
See Appendix,
vol. ii", Part II,
No. 5.
and the prohibition of approaching to the same distance
from these coasts, or from those of all the intervening
islands, are innovations in the law of nations, and measures
unexampled. It must thus be imagined that this prohibition, bearing the pains of confiscation, applies to a long
line of* coasts, with the intermediate islands, situated in
vast seas, where the navigation is subject to innumerable
and unknown difficulties, and where the chief employment,
which is the whale fishery, cannot be compatible with a
regulated and well-determined course.
| The right cannot be denied of shutting a port, a sea,
or even an entire country, against foreign commerce in
some particular cases. But the exercise of such a right,
unless in the case of a colonial system already established,
or for some other special object, would be exposed to an
unfavourable interpretation, as being contrary to the
liberal spirit of modern times, wherein we look for the
bonds of amity and of reciprocal commerce among all
nations being more closely cemented.
" Universal usage, which has obtained the force of law,
has established for all the coasts an accessory limit of a
moderate distance, which is sufficient for the security of
the country and for the convenience of its inhabitants, but
which lays no restraint upon the universal rights of
nations, nor upon the freedom of commerce and of naviga
tion.
(Yattel, Book I, Chapter 23, section 289.)
American State
Papers, Foreign
Relations, vol. v,
pp. 465, 466.
At the fourth Conference (8th March, 1824)
which preceded the signature of the Treaty of
the oth (17th) April, 1824, Mr. Middleton, the
United States' Representative, submitted to Count
Nesselrode the following paper :—
" (Translation.)
" The dominion cannot be acquired but by a real
occupation and possession, and an intention (' animus ') to
establish it is by no means sufficient.
" Now, it is clear, according to the facts established,
that neither Russia nor any other European Power has
the right of dominion upon the Continent of America
between the 50th and 60 th degrees of north latitude.
I Still less has she the dominion of the adjacent
maritime territory, or of the sea which, washes these
coasts, a dominion which is only accessory to the territorial
dominion.
" Therefore she has not the • right of exclusion or of
admission on these coasts, nor in these seas, "which are
free seas.
" The right of navigating all the free seas belongs, by
natural law, to every independent nation, and even constitutes an essential part of this independence.
" The United States have exercised navigation in the
seas, and commerce upon the coasts above mentioned,
from the time of their independence; and they have a
perfect right to this navigation and to this commerce, and P.9
they can only be deprived of it by their own act or by a
Convention."
Convention betibeen the United States and Russia.
The result of these negotiations between the
United States and Russia was  the Convention
of the 17th April, 1824, which put an end to For French text,
any further pretension on the part of Russia to *®® i^pw'iii
restrict navigation or fishing in Behring Sea, so No. l.
far as citizens of the United States were concerned.
The English version of the Convention is as Blue Book,
•fWllriTire • i United States
1   '   s   ' No. 1(1891),"
p. 57.
The Treaty (Russia and the United
States), April 17,1824.
ARTICLE I.
" It is agreed that in any part of the Great Ocean, Appendix, vol. iii. j     j       Hpi       SK
.       S  ,  I    ~   .„    t.               „   i   „      ..                        Navigation of Pacific to be free,
commonly called the Facinc Ocean, or South Sea, the 	
respective citizens or subjects of the High Contracting
Powers shall be neither disturbed nor restrained, either in
navigation or in fishing, or in the power of resorting to the
coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving
always the restrictions and conditions determined by the
following Articles.
"ARTICLE II.
" With a view of preventing the rights of navigation
and of fishing, exercised upon the Great Ocean by the
citizens and subjects of the High Contracting Powers, from
becoming the pretext for an illicit trade, it is agreed that
the citizens of the United States shall not resort to any
point where there is a Russian Establishment, without the
permission of the Governor or Commander; and that,
reciprocally, the subjects of Russia shall not resort, without permission, to any Establishment of the United States
upon the north-west coast.
"ARTICLE III.
" It is, moreover, agreed that hereafter there shall not
be formed by the citizens of the United States, or under
the authority of the said States, any Establishment upon
the north-west coast of America, nor in any of the islands
adjacent, to the north of 54° 40' of north latitude; and
that, in the same manner there shall be none formed by
Russian subjects, or under the authority of Russia, south
of the same parallel.
"ARTICLE IV.
" It is, nevertheless, understood that, during a term of
ten years, counting from the signature of the present
Convention, the ships of both Powers, or which belong to
their citizens or'subjects respectively, may reciprocally
frequent, without any hindrance whatever, the interior
seas, gulfs, harbours, and creeks upon the coast mentioned
in the preceding Article, for the purpose of fishing and
trading with the natives of the country. 53
Treaty of 1824.
"ARTICLE V.
" All spirituous liquors, fire-arms, other arms, powder,
and munitions of war of every kind are always excepted
from this same commerce permitted by the preceding
Article; and the two Powers engage reciprocally neither
to sell, or suffer them to be sold to the natives, by their
respective citizens and subjects, nor by any person who
may be under their authority. It is likewise stipulated
that this restriction shall never afford a pretext, nor be
advanced, in any case, to authorize either search or detention of the vessels, seizure of the merchandize, or, in fine,
any measures of constraint whatever towards the merchants or the crews who may carry on this commerce;
the High Contracting Powers reciprocally reserving to
themselves to determine upon the penalties to be incurred,
and to inflict the punishments in. case of the contravention of this Article, by their respective citizens or
subjects.
I ARTICLE VI.
"When this Convention shall have been duly ratified
by the President of the United States, with the advice
and consent of the Senate on the one part, and on the
other, by His Majesty the Emperor of all the Russias, the
ratifications shall be exchanged at Washington in the
space of ten months from the date below, or sooner if
possible.
" In faith whereof the respective Plenipotentiaries have
signed this Convention, and thereto affixed the seals of
their arms.
"Done at St. Petersburg the 5th (17th) April in the
year of Grace 1824.
(L.S.)       "Henry Middleton.
(L.S.)       I Le Comte C. De Nesselrode.
(L.S.)       | Pierre De Poletica."
Treaty (Great Britain and Russia),
February 28,1825.
For French text,
see Appendix,
vol. ii, Part III,
No. 2.
Navigation of Pacific to be free.
See Blue Book,
" United States
No. 1 (1891),"
p. 58.
Appendix, vol. iii.
Convention between Great Britain and Russia.
The negotiations between Great Britain and
Russia resulted in the Convention of the 28th
February, 1825.
The following is the English translation of this
Convention:—
" ARTICLE I.
':It is agreed that the respective subjects of the
High Contracting Parties shall not be troubled or molested
in any part of the ocean, commonly called the Pacific
Ocean, either in navigating the same, in fishing therein, or
in landing at such parts of the coast as shall not have
been already occupied, in order to trade with the natives,
under the restrictions and conditions specified in the following Articles, "ARTICLE II.
I I n  order   to  prevent the right of   navigating and Treaty of 1825
fishing exercised upon the ocean by the subjects of the 	
High^Contracting Parties, from becoming the pretext for
an illicit commerce, it is agreed that the subjects of His
Britannic Majesty shall not land at any place where there
may be a Russian establishment without the permission of
the Governor or Commandant; and, on the other hand,
that Russian subjects shall not land without permission
at any British establishment on the north-west coast.
"ARTICLE III.
I The line of demarcation Jbetween the possessions
of the High Contracting Parties upon the coast of the
continent and the islands of America to the north-west,
shall be drawn in the manner following I—
" Commencing from the southernmost part of the island
called Prince of Wales' Island, which point lies in the
parallel of 54° 40' north latitude, and between the 131st
and the 133rd degree of west longitude (meridian of
Greenwich), the said line shall ascend to the north along
the channel called Portland Channel, as far as the point of
the continent where it strikes the 56th degree of north
latitude; from this last-mentioned point, the line of
demarcation shall follow the summit of the mountains
situated parallel to the coast, as far as the point of intersection of the 141st degree of west longitude (of the "same
meridian) ; and,[finaliy,'from the said point of intersection,
the said meridian-line of the 141st degree, in its prolongation as far as the Frozen Ocean, shall form the limit
between the Russian and British possessions on the continent of America to the north-west.
| ARTICLE IV.
" With reference to the line of demarcation laid down
in the preceding Article, it is understood:
" 1st. That the island called Prince of Wales' Island
shall belong wholly to Russia.
" 2nd. That wherever the summit of the mountains
which extend in a direction parallel to the coast, from the
56th degree of north latitude to the point of intersection
of the 141st degree of west longitude, shall prove to be at
the distance of more than 10 marine leagues from the
ocean, the limit between the British possessions and the
line of coast which is to belong to Russia, as above
mentioned, shall be formed by a line parallel to the
windings of the coast, and which shall never exceed the
distance of 10 marine leagues therefrom.
"ARTICLE V.
" It is moreover agreed that no establishment shall
be formed by either of the two parties within the limits
assigned by the two preceding Articles to the possessions
of the other j   consequently British subjects shall not 55
Treaty of 1825. form any establishment either upon the coast or upon the
border of the continent comprised within the limits of the
Russian possessions, as designated in the two preceding
Articles; and, in like manner, no establishment shah be
formed by Russian subjects beyond the said limits.
"ARTICLE VI.
"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
for ever enjoy the right of navigating freely, and without -
any hindrance whatever, all the rivers and streams which,
in their course towards the Pacific Ocean, may cross the
line of demarcation upon the line of coast described in
Article III of the present Convention.
"ARTICLE VII.
"It is also understood that, for the space of ten
years from the signature of the present Convention, the
vessels of the two Powers, or those belonging to their
respective subjects, shall mutually be at liberty to
frequent, without any hindrance whatever, all the inland
seas, the gulfs, havens, and creeks on the coast mentioned
in Article III, for the purposes of fishing and of trading
with the natives.
"ARTICLE VIII.
" The port of Sitka, or Novo Archangelsk, shall be open
to the commerce and vessels of British subjects for the
space of ten years from the date of the exchange of the
ratifications of the present Convention. In the event of
an extension of this term of ten years being granted to any
other Power, the like extension shall be granted also to
Great Britain.
"ARTICLE IX.
" The above-mentioned liberty of commerce shall not
apply to the trade in spirituous liquors, in fire-arms, or
other arms, gunpowder, or other warlike stores ; the High
Contracting Parties reciprocally engaging not to permit
the above-mentioned articles to be sold or delivered, in any
manner whatever, to the natives of the country.
"ARTICLE X.
" Every British or Russian vessel navigating the Pacific
Ocean which may be compelled by storms or by accident
to take shelter in the ports of the respective Parties, shall
be at liberty to refit therein, to provide itself with all
necessary stores, and to put to sea again, without paying
any other than port and lighthouse dues, which shall be
the same as those paid by national vessels. In case,
however, the master of such vessel should be under the
necessity of disposing of a part of his merchandize in
order to defray his expenses, he shall conform himself to
the Regulations and Tariffs of the place where he may
have landed.
[248] I 56
"ARTICLE XL
| In every case of complaint on account of an infrac- Treaty of 1825.
tion of the Articles of the present Convention, the civil
and military authorities of the High Contracting Parties,
without previously acting or taking any forcible measure,
shall make an exact and circumstantial report of the
matter to their respective Courts, who engage to settle the
same in a friendly manner, and according to the principles
of justice.
"ARTICLE XII.
"The present Convention shall be ratified, and the
ratifications shall be exchanged at London within the
space of six weeks, or sooner if possible.
"In witness whereof the respective  Plenipotentiaries
have signed the same, and have affixed thereto the seal of   •
their arms.
"Done at St. Petersburg^ the 16th (28th) day of
February, in the year of our Lord one thousand eight
hundred and twenty-five.
(L.S.) "STRATFORD  CANNING.
(L.S.) " The _Count De Nesselrode.
(L.S.) "Pierre de Poletica."
Mr. Stratford Canning to Mr. G. Canning, in
his despatch of the 1st March, 1825, inclosing
the Convention as signed, says:—
I With respect to Behring Straits, I am happy to have See Appendix,
it in my power to assure you, on the joint authority of the y*"- "» *>art'»
Russian Plenipotentiaries, that the Emperor of Russia has
no intention whatever of maintaining any exclusive claim
to the navigation of those straits, or of the seas to the
north of them."
Mr. S. Canning, in a further despatch to
Mr. G. Canning, 3rd (15th) April, 1825, said:—
". . . . With respect to the right of fishing, no explana- Ibid., No. 5"
tion whatever took place between the Plenipotentiaries
and myself in the course of our negotiations. As no
objection was started by them to the Article which I
offered in obedience to your instructions, I thought it
unadvisable to raise a discussion on the question ; and the
distance from the coast at which the right of fishing is to
be exercised in common passed without specification, and
consequently rests on the law of nations as generally
received.
" Conceiving, however, at a later period that you might
possibly wish to declare the law of nations thereon, jointly
with the Court of Russia, in some ostensible shape, I
-broached the matter anew to Count Nesselrode, and
suggested that he should authorize Count Lieven, on vour
invitation, to exchange notes with you declaratory of the
law as fixing the distance at 1 marine league from the
shore. 57
" Count Nesselrode replied that ne should feel embarrassed in submitting this suggestion to the Emperor
just at the moment when the ratifications of the Convention were on the point of being dispatched to London;
and he seemed exceedingly desirous that nothing should
happen to retard the accomplishment of that essential
formality. He assured me at the same time that his
Government would be content, in executing the Convention, to abide by the recognized law of nations; and that,
if any question should hereafter be raised upon the subject,
he should not refuse to ioin in making the suggested
v O DO
declaration, on being satisfied that the general rule under
the law of nations was such as we supposed.
" Having no authority to press the point in question, I
took the assurance thus given by Count Nesselrode as
sufficient, in all probability, to answer every national
purpose. ..."
United States' interpretation of Russo-
American Treaty.]
Wharton, Digest
of International
Law, section 159,
vol. ii, p. 226.
The claim of Russia attracted much attention
at the time.
President Monroe wrote to Mr. Madison on the
2nd August, 1824, with reference to the Convention of that year, to the effect that—
"By this Convention the claim to the mare clausu/m
is given up, a very high northern latitude is established
for our boundary with Russia, and our trade with the
Indians placed for ten years on a perfectly free footing,
and after that term left open for negotiation. . . . England
will, of course, have a similar stipulation in favour of the
free navigation of the Pacific, but we shall have the credit
of having taken the lead in the affair."
Letters and
writings of James
Madison, Philadelphia, 1865,
p. 446.
In answer to the above, Mr. Madison wrote to
President Monroe on the 5th August, 1824:—
" The Convention with Russia is a propitious event, as
substituting amicable adjustment for the risk of hostile
collision. But I give the Emperor, however, little credit
for his assent to the principle of ' mare Liberater' [sic] in
the North Pacific. His pretensions were so absurd, and
so disgusting to the maritime world, that he could not do
better than retreat from them through the forms of negotiation. It is well that the cautious, if not courteous,
policy of England towards Russia has had the effect of
making us, in the public eye, the leading Power in arresting
her expansive ambition."
The Ukase never enforced.
See letter of
S. Canning to
G. Canning,
April 23, 1823.
Appendix, vol. ii,
Part 1, No. 24.
See post, p. 78.
In the year 1822 the Russian authorities
attempted to enforce the provisions of the Ukase
of 1821 and seized the United States' brig
" Pearl," when on a voyage from Boston to Sitka.
The circumstances of this case are stated in the
next Chapter.
It is sufficient for the present purpose to note
[248]
I 2 58
that the United States at once protested, the
•'Pearl" was released, and compensation paid for
her arrest and detention.
This is believed to be the only case in which
any attempt was, in practice, made by Russia to
interfere with any ship of another nation in the
waters in question outside of territorial limits.
The facts disclosed in this Chapter show:—
That the Ukase of the Emperor Paul in the
year 1821—the first and only attempt on the
part of Russia to assert dominion over, and
restrict the rights of other nations in, the non-
territorial waters of the North Pacific, including
those of Behring Sea—was made the subject of
immediate and emphatic protest by Great Britain
and the United States of America.
That Russia thereupon unequivocally withdrew her claims to such exclusive dominion and
right of control.
That the Conventions of 1824 and 1825
declared and recognized the rights of the subjects
of Great Britain and the United States to navigate and fish in all parts of the non-territorial
waters over which the Ukase purported to
extend.
L 59
" Pacific Ocean " as used in the
Treaty of 1825.
Chapter III.
Head (C).— The question whether the body of water
now known as the Behring Sea is included in the
phrase | Pacific Ocean," as used in the Treaty of
1825 between Great Britain and Russia.
It will be remembered that the Ukase of 1821
included the Pacific from the Behring Strait south-
ward to the 51st parallel, and that this claim was
protested against in toto, on the ground that the
coast was almost entirely unoccupied, and that
maritime jurisdiction, even where the coast was
occupied, could not extend beyond D miles.
In the first Articles of the Conventions of
1824 and 1825 the claim to an extraordinary
jurisdiction at sea was definitely abandoned, and
the abandonment was a complete withdrawal of
the claim made. It was principally against this
very claim that the protests of Great Britain
and the United States were directed, and its
relinquishment was therefore, and purposely,
placed at the head of each of the resulting Conventions.
Article I of the Convention between Russia
and the United States is as follows :—
"It is agreed that in any part of the Great Ocean,
commonly called the Pacific Ocean, or South Sea, the
respective citizens or subjects of the High Contracting
Powers shall be neither disturbed nor restrained, either in
navigation or in fishing, or in the power of resorting to the
coasts, upon points which may not already have been
occupied, for the purpose of trading with the natives,
saving always the restrictions and conditions determined
by the following Articles."
Article I of the Convention between Great
Britain and Russia is as follows :—
I It is agreed that the respective subjects of the
High Contracting Parties shall not be troubled or molested
in any 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 occupied, in order to trade with the natives,
under the restrictions and conditions specified in the following Articles."
It has been contended, however, on the part
of the United States, that the renunciation of
claims contained in the Articles above quoted
did not extend to what is now known as Behring
Sea.
On this point Mr. Blaine, Secretary of State
for the United States, writes:— 60
'" The United States contends that the Behring Sea was Contention of the United States that
not-mentioned, or even referred to, in either Treaty, and Behring Sea was not included.
was in no sense included in the phrase f Pacific Ocean.'  ^^ Rianie t0 gjr
If Great  Britain  can maintain   her   position   that the J. Pauncefote.
Behring Sea at the time of the Treaties with Russia of „ Jie I. °?^\ ,
° ' United States
1824 and 1825 was included in the Pacific Ocean, the No. 1 (1891),"
Government of the United States has no well-grounded V- ^■
^ ■   ,        .    . -,     „ See Appendix,
complaint against her. vl jjj
In   order   to   uphold    the    contention   thus " North-west Coast."
advanced by the United States, it is, however,
further found necessary to maintain that the
words "north-west coast" and "northj-west
coast of America," which frequently occur in the
correspondence connected with those [Conventions, refer only to a portion of the coast of the
continent south of Behring Sea. This portion
of the coast Mr. Blaine endeavours to define
precisely in his letter, which has just been
quoted, illustrating his meaning by maps, and
seeking to restrict the application of the term
to that part of the coast which runs southward Ibid., p. 38.
continuously from the 60th parallel.
The meaning of the phrase "Pacific Ocean"
and that of the term " north-west coast | are thus
intimately associated in the contention of the
United States, and it will be convenient to treat
them together.
Meaning of the phrase  "Pacific Ocean" and the Meaning   of   "Pacific  Ocean"   and
Wmimmm        ±  ^     ,»   •    ,,     m     fe , "North-west Coast" in the Trea-
term     North-west Coast     m the Treaties and ties and correspondence.
Correspondence. 	
It will be found that such a construction of M. de Poletica to
these phrases as Mr. Blaine has striven to place ^ 1      "Jfo 10™
x i rebruary 28, 1822.
upon them cannot be reconciled with the corre- See Appendix,
j vol. ii, Part II,
spondence. No |
In the first place, it has already been shown
that Russia's object was not the acquisition of
the control of the sea between Behring Strait and
latitude 51°—this she distinctly denied —but the
exclusion from her coasts in Asia and America,
and on the islands, of the traders whose ventures
threatened the success of the Russian-American
Company.
No claim had been advanced by Russta which
could possibly render a distinction between
Behring Sea and the main Pacific of the slightest
importance.
On the contrary, in the Ukase of 1799, Russia
asserted jurisdiction over her subjects on all
hunting grounds and establishments on the
coast of America from the 55° north latitude to
Behring Strait and thence southward to Japan, 61
Usage of the terms in official
correspondence.
See Appendix,
vol. i, No. ].
Ibid., vol. ii,
Part I, No. 1.
and on the Aleutian, Kurile, and other Islands
in all the "north-eastern" ocean.
In 1821, Russia was endeavouring to assert
a title to the whole coast from Behring Strait
to 51° north latitude on the American, and
latitude 45° 50' on the Asiatic coast.
Her claim to an extraordinary maritime jurisdiction over the non-territorial waters of the
ocean was definitively abandoned at the outset
of the negotiations, and the discussion was
thenceforward confined to the protection of her
rights within territorial limits.
Russia's object was the recognition and protection of the Russian Settlements in America.
Accordingly, the Conventions provide against
" illicit commerce," landing " at any place [from
Behring Strait to the southernmost boundary]
where there may be a Russian establishment
without the permission of the Governor or Commandant," and against the formation of Establishments by either Power (in the respective! Conventions) on territory claimed by, or conceded to,
the other.
With the same object rules were made by
Russia, headed " Rules established for the Limits
of Navigation and Order of Communication along
the coast of the Eastern Siberia, the north-west-
coast of America, and the Aleutian, Kurile, and
other Islands." This obviously included the
American coast of Behring Sea in the term
"north-west coast."
Baron Nicolay, writing to Lord Londondery,
31st October (12th November), 1821,Fsays :—
" North-west Coast."
" Pacific Ocean."
" (Translation.)
" The new Regulation does not forbid foreign vessels to
navigate the seas which wash the Russian possessions on
the north-west coast of America and the north-east coast
of Asia.
* # • *
" On the other hand, in considering the Russian possessions which extend on the north-west coast of America
from Behring Strait to 51° of north latitude, and also on
the opposite coast of Asia and the adjacent islands, from.
the same Strait to 45°, &c.
* * * *
"For, if it is demonstrated that the Imperial Government would, strictly speaking, have had the power to
entirely close to foreigners that part of the Pacific Ocean
on which our possessions in America and Asia border,
there is all the more reason why the right, in virtue of
which it has just adopted a measure much less generally
restrictive, should not be called in question.
* * # *
" The officers commanding the Russian vessels of war, 62
which are to see to the maintenance of the above-mentioned arrangements in the Pacific Ocean, have been
ordered to put them into force against those foreign
vessels, &c."
In this note "north-west coast of America"
is mentioned three times, and in each case the
coast of Be ring Sea is included in the term.
" Pacific Ocean" appears twice, and in both
instances includes the Behring Sea.
A map,  published officially by Russian au- For map, see
thorities, of which a copy is included among the Appendix, vol. w,
documents annexed to this Case was forwarded See Appendix,
from St. Petersburg by Sir Charles  Bagot to ™J; J; Part i
Lord Londonderry, in a despatch dated the 17th
November, 1821, in which it is thus described:—
" I have the honour to transmit to your Lordship, under
a separate cover, an English translation of the Ukase, and
I at the same^time inclose a Map of the north-west coasts
of America, and the Aleutian and Kurile Islands, which
has been published-in the Quartermaster-General's Department here, and upon which I have marked all the principal Russian Settlements."
It will be seen on reference to this Map that | North-west Coast."
the wrords " part of the north-west coast of
America" inclnde the whole coast line from a
point north of Behring Straits down to latitude
54° north.
Again Lord Londonderry writes to Count
Lieven:—
" The Undersigned has the honour hereby to acknow- Lord Londonderry
ledge the note, addressed to him by Baron de Nicolay of to Count Lieven,
the 12th November last, covering a copy of ah Ukase ^anufy 18, 1822.
° rJ See Appendix,
issued by His Imperial Majesty the Emperor of AU the vol. ii, Part I,
Russias, and bearing date the 4th September, 1821, for **°- gj
various purposes, therein set forth, especially connected
with' the territorial rights of his Crown on the northwestern coast of America, bordering upon the Pacific, and
the commerce and navigation of His Imperial Majesty's
subjects in the seas adjacent thereto."
And Mr. S. Canning writing in February 1822
to Lord Londonderry from Washington, where
he was then British Minister, observes :—
"I was informed this morning by Mr. Adams that the jyir. Stratford
Russian Envoy has, within the last few days, communi- Canning to the
cated officially to the American Government an Ukase of L^d^na*0
the Emperor of Russia, which has lately appeared in the February 19, 1822.
public prints, appropriating to the sovereignty and ex-     , -Appendix,
,    . „ TT.   T . . ,, . I . vol. ii, Part I,
elusive use of Mis Imperial Majesty the north-west coast n0. 9.
of America down to the 51st parallel of latitude, together
with a considerable portion of the opposite coasts of Asia,
and the neighbouring seas to the extent of 100 Italian
miles from any part of the coasts and intervening islands
so appropriated.   In apprizing me of this circumstance,
Mr. Adams gave me to understand that it was not the
intention of the American Cabinet to admit the claim thus
_ 63
I
" North-west Coast.1
Pacific Ocean."
" North-west Coast.'
See Appendix,
vol. ii, Part II,
No. 1.
Hudson's Bay
Company to the
Marquis of
Londonderry,
March 27, 1822.
See Appendix,
vol. ii, Part I,
No. 10.
Mr. Adams to
Mr. Rush, July 22,
1823.    American
State Papers,
Foreign Relations,
vol. v, p. 446.
See Appendix,
vol. ii, Part II,
No. 4.
See Appendix,
vol. i, Nos. 3 and 4.
notified on the part of Russia. His objection appears to
he more particularly against the exclusion of foreign
vessels to so great a distance from the shore."
Again M. de Poletica, writing to Mr. Adams
on the 28th February, 1822 :—
" The first discoveries of the Russians on the north-west
continent of America go back to the time of the Emperor
Peter I. They belong to the attempt, made towards the
end of the reign of this great Monarch, to find a passage
from the icy sea into the Pacific Ocean.
* * * *
" When, in 1799, the Emperor Paul I granted to the
present American Company its first Charter, he gave it'the
exclusive po&session of the north-west coast of America,
which belonged to Russia, from the 55th degree of north
latitude to Behring Straits.
* * * #
" From this faithful exposition of known facts, it is easy,
Sir, as appears to me, to draw the conclusion that the rights
of Russia, to the extent of the north-west coast, specified
in the Regulation of the Russian-American Company,
rest, &c.
| The Imperial Government, in assigning for limits to
the Bussian possessions on the north-west coast of America,
on the one side Behring Straits, and on the other the 51st
degree of north latitude, has, &c.
* * « *
" I ought, in the last place, to request you to consider,
Sir, that the Bussian possessions in the Pacific Ocean extend
on the north-west coast of America from Behring Straits to
the 51st degree of north latitude, and on the opposite side
of Asia and the islands adjacent from the same strait to
the 45th degree."
Throughout this note the phrase " north-west
coast" includes the coast of Behring Sea, and the
last passage shows unmistakably that the Russians
at that time regarded the Pacific Ocean as extending to Behring Strait.
The attention of the British Government was
called to the Ukase by the Hudson's Bay Company in the following terms:—
"It has fallen under the observation of the Governor
and Committee of the Hudson's Bay Company that the
Russian Government have made a claim to the north-west
coast of America from Behring Straits to the 51st degree
of north latitude; and in an Imperial Ukase have prohibited foreign vessels from approaching the coast within
100 miles, under penalty of confiscation."
Mr. Adams, in 1823, dealt with the Russian
claim as one of exclusive territorial right on the
north-west coast of America, extending, as he said,
from the "northern extremity of the continent."
Articles in the "North American Review" (vol. xv,
article 18), and " Quarterly Review" (1821-22,
[48 K 64
vol. xxvi, p. 344), published at the time of the " North-westCoast,"
controversy, and already referred to as mentioned
with apprrobation by Mr. Adams, in 1824-25,
use the words | north-west coast" with the same
signification.
Mr. Adams, in his despatch of the 22nd July, American State
1823, to Mr. Middleton, referred to the Ukase of   Relations, vol. 1
the Emperor Paul as purporting to grant to the P-4 se-
American Company the '-'exclusive possession of See Appendix,
the north-west coast of America, which belonged  No. 3.
to Russia,N from the 55th degree of north latitude
to Behring Strait.
The fact that the whole, and not merely a
particular portion, of the territorial and maritime
claim advanced by the Ukase was in question,
and was settled by the Treaties of 1824 and 1825
also appears from the Memorial laid by Mr.
Middleton, on the part of the United States,
before the Russian Government on the 17th
December, 1823 :—
"With all the respect which we owe to the declared American State
intention and to the determination indicated by the Ukase,      K,~'     '   '
p. 452.
it is necessary to examine the two points of fact; (1.) If
the country to the south and'east of Behring Strait, as far as vo] jj part u
the 51st degree of north latitude, is found strictly unoccupied. No. 5.
(2.) If there has been, latterly, a real occupation of this vast
territory ? . . . . The conclusion which must necessarily
result from these facts does not appear to establish that
the territory in question had been legitimately incorporated with the Russian Empire.
"The extension of territorial rights to the distance of
100 miles from the coasts upon two opposite continents,
and the prohibition of approaching to the same distance
from these coasts, or from those of all the intervening
islands, are innovations in the law of nations, and measures
.unexampled."
In an earlier part of the same paper, Mr.
Middleton observes:—
I The Ukase even goes to the shutting up of a strait
■ which has never been till- now shut up, and which is at
present the principal object of discoveries, interesting and
useful to the sciences.
. " The very terms of the Ukase bear that this pretension
has now been made for the first time."
The  same appears   from   Mr.   G.  Canning's 'Pacific Ocean."
despatch to  Sir  C.  Bagot  of the   24th July, 0    .       ,.
x ° * '  bee Appendix,
1824 (which has been already quoted in another vol. ii, Part I,
connection) :-—
" Your Excellency will observe that there are but two
points which have struck Count Lieven as susceptible of
any question.   The first, the assumption of the base of the
mountains, instead of the summit as the line of boundary;
the second, the extension of the right of navigation of the
Pacific to the sea beyond Behring Straits.
* % # ♦
No. 44. 65
" Pacific Ocean.' '* As o the second point, it is, perhaps, as Count Lieven
remarks, new. But it is to be remarked, in return, that the
circumstances under which this additional security is
required will be new also.
"By the territorial demarcation agreed to in this
' Projet,' Russia will become possessed, in acknowledged
sovereignty of both sides, of Behring Straits.
" The Power which could think of making the Pacific a
mare clausum may not unnaturally be supposed capable of
a disposition to apply the same character to a strait comprehended between two shores of which it becomes the
undisputed owner; but the shutting up of Behring Straits,
or the power to shut them up hereafter, would be a thing not
to be tolerated by England.
See ante, p. 32. "Nor could we submit to be excluded, either positively or
constructively, from a sea in which the skill and science of
our seamen has "been and is still employed in enterprises
interesting not to this country alone, but to the whole civilized
world.
" The protection* given by the Convention to the
American coasts of each Power may (if it is thought
necessary) be extended in terms to the coasts of the''
Russian Asiatic territory; but in some way or other, if
not in the form now prescribed, the free navigation of
Behring Straits, and of the seas beyond them, must be
secured to us."
It would have been of little advantage to
secure the right to navigate through Behring
Strait unless the right to navigate the sea leading
to it was secured, which would not have been
the case if the Ukase had remained in full
force over Behring Sea.
