FOR THE PEOPLE FOR EDVCATION FOR SCIENCE LIBRARY OF THE AMERICAN MUSEUM OF NATURAL HISTORY KUR SEAL ARBITRATION. PROCEEDINGS OF THE Tribunal of Arbitration, CONVENED AT PARIS UNDER THE TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 29, 1892, 5"^.?, 7^ DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV- ERNMENTS CONCERNING THE JURISDICTIONAL RIGHTS OF THE UNITED STATES WATERS OF BERING SEA, VOLUN/IE IV. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1895. / 9 ^^i~U~ lu^j^ CASE PRESENTED ON THE PART OF THE GOVERNMENT OF HER BRITANNIC MAJESTY TO THE CONSTITUTED UNDER ARTICLE I OF THE TREATY CONCLUDED AT WASHINGTON OX THE 29TH FEBRUARY, 1892, BETWEEN HER BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1895. GENERAL CONTENTS. The case now submitted to the Arbitrators ou the part of the Gov- enimeut of Her Britannic Majesty contains a statement of the facts which that Government considers to be material to enable the Arbi- trators to arrive at a just conclusion upon the i^oints vsubmitted to them by the Treaty of Arbitration. It contains also some general propositions which that Government believes to be in accordance with the established principles of Inter- national Law, and upon which it intends to rely. The case is arranged as follows: Pages. lutroductory Statement and Outline of Argument 1-9 Arrangement of Case and Heads of Argument 9-12 Chapter I, Head A : The User, np to the year 1821, of the Waters of Behr- ing Sea and other Waters of the North Pacific 13-36 Chapter II, HeadB: The Ukase of 1821, and the circumstances connected therewith h-ading np to the Treaties of 1821 and 1825 37-58 Chapter III, Head C : The question whether the body of Water now known as Behring Sea is included in the phrase ''I'acilic Ocean," as used in the Treaty of 1825 between (ireat Britain and Russia 59-76 Chapter IV, Head D : The User of the Waters in question from 1821 to 1867. 77-90 Chapter V, Head E : What rights passed to tiio United States under the Treaty of 30th March, 1867 91-102 Chapter VI, Head F : The action of the United States and Russia from 1867 to 1886 103-120 Chapter VII, Head G: Various contentions of the United States since the year 1886 121-134 Chapter VIII. Has the United States any riglit. and, if so, what right, of protection or property in the fur seals frequenting the Islands of the United States in Behring Sea when such seals are found outside the ordi- nary 3-mile limit ? •. 135-140 Chapter IX. General Conclusions upon the w hole Case 141-157 Chapter X. Recapitulation of Argument 158-160 Conclusion 161 Schedule of Claims: Statement of claims for compensation from the United States' Government on account of the seizures of British Canadian Sealers in the Behring Sea during the years 1886, 1887, 1889, and 1890. The appendix to the case consists of four volumes, the contents of which are as follows : Vol. I. Miscellaneous documeuts (juoted iu the case. Vol. II, Part 1. Selections from correspondence between Great Britain and Russia, 1821-1825. Part 2. Selections from correspondence between the United States and Rus- sia, 1822-1887. Part 3. Treaties: Russia and United States, 1824; Great Britain and Russia, 1825; Russia and United States, 1867. Vol. III. Correspondence respecting the Behring Sea seal fisheries. Papers presented to the British Parliament. Treaty and convention between Great Britain and the United States of February 29 and April 18, 1892. Vol. IV, Part 1. Map of the northwest coasts of America and the Aleutian and Kurile islands, published in the quarterraaster-generars department, St. Peters- burg, 1802. Part 2. Map of the northern portion of the North Pacific Ocean. 3 CASE PRESENTED ON BEHALF OF THE GOV- ERNMENT OF HER BRITANNIC MAJESTY TO THE TRIBUNAL OF ARBITRATION. INTRODUCTORY STATEMENT. The differeuces between Great Britain and the United States of America, tbe subject of this Arbitration, arise out of claims by the United States of America to prevent and interfeie with British vessels fishing- in the waters of Behring Sea other than the territorial waters thereof. Prior to the year 188<) British vessels had, in common with the vessels of the United States and those of other nations, navigated and fished in the non-territorial waters of Behring Sea without interference, SEIZURES OF BRITISH SHIPS. In 1886 the British schooner '' Thornton " was arrested when fishing 70 miles south-east of St. George Island, the nearest land. The vessel was libelled in the United States District Court of Alaska by the District Attorney, the charge formu- lated being that the vessel was "found engaged in killing- fur seals within the limits of Alaska Territory and in the waters thereof, in violation of Section 1950 of the Revised Statutes of the United States." The vessel was condemned, and the master and mate were imprisoned and fined. The British schooners " Caroleua" and " Onward" were seized about the same time when fishing under similar cir- cumstances, and were subsequently condemned by the District Court, 2 The Judge (in summing ni) the case of the " Thorn- . 50th cong.,2nd ton") ruled that the law above mentioned applied to Wno. loe.pp! all the waters of Behring Sea east of 193° of west longi- ^fo^-^i^o^^^^i^e tude. State'8.No.2,1890, Certain other vessels were all also subsequently seized in '^Ppp^^nj^x^^'v^i® non-territorial waters, and the fishing of British vessels ni. was interfered with under the circumstances hereinafter stated. Great Britain protested against this action on the i)art of the United States, and negotiations took place, which eventually resulted in the Treaty and Convention entered into at VVashington on the 29th Februarv and the 18th April, 1892, The Treaty is as follows: CASE OF GREAT BRITAIN. TREATY OF 1892. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the United States of America, being desirous to provide for an amicable settlement of the questions which have arisen between their respective Governments concerning the jurisdictional rights of the United States in the waters of Behring Sea, anil concerning also the preservation of the-fur-seal in or habitually resorting tc the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur-seal in or habitually resorting to the said waters, have resolved to submit to arbitration the questions involved, and to the end of concluding a Convention for that jiurpose have appointed as their respective Plenipotentiaries : Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Sir Julian Pauncefote, G. C. M. G., K. C. B., Her Majesty's Envoy Extraordinary and Minister Plenipotentiary to the United States; and the President of the United States of America, James G. Blaine, Secretary of State of the United States; Who, after having communicated to each other their respective Full Powers, which were found to be in due and proper form, liavo agreed to and concluded the following Articles: AUTICLK I. The questions which have arisen between the Government of Her Britannic Majesty and the Government of the United States concern- ing the jurisdictional rights of the United States in the waters of Behring Sea, and concerning also the preservation of the fur seal in or habitually resorting to the said sea, and the rights of the citizens and subjects of either country as regards the taking of fur seal in or habitually resorting to the said waters, shall be submitted to a Tribu- nal of Arbitration, to be composed of seven Arbitrators, who shall be appointed in the following manner, that is to say : two shall be named by Her Britannic Majesty; two shall be named by the 3 President of the United States; his Excellency the President of the French Republic shall be jointly re(]uested by the High Contracting Parties to name one; His Majesty the King of Italy shall be so requested to name one; and His Majesty the King of Sweden and Norway shall be so reciuested to name one. The seven Arbi- trators to be so named shall be jurists of distinguished reputation in their respective countries ; and the selecting Powers shall be requested to choose, if possible, jurists who are acquainted with the English language. In case of the death, absence, or incapacity to serve of any or either of the said Arbitrators, or in the event of any or either of the said Arbitrators omitting or declining or ceasing to act as such, Her Britannic Majesty, or the President of the United States, or his Excellency