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Behring Sea arbitration. Counter-case presented on the part of the government of Her Britannic Majesty… Bering Sea Tribunal of Arbitration 1893

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 UNITED STATES.    No. 3 (1893).
BEHRING   SEA   ARBITRATION.
COUNTER-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. :1
Presented to both Houses of Parliament by Command of Her Majesty.
March, 1893.
m;
LONDON:
PRINTED FOR HER MAJESTY'S  STATIONERY  OFFICE
BY HARRISON AND SONS, ST. MARTIN'S LANE,
PBINTEBS   IN  OBDINAEY  TO  HEB  MAJESTY.
And to be purchased, either directly or through any Bookseller, from
EYRE and SPOTTISWOODE, East Haeding Stbeet, Fleet Stbeet, E.G., and
32, Abingdon Steeet, Westminstee, S.W.; ob
JOHN MENZIES & Co., 12, Hanotee Stbeet, Edinbttbgh; and
90, West Nile Stbeet, Glasgow ;  ob
HODG-ES, FIGGIS, & Co., Limited, 104, Gbaeton Steeet, Dpblin. TABLE   OF   CONTENTS
Page
1
PART I.
Chapter I, Head (A).—The User up to the year 1821 of the Waters of Behring Sea and
others Waters of the North Pacific.. .. .. .. .. • • • • •. 6
Chapter II, Head (B).—The Ukase of 1821, and the circumstances connected therewith
leading up to the Treaties of 1824 and 1825        ..         ... ..       25
Chapter III, Head (C).—The question whether the body of water now known as Behring
Sea is included in the phrase | Pacific Ocean," as used in the Treaty of 1825 between
Great Britain and Russia    .. .. ., .. .. .. .» .. ..       41
55
Chapter IV, Head (D).—The User of the Waters in question from 1821 to 1867
Chapter V, Head (E).—What rights passed to the United States under the Treaty of
Cession of the 30th March, 1867 ? 69
Chapter VI. Point 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
States in Behring Sea, when such seals are found outside the ordinary 3-mile limit ?      74
Chapter VII.—Consideration  op Allegations op Fact put forward  by  the  United
States in connection with Point 5 op Article VI   .,        ,.        ..        ..        ..    100
Section I.—The Pur-seal is a Marine Animal, and Pelagic in its Habits ..     100
Section II.—The Pur-seal is in no sense a Domestic Animal        .. .. ..     Ill
Section III.—Intermingling of Fur-seals of different parts of the North Pacific      118
Section IV.—Relation of the Pur-seals to the Pribyloff Islands.    Summer and
Winter Homes      .. .. .. .. ,. .. .. .. ,.     141
Chapter VIII.—Recapitulation op Argument
Conclusion
151
158 (   iii   )
PART II.
Chapter IX.—General Considerations affecting the Question of Regulations
Pago.
159
Consideration of Statements put forward by the United States bearing opon
the Question of the necessity for Regulations.
Chapter X.—Date and amount of the observed Decrease in the Number of Seals
167
Chapter XI.—Allegations made in the Case of the United States against Pelagic Sealing,
and Replies thereto .. .. .. .. .. .. .. .. .. ..     180
Chapter XII.—Management of the Pribyloff Islands by Russia and by the United States.    221
Historical Outline of Management.
Chapter XIII.—Management of the  Pribyloff  Islands by  Russia and by the United
States—(continued) .. .. .. .. .. .. .. .. • • . •     237
Excessive killing of Male Seals.
Chapter XIV.—Management of the Pribyloff Islands by Russia and by the United
States—(continued) .. .. .. ..        ,. .. ..        .. ., ..     260
The " Driving " of Seals and its effects.
Chapter XV.—Management of   the  Pribyloff Islands by  Russia and by the  United
States—(continued) ..        ..        ..        ..        ..        .. ..        ..        ..        ..    271
Absence of Proper Control by Government Agents.
Chapter XVI.—Management of  the Pribyloff  Islands by Russia  and by  the United
States—(continued)  .. .. .. .. .. .. .. . • .. ,.    288
Inadequacy of Protection: Raids.
Chapter XVII.—Management of the Pribyloff Islands by Russia and by the United
States—(continued) .. .. .. .. . • • •.        • • • • • • • •     298
Condition of the Natives.
Chapter XVIII.—The Seal-skin Industry    ..
..    304
Conclusion
Chapter XIX.—Damages
..    314
..    315  Counter-Case presented on behalf of Her
Britannic Majesty's Government to
the Tribunal of Arbitration.
PRELIMINARY STATEMENT.
>
A PRELIMINARY statement as to the general
scheme and construction of the following Counter-
Case may be of assistance in its perusal.
For   convenience   of  reference,   and   in   the
interests of brevity, it has been found desirable in
framing the Counter-Case to follow the arrangement
which was  adopted in the British Case;   as, on
perusal of the United States' Case, it was observed
that, the arrangement of the argument contained
in the First Part of that Case, namely, that relating
to historical and jurisdictional   questions,   corresponded in a general way with the sub-division
of chapters adopted in the British Case.   In the
following Counter-Case, therefore, there has been
placed at the head of each chapter the heading
which will be found for the corresponding chapter
in the British Case.     But inasmuch as the propositions relating to each point appear in  the
United States' Case not unfrequently in more than
one passage, there have been added to each heading citations from the United States' Case of the
propositions put forward in argument on behalf of
the United States bearing upon the subject, with a
reference to the page of the United States' Case
from which such citations are taken.    In addition
there has been placed immediately following, at
the head of each chapter, a brief summary of the
arguments in reply which are advanced on behalf
of the Government of Her Britannic Majesty.
Repetition of the points made in the British Case
has, as far as possible, been avoided; though the
reply to the United States' Case involves, of necessity, in some cases, reference to arguments which
had already been urged on behalf of Great Britain.
[249]
B 2
\W
H:' I
!    ri
il
Marginal references to the corresponding pas*
sages in the British Case are given.
The first four points submitted in Article VI of
the Treaty of the 29th February, 1892, are first
dealt with under the various heads above referred
to in Chapters I to V.
The fifth question of Article VI, viz.:—" 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 Behriner Sea
when such seals are found outside the ordinary
3-mile limit ? " has been so treated in the United
States' Case, but in preparing this Counter-Case a
somewhat different course to that pursued in relation to the first four questions has been rendered
necessary. It will be observed that on page 85 of
the United States' Case, it is asserted that, quite
independently of the jurisdiction over Behring Sea,
which was established or exercised by Eussia prior
and up to the time of the cession of Alaska, the
Government of the United States has a tc right of
protection and property in the fur-seals frequenting the PribylofF Islands when found outside the
ordinary 3-mile limit"; and it bases this right
" upon the established principles of the common
and the civil law, upon the practice of nations,
upon the laws of natural history, and upon the
common interests of mankind."
No arguments are adduced in the United States'
Case based upon the first of these suggested
grounds, viz., the principles of the common and
the civil law. But in this Counter-Case, it is proposed in the first instance to deal with the unprecedented nature of the claim, having regard to
those principles, and also to reply to the arguments
which are adduced, founded upon an alleged
practice of nations. This branch of the Case is
treated in Chapter VI.
The laws of natural history and the common
interests of mankind have, it is submitted, no bearing upon, or relevance in connection with, the
question as to the right of protection or property
claimed by the United States, to the exclusion of
other nations. But as the Government of Her
Britannic Majesty contend that the facts alleged as
to the natural history of seals, and as bearing upon
the common interests of mankind, are wholly, or,
to a great extent, inaccurate, these subjects are
dealt with in the various sections of Chapter VII. See Appendix,
vol, i, pp. 1 et seq.
It has not be found necessary to make any additional observations in reference to Chapters VI and
VII of the British Case: viz., the action of the
United States and Russia from 1867 to 1886, and
the various contentions of the United States since
the year 1886.
The above subjects are treated of in Part I of
this Counter-Case.
The subject of the Regulations (if any) which
are necessary, and the waters over which the
Regulations should extend, referred to in Article
VII of the'Treaty, is considered in Part II.- For
reasons more explicitly stated in correspondence
"iwhich will be found in the Appendix, the consideration of this point has been treated in this Counter-
Case, but only in deference to the wish expressed
by the United States that arguments upon all the
questions with which the Arbitrators may have to
deal should be placed before the Tribunal by means
of the Case and Counter-Case. The Government of
Her Britannic Majesty have j adduced these arguments under protest, and without prejudice to
their contention that the Arbitrators cannot enter
upon or consider the question of the proposed
International Regulations until they have adjudicated upon the five questions enumerated in
Article VI. upon which they are by the terms of
the Treaty required to give a distinct decision;
and upon the determination of which alone depends
the question whether they shall enter upon the.
subj ect of Regulations. Her Maj esty's Government
reserve also their right to adduce further evidence
on this subject, should the nature of the arguments
contained in the Counter-Case on behalf of the
United States render such a course necessary or
expedient.'. ■
tyssoq:
[249]
B 2
!;$w PART I.
1
INTRODUCTION*
I
BEFORE proceeding to discuss in detail the disputed points raised by the United States' Case, it
is deemed necessary to refer to the translations of
the various Russian documents used and cited in
the Case presented on the part of the United States.
These consist for the most part of documents belonging to the Official Records or Archives of the
Russian-American Company, which were handed
over to the United States by Russia under the
Treaty of 1867, by virtue of the nnd Article of
that Treaty. The original documents are deposited
in the Archives of the Department of State at
Washington, and have not heretofore been made
public.
The translations are set out at pp. 49 to 90, vol.
i, of the United Stages' Appendix, and are quoted
at pp. 41, 42, 43, 44,45, 46, 47, 48, 49, 54, 55,
60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 103, and 104
of the Case:
Fac-similes of the originals are given at the end
of vol. i of' the Appendix to the United States'
Case.
Upon the first perusal of the extracts included
in the United States Case, certain passages were
observed which at once gave rise to the impression
that the papers must have been faultily translated.
The fac-similes supplied in the Appendix were
consequently examined by a competent Russian
scholar in the confidential employment of Her
Majesty's Government, and a large number of
errors and interpolations were discovered of a
most important kind. Some few of these were
apparently purposeless, but the great majority
were of such a nature that they could only
be accounted for on the supposition that some
person had deliberately falsified the translations in
a sense favourable to the contentions of the United
States. The matter seemed of so much importance
that steps were taken to obtain an independent
translation by another hand, which was completed in October, and entirely confirmed the previor.s
impression.
The United States' Government independently
came to the knowledge of the fact at the beginning
of November, and their Agent has given the explanation of it in a communication addressed to
the Arbitrators and to the British Agent on the
ISth of that month. The United States' Agent at
the same time gave notice of the withdrawal of a
certain number of the documents, and furnished
revised translations of the others. Her Majesty's
Government have pleasure in acknowledging that
these revised translations, with the exception of
one or two small errors of no moment, are perfectly
accurate. But there are statements and arguments
in the Case founded on the original translations, or
depending mainly on them for support, which still
remain to be answered, and it will therefore be
necessary in the proper place to draw attention to
the translations and original documents.
It is not possible, by a mere comparison of the
correct and the erroneous translations, to form an
accurate opinion of the effect of the insertion of
the fictitious and interpolated passages upon the
argument contained in the Case for the United
States.* Attention will therefore be called, in
connection with each branch of the subject, to the
manner in which it depends upon such interpolations and errors. When the spurious passages are
expunged, and the erroneous translations corrected,
it will be found that no evidence remains to support the contentions of the j United States (a) that
the Russian Government and the Russian-American
Company claimed and exercised exclusive jurisdiction as to trading and hunting in the Behring Sea,
and (b) that the Ukase of 1821 was merely declaratory of pre-existing claims which had been
enforced therein for many years. The alleged
pre-existing claims and their enforcement for many
years, so far as they implied any extraordinary
maritime jurisdiction, are merely the creations of
the translator.
r * Por convenience of reference, the original translations
famished by the United States have been printed in parallel
columns with the revised translations, and are given in the
Appendix to this Counter-Case. (Appendix, vol. i, pp.
11-55). CHAPTER I.
Head (A).—The-User up to the year 1821 of the.
Vaters of Behring Sea and other Watevsqf the.
North Pacific. i;M
States' Contentions,
(1.) United States' Case, p.-25— ! \
"By firsb discovery, ooeupation, and/permanent colonisa-,
tion, the shov"es and islands of Bering Sea, the Aleutian
chain, and the Peninsula of Alaska became, probably
as early as 1800, an undisputed part of the territory
of the Russian Empire." '
(2.) United States' Case, p. 26—-
' " While the title of Russia to the territory north and west
of, and including, the Peninsula of Alaska, was universally recognized, her claim to the Norfch-west Coast
of the American Continent .... was earnestly dis-.
puted by more than one powerful nation."
United States' Case, p. 33—
" While the claim of Russia to the territory embracing the
Aleutian Islands, the. Peninsula of Alaska, and the,
coasts and islands of Bering Sea, was undisputed, the
shores and the adjacent islands of the American Con-'
tinent south of latitude 60° as far as California, were
daring the latter part of the eighteenth and the first
quarter of the present century the subject of cenfliet-'
ing claims on the part of Russia, CJreat Britain, Spain,
and the United States."
(4.) United States' Case, p. 42—
" After the Ukafce or Charter of 1799, granting to tfife
Russian. American Company certain exclusive control
of trade and colonization, its authorities, acting under
the sanction of the Russian Government, did not permit foreign vessels to visit Bering Sea."
(5.) United States' Case, p. 49—
" The Ukase of 1799, which set forth a claim of exclusive'
. Russian jurisdiction as far south as latijgjde 55°, called
forth no protest from any foreign Powers, nor was
objection offered to the exclusion of foreign ships from'
trade, with thg natives and hunting fur-bearing animals
in the waters of Bering Sea and on the Aleutian Islands
as a result of that Ukase and of the grant of exclusive,
privileges to the Russian-American Company."
(6.) United States' Case, p. 69.
" Prior and up to the date of the treaties of 1824 and 1825,
Russia did assert and  exercise  exclusive rights of
commerce, hunting, and fishing on the shores and in
11 the waters of Bering Sea,"
bUMMAEY
e said in Contention (2.) to have been " universally
recognized," is not shown to have been recognized at
all during the period in question. Her only Settlement north of the Aleutian Islands was Ifushagaki
with five Russian inhabitants, founded in 1818. Any
title by discovery was open to doubt. There was none
by occupation or colonization. Throughout the evidence which relates) tu t!us peilori, DO
distinction, as regards the title of Rtisisia or its
recognition by other nationSj is drawn between coasts
north and south of latitude 60°.
The Ukase of 1799 purported to gl'ant the Russian-American
Company rights exclusive of other Russian subjects,
but not of foreigners ; such exclusive rights were only
exercisable on land; no exclusion of foreign vessels
from Behring Sea, or from fur-hunting there, is shown ;
and the only evidence -adduced of the sanction of the
Russian Government to any such course, consists in
the interpolations, since withdrawn, of a translator in
contemporary documents.
The Ukase of 1799 was not notified to foreign Powers, and
&a& no operation as against foreigners.
The only assertion by Russia of exclusive rights in Behring
Sea was in 1821, and that on paper merely.
Contention that Russian title to
eastern shores of Behring Sea was
undisputed.
No distinction in Russia's title at
latitude 60°.
No evidence of recognition of her
title.
See post, p. 11.
United States'
Case, p. 24.
THE first three contentions, of which, save lor
the mention of latitude 60° in the third, the
second and third are for the present purpose substantially identical, may be dealt with together j
premising that, prior to the year 1821, no distinction, as regards the title of Russia, had been
drawn" between coastB north and south of that
latitude; nor will any hint of such distinction be
found throughout the evidence which relates to
the period now in question.
There is, prior to 1824, no evidence of recognition by any nation of the claim of Russia to the
eastern shores of Behring Sea. Their outlines
were unknown to geographers before the explorations of Cook in 1778 and 1779, and there is
practically no evidence of any assertion of " right
of dominion" over them by Russia prior to the
Ukase of 1799, which apparently bases this right
on I discovery by Russian navigators in remote
times." The translation of that Ukase in the
British and United States' Cases, which was taken
from Bancroft's " History of Alaska," alleges
I right of possession" by Russia; but these
words are wanting in the original, of which a
correct translation is given in the present Counter-
Case.