The frequent references to Behring Strait and
the seas beyond it show that there was no
doubt in the minds of the British statesmen of
that day that, in obtaining an acknowledgment
of freedom of navigation and fishing throughout
the Pacific, they had also secured this right
as far as Behring Strait.
As corroborative proof of the usual practice of
the British naval authorities, in the nomenclature
of these waters, reference may be made to the
instructions given in 1825 by the Lords Commissioners of the Admiralty, which will be found
in the | Narrative of a Voyage to the Pacific and
^Behring Strait, &c," under command of Captain
F. W. Beechey, R.N., in the years 1825-26-27-28,
* published by authority in London, 1831.
These instructions from the Lords Commis-
* (i.e.) By the extension of territorial jurisdiction to two
leagues, as originally proposed in the course of the negotiations
between Great Britain and Russia.
[248] K 2 66
sioners, which are full and detailed, make
reference only to Behring Strait and the Pacific
Ocean, and do not mention the Sea of Kam-
tchatka or Behring Sea.
Common meaning of '" Pacific Ocean " arid "North-
West Coast"
The works of Mr. Robert Greenhow, Translator and Librarian to the United States' Department of State (well known in connection with
the discussion of the "Oregon question"),
afford a detailed and conclusive means of ascertaining the views officially held by the United
States' Government on the meaning of Pacific
Ocean, Bearing Sea, North-west coast, and the
extent to which the claims made by Russia in
the Ukase of 1821 were abandoned by the Convention of 1824.
A " Memoir " was prepared by Mr. Greenhow,
on the official request of Mr. L. F. Linn, Chairman
of a Select Committee on the Territory of Oregon,
by order of Mr. 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 mouth of the Kuskoquim in Behring
Sea, and embraces also the greater part of the
Aleutian chain.
Touching the signification of the terms Northwest coast and Pacific Ocean, and the meaning
attached to the relinquishment of Russian claims
by the Convention of 1824, the first part of the
" Memoir," under the heading " Geography of
e Western Section of North America," contains
the following passage:—
"The north-west coast* is the expression usually employed in the United States at the present time to
distinguish the vast portion of the American continent
which extends north of the 40th parallel of latitude from
the Pacific to the great dividing ridge of the Bocky
Mountains, together with the contiguous islands in that
ocean. The southern part of this territory, which is
drained almost entirely by the River Columbia, is commonly
•called Oregon, from the supposition (no doubt erroneous)
that such was the name applied to its principal stream by
the aborigines. To the more northern parts of the
continent many appellations, which will hereafter be
mentioned, have been assigned by navigators and fur
traders of various nations. The territory bordering upon
the Pacific southward, from the 40th parallel to   the
* N.B.—The italics in this and subsequent quotations are
those employed by Greenhow himself.
Common meaning of " Pacific Ocean'
and " North-west Coast."
Greenhow's works.
1 Memoir Historical and Political of the north-west coast of
North America and the adjacent territories, illustrated by a
Map and a geographical view of these countries, by Robert
Greenhow, Translator and Librarian to the Department of
State."    Senate, 26th Cong., 1st Session (174), 1840.
The same Memoir, separately printed, apparently in identical
form, and with the same Map and pagination Wiley and
Putnam, New York, 1840.
" North-west Coast.' ~\
67
extremity of the peninsula which stretches in that
direction as far as the Tropic of Cancer, is called California,
a name of uncertain derivation, formerly applied by the
Spaniards to the whole western section of North America,
as that of Florida was employed by them to designate the
regions bordering upon the Atlantic. The north-west
coast and the west coast of California together form the
v)cst coast of North America; as it has been found
impossible to separate the history of these two portions,
so it will be necessary to include them both in this
geographical view " (p. 1).
Mr.   Greenhow   here    gives   the   following
note:—
" In the following pages the term coast will be used,
sometimes as signifying only the sea-shore, and sometimes
as embracing [the whole territory, extending therefrom to
the sources of the river ; care has been, however, taken to
prevent misapprehension, where the context does not
sufficiently indicate the true sense. In order to avoid
repetitions, the north-west coast will be understood to be
_the .north-west coast of North America 1 all latitudes will
be taken as north latitudes, and all longitudes as vjest from
Greenwich, unless otherwise expressed."
The i Memoir " continues as follows :—
" Pacific Ocean." 1 The northern extremity of the west coast of America
is Cape Prince of Wales, in latitude of 65° 52', which is
also the westernmost spot in the whole continent; it is
situated on the eastern side of Beering's Strait, a channel
i§»ii|: 51 miles in width, connecting the Pacific with the Arctic
[or Icy or North Frozen] Ocean, on the western side of
which strait, opposite Cape Prince of Wales, is East Cape,
the eastern extremity of Asia. Beyond Beering Strait the
shores of the two continents recede from each other. The
north coast of America has been traced from Cape Prince
of Wales north-eastward to Cape Barroiv," &c. (pp. 3-4).
The relations of Behring Sea to the Pacific
Ocean are defined as follows in the | Memoir ":—
" The part of the Pacific north of the Aleutian Islands
which bathes those shores is commonly, distinguished as
the Sea of Kamtchatka, and sometimes as Behring Sea, in
honour of the Russian navigator of that name who first
explored it" (pp. 4-5).
'The Geography of Oregon and Cahfornia and the other     Again,  in the  "Geography of   Oregon and
terntones on the north-west coast of North America. ° "     x    " °
New York, 1845. California," Mr. Greenhow writes:—
"Cape Prince of Wales, the westernmost point of
America, is the eastern pillar of Behring Strait, a passage
only 50 miles in width, separating that continent from
Asia, and forming the only direct communication between
the Pacific and Arctic Oceans.
. 68
" The part of the Pacific called the Sea of Kanxtchatka, or
Behring Sea, north of the Aleutian chain, likewise contains several islands," &c. (p. 4).
" Pacific Ocean.
Greenhow's I History " was officially presented
to the Government of Great Britain by the
Government of the United States in July 1845,
in connection with the Oregon discussion and in
pursuance of an Act of Congress.*
In this History the Sea of Kamtchatka, or
Behring's Sea, is again referred to as a part of the
Pacific Ocean.
In respect of the understanding by the United
States that the claims advanced by the Ukase
of 1821 had been entirely relinquished by the
Russian and United States' Convention of 1824,
" The History of Oregon and California and the other territories on the north-west coast of North America, by
Robert Greenhow, Translator and Librarian to the Department of State of the United States; author of a Memoir
Historical and Political on the north-west coast of North
America, published in 1840 by direction of the Senate of
the United States."   New York, 1845.
This is a second edition, and in the preface it is explained that
its issue was rendered necessary to supply 1,500 copies of
the work which had been ordered for the General Government.
The same work.    First edition, London, 1844.
Both editions contain Maps, which appear to be identical,
but different from the Maps accompanying the Memoir,
though including nearly the same limits with them.
* The following is the correspondence accompanying the
presentation by the Government of the United States :—
| Mr. Buchanan to Mr. Pakenham.
" Department of State, Washington,
" Sir, " July 12,1845.
" In pursuance of an Act of Congress approved on the
20th February, 1845, I have the honour to transmit to
you herewith,' for presentation to the Government of
Great Britain, one copy of the ' History of Oregon,
California, and the other territories on the North-west
Coast of America,' by Robert Greenhow, Esq., Translator
and Librarian of the Department of State.
" I avail, &c.
(Signed)
James Buchanan."
" Mr. Pakenham to the Earl of Aberdeen.—(Beceived
August 16.)
'* My Lord, "Washington, July 29, 1845.
" I have the honour herewith to transmit a copy of a
note which I have received from the Secretary of State of
the United States, accompanied by a copy of Mr. Green-
h ow's work on Oregon and California, which, in pursuance
of an Act of Congress, is presented to Her Majesty's
Government.
"Although Mr. Greenhow's book is already in your
Lordship's possession, I think it right, in consequence of
the official oharacter with which it is presented, to forward
to your Lordship the inclosed volume, being the identical
one which has been sent to me by Mr. Buchanan.
"I   have not failed  to acknowledge  the receipt of
Mr. Buchanan's note in suitable terms.
" I have, &c.
(Signed) "R. Pakenham ' 69
the following is found on a later page of the
volume last referred to :—
" This Convention does not appear to offer any grounds
for dispute as to the construction of its stipulations, but is,
on the contrary, clear, and equally favourable to both
nations. The rights of both parties to navigate every part
of the Pacific, and to trade with the natives of any places
on the coasts of that sea, not already occupied, are first
distinctly acknowledged, &c." (p. 342).
Russian interpretation of " Pacific
Ocean."
Tikhmenieff.
See Appendix,
vol i, No. 5.
1846.
Ibid
Interpretation in the United States.
See post, p. 99.
It is thus clear, as the result of the investigations undertaken by Greenhow on behalf of the
United States' Government—
That Behring Sea was a part of the Pacific.
That the north-west coast was understood to
extend to Behring Strait.
That Russia relinquished her asserted claims
over " every-part of the Pacific."
That the phrase | Pacific Ocean " in the Treaty
included Behring Sea is still further shown by
the reply of the Russian Government to Governor
Etholin in 1842, when he wished to keep American whalers out of Behring Sea:—
I The claim to a mare clauswm, if we wished to advance
such a claim in respect to the northern part of the Pacific -
Ocean, could not be theoretically justified. Under Article I
of the Convention of 1824 between Bussia and the United
States, which is still in force, American citizens have a right
to fish in all parts of the Pacific Ocean. But under
Article IV of the same Convention, the ten years' period
mentioned in that Article having expired, we have power
to forbid American vessels to visit inland seas, gulfs,
harbours, and bays for the purposes of fishing and trading
with the natives. That is the limit of our rights, and we
have no power to prevent American ships from taking
whales in the open sea."
Again, in the reply of the Russian Government
to representations of the Governor-General of
Eastern Siberia in 1846, the following words
occur :—
I We have no right to exclude foreign ships from that
part of the great ocean which separates the eastern shore
of Siberia from the north-western shore of America," &c.
The instructions which were finally issued
to the Russian cruizers on the 9th December,
1853, are to the same effect.
The Legislature of the Territory of Washington, in 1866, referred to 1 fishing banks known
to navigators to exist along the Pacific coast
from the Cortes bank to Behring Strait." y
70
It is clear that the Honourable Charles Sumner,
when proposing to the Senate, in the year 1867,
the adoption of the Treaty of Cession of Alaska,
understood the words "North Pacific" in the
sense in which these words are defined by the
authorities just cited. In his speech on that
occasion, Mr. Sumner thus referred to the waters
in question:—
" Sea-otter seems to belong exclusively to the North See Appendix,
Pacific     Its present zone is between the parallels vo*-1 *">• 6-
of 60° and 65° north latitude on the American and Asiatic
coasts, so that its range is very limited."
Mr. H. W. Elliott, who was engaged in the Report on the Seal
study of the seal islands of Alaska for the United Washington, 1881,
States' Government as late as the year 1881, in PP- e> 7-
his official Report on the seal islands of Alaska
remarks, concerning the seals :—
" Their range in the North Pacific is virtually confined to
four islands in Bering Sea, namely, St. Paul and St. George,
of the tiny Pribyloff group, and Bering and Copper of the
Commander Islands."
Again, he says :—
" In the North Atlantic no suitable territory for their
reception exists, or ever did exist; and really nothing in
the North Pacific beyond what we have designated in
Bering Sea."
b
He also describes the rookeries in Behring Sea
as "North Pacific rookeries."
And writes further:—
" Geographically, as well as in regard to natural history, Ibid., p. 110.
Bering Island is one of the most curious islands in the
northern part of the Pacific Ocean."
The above are, however, only a few from
among very many similar instances which might
be quoted of the continued usage of the name
" Pacific Ocean " as including Behring Sea.
In 1882, a Notice which affected part of
Okhotsk and Behring Seas was published by
A. K. Pelikan, His Royal and Imperial Majesty's
Consul, Yokohama, on the 15th November, 1881,
from which the following is an extract:—
" At the request of the local authorities of Behring and 50th Cong., 2nd
other islands, the Undersigned hereby notifies that the ^esa\fen:~^'
-r.     •      t ■ i ^ -,,■■,      „ "oc- No. 106,
JKussian Imperial Government publishes for general know- p 259,
edge the following: — Pacific.
71
"' 1. Without a special permit or licence from the
Governor-General of Eastern Siberia, foreign vessels are
not allowed to carry on trading, hunting, fishing, &c, on
the Russian coast or islands in the Okhotsk and Behring
Seas, or on the north-eastern coast of Asia, or within their
sea boundary-line.'"
In the correspondence between the United
States and Russia, touching the meaning of this
Regulation, the Notice is alluded to by M. de
Giers as "relative to fishing, hunting, and to trade
in the Russian waters of the Pacific," and as
relative to fishing and hunting in " our Pacific
waters."
In the same correspondence the Secretary of
State of the United States and the United States'
Minister at St. Petersburg similarly speak of
I Pacific Coast -fisheries " and | our Pacific Ocean
fisheries."
Writing on the "8th (20th) May, 1882, to
Mr. Hoffmau, the American Minister at St.
Petersburg, M. de Giers said :—
50th Cong., 2nd " Referring to the exchange of communications which
Sess., Senate Ex.     kas taken place between us on the subject of a Notice
262   '      ' published by our Consul at Yokohama relative to fishing,
See Appendix, hunting, and to trade in the Bussian waters of the Pacific,
w«! if? '        an<^ *n reply to the note which you addressed to me, dated
the 15th (27th) March, I am now in a position to give
you the following information:—
| A Notice of the tenour of that annexed to your note of
the 15th March was, in fact, published by our Consul at
Yokohama, and our Consul-General at San Francisco is
also authorized to publish it.
" This measure refers only to prohibited industries and
to the trade in contraband; the restrictions which it
establishes extend strictly to the territorial waters of Russia
only. It was required by the numerous abuses proved in
late years, and which fell with all their weight on the
population of our sea-shore and of our islands, whose only
means of support is by fishing and hunting. These abuses
inflicted also a marked injury on the interests of the
Company to which the Imperial Government had conceded
the monopoly of fishing and hunting (' exportation'), in
islands called the ' Commodore' and the ' Seals.'
" Beyond this new Regulation, of which the essential
point is the obligation imposed upon captains of vessels
who desire to fish and to hunt in the Bussian wafers of the
Pacific to provide themselves at Vladivostock with the
permission or licence of the Governor-General of Oriental
Siberia, the right of fishing, hunting, and of trade by
foreigners in our territorial waters is regulated by
Article 560, and those following, of vol. xii, Part II, of
the Code of Laws.
" Informing you of the preceding, I have, &c."
[248] L
No. 16. ■^1
72
Bancroft writes, in his 1 History of Alaska I
(pp. 19, 20): " The Anadir, which empties into
the Pacific." Again: "Thus the Pacific Ocean
was first reached by the Russians on the shore of
the Okhotsk Sea." And yet again.: g The ascent
of the Lena brought the Russians to Lake Baikal,
and showed them another route to the Pacific,
through China by way of the Amoor."
So, in 1887, it is found that the
Representative a^ St. Petersburg
Mr.  Bayard   (17th "February,  1887)
"Pacific."
American 50th Cong., 2nd
•   £ j  Sess., Senate Ex
informed Doc/No. 10G>
that   the p. 268.
Notice already quoted prohibits fishing, &c, on voi i part \{t
This   ™™>- No- 18-
the   Russian    Pacific    coasts.
corre
spondence related to a seizure which had been
made in Behring Straits.
Geographical use of % Pacific Ocean " and " North-
West Coast."
. In the discussion of the question of jurisdiction between the United States and Great Britain
special reference has been made by the United
States to the marking of Maps, from which it has
been insisted that the waters of Behring Sea had
been given a name distinct from that of the
Pacific Ocean.
Erom this it was urged that the words "Pacific
Ocean'' in the Conventions were used with great
care, so as to reserve under the exclusive jurisdiction of Rnssia the waters of Behring Sea.
It is, however, to be noted in studying any series
of Maps chronologically arranged, particularly
those published before the middle of the present
century, that Behring Sea is frequently without
any special name, though the adjoining Sea of
Okhotsk is in almost every instance clearly
designated.
On various Charts issued by the United States'
Hydrographic Office, including the latest and
most perfect editions now in actual use, the expression "Pacific" or "North Pacific Ocean" is
used as including Behring Sea. This appears
from the titles of such Charts, of which the
. following may be referred to :—
No. 909. Published March 1883 at the Hydro-
graphic Office, Washington, D.C.:—
"Pacific Ocean. Behring Sea, Plover Bay,
from a survey by Lieutenant Maximov, Imperial
Russian Navv, 1876."
(Plover Bay is situated on the Asiatic coast,
near the entrance to Behring Strait.)
Geographical use of " Pacific Ocean "
and "North-west Coast." 73
* Pacific" and "North-west Coast" in
geographical works.
Jfaltam, John, "Naval Gazetteer," London, 1795.
Brookes, R., "General Gazetteer," 12th ed., London, 1802.
Galletti, J. G. A., " Allgemeines Geographisches Wiirter-
bucb," Pesth, 1822.
Dictionnaire Geographique Universe!" Tom. iv, Paris,
1823-33.
Seitz, Dr. J. C„   " Geographisches  Statistisches   Hand-
worterbuch," Bd. iii, Pesth, 1822, Halberatadt, 1829.
Arrowsmith, " Grammar of Modern Geography," London,
1832.
No. 910. Published October 1SS2 at the
Hydrographic Office, Washington, D.C.: —
" North Pacific Ocean. Anadir Bay, Behring
Sea. Prom a Chart by Engineer Bulkley, of New
York, in 1865," &o. j
(Anadir Bay is situated between latitudes 64°
and 65° on the Asiatic side of Behring Sea.)
Similar evidence is afforded by the title-page
of the work issued by the same Hydrographic
Office in 1869, as follows :—
"Directory of Behring Sea and the coast of
Alaska Arranged from the Directory of
the Pacific Ocean."
The British Admiralty Chart of Behring Sea,
corrected up to November 1889, but originally
compiled in 1884 (No. 2460), is likewise entitled
as follows :—
" North-west Pacific. Kamchatka to Kadiak
Island, including Behring Sea and Strait."
The definitions touching the Pacific Ocean,
Behring Sea, &c, to be found in gazetteers,
dictionaries, and geographical works, both of the
present and past dates, moreover, show conclusively that Behring Sea was, at the time of the
Conventions, and is now, understood to form an
integral part of the Pacific Ocean.
Such formal definitions are naturallv more
trustworthy than inferences drawn from the
construction of Maps.
A few of these will suffice, though many more
might be quoted :—
" Beering's Straits, which is the passage from the North
Pacific Ocean to the Arctic Sea."
" Beering's Island.   An island in the Pacific Ocean.
" Kamschatka.    Bounded east and south by Pacific."
" StiUes Meer. Vom 5 nordl. Br. an bis zur Berings-
strasse aufwarts stets heftige Sturme."
"Mer Pacifique. II s'^tend du nord au sud depuis le
Cercle Polaire Arctique, c'est-a-dire, depuis le Detroit
de Behring, qui le fait communiquer a l'Oc^an Glacial
Austral."
" Stilles Meer. Vom 30 siidlicher Breite bis zum 5
nordlicher Breite verdient es durch seine Heiterkeit und
Stille den namen des Stillen Meers; von da an bis zur
Beringsstrasse ist es heftigen Stiirmen unterworfen."
" Bhering's Strait connects the Frozen Ocean with the
Pacific.
" The Anadir flows into the Pacific Ocean.
" The principal gulfs of Asiatic Russia are: the Gulf of
Anadir, near Bhering's Strait; the Sea of Penjina, and the
Gulf of Okhotsk, between Kamtchatka and the mainland
of Russia—all three in the Pacific Ocean,"
[248J
L 2 74
"L'Ocean Pacifique Boreal s'etend depuis le Detroit de tt^Be la1Qj36°8rilPh1ILy^er8eIle'" pw Mal'e-Bhm'
* * Tom. n, p. 181, Pans, 1831-87.
Behring jusqu'au Tropique de Cancer."
| Le Detroit de Behring.   A commencer par ce d^troit ibid-»Tom-viii' P-4-
le Grand Ocean  (ou Ocean Pacifique) forme la limite
prientale de l'Asie."
" Behring   (d^troit   C^lebre).      II  joint   Oc^an    Glacial  Langlois, " Dictionnaire de Ggographie," Tom. i, Paris,
Arctique au Grand Oc^an."
"The Pacifio Ocean.   Its boundary-line is pretty well "Penny Cyciopradia," vol.xvii, London, 1840.
determined by the adjacent continents, which approach
one another towards the north, and at Behring's Strait
which separates'  them, are only about 36 miles apart.
Thig strait may be considered as closing the Pacific on the
north,"
"Behring (Detroit de) a l'extremite' nord-est de l'Asie,  "Dictionnaire Universel d'Histolre et de Geographic,"par
, S V J     .     , pf   .        ~.    .   '      M. N. Bouillet, Paris, 1842.
separe ce  continent de lAmerique  et  1 Ocean  Glacial
Arctique de l'Ocean Pacifique.
" Behring (Mer de), partie de l'Ocean Pacifique."
I Behring (Detroit de).     Canal de l'Ocean .... unissant " Dictionnaire Ge"ographique et Statistique," par Adrien
& v ' . Guibert.   Tom. i, Paris, 1850.
les eaux de l'Ocean Pacifique a celles de l'Ocean Arctique."
" Pacific Ocean.    Between longitude 70° west and 110°  " The New American   Cyclopaedia,"   edited  by George
Ripley and Charles A, Dana, New York, 1851.
east, that is, for a space of over 180 , it covers the greater
part of the earth's surface, from Behring's Straits to the
Polar Circle, that separates it from the Antarctic Ocean."
" Behring Sea is that part of the North Pacific Ocean " Harper's Statistical Gazetteer of the World," vol. i, by
oit'di      .   •   T,     -,.-,.-,     r-*o       id        -i      J. Collins Smith, New York, 1855.
between the Aleutian Islands in latitude 55   north and
Behring Strait in latitude 66° north, by which latter it
communicates with the Arctic Ocean."
I Behring Sea, sometimes called the Sea of Kamtchatka, "Imperial Gazetteer," vol. i, Glasgow, 1855.
is that portion of the North Pacific Ocean lying between
the Aleutian Islands and Behring's Strait."
" Behring (Detroit de).    Canal du Grand Ocean unissant " Grand  Dictionnaire   de  G6ographie   Universelle," par
i j    da  j       -n    •£ x      n      j„  vrv x       rw    • i      S. N. Bescherelle, Tom. i, Paris, 1856-57.
les eaux de 1 Ocean Pacifique a celles de 1 Ocean Glacial ' '
Arctique."
" Pacific   Ocean.     Its   extreme   southern  limit   is   the  McCulloch's   " Geographical   Dictionary,'* edited  by  P.
a   j.     a-    n-   i    t -U- x. -j.   ■    j. i j.1,       j j-i i.      Martin, vol. iii, London, 1866.
Antarctic Circle, from which it stretches northward through.
132° of latitude to Behring's Strait, which separates it from
the Arctic Ocean."
" Behring (Detroit de).    Canal ou bras de mer unissant "Grand Dictionnaire Universel," par  P.  La Rousse,
t i    Ww      m    • i  a    £        x      1      j   „a^ Tom. a, Paris, 1866-76.
les eaux de 1 Ocean Glacial Arctique a celles de 1 Ocean
Pacifique."
v Behring   (Detroit   de).      Passage   qui   unit   l'Ocean  St. Martin, " Nouvean Dictionnaire de Gdographie TJniver-
n1    . J   .    ,. n       '       .     „ selle," Tom. i, Paris, 1879.
Glacial Arctique au Grand Ocean.
" Behring Sea, or Sea of Kamchatka, is that part of the Lippincctt's " Gazetteer of the World," Philadelphia, 1880.
North Pacific Ocean between the Aleutian Islands in
latitude 55° north and Behring Strait in latitude 66° north,
by which latter it communicates with the Arctic Ocean."
" BeringSStrasse.    Meerenge das nordostlichste Eismeer Ritter's " Geographisch Statistiseh Lexicon," Bd. i, Leipzig,
mit dem Stillen Ocean verbindend."
" Behring's Strait, connecting the North Pacific with the  BlacMe's "Modern Cyclopaedia," vol. i,  London,   1889
. edition.
Arctic Ocean.
" Behring's Sea, sometimes called the Sea of Kamchatka,
is^that portion of the North Pacific Ocean lying between
the Aleutian Islands and Behring's Strait." 75
Views of English and American jurists.
Woolsey, " Introduction to International Law,"
3rd edition, New
York, 1872, p. 83.
Finally, a few passages may be quoted from
English and American publicists of acknowledged
eminence, to show the manner in which the
general question has been viewed by them.
Dr. T. D. Woolsey, President of Tale College,
| Introduction to the Study of International
Law," 3rd edition, New York, 1872, p. 83 :—
"Kussia, finally, at a more recent date, based an exclusive claim to the Pacific, north of the 51st degree, upon
the ground that this part of the ocean was a passage to
shores lying exclusively within her jurisdiction. But this
claim was resisted by our government, and withdrawn in
the temporary convention of 1824. A treaty of the same
empire with Great Britain in 1825 contains similar concessions."
Wharton, In referring to the Russian Ukase of 1821,
TjiorASt of Intel*—      ,,
national Law "       Wharton, " Digest of International Law of the
Washington,'18S6, United States,"  "Washington, 1886, vol. i, sec-
vol. i, section 32,
p 3, tion 32, p. 3, speaks of Russia—
" Having asserted in 1822 to 1824 an exclusive jurisdiction over the north-west coast and waters of America from
Behring Strait to the fifty-first degree of north latitude."
Davis, " Outlines
Mr. Davis, Assistant Professor of Law at the
United States' Militarv Academy, " Outlines of
of International
Law," New York
1887, p. 44. International Law," New York, 1887, p. 44 :—
" Kussia, in 1822, laid claim to exclusive jurisdiction
over that part of the Pacific Ocean lying north of the
61st degree of north latitude, on the ground that it possessed the shores of that sea on both continents beyond
that limit, and so had the right to restrict commerce to
the coast inhabitants."
Jas. B. Angell, in
the " Forum,"
November 1889;
" American Rights
in Behring Sea."
See Appendix,
vol. i, No. 8.
A recent United States' writer, Professor J. B.
Angell, discussing this subject, says :—
" The Treaty of 1824 secured to us the right of navigation and fishing ' in any part of the great ocean, commonly
called the Pacific Ocean, or South Sea, and (in Article IY)
for ten years that of frequenting the interior seas, gulfs,
harbours, and creeks upon the coast for the purpose of
fishing and trading. At the expiration of ten years
Kussia refused to renew this last provision, and it never
was formally renewed. But, for nearly fifty years at
least, American vessels have been engaged in taking
whales in Behring Sea without being disturbed by the
Bussian Government. Long before the cession of Alaska
to us, hundreds of our whaling vessels annually visited
the Arctic Ocean and Behring Sea, and brought home rich
cargoes. It would seem, therefore, that Bussia regarded
Behring Sea as a part of the Pacific Ocean, and not as one
of the ' interior seas,' access to which was forbidden by the
termination of the IYth Article of the Treaty." f
!                                                      76n
Sir   R.  Phillimore,  in   the   2nd   edition   of Phillimire, | Tnter-
I Commentaries upon International Law," vol. i, gndTdftiot^'ol. i,
p. 241, remarks :— P- 241 [3rd edition,
p. 290].
" In 1822 Kussia laid claim to a sovereignty over the
Bacific Ocean north of the 51st degree of latitude; but
the Government of the United States of America resisted
this claim as contrary to the principles of international
law."
Mr. W. E. Hall, " Principles of International Hall, I Inter-
Law,"   Clarendon   Press, Oxford, 3rd   edition, "at,ionAI.Law'"1J-
' 3 7?  3rd edition, p. 147.
1890, p. 147 :—
"Note.—A new claim subsequently sprung up in the
Pacific, but it was abandoned in a very short time. The
Russian Government pretended to be Sovereign over the
Pacific north of the 51st degree of latitude, and published
an Ukase in 1821 prohibiting foreign vessels from
approaching within 100 Italian miles of the coasts and
islands bordering upon or included in that portion of the
ocean. This pretension was resisted by the United States
and Great Britain, and was wholly given up by Conventions between the former Powers and Kussia in 1824
and 1825."
The arguments contained in the foregoing
chapter establish:—
That the Treaty of 1825 between Great Britain
and Russia applied, and was intended to apply,
to all the non-territorial waters of the North
Pacific, extending from Behring Strait upon
the north to latitude 51° upon the coast of
America, and to latitude 45° 50' upon the coast
of Asia (being the whole extent of sea covered
by the Ukase).
That at no stage of the controversy was any
distinction drawn, or intended to be drawn,
between the seas to the north and the seas to the
south of the Aleutian Islands.
That Behring Sea was included in the phrase
1 Pacific Ocean" as used in the Treaty of
1825.
That the expression 1 north-west coast of
America," or, in its abbreviated form, "northwest coast," included the coast up to Behring
Strait. 77
Chapter IV.
Head (D).—The User of the Waters in question
from 1821 to 1867.
User of Waters from 1821 to 1867. As regards the user of the waters in question,
it has been shown that down to the year 1821
Russia made no attempt in practice to assert or
exercise jurisdiction over foreign vessels when
beyond the ordinary territorial jurisdiction.
With the exception of the incidents connected
with the Ukase of 1821, already referred to in
Chapter II, the same is true of the period
between 1821 and 1867.
Historical Outline. . To resume the historical statement in chrono
logical order:—
1821. Alaska, pp. 534, In the year 1821 Mouravief was sent out to
535-                    take control at Sitka under the new Charter.
He assumed the name of " Governor " in place
of that of " Chief Manager," which had previously been employed.
North-west Coast,       The names  of  seven trading-vessels  on  the
vol. i, pp. 340,341. north-west coast are known for this year.*
1822. Alaska, pp. 537-        In 1822, the Russian vessel i Rurik" arrived
539- at Sitka from Kronstadt with supplies.    About
the close of the year the Russian sloop-of-war
I Apollon | also arrived, with instructions that all
trade with foreigners should cease. This interdict
remained in force for two years, and seriously
interfered with   the   profits of   the  Company.
Ibid., p. 540. In this   year   also   the   Russian  sloops-of-war
1 Kreisser" and 1 Ladoga " arrived to enforce
the provisions of the Ukase, and remained for
two years.
Ibid, p. 546. An exploratory   expedition, which remained
absent two years, was dispatched from Sitka to
the eastern shore of Behring Sea.
1823 Ibid., pp. 536-539.     In 1823, a famine was feared at Sitka and on
the coast, and the 1 Rurik " and an American
vessel which had been purchased, were sent
to California and the Sandwich Islands for
supplies.
Referring to this incident, Bancroft writes :—
Ibid., p, 538. " As in this instance, the Colonies had frequently been
relieved from want by trade with foreigners; and, indeed,
* See note on p. 19 referring to trading-vessels on the northwest coast.    None of these trading- vessels were Russian.
■*"■ ?'---:
78
this was too often the only means of averting starvation.
Even between 1818 and 1822, when supplies were comparatively abundant, goods, consisting mainly of provisions,
were obtained by traffic with American and English
coasters to the value of more than 300,000 roubles in
scrip."
In the same year, the  " Rob   Roy,"   from North-west Coast,
Boston, is known to have been on the north-west       | p'
coast.
In 1824, Kotzebue, in the § Predpriatie," called Alaska, p. 540. 1824.
at Sitka.    About this time the shareholders of Ibid., p. 541.
the   Russian   Company protested   against   the
interdict of foreign trade, and Sitka was, in consequence, again opened to such trade.