the President of the French Republic, or His Majesty the King of Italy, or His Majesty the King of Sweden and Norway, as the case may be, shall name, or shall be requested to name forthwith, another person to act as Arbitrator in the place and stead of the Arbi- trator originally named by such head of a State. And in the event of the refusal or omission for two months after receipt of the joint request from the High Contracting Parties of his Excellency the President of the French Republic, or His Majesty the King of Italy, or His M;ijesty the King of Sweden Jind Nor\v;iy, to name an Arbitrator, either to till the original appdintment or to till a vacancy as above provided, then in such case the ai)pointment siiall be made or the vacancy shall be filled in such manner as the High Contracting Parties shall agree. Article II. The Arbitrators sliall meet at Paris within twenty days after the delivery of the counter cases mentioned in Article IV, and shall pro- ceed impaTtially and carefully to examine and decide the questions that have been or shall be laid before them as herein i)rovided on the part of the Governnuints of Her Britannic Majesty and the United States respectively. All (juestions considered by the Tribunal, includ- ing the linal decision, shall be determined by a majority of all the Arbitrators. CASE OF GREAT BRITAIN. Each of the High Contracting Parties shall also name one person to attend the Tribunal as its Agent to represent it generally in all matters connected with the arbitration. Article III. The printed Case of each of the two parties, accompanied by the documents, the official correspondence, and other evidence on which each relies, shall be delivered in dujjlicate to each of the Arbitrators and to the Agent of the other party as soon as may be after the appointment of the members of the Tribunal, but within a period not exceeding four months from the date of the exchange of the ratifica- tions of this Treaty. 4 Article IV. Within three months after the delivery on both sides of the printed. Case, either party may, in like manner, deliver in duplicate to each of the said Arbitrators, and to the Agent of the other party, a counter case, and additional documents, correspondence, and evi- dence, in reply to the case, documents, correspondence, and evidence so presented by the other party. If, however, in consequence of the distance of the place from which the evidence to be presented is to be procured, either party shall, within thirty days after the receipt by its Agent of the case of the other party, give notice to the otiior party that it requires additional time for the delivery of such counter case, documents, correspond- ence, and evidence, such additional time .so indicated, but not exceeding sixty days beyond the three months in this Article, pro- vided, shall bo allowed. If in the case submitted to the Arbitrators either party shall have s]iecified or alluded to any Report or document in its own exclusive possession, without annexing a copy, such party shall be bound, if the other party thinks proper to apply for it, to furnish that party with a copy thereof; and either party may call upon the other, through the Arbitrators, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance notice thereof within thirty days after delivery of the Case; and the orig- inal or copy so requested shall be delivered as soon as may be, and within a period not exceeding forty days after receipt of notice. Article V. It shall be the duty of the Agent of each party, within one month alter the expiration of the time limited for the delivery of the counter case on both sules, to deliver in duplicate to each of the said Arbitra- tors and to the Agent of the otiier ])arty a printed argument showing the ])oint8 and i-eferring to the evidence upon which his Government relies, and either party may also supi)ort the same before the Arbi- trators by oral argument of counsel ; and the arbitrators maj^ if they desire further elucidation with regard to any point, require a written or printed statement or argument, or oral argument by counsel, upon it; but in such case the other party shall be entitled to rei)ly either orally or in writing, as the case may be. Article VI. QUESTIONS FOR THE OECISIOX OK THE TRIBUNAL. In deciding the matters submitted to the Arbitrators, it is agreed that the following five points shall be submitted to them, in order that their award shall embrace a disthicl decision upon each of said five points, to wit : 1. What exclusive jurisdiction in the sea now known as the Behring Sea, and what exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and up to the time of the cession of Alaska- to the United States'? 5 2. How far were these claims of jurisdiction as to the .seal fisheries recognized and conceded by Great Britain? 3. Was the body of water now known as the Behring Sea included in the idirase " Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia; and what rights, if any, in the Behring Sea, were held and exclusively exerci.sed by Russia after said Treaty? CASE OF GREAT BRITAIN. 4. Did not all the rights of Russia as to jurisdiction, and as to the seal fisheries in Kehring Sea east of the water boundary, in the Treaty between the Tuited States and Russia of the 30th March, 1867, pass unimpaired to the United States under that Treaty? 5. Has the United States any right, and, if so, what right, of pro- tection or property in the fur-seals frequenting the islands of the United States in Behriug Sea when such seals are found outside the ordinary 3-mile limit? Article VII. If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such posi- tion that the concurrence of Great Britain is necessary to the estab- lishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination, the Report of a Joint Commission, to be appointed by the respective Governments, shall be laid before them, with such other evidence as either Government may submit. The High Contracting Parties furthermore agree to co-operate in securing the adhesion of other Powers to such Regulations. Article VIII. The High Contracting Parties having found themselves unable to agree upon a reference which shall include the question of the liabil- ity of each for the injuries alleged to have been sustained by the other, or by its citizens, in connection with the claims presented and urged by it; and, Ijeing solicitous that this subordinate question should not interrupt or longer delay the submission and determina- tion of the main questions, do agree that either may submit to the Arbitrators any question of fact involved in said claims, and ask for a finding thereon, the question of the liability of either Government upon the facts found to be the subject of further negotiation. Article IX. The High Contracting Parties having agreed to appoint two Com- missioners on the part of each Government to make the joint investi- gation and Report contemplated in the preceding Article VII, 6 and to include the terms of the said Agreement in the present Convention, to the end that the joint and several Reports and recommendations of said Commissioners may he in due form sxbmitfed to the Arbitrators, should the contingency therefor arise, the said Agree- ment is accordingly herein included as follows: Each Government shall appoint two Commissioners to investigate, conjointly with the Commissioners of the other Government, all the facts having relation to seal life in Behring Sea, and the measures necessary lor its jiropcr protection and i)reservation. The four Comniissioiiers shall, so far as they may be able to agiee, make a joint Report to each of the two Governments, and they shall also report, either jointly or severally, to each Government on any points upon which they may be unable to agree. Tiiese Reports shall not be made public until they shall be sub- mitted to the Arbitrators, or it shall appear that the contingency of the':/ being used by the Arbitrators can not arise. Arti(;lk X. Each Government shall pay the expenses of its members of the Joint Commission in the investigation referred to in the preceding article. Aktule XI. The decision of the Tribunal shall, if possible, be made within three months from the close of tlie argument ou both sides. It shall be made in writing and dated, and shall be signed by the Arbitrators who may assent to it. CASE OF GREAT BRITAIN. The decision