The authority of Captain Cook is invoked as
proving the existence of " Russian influence and
customs I upon the eastern shores of Behring Sea.
Even if he had found instances of Russian " influence and cUeto&a&," this Would not prove Russian
occupation or "possession of this very extensive
line of coast. But his narrative, on the contrary,
shows :that along, the whole coast-line he met with no Russians or other  civilized people, but only
with tribes of the native inhabitants.     Captain
Cook further states that the Russians he met at Cook;* Voyage
vol. 11, p. 49o.
Unalaska were—
| strangers to every part of the American coast, except
what lies opposite this island." §|||
At Samganoodha, on the Island of Unalaska, Ibid-, P' 499.
Captain Cook met- a Russian named Erafim
Gregorioff Sin Ismyloff, whom he describes as the
principal person amongst his countrymen in this
and the neighbouring islands; and. with reference
to the continent north of Unalaska, Captain Cook
says:— ||§§
| Both Ismyloff and the others affirmed that they
knew nothing of the continent of America to the northward | and that neither Lieutenant Synd, nor any other
Russian, had ever seen it of late From what we
could gather from Ismyloff and his. countrymen, the
Russians have made several attempts to get a. footing
upon that part of this continent that lies contiguous to
Oonalashka and the adjoining islands, but have always
been repulsed by the natives ; whom they describe as a
very treacherous people."
Captain Cook further observes:—
Ibid., p. 498
" I found that he [Ismyloff] was very well acquainted
with the geography of these parts, and with all the discoveries that had been made in them by the Russians."
Ismyloff furnished Captain Cook with Charts, ibid., p. 502.
as to one of which he writes :—
"The second chart.... comprehended all the discoveries
made by the Russians to the eastward of Kamtsckatka,
toward America;. which, if we exclude the voyage of
Beering and Tscherikoff, will amount to little or nothing."
The writer says, in conclusion :—i
Ibid., p. 506.
" They assured me, over and over again, that they knew
of no other islands, besides those which were laid down
upon this chart; and that no Russian had ever seen any
part of. the continent of America to the northward,
except that which lies opposite the country of the
Tschutslns." [The country of the Tschutskis here
mentioned is the western side of Behring Straits.]
Captain   Cook's  view of  the   extent  of  the
Russian sovereignty on   the American   coast   is likewise shown by his action in taking possession
for Great Britain at certain places along that
coast. His instructions contained the followino-
clause:—
Cook's Voyage, f}     « You are also, with the consent of the natives, to take
vol. i, p. xxxiv
Ibid., vol. ii,
p. 350.
Ibid., p. 397.
Ibid., p. 433.
United States'
Case, pp. 23, 24.
Ibid., Appendix,
vol. i, p. 58.
possession, in the name of the King of. Great Britain,
of convenient situations in such countries as you may
discover, that have not already been discovered or visited
by any other European Power; and to distribute among
the inhabitants such things as will remain as traces and
testimonies of your having been there ; but if you find
the countries so discovered are uninhabited, you are to
take possession of them for His Majesty, by setting up
proper marks and inscriptions, as first discoverers and
possessors."
In pursuance of these instructions, Cook left a
record of his discovery on Kaye's Island, near
Prince William Sound, and landed and took
formal possession of the country in Cook's Inlet
and at Cape Newenham, near the mouth of the
Kouskokvim River, in Bristol Bay. The last-
named place is on the eastern shore of Behring
Sea.
The Pribyloff Islands themselves were not
discovered until 1786 and 1787, and as late as
1821 it appears to have been unknown whether
there were islands to the northward of them.
'■■
Russia's so-called settlement, Nusha-
gak, with five Russian inhabitants.
United States'
Case, p. 25.
British Case,
Appendix, vol. i,
p. 42.
Ibid., Appendix,
vol. iii.
I United States
No. 1 (1891),"
p. 44.
The only Russian settlement, if such it can be
called, upon the eastern shore of Behring Sea
mentioned in the United States' Case, is that of
Nushagak, in Bristol Bay, which appears not to
have been established until 1818, and to have
contained in 1819 no more than five Russian
inhabitants.
Mr. Blaine himself, in a despatch to Sir J.
Pauncefote, dated 17th December, 18903 says: —
| At the time these Treaties [of 1824 and 1825] were
negotiated, there Was only one Settlement, and that of
Russians, on the shores of Behring Sea."
I
it
United States'
Case, Appendix,
vol. i, p. 49.
See also Appendix,
vol. i, p. 11.
The inability of the Russian-American Company to maintain any effective hold upon the
territory which it claimed, is freely confessed by
the Minister of Finance in his letter to the Minister
of Marine, dated the 9th April, 1820.
[249] 0 In the discussion of the Convention of  1824, Lyman's °
Siikfls&M        ''-.ff^B^-iiiyp-. T ~,   , ; „ " Diplomacy of the
which will be found in ! Lyman s diplomacy ol United States,"
2nd edition, Boston,
1828, vol. ii, p. 297.
the United States," it is explicitly stated
1 We have said nothing of the coast to the northward
of Bristol Bay, because it has never been pretended
that the Russians had any settlements on that side."
Upon  the  official Russian  Map  published   in British Case,
1802, which will be found in Appendix IV to the Appendix vol. ii,
WM Part I, p. 4.
British Case, there is a manuscript note in the fob
" La Compagnie ne possede point d'etablissemens dans
et au nord de la Presqu'ile Alaska, quoique ses vaisseaux
visitent ces regions."
1
§M Russian settlement in or to the
north of the Alaskan Peninsular.
It is also to be noted that, when the questions Revised translati
raised by the Russian-American  Company on the -p.^.
Treaty  of   1824  with  the   United   States   were
referred to a Committee of Russian Dignitaries,
this Committee on the   21st July, 1824, limited
their assertion to the statement I—
on,
"That. . . . Russia has established permanent settlements, not only on the coast of Siberia, but also on the
Aleutian group of islands."
Had there existed any settlements on the
eastern coast of Behring Sea, it is obvious, from
the nature of the Report, that these would have
been mentioned.
The fact is, that upon the entire north-west
coast of America from Behring Straits to the
Alaskan Peninsula, up to- 1824 practically no
title by occupancy had been established at all,
and any title by discovery was open to doubt and
dispute. lllii
Had any other Power taken possession of any
part of the coast which Russia did not actually
occupy, Russia could not have successfully
asserted any claim thereto; and if other nations
III pushed their trade north of, as they did up to,
the Alaskan Peninsula, there was no ground
on which Russia could have successfully maintained any protest. The territorial right by
itself was  not   thought  worth   disputing;.. and North American
Review.
British Case,
Appendix,
vol. i, p. 33.
United States'
Case, p. 25.
Ukase of 1799, correctly translated,
11
for practical purposes the coast, as far south
Behring Bay, was then considered as worthless as
a floating iceberg.
It is submitted, therefore, that there is no foundation for the assertion that—
"by first discovery, occupation, and permanent colonization
the shores and islands of Bering Sea, the Aleutian chain,
and the peninsula of Alaska became, probably as early
as 1800, an undisputed part of the territory of. the Russian Empire,"
While no other nation drew any distinction between the title of Russia upon the American coast
to the north and to the south of latitude 60°,
Russia herself made no such distinction, but dealt
alike with the whole north-west coast from the 55th
degree to Behring Strait, up to the year 1821.
The Ukase of 1799 asserts this plainly. The
following is a correct translation of the original
Russian document, as given by Golovnin and
Tikhmenieff:—
mm
" We, Paul I, by the Grace of God, Emperor and
Autocrat of All the Russias :
[Here follows the full title of His Imperial Majesty.]
" To the Bussian-American Company under our high
protection:
| The profit and advantages accruing to our Empire
from the industries and trade earned on by our faithful
subjects in the north-eastern sea and hi that part of
America have attracted our attention and consideration;
wherefore, taking under our immediate protection the
Company which exists for the purpose of carrying on
those industries and that trade, we order it to be called
the Russian-American Company under our high protection, and we command our military authorities to make
use of our land and sea forces, at its request, in the way
best fitted to support the enterprises of the Company;
and having drawn up for the Company such Rules as are
best fitted to assist and encourage it, we are pleased to
grant to it, by this our Imperial Charter, the following
privileges for twenty years front this date:—
" 1. In view of tho discovery by Russian navigators
in remote times of the coast of North-Eastern America*
Itft
* The above error, in the Ukase of 1799, appears to have
originated in the Agreement of 1778 between Shelikoff and
Golikoff. Golovnin points out its occurrence in that Agreement, writing:—" ' For north-eastern and northern America.'
This mistake arose from the stupidity and ignorance of geography of some Irkutsk writer or other, who drafted the
Agreement; he ought to have said ■ ' to the north-western
shores of America.' " ("Materalui," Part I, p. 55.)
[249] |f\. C 2 from 55° north latitude, and of the chains of islands extending from Kamtchatka in a northerly direction to
America and iu a southerly direction to Japan, and on
the strength of the right of dominion over them which
belongs to Russia, we graciously permit the Company
to enjoy the profits of all industries and establishments now
existing on the north-eastern coast of America, from the
aforesaid 55° to Behring Strait and beyond that strait,
as well as on the Aleutian and Kurile Islands and the
other islands situated in the north-eastern ocean.
| 2. The Company may make new discoveries not only
to the north of 55° north latitude, but also south of it,
and may incorporate the territories it discovers into the
Russian dominions under the conditions laid down in
the existing Rules, if those territories have not been
occupied by other nations, and have not become subject to them.
" 3. The Company shall enjoy in the territory mentioned everything which it has discovered or may discover on the surface of the earth or below it, and no one
shall be entitled to dispute its right to this.
" 4. We graciously permit this Company in future to
establish such Settlements as may be required, and to
erect such fortifications as it may consider necessaryfor its
security, and to send to those regions without any hindrance ships conveying merchandize and its employes.
15. The Company may make -voyages to all neighbouring countries, and may carry on trade with all neighbouring nations with the consent of their Governments,
and after obtaining our high sanction, in order that
greater power and profit may accrue to the Company
from its enterprises.
" 6. The Company may employ for navigation, and for
its industries and establishments, persons of all classes
who are free and of good reputation, and who desire to
make a lawful use of such liberty; in view of the great
distance of the places to which they will go, our authorities shall grant to State colonists and other free persons passports available for seven years; no serfs shall
be engaged by the Company without the consent of
then- masters, and the Company shall pay to the Government the proper dues for all persons whom it may take
into its service.
17. Although our Imperial Decrees forbid the cutting
of wood anywhere without the sanction of the College
of Admiralty; nevertheless, in consideration of the distance Avhich separates that body from the Okhotsk
territory, permission is granted to the Company to cut
wood, without making any payment, whenever they require it for repairing their ships or for building new ones.
" 8. The Company may obtain annually from the Government artillery stores at Irkutsk from 40 to 50 poods
of gunpowder, and from the Nertshinsk mines 200 poods
of lead, for ready money, at the market price, for shooting game, for signals at sea, and for any unforeseen contingency on the mainland of America or on the islands.
" 9. If one of the shareholders of the Company has
become a debtor of the State or of private persons, and
if his property, apart from his share in the Company, is. says nothing of hunting
grounds or hunting, and alleges
no possession.
See ante, p. 7.
13
not sufficient to meet bis liabilities, his capital shall be
sequestrated; but, as, according to the constitution of
the Company, the capital cannot be withdrawn, the
parties to whom it is assigned cannot realize it, but can
only take the place of the debtor and obtain-then-
proper share of the profits Avhen a division takes place.
At the expiration of the term of .the privileges of the
Company, their share of the capital will be.paid over to
them.
110. In granting to the Company for a period of
twenty years, throughout the entire extent of the lands
and islands described above, the exclusive right to all acquisitions, indvMries, trade, establishments, and discoveries of
new countries, we declare that these advantages and
privileges shall not be- enjoyed by any persons who may
wish to make voyages to those regions on their own
account, or by any of those who, having hitherto been
engaged in this trade, and having their ships and mer?
chandize in those regions, some even holding shares in
the Company, refuse to join the latter. It is, however,
open to these latter persons, if they will not join the
Company in the manner prescribed by the Regulations,
to continue to exercise these industries and to enjoy the
advantages connected therewith under the same conditions as heretofore, but only until the arrival of their ships
in Russia, after which date no one shall have these privileges but the Company alone, under the penalty of
losing everything that is established for its benefit.
111. All Courts shall recognize the Board of Directors
of the Russian-American Company under our protection .
as established for the management of the affairs of the
Company, and all notices issued by Courts in matters
which concern the Company shall be served on that
Board, and not on one of the shareholders.
" In concluding this our Imperial Charter, we order all
our military and civil authorities and Courts not only not
to prevent the Russian-American Company under our
protection from enjoying all the privileges granted by
us, but also, if necessary, to protect it from any losses
or harm which may threaten it, and to aid and protect
the Board of Management in every way."
It is to be observed that in the Ukase there is no
reference to hunting grounds or hunting, the passages in Articles 1 and 10, in which those words
appear in the translation taken from Bancroft,
referring, in fact, to industries, trade, and establishments. Articles 1 and 2, as given in Bancroft,
differ materially from the same Articles as given
above. They allege " possession" by Russia,
instead of mere "right of dominion," founded
apparently on " discovery ;" they omit to speak of
the coast " beyond" Behring Strait; and they
only faintly indicate that which is now clearly established, that the Russian Government had in view
the fact that territory on the coast to the north as
well as to the south of latitude 55p was still unincorporated in Russian dominions, and might even
m A
}.vijf v
if
1 14
have." become subject " to other Powers. Article
10, as now translated, allows traders to exercise
their industries as before, " but only until the
arrival of their ships in Russia;" which words,
omitted in Bancroft, show that Russian competition only was in view.      g^fl
It will be noted that this Ukase dealt impartially
with the Russian Settlements on the whole of the
coast described, without distinction as to latitude;
and in the absence of any distinction between the
northern and the southern portions of the coast
affected by that document, the facts stated in
Chapter I of the British Case have equal weight in
the consideration of the existence and extent of
Russian jurisdiction over any and every part of
the coast so claimed, and are sufficient to demonstrate that foreigners were allowed to trade there
freely without molestation or interference.
In the discussion on the Ukase of 1821, which
took place between Count Nesselrode, Count
Lieven, and the Duke of Wellington while they
were attending the Congress of Verona, Count
Nesselrode gave to the Duke of Wellington a
Memorandum, under date the 11th (23rd) November, 1822, in which, as already stated at p
the British Case, the following passage occurs :—■
43 of
Russian competition  only was excluded by Ukase.
Foreigners allowed to trade freely
over
whole  coast from  latitude
55° north-ward.
f Les mesures de precaution et de surveillance qui British Case,
seront prises  alors stir  la partie  Russe   de   la   cote p^^j   X'o5
d'Amerique se trouveront entierement conformes aux
droits derivant de sa souverainete, ainsi qu'aux usages
etablis entre nations."
!:> »
Part I, p. 25.
To this Memorandum the Duke, in a note to
Count Lieven, dated the 28th November, 1822,
promptly objected ;—
Verona, November 28, 1822.
"M. leComte,
| Having considered the paper which your Excellency British Case,
gave me last night on the part of his Excellency Count ^•PPe?Iclls:> y°b ]1
Nesselrode on the subject of our discussions on the Russian Ukase, I must inform you that I cannot consent, on
the part of my Government, to found on that paper the
negotiations for the settlement of the question which
has arisen between the two Governments on this subject.
" We object to the Ukase on the grounds :—
" 1. That His Imperial Majesty assumes thereby an
exclusive sovereignty in North America of Which we are
not prepared to acknowledge the existence or the extent.
Upon this point, however, the. Memorandum of Count
Nesselrode does afford the means of negotiation, and my
Government will be ready to discuss it either in London
or St. Petersburgh whenever the state of the discussions
Great Britain will not acknowledge
or  extent  of  Russia's
existence
exclusive
America.
sovereignty in North Exclusion of vessels of other nations
from open sea, objected to.