Acting under the authority of the Ukase of Dall's Alaska,
1821, the United States' brig c: Pearl," when on pp' 233' 234,
a voyage from Boston to Sitka, had been in the
year 1822 seized by the Russian sloop "Apollon."
Count Nesselrode, in   his   despatch  to   Count
Lieven (26th June, 1823), when communicating See Appendix,
the suspension of the Ukase of 1821, says the ^29. **  I
advices to this effect were sent from St. Petersburg in August of 1823, and that the officer of
the "Apollon" could not receive them before
September 1824, and that, therefore, he could
not have known of them at the " time of the
occurrence   of   the   incident   reported   by   the
American press."
In   1824,   the   "Pearl"   was  released,   and As to the" Pearl,"
compensation was paid for her arrest and deten- ^ ^  c?nnins t0
tion. April 23, 1823.
In the same year four vessels are recorded paPtej 1111111
as having visited the north-west coast, and some North-west Coast,
of them are known to have repeated their visits       1p*     *
in later years.
In 1825, the "Elena" arrived at Sitka with Alaska, i 539. 1825.
supplies.     Kotzebue    also    again    called    at
Sitka.
Remonstrances were addressed by the Russian- ibid, p. 544.
American Company to the Russian Government
as to the effect of the Conventions of 1824 and
1825.   The name of but one vessel trading on
the north-west coast has been preserved in this North-we* t Coast,
vol. i, p. 34L
year. 'F
In 1826, Chistiakof wrote to the Directors of Alaska, p. 582. 1826.
the Company, asking that an experienced whaling
master should be sent out.    In July of this year Beechey's Voyage
Her Majesty's ship "Blossom," under Captain t° the Pacific and
"       , ■*• Uehnng Strait,
Beechey, sailed through Behring Sea into the London, 1831,
Arctic Ocean* vo1-i!' ?• 33*'
J 79
1827- Alaska, p. 546. In 1827, Liitke, sent by the Russian Govern-
ment,  arrived   at Sitka,  and   thereafter   made
explorations   in the Aleutian   Islands and   in
Behring Sea.
North-west Coast,      Two vessels only of the trading fleet on the
vol. i, p. 341. ... , ,   . . °
north-west   coast are in this year   known by
name.
1828. Alaska, p. 546.1 In 1828, two vessels belonging to Liitke's ex-
pedition carried on surveys in Behring Sea.    The
trading-vessel " Eliza " was at Sitka in this year.
Letter of Brewer to     In the years 1826, 1827, and 1828 the " Chin-
DocT^'oth ConffX'  °tie^a'" a United States' brig, Thomas  Meek,
2nd Sess., No. 177, master, was trading between Sitka and China,
p. 85. r
iqoq .,  ,       ,.„_ In 1829, a Russian vessel was sent from Sitka
J-o^y. Alaska, p. 56o.
to Chile to trade.    Some explorations were also
made by the Russians in the inland country.
183°- Ibid., p, 547. In 1830, explorations were made in Behring
North-west Coast,   Sea by Etholen.    Wrangell relieved Chistiakof
'p in   command.     The   names   of   four   or   five
foreign   vessels    trading    on    the   north-west
coast in this  and the   following year are recorded.
1832 or 1833.        Alaska, PP. 548-        In 1832 or 1833, Tebenkof established a post
552-. ,
near the mouth of the Yukon, and explorations
were conducted inland.
1833- Ibid., p. 555. In 1833, the Hudson's Bay Company sent the
British vessel | Dryad " to form an Establishment
at the mouth of the Stikine, but Wrangell, having
heard of the enterprise, occupied the place in
advance, and turned the vessel back. Damages to
the amount of 20,000Z. were claimed through the
See post, p. 83. British, Government from Russia. This will be
referred to later.
Ibid., p. 583. A United States' whaling master, under a five-
years' Contract with the Russian Company,
arrived at Sitka, but achieved little.
1834- North-west Coast,       in 1834, the name of but one of the foreign
vol. 5, p. 341.
vessels   trading   on   the   north-west    coast   is
recorded.
1836, Ibid-> PP-341>342-     In 1836, the "Eliza " was again at Sitka, and
three foreign trading-vessels are recorded to have
visited the Alaskan coast.
The case of the " Loriot"
Caseofthe"Loriot.» In  tne same  year tne  ^ted   States'  bring
"Loriot" sailed from the Sandwich Islands for
the north-west coast of America for the purpose
[248] H ^p
80
of   procuring   provisions,  and  also   Indians   to Case of the" Loriot.'
hunt for sea-otters on the coast.    When in the
Harbour of  Tuckessan, latitude 54° 55' north,
and longitude 132° 30' west, a Russian armed
brig    ordered   the  "Loriot"   to   leave.     This
action was. based   on   the   expiration   of   the
period named in the IVth Article of the Treaty,
whereby, for ten years only, liberty to touch and
trade at Russian Establishments on the coast was
granted.
The United States protested against the inter- 50th Cong., 2nd
ference with the "Loriot," characterizing it as e^'doc No'106
an "outrage," and the following is an extract p. 233.
from instructions which were sent by the United ^ee 4pPen(1'x,*
^ vol. n, Part 1!,
States'  Secretary  of  State  to  Mr.  Dallas,  the No. 6.
v f
Minister at St. Petersburg, under date 4th May,
1837 :—
" On the other hand, should there prove to be no
Eussian Establishments at the places mentioned, this outrage on the ' Loriot' assumes a still graver aspect. It is a
violation of the right of the citizens of the United States,
immemorially exercised, and secured to them as well by
the law of nations as by the stipulations of the 1st Article
of the Convention of 1824, to fish in those seas, and to
resort to the coast, for the prosecution of their lawful
commerce upon points not already occupied. As such it
is the President's wish that you should remonstrate, in an
earnest but respectful tone, against this groundless assumption of the Eussian Fur Company, and claim from His
Imperial Majesty's Government for the owners of the brig
' Loriot,' for their losses and for the damages they have
sustained, such indemnification as may, on an investigation
of the case, be found to he justly due to them."
Mr. Dallas  subsequently wrote that he was 50th Cong., 2nd
led to believe that Russian Establishments had Ex^Doe^No 106
been made  at the  places mentioned.    Never- p- 234.
theless,  the United  States   contended   that at See Appendix
. . vol. n, Part II,
the expiration of the IVth Article, the law of No. 7.
nations practically gave United States' ships the Ibid-> P- 236-
privileges therein mentioned. f „ pP,etrVj
Mr. Dallas (16th August, 1837) wrote to the No. 8.
Secretary of^State:—
" The 1st Article asserts fpr both countries general and ibid, p, 234.
permanent rights of navigation, fishing, and trading with See Appendix,
the natives, upon points not occupied by either, uorth or v°l- M ^art  *'
south of the agreed parallel of latitude."
Mr. Eorsyth, Secretary of State for the United ibid., p. 236.
States, writing to Mr. Dallas on the 3rd Novem- M -f&rt 1
ber, 18B7, and referring to the 1st Article of the No, 9 81
Case of the " Loriot." Convention of  April 1824 between the United
States and Russia, said:—
I The 1st Article of that instrument is only declaratory
of a right which the parties to it possessed under the law
of nations without conventional stipulations, to wit, to
navigate and fish in the ocean upon an unoccupied coast,
and to resort to such coast for the purpose of trading with
the natives.
" The United States, in agreeing not to form new establishments to the north of latitude of 54° 40' N., made no
acknowledgment of the right of Eussia to the territory
above that line."
And, again:—
I It cannot follow that the United States ever intended
to abandon the just right acknowledged by the 1st Article
to belong to them under the law of nations—to frequent
any part of the unoccupied coast of North America for the
purpose of fishing or trading with the natives. All that
the Convention admits is an inference of the right of
Eussia to acquire possession by settlement north of
54° 40' N. Until that actual possession is taken, the 1st
Article of the Convention acknowledges the right of the
United States to fish and trade as prior to its negotiations."
50th Cong., 2nd ^     In his despatch of the 23rd February, 1838,
Sess., Senate^ Count Nesselrode, the Russian Eoreign Minister,
Ex. Doc. Mo, 106, ° 7
p. 238. wrote to Mr. Dallas :—
See Appendix,
vol. ii, Part II, " It is true, indeed, the 1st Article of the Convention of
1824, to which the proprietors of the 'Loriot' appeal,
secures to the citizens of the United States entire liberty
of navigation in the Pacific Ocean, as well as the right of
landing without disturbance upon all points on the northwest coast of America, not already occupied, and to trade
with the natives."
Again, Mr. Dallas, in a despatch to Count
Nesselrode, dated the 5th (17th) March, 1838,
interpreted Article I of the Convention as being
applicable to any part of the Pacific Ocean. He
wrote:—
Ibid.      241 " • • • • ^e right °^ ^he citizens of the United States
See Appendix to navigate the Pacific Ocean, and their right to trade with
vol. ii, Part II,        the aboriginal natives of the north-west coast of America,
■»T. .   •. O '
without the jurisdiction of other nations, are rights which
constituted a part of their independence as soon as they
declared it.   They are rights founded in the law of nations
enjoyed in common with all other independent sovereignties, and incapable of being abridged or extinguished,
[248] M 2
No. 11. 82
except -with their own consent.    It is unknown to the Case of the " Loriot. •
Undersigned that they have voluntarily conceded these
rights, or either of them, at any time, through the agency
of their Government, by Treaty or other form of obligation,
iu favour of any community.
" There is first a mutual and permanent agreement
declaratory of their respective rights, without disturbance
or restraint, to navigate and fish in any part of the Pacific
Oceau, and to resort to its coasts upon points which may
not already have been occupied, in order to trade with
the natives. These rights pre-existed in each, and were
not fresh liberties resulting from the stipulation. To navigate, 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 the contracting
sovereignties should not resort to points where establishments existed without obtaining permission; that no
future establishments should be formed by one party north,
nor by the other party south, of 54° 40' north latitude;
but that, nevertheless, both might, for a term of ten years,
without regard to whether an establishment existed or not,
without obtaining permission, without any hindrance
whatever, frequent the interior seas, gulfs, harbours, and
creeks, to fish and trade with the natives. This short
analysis leaves, on the question at issue, no room for construction.
"The Undersigned submits that in no sense can the
fourth Article be understood as implying an acknowledgment, on the part of the United States, of the right of
Eussia to the possession of the coast above the latitude of
54° 40' north."
In   transmitting  the papers relative to the President
I Loriot I   to  Congress,   the President   of   the     e December 3"
United States observed ;— 1838, State Papers,
by Hertslet,
I The correspondence herewith communicated, will show '
the grounds upon which we contend that the citizens of
the United States have, independent of the provisions of
the Convention of 1824, a right to trade with the natives
upon the coast in question at unoccupied places, liable,
however, it is admitted, to be at any time extinguished by
the creation, of Eussian establishments at such points.
This right is denied by the Eussian Government, which
asserts that, by the operation of the Treaty of 1824, each
party agreed to waive the general right to land on the
vacant coasts on the respective sides of the degree of
latitude referred to, and accepted, in lieu thereof, the
mutual privileges mentioned in Article IV. The capital
and tonnage employed by our citizens in their trade with
the north-west coast of America will, perhaps, on adverting Q
S
to the official statements of the commerce and navigation
of the United States for [the last few years, be deemed too
inconsiderable in amount to attract much attention ; yet
the subject may, in other respects, deserve the careful
consideration of Congress."
Historical outline continued. To return again to the chronological order of
events:—
1837. North-west Coast,       In 1837, one foreign trading-vesssel is named as
'° " 'p"      ' having been on the north-west coast.
1838. Alaska, pp. 552, In 1838, further explorations were undertaken
in the north by Chernof and Malakhof. Three
foreign trading-vessels are noted as having been
North-west Coast, on the north-west coast in this year, and one is
known to have visited Alaskan waters.
vol. i, p. 342.
1839. Alaska, pp. 556, In  1839,  a  Commission met in London to
arrange the dispute between the Hudson's Bay
and Russian-American Companies, arising out of
the interference by Russian officials with the
British vessel P Dryad." The claim for damages
by the former Company was waived, on condition that the latter should grant a lease of all
their continental territory northward to Cape
Spencer, Cross Sound (about latitude 58°), on a
fixed rental. This arrangement was for ten
years, but was renewed and actually continued
in force for twenty-eight years.
1840. Ibid., p. P57. In   1840, the  British  flag was  hoisted  and
saluted at the mouth of the Stikine, the Hudson's
Bay Company taking possession.     A post was
also established by the Company at Taku Inlet.
Ibid., p. 5S3, At this time whalers were just beginning to
Tikhmenieff. t t   Behring Sea;   from  1840  to 1842  a
oee Appendix, o 3
vol. i, No. 5. large part of the fleet was engaged in whaling
on the "Kadiak grounds." Writing in 1842,
Etholen says, that for some time he had been
constantly receiving reports from various.parts
of the Colony of the appearance of American
whalers in the neighbourhood of the shores.
Alaska, p. 559. In the same year Etholen relieved Kuprianof
as Governor at Sitka.
1841. Ibid., p. 5S8. In 1841, the Charter of the Russian-American
Company ]was renewed for a further term of
twenty years. Etholen reported the presence of
fifty foreign whalers in Behring Sea.
1842. Ibid., p. 583. In 1842, according to Etholen, thirty foreign
whalers were in Behring Sea, He asks the
Russian Government to send cruizers to preserve
this sea as a mare clausum.
His efforts were, however, unsuccessful,   the
■n 84
Minister for Eoreign Affairs replying that the
Treaty between Russia and the United States
gave to American citizens the right to engagejn
fishing over the whole extent of the Pacific
Ocean.
In the same year, inland explorations by Alaska, pp. 553,
Zagoskin, which continued till 1844, began.
Sir George Simpson, Governor of the Hudson's Ibid-> PP- ^58-560.
Bay Company, reached the Stikine post just in
time to prevent an Indian uprising. He also
visited the Russian Establishment at Sitka and
completed an arrangement between the Companies to interdict trade in spirits on the coast.
About this time the Russian-American Company became alarmed at the danger to their fur
trade. Every effort was, therefore, put forward
by the Company and the Governors to induce the
Eoreign Office of the Russian Government to
drive off these whalers from the coasts, and by
excluding them for a great distance from shore
prevent trespasses on shore and the traffic in
furs.
In 1843, explorations were carried out by the Ibid., p. 676. 1843.
Russians on the Sustchina and Copper Rivers.
The whalers, from 1843 to  1850, landed  on Ibid., pp. 583, 58^.
the Aleutian  and  Kurile   Islands,   committing
depredations.     United   States'  captains openly
carried on a traffic in furs with the natives.
Tikhmenieff writes :—
* From 1843 to 1850 there were constant complaints by Tikhmenieff.
the Company of the increasing boldness of the whalers."        ef • ^   .~ '
In   1846 the   Governor-General   of   Eastern 1846.
Siberia asked that foreign whalers should not be
allowed to come within 40 Italian miles of the
Russian shores.
Tikhmenieff thus describes the result of these
representations:—
" The exact words of the letter from the Foreign Office
are as follows:—
"' The fixing of a line at sea within which foreign
vessels should be prohibited from whaling off our shores
would not be in acccordance with the spirit of the Convention of 1824, and would be contrary to the provisions of
our Convention of 1825 with Great Britain. Moreover
the adoption of such a measure, without preliminary
negotiation and arrangement with the other powers, might
lead to protests, since no clear and uniform agreement has
yet been arrived at among nations in regard to the limit of
jurisdiction at sea.' " In 1847 a representation from Governor Tebenkof in
regard to new aggressions on the part of the whalers gave
rise to further correspondence. Some time before, in
June 1846, the Governor-General of Eastern Siberia had
expressed his opinion that, in order to limit the whaling
operations of foreigners, it would be fair to forbid them to
come within 40 Italian miles of our shores, the ports of
Petropaulovsk and Okhotsk to be excluded, and a payment
of 100 silver roubles to be demanded at those ports from
every vessel for the right of whaling. He recommended
that a ship of war should be employed as a cruizer to
watch foreign vessels. The Foreign Office expressly
stated as follows, in reply:—
I' We have no right to exclude foreign ships from that
part of the Great Ocean which separates the eastern shore
of Siberia from the north-western shore of America, or to
make the payment of a sum of money a condition to
allowing them to take whales.'
" The Foreign Office were of opinion that the fixing of
the line referred to above would reopen the discussions
formerly carried on between England and France on the
subject. The limit of a canon-shot, that is about
3 Italian miles, would alone give rise to no dispute. The
Foreign Office observed, in conclusion, that no Power had
yet succeeded in limiting the freedom of fishing in open
seas, and that such pretentions had never been recognized
by the other Powers. They were confident that the fitting
out of colonial cruizers would put an end to all difficulties;
there had not yet been time to test the efficacy of this
measure."
1347, Tikhmenieff. In 1847, traific in fur-seal skins was carried on
vof BRI        hJ a United States' whaler at Behring Island.
1848. In  1848, foreign whaling vessels entered the
Arctic Ocean by way of Behring Straits for the
first time.
1849 Alaska, p. 584. In 1849, the whaling fleet in the Arctic and
northern part of the North Pacific numbered
299 vessels. Two-thirds of these are said to
have been United States' vessels, but others
were Erench and English, the latter chiefly from
Australasia. A Russian Whaling Company for
the North Pacific was formed at Abo, in Finland,
with special privileges. This Company sent out
six vessels in all.
1850. Ibid., p. 572. In    1850,    the    British    vessels    " Herald,"
I Plover," and " Investigator," all dispatched in
search of Sir John Eranklin's expedition, met in
Kotzebue Sound, after passing through Behring
Strait.
Ibid., p( 584. In the same year an armed Russian corvette
was ordered to cruize in the Pacific, and in this
year it is estimated that 300, and in later years ^p=^
86
as many as 500 foreign whalers visited the Arctic
and neighbouring waters.
Tebenkof's administration came to an end in Alaska, p. 585.
this year.
In 1851, Nulato, a fort on the Yukon some Ibid., p. 572. 1851.
way inland, was surprised by Indians and the
inmates butchered, including Lieutenant Barnard,
an English officer of Her Maiesty's ship " Enter- 1 Encyclopedia
° . ...        Bntannica,'
prise," one of the ships engaged in the expedition vol. xix, p. 321.
in search of Sir John Eranklin.   The " Enterprise "
passed Behring  Strait   on  the 6th May, 1851.
The United States' whaling fleet is said to have
been as numerous as in 1849.
The interval between the close of Tebenkof's A,aska> 1 586-
administration and   the beginning  of   that  of
Voievodsky was filled by the temporary appointment of Rosenburg and Rudakof.
In 1852, buildings at the Hot Springs, near Ibid-> P- 574- 1852-
Sitka, were destroyed by the Indians.
The value  of  catch of the whaling fleet in Ibld,» P- 669-
the North Pacific in this  year is estimated  at
14,000,000   dollars.    After   1852   the   whaling
industry gradually decreased.
In 1853, war impending between England and Ibil*> P- 5?°- 1853.
Russia, the Hudson's Bay and Russian-American
Companies influenced their respective Governments to prohibit hostilities on the north-west
coast of America.
In the same year the Russian-American Com- Tikhmenieff.
pany again specially requested the Government to voj ; IsfoV*'
prohibit whalers from entering Okhotsk Sea, but
without success. Instructions were, however,
issued to Russian cruizers to prevent whalers from
entering bays or gulfs, or from coming within
3 Italian miles of the shores.
Tikhmenieff gives the following details :—
Some time before the Company had written to
the Eoreign Office (22nd March, 1853) :—
1 " If it is found impracticable entirely to prohibit for a Ibid,
time fishing by foreigners in the Sea of Okhotsk, as an
inland sea, would it not, at any rate, be possible officially
to prohibit whalers from coming close to our shores and
whaling in the bays and among the islands, detaching
one of the cruizers of the Kanitchatka flotilla for this
service ?"
The instructions to cruizers were approved on
the 9th December, 1853. The cruizers were to
see that no whalers entered the bays or gulfs, 1854.
Alaska, p. 584
Ibid., p. 585.
1855.
Ibid., p. 585.
1856.
Jbid., p. 584.
1857.
50th Cong., 2nd
Sess. Sen., Ex.
Doc. No. 106,
p. 251, Seward to
Clay, February 24,
1868.
See Appendix,
vol. ii, Part II,
No. 12.
See p. 114 of Case.
1859.
Alaska, p. 592.
1860.
Ibid., pp. 578,570.
87
or came within 3 Italian miles of the shores
of Russian America (north of 54° 41'), the
Peninsula of Kamtchatka, Siberia, the Kadjak
Archipelago, the Aleutian Islands, the Pribyloff
and Commander Islands, and the others in
Behring Sea, the Kuriles, Sakhalin, the Shantar
Islands, and the others in the Sea of Okhotsk
to the north of 46° 30' north. The cruizers
were instructed constantly to keep in view
that:—
| Our Government not only does not wish to prohibit
or put obstacles in the way of whaling by foreigners in the
northern part of the Pacific Ocean, but allows foreigners
to take whales in the Sea of Okhotsk, which, as stated in
these instructions, is, from its geographical position, a
Bussian inland sea." (These words are in italics in the
original.)
In 1854, 525 foreign whalers were in Behring
Sea and its vicinity. In the same year
Voievodsky was elected Governor for the Company.
In 1855, the Abo Whaling Company went into
liquidation.
In 1856, 366 foreign whalers were reported as
in Behring Sea and vicinity.
Bancroft reports that in the year 1857 :—
Ibid., p. 668. «Of the 600 or 700 United States' whalers that were
fitted out in 1857, at least one-half, including most of the
larger vessels, were engaged in the North Pacific . . .
including, of course, Behring Sea."
Captain Manuel Enos, of the United States'
barque | Java," stated in 1867 that he had
whaled unmolested in the bays of Okhotsk Sea
for seventeen years previously.
In 1859, the cession of Alaska to the United
States began to be discussed privately.
In 1860, the Russian-American Company applied for a new Charter for twenty years, to date
from the 1st January, 1862, and Reports as to
the condition of the Company were called for by
the Government.
Ibid., p. 580, Tne   Russian   population   of   the   American
Colonies   at   this   date,   apparently   including
native wives, numbered 784:   Creoles,   1,700;
native population estimated at over 7,000.
[248] N 88
In 1862, the value of the catch of the North Alaska, p. 669. 1862.
Pacific whaling fleet was estimated at 800,000
dollars.
In 1863, the United States' brig "Timandra" Fishery Industries 1863.
was  engaged in the cod fishery off  Saghalien jftheUnited
o o tf a states, sec. v,
Island,  Okhotsk  Sea.    In   succeeding years  a vol. i, p. 209.
number of vessels resorted to this sea for the cod
fishery.
In 1864, Maksutof took temporary charge for Alaska, p. 579. 1864.
the Russian Government of the Company's
affairs.
In 1865* negotiations between  the "Eussian Ibid. 1865.
Company and the Government continued, but
tefms such as the Company would accept could
not be arrived at.
In the spring of this year, the " North Pacific Fishery Industries
cod-fish  fleet"  was   organized.     It   comprised.states, sec. v,
seven vessels, all of which are believed to have vo1,1 P- 21°-
fished in Okhotsk Sea.
In 1866, the Russian Governmeut still con- Alaska> P- 58°- 1866<
templated renewing the Company's Charter on
certain terms. A Californian Company entered
into treaty for a lease of the "coast strip"
of Alaska, then held by the Hudson's Bay
Company.
Eighteen vessels were engaged in the Okhotsk Fishery Industries
ci-iy*! it- •-.!      of the United
Sea cod fishery.   The | Porpoise " initiated the States, sec. v,
fishery in the Shumagan Group, Alaska, finding v0 ' Ip'    °-
there "safe aarboufs, ftiels water, and  other
facilities for prosecuting this business."    Several
British   Columbian   schoonefs   also  fished   in
Alaskan waters.
In 1867, Alaska was sold by Russia to the
United States for 7,200,000 dollars.
Nineteen United States' vessels fished fof cod had., p. 210.
in Okhotsk Sea or in Alaskan waters, the Shumagan fleet consisting of three vessels.    Tte total
catch amounted to nearly 1,000,000 fish.
In  1867,  before the  cession  of Alaska, the " Philadelphia 1867.
whaling interest of the United States in these Gazette," Friday,
seas   are thus   referred   to   by  a Philadelphia ^-P"112>18G7-
J 1 Ex. Doc. No. 177,
paper :— g|| Sess.,
"Our whaling interests are now heaviest in the Seas
adjacent to Eussian-America, both above and below
Behring Strait."
40th Cong.,, p. 89.
•*&
The value of the catch of the North Pacific Alaska, p. 669-.
whaling fleet was estimated at 3,200,000 dollars.
In 1868, the lease of the " coast strip" of Ibid., | 593. 1868,
Alaska to 'the Hudson's  Bay Company by the
Russian-American Company expired, 89
Whaling industry.
Statistics of United States'  Whaling Industry.
(NortJi Pacific Grownd§, iftctyding Okhotsk #n$
Behring Seas and Arctic Ocean.)
" Fishery Industries The growth and decline of the whaling industry
State?," sec. 5, during the years discussed in this chapter may
vol. u, pp. 84,85. \)& conveniently illustrated by the following
Table, which shows the number of United
States' vessels in the North Pacific whaling fleet
from 1841 to 1867. It is taken from '-'The
Fishery Industries of the United States," 1887/
section 5, vol. ii, pp. 84-85.
(This list does not include whalers of other
nationalities.)
Year.
Number of Vessels.
1841
..     . *
20
1842
..     ..
29
1843
..     ..
108
1844
•.     • •
170
1845
..     .
263
1846
..     ..
292
1847
..     ..
177
1848
..     ..
159
1849
..     . •
155
1850
..     ..
144
1851
..     ..
138
1852
. .          . a
278
1853
a .             . .
238
1854
. .         . .
232
1855
. .            a .
217
1856
« »            . .
178
1857
. «           * .
143
1858
. .           .a
196
1859
1 .            • .
176
1860
. .            . .
121
1861
. .           . .
76
1862
. a           a •
32
1863
» a            .a
42
1864
• .            *a
68
1865
• .            .a
59
1866
a •            a •
95
1867
eo
Walrus hunting.
Ibid., p. 314.
The whaling-vessels frequenting Behring Sea
and the Arctic Ocean, from the first, engaged to
a certain extent in walrus hunting, and about
1860 such hunting began to be an important
secondary object with the whalers. In subsequent years many thousand barrels of walrus
oil and great quantities of skins and ivory were
secured.
[248]
N 2 90
The facts stated in this chapter establish:—
That from the year 1821 to the year 1867 the
rights of navigation and fishing in the waters of
Behring Sea were freely exercised by the vessels
of the' United States, Great Britain, and other
foreign nations, and were recognized as existing
by Russia.
That the waters of Behring Sea were treated by
Russia as being subject to the provisions of the
Treaties of 1824 and 1825. 91
Chapter V
The Cession of 1867 and what passed by it.
Cession of 1867 and what passed by.
it to the United States.
The fourth question or point in Article VI of
the Treaty is as follows :—
Did not all the rights of Russia as to jurisdiction
and as to the seal fisheries in Behring Sea east of the
water boundary, in the Treaty between the United
States and Russia of the SOth March, 1867, pass
unimpaired to the United States under that Treaty ?
This question may conveniently be treated
under the following heads, as proposed on
p. 10 :—
(E.) What rights passed to the United States
under the Treaty of the 30th March, 1867.
(F.) The Action of the United Slates and
Russia from 1867 to 1886.
(G.) The contentions of the United States since
the year 1886.
Head  (E).— What rights passed to  the   United
States under the Treaty of March 30, 1867 ?
Text of Treaty of Cession, 1867.
The following is the text  of the Treaty of
United States'
Statutes at Large,
pp. 539-543.
For English
version, see
Appendix, vol. ii,
Part III, No. 3.
Cession of Alaska as signed:—
"Sa Majeste" l'Empereur de Toutes les Pussies et les
]£tats-Unis d'Amerique, d^sirant raffermir, s'il est possible,
la bonne intelligence qui existe entre eux, ont nommi, a
cet effet, pour leurs plenipotentiaires, savoir:
" Sa Majeste" l'Empereur de Toutes les Eussies, le Con-
seiller Prive' fidouard de Stoeckl, son Envoye" Extraordinaire et Ministre Plehipotentiaire aux Etats-Unis; et
" Le President des ^tats-Unis le Sieur William H.
Seward, Secretaire d'Etat;
"Lesquels, apres avoir ^change" leurs pleins pouvoirs,
trouve's en bonne et due forme, ont arrets et sign6 les
articles suivants:— 92
ARTICLE I. Treaty of 1867.
| Sa Majeste" l'Empereur de Toutes les Bussies s'engage.
par cette convention, a ce'der aux fitats-Unis, immMiate-
ment apres l'^change cles ratifications, tout le territoire
avec droit de souverainete" actuellement poss£de" par Sa
Majesty sur le epntinent d'Am^riqu®) ainsi que les lies
contigues, le dit territoire 6tant compris dans les limites
gt5ogi'apb,mpes ci-des^p,p§ Jndiquees, sayoir: la limite
orientale est la ligne de demarcation entre les possessions
russes et britanniques dans l'Amerique du Nord, ainsi
qu'elle est (Stablie par la convention conclue entre la
Eussie et la G-raride-Bretagne, le 16 (28) EeVrier, 1825, et
d^finie dans les termes suivants des articles III et IV de
la dite convention;—
"'A pastir du point le plus meridional de Pile dite
l&jftgg pi W&ie§> 1p°lu4 point se trgusre. s§pg le payall&le
du 54° 40' de latitude nord, et entre le 131me et le
133me degre" de longitude driest (meridien de Greenwich),
la dite ligne remontera au nord le long de la passe dite
Portland Channel, jusqu'au point de 1& terre ferme, pp. elle
atteint le 56me degre" de latitude nord; de ce dernier ppint,
la ligne de demarcation suivra la create des montagnes
eifcuifis. pajsallelement a la cote, jusqu'au point d'intersec-
tion du |£Ifle .4^8?^ de Ig^igitajcle Quest £m§me, ni^ridieri);
et finalement, du dit point d'intersection, la meme ligne
aneridienne du 14lRe degre" formera, dans son prplenge-
ment jusqu'a la Mer Glacials, Ja limite entre les posses
sions russes et britanniques sur le continent de TAmerique
nord-ouest.
I' II est entendu, par rapport a la ligne de demarcation
determinee dans l'article precedent:
|' 1°. Que l'lle dite Prince of Wales appartiendra toute
entiere a la Eussie:' (mais des ce jour, en] vertu de cette
cession, aux £tats-Unis).
"' 2°. Que, partout oil la crete des montagnes qui
s'^tendent dans une direction parallele a la cote, depuis
!§ 66Ifie degre" de latitude niptd/au point d?intgrsectio.n du
141"?? degrp' de iQRiifede oue^ij, sp trouveraijj a la di§{#nce
de plus de 10 lieues "marines de l'Ocean, la limite entre les
possessions britanniques et la lisiere de cote mentionn£e
ci-dessus comme devant appartenir a la Eussie' (c'est-a-
dire, la limite des possessions ce"ddes par cette convention) : ' sera forme's par une ligne parallele aux sinuosites
de la cote et qui ne pourra jamais en etre eloignee que de
10 lieues marines.'