shall be in duplicate, one copy whereof shall be delivered to the Agent of Great Britain for his Government, and* the other copy shall be delivered to the Agent of the United States for his Government. Article XII. Each Government shall pay its own Agent, and provide for the proper remuneration of the counsel employed by it and of the Arbi- trators appointed by it, and for the expense of preparing and sub- mitting its case to the Tribunal. All other expenses connected with the Arbitration shall be defrayed by the two Governments in equal moieties. AUTICLE XIII. The Arbitrators shall keep an accurate record of their ])roceedings, and may appoint and employ the necessary officers to assist them. Article XIV. The High Contracting Parties engage to consider the result of 7 the proceedings of the Tribunal of Arbitration as a full, perfect, and final settlement of all the questions referred to the Arbi- trators. Article XV. The piesent Treaty shall be duly ratified by Her Britannic Majesty and by the President of the United States of America, by and with Ihe advice and cousent of the Senate thereof; and the ratifications shall be exchanged either at Washington or at London Avithin six months from the date hereof, or earlier if possible. In faith whereof, we, the respective Plenipotentiaries, have signed this Treaty, and have hereunto affixed our seals. Done in duplicate, at Washington, the 29th day of February, 1892. [L. S.] .JILIAN PAlNCEroTE. [l. S.J Jamks G. Blaine. OUTLINE OF ARGUMENT. The general outline of the argument submitted to the Tribunal of Arbitration on behalf of Great Britain will be as tbllows : That Behring Sea, as to which the question arises, is an ojx n sea in which all nations of the world have the right to navigate and fish, and that the rights of navigation and fi.shing cannot be taken away or restricted by the mere declaration or claim of any one or more nations; they are natural rights, and exist to their full extent unless specif- ically modified, controlled, or limited by Treaty. That no mere non user or absence of exercise has any effect upon, nor can it in any way impair or limit such rights of nations in the open seas. They are common rights of all mankind.. In support of these principles, which are clearly estab- lished, and have never been seriously disputed by jurists, authorities will be cited. That in accordance with these principles, and in the exercise of these rights, the subjects and vessels of various nations did from the earliest times visit, explore, navigate, and trade in the sea in <|uestion, and that the exercise of these natural rights continued without any attempted interference or control by Jlussia down to the year 1821. 10 CASE OF GREAT BRITAIN. 8 That ill 1821 wlicii Russia did atteiiiiit by Ukase, L e., by formal declaration, to close to other nations, the waters of a great part of the Pacitic Ocean (includiug Behring Sea) Great Britain and the United States immedi- ately protested against any sucli attempted interference, maintaining the absolute right of nations to navigate and fish in the non-territorial waters of Behring Sea and other non-territorial waters of the Pacitic Ocean. Both countries asserted that these rights were common national rights, and could not be taken away, or limited by Ukase, Procla- mation, or Declaration, or otherwise than by Treaty. That in the years 1824 and 1825, in consequence of these protests, Russia unconditionally withdrew her pretensions, and concluded Treaties with the United States and with Great Britain which recognized the rights common to the subjects of those countries to navigate and flsli in the non- territorial waters of the seas over Avhich Russia had attempted to assert such pretensions. That from the date of such Treaties down to the year 1867, (in which year a portion of the territories which had been referred to in and affected by the Ukase of Russia in the year 1821, was purchased by and ceded to the United States), the vessels of several nations continued, year by year, in largely increasing numbers, to navigate, trade, and fish in the waters of Behring Sea, and that during the whole of that period of nearly fifty years there is no trace of any attempt on the part of Russia to reassert or claim any dominion or jurisdiction over the non-territorial waters of that sea, but, on the contrary, the title of all nafions to navigate, fish, and exercise all common rights therein was fully recognized. That on the purchase and acquisition of Alaska by the United States in the year 1867, the United States were fully aware and recognized that the riglits of other nations to navigate and fish in the non-territorial waters adjacent to their newly acelagic seal- ing in non-territorial waters, the United States reverted, in the first instance, to certain claims based upon those of the Russian Ukase of 1821, which the United States, together with Great Britain, had successfully contested at the time of their promulgation; but in the course of the discussions which have arisen, these exceptional claims to the control of in )n -territorial waters were dropjied, and in CASE OF GREAT BRITAIN. 11 their place various unprecedented and indefinite claims put forward, which appear to be based upon an alleged ])ro])erty in fur seals as such. Finally, that while Great Britain has from the first stren- uously and consistently opposed all the foregoinji- excei>- tional pretensions and claims, she has throughout been favourably disposed to the adoption of general measures of control of the fur seal fishery, should these be found to be necessary or desirable with a view to the protec^tion of the fur seals, provided that such measures be ecpiitable and framed on just grounds of common interest, and that the adhesion of other Powers be secured, as a guarantee of their continued and impartial execution. ARRANGEMENT OF CASE. It will be convenient to state the arrangement ami order of the Case here presented on behalf of Great Britain. Article YI. The first three points of iVrticle VI are as follows: 1. Whatexchisive jurisdiction in the se.a now known us the Behring Sea, and what exclusive riglits in the seal fisheries therein, did Russia assert and excercise jirior and up to the time of the cession of Alaska to the United States f 2. Mow far were these claims of Jurisdiction as to the seal lishcries recognized and conceded by Great Britain ? 10 3. Was the body of water now known as the Behring Sea in- cluded in the phrase "Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia: and what rights, if atiy, in the Behring Sea, were held and exclusively exercised by Russia after said Treat.v ? It is proposed in the first instance to deal with these points, which relate to the original claims by Russia to cer- tain rights in Behring !Sea, and the action of Great Britain respecting these claims. Head C. HEADS OF ARGUMENT. The questions therein raised will be considered under the following heads: (A.) The user up to the vear ISi'l of Behring Sea and Chapter i. other waters of the North Pacific. ^^^^ ^' (B.) The Ukase of 1821 and the circumstances connected chapter ii. therewith leading up to the Treaties of 1824 and 1825. ^^^'"^ "■ (C.) The question whether the body of water now known chapter m as Behring Sea is included in the plirase ^' Pacific Ocean," as used in the Treaty of 18'_'5 between Great Britain and Russia. (D.) The user of the waters in question from 1821 to 18(17. It is then proi)osed to consider point 4 of Article VI, which is as follows: 4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States nuder that Treaty? Chapter IV. Head D. 12 CASE OF GREAT BRITAIN. This point will be considered under the following heads: Chapter V. (E.) What rights passed to the United States under the Treaty of Cession of March 30, 1867. Chapter VI. (F.) The action of tlie United States and Russia from Head F. j^gg^ ^^ ^^gg^ ^HeaTo^^^' (^•) "^^^ various contentions advanced by the United States since the year 1886. Point 5 of Article YI is as follows: Chapter VIII 5. Has the Uuited States auy right, and, if so, what right, of pro- Article VI, Point tection or property in the fnr seals frequenting the islands of ^' 11 the United States in Behring Sea when such seals are found outside the ordinary 3-niile limit? This will be briefly considered, but the proposition which appears to be embodied in this question is of