British Case,
Appendix, vol. ii,
Part I, p. 25.
bid., p. 26.
See " Memoirs of
John Quincy
Adams," vol. vi,
p. 163.
United States contest Russia's right
to any territorial establishment in
America.
British Case, p. 'Si.
ibid., Appendix,
vol. ii, Part II,
p. 4.
Russia's first assertion of sovereignty
was in 1799.
United States'
State Papers,
vol. v, p. 446.
Appendix, vol. i,
p. 56,
On the other question arising out of the Ukase will allow1
of the discussion..
"2. 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$p"VtJle,. .law, of nations* and we cannot found a
negotiation upory, 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'catmot negotiate upon a paper in
which a right is asserted inconsistent with this principle.
11 think, therefore, that the best mode of proceeding
would be that you should state your readiness to negotiate upon the whole subject, without restating the objectionable principle of the Ukase, which' we cannot admit.
" Ever yours, &c,
(Signed) j | WELLINGTON."
Finally, on the 29th November, 1822, the Duke
reports to Mr. G. Canning, British Secretary of
State for Foreign' Affairs, that the Memorandum
of the 11 th (23rd November) is withdrawn, and
that the Emperor of Russia is ready to negotiate
upon—
"the whole question of the Emperor's claims_in North
America, reserving them all if the result of the negotiation should not be satisfactory to both parties."
That the Government of the United States did
not recognize- as I undisputed" the claim of
Russia to the coasts of Behring Sea, is also clear
from the statement made by Mr. Adams, the
United States' Secretary of State, on the 17th
July, 1823, to Baron Tuyll, the Russian Minister
at Washington, that—
" we should contest the right of Russia to any* territorial
establishment on this continent."
Mr. Adams reiterates this contention in a despatch to Mr. Middleton, the United States'
Minister at St. Petersburgh, dated the 22nd July,
1823, in which, referring to the Ukase of 1799,
he declares that—
" Russia had never before asserted* a right of sovereignty
over any part of the North American continent."
In a letter of the same date, addressed to
Mr. Rush, United States' Minister in London,
Mr. Adams says :—
I It appears upon examination that these claims have
no foundation in fact.    TJie right of discovery on this
* The italics are in the original. 16
continent, claimable by Russia, is reduced to the probability,
that in 1741, Captain Tchirikoff saw from the sea the
mountain called St. Elias, in about the 59th degree of
north latitude. The Spanish navigators, as early as
1582, had discovered as far north as 57° 30'.
Her right of discovery fanciful.
" It never has been admitted by the various European
nations which have formed settlements in this hemisphere that the occupation of an island gave any claim
whatever to territorial possession on the continent to
which it was adjoining. The recognised principle has
rather been the reverse," &c.
But whatever may have been the claims of
Russia, whether admitted or not, in respect
of the north-west coast of America and the
islands adjacent thereto, no claim had ever
been made prior to the year 1821 to exclude
vessels of other nations from navigating the
waters of Behring Sea, or to exercise jurisdiction over the waters of that sea as mare
clausum, or an inland sea. On the contrary,
the ground or justification for the attempted
interference by Russia in the year 1821 was
the competition with the Russian-American
Company by the vessels and traders of other
nations. This is sufficiently shown by the
authorities quoted in Chapter I, Head (A), of the Appendix, vol. i,
British Case, and by the letters Nos. 1, 2, 3, 4, PP^r*1-     ,
J . United States
and  5  in   the  correspondence  of  the  Russian- Case, Appendix,
American   Company,   which   contain   numerous yo ' 1 pp' 4y_&7,
references in the nature of complaints as to the
presence of foreign competitors in trade.
No claim prior to 1821, to exclude
vessels of other nations from
Behring Sea.
Ill It
The fifth contention at the head of this
Chapter, which may be conveniently taken before
the fourth, is in substance that the Ukase of
1779 called forth no protest or objection from
foreign Powers, To this it may be answered, in
the words of Mr. Middleton, that— 2r> SddIeton to
' Mr. Adams,
"this ukase, which is, in its form*  and act purely p^ertporefgn
domestic, was never notified to any foreign State with Relations, vol. v,
injunction to respect its provisions." P- 4^1-
In point of fact, Her Majesty's Government
have been unable to discover that the Ukase of
1799 was communicated to any foreign Government in any form whatsoever.
Moreover,   as   appears from the provisions of Ante>      u_13
the  Ukase itself, it   dealt  only, as  was pointed British Case,
out by Mr. Middleton and Mr. Adams, with the PP'29~34
rights   of  the   Russian-American   Company, to
* The italics are in the original.
Contention that Ukase of 1799 asserted exclusive rights, and was
acquiesced in by foreign Powers.
Ukase in form domestic and never
notified to foreign States. 17
No Charter of Russian-American
Company, except that of 1821,
purports to affect foreigners.
United States'
Case, vol. i, p. 24.
British Case,
pp. 23. 24.
ie exclusion of other Russian subje<
which the correct translation of the Ukase brines
out more clearly.
United States' In  support  of the view that the Charters to
Case, Appendix,       .     T. .     SRfjaa     ^
vol. i, 14, 24, and tne Russian-American Company were not and did
28, not purport to  be international documents, but
.purely   domestic   acts,   not   intended   to   affect
foreign  nations,  reference  may be made to the
pip terms of the documents themselves and to those
the Ukases commented upon hereafter at p. 61
et seq. In each case, with the single exception
of the Charter based directly upon the Ukase of
1821, their terms are strictly limited to the
exclusion of Russian subjects only.
The object of the Charters was not.in any way
to control foreigners; but, in the first instance,
to Consolidate the numerous rival Russian Companies which were competing with each other,
and by their competition giving rise to gross
abuses ; and subsequently to protect the Consolidated Company.
Ibid., p. 28. It   is  again to   be  noted,   that  the   exclusive
rights specially granted to the Russian-American
Company by the Ukase of 1799 were rights to be
exercised on land already acquired or thereafter
to be discovered within, the prescribed area, and
not over non-territorial waters of Behring Sea oils!*?!*?* any other non-territorial waters.
'•■
wl
Contention that, under Ukase of
1799, foreign vessels were not
allowed to visit Behring Sea.
No instance of exclusion.
British Case,
p. 32.
Golovnin,
" Materalui,"
Part I, Table of
Contents.
It is now necessary to deal with the conten
tions—
(4.) That, under the Ukase of 1799, the Russian-
American Company, acting under the sanction of
the Russian Government, did. not permit foreign
vessels to visit Behring Sea ; and
(6.) That, up to the date of the Treaties of 1824
and 1825, Russia did assert and exercise exclusive
rights of commerce, hunting, and fishing in all
the waters of Behring Sea.
Neither of these allegations is supported by
the facts. The domestic character of the Ukase
itself has been already shown; and the report of
Golovnin, written in 1818, as to the "Company's
colonies," speaks of the importance of presenting
a better appearance to 1 foreigners visiting these
parts." No instance is to be found of Russia
preventing foreign vessels from visiting Behring
Sea; and it must be remembered that the Ukase
of 1799 applied equally to the whole coast of
America from Behring Straits to latitude 55°.
[249] P 18
il
There were at all times foreign vessels trading
to places north of latitude 55°, where the Ukase
was intended to have the same operation as in
Behring Sea itself.
On the other hand, the solitary instance in
which it is alleged on the part of the United
States that Russia actually asserted exclusive
rights over Behring Sea prior to 1821, is the case
of the Riccord-Pigott contract in 1819. Three
letters (dated 10th April, 1820, 23rd April, 1820,
and 31st March, 1821) are relied upon as—
illustrating the complete control which Russia claimed
and actually exercised over Behring Sea prior to 1821."
From the facts alluded to in these letters, it
appears that Riccord, the Superintendent of
Kamtchatka, had made an agreement with Pigott,
an Englishman, for ten years, from 1819—'■'
with reference to fishing for whales and extracting oil
from these and other marine animals on the shores of
Kamtchatka and on those of all Eastern Siberia, in the
harbours and bays and amongst the islands."
This contract was undoubtedly disapproved by
the Russian Government, which, having granted
to a Russian Company a monopoly of trade in
these regions, to the exclusion of all other Russian
subjects, was naturally unwilling to allow any
part of this monopoly to be enjoyed by foreigners.
The Russian-American Company was therefore
instructed to turn its attention to the whale
fishery, and to employ a ship in fishing, the reason
given being, as appears from the following quotation, that—
" the whale-fishing industry may be of use as a means
of assisting the inhabitants of Kamtchatka and Okhotsk
when the other fisheries fail."
The Government further ordered that no
foreigner should be allowed to enter a merchant
.guild, or to settle at Kamtchatka or Okhotsk, and
that no foreign merchant-vessel should be permitted—j
" to trade at those places under any circumstances, or
to enter the ports of Eastern Siberia except in case of
distress furthermore, the Englishman Davis at
• Okhotsk, and Dobello's agent in Kamtchatka are to he
informed .... that the Government refuses them permission to remain at those places, or to build houses or
hold real property there; the local authorities shall afford
them all proper-facilities for disposal of tinir property
and leaving the country.".
These instructions have been quoted because
they  show ' rclearly
Disallowance of Riccord - Pigott
contract involved no maritime
jurisdiction.
United States'
Case, p. 45.
Appendix, vol. i,
pp. 13, 16, and 18.
United States'
Case, p. 45,
Letter, April 23,
1820.
Revised translation,
Appendix, vol. i,
p. 17.
Letter, April 10,
1820, paragraph 1.
Revised translation,
Appendix, vol. i,
p. 13.
Ibid., paragraph 2.
Revised translation,
Appendix, vol. i,
p. 14.
that   the   Russian   Governs 1!)
pp. 60-63.
ment exercised in this instance no jurisdiction
other than the ordinary territorial jurisdiction
which attaches to every nation in right of its possession of the soil, and that they made no attempt to
exclude foreign vessels from navigating the ocean.
The rest of the correspondence concerning this
matter has, since the presentation cf the United
States' Case been produced by the' United States,
in reply to a notice by the British Agent under
Article IV of the Treaty of the 29 th February,
Appendix, vol. i, 1892. It is given in the Appendix to this Counter-
Case, and it is submitted that it clearly proves that
Pigott frequented the Behring Sea from 1819 to
1822, and was1 not merely an accidental visitor to
Kamtchatka in 1819. He was one of many traders
who had visited places on both shores of the Behring Sea, and he had pushed his trading on the
American coast as far as Kotzebue Sound, north of
Behring Straits. The following are extracts from
the correspondence. •
In a Report to the Russian-American Company,
dated, apparently from Sitka, January, 1821, it is
stated:—
"On the 29tll September [1820] the American brig
•Pedlar' arrived at this port. Her captain is Meek, a,
brother of Meek who is well known to you. She had
on hoard Mr. Pigott, with whom you are well acquainted.
He was the supercargo or owner; for the cargo Avas
under his control, and he directed the movements of the
ship.    He had come from Kamtchatka in eighteen days.
Ibid , pp. 62, 63.
ti-m
"There were at that time two men-of-war on the roadstead, and this fact afforded me frequent opportunities of
meeting Pigott, for he was acquainted with the officers
of both of them. They had met beyond Behring Straits
in Kotzebue Sound, and had been anchored there together. He said, in a hesitating way, that he had been
trading there.
* ■ . * *  .-r£Jf| *
" I must confess that / was wrong when 1 said, in a
letter to Michael Michailovitoh, that a single man-of-war
Woidd be sufficient to jru tan end to this traffic. To tell the
truth, I did not believe it at the time; but I was afraid
that a Whole squadron, or at least a couple of frigates.
Avould come doAVii upon us. This prospect frightened
me, both as Manager of the American Colonies and as a
Russian. They would have eaten up all our provisions,
and cost the Emperor a lot of money, without doing
much good.
* * * •
u What hope is there that1 a single frigate, will be able
to stop this traffi
c on our
shores, abounding in straits
and excellent harbours, and so well hioicn, to these
Americans that they maybe ccdled the pilots of these coasts?
They will always he on good terms with the natives...."
On the 1st February, 1820, the Governor-General
[249] D 2
in KM I
20
of Siberia wrote to Count Nesselrode, Secretary of
State, a letter containing the following passages:—
" (1.) We are familiar icith the complaints made by the
American Company in regard to the bartering earned on by
citizens of the United States* at their establishments, and
in regard to their supplying the natives with fire-arms.
These complaints are well founded, but nothing can be done
in the matter. It would be useless to apply to the
United States' Government to stop the trading; the
commercial rules of the United States do not allow such
interference on the part of their Government. The only
thing to be done is for the Company to endeavour to
strengthen the defences of the principal places in the
Colonies, and for the Government, at least, not to favour
this foreign trade. But the establishment of a whale
fishery on the eastern shores of Siberia would undoubtedly favour it in a high degree. The establishment of a whale fishery would be a pretext for, and an
encouragement to, foreign trade.
1 (2.) Although the fur industry in Kamtchatka and
Okhotsk, which has been declining from various causes,
has now become unimportant, nevertheless, the present
trade and its prospects for the future are in the hands
of Russian traders. If an industry in the hands of
foreigners is established on the coast, the whole trade
will certainly pass into foreign hands. In this thinly-
populated region it is impossible to establish an effective
supervision; moreover, hoiv is the importation of brandy,
rum, Sfc, to be prevented?
* * * *
" (4.) M. Ricord says, in his letter, that, owing to the
smallness of our forces in that part of the world, ice cannot prevent foreigners from wlialing. In the first place,
we may not be so weak as he supposes. The occasional
appearance of a single properly armed ship ^nay be sufficient to keep quiet and disperse all these Avhalers. In
the second place, if they are able to get possession of
this industry by force, why should this force be sanctioned by a formal Agreement ? "
The following extract from a letter from the
Board of Management of the Russian American
Company to Captain Muravieff, Chief Manager of
the Russian-American Colonies, concerning Pio-c-tt
is also interesting:—
(No. 149.)   ||| « February 28, 1822.
I The Board icere aware that Captain Pigott, icho was at Ibid;, p. 62
Kamtchatka, intended to sail thence to our Colonies, and
your despatch No. 8 of the 18th January, 1821, confirmed
them in their belief that he proposed to visit waters belonging to Russia. He has paid you a visit, as you
report, under stress of weather, and you have done
right in assisting him; but he would never have come
to Novo-Arkhangelsk if he had not been forced to put
into that port; what he meant to do was to collect ftirs
secretly at other places.    Tt ivas toith this object, and in
Barter by United States' citizens at
Russian establishments.
Appendix, vol. i,
p. 60.
Russia does not prevent foreigners
from whaling.     ||ls 21
The only evidence offered of Russian
jurisdiction over Avaters consists in
translator's interpolations.
United States'
Case, pp. 43, 44.
(For revised
translation,
see Appendix,
vol. i, p. 11.)
(For revised
translation,
see Appendix,
vol. i, p. 12.)
order to get a footing for this purpose on the Aleutian
Islands, or on the northern islands situated in the direction
of Behring Strait, that he made his proposal, of Avhich
you have already been informed^ with regard to Avhaling
and fishing for the benefit of Kamtchatka and Okhotsk;
in the meantime, he has been asking permission from
Dobello, M. Ricord's friend, to trade Avith the Tshuktshes
[on the northern Asiatic coast], and to use the Russian
flag while so engaged."
Several passages are quoted from the correspondence of the Russian-American Company in the
Case presented on behalf of the United States, as
proving the assertion by Russia of jurisdiction
over waters; but it will be found that the alleged
proof is supported only by passages which are not
contained in the original documents, and have been
interpolated.
The quotations are set out below, the interpolated passages being printed in small capitals and
underlined and enclosed in brackets.