" La limite occidentale des territories cddes passe par un
point au Detroit de Behring sous le parallele du soixante-
cinquieine degre" trente minutes de latitude nord, a son
intersection par le mdridien qui separe k distance egale les
lies Krusenstern ou Ignalook et l'lle Batmanoff ou
Noonarbook, et remonte en ligne dfrecte, sans limitation,
vers le nord, jusqu'a ce qu'elle se perde dans la Mer
Glaciale. Commencant au m§me point de depart, cette
limite occidentale suit de la un coursJ|presque sud-oueat, a
travers le Detroit de Behring et la Mer de Behring. de 93
Treaty of 1867 maniere a passer a distance egale entre le point nord-ouest
de l'lle Saint-Laurent et le pBinfc sud-est du Cap Chou-
kotski jusqu'au meridien cent soixante-douzieme de longitude ouest; de ce point, a partir de l'intersection de ce
mdridien, cette hmite suit une direction sud-ouest de
maniere a passer a distance egale entre File d'Attou et
l'lle Copper du groupe d'ilots .Itormandorski dans l'Ocean
Bacifique Septentrional, jusqu'au meridien de cent quatre-
vingt-treize degr^s de longittide Quest, de maniere a en-
claver, dans le territoire cdde, toutes les lies Aleoutes
situ^es a Test de ce meridien.
"ARTICLE II.
"Daiis le territoire b&d& par Particle precedent a la
Souverainete deS Etats-Uhis, Sont compfig le droit de pro--
priete sitf tous les terrains et places public^, terres inocctt-
pees, toutes les constructions publiques, foftiflcations,
casernes, et atltres edifices qui ne sont pas propria prifee
individuelle. U est, toutefois, etttendu et convettU que"
les egliSeS, coustruites par le gOuvefheiiient russe stir le
territoire cdde", resteront la propriete* des mehibfes de*
l'Eglise GreCque Oflentale te§idant datts ce territoire et
apparteftant a ce cttlte". Tous les archives, papiers, et
documents du gouvertlement, ayarlt trait au susdit terfi*
toire, 8t qui y sont inaintenant deposes', sefotlt places efitfe
les mains tie l'ageftt des EiatS-Uttis; mais" IBS Etats-Uhis
fourniront toujours. quand il y aura lieu, des copies
Mgalisees de ces documents au gouvernement russe, aux
officiera ou sujets russes qui pourront en faire la demande.
"ARTICLE III.
" II est reserve aux habitants du territoire cede le choix
de sarder lour nationalite" et de rentrer en Eussie dans
l'espace de trois ans; mais s'ils preferent rester dans ie
territoire cede, ils seront admis, a l'exception toutefois des
tribus sauvages, a jouir de tous les droits, a vantages, et
immunites des citoyens deS Etats-UhiS, et ils seront
maintenus et proteges dans le plein exercice de leur libefte\
droit de propriete, et religion. Les tribtis stuw&ggs sefofit
assujetties aux lois et reglements que les Etats-Uais
pourront adopter, de temps en temps, a Ft'gard des tribus
aborigehes de ce pays.
"ARTICLE IV.
"Sa Majeste l'Empereur de Toutes les Pussies nommera,
aussitot que possible, un agent ou aux agents charges de
remettre, formellement, a l'agent ou des agents nommcs
par les $tats-Unis, le territoire, la souverainete, les pro-
prietes, dependances, et appartenances ainsi cedees et de
dresser tout autre acte qui Sera necessaite a l'accoinplisse-*
ment de cette transaction. Mais la cession, avec le droit
de possession immediate, doit toutefois etre consider
complete et absolue a Pechange des ratifications, sans
attendre la remise formelle. 94
"ARTICLE V. Treaty of 1867.
"|Immediatement apres Pechange des ratifications de
cette convention, les fortifications et les postes militaires
qui se trouveront sur le territoire cede seront remis a
Pagent des Etats-Unis, et les troupes russes qui sont
stationnees dans le dit territoire seront retirees dans un
ak
terme   praticable,   et   qui   puisse   convenir   aux   deux
parties.
"ARTICLE VI.
" En consideration de la susdite cession, les fitats-Unis
s'engagent a payer a la tresorerie a Washington, dans le
terme de dix mois apres Pechange des ratifications de cette
convention, sept millions deux cent mille dollars en or, au
representant diplomatique ou tout autre agent de Sa
Majeste l'Empereur de Toutes les Russies dement autorise"
a recevoir cette somme. La cession du territoire avec droit
de souverainete faite par cette convention, est declared
libre et degagde de toutes reservations, privileges, franchises, ou possessions par des compagnies russes ou tout
autre, legalement constituees ou autrement, ou par des
associations, sauf simplement les proprietaires possddant
des biens prives individuels, et la cession ainsi faite
transfere tous les droits, franchises, et privileges apparte-
nant actuellement a la Russie dans le dit territoire et ses
dependances.
"ARTICLE VII.
I Lorsque cette convention aura ^te dflment ratifi.ee
par Sa Majeste l'Empereur de Toutes les Russies d'une
part, et par le President des Etats-Unis, avec Pavis et le
consentement du senat, de Pautre, les ratifications en
seront ediangees a Washington dans le terme de trois
mois, .a compter du jour de la signature, ou plus t6t si
faire se peut.
"En foi de quoi, les pienipotentiaires respectifs ont
signe cette convention et y ont appose le sceau de leurs
armes.
" Fait a Washington, le 18 (30) jour de Mars, de Pan de
Notre Seigneur mille huit cent soixante-sept.
(L.S.)       | EDOUARD DE STOECKL.
(L.S.)       | WILLIAM H. SEWARD."
It may be remarked, in the first place, that Xhe Treaty discussed.
though the expression " water boundary I in the 	
question at the head  of this chapter may be
accepted as an approximate paraphrase of the
original expression employed in the Treaty, it is
not a correct translation of the words " la limite"
occidentale des territoires c6d£s," which are rendered in the official English translation, pub- unUed states'
lished by the United States' Government, " the Statutes at Large,
western limit within which the territories and pp. 539-543.'
dominion conveyed are contained." 95
No special dominion over waters
Character of the western geographical
limit, and reason for its adoption.
Aleutian Islands, &e.
It will be observed that in none of these
Articles is there a reference to any extraordinary
or special dominion over the waters of the Behring
Sea, nor, indeed, over any other portion of the
North Pacific Ocean. Even in the passage last
cited the word "dominion" appears to have no
equivalent in the original French version.
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 possessed
by Russia at the date of the cession.
In Article I the limits of a portion of the
Behring Sea are defined in order to show the
boundaries within which the territory ceded | sur
le Continent d'Amerique ainsi que les lies con-
tigues " is contained.
In Article VI, Russia again makes it emphatic
that she is conveying "les droits, franchises, et
privileges appartenant actuellement a la Russie
dans le dit Territoire et ses dependances."
The final clause of Article I distinctly negatives any implication 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 expressed in the apt
language of the Treaty—" de maniere d enclaver,
dans le dit territoire cede', toutes les lies Ale'ouics
situees d Vest de ce me'ridien."
Had the in! ention been to convev the waters
of the Behring Sea eastward of the western limit,
the.words "ainsi que les iles contigues" would
not have been used, but words would have been
chosen to indicate the area of the open sea conveyed, and it would have been unnecessary to
specifically mention the islands.
There was good reason for a line of demarcation of the character specified.
The islands in the Aleutian chain and in
Behring Sea were not well defined geographically,
and could therefore not be used for the accurate
delimitation of territory ceded.
In fact, even the term Aleutian Archipelago
was indefinite in its signification, often including
islands which were on the Asiatic side of Behring
Sea, and far from the Island of Attu, the westernmost island of the Aleutian group intended to be
ceded.
[218] O 96
Greenhow, for instance, writes :—
" The Aleutian Archipelago is considered by the Russians Character of the western geographica
as consisting of three groups of islands.   Nearest Aliaska limit, and reason for its adoption
are the Fox Islands, of which the largest are Unimak, Aleutian Islands, &c.
Unalashka, and Umnak; next to these are the Andreanowsky <( ]VEemoir Histo-
Islands, among whioh are Atscha,  Tonaga, and Kanaga, rical and Political,
with many smaller  islands, sometimes  called the Bat °f thf *0JTth""T6St
J Coast of North
Islands; the most western group is that first called the America, &c, by
Aleutian or Aleoutsky Islands, which are Attu, Mednoi (or Robert Greenhow,
n 7-7     7\       j t>     ■    >   7-7     ,„ /    n Translator and
Copper Island), and Peerings Island   (p. 5). Librarian to th
ne
Department of
In the " History of Oregon and California," &c, §Hb Senate'
J & ' '  26th Cong.,
by the same author, the Commander Islands 1st Sess. [174],
(Copper and Behring Islands) are again classed
among the Aleutian Islands, which arc said
to be included uuder two governmental districts by the Russians, the Commander Islands
belonging to the western of these districts (p. 38).
■Greenhow also states that the name "Aleutian
Islands " was first applied to Copper and Behring
Islands.
Indeed, in many Maps of various dates, the
title Aleutian Islands is so placed as impliedly to
include the Commander Islands, in some it is
restricted to a portion of the chain now recognized
by that name. Similar diversity in usage, with
frequent instances of the inclusion of the Commander Islands as a part of the Aleutian Islands,
is found in geographical works of various dates.
Erom this uncertainty in usage in respect to the
name of the Aleutian Islands (though these are
now commonly considered to end to the westward at Attu Island), it is obvious that, in
defining a general boundary between the Russian
and United States' possessions, it might have
given rise to grave subsequent doubts and
-questions to have stated merely that the whole
of the Aleutian Islands belonged to the United
States. Neither would this have covered the
case presented by the various scattered islands to
the north of the Aleutian chain proper, while
to have enumerated the various islands, Avhich
•often appeared and still sometimes appear on
•different Maps under alternative names, would
have been perplexing and unsatisfactory, from
the very great number of these to be found
in and about Behring Sea.
It was thus entirely natural to define conventionally a general division fixed by an
imaginary line so drawn as according to the best
published Maps to avoid touching any known
islands. 97
Imperfeet survey of Behring Sea. The occasion for a western limit of the kind
adopted is the more obvious, when it is borne
in mind that many of the islands in and about
Behring Sea are even at the present dav very
imperfectly surveyed, and more or less uncertain
in position.
Appendix No. 2 The following is from the  " Coast  Pilot of
Coast Survey,        Alaska" (United States' Coast Survey, 1869) :—
.^as,   '-^ogq   . "The following list of the geographical positions of
Part 1, p. 203. places, principally upon  the  coast of Alaska, has been
compiled chiefly from Eussian authorities. In its preparation the intention was to introduce all determinations of
position that appeared to have been made by actual observation, even when the localities are quite close. In the
Archipelago Alexander most of Vancouver's latitudes have
been introduced, although in such waters they are not of
great practical value.
" It is believed the latitudes are generally within
2 miles of the actual position, and in many cases where
several observers had determined them independently, the
errors may be less than a mile. The longitudes of harbours regularly visited by vessels of the Eussian-American
Company appear to be fairly determined, except toward
the western termination of the Aleutian chain, where large
discrepancies, reaching 30' of arc, are exhibited by the
comparison of results between Eussian authorities and
the United States' Exploring Expedition to the North
Pacific in 1855. Positions by different authorities are
given in some instances to show these discrepancies. The
comparison of latitudes and longitudes at Victoria, Fort
Simpson, Sitka, Chilkaht, Kadiak, and Unalaska, between
English and Eussian and the United States' coast survey
determinations, exhibit larger errors than might have been
expected.
" The uncertainties that exist in the geographical
position of many islands, headlands, straits, and reefs, the
great dissimilarity of outline and extent of recent examinations of some of the Western Aleutians, the want of
reliable data concerning the tides, currents, and winds, the
almost total want of detailed descriptions of headlands,,
reefs, bays, straits, &c, and the circumstantial testimony
of the Aleutian fishermen concerning islands visited by
them and not laid down upon the Charts, point to the
great necessity for an exhaustive geographical reconnaissance of the coast, as was done for the coast of the United
States between Mexico and British Columbia."
Even the latest United States' Chart of
what are now known as the Aleutian Islands
(No. 68, published in 1891) is based chiefly on
information obtained by the " North Pacific
Surveying Expedition " under Rogers, which
was carried out in the schooner "Eenimore
Cooper" in 1855. On sheet 1 of this Chart
(embracing the western part of the Aleutian
[248] 0 2 98
Islands)    such   notes   as   the    following   are
found:—
"The latest Eussian Charts place Bouldyr Island
10 miles due south of the position given here, which is
from a determination by Sumner's method.
"The low islands between Goroloi and Ioulakh, excepting the west point of Uualga, are from Russian
authorities, which, however, are widely discrepant."
Similarly, in the corresponding British Admiralty Chart (No. 1501), published in 1890, we
find the remark :—
'• Mostly from old and imperfect British, Russian, and
American surveys." •
On the Chart of Behring 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 Behring Sea
between Russian and United States' possessions
was thus intended and regarded merely as a
readv and definite mode of indicating which of
the numerous islands in a partially explored sea
should belong to either Power, is further shown
by a consideration of the northern portion of the
same line, which is the portion first defined in the
Treaty. Erom the initial point in Behring Strait,
which is carefully described, the "limite occidentale " of territories ceded to the United States
" remonte en ligne directe, sans limitation, vers
le nord, jusqu'a ce qu'elle se perd dans la Mer
Glaciale," or, in the United States' official translation "proceeds due north without limitation
into the same Erozen Ocean."
The
geographical limit" in this the northern
part of its length runs through 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
1819 had been frequented by whalers and walrus-
hunters of various nations, while no single fur-
seal has ever been found within it. It is
therefore very clear that the geographical limit
thus  projected towards the north could   have
Limit continued through Arctic Ocean. Debates in Congress on Cession of
Alaska.
Memorial of Legislature of Territory
of Washington.
United Sta'es'
Senate, Ex. Doc
No. 177,40th
Cong-., 2nd Sess.,
p. 132.
99
been intended only to define^ the ownership of
such islands, if any, as might subsequently be
discovered in this imperfectly explored ocean;
and when, therefore, the Treaty proceeded to
define the course of "the same western limit'*
(cette limite occidentale) from the initial point in
Behring Strait to the southward and westward
across Behring Sea, it is obvious that it continued
to possess the same character and value.
Debates in Congress on the Cession of Alaska,
1867, 1868.
Neither the Pebates in Congress—which preceded and resulted in the cession and its ratifica-
cation by the United States, nor the Treaty by
which it was carried into effect, nor the subsequent legislation by the United States, indicate
the transfer or acquisition of any exclusive or
extraordinary rights in Behring Sea. On the
contrary, they show that no such idea was then
conceived.
In answer to a Resolution of the House of
Representatives of the 19th December, 1867,
calling for all correspondence and information in
the possession of the Executive in regard to the
country proposed to be ceded by the Treaty, the
Memorial of the Legislature of "Washington
Territory (which was made the occasion for the
negotiation), together with Mr. Sumner's speech
in the Senate, were vamong other documents
transmitted.
This Memorial shows that United States'
citizens were already engaged in fishing from
Cortez Banks to Behring Strait, and that they
had never been under any apprehension of
interference with such fishing by Russia, but
desired to secure coast facilities, especially for
the purposes of curing fish and repairing vessels.
The Memorial is as follows : —
"To his Excellency Andrew JohnsoD, President of the
i United States.
" Your memorialists, the Legislative Assembly of Wash
ington Territory, beg leave to show that abundance of codfish, halibut, and salmon, of excellent quality, have been
found along the shores of the Eussian possessions. Your
memorialists respectfully request your excellency to
obtain such rights and privileges of the Government of
Eussia as will enable our fishing-vessels to visit the ports 100
and harbours of its possessions to the end that fuel, water,
and provisions may be easily obtained; that our sick and
disabled fishermen may obtain sanitary assistance, together
with the privilege of curing fish and repairing vessels in
need of repairs. Your memorialists further request that
the Treasury Department be instructed to forward to the
Collector of Customs of this Puget Sound district such
fishing licences, abstract journals, and log-books as will
enable our hardy fishermen to obtain the bounties now
provided and paid to the fishermen in the Atlantic States.
Your memorialists finally pray your Excellency to employ
such ships as may be spared from the Pacific naval fleet
in exploring and surveying the fishing banks known to
navigators to exist along the Pacific Coast from the Cortez
bank to Behring Straits.
| And, as in duty bound, your memorialists will ever pray.
"Passed the House of Eepresentatives, January 10,
1866.
(Signed)       " EDWAED ELDEIDGE, Speaker,
" House of Eepresentatives.
" Passed the Council, January 13,1866.
" HAEVEY K. HINES, President
ilofthe Council."
In the debate which took place in Congress Debates in Congress.
upon the subject of the acquisition of Alaska, the
value of the proposed purchase, and the nature
of the interests and property proposed to be
acquired, were fully discussed.
The debate was protracted, and many leading
Members spoke at length. To none of them did
it occur to suggest the existence of an exclusive
jurisdiction over any waters or fisheries distant
more than 3 miles from land.
On the contrary, Mr. Sumner, who had charge
of the measure in the Senate, after pointing
out that seals were to be found on the "rocks
and recesses" of the territory to be acquired,
which would therefore make the acquisition more
valuable, in touching upon the fisheries and
marine animals found at sea, admitted that they
were free to the world, contending, however, that
the possession of the coast would give advantages
to the United States' fishermen for the outfitting
of their vessels and the curing of their catch.
With reference to the whale fishery he remarked :—
" The Narwhal with his two long tusks of ivory, out of United States'
which was made the famous throne of the earlv Danish °fnate» kx. ^oc-
No. 177, 40th
kings, belongs to the Erozen Ocean; but he, too, strays Cong-. 2nd Sess.
into the straits below.   As no sea is now mare clausum  P- I83-
all these may be pursued by  a ship under any flag,    ^ j P^q" 6'X'
except directly on the  coast and within its territorial 101
Debate* in Congress. limit.   And yet it seems as if the possession of this coast
  as a commercial base must necessarily give to its people
peculiar advantages in this pursuit."
Mr. Washburn, of Wisconsin, said :—
United States' " But, Sir, there has never been a day since Vitus
Congressional Behring sighted  that  coast  until the present when the
Debates, from peopie 0f jji nations have not been allowed to fish there,
" Congressional        *    r
Globe," December   and to cure fish so far as they can be cured in a country
11, 1867,40th        where they have only from forty-five to sixty pleasant
Part I p. 138.        days in the whole year.   England, whose relations with
Eussia are far less friendly than ours, has a treaty with
that Government by which British subjects are allowed to
fish and cure fish on that coast.    Nay, more, she has a
treaty giving her subjects for ever the free navigation of
the rivers of Eussian America, and making Sitka a free
port to the commerce of Great Britain."
United States' In 1868 Mr. Eerriss spoke as follows :—
Congressional
Debates, from | That extensive fishing banks exist in these northern
I Congressinnal seag jg qu^e certain; but what exclusive title do we get
1868 40th Cong., to them ?    They are said to be far out at sea, and nowhere
2nd Sess., Part IV, within 3 marine leagues of the islands or main shore."
p. 3667.
Mr. Peters, in the course of his  speech, remarked :—
Ibid., p. 3668. 11 believe that all the evidence upon the subject proves
the proposition of Alaska's worthlessness to be true. Of
course, I would not deny that her cod fisheries, if she has
them, would be somewhat valuable; but it seems doubtful
if fish can find sun enough to be cured on her shores, and
if even ,that is so, my friend from Wisconsin (Mr. Washburn) shows pretty conclusively that in existing treaties
we had that right already."
Mr. Williams, in speaking of the value of the
fisheries, said:—
United States' " And now as to  the fishes, which may be called, I
Congressional suppose, the argumentum piscatorium Or is it the
Debates, from
Appendix to larger tenants of the ocean, the more gigantic game, from the
| Congressional whale, and seal, and walrus, down to the halibut and cod, of
1868,'40th Cong., wnicl1 ifc is intended to open the pursuit to the adventurous
2nd Sess., Part V, fishermen of the Atlantic coast, who are there already in a
P" 490, domain that is free to all ?    My venerable colleague
See also Alaska ^r" Stevens)» wto discourses as though he were a true
p. 670. brother of the angle himself, finds the foundations of this
great Eepublic Eke those of Venice and Genoa among the
fishermen.   Beautiful as it shows above, like the fabled
mermaid—' desinit in piscem mulier formosa superne ' it
ends, according to him, as does the Alaska argument
itself, in nothing but a fish at last. But the resources of
the Atlantic are now, he says, exhausted. The Falkland
Islands are now only a resting place in our maritime
career, and American liberty can no longer live except by 102
giving to its founders a wider range upon a vaster sea. Debates in Congress.
Think of it, he exclaims—I do not quote his precise '      —
lauguage—what a burning shame is it not to us that we
have not a spot of earth in all that watery domain
on which to refit a mast or sail, or dry a net or fish ?—
forgetting, all the while, that we have the range of those
seas without the leave of anybody; that the privilege of
landing anywhere was just as readily attainable, if wanted,
as that of hunting on the territory by the British; and,
above all, that according to the official Eeport of Captain
Howard, no fishing bank has been discovered within the
Eussian latitudes."
It is therefore established:—
That Russia's rights " as to jurisdiction and
as to the seal fisheries in Behring Sea," referred
to in Point 4 of Article VI of the Treaty of 1S92,
were such only as were hers according to international law, by reason of her right to the
possession of the shores of Behring Sea and the
islands therein.
That the Treaty of Cession does not purport
either expressly or by implication to convey
any dominion in the waters of Behring Sea,
other than in the territorial waters which would
pass according to international law and the
practice of nations as appurtenant to any territory conveyed.
That no dominion in the waters of Behring
Sea other than in territorial waters thereof did,
in fact, pass to the United States by the Treaty
of 1867. 103
Action of the United States and Eussia
from 1867 to 1886.
Increased slaughter of seals.
Elliott,
Census Report,
p. 25.
H. R., Ex. Doc.
No. 3883, 50th
Cong., 2nd Sess.,
pp. 87, 88.
Ibid., p. 70.
Act of July 27,1868. Killing of seals
prohibited.
Chapter VI.
Head (P).—The Action of the United States and
Russia from 1867 to 1886.
When, in consequence of the cession of Alaska
as a whole, the Russians relinquished their
sovereignty over the Pribyloff (or | Seal") Islands
in 1867, sealers at once landed on the breeding
resorts of the fur-seal on these islands. Those
who came from the New England States found
themselves confronted by competitors from the
Sandwich Islands. They proceeded to slaughter
seals upon the breeding grounds in the manner
which had usually been practised by sealers on
grounds where no Regulations were in force.
In the year 1868, at least 240,000 seals are
reported to have been taken, and 87,000 in the
following year. In view of this wholesale
destruction of seals, the United States' Government decided, in the exercise of their undoubted
right of territorial sovereignty, to lease these seal
rookeries," and to re-establish by means of the
necessary legislation, the lapsed Russian Regulations which had restricted the killing of the
fur-seal.
Accordingly, on the 27th July, 1868, an Act
passed the Congress of the United States, entitled
" An Act to extend the Laws of the United
States relating to Customs and Navigation over
the territory ceded to the United States by
Russia, to establish a Collection District therein,
and for other purposes," of which section 6 provides :—
United States' " That it shall be unlawful for any person or persons to
Statutes at Large,    kjjj[ any 0^erj rnmk, marten, sable, or fur-seal, or other
vol. xv p. 241.
fur-bearing animal within the limits of said territory, or in
the waters thereof."
Ibid., p. 348.
Secretary Boutwell's Eeport.
41st Cong., 2nd
Sess., Ex. Doc.
No. 109.
On the 3rd March, 1869, a Resolution was
passed by the Senate and House of Representatives
specially^reserving for Government purposes the
Islands of St. Paul and St George, and forbidding
any one to land or remain there without permission of the Secretary of the Treasury.
Mr.- Boutwell's Report, as Secretary of the
Treasury/preceded an Act of the 1st July, 1870.
This Report discloses no suggestion of jurisdiction
at a greater distance than 3 miles from the shoreline. With knowledge of the raids upon the
[248] P 104
islands and the existence of seal-hunting
schooners, Mr. Boutwell dwelt upon the means of
protecting the seal islands only. He recommended that the Government of the United
States should itself undertake the management
of the business of the islands, and should
"exclude everybody but its own servants and
agents .... and subject vessels that touch
tjiere to forfeiture, except when they are driven
to seek shelter or for necessary repairs."
On the 1st July, 1870, an Act was passed
entitled, " An Act to prevent the exterpiination gee Bjue Boo,
of Pur-bearing animals in Alaska," from which United States,
the followinsr are extracts:—
Act of July, 1870.
" Be it enacted by the Senate and House of Eepresentatives of the United States of America in Congress
assembled, that it shall be unlawful to kill any fur-seal
upon the islands of St. Paul and St. George, or in the waters
adjacent thereto, except during the months of June, July.
September, and October in each year ■ and it shall be
unlawful to kill such seals at any time by the use of fire-
arms, or use other means tending to drive the seals away
from said islands	
" Section 2. And be it further enacted, that it sh&]l be
unlawful to kill any female seal, or any seal less than
1 year old, at any season of the year, except as above provided ; and it shall also be unlawful to kill any seal in the
waters adjacent to said islands, or on the beaches, cliffs, or
rocks where they haul up from the sea to remain.
* * * *
1 Section 4. And be it further enacted, that immediately
after the passage of this Act, the Secretary of the Treasury
shall lease, for the rental mentioned in section 6 of this
Act for a term of twenty years, from thejlst day
of May 1870, the right to engage in the business of taking
fur-seals on the Islands of St. Paul and St. George/andjto
send a vessel or vessels to said islands for the skins of
such seals.
* * * *
" Section 5. And be it further enacted, that . . . any
person who shall kill any fur-seal on either of said islands,
or in the waters adjacent thereto . . . without authority
of the lessees thereof .... shall be deemed guilty of a
misdemeanour."
No. 2,1890, p. 12.
See Appendix,
vol. iii.
Seal Islands to be leased.
In the year 1870,. a lease was  executed  on
behalf of   the  United  States'   Government   in „    .
See Appendix,
favour of the Alaska Commercial Company, as vol. i, No. 7.
provided for in this Act.    It covered the Islands
of St. George and St. Paul only.
The following instructions from the Treasury
Department show that the administration confined the interference of t^heir officers to tfyo.se
seal-hunters only who attempte4 landing upon
$ie islands;—~
Lease of Alaska Commercial Company.
Instructions to^United Stares' officials, 10J
« T&.
Treasury Department,
" September 10, 1870.
H. R., 44th Cong.       " The following Executive Order, relating to the important Sess., Ex. Doc.  tion of arms into the Islands of St. Paul and St.'George,
within the district of Alaska, is published for the information of officers of the Customs:—
"Executive Mansion, Washington, B.C.,
"September 9, 1870.
" So much of Executive Order of the 4th February, 1870,
as prohibits the importation and use of fire-arms and
ammunition into and within the Islands of St. Paul and
St. George, Alaska, is hereby modified so as to permit the
Alaska Commercial Company to take a limited quantity
of fire-arms and ammunition to said islands, subject to the
direction of the revenue officers there and silch regulations
as the Secretaiy of the Treasury may prescribe.
I U. S. GEANT, President.
$' The instructions issued by this Department in its
Circular of the 8th February, 1870, are accordingly modified so as to adjust them to the above Order.
" Eevenue officers will, however, see that the privilege
granted to the said Company is not abused; that no firearms of any kind are ever used by said Company in the
killing of seals or other fur-bearing animals, on or near
said islands, or near the haunts of seals or sea-otters in the
district, nor for any purpose whatever, during the months
of June, July, August, September, and October of each
year, nor after the arrival of seals in the spring or before
their departure in the fall, excepting for necessary protection and defence against marauders or public enemies who
may unlawfully attempt to land upon the islands. In all
other respects, the instructions of the 8th February. 1870,
will remain in force.
IWM. A. BICHAFDSON
V- Acting Secretary.
" Treasury Department, Washington, D.C.,
" Sir, " September 19,1870.
H. R., 44th Cong.       "I inclose herewith a Copy of a letter, dated the 17th
1st Sess., Ex. Doc. instant, from K L. Jeffries, attorney for the Alaska Coin-
No. S3, pp. 32-34. . , ™ ;Uji    .,   .     ay     ».     ,4 ,
rr              mercial Company, reciting that a Notice recently appeared
in the I Alta California' newspaper, published in your city,
of the ifltehded sailing of the schooner ' Mary Zephyr' for
the Islands of St. Paul and St. George.
" By the 4th Section of the Act of the 1st July, 1870,
entitled ' An Act to prevent the Extermination of Fur-
bearing Animals in Alaska,' it is provided that the Secretary of the Treasury, immediately after the passage of
said Act, shall lease to proper and responsible parties, &c,
&c, the right to engage in the business of taking fur-seals
on the Islands of St. Paul and St. George, and to send a
vessel or vessels to said islands for the skins of such
seals, &c.
[248] P 2 106
I This lease has been awarded to the Company above
named for the term of twenty years, a copy of which is
herewith inclosed; and the request of General Jeffries
that an official announcement be made of the award of
said lease, and that no vessels except those of the Government and of said Company will be allowed to touch or
land at either of said islands, may be complied with, and
you will please cause such Notice to be published in one
or more of the San Francisco newspapers, at the expense
of said Company.
11 am, &c,
(Signed) "WM. A. EICHAEDSON,
" Acting Secretary.
" T. G. Phelps, Esq.,
" Collector of Customs,
" San Francisco, California.
" Custom-house, San Francisco, California,
" Sir, jjj Collector's Office, September 30, 1870.
" I have the honour to acknowledge the receipt of your
letter of the 19th instant, relative to the published Notice
of the sailing of   the schooner ' Mary  Zephyr' for the
Islands of St. Paul and St. George, in Alaska.    On seeing
the advertisement   in   the 'Alta,' written   Notice   was
immediately sent to the parties interested, that no vessel
would be permitted to land at said islands.   I have caused
a Notice, as suggested by the honourable Secretary, to be
published.    Please find a copy of the Notice inclosed.
11 am, &c,
(Signed) "T. G. PHELPS,
" Collector.
"Honourable Geo. S. Boutweil,
" Secretary, Treasury. -
"Notice.
1 In compliance with an order of the honourable Secretary of the Treasury, notice is hereby given that a lease of
the Islands of St. Paul and St. George, in the Territory of
Alaska, has been executed by the Secretary of the Treasury
to the Alaska Commercial Company for the period of
twenty years from the 1st day of May, 1870, in accordance
with the provisions of an Act of Congress entitled ' An
Act to prevent the Extermination of Fur-bearing Animals
in Alaska,' approved the 1st July, 1870, and that, by the
terms of said lease and the above-mentioned Act, the said
Company have the exclusive right to engage in the
business of taking fur-seals on said islands and the islands
adjacent thereto. No vessels, other than those belonging
to said Alaska Commercial Company or to the United
States, will be permitted to touch or land at either of said
islands or the islands adjacent thereto, nor will any person
be allowed thereon except the authorized agents of the
United States and of said Company.
(Signed) " T. G. PHELK.,,
" Collector of Cusxoim.
" Custom-house, San Francisco, California,
" Collector's Ofiice, September 28, 1870." 107
When the above-mentioned legislation was
enacted, Mr. Bout\vell, as already stated, was
Secretary of the United States' Treasury.
Opinion of United States' Government The following correspondence between Mr. T. G.
in 1872 as to jurisdiction. -ni, i j   ■»«-     -n    j.     h     t_ H 81
J rhelps -and. Mr.  Boutwell   shows the position
50th Cong., '2nd     assumed in  1872  by the Treasury Department
Doc'No"aio6 X'     *n relati°n to the extent of jurisdiction of the
pp. 139, l-io. United States in Alaskan waters:— I
| Mr. Phelps to Mr. Boutwell.