a character so unprecedented that, in view of the absence of any pre- cise definition, it is impossible to discuss it at length at the present time. It will, however, be treated in the light of such official statements as have heretofore been made on the part of the United States, its discussion in detail being necessarily reserved till such time as the United States may i:>roduce the evidence or allegations upon which it relies in advancing such a claim. Article ^ II is as follows: — AUTICLK VII. If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such posi- tion that the concurrence of Great Britain is necessary to the estab- lishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Arbi- trators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination, the Report of a .Joint Commission, to be appointc d by the respective Governments, shall be laid before them, with such other evidence as either Government may submit. The High Contracting Parties furthermore agree to co-operate in securing the adhesion of other Powers to such Regulations. The terms of this Article make it necessary that the con- sideration of any proposed Regulations should be i»ost- poned until the decision of the Tribunal has been given on the previous questions. ' Beyond, therefore, demonstrating that the concurrence of Great Britain is necessary to the establishment of any Regulations which have for their object the limitation or control of the rights of British subjects in regard to seal fishing in non-territorial waters, it is not proposed to dis- cuss the (luestion of the proposed Regulations, or the nature of the evidence which will be submitted to the Tribunal. Article VIII. With regard to the points raised under Article VIII lli (which refer to questions arising out of claims for s," uiuler Martinez and Haro, set out. It CASE OF GREAT BRITAIN. 17 visited Prince William Sound, but fouud no liussians. Haro, however, found a Russian colony at Three Saints, on Kadiak Island. This was the easternmost place which had at this time a permanent Russian settlement. The voyagers took possession of I'nalaska for Sjjain, but after- wards found Russian traders on the island. In the same year, a Russian vessel explored Prince Wil- .,-J'"'^' pp- 267- linm Sound, Yakutat, and Lituya P>ays, allot which had"' previously been examined by English or French voyagers. In 1788, vessels from the United States tirst traded on Xoriiiwost the north-west coast. '^^'' '""'• '• ^■ Upon the conflict of interests at this time along this part of the American coast, and the rival claims to territory there, Bancroft makes the following remarks: The events of 1787-'S8 nm.st have been jmzzliri.u- to the natives of Alaska, p. 267. Prhice William Soiiiul. Eiijilishineu under the Enij^lish flag, English- men nuderllii' I'ortngnesc flag, Spaniards and Russians, were cruiz- ing about, often Avithin a iVw miles of each other, taking possession, for one nation or the other of all the land iu sight. Referring to Billing's Russian scientilic exploring expe- dition, by which several voyages were made from 1787 to to 17111 in the Behring Sea region, Bancroft says: The geographical results may be set down at next to nothing, Avith "'kI , i-- -96. the exception of the thorough surveys of Captain Bay iu Illiuliuk Harbour on ITnalaska Islau(l. Every other ])art of the work had already been done by Cook. The complaints of natives, against the practices of inde- pendent traders and adventurers, brought back by this expedition, had much to do Avith the subsequent grant of a monoi)oly of the trade to the Russian-American Com- l)any. 11> In 1789, tM'elve vessels at least are known to have(.„^\!{'\'.,',',"' j,j* been trading on the north-west coast.* 204-'.'i2. The well known "Nootka" seizures by the S])aniards occurred in this year. In 1700, Fidalgo sailed from Nootka. then occupied by ^'-'^'-i p'^"3- Spain, to examine the north-west coast, including l^rincc 1 l)i(I »i '19^ William Sound, Cook Inlet, and Kadiak. The tradi ;- " vessel "Phcenix," Captain Moore, from the East Indies, was in Prince AVilliam Sound in this year. At this time also, Russia and Sweden being at war, a i'"''>p-28.5. Swedish cruizer visited the Aleutian islands, but tinding no Government establishment to attack, and no Russians exce])t traders living "in abject misery,'' her Commander refrained from disturbing them. In 1701, JMalaspina, from Spain, under orders of his Gov- ernment, visited several |)laces upon what is nowthcxVlaskan coast. Marchand, in the "Solide," from France, on a 'In manj^ cases no records exist of the trading voyages made to the north-west coast, and the existing records are very Incomplete. It is in some cases certainly known that these traders extended their operations to the north of the limit mentioned in the Ukase of 1799, or that of the Ukase of 1821. In other cases the extent of the voy- ages made is unknown. The traders went, in fact, wherever skins could be ])urchased, and, if disap])ointecl or forestalled at one place, at once departed for another. None of these trading-vessels were Russian. S. Ex. 177, pt. 4 L' Il)i.l.,i). 274. 18 CASE OF GREAT BRITAIN. vo^^age of trade and circumnavigation, also visited the Ibid, p- 248. coast, aiKl Douglas, in the "Iphigenia," was in Cook Inlet in this year. North-west Besidcs the above vessels, at least eight trading- vessels 250-257.^°^' '' ^'^'' are known to have been on the coast, of which seven Avere from the United States. Alaska, p. 244. lu 1792, Caamauo, setting out from ^STootka, explored Port Bucarelli, in South-eastern Alaska; and it is reported that in this year fully twenty-eight vessels were upon the coast, at least half of them being engaged in the fur trade. vaiicouver, Vaucouvcr gives a list of 21 vessels for the same year. Voyage 'ol-'-Du'. divided as follows: From England, G; from East Indies, 2; covery to the Pa- f^.^uj (jbiua, 3: from United States, 7; from Portugal, 2; ciflc Ocean. Lon- „ -,, " ^ ' ' 077 don, 1798. iroui h rauce, 1. Alaska, p. 29C. The " Ilalcyou," Captain Barclay, visited Petropaulovsk for purposes of trade, and a French vessel, " La Flavia,'' wintered there. Vancouver's ln 1793, Vaiicouvcr, wlio luid been dispatched by the voyage. English Government with the "Discovery" and 20 "Chatham'' for the purpose of finally deciding the existence or otherwise of a communication between the Pacific and Atlantic, by the exploration of all remain- ing inlets on the north-west coast, was occupied in survey- ing operations on what now constitutes the south-eastern Alaskan coast. In 1791, he surveyed Cook Inlet to its head, and Prince William Sound, Kadiak, and the coast extending to Yaku- tat Bay, were in turn carefully laid down in detail. He ascertained that the easternmost Eussian Establishment at this time was at Port Etches on Prince William Sound. ™d''^oiii'.p- Concerning the Russians here and there met with, Van- couver lemarks that he — Clearly uuderstood that the Russian Goverument bad little to do with these Settlements; that they were solely under tlie direction and support of independent mereantile Coiupanies Not the least attention whatever is jiaid to the cultivation of the land or to any other object but that of collecting furs, which is principally done by the Indians. Near Yakutat Bay he fell in with the "Jackal," an Eng- lish trading vessel, which was then upon the coast for tlie third consecutive season ; and further to the south-eastward he met with tlie " Arthur," C.iptain Barber, from Bengal. Vancover took possession of the coast southward from Cross Sound (latitude 58°) in tlie name of Great Britain. The results of his surveys were published in 1798. North-west The iiamcs of four trading vessels on the north-west Coast, vol. i, ]>. (.oast, including the "Jackal," are known for this year. Ibid., ].. 3(14. In 1795, a trading-vessel, named the "Pho'iiix," from Bengal, was on the north west coast. Ibid., ].. -.m. In 17!)(>, at least three trading-vessels are known to have been on the north-west coast. Ibid., p. HOG. In 1797, the luinies oi" four trading vessels on this coast are known, but these constituted prol)ably but a small ])art of the fieet. Ibid. ]i. Id 1798, the names of six trading-vessels happen to have been recorded. CASE OF GREAT BRITAIN. 