Thus at pp. 43 and 44, the United States rely on
the following extracts from a letter dated the 9th
April, 1820, from the Russian Minister of Finance
to the Russian Minister of Marine : —
"It appears of the most imperative necessity for the
preservation of our sovereignty in the north-western
part of America [and on the islands and waters
situated between them], to maintain there continuously
tAvo ships of the Imperial fleet."*
After suggesting that two vessels should be dispatched during that year, one to cruize from Sitka
westward and northward, the letter as quoted purports to continue:—
" The commander .... having thoroughly examined
the shores of the Aleutian Islands, the coast of Kamchatka, the Kurile Islands [and the intervening:
WATERS], he may return for the Avinter to the
harbour of Petropavlovsk. The other ship, however (sailing from Petropavlovsk), having examined the
eastern coast of the Kamchatka Peninsula up to 62° of
northern latitude, and the west coast of America from
this latitude to the Island of Unalaska [AND THE intervening waters (Bering Sea)], should proceed to
Kadiak, and from there to Sitka for the winter. The
object of the cruizing of two of our armed vessels in the
localities above mentioned is the protection of our
Colonies    [AND    THE    EXCLUSION   OF   FOREIGN   VESSELS
ENGAGED in traffic or industry  injurious to the
INTERESTS  OF  THE   RUSSIAN   COMPANY,  AS WELL AS  TO
THOSE  OF  THE NATIVE INHABITANTS OF THOSE REGIONS]."
* This type, inclosed in brackets, always denotes an interpolation of the kind mentioned in the Introduction. A
reference to the interpolations would now be immaterial, were
it not that it is necessary to show to how large an extent the
case of the United States rests upon them.
m
II
m
m
MM 22
f
%v I
At p. 46 the following quotation is given from
a letter, dated the 10th April, 1820, addressed by
the Minister of Finance to the Board of Administration of the Russian-American Company :—
"Having for the benefit of the American Company
excluded all foreigners from Kamtchatka and Okhotsk,
aud prohibited them from engaging in trade [and FROM
HUNTING AND FISHING IN ALL THE WATERS OF EASTERN
Siberia], the Government fully expects that the Company, on its part, Avill hold itself responsible for supplying those regions Avith all necessaries	
[" In conclusion, it is stated as the decision of His
Majesty the Emperor, in view of possible future
complications of thjs nature, that no contracts
involving the free admission or navigation for trade
of foreign ships or foreign subjects in the waters
United States'
Case p. 46.
(For revised
translation,
see Appendix,
vol. i, p. 15.)
Ibid., p. 47.
ADJOINING   OR   BOUNDED   BY   THE    COASTS    OF    RUSSIAN
Colonies will be approved by the Imperial; GOVERNMENT."]
Further, at p. 47, there is a quotation from a
letter addressed by the Board to the Chief Manager
of the Colonies at Sitka, dated the 23rd April,
1820 :—
':. . . . Basing your oavh action upon this proceeding
of our Highest Protector, you, as Commander of all our
Colonies must prohibit Avith equal strictness all foreigners
from engaging in any intercourse or trade Avith natiA'c
inhabitants [AS WELL AS FROM VISITING the waters
FREQUENTED BY SEA-OTTERS AND FUR-SEALS, OVER WHICH
OUR operations extend], under penalty' of the most
seArere measures, including the confiscation of ships and
the imprisonment of crews engaged in this illegal traffic.
You must act Avith the greatest severity in cases where
Seseigners have sold to the natiAres arms, poAvder, and
lead.   [They must be made to understand that their
PRESENCE IN OUR WATERS IS CONTRARY TO OUR LAWS, AND
That] they Avill never he admitted to any port unless
you or your subordinates convince yourselves that such
is necessary for the saving of life. Iu a word, you must
preserve an attitude in full accord with the vieAvs of the
Imperial  Government on   this  subject  [and   protect
AGAINST ALL INTRUDERS THE DOMAIN OF LAND AND
WATER GRANTED TO US BY THE GRACE OF THE EMPEROR
AND   NECESSARY   FOR    OUR    CONTINUED   EXISTENCE    AND
prosperity] . You must transmit these instructions
Without delay to your subordinate Commanders for
their conduct in their intercourse Avith foreigners, and
especially to the Commanders of ships navigating
our v/aters, [to enable  th^m to drive away the
FOREIGN INTRUDERS]."
And at pp. 49, 41, and 42 from three other's*
dated the 31st March, 1821, the 20th September,
Ibid.
(For revised
translation,
see Appendix,
vol. i, pp. 17, 18.)
Ibid., p. 48. the   28th   February,   1.8
United States'
Case, p. 49.
(For revised
translation, see
Appendix, vol. i,
p. 19.)
Ibid., p. 41.
(For revised
translation, see
Appendix, voh i,
p. 23.)
. . . The principles involved in this action of the
Government you must also observe in dealing with
foreigners who may visit our Colonies, [using all the
FORCE AT.-YOUR COMMAND TO DRIVE THEM FROM OUR
WAFERS.]  .  .  .  .""""
[" With this precious act in your hand you will
be enabled to assume a new position, and to stand
firmly opposed to all attempts on the part of
foreigners to infringe topon our rights and^rrvi-
LEGES. IN ACCORDANCE WITH TBE^'wTLL OF HlS IMPERIAL
Majesty, we will not be left^to protect unaided
the land and waters embraced 3s our exclusive
privileges. a squadron of naval vessels is under
orders to prepare for a cruize to the coasts of
north-ea stern asia and north-western amerlb*3?v
1
1
Ibid., p. 42.
(For revised
translation, see
Appendix, vol. i,
p. 24.)
WE CAN NOW *TAffp UPON OUR RIGHTS, AND DRIVE FROM
OUR WATERS AND PORTS THE INTRUDERS WHO THREATEN TO
NEUTRALIZE THE BENEFITS AND GIFTS MOST GRACIOUSLY
BESTOWED UPON OUR COMPANY BY HisImPERIALMaJESTY.]"
["As to fur-seals, however, since our gracious
Sovereign has been pleased to strengthen our
clabis of jurisdiction and exclusive rights in these
avaters #rth his strong hand, we can well afford
to reduce the number of seals killed annually,. and
to patiently await the natural increase resulting
therefrom, which will yield us an abundant harvest
in the future]."
.f
ii'-m
Appendix, vol. i,
p. 57.
(For revised
translation, see
Appendix, vol. i,
p. 20.)
A letter from the Board to the Chief. Manager,
dated the 3rd August, 1820, is not cited in the
United States' Case, but appears in the Appendix
thereto ; it contains the following :—
" You will perceive ... that we... do not countenance
any intercoiu-se Avith foreigners, [OR THE ADMISSION of
FOREIGNERS WITHIN THE PRECINCTS OF OUR POSSESSIONS],
except in case of absolute necessity. Heretofore, all such
transactions haAre generally resulted ihseriouslossesto us,
[and the very presence of foreigners in our waters
has become a vital question, affecting the existence
of the Company.]"
The inclosure to this last-quoted letter consists
Of I orders from the Russian-American Company
to its Kadiak office, 3rd August, 18g0,"    This
1H
j m
ha ii
24
inclosure also is not cited in the United States'
Case, but is given in the Appendix, and includes
the following:—
" The deceased Baranof avuk frequently instructed to United States'Case,
abstain as far as possible from all intercourse Avith the Appendix, vol. i,
t-, P- 57.
foreigners visiting our Colonies [FOR THE SAKE of rpov revised
PRESERVING INTACT OUR VALUABLE PRIVILEGES   IN   THK translation, see j
—— "~ Appendix, vol. 1,
WATERS OVER WHICH OUR TRADE AND INDUSTRY EXTENDS],   p. 20.)
Ave may well dispense with such articles of luxury as the
foreigners endeavour to make us purchase from them."
It is important to bear in mind that the ;M&
passages above included in brackets have nothing .
corresponding to them in the original documents.
The original documents, when read without the
interpolated passages, far from constituting any
proof that the Russian Government Avere asserting
any dominion over Behring Sea, disprove that
allegation, and show clearly that all they desired or
contemplated was to protect the trading on the
coast.
When the position of the persons by whom
these letters were written, and to whom they
were addressed, is remembered, it becomes clear
not only that foreigners frequented Behring Sea in
considerable numbers, but also that Russia and
the Russian-American Company recognized that
their presence there was unavoidable, and that
interference with them must be strictly limited to
the ordinary territorial jurisdiction.
Neither is any trace to be found of any action
having been taken under the instructions issued
by the Board of the Company with the view to
excluding foreigners from trading in Behring
Sea.
It is submitted that the propositions that were
formulated on p. 36 of the British Case with
reference to the user of the waters of Behrins"
Sea up to the year 1821, and supported by the
evidence cited therein, have not been displaced
by any facts or arguments produced in the Case
of the United States; but, on the contrary, that
the further examination of the subject establishes
that, down to the year 1821, Russia neither
asserted nor exercised in the non-territorial waters
of the North Pacific, including the body of water
now known as Behring Sea, any rights to the
exclusion of other nations.
Foreigners frequented Behring Sea
in numbers.
Before 1821, Russia asserted no exclusive jurisdiction in Behrine; Sea.
•*■ 25
CHAPTER n.
Head (B).—The Ukase of 1821, and the circumstances connected therewith leading up to the
Treaties of 1824 and 1825.
Tub United Status' Contentions.
(1.) United States' Case, p. 49—
" It thus appears from the foregoing citations that, so far
as it concerned the coasts and waters of Bering Sea,
the Ukase of 1821 was merely declaratory of pre?
existing claims of exclusive jurisdiction as to trade,
which had been enforced therein for many years."
(2.) United States' Case, p. 50—
" It was only when the Ukase of 1821 sought to extend
the Russian claim to the American Continent south to
latitude 51°, and to place the coasts and waters of the
ocean in that region under the exclusive control of the
Russian-American Company, that vigorous protests
were made hy the Governments of the United States
and Great Britain. And the correspondence which
grew ont of those protests shows that they Avere
inspired hy the claim of jurisdiction over large portions of the Pacific Ocean (as distinguished from
Bering Sea), and by the conflicting claims of the
three nations to the coast over which Russia sought
to extend exclusive authority."
(3.) .United States' Case, p. 56—
" Neither in the protests, negotiations, nor treaties is any
reference found to Bering Sea."
Stj.mha.rt
Bbitish Reply.
The citations referred to in Contention (1.) when freed from
interpolations, show no claims of exclusive jurisdiction
over the coasts and Avaters of Behring Sea,
Throughout the protests and negotiations resulting in the
Treaties of 1824 and 1825, there was only one sea area
under discussion, namely, that defined in the Ukase of
1821. The absence of all reference to Behring Sea by
a distinctive name, proves that it was not, for any
purpose, separated from the rest of the defined area.
The term " Pacific Ocean " was used throughout the protests
and negotiations to include Behring Sea; and the term
■' north-west coast " to include tho whole west coast
of America from Behring Strait to 51° north latitude.
The claim of Russia to maritime jurisdiction was that against
Avhich the protests of Great Britain and the United
States Avere most vigorous, and the first place in each
Treaty Av'as assigned to the clause by which i^ who
given up.
m
[249]
E 26
The 1 foregoing citations" mentioned in the
first of the above contentions as showing that, so
far as it concerned the coasts and waters of
Behring Sea, the Ukase of 1821 was merely
declaratory of pre-existing claims, are dealt with
in the latter part of the preceding chapter. They
are the letters dated respectively the 9th, 10th,
and 23rd April, 1820; 31st March and 20th
September, 1821 j and 28th February, 1822. The
original documents, as will be found from the
correct translations, afford no ground whatever for
this contention.
The presence of foreigners in the Russian possessions has already been alluded to as the chief
motive and justification for the Ukase, and it has
been shown that it was doubtless in consequence
of the complaints made on that score, that the
Ukase purported to exclude foreigners from
approaching within 100 miles of the whole of the
north-west coast of America, beginning from
Behring Straits, to the 51st degree of northern
latitude. j$s»
ISTo valid ground for the distinction" suggested
between the coasts and waters of Behring Sea and
those of other seas can be found in the Ukase
itself, Avhich, like the Ukase of 1799, asserts a
claim to the whole of the coast-line specified, and
regards the whole as subject to the same jurisdiction. £{fe|
The following are the Avords of the Ukase—
" The pursuits of commerce, whaling, and fishery,
and of all other industry on all islands, ports, and gulfs,
including the whole of the north-west coast of America,
beginning from Behring's Straits to the 51st degree of
northern latitude, also from the Aleutian Islands to the
eastern coast of Siberia, as Avell as along the Kurile
Islands from Behring's Straits to the South Cape of the
Island of Urup, A*iz., to the 45° 50' northern latitude, is
exclusively granted to Russian subjects."'
Contention that the Ukase of 1821
Avas as to, Behring Sea, merely
declaratory of pre-existing claims
of exclusiA-e jurisdiction.
Appendix, vol. i.
pp. 11, 13, 16, 18,
23, and 24.
British
Case, p. 39.
United States'
Case, Appendix,
vol. i, p. 16.
United States'
Case, pp. 41-49.
Ukase does not distinguish between
Behring Sea and Avaters outside.
It applies to north-Avest coast from
Behring Straits to latitude 51° north.
The letter from Baron Nicolay to the Marquis British Case,
of Londonderry, dated the 31st October, 1821, by £PPendix> ™1. ii,
•" ' '    J   Part 1, p. 2.
which this  Ukase was  officially  notified   to   the Sea area defined in Ukase, described
British   Government,   speaks   of   the   sea   lying ag part of Pacific Ocean,
between the coasts thus defined as—
"cette partie  de l'Ocean Pacifique  que bordent nos
possessions en Amerique et in Asie."
And he concludes his letter by saying:—
" Les officiers commandant les batiments de guerre
Busses qui sont destines a voiller dans l'Ocean Pacifique
mmtm 27
au maintien des dispositions susmentionnees. ont recu
l'ordi'e de commencer a les met tie en A'igueur Olivers
eeux des navires etrangers qui seroiont sortis dun des
ports de l'Europc apres le 1" Mars, 1822, ou des Etats-
Unis apres le 1" Juillet. A dater de pes epoques aucun
navire ne pourra plus legalement prctexter l'ignorance
du nouveau Reglement."
British Case,
pp. 59-76.
Throughout negotiations, no mention
of BehringSea by distinctive name.
British Case,
Appendix, vol. ii,
Parts I and II.
Ibid.,
Part II, p.
' It is difficult to understand the ground for
the allegation that neither in the protests, negotiations, nor Treaties, is any reference found to
Behring Sea. The fact that, during the whole of
the negotiations prior to 1824 and 1825, no
reference is made by any distinctive name to
Behring Sea, strongly supports the contention
of Her Majesty's Government. The reason is
obvious. The whole area affected by the Ukase
was the subject of discussion, and no distinction
was drawn between the part of the Pacific Ocean
north and that south of the Aleutian Islands.
Had any such distinction been intended, it must
have been repeatedly mentioned; and had it been
desired to deal with the waters of Behring Sea
in an . exceptional manner, an express provision
to that end must have been inserted.
With reference to this point, attention is
invited to Chapter II of the British Case, and
the correspondence set out in the Appendix
thereto.
The Ukase of the 4th September, 1821, which
led to the protests, negotiations, and Treaties,
claimed the exclusive right to the pursuits- of
commerce, whaling, and fishing on all islands,
ports, and gulfs, including the whole of the
north-west coast of America from Behring Strait
to the 51st degree of the northern latitude and
the Aleutian Islands.  -
M. de Poletica, in his letter to Mr. Adams of
the 28th February, 1822, claims—
Pacific Ocean extends on north-west
coast from Behring Strait to latitude 51° north.
British Case,
pp. 48, 49.
United States'
Case, Appendix,
A'ol. i, p. 133.
" that the Russian possessions in the Pacific. Ocean
extend on. the north-icest 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 same Strait to the 45th degree. The extent
of sea of which these possessions form the limits
comprehends all the conditions Avhich are ordinarily
attached to shut-seas ('rners fennees'), and the Russian
Go\rernment 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 adATantage of localities.'
LQ1 E 2 *
28
<    'If
The extent of waters thus limited he claims as
| shut-seas (' mers ferme'es ')." TJie same limits
are either expressly or impliedly referred to
throughout the correspondence/"
Thus in the letter from Mr. Adams to Mr.