" Customs House, San Francisco,
" Sir, Collector's Office, March 25,1872.
" I deem it proper to call the attention of the Department to certain rumours which appear to be well
authenticated, the substance of which appears in the
printed slip taken from the ' Daily Chronicle' of this date,
herewith inclosed.
§ In addition to the several schemes mentioned in this
paper, information has come to this office of another
which is being organized at the Hawaiian Islands for the
same purpose. It is well known that, during the month
of May and the early part of June in each year, the
fur-seal, in their migration from the . southward to
St. Paul and St. George Islands, uniformly move through
Oonimak Pass in large numbers, and also through the
narrow straits near that pass which separate several small
islands from the Aleutian group.
" The object of these several expeditions is unquestionably to intercept the fur-seals at these narrow passages
during the period above mentioned, and there, by means'
of small boats manned by skilful Indians or Aleutian
hunters, make ^discriminate slaughter of those animals
in the water, after the manner of hunting sea-otters.
" The evil to be apprehended from such proceedings is
not so much in respect of the loss resulting from the
destruction of the seals at those places (although, the
killing of each female is in effect the destruction of two
seals), but the danger lies in diverting these animals from
their accustomed course to the islands of St. Paul and
St. George, their only haunts in the United Sta'tes.
" It is believed by those who have made the peculiar
nature and habits of these animals a study, that if they are
by any means seriously diverted from the line upon which
they have been accustomed to move northward in their
passage to these islands, there is great danger of their
seeking other haunts, and should this occur the natural
selection would be Komandorsky Islands, which He just
opposite the Pribylov group, near the coast of Kamschatka,
owned by Eussia, and are now the haunt of fur-seals.
" That the successful prosecution of the above-mentioned
schemes would have the effect to drive the seals from
their accustomed course there can be no doubt. Considering, therefore, alone the danger which is here threatened to the interest of the Government in the seal fisheries, and the large annual revenue derived from the same, I
have the honour to suggest, for the consideration of the
Honourable Secretary of the Treasury, the question
whether the Act of July 1, 1870, relating to those fisheries,
does not authorize his interference by means of revenue
c Utters to prevent foreigners and others from doing
such an irreparable mischief to this valuable interest.
Should the Honourable Secretary deem it expedient to send-
a cutter into these waters, I would respectfully suggest
that a steam-cutter would be able to render the most
efficient service, and that it should be in the region of
Oonimak Pass and St. Paul and St. George Islands by the
15th of May next.
11 am, &c.
(Signed)       " T. G. Phelps, Collector.
-[From San Francisco "Daily Chronicle'' March 21, 1872.]
" It is stated in reliable commercial circles that parties in
Australia are preparing to fit out an expedition for the capture-of fur-seals in Behring Sea. The present high prices of
fur-seal furs in London and the European markets has acted
powerfully in stimulating enterprises of a like character.
But a few days ago we mentioned that a Victorian Company was organized for catching fur-Seals in the North
Pacific. Another party—an agent representing some
Eastern capitalists—has been in this city for the past
week making inquiries as to the feasibility of organizing
an expedition for like purposes.
" Mr. Boutwell to Mr. Phelps.
" Treasury Department, Washington, D. C,
" Sir, "April 19, 1872.
"Your letter of the 25th ultimo was duly received
calling the attention of the Department to certain rumours
circulating in San Francisco, to the effect that expeditions
are to start from Australia and the Hawaiian Islands to
take fur-seals on their annual migration to the Islands of
St. Paul and St. George through the narrow Pass of
Oonimak. You recommend—to cut off the possibility of
evil resulting to the interests of the United States from
these expeditious—that a revenue cutter be sent to the
region of Oonimak Pass by the 15th May next.
" A very full conversation was held with Captain Bryant
upon this subject while he was at the Department, and he
conceived it to be entirely impracticable to make such an
expedition a paying one, inasmuch as" the' seals go singly
or in pairs, and not in droves, and cover a large region of
water in their homeward travel to these islands, and he
did not seem to fear that the seals wolfld be dr fen from
their accustomed resorts, even were such attempts made.
" In addition, I do not see that the United States would
have the jtiris'&iction or power to drivS- d& parties going up 100
there for that purpose, unless they make such attempt
within a marine league of the shore.*
I As at present advised, I do not think it expedient to
carry out your suggestions, but I will thank you to communicate to the Department any further facts or information you may be able to gather upon the subject.
"I am, &c.
(Signed)       " George S. Boutwell,
Secretary."
1875.
44th Cong., 1st
Sess., H. R., Ex.
Doc. No. 130,
p. 124, March 15,
1875.
Opinion of Secretary Fish.
Fish to Boker,
Dec. 1, 1875,
Wharton, vol i,
sec. 32, p. 106.
In 1875 Mr. Mclntyre, the Assistant Treasury
Agent at the Pribyloff Islands, wrote that he had
armed the natives with the intention of repelling
by force attempts | to kill seals in the rookeries
or within a rifle shot of the shore."
In 1875, a question having arisen as to Russia's
authority to grant licences for the use of the seas
contiguous to her coasts, Mr. Pish, Secretary of
State for the United States of America, gives
conclusive evidence as to the interpretation
placed upon the Convention of 1824 by the
United States, as follows :—
"There was reason to hope that the practice which
formerly prevailed. "Syith powerful nations of regarding seas
and bays, usually of large extent, near their coast, as closed
to any foreign commerce or fishery not specially licensed by
them, was, without exception, a pretension of the past, and
that no nation would claim exemption from the general
rule of public law which limits its maritime jurisdiction
to a marine league from its coast. We should particularly regret if Eussia should insist on any such
pretension."
Fishing and navigation by foreigaers.
During the whole period discussed in this
chapter, the vessels of various nations were
continuously engaged in hunting, .fishing, and
navigating in the waters of the North Pacific,
including Behring Sea.
H. R., Ex. Doc. Schooners from British Columbia were fishing
Tst Sess.44*00"8*' for cod as early as 1866' and seals to the number
of 20,000 a-year were reported  as  being taken
south of St. George and St. Paul Islands in 1870
and 1872.
plx parte S. H.
Coop
* In  1888 (after  the occurrence of the seizures of British
hooper, owner of g  vessels in 1886 and 1887) Mr. Boutwell, by request, explained,
r> • ce   .i.   tt v'j  in  a letter  dated  the  18th January, that "neither upon  mv
oner tor the United J r J
B
States, No. 9,
October Term,
1890. I 197.
recollection of facts, as they were understood by me in 1872, nor
upon the present reading of the correspondence, do I admit the
claim of Great Britain that my letter is ap admission of any rjght
adverse to the claims of the United States in the waters known
as Behring Sea. My letter had reference solely to the waterg
of the Pacific Ocean south of the Aleutian Wands," 110
Whalers continued as before to frequent the
waters both east and west of the line described in p-ig^ry industries
the Treaty of 1867.   The extent of their operations of the United
appears from the following Table, which shows vol. ii,' p. 85'.    ' '
the number   of   vessels   composing the North
Pacific whaling fleet after the date of the Alaska
Cession.*
Whaling industry.
Number of
Year.
United States'
Remarks.
Vessels.
^Hfa<:-'
1867
90
Also eleven foreign vessels.
1868
61
Also seven foreign vessels.
1869
43
Also six foreign vessels.
1870
46
Also nine foreign vessels.
1871
35
All but seven of the fleet were
lost, including four foreign
vessels.
1872
27
Also four foreign vessels.
1873
30
Also four foreign vessels.
1874
23
Also four foreign vessels.
1875
16
Also four foreign vessels.
1876
18
All but eight of the fleet lost, also
two foreign vessels.
1877
19
Three of the fleet were lost; one
foreign vessel.
1878
17
One of the fleet lost.
1879
21
Three of the fleet lost.
1880
19
Walrus hunting is also known to have been
continuously practised by the whalers  during p. 1     j ,
these years, and in some years large quantities of of the United
t • -i     '1 1 1   •      l States, sec. 5,
walrus ivory and oil were obtained:— vo| jj'     t j 7
"The Arctic whaling fleet from 1870 to 1880, inclusive, PP'       I S6q'
J.s estimated to have captured 100,000 walrus, producing
1,996,000 gallons of oil and 398,868 lbs. of ivory, of a total
value of 1,260,000 dollars."
Walrus hunting.
In 1872 expeditions for sealing in Behring Sea
were reported to be fitting out in various places, „ „   E   «
as appears from Mr. Phelps' letter of the 25th No 83, p. 125,
March in that year, already quoted, and in 1875 gess<  on°''
a schooner was   reported as  having  been  seen
shooting seals among the seal islands.
Ivan Petrofj*, Special Commissioner of the
United States to the seal islands in the year
1880, says in his Report:—
" As these seals pass up and doWn the coast as far as H. R., Ex Doc.
the Straits of Fuca and the mouth of  Columbia Eiver, No. 40,46th Cong.,
3rd oess., vol. xvm,
quite a number of them are secured by hunters, who shoot p. 65.
or spear them as they find them asleep at sea.    Also,
small vessels are fitted out in   San   Francisco, which
regularly cruize in these waters for the purpose alone of
shooting sleeping seal."
* All vessels not sailing under the  United States' flag are
specified in this Table as " foreign,"
Seal hunting. Ill
H. R., Ex. Doc.
No. 40, 45th
Cong., 3rd Sess.,
vo'. xviii, p. 68.
H. R., Ex. Doc.
No. 153, 49th
Cong., 1st Sess.
H. R., Ex. Doc.
No. 3883, 50th
Cong., 2nd Sess.,
p. 58.
Complaints of depredations on
rookeries.
Letter from Mr. d'Ancona.
Eeply of Mr. French.
H. R., Ex. Doc,
50th Cong., 2nd
Sess., No. 3883,
p. 281.
And he adds:—
" The fur trade of this country, with the exception of
that confined to the seal islands and set apart by law, is
free to all legitimate enterprise."
Sealing-vessels and their catches were also
reported by the United States' cutter | Corwin,"
but none were interfered with when outside of
the 3-mile.limit.
In 1881 an Agent of the United States'
'Government stated that during the past twenty
years probably 100 vessels had | prowled " about
the Pribyloff Islands.
The Agents of the United States' Government
sent to the seal islands previously to 1886 continually reported upon the inadequacy of the
protection of the islands, and they frequently
referred to depredations upon the rookeries by
the crews of vessel* sealing in Behring Sea.
Early in 1881, Collector D. A. d'Ancona, of San
[Francisco, appears to have requested information
from the Treasury Department at Washington in
regard to the meaning placed by that Department
upon the law regulating the killing of fur-bearing
animals in the territory of Alaska, and specially
as to the interpretation of the terms "waters
thereof" and "waters adjacent thereto," as used
in the law, and how far the jurisdiction of the
United States was -to be understood as extending.
In reply, Acting Secretary H. P. French, of
the Treasury Department, wrote as follows on the <
12th March, 1881 :—
"Sir,
"Your letter of the 19th ultimo, requesting certain
information in regard to the meaning placed by this
Department upon the law regulating the killing of fur-
bearing animals in the Territory of Alaska, was duly
received. The law prohibits the killing of any fur-
bearing animals, except as otherwise therein provided,
within the limits of Alaska Territory or in the waters
thereof, and also prohibits the killing of any fur-seals on
the Islands of St. Paul and St. George or in the waters
adjacent thereto, except during certain months.
" You inquire in regard to the interpretation of the
terms 'waters thereof and 'waters adjacent thereto,' as
used in the law, and how far the jurisdiction of the United
States is to be understood as extending.
"Presuming your inquiry to relate more especially to
the waters of Western Alaska, you are informed that the
Treaty with Eussia of the 30th March, 1870 [sic], by which
the Territory of Alaska was ceded to the United States,
defiues the boundary of the Territory so ceded. This Treaty
is found on pp. 671 to 673 of the volume of Treaties of the
Eevised Statutes.   It will be seen therefrom that the
[248]
Q 112
limit of the cession extends from a line starting from the
Arctic Ocean and running through Bering Strait to the
north of St. Lawrence Islands. The line runs thence in a
south-westerly direction, so as to pass midway between
the Island of Attoo and Copper Island of the Kroman-
boski [sic] couplet or group,' in the North Pacific Ocean, to
meridian of 193 degrees of west longitude. All the waters
within that boundary to the western end of the Aleutian
Archipelago and chain of islands, are considered as comprised within the waters of Alaska Territory.
" All the penalties prescribed by law against the killing
of fur-bearing, animals would therefore attach against any
violation of law within the limits before described.
(Signed) " H. F. French,
I Acting Secretary,"
It does not appear from any official documents No seizures made before 1886-
that any action was taken at the time in accord- —■	
ance with the opinion expressed in this letter, and
no seizures were made, and no warning was given
to any British vessel engaged in sealing beyond the
ordinary territorial limits prior to 1886, although
at least one British vessel is known to have been
engaged in such sealing in 1884, and no less than
thirteen were so engaged in 1885.   Two of these 50th Con°\ 2nd
vessels are stated to have been spoken by a United Sess., Senate Ex.
1 J Doc. No. 106,
States revenue-cutter, without being in any way p. 134.
molested. 4
On the 22nd May, 1884, Lieutenant I. E. Lutz h. R. Mis. Doc.
was  instructed by the Captain of the  United 50th Coi)g-> ]st
_,        .    „ Sess., No. 602,
States revenue-steamer | Corwm    to watch and p. 28.
to seize or arrest any vessel or persons attempting
to take seals contrary to law.
Acting under these instructions, Lieutenant Ibid., p. 33.
Lutz arrested the " Adele," of Hamburg, Gustave
Isaacson, master, with three officers and a crew
of eighteen Japanese, when at anchor off shore.
The Lieutenant was careful to ascertain that the
vessel was engaged in sealing ashore, and having
waited the return of the ship's boat which came
back loaded with seal carcasses, Lieutenant Lutz
reported that, having now secured all necessary
evidence, he notified the captain of the seizure of
the vessel.
It is found that from 1867 down to and
including 1885, vessels continued to visit and
hunt in Behring Sea without interference when
outside of the ordinary territorial jurisdiction.
The circumstances which appear to have led
to a change of official policy in 1886 will be
related hereafter.
It may be convenient at this point to refer to
questions which were raised by occurrences in
the Asiatic waters of the Pacific, adjacent to
Bussian territory,, US
Disputes in Okhotsk and Behring Seas.
Whalers in Okhotsk Sea.
Fishery Industries
of the United
States, section 5,
vol. ii, p. 20.
See extract from
Tikhmenieff,
Appendix, vol. i,
No. 5.
Whalers sometimes seal-hunters
H. R.,44th Cong.,
1st Sess., Report
623.
Mr. Hoffman to
Questions arising between the United Slates and
Russia in Okhotsk and Behring Seas.
Disputes have more than once arisen respecting
the rights of United States' whaling-vessels in
Okhotsk Sea.
The main objection to these whalers was
that they interfered with the fur industry, and
it is on record that the mode of whaling practised in this sea was often to anchor the vessel
in some harbour and to send the boats therefrom in pursuit of whales. The instructions to
Russian cruizers, dating from 1853, only prohibited these vessels from coming " within
3 Italian miles of our shores." The Sea of
Okhotsk was covered by the Ukase of 1821,
and possesses a seal rookery (Bobben Island).
Whalers from the United States and elsewhere
began to frequent this sea about the year 1843.
The following evidence with reference to
sealing and whaling in Okhotsk Sea given before
the Committee of Ways and Means in the
House of Bepresentatives at Washington (3rd
May, 1876), shows that whalers were also
engaged in taking seals:—
" Q. Who are Williams, Haven, and Co.?—A. Williams,
Haven, and Co. are Mr. Henry P. Haven, of Connecticut,
who died last Sunday, and Eichard Chapel. They are
whalers. They took seals and whales, and had been at
that business in the Pacific for a great many years.
" Q. They had an interest in these skins ?—A. Yes, Sir.
They had a vessel in the waters of the Okhotsk Sea, I
think, seal-fishing in 1866. While their vessel was at
Honolulu in 1866, the captain became acquainted with a
Eussian captain who put in there in distress with the
remainder, or a portion, of the Alaska seal-skins taken by
the old Eussian Company, and there this captain learned
of this interest. He left his vessel at Honolulu, went to
Connecticut, and conferred with his employers. Then
Mr. Chapel, one of the concern, went out to Honolulu and
fitted out this vessel and another one and sent them to
the Alaska Islands as early as April 1868."
The United States' Minister at St. Petersburg,
Mr. FrdUghuyseii, Mr. Hoffman, writing in 1882, thus refers to'this
March 14, 1882. a '
£0th Cong., 2nd
Sess., Senate Ex.
Doc. No. 106,
p. 260.
See Appendix,
vol. ii,  Part II,
No. 14.
sea:—
" A glance at the Map will show that the Kurile Islands
are dotted across the entrance to the Sea, of Okhotsk the
entire distance from Japan on the south to the southernmost Cape of Kamtchatka on the north.'
" In the time when Eussia owned the whole of these
islands, her Eepresentatives in Siberia claimed that 'he
Sea of Okhotsk was a mare clausum, for that Bvssian
jurisdiction   extended from island   to   island anc  over
L24.8J Q 2 114
2 marine leagues of intermediate sea from Japan to Kaint-
chatka.'
"But about five years ago Eussia ceded the southern
group of these islands to Japan, in return for the half of
the Island of Saghalien, which belonged to that Power.
" As soon as this was done it became impossible for the
Siberian authorities to maintain their claim. Myinformant
was not aware that this claim had ever been seriously
made at St. Petersburg."
And in another letter he says :—
" I do not  think  that  Eussia claims that the Sea of March 27, 1882.
Okhotsk is a mare clausum, over which she has exclusive ^^tn Cong., 2nd
Sgss.   Scncit6 Ex
jurisdiction.    If she does, her claim is not a tenable one tj0C.'jno. 106
since the cession of part of the group of the Kurile Islands p. 261.
to .Japan, if it ever were tenable at any time." ef ••^)E»en11TT
r    ' J toI. u, rart II,
No. 15.
The   following   appears   as   an   introductory
statement in  " Papers relating  to Behring Sea
Fisheries," published at the Government Printing
Office in Washington, 1887 :—
" This sea [of Okhotsk] is a part of the waters to which Okhotsk Sea subject to Ukase of 1821.
the Ukase of 1821 applied, and which M. Poletica, in his 	
subsequent correspondence with Mr. Adams, prior to the
Treaty of 1824, said His Imperial Majesty, the Emperor
of all the Eussias, might have claimed as a close sea had
he chosen to do so. As has been seen, all question as to
the right of citizens of the United States, as well as of the
subjects of Great Britain, to navigate and fish in those
waters, was given up by Eussia once for all in the Treaty
of 1824 with the United States, and of 1825 with Great
Britain.
" The following correspondence between Eussia and the
United States in the vears 1867 and 1868 contains an
explicit disavowal by Eussia of any claim to interfere with
the fishing operations of citizens of the United States in
the Sea of Okhotsk."
Europa."
The correspondence referred to shows that Interference with United States' vessels.
the captain of the "Europa," a United States'
whaling-vessel, complained to the Department of
State at Washington that the Captain of a Bussian
armed steamer had stated that he was authorized
to drive United States' whalers away from the
vicinity of the Settlement of Okhotsk, in the
Sea of Okhotsk, and that he had fired on the
ship's boat of the bark "Endeavour," of New "Endeavour."
Bedford.
It appears also from the same correspondence "Java."
that on the 27th July, 1867, the United States'
bark " Java " was cruizing for whales in Shantar
Bay and standing towards Silas Bichard's Bluff, Seward to Clay,
when a Bussian Commander ordered him  out *e,br."a!T 24> 1868>
vol. ii, rart II,
of the bay, and thereupon Mr. Seward inquired No. 12. IK
Explanations by Eussia.
Westmann to
United States'
Secretary of State,
July 31, 1868,
50th Cong., 2nd
Sess., Senate Ex.
Doc. No. 106,
p. 253.
No claim of jurisdiction beyond 3-mile limit.
of the Bussian Government what instructions had been issued relating to fisheries in this
sea.
In reply to this inquiry, the following explanation was received from M. de Westmann,
Acting Minister of Poreign Affairs at St. Petersburg, which shows the claim of jurisdiction
of Bussia to have been confined to 3 miles only
in Bussian gulfs and bays, in this part of the
very waters covered by the Ukase of 1821:—
I These are the circumstances: The schooner ' Aleout,'
under the command of Lieutenant Etoline, had been sent
in commission from Nicolaievsk to Oudrk. The abundance
of floating ice having forced him to enter into the Gulf of
Tougoursh, he there met, the 14th July, at about 20 miles
to the south of the Straits of Chautarsk, near the eastern
coast, the American whaler ' Java,' occupied in rendering
the oil of a captured whale. Considering that foreign
whalers are forbidden by the laws in force to fish in the
Eussian gulfs and bays at a distance of less than 3 miles
from the shore, where, the right of fishing is exclusively
reserved to Eussian subjects, Lieutenant Etoline warned
('invita') the captain of the 'Java' to 'bear off' from
the Gulf of Tougoursh, which he at once did. The same
day the ' Aleout' made for the Bay of Mawgon, where
arrived, on the next day, the American whale schooner
' Caroline Foot,' whose captain, accompanied by the
captain of the ' Java,' called on Lieutenant Etoline, and
declared that he had no right to prevent them from fishing
for whales wherever they liked. Lieutenant Etoline
replied that there were in that respect established rules
(' regies'), and if they insisted, absolutely, upon breaking
them, that he would be compelled to prevent them. The
captain of the schooner ' Caroline Foot' pretending (' ayant
pr^tendu') that he had entered into the Bay of Tougoursh
in consequence of ' deviations from his course,' Lieutenant
Etoline offered at once all assistance in his power; and,,
upon request, delivered him 7 pouds of biscuit from the
stores of the 'Aleout,' after which the two ships again'
went to sea. The 19th of July, that is, four days afterwards, the schooner ' Aleout' met a whale, upon which
the Commander caused a trial fire to be made. At the
same moment was seen, at about 16 miles distance, a sail,
name unknown, and, nearer, three ' chaloupes,' the nearest
of which was at least 3 miles in advance in the direction
of the cannon fire. In the evening all these ships had
disappeared. That incident is registered in the books of
the ' Aleout' in the following terms : ' The 19th of July,
at 9 in the evening, at anchor in the Bay of Mawgons,
fired a cannon shot for practice at a whale afloat.' Erom
these facts General Clay will be convinced that the
incident alluded to has been exaggerated, and even perverted (' denature"') much in order to be represented as a
cause of grievance against the Commander of the ' Aleout'
on the part of the American whalers." ■V
116
The explanation was considered satisfactory, £0th Cong., 2nd
. bess., Senate Hoc.
Mr. Seward observing that | the captain of the Doc. No. 106,
c Java,' spoke unwarrantably when by implication § 25°-
he denied that the Bussian authorities have the
right to prevent foreign vessels from fishing for
whales within 3 marine miles of their own shore."
In the year 1881 the Bussian Consul at Yokohama issued, on behalf of the Bussian Imperial
Government, a Notice, of which the following
is a translation :—
" Notice.
Ibid., p. 259.
" At the request of the local authorities of Behring and    Eussian Notice of November 1881 respecting
other islands, the Undersigned hereby notifies that the Okhotsk and Behring Seas.
Eussian   Imperial   Government   publishes,   for   general
knowledge, the following:
"' 1. Without a special permit or licence" from the
Governor-General of (Eastern Siberia, foreign vessels are
not allowed to carry on trading, hunting, fishing, &c., on
the Eussian coast or islands in the Okhotsk and Behring
Seas, or on the north-eastern coast of Asia, or within their
sea boundary-line.
"' 2. For such permits or licences, foreign vessels should
apply to Vladivostock exclusively.
"' 3. In the port of Petropaulovsk, though being 'the
only port of entry in Kamtchatka, such permits or licences
shall not be issued.
"'4. No permits or licences whatever shall be issued
for hunting, fishing, or trading at or on the Commodore
and Eobben Islands.
"' 5. Foreign vessels found trading, fishing, hunting,
&c, in Eussian waters, without a licence or permit from
the Governor-General, and also those possessing a licence
or permit who may infringe the existing bye-laws on
hunting, shall be confiscated, both vessels and cargoes, for
the benefit of the Government. This enactment shall be
enforced henceforth, commencing With A.D. 1882.
" I 6. The enforcement of the above will be intrusted to
Eussian men-of-war, and also to Eussian merchant-vessels,
which, for that purpose, will carry military detachments
and be provided with proper instructions.
"'A Pelikan,
"'H.I.B.M. Consul
"' Yokohama, November, 15,1881.' "
The firm of Messrs. Lynde and Hough, of San Ibid., p. 259.
Erancisco, was in 1882, and had been for years, W? and Hough
J '  to Jjolger,
engaged in the  Pacific  coast  fisheries.    They February 15,1882.
yearly sent vessels to the Sea of Okhotsk, fishing '^M i; pj^"t 'jf
from 10 to 20 miles from shore.    The attention ^T°- l3-
of the firm being called to the above Notice, they
wrote to the Secretary of State of the United
States calling attention thereto. 117
50th Cong., 2nd The Secretary of State  (Mr. Erelinghuysen),
SeBS., Senate Ex. g       „,-.,,, „    . ,
Doc. No. 106, 0I1 the 7th March, 1882, inclosed their letter,
P-258- together with   the Begulations  "touching the
Pacific coast fisheries," as he termed them, to
Mr. Freiinehuysen ^-r- Hoffman, the United States' Minister at
March 27,1882.  ' St. Petersburg.    Mr. Hoffman acknowledged the
Ibid., p. 261. ...
See Appendix,        receipt of this despatch, in reference to what he
No. is.1"11       also called " our Pacific Ocean fisheries."
Applied only to territorial waters. Mr. Hoffman, having made inquiry of M. de
,..,      Ill Giers, the Russian Foreign Minister, the latter,
Ibid., p. 262. ° '
M.de Giers to in his reply, dated the 8th (20th) May, 1882,
May 8°(20)ni882 explained that these Regulations applied only to
See Appendix, " territorial waters of Russia," and, in a subse-
No, 16.        '       quent   letter of   the 1st  (13th)  June,  quoted
Article 560 of the Russian Code, which is as
follows:—
"AETICLE 560.
Ibid., p. 262. "The maritime waters, even when they wash the shores,
**'  wi*ers where there is a permanent population, can not be the
Mr. Hoffman, £ r r
June 1 (13), 1882.   subject of private possession; they are open to the use of
See Appendix, 0ne and all."
vol. ii, Part II,
Ibid  p 260 -"-u   a   ktter   to   Mr.   Erelinghuysen of  the
See Appendix, 14th March, 1882, Mr. Hoffman shows what
5To! 14.        '       he understood to be the meaning  applied by
M. de Giers to the words "territorial waters."
He writes:—
" The best whaling grounds are found in the bays and
inlets of the Sea of Okhotsk. Into these the Russian
Government does not permit foreign whalers to enter,
upon the ground that the entrance to them, from headland to
headland, is less than 2 marine leagues wide."
Tbid,, pp. 262, 263.     Indeed, M. de Giers, in the letter of the 8th
vol! it/Krfn (20th) May> 1882' already quoted, makes it clear
No. 16. that, as to fishing and hunting, the rule was the
same, and that the prohibition of vessels engaged
in these pursuits extended only over the marine
league from the shores of the coasts " and
the islands called the ' Commander' and the
j Seals.'"
The island referred to as the "Seals" is
Robben Island, and the reference to this and the
Commander Islands indicates that M. de Giers,
under the term of "hunting," was referring
specially to the sealing industry.
Case of the "Eliza." On the 21st July, 1884, the United   States'
schooner " Eliza" was seized by the Russian
cruizer H Razbo'inik " in the Anadir River, which
runs into Anadir Bay, a northern portion of
Behring Sea.   It was represented to the United ■gp—
"1
118
States that she was there trading and hunting 50th Cong., 2nd
.       ° °  Sess., Senate Ex
walrus.    The United States Vice-Consul-General Doc. No. 106,
at Japan termed the seizure § an act of piracy."    P- 263-
General Vlangaly, writing from the Depart- Ibid., p. 270.
ment of  Eoreign Affairs   on the   19th   (31st) VoL ii,PPartlf,
January, 1887, explained that the "Eliza" was No-19-
arrested, "not for the fact of seal-hunting," but
for violating the prohibition touching trading,
hunting,, and fishing on the Russian coasts of the
Pacific without special licence.
The crew, it was found, were trading with the |||| |269-
natives on the coasts of Kamtchatka, as well as
hunting walrus.
This appears to have" been accepted as a valid ibid.   See
explanation; but with reference to the seizure of part u} jj0. 19.'
this ship and of the "Henrietta," Mr. Lothrop,
United States' Minister at St. Petersburg, writing
to Mr. Bayard, the United States' Secretary of
State, on the 17th Eebruary, 1887, remarks :—
" I may add that the Eussian Code of Prize Law of
1869, Article 21, and now in force, limits the jurisdictional waters of Eussia to 3 miles from the shore."
Ibid., p. 267.
The United States' schooner " Henrietta " had Case of the " Henrietta."
been seized on the 29th August, 1886, off East
Cape in Behring Strait by the Russian corvette
| Kreysser."
Explanations from the Russian Government Ibid., p. 269.
were promptly demanded by the United States, ^ £preanrf J>
and it was alleged she was arrested for illicit No. 18.
trading on the Russian coasts.
Nevertheless,   Mr.   Bayard,  writing   to   Mr. Views of Mr. Bayard.
Lothrop on the 16th March, 1887, observed:—
" If, as I am to conclude from your despatch, the seizure Papers relating to
of the ' Henrietta' was made in Eussian territorial waters, Behring Sea
,.       ,t     -r,      ■ .-i     •.■      .    -i   •    •   t  ,. ■,.».,     Fisheries,published
then the Eussian authorities had jurisdiction; and if the at the Government
condemnation was on proceedings duly instituted and Printing Office in
administered before a competent Court and on adequate washington» 1887,
evidence, this Department has no right to complain. But
if either of these conditions does not exist, the condemnation cannot be internationally sustained. The first of
these conditions, viz., that the proceedings should have
been duly instituted and administered, could not be held
to exist if it should appear that the Court before whom
the proceedings were had was composed of parties
interested in the seizure. On" general principles of international law, to enforce a condemnation by such a Court
is a denial and perversion of justice, for which this
Government is entitled to claim redress.
" The same right to redress, also, would arise if it should
appear that, while the seizure was within the 3-mile zone,
the alleged offence was committed exterior to that zone
and on the high seas. 119
" You are therefore instructed to inquire, not merely as
to the mode in which the condemning Court was constituted, but as to the evidence adduced before such Court,
in which the exact locality of seizure should be included."
No assertion by United States of extraordinary jurisdiction previous to 1886.
Eeport of cruize of the 1 Corwin," 1885
H. R., Ex. Doc.
153, 49th Cong.,
1st Sess,
The instructions given from time to time to
Commanders of the Revenue Service, or of ships
of war of the United States cruizing in Behring
Sea, and guarding the interests of the Alaska
Commercial Company upon the islands leased
to the Company, do not even suggest the intention of that Government to assert a claim so
vehemently disputed when advanced by Russia.
On the contrary, while vessels from British
Columbia and elsewhere were trading and
fishing generally in the Behring Sea, and while
vessels— chiefly those of the United States—were
actually raiding the rookeries, the instructions
relating to the fisheries given to Revenue Marine
vessels by the United States' Government, until
1886, were confined, as has been shown, to the
immediate protection of the seal islands.