19 111 1799, the "Caroline," Captain Cleveland, Irom Boston, arrived from Sitka shortly after a Eussian post had been established there. Several other American vessels, among them the brig Alaska, p. 389. "Eliza," nnder Captain Rowan, visited Sitka dnring 21 the snmmer and "absorbed the trade while the Knssians were preparing to occupy the field in the future." The names of seven vessels trading on the 7iorth-west(.„^^°''^^j"^®^* coast are recorded in this year. 307." Nothing approaching to a complete record of the names or nationalities of vessels trading npon this part of the coast in the years about the close of the last century can now be obtained, and, in the absence of any published record of explorations, even incidental allusions to the presence of such traders become rare in the years after the date of Vancouver's departure. That such trade was, how- ever, continuously practised is evident from the general complaints made by the L'ussians as to its effect on their operations. The following quotations from Bancroft's " History of Alaska" allude to complaints referring particularly to these years. Writing of the eutei'in-ises of Baranoff, Cxovernor of Sitka, Bancroft says: At every point eastward of Kadiak where be had endeavoured to Alaska, j). 384. open trade, he found himself forestalled l>y English and American ships, which had raised the jyrices of skins almost beyond his limited means. Again, referring specially to the nascent Establishment at Sitka, Baranott" himself writes : I thought tliere would be no danger with ]iroper protection from the 1''"'- P- -''J^- larger vessels, lliongh the natives there possess large (quantities of tire-arms and all kinds of ammunition, receiving new supplies annually from the English and from the Republicans of Boston and America, whose object is not ])ermaneut settlement on these shores, but who have been in the habit of making trading trips to these regiouB. On another page Bancroft writes : Baranoff's complaints of foreign encroachment appear to have been iWd., p. 398. well grounded. Within a few leagues of !>itka the ca^itains of tliree Boston ships secured 2,000 skins, though ])aying very high prices, each one trying to outbid the other. Further on Baranoff is quoted to the effect that the i''"''- i'- ^99. Americans had been acquainted with the tribes in this region for two or three years, and sent there annually from six to eight vessels. These vessels from the T'nited States were at this time just beginning to supplant the English traders, who had in earlier years been the more numerous, 22 Once more Bancroft quotes Baranoff as follows : The resources of this region are such that millions maybe Alaska, p. 399. made there for our country with proper management in the future, but for over ten years from six to ten English and American vessels have called here every year. It is safe to calculate an average of 2,000 skins on eight, or say six vessels, w-hich would make 12,000 a-year, and if we even take 10,000 as a minimum, it would amount in ten years to 100,000 skins, which, at the price at Canton of 45 roubles per skin, would amount to 4,500,000 roubles. 20 CASE OF GREAT BRITAIN. Circumstances which led up to Ukase of 1799. It will be couvenient at this i)oiut to consider the circum- stances which led up to the Ukase of 1799, the terms of that Ukase, and its effect. Alaska, p. 305. As early as 1780, the idea had become dominant with Grigor tShelikof, who had shortly before established the first permanent Kussiaii colony at Kadiak, of creating? a Company which should hold a mouoi)oly of trade in the Eussian possessions on the I'acitic, and over all tliat part of the American Continent to which Russian traders resorted. Shelikof obtained but a partial success in the Charter issued lor the United American Company-; but after his death at ^^ibiii., pp. li'T- Irkutsk in 1795, his schemes were taken up by his son-in- law Eezanof, who succeeded in carrying tliem to (;omple- lion, and, in 1799, a Ukase was issued which granted the wished-for exclusive privileges to the New IJussian-Ameri- can Company. Before this time, in 1798, a consolidatic.'i of the Shelikof Company with several smaller concerns had been effected under the name of the United American Com- pany; and at the date of the issuing of the Ukase there were but two rival Companies of importance in the field, the Shelikof or United American Company, and the Lebedef Company, and thc^e engaged in active comijetition and hostility. Bancroft sums uj) the situation about 1791 and 1792 in the following Avords: Ibiil., pp. ;!:!H, Affairs were assniuing a serious aspect. Not only were the Shelikof 339- men excluded from tlie greater i)art of the inlet [Cook Inlet], but they Avere ojiposed in their advance round Prince William Sound, which was also claimed by the Lebedef faction, though the Orekhof and other Companies were lijinting there 23 Thus the history of Cook Inlet during the last decade of the eighteenth century is replete with romantic incidents — mid- night raids, ambuscades, and open warfare — resembling the (h)ings of mediieval raitbrifters, ratliei than the exploits of peaceal)le traders Robbery and brutal outrages continued to be the ordar of tlie day, though now committed chiefly for the jiurpose of obtaining sole con- trol of the inlet, to the neglect of legitimate pursuits. Again, in another place, the same author writes, with regard especially to tlie i)osition of Baranoflf, (Tovernor of Sitka, when he took chargeof the Shelikof Colony of Kadiak : Alaska, p. 32). Thus, on every sidt;, rival establishments and traders were draining the country of the valuabh* staple upon whicli icsted tlu^ very exist- ence of the scheme of colonization. To the east and north there were Russians, but to the south-east the ships of Englishmen, Americans, and Freuchuien were already traversing the tortuous channels of the Alexander Arcliipelago, reaping rich harvests of sea-otter skins, in the very region where Baranoff liad decided to extend Russian dominion in connection witli Com]>any sway. Ibid., pp. :i()2, It was only in the Ititer years of tlie comiietition between ' " the rival Kussiaii Companies that they began to assume hostile attitudes to one another. The growing ]>ower of some of them favoured aggression, and the increasing scarcity of the sea-otter, which was already beginning to be felt, accentuated it. At first, and for numy years after Beliring's initial voyage, the traders from Siberia were sutiiciently occupied in turning to advantage their dealings CASE OF GREAT BRITAIN. 21; witli tlie natives of the islands and coasts visited by tlieni, and this not in the most scrui)nIons manner. Tribute in furs was exacted from the Aleuts on various pretexts, and "whenever the traders eanie in sufficient force these people were virtually enslaved. Xot only were the companies of traders under no sufficient or recognized control by the Eussian Government, but they even disliked and resented in some measure the advent or presence among them of Ti>iaranott", as the executive head of the new Corporation on the Ameri- can coast, connng to the front as the natural leader. When Shelikof presented at St. Pelersburg his original ^'-'^k;., ].. :!U8. petition for the right to monopolize the trade, a Ive])ort was requested on the subject from Jacobi, tln^ Governor-General of Eastern Siberia, and in .Jacobi, Shelikof found an able . advocate. Jacobi stated that it wonkl be oidy Just to She- likof to grant his request, and that it would be unfair to allow others to enjoy the benelits of the peace'which She- likof had established at Kadiak. The Empress then ordered the Imperial College of Com- ibi.i., p.