Middleton of the 22nd July, 1823, the writer
states that—
" the pretentions of the Imperial Government extend British Case,
to an exclusive territorial jurisdiction from the 45tA Appendix, vol. ii,
degree of north latitude, on the Asiatic coast, to the latitude
of 51° north on the western coast of the American Continent; and they assume the right of interdicting the
navigation and the fishery of all other nations to the
extent of 100 miles from the whole of that coast. The
States can admit no part of these claims. Their right of
navigathig and of fishing is perfect, and has been in
constant exercise from the earliest times, after the
Peace of 1783, throughout the whole of the Southern
Ocean, subject only to the ordinary exceptions and
exclusions of 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."
United   States   admit   no   part of
Russian Claims.
Mr. Middleton s opinion upon the subject of
the Ukase, with its claim to close even Behring
Strait,  clearly appears  in his Memorial   of the Brlt^gf,ase'
«   it
* See particularly in the correspondence between Russia
and the United States :—
M. de Poletica to Mr. Adams, 2nd April, 1822.
Mr. Adams to Mr. Middleton, 22nd July, 1823.
Mr. Adams to Mr. Rush, 22nd July, 1823.
Memorial by Mr. Middleton, 1st December, 1823.
In the correspondence between Great Britain and
Russia :—
Baron Nicolay to the Marquis of Londonderry, 31sfc
October, 1821.
Count Nesselrode to Count Lieven, 7th October, 1821.
Messrs. P. Enderby and Mellish to Board of Trade, 27th
No\*ember, 1821.
Mr. G. Canning to the Duke of Wellington, 27th September, 1822.
Ship-owners' Society to Mr. G. Canning, llth June, 1823.
Mr. Enderby to the Board of Trade, 7th February, 1824.
And in the correspondence of the Russian-American
Company :—
Minister of Finance to Russian-American Company, 18th
July, 1822.
Cuunfc Nesselrode to N. S. Mordvinof, llth April, 1824.
f This word is in italics in the oriariua'.
United States'
Case, Appendix,
vol. i, p. 135.
British Case,
Appendix, vol. ii,
Part II, p. 4.
Ibid., p. 6.
Ibid., p. 7.
Ibid., Appendix,
vol. ii, Part I, p, 1,
Ibid., p. 3.
Ibid., I 13.
Ibid., I 21
Ibid., p. 36.
Ibid., p. 52.
United States'
Case,-Appendix,
vol. i, p. 62.
Ibid., p. 14. 29
1st (13th) December, 1823, which contains   the
following passage:—
United States object to shutting up
of a Strait never before shut up.
British Case,
Appendix, vol. ii,
Part II, p. 7.
" The Ukase even goes to the shutting up of a strait
which has never been till now shut up, and Avhich is at the
present the principal object of discoveries interesting and
useful to the sciences 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."
Ibid., Part I, p. 61. Mr. G. Canning, writing to Sir C. Bagot,
Her Majesty's Ambassador at St. Petersburgh,
on the 12th July, 1824, -inclosed the draft of a
"Projet" of Convention, which Sir C. Bagot was
authorized to sign
British " Projet."
This | Projet" contained the following:—
| His Majesty the King of the United Kingdom of
Great Britain and Ireland, and His Majesty the Emperor
of All the Russias, being desirous of drawing still closer
the ties of friendship and good understanding Avhich
unite them, by means of an Agreement which shall
settle, upon the basis of reciprocal convenience, the
different points connected with the commerce, navigation, and fisheries of their subjects on the Pacific Ocean,
as well as the limits of their possessions and establishments on the north-west coast of America; their said
Majesties have named their Plenipotentiaries to conclude
a Convention for this purpose, that is to say:
" His Majesty the King of the United Kingdom of
Great Britain and Ireland, &c, &c, &c.;
| And His Majesty the Emperor of all the Russias, &c,
&c, &c.;
I Who, after having communicated to each, other their
respective full powers, found to be in due and proper
form, have agreed upon and concluded the following
Articles:—■
ISL
.; :'.*]
>i
15:
1 m
i
if;
■I
ARTICLE I.
Pacific Ocean comprehending the
sea within Behring Straits."
" It is agreed between the High Contracting Parties
that their respective subjects shall enjoy the right of
free navigation along the whole extent of the Pacific
Ocean, comprehending the sea within Behrbufs Straits, and
shall neither be troubled nor molested in carrying on
their trade and fisheries, in all parts of the said ocean,
either to the northward or southward thereof.
"It being Avell understood that the said right of
fishery shall not be exercised by the subjects of either
of the two Powers, nearer than 2 marine. leagues from
the respective possessions of the other. 30
y i »
I  1
-ARTICLE II.
" The line Avhich separates the possessions of the two
High Contracting Parties upon the continent and the
Islands of America to the north-Avest, shall be draAvn in
the manner following :—
" Commencing from the tAVo pohits of the island called
' Prince of Wales' Island,' Avhich form the southern extremity thereof, Avhich points lie in the parallel of
54° 40', and between the 131st and 133rd degree of west
longitude (meridian of GreenAvich), the line of frontier
between the British and Russian possessions shall ascend
northerly along the channel called Portland Channel,
till it strikes the coast of the continent lying in the
56th degree of north latitude. From this point it shall
be carried along that coast, in a direction parallel to
its windings, and at or Avithin the seaward base of the
mountains by which it is bounded, as far as the 139th
degree of longitude Avest of the said meridian. Thence
the said meridian line of 139th degree ofVest longitude,
in its extension as far as the Frozen Ocean, shall form
the boundary of the British and Russian possessions on
the said Continent of America to the north-Avest."
'•ARTICLE III.
il
5- W
fM 1
" It is, nevertheless, understood, Avith regard to the
stipulations of the preceding Article:—
" That the said line of coast on the Continent of
America, which forms the boundary of the Russian possessions, shall not, in any case, extend more than
marine leagues in breadth from the sea towards the
interior, at whatever distance the aforesaid mountains
may be.
12. That British subjects shall for ever freely navigate and trade along the said line of coast, and along
the neighbouring islands.
"3. That the navigation and commerce of those
rivers of the continent which cross this line of coast
shall be open to British subjects, as Avell as those
inhabiting or visiting the interior of this continent, as
to those coming from the Pacific Ocean, who shall
touch at these latitudes.
"ARTICLE IV.
I The port of Sitka or Nove Arkhangelsk shall be, and
shall for ever remain, open to the commerce of the subjects of His Britannic Majesty.
"ARTICLE V,
" With regard to the other parts of the north-west coast
of America, and of the islands adjacent thereto, belonging to either of the two High Contracting Parties, it is
agreed that, for the space of       years from the 31
April, 18-24, their respective vessels, and those of their
subjects, shall reciprocally enjoy the liberty of visiting.
(without hindrance, the gulfs, havens, and creeks of the
said coast, in places not already occupied, for the purposes of fishery and of commerce with the natives of the
country.
" It being understood :—
That the subjects of cither of the High Contracting Parties shall not land at any spot where there may
>e an establishment of the other, Avithout the permission
of the Governor or other authority of the place, unless
they should be driven thither hy stress of Aveather or
other accidents.
I 2. That the said liberty of commerce shall not include the trade in spirituous liquors, in fire«arms,
swords, bayonets, &e.. gunpoAvder, or other warlike
stores. The High Contracting Parties reciprocally engaging not to permit the aboAre-mentioned articles to be
sold or transferred, in any manner Avhatever, to the
natives of the country."
It wiR be observed that, in this first draft Con-
vention, Article I purported to give to the subjects
of each Power—
•' the right of free navigation aloua; the Avhole extent of
the Pacific Ocean, comprehending the sea Avithin Behring
Straits."
British Case It was suggested by Count Lieven, in a Meiuo-
Appendix, a-oI. n,   raridum communicated to Mr. Gr. Canning in July,
Part I, p. 66. .    "
1824, that the Imperial Government might hesitate
to admit this condition—
'• sans en modifier l'enonce actuel pour ne point exposer
les cotes de ses possessions Asiatiques dans la Mer Glaciate
aux inconveniens qui pourraient naitre de la visite des
batimens etrangers."
The   objection,   therefore,   related   wholly. to
British Case p. 16. Behring   Strait and the Russian Asiatic  possessions beyond them, and not to Behring Sea.
With reference to Count Lieven's objection, Mr.
Canning on the 24th July, 1824, wrote :—
1 bid., Appendix,
vol. ii, p. 66.
Shutting up of Behring Straits not
to be tolerated by England.
" The PoAver 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 Avhich it becomes the undisputed owner; but the shutting up of
Behring's 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 Avhich the skill and science of our
seamen has been (and is still) employed in enterprises
interesting not to this country alone, but to the Avhole
civilized world,
■■#»' 32
HfiiS
It cannot be supposed that Mr. Canning, while
insisting upon the freedom of Behring Strait and
the Arctic Ocean, was at the same time conceding
to Russia the right to exclude vessels from the
non-territorial waters of Behrinff Sea.
In August, 1824, the Russian Plenipotentiaries
delivered to Sir C. Bagot a 1 Contre-Projet," containing the following Articles :—
"ARTICLE V.
;i Les Hautes Puissauces Contractantes stipulent en  British Case,
outre que leurs sujets respectifs navigueront librement,  Appendix^ vol. u,
. * ..   r/art l, p. oy.
sur toute letendue de 1 Ocean Pacifique, tant au nord
qu'au sud, sans entravc quelconquc, et qu'ils jouiront du
droit de peche cu  haute mer,  mais que ce droit  ne
pourra jamais etre exerce qu'a la distance de 2 lieues
marines  des  cotes  ou  possessions,   soit   Russes,   soit
Britanniques.
I ARTICLE VI.
" Sa Majeste l'Empereur de Toutes les Russies, voulant iDjd. p. 70.
meme donner une preuve particuliere de ses egards pour
les interets des sujets de Sa Majeste Britannique et
rendre plus utile le steces do entreprises, qui auraient
pour resultat decouvrir un passage au nord du Continent
Americain, consent a ce que la libertc de navigation
mentionnee en 1'Article precedent s'etende sous les
memes conditions, au Detroit de Behring et a la mer
sitnee au nord de ce detroit-"
i I
iff    iwL-r-
m
The negotiations, however, were broken off, as jbid
reported by Sir C. Bagot, who wrote that on certain points differences had arisen which appeared
to be irreconcilable.
One of the points on which the Russian Plenipotentiaries refused to yield was the proposal, embodied in Article V of the British " Projet," in so
far as it permitted British subjects to visit, for a
stated period, the gulfs, havens, and creeks in
places not already occupied on the north-west coast
of America from 60° north latitude to Behrino;
Straits. This coast they declared to be the absolute and undisputed territory of his Imperial
Majesty, and they added that it was not the intention of His Imperial Majesty to grant to any Power
whatever for any period of time the liberty Avhich
was required.
But the stipulation for the free navigation of the
high seas, which was afterwards embodied in
Article I of the Treaty, was not one of the points
upon which differences arose, and the Russian
Plenipotentiaries do not appear to have raised any
p. 67.
Eussia does not object to British
"Projet" on ground of exceptional
rights in Behring Sea. a3
British Case,
Appendix,
vol. ii, Part I.
p. 68.
Ibid.
United States'
1
Conference of Russian dignitaries.
Appendix, Vol. i,
p. 32 et seq.
objection to the British proposal, on the grounc
that Russia possessed exceptional rights over the
. non-territorial waters of Behring Sea.
Article VI of their " Contre-Projet" indicates
that they had no claim to exclude foreign vessels
from waters south of the Arctic Ocean and Behring
Strait. This Article purports, as a concession, to
waive anv such rights in respect of the last-men-
tioned ocean and strait, but Behrino; Sea is not
named.
Sir C. Bagot, on the suspension of the negotiations, reminded the Russian Plenipotentiaries that
the claim to maritime jurisdiction assumed by
Russia in the Pacific, which he had hoped to see revoked in the simplest and least unpleasant manner,,
by mixing it with a general adjustment of other
points, remained, by the breaking off" of the negotiations, still unretracted ; and that his Government would probably be of opinion that, upon that
part of the question, some arrangement must
nevertheless be entered into.
With reference to the sixth Article of the
"Contre-Projet," he wrote as follows :—
11 ga\re the Russian Plenipotentiaries distinctly to
understand that neither Hi3 Majesty's Go%rerument nor
those of the other Maritime PoAvers of the Avorld Avonld,
as I thought, be likely to accept the free navigation of
Behring Strait as a concession on the part of Bussia."
In the United States' Case great -stress is laid
upon the faci that Russia, after the execution of
the Treaty with the United States, and before the
conclusion of the Treaty with Great Britain, sought
to place an interpretation upon the former Treaty
which is not in accord with the interpretation now
put upon it by Great Britain. This interpretation
is contained in a Report, dated the 21st July, 1824,
of the Conference of a Special Committee of certain
Russian dignitaries, which Conference had been
brought together for the purpose of replying to
certain questions raised by the Russian-American
Company upon the Treaty.
This document has been produced for the first
time in the United States' Case. It is in no sense
an international document. Further, the questions
put by the North American Compam*, to which it
purports to be an answer, are not produced..
Moreover, the translation of the. Report cited in
the United ^States' Case is inaccurate in raoi
[249] I
ii
«
mm
ilSP-ifl 34
important' particulars^ Tile^ £pMs!atioh glvwfii-'.g u d §f§§§
the United ''States*' Cll|"is &i$0$8Mf the' word's 0aaei pp. 54, 55.
appearing between  bralcets being' simple inter- ^^e^mns'
polations :— ' pendix, vol. i,
I j$p. tjji §p|Jj    fm p-34-)
." 7. That since the sovereignty of Russia over the
shores of Siberia [and Americans Avell as over the
Aleutian Islands [AND THE INTERVENING. SEAS], has long
since been, acknowledged by all PoAvers, these coasts,
islands [axdseas] just named could not have been referred to in the Articles of the above-mentioned Convention, which latter concerns only the disputed territory on the north-west coast of Ameilca and'the
adjoining islands, and that in the full assurance of such
undisputed right Russia has long sih'&l^stalslfehed permanent Settlements on the coast of Siberia, as Avell as
on the chain of the Aleutian Islands; consequently,
American subjects could not, on the strength of ^jfi^f ■
II of the Convention of the 5th (17th) April, hav^^ado
landings on the coast, or carried on limiting and fishing
Avithout the permission of our ^dmhianders or Governors! These ;coasts of Siberia aud of the Aleutian
Islands are not washed by the Southern or Pacific
Ocean, of which mention is made in Article I- of the
Convention, but by the Arctic Ocean and the Seas of
Kamchatka and Okhotsk, Avhich, on all authentic Charts
and in all geographies, form no part of the Southern or
Pacific Ocean."
i
m
ill
II
m
m
m
Prom this Report, if may be*gathered that tire
two following points had been raised by the Cor||iJ
pany :—
1. It was thought that Article I of the Convention permitted citizens of the United   States   to
resort to the coast upon points not already occupied upon the shores of Siberia  and the Alej^
tian Islands for  the purpose of trading with the
natives.    ^^B^^^^^^M        ^|l
2. The Company desired to confine the right of
fishing and trading, granted to the United States
for ten years by Article TV, to the coast south of
Cross' Sound. ilSI Xo&Jk
It was to meet the first of these points that the
argument that Behring Sea is not part of the
Pacific Q^ean, or South Sea, was for the first time
suggested in the above Report. ^«
Upon the second point, the Committee ex- Revised transla-
pressed the opinion that Yakutat or Behring Bay ||p| J^ '**'
was situated^—j^m ||gfj
" in a latitude [59° 30' north] where the rights of Russia I
have never, formed a,subject of-dispute, and that this
important circumstance permits us to include it in the
general declaration concerning the Aleutian Islands and
the' other northern places."
"-^^ 35
Revised trans- As to Cross' Sound, the Oominittee agreed fehatr-
lation, Appendix,
vol. i, p. 35, " as it lies under the 57th degree'of north' latitude, a'nii
"•Consequently Avithin  the limits of those islands  and
regions to Avhich Russia's right of sovereignty has been
disputed, it is impracticable to apply the same rule!**"
Accordingly, on the suggestion of the Committee, Baron Tuyll, Russian Minister at Washington, Avas instructed by his Government to propose to Mr. Adams that Cross'Jiound should be the
northern limit, to which the right, of fishing and
trading for the stipulated g#riod of ten years
should be confined.