The seizure of British sealers in the open sea
followed the report on the cruize of the Revenue
Marine steamer " Corwin" in the year 1885.
In this report, it is among other things stated,
that while shaping a course for St. Paul a special
look-out was kept for vessels sealing.
The Captain writes :—
" While we were in the vicinity of the seal islands a
look-out was kept at masthead for vessels cruizing, sealing,
or iUicitly trading among those islands. But no such vessels
were seen."
Having drawn attention to the number of
vessels which had taken, or had endeavoured to
take seals on the shores of the islands, and
illustrated the great difficulty of preventing the
landing thereupon, the Commander concludes
as follows:—
" In view of the foregoing facts, I would respectfully
suggest—
" 1. That the Department cause to be printed in the
Western papers, particularly those of San Francisco,
California; and Victoria, British Columbia, the sections of
the law relating to the killing of fur-bearing animals in
Alaskan waters, and defining in specific terms what is
meant by Alaskan waters.
"2. That a revenue-cutter be sent to cruize in the
vicinity of the Pribyloff Islands and Aleutian group
during the sealing season."
[248]
R I
120
On the 6th March, 1886, Mr. Daniel Manning, Senate, Ex. Doc,
Secretary to the Treasury, wrote to the Collector Sess., No. 106,
of Customs at San Erancisco as follows :— P*135-
" Treasury Department,
"Sir, "March 6, 1886.
11 transmit herewith, for your information, a copy of a See ante, p. 111.
letter addressed by the Department on the 12th March,
1881, to D. A. dAncona, concerning the jurisdiction of
the United States in the waters of the Territory of Alaska,
and the prevention of the killing of fur-seals and other
fur-bearing animals within such areas, as prescribed by
chapter 3, title 23, of the Eevised Statutes. The attention of your predecessor in office was called to this subject
on the 4th April, 1881. This communication is addressed
to you, inasmuch as it is understood that certain parties at
your port contemplate the fitting out of expeditions to kill
fur-seals in these waters. You are requested to give due
publicity to such letters, in order that such parties may be
informed of the construction placed by this Department
upon the provision of law referred to.
" Yours, &c.
(Signed) "D. Manning,
"Secretary."
Public notice appears   to   have   been given Blue Book,
accordingly in the terms of the letter addressed " United States
° J  _, No. 2 (1890),   p. 7.
by Mr. H. F. Erench to Mr. d'Ancona.     (See See Appendix,
an
te, p. 111.)
vol. iii.
The statement of facts in this chapter establishes :—
That from the year 1867 down to the year
1886 the action of the United States and Russia,
the parties to the Treaty of Cession of 1867, is
consistent only with the view that the rights
possessed by the United States and by Russia
respectively in the waters of Behring Sea were
only those ordinarily incident to the possession of .
the coasts of that sea and the islands situated
therein.
That during that period, notwithstanding the
presence of seal-hunting craft in Behring Sea,
the United States' authorities confined the
exercise of jurisdiction to the land and waters
included within the ordinary territorial limits. 121
Chapter VII.
Contentions of United States since 1886.
Instructions to revenue-cutters.
Reports of Governor
of Alaska, 1886,
p. 48; 1887, p. 36.
Blue Book,
" United States
,No.'2(lS90),"p.45.
See Appendix,
vol. iii.
Seizure of three British vessels.
See Judge
Dawson's summing
up in case of
" Thornton," Blue
Book, " United
States No. 2
(1890;," p. 80.
See Appendix,
vol. iii.
Protest of British Government.
Head (G).—Various Contentions of the United
States since the year 1886.
The considerable development of pelagic sealing
in the North Pacific which had taken place in
the years previous to 1886 had established a very
strong competition against the Alaska Commercial Company. That Company, paying a
considerable royalty to the United States'
Government upon every skin, had now to face
the competition of the pelagic sealers, who paid
no rent or royalty. The Company therefore
exerted all its influence, especially powerful at
Washington, to check and, if possible, destroy
this competition. Till the development of the
pelagic sealing industry, the actual circumstances had been such as to allow the Company
largely to control the markets for seal-skins, and
to enable them to exercise a practical monopoly
of sealing in the North Pacific.
In the year 1886 the United States' Government for the first time furnished revenue-cutters
with instructions to prevent any vessel from
sealing in any part of Behring Sea to the eastward of the geographical limit mentioned in the
Treaty of Cession.
This action by the United States was the first
attempt to actively interfere with the right of
the vessels of other nations to navigate and fish
in the waters of Behring Sea other than territorial waters.
In pursuance of the above-mentioned orders,
three British vessels were seized during this
year while fishing outside ordinary territorial
waters, and subsequently condemned upon the
ground that the waters in which they were
fishing, formed part of the waters of Alaska and
were subject to the jurisdiction of the United
States.
Sir L. S. Sackville West, British Minister
at Washington, at once, by instruction, made a
formal protest in the name of Her Majesty's
Government against these seizures of British
vessels.
[248] R 2 1
122
Attorney-General Garland issued the following 50th Cong., 2nd • \-.
Sess., Senate Ex.
order, after the British protest:— Doc No. 106,
p. 185.
" Washington, B.C., January 26,1887.
"Judge Lafayette Dawson and M. D. Ball, United States'
District Attorney, Sitka, Alaska.
"I am directed by the President.to instruct you to
discontinue any further proceedings in the matter of the
seizure of the British vessels ' Carolena,' ' Onward,' and
' Thornton,' and discharge all vessels now held under such
seizure, and release all persons that may be under arrest
in connection therewith.
(Signed)       " A. H. Garland,
" Attorney-General."
Mr. Bayard, however, the Secretary of State, Ibid., p. 40.
wrote, on the 3rd February, 1887, to Sir L. S.
Sackville West that this order was issued '%. without  conclusion of any questions which may be
found to be involved in these cases of seizure."
Eresh seizures took place in July and August Eenewed seizures.
of 1887, and renewed protest was made by Great
Britain.
No seizure occurred in 1888, though British
sealing-vessels made large catches in that year in
Behring Sea.
In 1889 five British ships were seized in Behring
Sea, and three others were ordered out of the sea.
In 1890 no seizures were made, though a largre
number of sealers visited the sea and took seals
therein.
In 1891 an agreement was come to between " Modus Vivendi."
the United States and Great Britam,presulting in D,    „   ,
'* °        Blue Book,
a modus vivendi, for the purpose of temporarily " United states
regulating the fishery,  pending the   result   of    °g9 '      |'
expert investigation into the necessities of the See Appendix,
case.   Vessels were forbidden to take  seals in
Behring Sea for a limited period under penalty of
seizure and fine, and, on the other hand,  the
number allowed to be killed on the islands was
largely reduced.   The only seizures that have
occurred since the  establishment of the modus
vivendi have been made on the  ground  of its
infraction.*
* S«e Table on opposite pa^«* 123
Discussion in Congress of rights of
United States.
H. R., 50th Cong.,
2nd Sess., Report
No. 3883, p. 1.
To accompany
Bill H. B. 12432.
The legality of the seizures made in 1886,
1887, and 1889 became a subject of much
discussion and debate in the United States. The
uncertainty of the claim of the Government of
the United States is exemplified by the fact that
United States' sealers entered Behring Sea to
seal three or four years before the British sealers
entered, and they rapidly increased in numbers,
but were only occasionally interfered with or
seized.
During the fiftieth Session of the House of
Representatives, in 1889, the Committee on Marine
and Eisheries was directed | to fully investigate
and report upon the nature and extent of the
rights and interests of the United States in the
fur-seals and other fisheries in the Behring Sea
in Alaska, whether and to what extent the same
had been violated, and by whom; and what, if
* The following Table shows the names of the British sealing-vessels seized or warned by United
States' revenue cruizers 1886-90, and the approximate di&tance from land when seized. The
distances assigned in the cases of the " Carolena," "Thornton," and "Onward" are on the
authority of U. S. Naval Commander Abbey (see 50th Cong., 2nd Sess., Senate Ex. Doc.
No. 106, pp. 20, 40, 30). The distances assigned in the cases of the- "Anna Beck,"
"W. P. Say ward," "Dolphin," and "Grace" are on the authority of Captain Shepard,
U. S. R. M. (Blue Book, "United States No. 2 (1890)," pp. 80-82.    See Appendix, vol. iii).
Name of Vessel.
Dateof Seizure.
Approximate Distance from Land
when seized.
United States'
Vessel
making Seizure.
Carolena     ..            . •
August   1, 1886
75 miles         ..            ..            ..
Corwin.
Thornton    ..             ..
j»         1»    ,>
/ V/         ; j                               ••                           ••                           ••
3)
Onward      ..            . •
»»         2,    „
1 I O          jj                                 ••                              *  o                              • *
,J
Favourite    ..
S,                *»       '»
Warned   by   " Corwin"   in   about
same position as " Onward."
Anna Beck ..            ..
July       2, 1887
66 miles            ..            ..             ..
Rush.
"W. P. Sayward
,»          "»    »
Ui7         j,                                  ..                            ..                            ..
99
Dolphin      ..            . •
»         I",    „
*lU         ,,                                  . .                          . .                           . .
99
Grace          ..           • •
»»                    ■*•',         5>
uQ       .,                            ..                      ..                      ..
39
Alfred Adams            ..
August 10,    „
0.5      ,,                          . .                     . .                     . •
gl
Ada
„   I    25,    ,,
15    „                 ..             ..
Bean
Triumph     ..            ..
4
Warned by "Rush" not to enter
Behring Sea.
Juanita        ..            •«
July      81, 1889
66 miles            ..            ..            ..
Rush.
Pathfinder  ..            . •
29
50    „
»
Triumph     ..           • •
n g
Ordered   out  of   Behring   Sea   by
" Rush/'    [?] As to position when
warned.
Black Diamond         ..
11, „
35 miles
3)
Lily             ..           • •
August l| 6,    „
66    ,,                ..            ..
it
Ariel           ..            •.
July      30,    „
Ordered   out   of  Behring   Sea  by
"Rush."
Kate           ..
August 13,    „
Ditto ..            ..            ..            •.
99
Minnie        ..             • •
July      15,    I
65 miles            ..            • •            ..
99
Pathfinder  ..            ..
March  27, 1890
Seized in Neah Bayf       ..             ..
Corwin.
+ Neah Bay is in the State of-Washington, and the "Pathfinder" was seized there on charges
made against her in Behring Sea in the previous year.    She was released two days later. 124
any, legislation is necessary for the better protection and preservation of the same."
The Committee reported, upholding the claim Eeport of Committee of House of
of the  United  States  to  jurisdiction  over   all Eepresentatives.
waters and land included in the geographical
limits stated in the Treaty of Cession by Russia
to the United States,, and construing different
Acts of Congress as perfecting the claim of
national territorial rights over the open waters
of Behring Sea everywhere within the above-
mentioned limits.
The Report states :—
I The territory of Alaska consists of land and water, h, jj# 50th Cong.
Exclusive~of its lakes, rivers, harbours, and inlets, there is 2nd Sess., Report
a large area of marine territory which lies outside of the      "        » P-     •
3-mile limit from the shore, but is within the boundary-
lines of the territory transferred by Eussia to" the United
States."
* * * *
The concluding portion of the Report states as
follows:—
"That the chief object of the purchase of Alaska was ibid., p. 23.
the acquisition of the valuable products of Behring Sea.
" That at the date of the cession of Alaska to the
United States, Eussia's title to Behring Sea was perfect and
undisputed.
" That by virtue of the Treaty of Cession, the United
States acquired complete title to all that portion of
Behring Sea situated within the limits prescribed by the
Treaty.
" The Committee herewith report a bill making necessary
amendments of the existing law relating to these subjects,
and recommend its passage."
The Report describes these amendments as
declaring—
"The true meaning and intent of section 1956 of the Ibid., p. 24.
Eevised Statutes which prohibit the killing of fur-seals,
&c, in the waters of Alaska, and requires the President to
issue an annual Proclamation, and cause one or more
Government vessels to cruize said waters, in order to
prohibit the unlawful killing of fur-seals therein.
"The amendment increases the revenues of the Government from this source by at least 150,000 dollars per
annum."
The Bill reported contained the following
Section:—
" Section 2. That section 1956 of the Eevised Statutes jjju jj r   12432
of the United States was intended to include and apply, Blue Book, "United
and is hereby ^declared to include and apply, to all the /iroia ,'°' 24*»l
waters of Behring Sea in Alaska embraced  witMn the See Appendix,
boundary-lines mentioned   and   described   in   the   Treaty vo'*1U-
with Bussia, dated the 30th March, A.D. 1867, by which
the Territory of Alaska was ceded to the United States; 125
Conference of the Houses.
and it shall be the duty of the President, at a timely
season in each year, to issue his Proclamation, and cause
the same to be published for one month in at least one
newspaper published at each United States' port of entry
on the Pacific coast, warning all persons against entering
said Territory and waters for the purpose of violating the
provisions of said Section; and he shall also cause one or
more vessels of the United States to diligently cruize said
waters and arrest all persons, and seize all vessels found to
be, or to have been, engaged in any violation of the laws of
the United States therein."
This Bill did not pass the House of Representatives, but the above section was added by
the House as an amendment to a Bill for the
Mr. Edwardes to
Lord Salisbury,
Blue Book "United " Protection of the Salmon Fisheries of Alaska,"
States No. 2 which originated in the  Senate.    The  Senate,
See Appendix,        however, refused to accept the House amendment,
• !| and the Bill was accordingly referred to a con
ference of the Houses, and the section, as finally
modified and adopted in the Act of the 2nd March,
1889, reads as follows":—
Ibid., p. 237.
Ibid., p. 234.
International Agreement proposed.
" Section 3. That section 1956 of the Eevised Statutes
of the United States is hereby declared to include and
apply to all the dominion of the United States in the
waters of Behring Sea, and it shall be the duty of the
President, at a timely season in each year, to issue his
Proclamation, and cause the same to be-published for one
month in at least one newspaper (if any such there be)
published in each United States', port of entry on the
Pacific coast, warning all persons against entering said
waters for the purpose of violating the provisions of said
section, and he shaU cause one or more vessels of the
United States to diligently cruize said waters, and arrest
all persons and seize all vessels found to be or to have
been engaged in any violation of the laws of the United
States therein."
On the 21st March, 1889, President Harrison
issued his Proclamation accordingly, warning
"all persons against entering the waters of
Behring Sea within the domain of the United
States for the purpose of violating the provisions
of said Section 1956 of Revised Statutes."
International Agreement proposed.
On the 19th August, 1887, after the seizure of
the " W. P. Say ward," and while she was in
custody, the United States' Secretary of State
wrote identic instructions to the United States'
Ministers in Prance, Germany, Great Britain,*
* The invitation conveyed by the instructions was not, however, communicated to Great Britain until November 11, 1887.
See 50th Cong,, 2nd Sess., Senate Ex. Doc. No. 106, p. 87; and
Blue Book,«« United States No. 2 ^1890); " Sir J. Pauncefote to
Baron Plessen, October 11, 1887.    See Appendix, vol. iii. 126
Japan, Russia, and Sweden and Norway in the International Agreement proposed.
following terms :—
| Eecent occurrences have drawn the attention of this Senate, Ex. Doc,
Department to the necessity of taking steps for the better 50th Cong.,
,„ , „ ,     .     .    4?   .      „        -VTT- !! 2nd Sess., No. IOC,
protection of the fur-seal fisheries in Bering Sea.   Without pt 84.
raising any question as to the exceptional measures which
the particular character of the property in question might
justify this Government in taking, and without reference
to any exceptional marine jurisdiction that might properly
be claimed for that end, it is deemed advisable—and I am
instructed by the President so to inform you—to attain the
desired ends by international co-operation.
"It is well known that the unregulated and indiscriminate killing of seals in many parts of the world has
driven them from place to place, and, by breaking up their
habitual resorts, has greatly reduced their number.
" Under these circnmstances, and in view of the common
interests of all nations in preventing the indiscriminate j
destruction and consequent extermination of" an animal
which contributes so importantly to the commercial wealth ■
and general use of mankind, you are hereby instructed to
draw the attention of the Government to which you are
accredited to the subject, and invite it to enter into such
an arrangement with the Government of the United States
as will prevent the citizens of either country from killing
seal in Bering Sea at such times and places, and by such
methods as at present are pursued, and which threaten the
speedy extermination of those animals and consequent
serious loss to mankind.
"The Ministers of the United States to Germany,
Sweden and Norway, Eussia, Japan, and Great Britain
have been each similarly addressed on the subject referred
to in this instruction."
So to Mr. White, Secretary of the United
States' Legation in London, with reference to
this   proposition,  he  wrote,  on   the 1st  May,
1888:—
" The suggestion made by Lord Salisbury, that it may be ibid. p. 101.
necessary to bring other Governments than the United
States, Great Britain, and Eussia into the arrangements,
has already been met by the action of the Department, as
I have heretofore informed you. At the same time, thelinvi-
tation was sent to the British Government to negotiate a
Convention for seal protection in Bering Sea, a like invitation was extended to various other Powers, which have,
without exception, returned a favourable response.
" In order, therefore, that the plan may be carried out, the
Convention proposed between the United States, Great
Britain, and Eussia should contain a clause providing for
the subsequent adhesion of other Powers."
And on the Vth Pebruary, 1888, the Secretary
of State, in a despatch to the Minister at the
^s 127
50th Cong., 2nd
Sess., Senate Kx.
Doc. No. 106,
p. 89.
Court of St. James', after referrii
of seals in Behrinff Sea, wrote:—
}g to
lo killing
" The only way of obviating the lamentable result above
predicted appears to be by the United States, Great
Britain, and other interested Powers taking concerted
action to prevent their citizens or subjects from killing
fur-seals with fire-arms or other destructive weapons, north
of 50° of north latitude, and between 160° of longitude
west and 170° of longitude east from Greenwich, during
the period intervening between April 15 and November 1."
Contentions of the United States.
Judge Dawson's directions to the jury.
Case of the J Thornton."
Blue Book,
| United States
No. 2 (1890),"
p. 21.
See Appendix,
vol. iii.
Claim of jurisdiction in Behring Sea
east of 193° west longitude.
Contentions of the United States.
The Judge of the District Court of Alaska, the
Honourable Lafayette Dawson, is reported, in
.summing up the case to the jury, to have quoted
the 1st Article of the Treaty of Cession of the
30th March, 1867, and to have continued as
follows:—
"All the waters within the boundary set forth in this
Treaty to the western end of the Aleutian Archipelago and
chain of islands are to be considered as comprised within
the waters of Alaska, and all the penalties prescribed by
law against the killing of fur-bearing animals must there-
fore attach against any violation of law within the limits
heretofore described.
I If, therefore, the jury believe from the evidence that
the defendants did by themselves or in conjunction with
others, on or about the time charged in the information,
kill any otter, mink, marten, sable, or fur-seal, or other fur-
bearing animal or animals, on the shores of Alaska, or in
the Behring Sea, east of the 193° of west longitude, the
jury should find the defendants guilty, and assess their
punishment separately, at a fire of not less than 200 dollars
nor more than 1,000 dollars, or imprisonment not more
than six months, or by both, such fines within the limits
herein set forth, and imprisonment."
Case of the " Anna Beck" and other
vessels. Brief for United States'
Government.
See Blue Book,
" United States
No. 2 (1890),"
p. 112.
See Appendix,
vol. iii.
The Counsel appearing for the United States'
Government, to justify the seizure of the
" Anna Beck " and other vessels in 1887, filed
a "brief," from which the following extracts
are taken:—
"The information in this case is based on section 1956
of chapter 3 of the Eevised Statutes of the United States,
which provides that—
" \ No person shall kill any otter, mink, marten, sable, or
fur-seal, or other fur-bearing animal within the limits of
Alaska Territory or in the waters thereof.'
" The offence is charged to have been committed
130 miles north of the Island of Ounalaska, and therefore
in the main waters of that part of the Behring Sea ceded
by Eussia to the United States by the Treaty of 1867.
[248]
S 28
The
dele
nclants   demur    to   the    information    on    the
round—
'• 1. That the Court has no jurisdiction over the
defendants, the alleged offence having been committed
beyond the limit of a marine league from the shores of
Alaska.
" 2. That the Act under which the defendants were
arrested is unconstitutional in so far as it restricts the free
navigation of the Behring Sea for fishing and sealing purposes beyond the limits of a marine league from shore.
The issue thus raised by the demurrer presents squarely
the questions:—
I (1.) The jurisdiction of the United States over
Behring Sea.
" (2.) The power of Congress to legislate concerning
those waters.
" The Argument.
" The fate of the second of these propositions depends
largely upon that of the first, for if the jurisdiction and
dominion of the United States as to these waters be not sustained the restrictive Acts of Congress must fall, and if our
jurisdiction shall be sustained small question can be made
as to the power of Congress to regulate fishing and sealing
within our own waters. The grave question, one important to ah the nations of the civilized world, as well as
to the United States and Great Britain, is ' the dominion
of Behring Sea.'"
Case of the " Anna Beck | and other
vessels. Brief for United States'
Government.
After   conceding   unreservedly   the    general
doctrine of the 3-mile limit, he proceeds: —
" It thus appears that from our earliest history,
contemporaneously with our acceptance of the principle of
the marine league belt and supported by[the same high
authorities is the assertion of the doctrine of our right to
dominion over our inland waters under the Treaty of
1867, and on this rule of international law we base our
claim to jurisdiction and dominion over the waters of the
Behring Sea. While it is, no doubt, true that a nation
cannot by Treaty acquire dominion in contravention of
the law of nations, it is none the less true that, whatever
title or dominion our grantor, Eussia, possessed under the
law of nations at the time of the Treaty of Cession in
1867, passed and now rightfully belongs to the United
States.' Having determined the law, we are next led to
inquire as to whether Behring Sea is an inland water or[a
part of the open ocean, and what was Eussia's jurisdiction
over it.
"Behring Sea is an inland water.    Beginning on the
eastern coast of Asia, this body of water, formerly known
- as the Sea of Kamtchatka, is bounded by the Peninsula of
Kamtchatka and Eastern Siberia to the Behring Strait
From the American side of this strait the waters of the
- Behring Sea wash the coast of the mainland of Alaska as
far south as the Peninsula of Alaska. From the extremity
of this peninsula, in a long, sweeping curve, the Aleutian
Behring Sea said to be inland water, 129
Islands stretch in a continuous chain almost to the shores
of Kamtchatka, thus encasing the sea."
And he concludes:—
" Enough has been said to disclose the basis of Eussia's
right to jurisdiction of the Behring Sea under the law of
nations, viz., original possession of the Asiatic coast, followed by discovery and possession of the Aleutian chain
and the shores of Alaska north, not only to Behring
Strait, but to Point Barrow and the Erozen Ocean, thus
inclosing within its territory, as within the embrace of a
mighty giant, the islands and waters of Behring Sea, and
with this the assertion and exorcise of dominion over land
and sea.
"Such is our understanding of the law, such is the
record. Upon them the United States are prepared to
abide the Judgments of the Courts and the opinion of the
civilized world."
Blue Book, On the 10th September, 1887, the/ Marquis of
SIBBBkS       Salisbury,  addressing  Sir Lionel West, British
No. 2 (1890), . . .
p. 89. Minister at Washington, discussed the proceed-
See Appendix,        .       {    th   jj^^ gtates> District Court in the
vol. III. ©
cases of the "Carolena,'' "Onward," and
"Thornton." After stating that Her Majesty's
Government could not find in these proceedings
any justification for the condemnation of those
vessels, he wrote :—
Blue Book "The libels of information allege that they were seized
" United States        for killing fur-seal within the limits of Alaska Territory,
No. 2(1890)," j .    ,, .       a        ,  •      • , ..        ,       ,.      1ftKC ",.
go v       ' and m the waters thereof, in violation ot section 195b of
See Appendix, the Eevised Statutes of the United States; and the United
* "'• States' Naval Commander Abbey certainly affirmed that
the vessels were seized within the waters of Alaska and
the Territory of Alaska; but according to his own
evidence, they were seized 75, 115, and 70 miles respectively south-south-east of St. George's Island.
" It is not disputed, therefore, that the seizures in question were effected at a distance from land far in excess of
the limit of maritime jurisdiction which any nation can
claim by international law, and it is hardly necessary to
add that such limit cannot be enlarged by any municipal
law.
" The claim thus set up appears to be founded on the
exceptional title said to have bden conveyed to the United
States by Eussia at the time of the cession of the Alaska
Territory. The pretension which the Eussian Government
at one time put forward to exclusive jurisdiction over the
whole of Behring Sea was, however, never admitted
either by this country or by the United States of
America."
Opon this ground the discussion between Her
Majesty's Government  and the Government of
[248] S 2 /*^7\
130
the United States was carried on for some years
until the receipt of Mr. Blaine's despatch of the
22nd January, 1890, to Sir Julian Pauncefote,
the -British Minister at Washington, wherein a
new or modified position was taken up, and it
was asserted to be contra bonos mores to engage
in the killing of seals at sea.
Mr. Blaine, after promising Sir Julian Pauncefote to put in writing the precise grounds upon
which the United States justified the seizures,
wrote as follows:—
I In the opinion of the President, the Canadian vessels
arrested and detained in the Behring Sea were engaged in
a pursuit that is in itself contra bonos mores—a pursuit \! ' ",a,n® t0 53ir
, J. rauncetote,
which of necessity involves a serious and   permanent January 22, 1890,
injury to the rights of the Government and people of the Blue Book,
United States. " UnUed States
Mr. Blaine upon the seizures.
Sealing contra bonos mores.
" To establish this ground, it ia not necessary to argue
No. 2 (1890),
the question of the extent and nature of the sovereignty of See Appendix,
this Government over the waters of the Behring Sea; it is ' '
not necessary to explain, certainly not to define, the
powers and privileges ceded by His Imperial Majesty the
Emperor of Eussia in the Treaty, by which the Alaskan
Territory was transferred to the United States. The
weighty consideration growing out of the acquisition of
that territory, with all the rights on land and sea inseparably connected therewith, may be safely left out of
view while the grounds are set forth upon which this
Government rests its justification for the action complained of by Her Majesty's Government." ....
He argues that the practice of pelagic sealing
insures the extermination of the species, and
continues:—
" In the judgment of this Government, the law of the sea Ibid., p. 398.
is not lawlessness. Nor can the law of the sea and the
liberty which it confers and which it protects be perverted
to justify acts whi:h are immoral in themselves, which
inevitably tend to result against the interest and against
the welfare of mankind. One step beyond that which Her
Majesty's Government has taken in this contention, and
piracy finds its justification." |
On the 17 th December, 1890, Mr. Blaine again
wrote to Sir Julian Pauncefote:—
Behring Sea not included in Pacific Ocean
in Treaties of 1824 and 1825.
Blue Book,
" Legal and diplomatic questions, apparently compli- ,, Jle .7°?q. .
LJli leu  Dtill.CS
cated, are often found, after   prolonged   discussion, to No. 1 (1891),"
depend on the settlement of a single point.   Such, in the PP- 37' 38- .
judgment of the President, is the position in which the V0Uii.
United States and Great Britain find themselves in the
pending controversy touching the true construction of th
Eusso-American and Anglo-Eussian Treaties of 1824 and
1825.     Great Britain contends that the phrase 'Pacific
Ocean,' as used in the Treaties, was intended to include, 131
and does include, the body of water which is now known
as the Behring Sea. The United States contends that the
Behring Sea was not mentioned, or even referred to, in
either Treaty, and was in no sense included in the phrase
' Pacific Ocean.' If Great Britain can maintain her
position that the Behring Sea at the time of the Treaties
with Eussia of 1824 and 1825 was included in the Pacific
Ocean, the Government of the United States has no well-
grounded complaint against her. If, on the other hand,
this Government can prove beyond all doubt that the
Behring Sea, at the date of the Treaties, was understood
by the three Signatory Powers to be a separate body of
water, and was not included in the phrase | Pacific Ocean,'
then the American Case against Great Britain is complete
and undeniable." ....
Disavowal of mare clausum.
Blue Book,
I Unite 1 States
No. 1 (1891),"
p. 56.    See
Appendix, vol. iii.
Ibid., p. 41.
In the same note Mr. Blaine disavows the contention that the Behring Sea is mare clausum, but
claims that, the Ukase, which asserted exclusive
jurisdiction over 100 miles from the coast in that
Sea, was never annulled by Russia. He had in
this note previously argued " that Great Britain
and the United States recognized, respected, and
obeyed the authority of Bussia in the Behring
Sea " for more than forty years after the Treaties
with Bussia. In conclusion, he claims for the
United States the right to hold for a specific
purpose a "comparatively restricted area of
water."
Ukase of 1821 never annulled in
Behring Sea.
Ibid., p. 52.
Claim to control restricted area for
specific purpose.
Ibid., p. 54.
Ibid., p. 56,
In this note the Secretary of State thus
expresses himself:—
"The English statesmen of that day had, as I have
before remarked, attempted the abolition of the Ukase of
Alexander only so far as it affected the coast of the Pacific
Ocean from the 51st to the 60th degree of north latitude.
It was left in full force on the shores of the Behring Sea.
There is no proof whatever that the Eussian Emperor
annulled it there. That sea, from east to west, is
1,300 miles in extent; from north to south it is
1,000 miles in extent. The whole of this great body of
water, under the Ukase, was left open to the world, except
a strip of 100 miles from the shore. But with these
100 miles enforced on all the coasts of the Behring Sea, it
would be obviously impossible to approach the Straits of
Behring, which were less than 50 mile's in extreme
width." ....
"The United States desires only such control over a
limited extent of the. waters in the Behring Sea, for a part
of each year, as will be sufficient to insure the protection
of the fur-seal fisheries, already injured, possibly, to an
irreparable extent, by the intrusion of Canadian vessels'
# * * *
" The repeated assertions that the Government of the
United States demands that the Behring Sea be pro-
J *m
132
nounced mare clausum are without foundation. The
Government has never claimed it, and never desired it.
It expressly disavows it.
" At the same time the United States does not lack
abundant authority, according to the ablest exponents of
international law, for holding a small section of the
Behring Sea for the protection of the fur-seals. Controlling a comparatively restricted area of water for that
one specific purpose is by no means the equivalent of
declaring the sea, or any part thereof, mare clausum."
This disavowal of any claim to Behring Sea as Blue Book,
a mare clausum is again referred to in Mr. Blaine's !,   ^il1^
° No. 3 (1892),
despatch of the 14th April, 1891. p. 2.   See
On the 21st February, 1891, in answer to the    ppen 1X' vo * "''J
despatch of Mr. Blaine of the 17th December,
1890,   Lord    Salisbury   wrote   to   Sir    Julian
Pauncefote:—
"The effect of the discussion which has been carried on Blue Book,
between the two  Governments has been materially to     United k.:atps
i      No- 1 0S91),"
narrow the area of controversy.   It is now quite clear that p gy     gee
the advisers of the President do not claim Behring Sea as a Appendix, vo'. iii.
mare clausum, and indeed that they repudiate that contention in express terms. Nor do they rely, as a justification'
for the seizure of British ships in the open sea, upon the
contention that the interests of the seal fisheries give to
the United States' Government any right for that purpose
which, according to international law, it would not otherwise possess. Whatever importance they attach to the
preservation of the fur-seal species,—and they justly look
on it as an object deserving the most serious solicitude,—
they do not conceive that it confers upon any Maritime
Power rights over the open ocean which that Power could
not assert on other grounds.