-im. merce to examine tlie question, and a Committee of this body endorsed .Tacobi's Keport and recommended that the request of Shelikof and Golikof for exclusive privileges should be granted. Though, among the arguments naturally advanced in favour of the grant of a monopoly, we tind it urged that the benetits of trade accruing would thus be reserved to IJus- sian subjects, the history of the occupation of the coasts and the records concerning it, show conclusively that this Avas not the object Avhicli to any great extent induced She- likof to apply for snch a monopoly. His Company had the utmost difficulty in sustaining its ])osition against hostile natives, while not less serious were the difiliculties arising from the competition, and scarcely veiled hostility of rival 22 CASE OF GREAT BRITAIN. Russian traders. The increasing trade by foreigners, togetlier with tlie nnmerous exploring and surveying 25 exi)editions dispatelied to the north-west coast of America by various Powers, were no doubt distrusted by the Russian traders; but at the same time these traders were often obb'ged to depend on such foreigners for sup- port and assistance. Xowherein the annals of the times previous to, and dur- ing the operation of tlie Ukase of 1709, do we tind any reference to attempts to interfere with or restrict the opera- tions of foreigners upon tlie American coasts or in the Aleutian Islands. Even the scieiitilic expeditions of the period were often largely interested in trade as well as in exploration, but all vessels meeting with the Russians report a favourable, if not a hos])itable, reception. Such an attitude on the part of the traders and the Com- Y)any is, in fact, strictly in accord with the Ukase of 1790, which is ]»urely domestic in its character, and in which no exclusive right^ against foreigners are asserted. UKASE OF 1799. The following is a literal translation of the Ukase in question, taken from Golovuin, in '^Materialui dia Istoriy Russkikh Zasseleniy," i., 77-80: Alaska, i)p.:H7i'- By the grace of a merciful God, we, Panl I, Emperor and Autocrat 3«"- of All the Russias, &c. To the Russian-American Company, under our highest protection, the beuetits and advantages resulting to our I'jinpire from the liuntmg and trading carried on by onr loyal subjects i n the north-eastern seas and along tlie coasts of America^ have attracted our Ivoyal attention and consideration; therefore, having taken under our inuuediate protection a Company organized for the above-named ])urpfise of carrying on hunting and trading, we allow it to assume the appellation of " Russian-American Couipany under our highest protection;" and for the pur])oso of aiding tlie Company in its enter- prises, we allow the Commanders of our land and sea forces to employ said forces in the Company's aid if occasion recinires it, while for fur- ther relief and assistance of said Comi)aiiy, and having examined • their Rules and Regulations, we hereby declare it to be our highest Imperial will to grant to this Company for a period of twenty years the following rights and privileges: 1. By the right of discovery in past times by Russian navigators of the nortli-eastern part of America, beginning from the a^tli degree of north latitude and of the chain of islands extending from Kamschatka to the north to America and southward to dapan, aud by right of ])os- session of the same by Russia, we most graciously permit the 2(j Company to have the use of all liuiitiug grounds and establish- ments now existing on the north-eastern [sic'] coast of America, from the above-mentioned Both degree to Behriug Strait, and i n the same also on the Aleutian, Kurile, and other islands situated in the north-eastern ocean. '2. To make lunv discoveries not only north of the Suth degree of north latitude but fartlier to the south, and to occnjiy tlui new lands discovered, as Russian possessions, according to ])rescribed rules, if they have not been previously occu]>ied by any other nation, or been dependent on another nation. 3. 'J'o use and prolit by (everything whi(di has lieen or shall l)e dis- covered in those, localities, on tlu; surface and in the bosom of the earth, without any comjietition by olliers. 4. We most graciously permit tliis Com]iany to establish Settle- ments in future times, wherever they are wanted, according to their best knowledge aud belief, and fortify them to insure tlie saiety of the inhabitants, aud to send ships to those shores with goods and hunters, without any obstacles on tlie part of the Government. CARE OF GREAT BRITAIN. 23 5. To extend tbeir uavigatiou to all adjoiuiug uations and liold busi- ness intercourse with all surrounding Powers, upon obtaining their free consent for the purpose, and under our highest protection, t® enable them to prosecute their enterprises with greater force and advantage. 6. To employ for navigation, hunting, and all other business, free and unsuspected people, having no illegal views or intentions. In consideration of the distance of the localities where they will be sent, the provincial authorities will grant to all persons sent out as settlers, hunters, and in other capacities, passports for seven years. Serfs and house-servants will only be employed by the Company with the consent of their laud-holders, and Government taxes will be paid for all serfs thus employed. 7. Though it is forbidden by our highest order to cut Government timber anywhere without the ])ermission of the College of Admiralty, tills Company is hereby permitted, on account of the distance of the the Admiralty from Okhotsk, when it needs timber for repairs, and occasionally lor the construction of new ships, to use freely such tim- ])er as is re([uired. 8. For shooting animals, for marine signals, and on all unexpected emergencies on the mainland of America and on the islands, the Com- pany is permitted to buy for cash, at cost i)rice, from the Government artillery magazine at Irkutsk yearly 40 or 50 ponds of powder, and from tbe Nertchinsk mine 200pou(1s of lead. 9. If one of the partners of the Company becomes indebted to the Government or to private persons, and is not in a condition to pay them from any other property except what be holds in the Company, such property cannot be seized for the satisfaction of such debts, i)ut the debtor shall not be permitted to use anything but the interest or dividends of such property until the term of the Company's privileges expires, when it will be at his or his creditors' disposal. 27 10. The exclusive right most graciously granted to the Com- pany for a period of twenty years, to use and enjoy, in the above- described extent of country and Islands, all profits and advantages derived from hunting, trade, industries, and discovery of new lands, prohibiting the enjoyment of tlioso ju'otits and advantages not only to those who would wish to sail to those countries on their own account, but to all former hunters and trappers who have been engaged in this trade, and have their vessels and furs at those places; and other Companies which may have been formed will not be allowed to continue their business unless they unite with the present Company with their free consent; but such private Co i panics or traders as have their vessels in those regions can either sell their projierty, or, with the Company's consent, remain until they have obtained a cargo, but no longer than is required ibr the loading and return of their vessel; and after that nobody will have any i)rivileges but this one Company, which will be protected in the enjoyment of all the advan- tages mentioned. 11. Under our highest protection, the Russian-American Company will have full control overall above-mentioned localities, and exercise judicial powers in minor cases. The Company will also be permitted to use all local facilities for fortifications in the defence of the country under their control against foreign attacks. Only partners of the Company shall be employed in the administration of the new posses- sions in charge of the Company. In conclusion of this our most gracious order for the benefit of the Russian-American Company under highest protection, we enjoin all our nulltary and civil authorities in the above-mentioned localities not only not to prevent them from enjoying to the fullest extent the privileges granted by us, but in case of need to protect them with all their power from loss or injury, and to render them, upon application of the Com- pany's authorities, all necessary aid, assistance, and protection. To give eft'ect to this our most gracious < )rder, we subscribe it with our own hand, and give orders to confirm it with our Imperial seal. Given at St, Petersburgh, in the year after the birth of Christ, 1799, the 27th day of December, in the fourth year of our relgu. 'Signed) Paul. 24 CASE OF GREAT BRITAIN. THE IKASE Ol' 1799 COXSIDEUEl). Tlif) Ukase, it will be observed,. granted to the Kussian- Americau Ooinpauy exclusive riglits as against other Russian subjects only, and in no way interfered with the rights of foreigners, notwithstanding that the repre- sentations which led to its promulgation contained, as has already been indicated, complaints of competition by foreigners. It will be noticed, for instance, that the details incor- porated in clause 10 of the Ukase respecting the rights of independent traders are such as to be applicable to iiussian subjects or Companies alone. 