No copies, however, are forthcoming of the instructions given by the Russian Government to
Baron Tuyll, nor are any copies of the despatches
from the Baron to his Government, or the subsequent reports of the result of the negotiations, now
produced. What actually took place between
Baron Tuyll and Mr. Adams is best told by quotation from Mr. Adams' diary.
Mr. Adams' account of this transaction is as
follows: —
Memoirs of J. Q.
Adams, vol. vi,
p. 435;'
" 6th, Monday.—Baron Tuyll, the Russian Minister,
Avrote me a note requesting an immediate interview, in
consequence of instructions received yesterday from his
Court. He came, and, after intimating that he was
under some embarrassment in executing his instructions,
said that the Russian-American Company, upon learning
the purport of the north-Avest Coast Convention concluded last June by Mr. Middleton, Avere extremely dissatisfied (' a jete de hauts oris'), and, by means of their
influence, had prevailed upon his Government to send
him these instructions upon two points. One Avas, that
he should deliver, upon the exchange of the ratifications
of the Convention, an explanatory note, purporting that
the Russian Government did not understand that the
Convention Avould give liberty to the citizens of the
United States to trade ou the coast, of Siberia and the
Aleutian Islands. The other Avas, to propose a modification of the Convention, by wdiich our vessels should
be prohibited from trading on the North-Avest Coast
north of latitude 57°. With regard to the former of
these points, he left with me a minute in writing.
" I told him that Ave should be disposed to do everything to accommodate the views of his Government
that Avas in our power, but that a modification of the
Convention coidd be made no otherwise than by a neAv
Convention, and that the construction of the Convention as concluded belonged to other Departments of
the GoA'ernment, for which the Executive had no
authority to stipulate; that if on the exchange of the
ratifications ho should cteli\rer to me a note of
the purport of that Avhich he now informally
[249] F 2 36
II   I-
I    'II
flI? i H '»s»
w
gave-me, I should give him.mijjansAver of that import,
namely, that the.construction of treaties depending here
upon the judiciary tribunals [tljg Executive Government,  even if disposed  to  acquiesce  in  that of the
Russian-Government as announced by him, could not
be binding upon the Courts, nor upon this nation.]*    I
added that the Convention Avoidd be submitted immediately to the Senate;- that  if anything affecting its
construction, or, still more^modifying its. meaning, Avere
to be presented o'kithe pa'rir-of the Russian Government
before, or at the exchange of, ratifications, it must be
laid before the Senate, and could have ho other possible
effect than of starting doubts, and perhaps hesitation,
in that body,and of favouring the views of those, if such
there Avere, who might wish to defeat the ratification
itself of the Convention.    This Avas an object of great
solicitude to both Covemments, not only for the adjustment of a difficult question Avhich had arisen between
them, but for the promotion of that harmony which Avas
so much in the policy of the two countries, Avhich might
emphatically be termed natural friends to  each othsr.
If, therefore, he Avould permit me to suggest to him
Avhat I thought Avould be the best course, it Avould bo
to Avait for the exchange of the ratifications, and make
it purely and simply; that afterwards, if the instructions
of his Government Avere imperative, he might present
the note, to which I now informed him Avhat Avould be
in substance my answer.    It necessarily could not he
otherwise.    But if his instructions left it discretionary
Avith him, he Avould do still better to inform his Government of the state of things here, of the purport of our
conference,   and  of Avhat  my  answer must he if he
should present the note.    I believed his Court would
then deem it best that ho should not present the note at
all.    Their  apprehensions   had   been   excited   by  an
interest not very friendly to the good  understanding
between the United States and Russia.    Our merchants
Avould not go to trouble the  Russians on the coast of
Siberia, or north of the 57th degree of latitude, and it
Avas Avisest not to put such fancies info their heads.    At
least, the Imperial Government might wait to see the
operation of the Convention before taking any further
step, and I Avas confident they Avould hear no complaint
resulting from it.    If they should, then would he the
time for adjusting the constiuction   or negotiating a
modification of the Convention ; and Avhoever might be
at the head of the Administration of the United States,
he might be assured that every disposition would he
cherished to remove all causes of dissatisfaction, and to
accommodate  the Avishes and the just policy   of the
Emperor.
" The Baron said that these ideas had occurred to
himself; that he had made this application in pursuance
* This passage does not appear in Mr. Blaine's quotation
from Mr. Adams' diary (United States' Case, Appendix, vol.
i p. 277). It is important, inasmuch as it indicates that
the United States' Government were not disposed to acquiesce
in the proposed const: nation of the Treaty. 37
Appendix,
p. 03
vol.
of his instructions; but he was aware of the distribution
of powers in our Constitution, and of the incompetency of the Executive to adjust such questions. He
Avould therefore \vait foi; the exchange of the ratifications Avithout presenting his note, and reserve for future
consideration Avhether to present it shortly afterAvards,
or to infoi'm his Court of Avhat he has done, and ask
their further instructions upon what he shall definitely
do on the subject. He therefore requested me to consider Avhat had noiy passed between us as if it had not
taken place (' non avenu '),■ to Avhich I readily, assented,
assuring him, as I had done heretofore, that the President had the highest personal confidence in him, and in
his exertions to foster the harmony between the two
countries. I reported immediately to the President the
substance of this conversation, and he concurred in the
propriety of the Baron's final determination."
As Avill be seen from, the above account of the
negotiations, no note whatever was presented by
Baron Tuyll. In point of fact, it is not clear that
any note was ever written. The document produced by the United States, and purporting to be
a copy of the note, is headed " Note explicative h
presenter," and would appear to be nothing more
than a draft Minute of a note. The following is
the text of this draft note :— m
' Note explicate a presenter au Gouvernement des
Etats-Unis lors de l'echange des ratifications dans le
but d'ecarter d'autant plus surement tout motif dex
discussions futures, au moyen-de laquelle note on re-
connoitroit positivement exceptees de la liberte de
chasse, de p£che, et de commerce, stipulee en faveur
des citoyens des Etats-Unis pour dix ans, les Iles
A leutiennes, les cotes de la Siberie, et en general les possessions Russes sur la cote nord-ouest de V Amerique
jusquau 59° 30' de latitude nord.
" II parait que ceci n'est qu'une consequence natur'elle
des stipulations arretees, car les cotes de la Siberie sont
baignees par la Mer d'Ochotsk, la Mer de Kamtschatka,
et la Mer Glaciale, et non par la Mer du Snd mentionnee
dans l'Article I" de la Convention du 5 (17) Avril. C'est
aussi par la Mer du Kamtschatka ou l'Ocean du Nord,
que sont baignees les Iles Aleutiennes.
" L'intention de la Russie n'est point d'entraver la
libre navigation de l'Ocean Pacifique. Elle se bornerait
a faire reconnoitre comme bien entendu et place a l'abri
de tonte espece de doute le principe, que depuis le
59° 30' aucun vaisseau etranger ne pourrait approcher
de ses cotes et ses iles, ni y faire la chasse ou la peche
qu'a la distance de 2 lieues marines. Ce qui n'emp§-
chera pas d'accueillir les batimens etrangers aA^aries ou
battus par la temp^te."
It is stated in Mr. Blaine's despatch of the 17th
December, 1890, that this Minute or   Memoran-
Sbi-S.T: 3&
dum was not presenteri at theitfejfeioSftte.exekangjei
of ratifications', but? was communicated a fortnight'
afterwards; i^ft does not' appear' to have 'received'
any acknovvledgmeiit or reply, and the whofe 'proceedings, seem to have been entirely informal."' '£$$■■
In any case, neither here, nor in the conversation
with Mr,. Adams above referred to, did Baron
Tuyll suggest that Behring Sea was closed, or that,
his Government claimed a margin of. 100 miles
from the shores. His argument was that the Treaty
did not apply to that sea, and that the United
States were remitted there to the ordinary rights
of independent nations on the high seas. What he
says as to the reception of ships in distress assumes
that ships will be passing ; and the 2 leagues is
treated as the limit of territorial jurisdiction.
To the above may be added the account of the
same transaction which is given by the Russian
writer, Tikhmenieff:—
Baron Tuyll. Avhile arguing that
Behring*Sea Avas unaffected by
Treaty, impliedly admits it open to
the Avoricl.
ill! i
if
It
p. 39.
I As the Coiwention had not yet been ratified, the British Case,
Emperor, on the representation of the Company that Appendix, vol
they Avould be injured by that part of the Convention
to Avhich Ave have referred, ordered inquiry to be made
into the matter by a Special Commission. In the Protocol of the Commission, Avhich Avas approved by the
Emperor, it Avas declared, inter cdia, that the provision
of the Convention granting to the citizens of the United
States tfie right to fish in the Avaifers of the Colony, and
to trade Avith the inhabitants of the coast, must not be
understood as giving them a -right to approach the
coast of Eastern Siberia, and the Aleutian and Kurile
Islands, Avhich had long been recognized by the other
PoAvers as being under the exclusive dominion of Russia,
and that that provision only applied to the disputed
territory on the north-west coast of America, between
54° 40' and 57°.
"In consequence of this declaration the Head of the
Foreign Office and the Commission were of opinion that-
ill, order to safeguard the rights of the Company, and to
obAuate.thc possibility of the Convention being Avrongly.
interpreted, the Russian. Minister to the United States,
should be instructed to make a formal explanatory declaration on the occasion of the exchange of the ratifications of the Convention. The Minister reported that he
did not see his-way to carrying out these instructions,
and that the only Avay in which he could explain the.
provision in question to the Washington Cabinet Was by a.
Arerbal note ; he< added that a formal declaration might,
give rise to serious disputes, prevent the ratification of-
the Convention, and produce an effect which was not,
intended, by arousing suspicions which would otherwise
never be entertained. The Convention Avas accordingly
ratified." •:>.h.
89
Upon the subject of ^^*Kep6rt of the 'Committee, and 'the ■attempt 'at'~ negotiation'; which
resulted   from   it;  the'   following'1  observations
the'Rt
arise :-
*^%&^-&Eg JKtssian-Americaii Company were
only 'anxious about trade' and fenihg on the
coast, and were not concerned about Behring
Sea.
"'z. That Barbn Tuyll did not claim for Russia
jurisdiction of any kind over Behring Sea ; for he
states in his draft noteulat Russia woubxBe satisfied "with a limit of 2 marine leagues to tlie north
of 596 30'.
3. Thalrthe interpretation of the Avords " Pacific
Ocean or South Sea," in Article I of the Convention, upon which the Government of the United
States now base their argument, was first suggested
after the conclusion of the Convention, and with
the express purpose of reconciling the Directors of
the Russian-American Company to the terms of
that Article.
4. That Mr. Adams declined the overtures of
Baron Tuyll and the interpretation desired to be
put upon the Treaty, and that the Convention was
finally ratified in its original terms, without explanation or modification.
5. That throughout the protests and negotiations
Avhich preceded the Treaties of 1824 and 1825,
the term | Pacific Ocean" was used to include
Behring Sea, and the term " North-west Coast"
to include the whole west coast of America from
Behring Strait to 51° north latitude.
C. That no distinction is drawn in the Treaty
Avith Great Britain in 1825 between Behring Sea
and the rest of the Pacific Ocean, though the
attention of the Russian Government had been
forcibly called to the point by the remonstrances
of the Russian-American Company (upon the con-
elusion of the Treaty with the United States) to
the advisability of excluding certain parts of the
coasts of Behring Sea.
It would seem very plain, therefore, that the
claim to maritime jurisdiction Avas the one to
Avhich both England and the United States attached
importance ; that against it their protests, which
were emphatic and unqualified, were mainly
directed; and that they demanded and obtained
not a partial, but a total and unconditional withdrawal of it.
mmmm 40
itt
;p
HI
■11 m
From the considerations referred to in
chapter, it i3 submitted that the conclusions
claimed to have been established in the British
Case, as stated at p. 58, are fully supported, and
that the further evidence which has been adduced,
clearly shows that the Ukase of 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 by the United Slates. That
thereupon Russia unequivocally withdreAV her
claims to such exclusive dominion and Control.
this British Case, p. 58.
Conclusions.
Russia withdrew her claim to conirol
of Behring Sea.
mmm
mm^m 41
CHAPTER III.
' -So*} m- >    . t A xrtl ' dC^tw,Af^-i4(BA»to!
If^'iVD (0).— The question whether the bodg-'of'■ ivater
noir knewn as Behring Sea is included in the
phrase t: Pacific Ocean," as used in the Treaty oj f
1825 between Great Britain and Russia. •?%$&
The Uniied States' Coxi'ENTJORS.vri
(1.) United States' Case, p.~26—
ilBy which term [north-west; coast-6f,tlie American Continent] it is intended to designate the coast between
Prince Walliam Sound and the mouth of the Columbia
River."
(2.)-United States' Case, p. 52—     0-W-
" That the term ' Great Ocean, commonly called the Pacific
Ocean or South Sea,' used in Article 1 of the treaty of
1821 with the United States, and the term,' the Ocean,
commonly called the Pacific Ocean,' used in Article I of
the Treaty of 1825 with Great Britain, did not apply to
. and include Bering Sea, is shown by a study of the
maps, charts, and writings of navigators at the time of
&Zt:r ■ and prior to the negotiation and celebration of these
treaties. A list of these maps and charts is appended
hereto^and a careful examination of the same is invited.
It will be seen from them that the best g.epgraphers
■ have at all times distinguished this body of water from
the ocean lying south of it by conferring upon it some
separate name, in most cases either that.j:of S.ea of
Kamchatka, Bering Sea, North-eastern Sea, or Eastern
Ocean."
(3.) United States' Case, p. 57 —
I By the ukase of 1821, Russia had publicly claimed certain
unusual jurisdiction both over Bering Sea and over a
. portion of the Pacific Ocean, yet in the resulting
treaties, which constituted a complete settlement of all
differences growing out of this ukase, no reference is
made to this jurisdiction so far as it related to Bering
Sea, although it is expresslv and conspicuously renounced as to the Pacific Ocean."
(4.) United States' Case, p. 58—
'* Itaj)pears from an examination of the correspondence and
treaties that the coasts, interior waters, &c,
upon and in which the United States and Great Britain
Avere allowed to trade for ten years Avlthout restrictions,
were limited on the west by Takutat Bay and Mount
St. Elias ; that is to say, that this right Avas restricted to
the coast-line, concerning the ownership of which there
may have been some possible, dispute.
* Article IT. of .% Treaty of r32ft,.and Article VI£ »|4f
Treaty of 1825."
(5.) United States'Case, p. 69—
•'That the body of water known as Berir.g Sea was not
included in the phrase ' Pacific Ocean,' as used in the
treaty of 1825."
(6.) United States' Case, p. 297— W*
" That'Bering''Sea*AV'as not included in the phrase ' Pacific
Ocean' as used in the treaty of 182.5/".;
(7.) United States' Case, p. 302—
j" That the body of water now known as Beiirg Sea was
" not included in the phrase ' Pacific Ocean,' as used in
the treaty of 1825."
[249] O
jfe. 11  fc
Mt !'
M
SUMMARY  OF  BRITISH  REPLY,
A more exhaustive collection of Maps and Charts proves that
" Pacific Ocean" includes Behring Sea. Not one has
been found which, having regard to the relative sizes
and positions of the names, is an authority to the
contrary. In Charters of the Russian American Company, the Kurile Islands, Avhich lie outside Behring
i$?H ' '■    Sea; but in the Pacific Ocean, are said to be in " North-
:. JEstetern Qeiean," or North-Eastern Sea;   the identity
of which with the Pacific Ocean is thus demonstrated.
Apart f rom.the evidence afforded by Maps, and by the previous
negotiations, that the words " Pacific Ocean " in the
Treaties included Behring Sea, the same is proved from
the Treaties themselves. Both, for ten years, throw
open to the subjects of the Contracting Powers the
harbours on the north-west coast; which coast is not
defined by interpretation clause ; and is shown by the
preliminary correspondence, and by Article III of the
Mibti 1825.-T<teaity, to have reached to Behring Strait. The
.. throwing open of the harbours assumes the right of
approach thereto, and refutes the. supposition that
Behring Sea was closed.