" The claim of the United States to prevent the exercise
of the seal fishery by other nations in Behring Sea rests
now exclusively upon the interest which by purchase they
possess in a Ukase issued by the Emperor Alexander I in
the year 1821, which prohibits foreign vessels from
approaching within 100 Italian miles of the coasts and
islands then belonging to Eussia in Behring Sea."
In reply to  this, Mr.  Blaine wrote on the
14th April, 1891: —
" In the opinion of  the  President, Lord  Salisbury is Blue Book,
wholly and strangely in error in making the folio wins " United States
statement: ' Nor do they [the advisers of the President] § *     <j^e
rely as a justification for the seizure of British. ships in Ap»endix„vol. iii.
the open sea upon the contention that the interests of the
seal fisheries give to the United States' Government any
right for that purpose which, according to international
law, it would not otherwise possess.'    The Government of
the United States has steadily held just the reverse of the
position Lord Salisbury has imputed to it.    It holds that
the ownership of the islands upon which the seals breed,
that the habit of the seals in regularly resorting thither 133
Claim of property interest in seals.
and rearing their young thereon, that their going out from
the islands in search of food and regularly returning
thereto, and all the facts and incidents of their relation to
the islands, give to the United States a property interest
therein; that this property interest was claimed and
exercised by Eussia during the whole period of its
sovereignty over the land and waters of Alaska; that
England recognized this property interest, so far as recognition is implied by abstaining from all interference with
it during the whole period of Eussia's ownership of Alaska,
and during the first nineteen years of the sovereignty of
the United States.
I It is yet to be determined whether the lawless intrusion
of Canadian vessels in 1886 and subsequent years has
changed the law and equity of the case theretofore prevailing."
Case of the " W. P. Sayward."
Stenographic
Report of Arguments in Case of the  -      ,
"W. P. Sayward," H
p. 96.
See also Brief for
United States,
ex parte T. H.
Cooper, owner and
claimant of the
schooner " W. P.
Sayward," p. 166.
It does not appear, however, that the special
rights now apparently claimed by the United
States in respect of a special property in fur-
seals have ever been otherwise advanced or more
definitely formulated than as above mentioned.
In 1891, in the course oC the Argument before
the Supreme Court of the United States in the
case of the " W. P. Sayward," one of the learned
inquired    of    Mr.    Attorney-General
Miller :—
Claim of territorial jurisdiction over
100 miles.
" Do you mean that the Political Department has
decided in terms what constitute the waters of Alaska, or
only that the United States has jurisdiction over certain
waters for certain purposes ?"
To which Mr. Miller replied:—
| That is what I understand they have decided; that
they have jurisdiction, and that they have territorial jurisdiction over those waters to the extent of 100 miles."
Judgment United Mr. Chief Justice Puller, delivering the
C^LTa™ opinion of the Supreme Court of the United
T. H. Cooper,        States in the case of the " W. P. Sayward," on
owner and claimant ,,      IHRi   -,-, t -, <-,r.n        c i i     n
of the schooner the 29th h ebruary, 1892, referred to the seizures
IW. I\ Sayward," jn the following terms :—
p. 16. °
" If we assume that the record shows the locality of the
alleged offence and seizure as stated, it also shows that
officers of the United States, acting under the orders of
their Government, seized this vessel engaged in catching
seal, and took her into the nearest port; and that the Law
Officers of the Government libelled her and proceeded
against her for the violation of the laws of the United
States, in the District Court, resulting in her condemnation.
" How did it happen that the officers received such
orders ? It must be admitted that they were given in the
assertion on the part of this Government of territorial 134
jurisdiction over Behring Sea to an extent exceeding
59 miles from the shores of Alaska ;* that this territorial
jurisdiction, in the enforcement of the laws protecting seal
fisheries, was asserted by actual seizures during the seasons
of 1886,1887, and 1889, of a number of British vessels;
that the Government persistently maintains that such
jurisdiction belongs to it, based not only on the peculiar
nature of the seal fisheries and the property of the Government in them, but also upon the position that this juris-
diction^was asserted by Eussia for more than ninety years,
and by that Government transferred to the United States;
and that negotiations are pending upon the subject."
The facts stated in this chapter show :—
That the original ground upon which the
vessels seized in 1886 and 1887 were condemned,
was that Behring Sea was a mare clausum, an
inland sea, and as such had been conveyed, in
part, by Bussia to the United States.
That this ground was subsequently entirely
abandoned, but a claim was then made to
exclusive jurisdiction over 100 miles from the
coast-line of the United States' territory.
That subsequently a further claim has been
set up to the effect that the United States have
property in and a right of protection over f ur-
eals in non-territorial waters.
* The Supreme Court, however, expressed no opinion as to
the pgq,! validity * f Oie jurisdiction so asserted. 135
Chapter VIII.
Eight of protection or property in
seals outside 3-mile limit."
A novel claim.
Claim involves marc dousum.
Poixt 5 of Article VI.—Has the United States
any Right, and, if so, what Right of Protection
or Property in the Pur-Seals frequenting the
Islands of the United Stales in Behring Sea when
such seals are found outside the ordinary S-mile
limit ?
The claim involved in this question is not only
new in the present discussion, but is entirely
without precedent. It is, moreover, in contradiction of the position assumed by the United
States in analogous cases on more than one
occasion.
The claim appears to be, in this instance, made
only in respect of seals, but the principle involved
in it might be extended on similar grounds to
other animals fierce natures, such, for instance, as
whales, walrus, salmon, and marine animals of
many kinds.
Apart from the ordinary limits of territorial
iurisdiction over waters adiacent to coasts, or to
some exceptional condition based upon agreement, there is absolutely no precedent for the
assumption of the right to property in a free-
swimming animal, whose movements are uncontrolled and not controllable by man.
Pur-seals are indisputably animals fer<s
natures, and such animals have been universallv
regarded by jurists as res nullius until they are
captured. No person can have property in them
until he has actually reduced them into possession by capture.
"Why should there be a property in seals in
Behring Sea alone ? Outside Behring Sea citizens
of the United States have pursued the seals for
years as Canadians have done, and are doing,
without let or hindrance, and with the full
knowledge of the United States' Government.
The proposition that on one sislo of the Aleutian Archipelago a seal is the property of the
United States, and on the other it is the property
of any man who can catch it, cau only be supported on the ground +hat Behring Sea is the
domain of the United States, in other words, a
mare clausum.
It is, moreover, submitted that if seals before
capture constitute special property, the larceny
of a seal on the high seas by a vessel not bc-
['248'] T 136
longing to the United States is not cognizable by
the United States' Courts, and that any claim to
protection of seals beyond territorial jurisdiction
must involve mare clausum.
Whatever arguments may be brought forward
in order to induce other nations to concur in the
adoption of Regulations limiting and interfering
with their rights to fish for and catch seals or
other animals feres natures upon the high seas,
no nation under the principles of law and the
practice among nations can,' without the concurrence of all interested Powers, interfere with
vessels engaged in this pursuit when outside of
the ordinary territorial jurisdiction.
The    principle    suggested    in   the   question               Freedom of seal fisheries asserted by
,,     .        , .                                                                                             United States.
discussed   m   this chapter   has    been   steadily 	
resisted by all nations.    The Government of the
United   States   has  more than  once  distinctly
asserted the principle that the fur-seal fishery is
part of the ocean fishery, and free to all beyond
the 3-mile limit.
In 1832 the United States' schooner | Harriet," Falkland Islands.   Case of the "Hairiet.'
Davison, master, was seized by the Government
of the Republic of Buenos Ayres at the Parkland
Islands ; that Government having claimed the
right to capture and detain United States' vessels
engaged in the seal fishery at the Malvinas
(Falkland Islands) and the islands and coasts
adjacent to Cape Horn.
The United States' Charge d'Affaires wrote, on
the 20th June, 1832, to the Buenos Ayres
Minister as follows :—
" . . . . The Undersigned is instructed and authorized to British and Foreign
say,—that they utterly deny the existence of any right in  Hert^r?*™'. xx,
this Eepublic to interrupt, molest, detain, or capture any p. 335.
vessels belonging to  citizens   of the  United States  of
America, or any persons being citizens of those States
engaged in taking seals, or whales, or any species of fish or
marine animals, in any of the waters, or on any of the
shores or lands, of any or either of the Falkland Islands,
Tierra del Fuego, Cape Horn, or any of the adjacent
islands in the Atlantic Ocean."
On the 10th July, 1832, the United States'
Charge" d'Affaires wrote to the same Minister as
follows :
I But again,—if it be admitted, hypothetically, that the ibid., p. 349.
Argentine Eepublic did succeed to the entire rights of
Spain over these regions; and that when she succeeded,
Spain was possessed of sovereign rights;—the. question is
certainly worth examination, whether the right to exclude
American vessels and American citizens from the fisheries
there is incident to such a succession to sovereignty. 137
Falkland Islands seal fisheries. " The ocean fishery is a natural right, which all nations
may enjoy in common. Every interference with it by a
foreign Power, is a national wrong. When it is carried on
within the marine league of the coast, which has been
designated as the extent of national jurisdiction, reason
seems to dictate a restriction, if, under pretext of carrying
on the fishery, an evasion of the Eevenue Laws of the
country may reasonably be apprehended, or any other
serious injury to. the Sovereign of the coast, he has a right
to prohibit it; but, as such prohibition derogates from a
natural right, the evil to be apprehended ought to be a
real, not an imaginary one. No such evil can be apprehended on a desert and uninhabited coast; therefore, such
coasts form no exception to the common right of Fishing in
the seas adjoining them. All the reasoning on this subject
applies to the large ba)Ts of the Ocean, the entrance to
which cannot be defended; and this is the doctrine of
Vattel, chapter 23, section 291, who expressly cites the
Straits of Magellan, as an instance for the application of
the rule.
British and Foreign      "... .The Treaty concluded between Groat Britain and
Sjate Papers, by      g-   in  in 1790  already anuded to, is to be viewed, in
Hertslet, vol. xx, r .
p. 351. reference   to   this   subject,   because,   both   nations,   by
restricting themselves from forming Settlements, evidently
intended that the fishery should be left open, both in the
waters and on the shores uf these islands, and perfectly
free, so that no individual claim for damage, for use of
the shores, should ever arise. That case, however, could
scarcely occur, for whales are invariably taken at sea, and
generally without the marine league—and seals, on rocks
and sandy beaches, incapable of cultivation. The Stipulation in the Treaty of 1790 is, clearly, founded on the right
to use the unsettled shores for the purpose of fishery, and
to secure its continuance."
Mr. Robert Greenhow, whose works have
already been quoted, in a series of articles
on the Falkland Islands, written for " Hunt's
Merchants' Magazine," in February 1812, refers
to the claim set up by Buenos Ayres respecting
the jurisdiction of the Republic and the application of its laws and regulations " especially those
respecting the seal fishery on the coast."
Mr. Greenhow says :—
Hunt's " Merch-5 " T° proceed another step in admissions.    Supposing the
ants' Magazine,"      Argentine Eepublic to have really and unquestionably
p 137 inherited from  Spain  the  sovereignty of the territories
adjoining it on the south, and the contiguous islands, that
Government would  still want the  right to  extend  its
' Eegulations respecting the seal fishery' to the unsettled
portions of the coasts of those territories.    That right was
indeed assumed by Spain, with many equally unjust, which
were enforced so long as other nations did not find it
prudent to contest them.     But as  the Spanish power
waned, other nations claimed their imprescriptible rights ;
f248] T 2
J 13 5
they insisted on navigating every part of the open sea, and Falkland Islands seal fisheries.
of its unoccupied straits and harbours, with such limita- 	
tions only as each might choose to admit by Treaty with
another; and they resorted to the North Pacific coasts of
America for trade and settlement, and to the southernmost
shores of the continent for the seal fishery, without regard
for the exclusive pretensions of Spain to the sovereignty of
those regions. Of the hundreds of vessels, nearly all
American, which annually frequented the coasts and seas
above mentioned after 1789, not one was captured or detained
by the Spanish authorities ; and long before the revolutions
in Southern America began, the prohibitory Decrees of the
Court of Madrid and of its Governors, relative to those
parts of the world, had become obsolete, and the warnings
of its officers were treated as jests.
" The common right of all nations to navigate and fish
in the open sea, and in its indefensible straits, and to use
their unsettled shores for temporary purposes, is now
admitted among the principal Maritime Powers; and the
stipulations in Treaties on those subjects, are intended to
—prevent disputes as to what coasts are to be considered
as unsettled,—what straits are indefensible,—within what
distance from a settled coast ihe sea ceases to be open, &c.
" The Governments of Spanish American Eepublics
have, however, in many instances exhibited a strong indisposition to conform with these and other such Eegula-
tions of national law, though clearly founded on justice
and reason, and intended clearly for the benefit of the
weak, to which class they all belong."
He also refers to the case of the " Harriet" as
follows:—
" . . . . The President at the same time declared, that Hunt's | AJereh-
the name of the Eepublic of Buenos Ayres 'had been used, ants' Magazine,"
to cover with a show of authority, acts injurious to the *eb™ir.v l842»
commerce of the United States, and to the property and
liberty of their citizens; for which reason, he had given
orders for the dispatch of an armed vessel to join the
American squadron in the south seas, and aid in affording
all lawful protection to the trade of  the Union, which
might be required ; and he should without delay send a
Minister to Buenos Ayres, to examine into the nature of
the circumstances, and also of the claim set up by that
Government to the Falkland Islands.
" . . . . The question had, however, become more com- Ibid., p  144.
plicated  before  the   arrival  of   Mr.   Baylies at  Buenos
Ayres.
"The 'Lexington' reached Berkeley Sound on the
28th December, and lay at the entrance, during a severe
gale, until the 31st, when she went up and anchored in
front of the harbour of Soledad. Boats were immediately
sent ashore, with armed seamen and marines, who made
prisoners of Brisbane, Metcalf, and some other persons,
and sent them on board the ship; the cannon mounted
before the place were at the same time spiked, some of the
arms and ammunition were destroyed, and the seal-skins 139
Halifax Fisheries Commission
Mr. Dana's speech.
Record of the
Proceedings of
Halifax Fisheries
Commission, 1377,
p. 1653.
and other articles taken from the ' Harriet' and ! Superior'
were removed from the warehouses, and placed in the
schooner ' Dash,' which carried them to the United States.
Captain Duncan then gave notice to the inhabitants that
the seal fishery on those coasts was in future to be free to
all Americans ; and that the capture of any vessel of the
United States would be regarded as an act of piracy; and
having affixed a,declaration in writing td that effect on
the door of the Government-house, he took his departure,
on the 22nd January, 1832, carrying with him in the
' Lexington,' Brisbane and six other persons as prisoners,
-with many of the negroes and settlers as passengers "
Air. R. H. Dana, in his speech on behalf of
the United States before the Halifax Fisheries
Commission in 1887, says :—
" The right to fish in the sea is in its nature not real, as
the common law has it, nor immovable, as named by the
civil law, but personal. It is a liberty. It is a franchise
or a faculty. It is not property pertaining to or connected
with the land. It is incorporeal; it is aboriginal. The
right of fishing, dropping line or net into the sea, to draw
from it the means of sustenance, is as old as the human
race, and the limits that have been set about it have been
set about it in recent and modern times, and wherever the
fisherman is excluded, a reason for excluding him should
always be given. I speak of the deep sea fishermen
following the free-swimming fish ihrough the sea, not
of the crustaceous animals, or of any of those that connect
themselves with the soil under the sea or adjacent to the
sea, nor do I speaks of any fishing-which requires possession of the land or any touching or troubling the bottom of
the sea; I speak of the deep-sea fishermen who sail over
the high seas pursuing the free-swimming fish of the high
seas. Against them, h is a question not of admission, but
of exclusion. These fish are not property'. Nobody owns
them.    They come we know not whence, and go we know
not whither.
* * * *
" They are no man's property ; they belong, by right of
nature to those who take them, and every man may take
them who can."
Di. Woolsey's opinion
Sec 59, p. 73,
sixth edition.
Dr. Woolsey, in the sixth edition of his Treatise
on International Law, says :—
" The recent controversy between Great Britain and the
United States involving the right of British subjects to
catch seals in North Pacific waters appears to be an
attempted revival of these old claims to jurisdiction over
broad stretches of sea. That an international agreement
establishing a rational close season for the fur-seal is wise
and necessary no one can dispute, but to prevent foreigners
from sealing on the high sea or within the Kamschatkan
Sea (which is not even inclosed by American territory, its f^1
140
west and north-west shores being Eussian) is as unwarranted as if England should warn fishermen of other
nationalities off the Newfoundland banks.
In the absence of any indication as to
the grounds upon which the United States
base so unprecedented a claim as that of a
right to protection of or property in animals
feros natures upon the high seas, the further
consideration of this claim must of necessity be
postponed; but it is maintained that, according
to the principles of international law, no property
can exist in animals feree natures when frequenting
the high seas. 141
Chapteb. IX.
General Conclusions upon the whole Case.
General conclusions. jt now remains to state the   principles   of
law applicable to the whole Case, some authorities bearing thereon, and the conclusions
of fact established by the foregoing statement,
and to formulate the final propositions both of
law and of fact, upon which Great Britain will
insist.
Behring Sea an opensea. The sea now known as Behring Sea is an open
sea forming part of the common highway of all
nations, and especially of Great Britain to her
possessions in the northern parts of North
America. In the absence of Treaty or international arrangement, all the nations of the
world have the right to navigate and fish in such
waters, and no mere declarations or claims by any
one or more nations can take away or restrict the
rights of other nations. Moreover, mere non-
use or absence of the exercise by any nation of
her rights cannot in any way impair or take
away the right of that nation or of any other
nation to exercise these rights. They are, in
fact, the common heritage of all mankind, and
incapable of being appropriated by any one or
more nations.
Kent's § Com- The rights and interests of nations in the open
9th edition, Boston, sea are correctly stated by Chancellor Kent as
1858, p. 29. ' follows :—
" The open sea is not capable of being possessed as
private property. The free use of the ocean for navigation
and fishing is common to all mankind, and the public
jurists generally and explicitly deny that the [main ocean
can ever be appropriated."
Wheaton, The controversy between Grotius and Selden
edhknThv Dana     as ^° ^e right of appropriation by a nation of
1866, p. 269. the sea beyond the immediate vicinity of the
coast is thus reviewed by "Wheaton :—
I There are only two decisive reasons applicable to the
question. The first is physical and 'material, which would
alone be sufficient; but when coupled with the second
reason, which is purely moral, will be found conclusive of
the whole controversy.
" 1. Those things which are originally the common property of all mankind can only become the exclusive property of a particular individual or society of men, by
means of possession. In order to establish the claim of a
particular nation to a right of property in the sea, that
nation must obtain and keep possession of it, which is
impossible. 142
" 2. In the second place, the sea is an element which
belongs equally to all men, like the air. No nation, then,
has the right to appropriate it, even though it might be
physicially possible to do so.
" It is thus, demonstrated that the sea cannot become the
exclusive property of any nation.    And, consequently, the
Cf. Ortolan,
Diplomatic de la
i j   Mer," torn. I,
use  of   the sea- tor these purposes,  remains  open  and        ion-1^6
common to all mankind."
In   a   note   on   this
Mf. Dana adds that—
passage   of   Wheaton,
"The right of one nation, or of several:nations, to an
exclusive jurisdiction over an open sea, was, as stated in
the text, rested solely on a kind of prescription. But
however long acquiesced in, such an appropriation is inadmissible, in the nature of things; and whatever may be the
evidence of the time or nature of the use, it is set aside as
a bad usage, which no evidence can make legal."
No prescription in open sea.
Sir R-. Phillimore writes:—
| The right of navigation, fishing, and the like, upon the Phillimore, § Inter-
open sea, being jura merm facultatis, rights which do not na™011^1 .L,aw»
. . . .      . . .   .        2nd edition, 1871,
require a continuous exercise to maintain their validity, i s 174.
but which may or may not be exercised according to the
free will and pleasure of those entitled to them, can neither
be lost by non-user or prescribed against, nor acquired to
the  exclusion  of  others  by having been  immemorially
exercised by one nation only.    No presumption can arise
that those who have not hitherto exercised such rights,
have abandoned the intention of ever doing so."
The following position was correctly taken by
the United States in 1862, and, it is presumed,
will be adhered to by that country to-day.
In that year Spain pushed her claim to an
^tended jurisdiction round the Island of Cuba.
Secretary Seward wrote:—
'• It cannot be  admitted,  nor  indeed  is  Mr.  Tessara  Mr. Seward to
jufiderstood to claim, that the. mere assertion of a Sovereign, Mr. lessara.
„,     .' . . , >«      Wharton Digest of
by an act of  legislation, however solemn, can have the «international
effect to establish and fix its external maritime jurisdic- Law," vol. i,
ton     He  cannot,> by a mere Decree,  extend  the sec"     ' P-
limit and fix it at 6 miles, because, if he could, he could <, tt • ., §|ll||
in   the   same   manner,  and   upon   motives  of   interest, No. 2 (1893),"
ambition, and even upon caprice, fix it at 10, or 20, or P- ° .        ,.
. ^>ee Appendix,
50 miles, without the consent or acquiescence of  other voj i,j_
Powers which have a common right with himself in the
freedom of all the oceans.    Such a pretension could never
be successfully or rightfully maintained.''
Position taken bv United States in
1862: Cuba.
It is claimed by Great Britain that the facts
already stated establish :—
(A.) That from the earliest times down to the chapter I.
year  1821  tbe  shins of Great Britain and the
ii 143
General conclusions. United States and of other foreign nations navi
gated the non-territorial waters of Behring Sea
and the other parts of the North Pacific, and
exercised freely the natural and common rights
therein without interference or remonstrance by
Russia.
Chapter u. (B.) That when, in the year 1821, Russia, in
the terms of the Ukase of that date, advanced
claims to exercise control over a considerable
portion of the non-territorial waters of the North
Pacific (including a large part of the non-territorial waters [of Behring Sea) as over a mare
clausum, the practice of nations and their
admitted rights upon the high seas were already
entirely opposed to any claim to such exclusive
and exceptional rights as were embodied in or
implied by the Ukase.
That this attempt on the part of Russia led to
immediate and emphatic protests by Great Britain
and the United States, which protests led to the
withdrawal of Russia's claims. That those claims
were never recognized or conceded by Great
Britain in the smallest degree.
That, in view of the continued practice of
nations and the growth of the principles of
international law since 1821, the arguments then
employed by Great Britain and the United States
have to-day, if possible, even greater weight than
at that period.
Chapter III. (C.) That the body of water now commonly
known as | Behring Sea " is included in the phrase
" Pacific Ocean " as used in the Treaty of 1825
between Great Britain and Russia, and that that
Treaty was intended to declare the rights of Great
Britain to navigate and fish in all the waters
over which Russia had attempted to control and
limit such rights, that is to say, from Behring
Strait on the north to latitude 51° on the coast of
America, and latitude 45° 50' on the coast of Asia.
Chapter IV. (D.) That for a period of more than forty
years, that is to say, from 1821 to 1867, the
subjects and vessels of Great Britain and the
United States and other nations continued in
increasing numbers to navigate, trade, and fish in
* the waters of Behring Sea, and that during the
whole of that period no attempt was made on the
part of Russia to reassert or claim any dominion
or jurisdiction over the non-territorial waters of
that sea; but that, on the contrary, the right of
all nations to navigate, fish, and exercise common
rights therein was fully recognized.
[248] U 144
(E.) That at the time of the acquisition of Chapter V.
Alaska by the United States pursuant to the
Treaty of the 30th March, 1867, Russia had no
rights in respect of Behring Sea other than those
which belonged to her as possessing territories
washed by its waters, and could not transmit to
the United States any~ rights of exclusive
dominion or control over navigation and fishing
in non-territorial waters, and the United States of
America acquiring as they did all the rights of
Russia, acquired no more.
Further, that at the time of the acquisition
the United States of America was fully alive to
the fact that the non-territorial waters of Behring
Sea were open to the ships of all nations for the
purpose of the exercise of the common rights of
navigation and fishing.
That as to the rights which Russia possessed
at the time of the Treaty of 1867, and which
were transferred to the United States by virtue
of that Treaty, the ordinary rule as to the extent
of maritime jurisdiction applied.
Admitting, in the consideration of this question,
that Russia's title before 1867 to the coast of
Behring Sea and to the islands within those .
waters was complete, an examination of the
principles of international law and the practice
of nations will show that her jurisdiction (subject
to the question of embayed or inland waters) was
confined to the distance of 1 marine league or
3 miles from her shores.
Ortolan, in his "Diplomatic de la Mer,"
pp. 145, 153 (Cdition 1864), says :—
Authorities as to the 3-mile limit.
Ortolan.
" On doit ranger sur la meme ligne que les rades et les Proceedings of
,i lf-it.- .        ^ /- Halifax Fisheries
ports,  les golfes et les  baies  et tous les enfoneements Commission  1877
connus sous d'autres denominations, lorsque ces enfonce- p. 163.
ments, formes par les terres d'un meme ICtat, ne depassent
pas en largeur la  double portee du canon,  ou lorsque
l'entre'e petit en etre gouvernee par l'artillerie, ou qu'elle
est d^fendtte naturellement par des iles, par des bancs, ou
par des roches.    Dans tous ces cas, en effet, il est vrai de
dire que ces golfes ou ces baies sont en la puissance de
l'Etat maltre"du| territoire qui les enserre.    Cet liltat en a
la possession; tous les raisonnements que nous avons fait
a regard des rades et des ports peuvent se rep^ter ici.
# * * *
"Les bords et rivages de la mer qui baigne les cotes Ortolan, p. 153.
d'un Etat sont les limites maritimes naturelles de cet Etat.
Mais pour la protection, pour la de'fense^ius^efficaee de
ces limites naturelles, la coutume generate des nations,
d'aocord avec beaucoup de Trails publics, permet de
tracer sur mer  a une distance convenable des c6tes, et
i 145
suivant leurs contours, une ligne imaginaire qui doit etre
consideree comme la frontiere maritime artificielle. Tout
batiment qui se trouve a terre de .cette ligne est dit etre
dans les eaux de l'Etat dont elle limite le droit de souverainete et de juridiction."
Case of the " Washington.'
Mr. Joshua Bates' decision.
Proceedings of-
Halifax Fisheries
Commission, 1877,
p. 152.
Under the clauses of the Convention of the
8th February, 1853, the case of the " Washington " (which had been seized in the Bay of
Fundy and confiscated in the Vice-Admiralty
Court at Yarmouth, N.S.) came before the Joint
Commission for settlement of claims in London,
and on the disagreement of the Commissioners
was decided by the Umpire, Mr. Joshua Bates,
in favour of tne United States. In his decision
he said:—
" The question turns, so far as relates to the Treaty
stipulations, on the meaning given to the word ' bays' in
the Treaty of 1783. By that Treaty, the Amerioans had
no right to dry and cure fish on the shores and bays of
Newfoundland; but they had that right on the shores,
coasts, bays, harbours, and creeks of Nova Scotia; and, as
they must land to cure fish on the shores, bays, and
creeks, they were evidently admitted to the shores of the
bays. &c. By the Treaty of 1818 the same right is
granted to cure fish on the coasts, bays, &c, of Newfoundland ; but the Americans relinquished that right, and the
right to fish within 3 miles of the coasts, bays, &c, of Nov'Ct,
Scotia. Taking it for granted that the framers of the
treaty intended that the word ' bay' or ' bays' should have
the same meaning in all cases, and no mention being made
of headlands, there appears no doubt that the 'Washington,'
in fishing 10 miles from the shore, violated no stipulations
of the Treaty.
" It was urged, on behalf of the British Government,
that by ' coasts,' j bays,' &c, is understood an imaginary
line drawn along the coast from headland to headland, and
that the jurisdiction of Her Majesty extends 3 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 British bay. This doctrine of the headlands is new,
and has received a proper limit in the convention between
France and Great Britain of the 2nd August, 1839; in
which ' it is agreed that the distance of 3 miles, fixed as
the general limit for the exclusive right of fishery upon
the coasts of the two countries, shall, with respect to bays
the mouths of which do not exceed 10 miles in width, be
measured from a straight line drawn from headland to
headland.'
" The Bay of Fundy is from 65 to 75 miles wide and
130 to 140 miles long; it has several bays on its coast;
thus the word ' bay,' as applied to this great body of watery
has the same meaning as that applied to the Bay of
Biscay, the Bay of Bengal, over which no nation can have
L248]
U 2
J 146
the right to assume sovereignty. One of the headlands of
the Bay of Fundy is in the United States, and ships bound
to Passamaquoddy must sail through a large space of it.
The islands of Grand Menan (British) and Little Menan
(American) are situated nearly on a line from headland to
headland. These islands, as represented in all geographies,
are situated in the Atlantic Ocean. The conclusion is,
therefore, in my mind irresistible that the Bay of Fundy
is not a British bay, nor a bay within the meaning of the
word as used in the Treaties of 1783 and 1818."
The Agent for the United States before the
Halifax Fisheries Commission, 1877, quotes this
decision, and adds the following note :—
" This Convention between France and Great Britain  Proceedings of
extended the headland doctrine to bays 10 miles wide; oommjssjOI1 1377
thus going beyond the general rule of international law, p. 153 (note),
according to which no bays are treated as  within the
territorial jurisdiction of a State  which are more than
6 miles wide on a straight line measured from one head-
land to the other."
The  principle  of the  marine  league was  in Secretary Boutwell's opinion.
1872 applied by Mr. Boutwell, United States' gee an(g      108
Secretary to the Treasury, in his letter of instruc- 109.
tions   to   the   Collector   of  Customs   at   San
Francisco, dated 19th April, 1872, already quoted,
as follows:—
" I do not see that the United States would have the
jurisdiction or power to drive off parties going up there
for that purpose [to take fur-seals], unless they made such
attempt within a marine league of the shore."
The same principle was affirmed in respect of Secretary Fish's op:nion.
the waters now in question by Mr. Fish, the
United States' Secretary of State, who wrote to See ante, p. 109.
the United States' Legation in Russia on the
1st December, 1875 :—
"There was reason to hope that the practice, which Wharton's
formerly prevailed with powerful nations, of regarding n \qr  ' '
seas and bays, usually of large extent near their coast, as
closed to any foreign commerce or fishery not specially
licensed by them, was, without exception, a pretension of
the past, azd that no nation would claim exemption from
the general rule of public law which limits its maritime
jurisdiction to a marine league from its coast. We should
particularly regret if Russia should insist on any such
pretension."
The same position wes taken up by the United
States in their brief filed with the Halifax
Fisheries Commission in 1877.
The Agent of the United States at Halifax, 147
after setting out the various authorities under
this head concluded as follows:—
Authorities quoted by the United States " The jurisdiction of a State or country over its adjoining
in Halifax Fisheries#Commission. waters is limited to 3 miles from low-water mark along its
t>       ,.       »        sea-coast, and the same rule applies equally, to bays and
l roceedmgs of rr *      J J
Halifax Fisheries     gulfs whose width exceeds 6 miles from headland to
commission, 1877,  headland.   Propertv in and dominion over the sea can
p. 162. . , .
only exist as to those portions capable of permanent possession ; that is, of a possession from the land, which possession can only be maintained by artillery. At one mile
beyond the reach of coast-guns there is no more possession
than in mid-ocean. This is the rule laid down by almost
all the writers on international law."
As to inland seas and seas over which empire
may extend, the following authorities were
referred to by the Agent in the same brief:—
Vattel. I At present," says Vattel, " Law of Nations," Book 1,
  ch. xxiii, §§ 289, 291, " the whole space of the sea within •
Did., p. it2. cannon-shot of the coast is considered as making a part of
the territory; and, for that reason, a vessel taken under
the guns of a neutral fortress is not a good prize.