28 The rights ami privileges under the grant extended to the hunting grounds and establishments then existing on the nuiin coast of America from Behring Strait down to the 55th degree of north latitude. The southern limit of the exclusive coast privileges granted to the Company extended on the Asiatic side to Japan. ^ot only were the main coasts of Asia and America thus covered by the Ukase, but the same ])rivileges were granted on the Aleutian, Kurile, and other islands "situated in the North Eastern Ocean." It will be noted, therefore, that the area over which the exclusive privileges were granted to the Eussian-American Company extended both on the coast of Asia and of America far beyond the limits of Behring Sea. Special privileges in regard to the purchase of powder for shooting animals "on the mainland of America and on the islands" were conceded, and the exclusive right "to use and enjoy in the above-described extent of country and islands" the hunting and trading. THE UKASE OE 1799 PURELY DOMESTIC. The Ukase in no way claimed any exclusive jurisdiction over the sea, nor were any measures taken under it to restrict the commerce, navigation, or lishery of the sub- jects of foreign nations, and this althoiigli. within the very area covered by the Ukase, as lias already been shown by the facts stated, vessels of various nations had been navi- gating and trading. It will be seen, by the account of the years following 179!>, that these operations on the part of foreigners con- tinued. Referring to the Ukase of 1790, Mr. iMiddleton, the United States Minister at St. Petersburgh, writes, Ttli (10th) April, 1824, to Mr. Adams, the Secretary of State of the Mnited States, as follows: Ainericiui state The confusion jiievailing in Europe in 1799 iierniitted Russia (who Papers, lorcijcii ;i]o„e seems to liavo kept her attention fixed upon this interest duiini? Kelations, vol. v, , • i > i j. i i • i i i. ^ i ii i .• ii • p 40J that period ) to taivo a deeided stej) towards the monopoly oi this trade, by the Ukase of that date, which trespassed upon the acknowl- CASE OF GREAT BRITAIN. 25 edfjed lights of .Spain;* but at that moment the Emperor Paul 29 had declared war against that country as being an ally of France. This Ukase, which is, in its form, an act purely domes- tic, was never notified to any foreign State with injunction to respect its provisions. Accordingly, it appears to have been passed over unob- served by foreign Powers, and it remained without execution in so far as it militated against their rights. HISTORICAL OUTLINE RESUMED. The accuracy of the views expressed by Mr. Middleton appears clearly from the facts disclosed by the chronolog- ical statement relating to the period subsequent to the year 1700 : In 1800, the ship " Enterprise," from Kew York, arrived -^la^ka, p. 389. at Kadiak. The name of the seven trading-vessels on the north-west co^gYtoi.\^ p.* coast are given in this year. ^oh. In 1801, there were at least thirteen United States vessels ibi,i.,p.3io. on the north-west coast. These vessels exchanged with j.,,,^^^ oreen- the natives of the coast for furs parts of their cargoes, and, how, Librarian of ])roceeding to China, returned to their respective countries {^"pa*r1ni1>nt**o^f witli cargoes of teas, ^c. Upwards of 18,000 sea-otter i^tu'"- "History skins, besides other furs, were in 1801 collected by United camwrna"- pp!* States traders alone for the China market, "^^Tti a In 1802, the Russian Establishment at Sitka was de- can lie view, 1822, stroved, and nearly all tlie Kussians there were massacred tll"^^xr.^^7}^' •' ' AT- r • • 1 • Appendix, by the natives. According to Lisiansky, the natives were vol. i, No. 3. assisted by three deserters from a United States vessel, the "Jenny," which liad called at Sitka not long before, ^las'^a, pp. Shortly afterwards, an English vessel, the " Unicorn," Cap- tain Barber, arrived at Sitka, and two other vessels, reported by the IJussian survivors as English, but one of these Ban- croft believes to have been the United States vessel "Alert." ]n this year also Krusenstern, having visited China, ]>resented a Memorial to the Russian Government calling- attention to the ad\'antages ottered by the trade in furs from America direct to Chinese ports, and suggesting that Russia should engage in it. Of the vessels trading on the north-west coast in this^.^'^rth-west , '7. , Coast, vol. I, pp. year, the names ot ten have been recorded. .11,312. 30 In 1803, Baranoft contcmi)lated the abandonment of Unalaska, owing to disease and nonarrival of i''"' - 1'- ''i'^- supplies. He ordered that the best men should be moved to the Pribilof islands to collect there the furs accumulated by the natives. These islands had not been visited for many years. Captain O'Cain, of the United States vessel "O'Cain," exchanged goods for furs with Baranoff at Sitka, and also took Aleutian hunters to the Californian coast to hunt fur- seals and sea-otters. "Thus was inaugurated a series of ,„4^'''^'^'*'PP'*'''^' hunting expeditions beyond the borders of the Russian Colonies, which continued for many years.'' The names of live vessels trading on the iioi'th-west^^^g^^^^J^j^Y pp* coast are known. 312-317. " The rights of Spain are liere mentioned because, by the I'kase of 1799, Russia claimed territory wliich Spain was ;ilso understood to claim. In 1824 the United States was committed in its own interest to support the old Spanish claim, in consequence of the Spanish ces- sion to the United States in 1819. 26 CASE or GREAT BRITAIN. _^jbi.i.. PI). :n8, 1,1 1804, Sitka was reoccupied and rebuilt by the Rus- sians. Two United States vessels, one being the "Juno," were there. The names of four vessels are known as trad- ing- on the north-west coast. Ibid., p. :!2o. 1,1 1805^ the "Juno" and another vessel from the United States were at Sitka, and we liear of six vessels, including the "Juno," as trading on the north-west. In 1806, the Eussian Envoy Rezanoff" visited the Pribilof Islands on the " Maria," and endeavoured to stop the waste- Aiask.i.p. 44(1. ful slaughter of fur seals. He recommended the Emperor to "take a stronger bold of the country," as the traders in ships from Boston were undermining the trade with China. ibia..p.4.^.i. He reported that the " Bostonians " had armed the Kolosh Indians. Ibid.. p.4.-i4. Ill the same year the "Juno," with her cargo, was pur- _ii)id., pp. 478, chased by Baranott", and the "Eclipse" (Captain O'Cain) *'''*■ sailed for Ciiiiia with furs; but was lost on the way back. The names of four vessels trading on the north-west coast are known in this year. Rezanofi", in 1807, sent the " Juno" to the Californian coast n)id.,p.4r.i. for provisions. Tlie "Myrtle," an English ship (Captain Barber), was purchased by Baranoft. Six north-west coast trading-vessels are known by name for this year. ^^ibid., pp. 479, Ij^ 1808, the United States vessel "Mercury" obtained at Kadiak 25 bidarkas, or skin boats, for hunting and trading to the soutliward. Four United States trading vessels are known to have Alaska, p. 467. bccu ou tlic Alaskau coast in 1808 and 1809. 31 In 1810, the Kussian sloop-of-war "Diana" visited Sitka. There were several United States vessels in the port at the time. Shortly after the United States ves- sels "EnteriH'ise" and "O'Cain" arrived. The " Enter- prise" went to Canton with furs. Ibid., p. 470. Galovnin, Commander of the "Diana," writes that at this time an American sailor and a Prussian skipper com- ])Osed the Diplomatic Corps of the Russian-American Company. Noitb-west In 1810 and 1811, four foreign vessels were engaged in Coawt, vol. i, p. ii 1 i- 1 ^~^ • j. i. c c^ 325. sea otter hunting, under Russian contracts. Alaska, p. 429. Ill 1811, tlic " Enterprise" returned from and went back Ibid., p. 48:). to China with furs. In this year the Ross Colony was founded in California to provide agricultural products for North we.st use on the north-west coast. Five vessels engaged in trad- Coast, vol. 1. ]). j^g. ,^^j J hunting, besides the four vessels under Russian contracts, were seen on the coast of Southern Alaska in this year. Alaska, ,.. 