The interpretation of the term " north-west coast" in Con-
'' terition (1.) is now suggested, without reason assigned,
after three other interpretations had been been put
forward by the United States, and answered by Great
• -Britain, in the correspondence preceding the Arbitra-
£$£.       tion Treaty.    Two of the three do not reappear in the
United States'Case ;  and the survivor which forms
j|m     ' -Contention (4.) is that  "north-west coast" in both
Treaties means what is called in the Treaty of 1825
' -the " lisi^re."    But it did not mean this in the Treaty
of 1824 ; for ho " lisiSre " is mentioned therein, or was
in question between the parties.    No'r'in the Treaty of
1825 could " north-west coast" have meant the " lisiere,"
as the right to use harbdu!rs; is carefully expressed to
.be reciprocal, and to apply to both Powers, while the
■'' *'li&i!6re " Avas to belong exclusively to Russia.    Further, the second Articles of the Treaties bind Russian
subjects not to land, wjthout permission, at United
States'and British establishments on the '' north-west
coast."
' 1 1
1 iH
I II
It w
1   il
if
The above construction of " north-west coast" is confirmed
by the use of the term" north-western.coast,"manifestly
to include the east coast of Behring Sea, in a form of
Patent prepared by the Russian Government, pursuant
to the Slave Trade Treaty of the 20th December, 1841;
and by the use of the term "north-west coast"
in Treaties of Commerce l)etween Great Britain aud
Russia, dated the llth January, 1843, and 12th
January, 1859.
"IP
r"'
With reference to the above-quoted assertions
that the terms % Great Ocean, commonly called
the Pacific Ocean or South Sea," and " the Ocean,
1 commonly called the Pacific Ocean," as used in the
'Treaties, are shown by a study of the contemporaneous Maps, Charts, and writings of navigators
not to have applied to or to have included Behring
Sea, the. following observations may be made.
!Bie Maps and Charts, of which a list is given in
-the Appendix to the United States'Case, are said to
jyrcrfe that—
Contention tlui t geographer^ exclude
Behring Sea from Pacific Ocean.. '
United States'
Case, p. 52.
i ■**- 43
United States'
Case, Appendix,
vol. i, p. 265.
Mr.   Blaine's    list   of   Maps   very
incomplete.
Appendix, vol.
pp. 86 et seq.
Size and position of names on Maps
to he considered.
vttowaw
mtM;-
...it. •■
Many authentic Maps give Behring
Sea no distinctiA-e name.
Ibid., vol. i, p. 94
United States'
Case, pp. 53, 35
"the best geographers, have at all times distinguished
that body of water from the ocean lying south of it by
conferring upon it some separate name. . . . ."
This list of Maps is the list inclosed by
Mr. Blaine to Sir Julian Pauncefote in his letter
of the 17th December, 1890, with a statement
that it represented—
" a large proportion of the most authentic maps published during ninety years prior to 1825 in Great Britain,
in the United States, the Netherlands^ France, Soain*
Germany, and Russia."
A criticism of this list of Maps will be found
in the Appendix to this Counter-Case. It is
sufficient here to point out that the list is very
incomplete, and that a great many Maps which
should undoubtedly have come to the notice of
the compiler are omitted therefrom, as in some
cases but a single Map is quoted from an Atlas
containing other Maps so marked as to tell
against the contention whicli it is endeavoured
to maintain.
Neither has any attention been paid by the
compiler of the list to the relative sizes of the
characters in which the names quoted by him
appear on the Maps cited, nor to the positions
which these names occupy. An examination of
these points, on such of the Maps included in
the. list as have been obtained in identical
editions, show, in fact,- that in a large, proportion
of instances the names Sea of Kamtchatka, &c,
mentioned in quoted Contentions, are so placed
as to refer merely to limited portions of the body
of water now known as Behring Sea.
A list of Maps contained in the Appendix to
this Counter-Case, in the compilation, of which
no special selection, has been made other than
that relating to their date of publication, appears
in fact to show. that, in more than half of the
authentic Maps relating to the period in question,
Behring, Sea appeared without any distinctive
name.
Though described by Mr. Blaine as showing
" the opinion of a large part of the civilized
world " during the ninety years prior to 1825, it
is therefore submitted that this description is
inaccurate.
It is in the Case of the United States further
affirmed that the term " North-eastern Sea," or
" Eastern Ocean," is an alternative name for the
body of water now generally known as Behring
tQl G 2
■ •44
I
Ante, p. 11.
United States'
Case, p. 28.
Sea.    It is necessary on the part of the United
States  to assume this  position,' because  of I the
mention made of the " North-eastern Ocean " and
| North-eastern Sea" in the first and third Charters
,'0f the :Eussian-American Company, in which these
- terms are employed in defining  the field of the
'> operations of that Company ; and the use of the
terms mentioned in these Charters is referred -to
in,the Case of the United States as supporting its
contention.    But on turning to the correct trans-
lation of the Charter of 1799, it will be found that
the Company is—•   •
llpS enjoy the profits of all industries and establishments now existing on the north-eastern coast* of
America, from the aforesaid 55° to Behring Strait, and
.beyond that strait, as Avell as on the Aleutian and Kurile
Islands, and the other islands situated in the North-Easier a
'Oceanf ®jff.
gjj In section-1. of the third Charter, the Eussian-
. American Company is referred to as being—
.-"established for trading on the  continent of Northwestern   America   and on the Aleutian and Kurile
.Islands, as in eA-ery part of the North-Eastern Sea," ivc.
The above quotations are destructive of the
conclusion endeavoured to be established. It is
evident from both passages that the term | North-
Eastern Ocean" or " North-Eastern Sea" Avas
'employed not as a special designation of Behring
Sea, but as a synonym of Pacific Ocean.l^The
Kurile Islands are in the Pacific Ocean, but
wholly outside Behring Sea.
With regard to the alternative term " Eastern
Ocean," tAvo authorities' are quoted in the Case
of the United Stales Avith the object of showing
that by this name Behring Sea was indicated, United States'
viz., " Coxe's Eussian Discoveries," and a globe _ e»p'
by D. Adams, London, dated 1797. For details p. 290. PPen **
respecting these, the Appendix to this Counter-
Case must be referred to. It may here be state],
however, that in Coxe's work, " Eastern Ocean " is
again found to be a synonym for the Pacific Ocean,
and that the names upon the globes published
by Adams do not appear to throw any light upon
the matter.
From the notes given   in the   Appendix, the Ibid., pp. 103,104.
meaning  of the  term " Eastern  Ocean" (which
thoagh comparatively seldom used, is to be found
on some Maps) is clearly shown to be synonymous
with the Pacific Ocean.    Attention is particularly
* See p. 11.
"North-Eastern Sea" Cor Ocean)
means Pacific Ocean, as is prayed
by inclusion of Kurile Islands
therein.
'Eastern    Ocean"   means    Pacific
Ocean.
i
Appendix, vol. i,
pp. 10?., 104, 45
British Case,
Appendix, vol. hi.
'• United States
No. 1 (1891)."
pp. 83, 8.\
Bays and gulfs are none the less part
of the main seafor having a specific
name, e.g., Bay of Biscay and Gulf
of Lvons.
Appendix,
vol. i, pp. 86 et
British Case,
Appendix, vcl.
Part III, p. 4.
Commander Islands are described in
the treaty of 1867, as in Pacific
Ocean.
drawn to the .'several Eussiau Maps there enumerate!® " m
" Any argument founded on the use of a particular name by'geographers may be conclusively
answered by the following quotation from Lord.
'Salisbury.;, despatch, daied the 21st. February,
1891:-
" But I am not prepared to admit the justice of Mr.
Blaine's contention that the words (Pacific Ocean.' did-
not include Behring Sea. I belieA'e that in common
parlance, then and now, Behring Sea was and is part of
the Pacific Ocean ; and that the latter Avords Avere used-
in order to give the fullest and Avidest scope possible to
the claim Avhich the. British negotiators Avere solemnly
recording of a right freely to navigate and fish in eA'ery
part of it, and throughout its entire extent. In proof
of the argument that the words ' Pacific Ocean' do not
include Behring Sea, Mr. Blaine adduces a long list of
Maps in Avhich a designation distinct from that of
' Pacific Ocean' is given to Behring Sea; either
' Behring Sea,' or ' Sea of Kamschatha,' or the ' Sea of
Anadir.' The argument will hardly have any force
unless it is applicable with equal truth to all the other
oceans of the Avorld. But no one will dispute that the-
Bay of Biscay forms part.of the Atlantic Ocean, or that
the Gulf of Lyons forms part of the Mediterranean Sea;
and yet in most Maps it Avill be found that to those
portions of the larger sea a separate designation has been
given. The question whether by the Avords ' Pacific
Ocean' the negotiators meant to include or exclude
Behring Sea depends upon Avhich locution was esteemed
to be the correct usage at the time. The date is not a
distant one, and there is no ground for suggesting- that
the usage has changed since the Anglo-Russia Treaty
of 1825 was signed. The determination of this point
Avillbe most satisfactorily ascertained by consulting the
ordinary books of reference. I append to this despatch
a list of some thirty works of this class, of various dates
from 1795 downwards, and printed in various countries,
Avhich combine to show that, in customary parlance, the
words ' Pacific Ocean' do include Behring Sea.'-'
The list referred to in the above quotation
has been greatly increased, and is printed in an.
Appendix to this Counter-Case. The special
attention of the Arbitrators is invited to the
language   of the   various   authors  cited, which
DO J
leaves no doubt whatever but that, at the date
of the Treaty, Behring Sea was, as it still is,
regarded by geographers as part of the Pacific
Ocean.
The language of the Treaty of Cession of
Eussia to the United States in the year 1867 is
entirely in accordance with the .contention of Her
Majesty's  Government;    for  in  that  document, i m
46
it will be found that the Commander Islands are,
properly described as being in the Pacific Ocean.
An attempt is apparently made in the case of
the United States to support the theory that.
Behring Sea is a body of water distinct in its
nature from the Pacific Ocean, by the terms, in
which the geographical sketch of this sea are set
out in the opening pages. The geographical
sketch there given, though brief, is, it is submitted, essentially misleading in its character.
On   p.   13   of   the   United  States'  Case,   the United States"
Peninsula of Alaska is described, apparently for       e> p'
the   single  purpose  of statin
are—
Geographical sketch of Behriiig $ea
'Inited States' Case,misleading.
m
g   that  in it there
O
" low-lying marshy gaps which form portages used by
the natives for carrying their boats across from the
Pacific Ocean to Bristol Bay."
As authority for this statement Eeclus'
"Geographie," vol. xv, p. 201, is cited; but, on
turning to this work, we find that the passage
thus paraphrased actually reads as follows :—
".... Les montagnes peninsulaires de l'Alaska
.... sont coupees de distance en distance par des
seuils ires bas, des portages—en Russe 'perenossi'—
que les bateliers pratiquent en effet pour le transport de
leurs barques cVun versant a l'autre versant."
Eeclus, in fact, makes no mention in this connection of the Pacific Ocean or of Bristol Bay;
nor does he convey the impression that Bristol
Bay is no part of that ocean.
Eespecting the connection of Behring Sea with Ibid., p. 14.
the main bod)r of the Pacific Ocean, it is further
stated   in   the   sketch,   with   reference   to   the
Aleutian Islands, that—
"the straits or passes separating the islands are of
various widths, those in the easterly half being generally
narrow and but few of them available for navigation.
The most important arc Unimak Pass, 11 miles Avide,
and Amukta or ' Seventv-two ' Pass, 42 miles Avide."
This again is misleading.
The largest of the Aleutian Islands are near
the coast of America. In proceeding Avestwards
they become smaller, and the openings between
them wider, until they end at Attu Island, 600
miles from the extremity of the Peninsula of
Kamtchatka, and 370 miles from- the nearest
part of that land. In the Fox Islands, forming
the  eastern  group  of the  Aleutians,  there  are ■
47
Of 1,060 miles between Western end
of Pox Islands and coast of Asia
■ (a#8 a*e sea.
Examm-ation of Treaties of 1824;
1825.
net
Treaty of 1824
ummarized.
British Case, p. 52.
The original text
is in Appendix,
vol. ii, Part III,
p. 12.
only a few straits, the most; important being
the Unimak, 11 miles wide; but Akutan and
Unalga Passes are also navigable. '^
The following is a list  of the  openings into
Behring Seaww:
Geographical
miles.,,,._
L   4%£if
•    l* m
3    ■
-Urasnak Pass ..
Akutan Pass   ..
Unalga'.Pass    .. ..
Umnak Pass   .. .. ..
Adugakh Island (western of Fox Island^) to
Kagamil Island     .,,.,       ..         ..         ,. 18
Kagamil  Islamd to  Chuginadak  Island (2
openings)     ..         ..         ..         ..         .. 4
Chnginadak Island to Yunaska Island        .. 15
Yuuaska    Island' to   Amukhta   Island   (2
openings)     ..         ..         ..         ..         .. 11
^roA Amukhta Pass..         ..         ...        ..         ,,. 35
Siguam Pass  . .•        ..         ..         ..         .. 12f
i Amlia Island t* Atka Island..         ..         .. If
Atka Isla-hM to IanagaIsland (9 openings).. 22
Ianaga Island to Illakh Island        ..         .. 14|
IHakh Iskend to Ugidakh Island     ..         .. 9
Amatignak Island to Amchitka Island   -   .. 50
Amchitka    Island    to    Kyska   Island    (3
openings)     ..         ..         ..         ..         .. 23£
Kyska Island to Bouldir Island       ..         .. 64
Bouldir Island to Semitchi Islands ..         .. 52
Semitchi Islands to Attn Island      ..         .. 15   ■
Attn Island to Copper Island          ..         .. 190
Copper Island to Behring Island     .. j       .. 26
Behring Island to Kamtchatka        ..         .. 95
Total          ..         ..         ..        .. 684
It is thus seen that, on the southerly limit of
Behring Sea, from the western end of the Fox
Islands to the coast of Asia, a distance of some
1,060 geographical miles, there are about 660
miles of sea, being nearly two-thirds of the entire
distance.
Having shown in the last Chapter that the whole
sea area comprised in the Ukase of 1821 was, from
first to last, without exception of Behring Sea, the
subject of the negotiations resulting in the Treaties
of 1824 and 1825 ; and having now shown that,
by the usage of geographers, the term " Pacific
Ocean " includes Behring Sea, it is of importance
to examine the Treaties themselves.
The first is that between the United States and
Eussia. By Article I, it is agreed that in any part
of the Pacific Ocean the citizens or subjects of the
two Powers are not to be disturbed in navigation or
fishing, or in resorting to the coasts, on unoccupied
mi]
pjk--:-1
[mm
'»;*■
II
i m
m mi
-III?
|: ' ■'A
ifRit 48
ill I
11 m
points,. for the purpose " of trading, ..with the
natives. By Article II,' United States' citizens are
not to resort to any "point where there is a Eussian
establishment, without permission; nor"are Etis*-
sian subjects to resort Avifchout permission to any.
establishment of the United States on the northwest coast. By. Article III, establishments are not
to be formed on the north-west coast of America,
. by United States' citizens to the north, or by Eussian subjects to the south, of latitude 54° 40', , By
Article IV, during a term of ten years, the ships of
both countries may reciprocally frequent the interior seas, gulfs, harbours, and creeks upon the
coast mentioned in the preceding Article, for fishing and trading with the natives. y&w
The effect of Article-IV, as far as United States'
citizens are concerned, is that thev may for- ten
years frequent the interior seas, &c, on that part
•of the north-west coast assigned to Bussia. The
liberty to do this assumes .that the outer seas,
which afford access' to the interior seas, are not
closed. If, then, the north-west coast includes the
coast of Behring Sea, neither that sea, as a whole,
nor a margin of 100 miles, was closed. The supposition that it was closed necessitates a restricted
interpretation of the term "north-Avest coast" : a
necessity to which the United States' Government and their advisers have shown themselves
fully alive.