" All we have said of the parts of the sea near the coast
may be said more particularly, and with much greater
reason, of the roads, bays, and straits, as still more capable
of being occupied, and of greater importance to the safety
of the country. But I speak of the bays and straits of
small extent, and not of those great parts of the sea to
which these names are sometimes given—as Hudson's
Bay and the Straits of Magellan—over which the Empire
cannot extend, and still less a right of property. A bay
whose entrance may be defended may be possessed and
rendered subject to the laws of the Sovereign ; and it is of
importance that it should be so, since the country may be
much more easily insulted in such a place than on the
coast, open to the winds and the impetuosity of the
waves."
Bluntsclih. Professor Bluntschli, in his " Law of Nations,"
Book 4, §§ 302, 309, states the rule m the same
way :—
" When the frontier of a State is formed by the open
sea, the part of the sea over which the State can from the
shore make its power respected—i.e., a portion of the sea
extending as far as a cannon-shot from the coast—is
considered as belonging to the territory of that State.
Treaties or agreements can establish other and more
precise limits."
"Note.—The extent practised of this sovereignty has
remarkably increased since the invention of far-shooting
cannon. This is the consequence of the improvements
made in the means of defence, of which the State makes
use.   The sovereignty of States over the sea extended
Ibid., p. 163. 148
originally only to a stone's-throw from the coast; later, to
an arrow-shot; fire-arms were invented, and by rapid
progress we have arrived to the far-shooting cannon of the
present age. But still we preserve the principle : ' Terra)
dominium finitur, ubifinitur armorum vis! "
"Within certain limits, there are submitted to the
sovereignty of the bordering State:—
" (a.) The portion of the sea placed within a cannon-
shot of the shore.
"(5.) Harbours.
"(c.) Gulfs.
"(d.) Roadsteads."
" Note.—Certain portions of the sea are so nearly joined
to the terra firma, that, in some measure at least, they
ought to form a part of the territory of the bordering
State; they are considered as accessories to the terra fi/rma.
The safety of the State, and the public quiet, are so dependent on them that they cannot be contended, in certain
gulfs, with the portion of the sea lying under the fire of
cannon from the coast. These exceptions from the general
rule of the liberty of the sea can only be made for weighty
reasons, and when the extent of the arm of the sea is not
large; thus, Hudson's Bay and the Gulf of Mexico
evidently, are a part of the open sea. No one disputes the
power of England over the arm of the sea lying between
the Isle of Wight and the English coast, which could not
be admitted for the sea lying between England and Ireland;
the English Admiralty has, however, sometimes maintained the theory of ' narrow ^ieas;' and has tried, hut
without success, to keep for its own interest, under the
name of ' King's Chambers,' some considerable extents of
the sea."
Klilber, "Droit des Gens Modernes de l'Europe                                    Kluber.
(Paris, edition 1831)," torn, i, p. 216:— 	
" Au territoire maritime d'un Etat appartiennent les Proceedings of
districts  maritimes, ou parages  susceptibles  d'Une  pos-  Halifax Fisheries
,    . . .   vr: .     , Commission, 1877,
session exclusive, sur iesquels 1 Mat a acquis (par occu- p j q$
pation ou convention) et continue la souverainete.    Sont
du ce nombre (1) les parties de l'ocdan qui avoisinent le
territoire continental de l'Etat, du moins, d'apres l'opinion
pnisque generalenient adoptee, autant qu'elles se trouvent
bous la ported du canon qui serait prac6 sur le rivage;
(2) les parties de l'ocean qui s'etendent dans le territoire
continental de l'Etat, si elles peuvent 6tre gouverndes par le
canon des deux bords, ou que l'entrde seulement en peut
''Lro defendue  aux   vaisseaux   (golfes, baies, et cales);
(3) les detroits qui sdparent deux continents, et qui dgale-
ment sont sous la portde du canon place" sur le rivage, ou
dont l'entrde et la sortie peuvent £tie d&fendues (ddtroit,
canal, bosphore, sonde).    Sont encore du me'me nombre:
(4) les golfes, detroits, et mers avoisinant le territoire
continental d'un Etat, Iesquels, quoiqu'ils ne soient pas
entierement sous la portde du canon, sont ndanmoins
reconnus par d'autres Puissances comine mer   fermde \ 149
e'est-a-dire, comme soumis a une domination, et, par consequent, inaccessibles aux vaisseaux etrangers qui n'ont
point obtenu la permission d'y naviguer."
This view, moreover, was emphatically maintained on behalf of the United States on tho
occasion of the seizures in the year 1887.
The following is the extract from the Brief of
*o
the United States on this occasion
Brief for the United States, Sitka, "Concerning the doctrine of international law  esta-
in 1887
blishing what is known as the marine league belt, which
Brief for the extends the-jurisdiction of a nation into adjacent seas for
United States j^g distance of 1 marine league, or 3 miles from its shores,
Filed at Sitka i  s n     ■        P   i i • • -,
October 12 1887.    ^nc* I0ll°wing all the indentations and sinuosities of its
" New York coast, there is at this day no room for discussion.   It must
18^1887   c ° er     be accepted as the settled law of nations.    It is sustained
Blue Book, by the highest authorities, law-writers, and jurists.    It has
''United States        keen sanctioned by the United States since the foundation
p jj2. of the Government.    It was affirmed by Mr. Jefferson,
See Appendix, Secretary of State, as early as  1793, and has been re
affirmed by his successors—Mr. Pickering, in 1796;
Mr. Madison, in 1807; Mr. Webster, in 1842; Mr.
Buchanan, in 1849; Mr. Seward, in 1862, 1863, and
1864; Mr. Fish * in 1875 ; Mr. Evarts, in 1879 and 1881;
See Lord Lans-        and Mr. Bayard, in 1886."   (Wheaton's [Wharton] | Inter-
downe to national Law," vol. i, sec. 32, pp. 100 and 109.)
Mr. Stanhope. „ _, ,   ,.       , j    ,        ,. „ ,
November 27 1886.        Sanctioned thus by an unbroken line ot precedents
Blue Book, covering the first century of our national existence, the
\r  "n/irnn1^       United States would not abandon this doctrine if they
No. 2 (1890),' J
p. 28. could; they could not if they would."
Appendix, vol. iii.
* This probably refers to Mr. Fish's letter already quoted at
p. 109, or to bis letter to Sir EJ. Thornton, dated the
22nd January, 1875, which is as follows:—
*' The instruction from the Foreign Office to Mr. Watson of
the 25th December last, a copy of which was communicated
by that gentleman to this Department in his note of the
17th October, directs him to ascertain the views of this Government in regard to the extent of maritime jurisdiction which can
properly be claimed by any Power, and whether we have ever
recognized the claim of Spain 1o a 6-mile limit, or have ever
protested against such claim.
" In reply, I have the honour to inform you that this Government has uniformly, under every Administration which has had
occasion to consider the subject, objected to the pretension of
Spain adverted to, upon the same ground and in similar terms to
those contained in the instruction of the Earl of Derby.
-.' We have understood and asserted that, pursuant to public
law. no nation can rightfully claim jurisdiction at sea beyond a
marine league from the coast.
" This opinion' on our part has sometimes been said to be
inconsistent with the facts that, by the law of the United States,
revenue cutters are authorized to board vessels anywhere within
4 leagues of their coasts, and that by the Treaty of Guadalupe-
Hidalgo, so called between the United States and Mexico, of trie
2nd February, 1848, the boundary-line between the dominions of
the parties begins in the Gulf of Mexico, 3 leagues from land."
And lie ptoceeds to explain these two instances as being
exceptional. . . . (Wharton, " International Law," vol. i, p. 105.) *m
150
m,     -r,      .        , .      , ,        ,. •    • j- Effect of cession of Alaska on mare
The Russian claim to extraordinary junsdic- clausum doctrine.
tion was expressly founded on a supposed right 	
to hold a portion of the Pacific as mare clausum,
because that nation claimed the territory on both
sides.    Even if this claim had been well founded
the Treaty of 1867 destroyed it, since the sea was .
no longer shut in or surrounded by the territory
of one nation.
On this subject Ortolan writes : — Ortolan.
"' Quant aux mers particulieres et interieures, un droit _. , ,     1 n * .
. , Ortolan, " Itegles
exclusif de domaine et de souverainete' de la part d'une Internationales et
nation sur une telle mer n'est incontestable qu'autant que Diplomats de la
Alcr "4^ Edition
cette mer est totalement enclave^ dans le territoire de \om'\ p. 147.
telle sorte qu'elle en fait partie integrante, et qu'elle ne
peut absolument servir de lien de communication et de
commerce qu'entre les seuls citoyens de cette nation.
Alors, en effet, aucune des causes qui font obstacle soit a
la propri£te\ soit a l'empire des mers, ne trouve ici son
application. Mais du moment que plusieurs Etats
differents possedent des cotes autour de cette mer, aucun
d'eux ne peut s'en dire propri^taire ni souverain a l'exclu
sion des autres.'"
Sir Travers Twiss writes to the same effec*t:— Twhs.
"If a sea is entirely inclosed bv the territory of a ,, n. ,.       ,
3 J i " Rights and
nation, and has no other communication with the ocean Duties of Nations
than by a channel, of which that nation may take pos- in time of Peace,"
TQQ'l'r*      tjQQ
session, it appears that such a sea is no less capable of        '
being occupied and becoming property than the land, and
it ought to follow the fate of the  country that surrounds it."
So Halleck says:— Halleck.
" 21. It is generally admitted that, the territory of a Halleck's
State'includes the seas, lakes, and rivers entirely inclosed International Law,
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 considered as a mare clausum;
and there seemed no reason to question the right of the
Ottoman Porte to exclude other nations from navigating
the passage which connects it with the Mediterranean,
both shores of uthis passage being also portions of the
Turkish territory. But when Turkey lost a part of her
possessions bordering upon this sea, and Kussia had formed
her commercial establishments on the shores of the
Euxine, both that Empire and other Maritime -Powers
became entitled to participate in the commerce of the
Black Sea, and consequently to the free navigation of the
Dardanelles and the Bosphorus.    This right was expressly
recognized by the Treaty of Adrianople in 1829.
* * * *
" 22. The great inland lakes, and their navigable outlets
are considered as subject to the same rule as inland seas :
where inclosed within the limits of a single State, they
are regarded as belonging to the territory of that State ;
but if different nations occupy their borders, the rule of
mare clausum cannot be applied to the navigation and use
of their waters." The view expressed by the above authorities
has been officially adopted by an accredited
Representative of the United States, so that it is
perhaps unnecessary to insist further upon it in
this connection.
Mr. Hoffman. On the 14th March, 1882, Mr. Hoffman wrote
from the Legation of the United States at St.
Petersburg to Mr. Erelinghuysen, Secretary of
State, in a letter already quoted:—
Mr. Hoffman to " In the time when Bussia owned the whole of these
Mr. Frelinghuysen, iglande hev Eepresentatives in Siberia claimed that the
March 14, 1882. ^ .
50th Congress, Sea of Okhotsk was a mare clausum, for that Bussian
2nd Sess., Senate     iurisdiction   extended   from   island  to  island  and  over
Ex. Doc. No. 106,   J. . PII ill . T .
p. 260    See ^  marine   leagues  of   intermediate  sea from  J apan to
Appendix, vol. ii,     Kamtchatka.
Part II, No. 13. | But ^^ fiye yegjg ag0 Kussia cec[ec| t^e southern
group of these islands to Japan in return for the half of
the Island of Saghalien, which belonged to that Power.
" As soon as this was done, it became impossible for the
Siberian authorities to maintain their claim.    My informant  was  not aware  that this  claim  had   ever   been
, seriously made at St. Petersburg."
And on the  27th  March,  1882,  he further
wrote :—
Mr. Hoffman to " I do not think that Bussia claims that the Sea of
Mr. Frelinghuysen, Okhotsk is a mare clausum, over which she has exclusive
March 27, 1882	
50th Congress jurisdiction.    If she does, her claim is not a tenable one,
2nd Sess,, Senate     since the cession of part of the group of the Kurile Islands
Ex'P,°C'a°' 106'   to Japan, if it ever were tenable at any time."
p. 261.    oee A J
Appendix, vol. ii,
Part II, No. 14.
Professor AnselL Professor James B. Angell, one of the United
_    .       1 States'  Plenipotentiaries  in the negotiation  of
See Appendix, ^ °
vol. i, No. 8. the Fisheries Treaty at Washington in 1888, and
an eminent jurist, in an article entitled "American
Rights in Behring Sea," in | The Porum " for
November-1889, wrote :—
" Can we sustain a claim that Behring Sea is a closed sea,
and so subject to "our control ? It is, perhaps, impossible
to frame a definition of a closed sea which the publicists
of all nations will accept. Vattel's closed sea is one
' entirely inclosed by the land of a nation, with only a
communication with the ocean by a channel of which that
nation may take possession.' HautefeuiUe substantially
adopts this statement, asserting more specifically, however,
that the channel must be narrow enough to be defended
from the shores. Perels, one of the more eminent of the
later German writers, practically accepts Hautefeuille's
"definition. But so narrow a channel or opening as that
indicated by the eminent Erench writer can hardly be
insisted on. Probably, most authorities will regard it as
a reasonable requirement that the entrance to the sea
should be narrow enough to make the naval occupation of
it easy or practicable. We, at least, may be expected to
[248] X'
o
S 152
prescribe no definition which would make the Gulf of
St. Lawrence a closed sea.
" Behring Sea is not inclosed wholly by our territory.
Erom the most western island in our possession to the
nearest point on the Asiatic shore is more than 300 miles-
Prom our most western island (Attou) to the nearest
Bussian island (Copper Island) is 183 miles. The sea
from east to west measures about 1,100 miles, and from
north to south fully 800 miles. The area of the sea must
be at least two-thirds as great as that of the Mediterranean,
and more than twice that of the North Sea. The Straits
of Gibraltar are less than 9 miles wide. The chief
entrance to the Gulf of St. Lawrence, which is entirely
surrounded by British territory, is only about 50 miles in
width. Behring Sea is open on the north by the straits,
36 miles wide, which form a passage way to the Arctic
Ocean. On what grounds and after what modern precedent we could set up a claim to hold this great sea,
with its wide- approaches, as a mare clausum, it is not easy
to see."
Dana, in a note to  Wheaton's   % Elements," Mr. Dana.
says:—
" The only question now is, whether a given sea or Wheaton, 8th
sound is, in fact, as a matter of pohtico-physical geography, ?,"??»   ^ .  „„
■A-.     , ,    .      ..,..' 7 mi      .,  .      Mr. Dana, 1866,
within the exclusive jurisdiction of one nation.    The claim secti0n 187 (note).
of several nations, whose borders surround a large open
sea, to combine and make it mare clausum 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 by the Armed Neutrality in 1780 and 1800, and
in the Russian Declaration of War -against England in
1807."
It is further claimed, on behalf of Great
Britain—
(P.) That from the acquisition of Alaska by chapter VI
the United States in 1867 down to the year 1886
no attempt was made by the United States to
limit or interfere with the right of the subjects of
Great Britain or of any other nation to navigate
and fish in the non-territorial waters of Behring
Sea.
(G.) That the original ground upon which the     chapter VII.
yessels seized in 1886 and 1887 were condemned
rested upon a claim to treat Behring Sea as mare
clausum, and as having been conveyed as such,
in part, by Bussia to the United States.
That the contention of the United States has
subsequently been rested upon a claim to exclusive jurisdiction over a space of 100 miles
from the coast of the United States' territory.
That subsequently a further claim has been
raised to an alleged special right of protection
of or property in the fur-seal. 153
General conclusions.
Chapter VIII.
Alleged right of protection.
Analogous questions.
Bight of search on high. seas.
Mr. Madison to
Mr. Monroe,
January 5, 1804.
American State
Papers, Foreign
Relations, vol. ii,
p. 730.
Slave Trade.
Case of I Le Louis " engaged in
Slave Trade and seized.
"Le Louis," 1816.
See Dodson's
Admiralty Cases,
vol. ii, p. 210.
As to Point 5 of Article VI—
That, as regards the -right claimed by the
United States of protection of or property in fur-
seals when found outside the ordinary 3-mile
limit, no property exists, or is known to international law in animals feres natures until reduced
into possession by capture, and no nation has any
right to claim property in such animals when
found outside territorial waters. The only
right is to prevent the ships and subjects of
other nations from entering territorial waters for
the purpose of capturing such animals.
Upon analogous questions similar principles
have been generally maintained and recognized.
Thus, with reference to the right to search
neutral vessels upon the high seas—In 1804,
during the war with Prance, Great Britain
claimed to search neutral vessels on the high
seas, and to seize her own subjects when found
serving under a neutral flag.
The position taken on this subject by the
United States was not only in opposition to such
a right, but that country insisted that in no
case did the sovereignty of any nation extend
beyond its own dominions and its own vessels on
the high seas.
A similar view has been adopted by all nations
in relation to the Slave Trade.
Although it cannot properly be argued that
the taking of seals in any manner whatever is
comparable with the immorality or injustice
attaching to the Slave Trade, yet, even in the case
of vessels engaged in that trade, the rights of
nations have not been allowed to be overruled
on such pleas.
Upon this point legal authorities both in the
United States and in Great Britain are quite
clear.
In 1816 a Prench vessel ("Le Louis")
sailing from Martinique, destined on a voyage
to the coast of Africa and back, was captured
10 or 12 leagues to the southward of Cape
Mesurada, by the "Queen Charlotte" cutter,
and carried to Sierra Leone. She was proceeded against in the Vice-Admiralty Court of
that colony.
It was alleged that the vessel was fitted out
for the purpose of carrying on the African
Slave Trade, after that trade had been abolished
by the internal laws of Prance, and by the
Treaty between Great Britain and Prance. 154
The King's Advocate admitted the proposition
to be true generally that the right of visitation
and search does not exist in time of peace, but
denied it to be so universally. Occasions, he
argued, may and must arise, at a period when no
hostilities exist, in which an exercise of this power
would be justifiable. The rule of law could not
be maintained as a universal proposition, but was
subject to exceptions, and within those exceptions
must be included the present transaction, which
was a transgression, not only of municipal law,
but likewise of the general law of nations. In
whatever light the Slave Trade might have been
viewed in former times, it must no longer be
deemed within the protection of the law of
nations. Since the Declaration of the Congress
of Vienna, that the Slave Trade was repugnant
to the principles of humanity and of universal
morality, traffic in slaves must be considered a
crime, and it was the right and duty of every
nation to prevent the commission of crime. On
the whole, he submitted that the "Le Louis,''
having been engaged in a traffic prohibited by the
laws of her own country, and contrary to the
general laws of humanity and justice, ought not
to be restored to the claimant.
Sir William Scott, afterwards Lord Stowell,
in the British High Court of Admiralty,
held, however, that trading in slaves was not
a crime by universal law of nations. He
observed:—
I Neither this Court nor any other can carry its private
apprehensions, independent of law, into its public judgments on. the quality of actions. It must conform to the
judgment of the law upon that subject; and acting as a
Court in the administration of law, it cannot attribute
criminality to an act where the law imputes none. It
must look to the legal standard of morality; and upon a
question of this nature, that standard must be found in
the law of nations as fixed and evidenced by general and
ancient and admitted practice, by Treaties and by the
general tenour of the laws and ordinances and the formal
transactions of civilized States.
" . . . . Much stress is laid upon a solemn declaration Ibid., p. 25
of very eminent persons assembled in Congress, whose
rank, high as it is, is by no means the most respectable
foundation of the weight of their opinion that this traffic
is contrary to all religion and morality. Great as the
reverence due to such authorities may be, they cannot 1
think be admitted to have the force of overruling the
established course of the general law of nations."
Slave Trade.
Case of 1 Le Louis."
Lord Stowell's Judgment.    Seizure
not justified.
See Dodson's
Admiralty Cases,
vol. ii, p. 249.
II Slave Trade.
Case of " Le Louis."
See Dodson'i
Admiralty Cases,
vol. ii, p. 252.
Ibid., p. 256.
155
"It is next said that every country has a right to'
enforce its own navigation laws; and so it certainly has,
so far as it does not interfere with the rights of others.
But it has no right, in consequence, to visit and search all
the apparent vessels of other countries on the high seas."
^n 5|* *|» *^
" It is said, and with just concern, that if not permitted
in time of peace, it will be extremely difficult to suppress
the Traffic. It will be so, and no man can deny that the
suppression, however desirable, and however sought, is
attended with enormous difficulties; difficulties which
have baffled the most zealous endeavours for many years.
To every man it must have been evident that without a
general and sincere concurrence of all the Maritime States,
in the principle and in the proper modes of pursuing it,
comparatively but little of positive good could be acquired;
so far at least as the interests of the victims of this commerce
were concerned in it; and to every man who looks to the
rival claims of these States, to their established habits of
trade, to their real or pretended wants, to their different
modes of thinking, and to their real mode of acting upon
this particular subject, it must be equally evident that such
a concurrence was matter of very difficult attainment.
But the difficulty of the attainment will not legalize
measures that are otherwise jllegal. To press forward to a
great principle by breaking through every other great
principle that stands in the way of its establishment; to
force the way to the liberation of Africa by trampling on
the independence of other States in Europe; in short, to
procure an eminent good by means that are unlawful; is &»
little consonant to private morality as to public justice.
Obtain the concurrence of other nations, if you can, by
application, by remonstrance, by example, by every peaceable instrument which man can employ to attract the consent of man. But a nation is not justified in assuming
rights that do not belong to her, merely because she means
to apply them to a laudable purpose; nor in setting out
upon a moral crusade of converting other nations by acts
of unlawful force. Nor is it to be argued that because
other nations approve the ultimate purpose, they must
therefore submit to every measure which any one State or
its subjects may inconsiderately adopt for its attainment."
Case of the "Antelope." United States'
Supreme Court to same effect.
Wheaton, Report,
rol. x, p. 66.
In accordance with this view of the law
the Judgment of the Vice-Admiralty Coui\
of Sierra Leone, condemning the French ship
for being employed in the Slave Trade and for
forcibly resisting the search of the King of
England's cruizers, was reversed.
The decision of the Supreme Court of the
United States in the case of the " Antelope"
is to the same effect. There Chief Justice
Marshall delivered the opinion of the Court,
holding that the Slave Trade, though contrary
to the law of nature, was not in conflict with the
law of nations:—
[24.8] Y
_ 156
" No   principle   of  general  law is more   universally SlaW Trade,
acknowledged   than   the   perfect   equality   of   nations. Case of the " Antelope."
Eussia and Geneva have equal rights. It results from wheaton Report,
this equality, that no one can rightfully impose a rule on vol. x, p. 122.
another. Each legislates for itself, but its legislation can
operate on itself alone. A right, then, which is vested in
ah by the consent of all, can be devested only by consent;
and this trade, in which all have participated, must
remain lawful to those who cannot be induced to relinquish
it. As no nation can prescribe a rule for others, none can
make a law of nations; and this traffic remains lawful to
those whose Governments have not forbidden it.
" If it is consistent with the law of nations, it cannot in
itself be piracy. It can be made so only by statute ; and
the obligation of the statute cannot transcend the
legislative power of the State which may enact it.
" If it be neither repugnant to the law of nations, nor
piracy, it is almost superfluous to say in this Court that
the right of bringing in for adjudication in time of peace,
even where the vessel belongs to a nation which has
prohibited the trade, cannot exist. The Courts of no
country execute the penal laws of another, and the course
of the American Government on the subject of visitation
and search, would decide any case in which that right had
been exercised by an American cruizer on the vessel of a
foreign nation not violating our municipal laws, against
the captors.
" It follows, that a foreign vessel engaged in the African
slave trade, captured on the high seas in time of peace,
by an American cruizer, and brought in for adjudication,
would be restored."
The subject is fully discussed in Mr. Dana's Mr. Dana,
note No. 108 to Wheaton's International Law Wh        «ite-
(p. 258), where it is said of Chief Justice Marshall, national Law,"
in Church versus Hubbart, 2 Cranch, 187 :— Mr. VanT'lses
v 359
"It is true that Chief Justice Marshall admitted the
right of a nation to secure itself against intended violations
of its laws, by seizures made within reasonable limits, as
to which, he said, nations   must exercise comity and
concession, and the exact extent of which was not settled;
and, in the case before the Court, the 4 leagues were not
treated as rendering the seizure illegal.    This remark
must now be treated as an unwarranted admission. ....
It may be said that the principle is settled that municipal Ibid., p. 260.
seizures cannot be made, for any purpose, beyond territorial
waters.    It is also settled that the limit of these waters is,
in   the . absence of  treaty, the   marine   league or the
cannon-shot.   It cannot now be successfully maintained,
either that municipal visits and search may be made
beyond the territorial waters for special purposes, or that
there  are different bounds of that territory for different
objects.   But, as the line of territorial waters, if not fixed,
is dependent on the unsettled range of artillery fire, and, if
fixed, must be by an arbitrary measure, the courts, in the
earlier cases, were not strict as to standards of distance, 157
President Tyler.
where no foreign Powers intervened in the causes. In later
times, it is safe to infer that judicial as well as political
tribunals will insist on one line of marine territorial
jurisdiction for the exercise of force on foreign vessels, in
time of peace, for all purposes alike."
It is an axiom of international maritime law
that such action is only admissible in the case of
piracy or in pursuance of  special international
agreement.    This principle has been universally
admitted by jurists, and was very distinctly laid
down by President Tyler in his Special Message
Stat P        b       ^°  Congress,  dated the  27th   Pebruary,  1843,
Hertslet, vol. xxxii, when, after acknowledging the right to detain
p'     " and search a vessel on suspicion of piracy, Me
goes on to say:—
I With this single exception, no nation has, in time of
peace, any authority to detain the ships of another upon
the high seas, on any pretext whatever, outside the
territorial jurisdiction."
Article VII.
Consideration of Regulations postponed.
Article VII.
Great Britain maintains, in the light of the
facts and arguments which have been adduced
on the points included in the Vlth Article of the
Treaty, that her concurrence is necessary to the
establishment of any Regulations which limit or
control the rights of British subjects to exercise
their right of the pursuit and capture of seals in
the non-territorial waters of Behring Sea. The
further consideration of any proposed Regulations,
and of the evidence proper to he considered by
the Tribunal in connection therewith, must of
necessity be for the present postponed.
1*4*
Y 2 158
Chapter X.
Recapitulation of Argument.
The following are the propositions of law and Recapitulation of Argument,
fact, which, it is maintained on behalf of Great
Britain, have been established in the foregoing
Case:—
1. The sea now known as Behring Sea is an
open sea, free to the vessels of all nations, and
the right of all nations to navigate and fish
in the waters of Behring Sea, other than the
territorial waters thereof, is a natural right.
2. No assertion of jurisdiction by Bussia, the
United States, or any other nation could limit
or restrict the right of all nations to the free use
of the open sea for navigation or fishing.
3. At no time prior to the Treaty of the 30th
March, 1867, did Russia possess any exclusive
jurisdiction in the non-territorial waters of the
sea now known as Behring Sea.
4. At no time prior to the said cession did
Russia assert or exercise any exclusive rights
in the seal fisheries in the non-territorial waters
of the sea now known as Behring Sea.
5. The attempt by Russia in the year 1821
to restrict the freedom of navigation and fishing
by the subjects of other nations than Russia
in the non-territorial waters of Behring Sea was
immediately and effectually resisted by Great
Britain and the United States of America.
6. The claims of Russia to limit and interfere
with the rights of navigation and fishing by other
nations in the waters of Behring Sea, other than
the territorial waters thereof, were never recognized or conceded by Great Britain.
7. The protests raised and the objections taken
by Great Britain to the claims of Russia to
limit such free right of navigation and fishing
were acquiesced in by Russia; and no attempt
was  ever   made   by   Russia   to   again   assert 159
Recapitulation of Argument. or enforce any such supposed right to exclude or
limit the rights of other nations to navigate or
fish in the waters of the sea now known as
Behring Sea, other than the territorial waters
thereof.
8. The assertion of rights by Russia in the
year 1821, and her ineffectual attempt to limit
the rights of navigation and fishing, was inoperative and had no effect upon the rights of other
nations.
9. The body of water now known as the
Behring Sea was included in the phrase " Pacific
Ocean," as used in the Treaty of 1825 between
Great Britain and Russia.
10. Prom the year 1824 down to 1886 the
vessels of Great Britain have continuously, and
without interruption or interference, exercised
the rights of navigation and fishing in the
waters of Behring Sea other than the territorial
waters thereof.
11. The right of all nations to navigate and
fish in the waters of Behring Sea, other than the
territorial waters thereof, have been repeatedly
recognized and admitted both by Russia and by
the United States of America.
12. Whatever territorial rights passed to the
United States under and by virtue of the Treaty
of the 30th March, 1867, Russia had not the
right to transmit, and the United States did
not acquire, any jurisdiction over or rights in the
seal fisheries in any part of the sea now known
as Behring Sea, other than in the territorial
waters thereof.
13. The Treaty of Cession of the 30th March,
1867, did not convey anything more than ordinary
territorial dominion.
14. Prom the acquisition of Alaska by the
United States in 1867 down to the year 1886, no
attempt was made by the United States to assert
or exercise any right to limit or interfere with the
right of Great Britain, or of any other nation,
to navigate and fish in the waters of Behring Sea
other than the territorial waters thereof. WT
160
15. The sole right of the United States in
respect of the protection of seals is that incident
to territorial possession, including the right to
prevent the subjects of other nations from entering upon land belonging to the United States,
or the territorial waters thereof, so as to prevent
their capturing seals or any other animals or
fish either on such lands or in such territorial
waters.
Recapitulation of Argument.
16. The United States have not, nor has any
subject of the United States, any property in
fur-seals until they have been reduced into
possession by capture, and the property so
acquired endures so long only as they are
retained in control.
17. Pur-seals are animals feres natura, and
the United States has no right of protection or
property in fur-seals when found outside the
ordinary- 8-mile limit, whether such seals frequent
the islands of the United States in Behring Sea
or not.
18. The right of the subjects of all nations to
navigate and fish in the non-territorial waters of
the sea now known as Behring Sea remains and
exists free and unfettered, and cannot be limited
or interfered with except with the concurrence of
any nations affected.
19. No regulations affecting British subjects
can be established for the protection and preservation of the fur-seal in the non-territorial
Waters of Behring Sea without the concurrence
of Great Britain.
I
m 16 L
Conclusion.
CONCLUSION.
It is submitted on behalf of Great Britain to
the Tribunal of Arbitration, that the questions
raised in this Arbitration are of far greater
importance than the mere preservation of a
particular industry; they involve the right of
every nation of the world to navigate on and fish in
the high seas, and to exercise without interference
the common rights of the human race; they
involve the question of the right of one nation by
Proclamation to limit and interfere with rights
which are the common heritage of all mankind.
In defence of these rights and in the interests of
all civilized nations, the above arguments are
respectfully urged upon the consideration of the
Tribunal.
Schedule of Claims.
The SCHEDULE annexed to this Case contains particulars in connection with the claims
presented under Article VIII of the Treaty of
Arbitration, and the facts and evidence contained
in the Schedule are submitted to the consideration of the Tribunal for the purposes stated at
p. 12 of this Case. ZTYa&    T2$    t<91°   v.9-
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27.3.83. UNITED STATES. NO. 1 (1893).
BEHRING SEA ARBITRATION.
CASE
PRESENTED ON THE PART OF THE
GOVERNMENT OF HER BRITANNIC MAJESTY
TO THE
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Presented to both Houses of Parliament by Command of Her Majesty.
PRINTED FOR HER MAJESTY'S STATIONERY OFFICE

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