It is proved in the . British Case, by numerous Bi
■extracts from the correspondence which preceded
the Treaties, that the words '; north-Avest coast"
were used, throughout the negotiations, to include
not less than the Avhole of the Xorth American
coast from Behring Strait to latitude 51° north.
On Avhat the definition of ;; north-west coast 1 in
Contention (1.) is founded, the United States' Case
does not explain. If the framers of the Treaty of
1824 had meant to limit this very general term to ,
the coast between Prince William Sound and the
Columbia Elver, an interpretation clause might
have been expected. Perhaps more need not be
said of this definition than that it is produced now,
after three other interpretations of' the term in
dispute had been put forward by the United States
in the correspondence preceding the Arbitration
Treaty, and answered by the British Government.
In a despatch to Sir J. Pauncefote, 'dated the
30th June, 1890, Mr. Blaine criticizes the Treaties
of 1824 and 1825, and says it is " plain " that they
If -'north-Avest coast" includes
Behring Sea coast, Behring Sea is
in Pacific Ocean.
Case, p. 60.
" Xorth-Avest coast" was used throughout preliminary negotiations to include coast from Behring Strait to
latitude 51° north.
§w
Definition
in  Contention (1.) pro
pounded after three  others had
been ansAvered in correspondence.
On the 30th June, 1890, Mr. Blaine
thought it "plain" that "northwest coast" Avas only from 50* to
60° north latitude. 49
British Case,
Appendix, vol. iii
" United States
No. 2 (1890),"
No. 497, p. 504.
But on the 17th December, 1890, he
included eight more degrees.
Ibid., " United
States No. 1,
(1891)," No. 87,
p. 38.
Contention (4) limits " north-Avest
coast" to the " lisiere " as defined
in Treaty of 1825.
But the r lisiere " is not mentioned in
Treaty of 1824 ; nor had its final
limits been proposed; and negotiations for Treaty of 1825 had
been suspended.
both limited the " north-west coast" to the coast
between" 50° and 60° north latitude. But in
another, dated the 17th December, 1890, where he
discusses the meaning of " Pacific Ocean" and
• north-west coast" at length, observing that the
dispute as to the former phrase " prominently involves " the meaning of the latter, he-contends that
-v north-west coast | means the coast from 42° to
60° north latitude. Neither contention has been
thought worthy of insertion in the United States'
Case.
The remaining interpretation has survived in the
form of Contention (4.). The coast-line therein
referred to is plainly the " lisiere■" defined in the
Treaty of 1825. This is the narrow strip of coast
from 56° north latitude to the point of intersection
of the 141st degree of west longitude. But that
the words " north-west coast," as used in the
Treaty of 1824, do not mean the "lisiere" so
defined, is evident from this one consideration;
that the limits of that " lisiere," finally adopted,
and embodied in the Treaty of 1825, had not even
been proposed when the Treaty of 1824 was
signed ; and all negotiations between great Great
Britain and Eussia had been suspended. This Treaty
bears date the 17th April, 1824, and naturally
contains no mention of any | lisiere." A " lisiere "
had been under discussion between the British and
Eussian Governments, of which the boundaries
were from time to time ATariously defined by §| projet" and " contre-projet"; but no one of these
definitions had taken the shape finally agreed on,
even as late as the 8th December, 1824, when Mr.
G. Canning wrote to Mr. S. Canning as follows :—
ii:tt
JWSi
Great Britain proposes to adopt
Article IV of American Treaty,
Avith its reciprocal liberty of access
to north-west coast.
British Case,
" We are content also to assign the period of ten
years for the reciprocal liberty of access and commerce
icith each other's territories, which stipulation may be best
stated  precisely in  the terms  of Article  IV  of  the
Appendix, vol. ii, American Convention."
Part I, p. 74.
But the " lisiere " was to belong to
Eussia.
Thi shows that Mr. Canning did not understand
the term " north-west coast " to be confined to the
" lisiere," the proposals relating to which had one
unvarying condition, namely, that it Avas to
belong to Eussia. Had the term been so con
fined, the careful provision of Article IV, that
" the ships of both Powers, or which belong to their
citizens or subjects respectively, may reciprocally
frequent, without any hindrance whatever, the
[249] H
•$ 50
interior seas," &c., becomes meaningless as far as
any advantage to Eussia is concerned, Further,
Article II concludes thus :—
*' Keciprocally, the subjects of Eussia shall not resort,
without permission, to any establishment of the United
States upon the north-ivest coast,"
Passing now to the Treaty of 1825, Mr, Blaine,
in the despatch of the 17th December, 1890, above
mentioned, says j—
NI quote the first Artioles of each Treaty, for, to all
intents and purposes, they are identioal in meaning,
though differing somewhat in phrase."
If, then, the considerations set forth above have
any weight as showing that, in the first Treaty,
" Pacific Ocean " includes Behring Sea, they have
the same weight as showing that, in the second
Treaty, " Pacific Ocean " includes Behring Sea.
Article II, likewise, is in substantially the same
form in each Treaty, that of 1825 concluding
thus:—
" Russian subjects shall not land without permission
at any British establishment on the north-Avest coast."'
Therefore, " north-west coast" here, too, cannot
mean the | lisiere."
,  Article III, in the original French, begins I—
" La ligne de demarcation entre les possessions des
Hautes Parties Contractantes sur la cote du continent
et les iles de l'Amerique nord-ouest, sera tracee ainsi
qu'il suit: |
The line is then defined. It runs from an initial
point, described as being situated in 54° 40' north
latitude, to the Arctic Ocean.
Article IV defines the boundary between the
narrow strip of coast already referred to as allotted
to Eussia and the British possessions. The strip
is described as—
I la lisiere de cote mentionnee ci-dessus comme doArant
appartenir a la Russie."
Articles V and VI both distinguish between
" c6te " and " lisiere."
Further, Article II ot American
Treaty gives Russian subjects
access to United States establishments on north-west coast.
Mr. Blaine says first Articles of each
Treaty are identical,
British Case, p. 53,
For the original
text, see Appendix,
vol. ii, Part III,
p,2,
British Case,
Appendix, vol. iii,
" United ofettes
No, I (1891),"
p. 38.
Therefore, if one includes Behring
Sea. the other does.
Article II of 1825 Treaty speaks of
British establishments on " north-
Avest coast,'"provingj^iat that coast
was not confined to the "lisiere."
Article VII closely corresponds Avith Article IV
of the first Treaty, being, as Mr. Blaine says (here
agreeing with Mr. Canning), " practically a repeti-
tion" of it.    According  to  Contention   (4.)/ the |gSS^®
right given by both Articles to frequent harbours " United States
1 a *   *t       i   i •       i • .       No. 2 (1890),"
refers, not to the whole coast mentioned in Article
Mr. Blaine agrees with Mr. Canning
that Article VII of British Treaty
is  "practically  a repetition"  of
Article IV of American Treaty.
British Case,
P. 504. 1
III, but to fthe U lisiere."    But the word used in
f u
Article VII is '• cote," not "lisiere"; and the
effect of Contention (4.) is to destroy the reciprocal
character of that Article.
Meaning of " north-west coast"
et seq.
Greenhow's definite
>n  ae'reus a
•ith
British constructioi
Slave Trade Treaty of 1841.
Recurring to the expression " north- west coast'
or " north-west coast of- America," it is rarely
that the expression in either form is found as a
geographical term, or that its precise signification
British Case, p. 66 is specially defined in words. One instance is
the definition given by Greenhow, and quoted
at p. 66 of the British Case, which . correspond®
precisely with the position maintained by Great
Britain. The term is not often found on Maps,
but a soaasssrha-t extended examination of these
has resulted iu the discovery of a few instances
of its use, at dates both before and after that
of the Treaty of 1825. From an inspection of
these-Maps, it is quite apparent that the expression
was employed in a very lax and general sense, and
Appendix, vol. i, without precision of meaning in respect to lines of
latitude and longitude.
Moreover, the words " rlorth-west coast el
America " will be found in the following instances
to have been used by Russia and the United States
for the purpose of defining international relations
under circumstances which make it evident that
they were understood by the Contracting Parties
as including the eastern coasts of Behring Sea.
For instance, by Treaty of the 20th December,
1841, between Great Britain, Austria, France,
Prussia, and Russia, for the suppression of the
Slave Trade, it is provided (Article IV) that—
pp. 105-109.
Her islet's
Commercial
Treaties, vol. vi,
p. 5.
Ibid., p. 19.
SI
1 in no case shall the mutual right of search be exercised
upon the ships of Avar of the High Contracting Parties."
l
1
By  section  8  of Annex  (B)  to  that  Treaty,
H Instructions to Cruizers," this exemption is extended to vessels of the Russian-American Com-
Ibid., p. 956. pany,  and  such Aressels  are  to have  a  Russian
Patent,   :(which   shall   prove   their  origin   and
destination."    The form of Patent, which  is  set
out in Herts-let's Commercial Treaties,- recites this
. section, and proceeds :—
" Upon this grnund the Administration of the Russian-
American Company, being about to dispatch their ship
named , built in the year ,
of- tonnage, and commanded by
to the North- Western coast of America to the colonics
[249]
H
.- fti
52
v.*.%
!*i IF
I'll  >i|;
settled there, with the right to enter all ports and
harbours, Avhiclr necessity may require, considers it conformable to the abov;e cited Article of the Instruction?
that besides the patent authorizing the hoisting of the
Russian flag by merchant-ships in general, the said vessel of the Company should be provided Avith this special
patent to secure her .against the visit of the cruizers of
the Contracting Powers."
This is a document prepared by the Russian
Government which, under the term "Northwestern coast," plainly includes the eastern coast
of Behring Sea; for if not it must have been
intended that a vessel bound for the eastern
coast of that sea was not to have a Patent, and
was to be exposed by its Government to the
risk of search, though the Treaty authorized its
exemption.
The Treaty of the llth January, 1843, between
Great Britain and Russia (Article XII) says— Commercial
. . i  Treaties, vol. vi
" It is understood that, in regard to commerce and p< j^
navigation in the Russian possessions on the north-west
coast of America, the Convention concluded at St. Peters-
burgh, on the 16th (28th) February, 1825, continues in
force."
The presumption is strong that " North-west
Coast" in 184.3 meant exactly what "Northwestern coast" meant when used by Russia in
1841.
The Treaty of the 12th January, 1859, between
Great Britain and Russia (Article XIX) says)—
" In regard to commerce and navigation in the Russian possessions on the North- West Coast of America,
the Convention concluded at St. Petersburgh on the
16th (28th) February, 1825, shall continue in force."
In this Treaty, "North-westernCoast"
includes coast of Behring Sea.
Treaty of 1843.
Ibid., vol. x,
p. 1063.
Treaty of 1859.
By Article XXII this Treaty lasts for ten years
(therefore till after 1867).
It cannot be denied that subsequently to this
Treaty (as well as before), and down to the year
1867 (the date of the cession of Alaska to the
United States), vessels carrying the British flag
were, without let or hindrance from Russia,
navigating, fishing, and trading in the waters of
Behring Sea.
Further evidence that no distinction was drawn .
by the  United  States' Government between the
coasts of Behring Sea and those of the rest of
the Pacific is  afforded by the Notice which is
referred to at p. 59 of the United States' Case,
and is printed in full in United States' Appendix, Unitsd States'
i   ■ oi       mi     at    • • Case, p. 59.
vol. i, p. 91.    llie JNotice which was published on Appendix, vol. |
p. 91.
British vesselsnavigatedBehringSea
without hindrance throughout the
Russian domination in Alaska. 53
A Notice by the United States in
1845 assumes that the Treaty of
1824 includes the whole Russian-
American coast north of latitude 54° 40'.
Documents cited to show Russian
assertions of control over Behring
Sea,prove none, interpolations expunged.
the 26th September, 1845, at the request of
Eussia by the United States' Government, is as
follows:—
" The Russian Minister at Washington has informed
the Secretary of State that the Imperial Government,
desirous of affording official protection to the Russian
territories in North America against the infractions of
foreign vessels, has authorized cruizers to be established
for this purpose along the coast by the Russian-American
Company.
" It is, therefore, recommended to American vessels to
be careful not to violate the existing Treaty between
the two countries, by resorting to any point upon the
Russian-American coast Avhere there is a Russian establishment, without the permission of the Governor or
Commander, nor to frequent the interior seas, gulfs,
harbours, and creeks upon that coast at any point north
of the latitude of 54° 40'."
It is clear that this Notice was not intended to
apply only to so much of the Russian-American
coast as lies between latitude 60° or latitude
59° 30', or any other particular point, and latitude
54° 40'.
Its real object was to remind the subjects of
the United States of the provisions of the Treaty
of 1824 which restrained their right to visit places
on the R/ussian-American coast where there were
Russian establishments, without the permission of
the Governor.
The Case of the United States further invites
attention upon this point to—
| the express declarations of the Russian Government on
the subject during the negotiations, and after the Treaties
had been celebrated.''
Two  quotations  are given in this connection
from the correspondence of the Russian-American
Company.
United States' ^ne sense of the first quotation from a letter
Case pp. 53, 54.       from   faQ   Russian Minister  of  Finance to the
(For revised trans-
lation,seeAppendix, Board of the Russian-American Company of the
vol. i, p. 26.) 18tll july; 1822} is seriously altered by an inter
polation : —
" The Rules to be proposed will probably imply that
it is no longer necessary to prohibit the navigation of
foreign vessels for the distance mentioned in the Edict
of 4th September, 1821, and that we will not claim
jurisdiction over coastwise waters beyond the limits
accepted by any other Maritime Power [for the whole
OF OUR   COAST   FACING   THE   OPEN   OCEAN.      OVER   ALL
. INTERIOR   WATERS,   HOWEVER,   AND   OVER   ALL   WATERS
INCLOSED BY RUSSIAN TERRITORY SUOH AS THE SEA OF
United States'
Case, p. 53.
ii   ■-
r»
If 81 54
M'
ft; i II
!i'
Okhotsk, Bering Sea, or the Sea of Kamchatka,
as avell as in all gulfs, bays, and estuaries within
our possessions, the right to the strictest control
will always be maintained]."
By the introduction of the words "facing the
open ocean," and the addition of the concluding
sentence, a passage' which completely supports-
the view of Her Britannic Majesty's Government,
has become the foundation-stone upon which the
contrary argument of the United States is' based.
The second quotation in support of the United United States'
%     ■'W&e $fe                   i        f          i      t-i                c   -i Case, pp. 54,55.
States contention is taken from the Report of the (For revised trans-
Committee  which   considered  the   effect  of   the latl0"> see Ap.
ST^.-wow*   _    , pencils, vol. l,
Treaty between Russia and   the   United  States, p. 34.)
This has been already dealt with at pp. 83-35;
and it is only necessary here to repeat the opening
sentence of the quotation with its interpolations:—■
| Since the sovereignty of Russia over the shores of
Siberia |and - America], as well as OA-er the Aleutian
Islands [and the intervening seas], has long since been
acknowledged by all Powers."
The passage read without the interpolations
materially helps the British contpntion.
m
From the facts and argument advanced in this
chapter, it is submitted that it is established—■
(a.) 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 oT the non-territorial waters
over which the Ukase purported to extend.
(b.) That the body of water now known as the
Behring Sea was .included in the phrase " Pacific
Ocgan," as used in the Treaty of 1825 between
Great Britain and Eussia; and
{<:) That the constructions placed on the term
" North-west coast" or " North-west coast of
America" in the Case of. the United States are
unsound.
Conclusions.
m'
m 'A CHAPTER IV.
Head (D).—The met of the Wdten in question
from 1821 to 1867.
The United States' Contentions.
(1.) United States' Case, p. 40—
"The Prihfloff Islands, thfe home of the Alaskan seal
herd-, are situated less than '200 Italian miles from the
Aleutian Chain on the south, and thus a sufficient
portion of the eastern half of Bering Sea was covered
by the Ukase to enable Russia to protect the herd
while there."
(2.) United States' Case, p. 57—
" The burden is thus placed upon Great Britain to show
that this jurisdiction, recognized in the year 1825 to
exist, has been lost. It is not claimed that it Avas
exercised f