472. Ill 1812, the Uuited States shi]) "Beaver" disposed of her cargo to Baranoft' at Sitka, and was then sent to the Pribiloff Islands for fur-seal skins as payment. ii)id., ,.. 4X0. Between 1800 and 1812, Baranoft made six additional hunting contracts with United States vessels. He received a proportion of the skins, which were chiefly sea-otters. KoiMi-wcst Between 1812 and 1814, there was scarcely any trade, Coast, vol. i, p. owing to the war between England and the United States. Alaska, p. .'•.o:!. lu 1814, Captain Bennett (United States) sold two ves- sels with their cargoes to Baranoff, and took fur-seal skins CASE OF GREAT BRITAIN. 27 from the Pribiloff Islands in payment. Lozaref, sent by I*^"^- I'l'- ^04, liussia, with two ships, readied Sitka, but qaanelled witli Barauoffand returned. In 1815, the liussian vessel " Isabel " reached Sitka with ^i''''- 1'- ■^"•'• Dr. Shefter on board. In 181G, the Eussian vessel " Rurik" (Captain Kotzebue) i''''\ that of New Archangel, cited by M. Poletica, in latitudt^ .^)7 30 , being ui)on an island. So tar as ]irior discorcrji can constitute a foundation of right, the pa)).'r8 34 whicii I have referred to prove that it belongs to the ('nited States as far as 5iH north, by the* transfer to them of the rights of S])ain. Tliere is, however, ijo part of the globe wiiere the mere i'act of discovery could 1)0 Indd to gi\e W(!aker claims tiiau on the north- west coast. "The great sinuosity," says Hunibolilt, '•formed by the coast between the .55th and (JOth parallels of latitude, embraces dis- coveries made by (jfali, Bering, and 'I'chix ikoti', (iMiatlra, Cook, La Perouse, Malaspina, and Vancouver. No European nation has yet formed an estabttshment upon the immenao extiint of coast from Cape Meudosino to the 59tii degree of latilude. lieyond that limit tJie Russian factories commence, most of which are se;(Ttered and distant from each other like the factories established by the luiropean nations for the last three centuries on the coast of Africa, Most of these little CASE OF GREAT BRITAIN. 2d' Rnssiau Colonies oommnnicate with each other only hy sea, and the uevr denomiiKitions of Rnssian-Aruerica or Rnssiau possessions in the new continent, mnst not lead ns to believe tliat the coast of Bering Bay, the I'eninsnla of Alaska, or tbe conntry of the Ischugatschi, have become Rnssiau provinces iu the same sense given to the word when speakingof the Spanish Provinces of Sonora, or New Biscay." (Hum- boldt's "New Spain," vol. ii, Book 3. chap. 8, p. 496.) In M. Poletica's letter of the 28th February, 1822, to me, he says that when the Emperor Raul 1 granted to tlio present American Company its lirst Charter iu 1799, he gave it i\\& cj-dush-e possession oi tha north- west coast of America, whicli belonged to Russia, from the .55th degree of north latitude, to Bering Strait. In his letter of 2nd of A])ril, 1822, he says that the Charter to the Rassiau-American Company in 1799, was merely conceding to them a ])art of tbe sovereignty, or raflier certain erclusive pririlenes of commerce. Tliis IS the most correct view of tlie subject. The Emperor Paul granted to the Russian-American Company certain exclusive privi- leges of commerce — exclusive with reference to other Russian sub- jects; but Russia had never before asserted a right of sovereignty over any part of the North American continent; and in 1799 tlie ])eo]ile of the Fnitcd States had been at least for twelve years iu tlie.constant and uuiuterrn))tcd eujoyment of a jirotitable tra(b' with tlie natives of that very coast, of which the L'kase of the Emperor I'aul could not deprive them. The Honourable Charles SuniDer, speaking in the United States Senate on the occasion of the cession of Alaska to the United States, in 1807, said: It seems that there were various small Companies, of wliicli that at n7 ^'ml SesT' Kadiak was the most considerable, all of wliich were linally fused iuto 40tiiCoii{r., p.l49^ oue large trading Company, known as the Russiaii-Auierican Coni])any, 1867-68. which was organized iu 1799. under a C^hartcr from tbe Eiujieror Paul, Sfo Appondix, with the power of ad nnnigtrat ion throughout tbe whole region, includ- '^ *''•'• ^"•''• mg-the coasts and the islands. In this r('S])ect it was not unlike 35 the East India Company, which has jilaycd such a ])art in I^ngiish history; but it may be more properly compared with the Ihid- sou Bay Company, of which it was a Russian coimterpart. 'I'he Char- ter was for a term of years, but it has been from time to time extended, and. MS I understand, is now on the point of expiring. The j)owersof the ( 'ompany aresententiously desci'ibed by the ''Aluninacb de Cotha" for 18()7, wluTo, under the head of Russia, it says that "to the present time Russian America has been the> jiroj)ert!i of a ('oinpinuj." And, referring to as late a period as 1807, he remarked: EXTKXT OF IcrSSIA.V SETTLEMENTS. It is evident that these Russian Settlements, distributed through an immense region and far from any civilized neighbourhood, have lit- tle in conunou with those of European nations elsewhere, unless we except those of Denmark, on the west coast of (freenland. Nearly all are on the coast or the islands. They are nothing but " villages" or "factories" under the protection of palisades. Sitka is an excep- tion, due uu(iuestionably to its selection as the head-quarters of the Government, and also to the emiuent character of the Governors Avho have made it their home. Touching Eussia's claims to exclusive jurisdiction over more than certain i.slands in the Pacific Ocean on the x^th^'AmeTSn American coast, Mr. Adams, moreover, iu 1823 brought J^eview, yoi. xv, lor\vard with api)roval, articles which appeared in "The view!'^H82i-22,' North American Review/' published in the United States, \"i- Y-^'- Se« 1 • 11 , ,- i^ . 1 ' T^ • 1. 1 ,. n 1 . ri , ,'Ai)peuaix, vol. and in tlie "Quarterly Keview," published m England, i, Nos. 3aud4. The facts stated in these articles show the grounds upon which the (Tovernment of the United States considered themselves Justified in the contention advanced by Mr. Adams, that "the rights of discovery, of occupancy, of^^^torJuiy^S uncontested possession," alleged by Rus.sia, were "alli823. seeAppen'- without foundation iu fact," as^late as the year 1823. il'no?^"' 30 CASE OF GREAT BRITAIN. Again referring to the circuinstances in the year 1867 (the date of the cession of Ahiska to the United States), the historian Bancroft writes : Alaska, p. 591. ti Moreover, Russia had never occupied, and never wished to occujiy, this territory. For two-thirds of a century she had been represented there, as we liave seen, almost entirely by a fur and trading Company under the protection of Government. In a measure it had controlled, or endeavoured to control, the affairs of that Company, and among its stockholders were several members of the Royal Family; but Alaska had been originally granted to the Russian-American Company by Imperial Oukaz, and by Ini])erial Oukaz the Charter had been 36 twice renewed. Now that the Company had declined to accept a fourth Charter on the terms i)rqposed, something must be done with the territory, and Russia would lose no actual portion of her Emijire m ceding it to a Republic with which she was on friendly terms, and whoso domain seemed destined to spread over the entire continent. The foregoing liistorical snniiiiary establishes — That from the earliest periods of which any records exist down to the year 1821, there is no evidence that Enssia either asserted or exercised in the non-territorial waters of the North Pacific any rights to the exclusion of other nations. Tliat during the whole of that period the shores of Amer- ica and Asia belonging to IJussia as far north as Behring Straits, and the waters lying between those coasts, as well as the islands therein, were visited by the trading vessels of all nations, including those sailing under the flags of Great Britain, the United States, Spain, and France, with the knowledge of the Bussian authorities. That the only rights, in fact", exercised by Russia or on her behalf, were the ordinary territorial rights connected with settlements or annexations of territory consequent upon such settlements, and the only rights she purported 10 deal with or confer were rights and privileges given to the Eussian-American Company, as Bussiau subjects, in preference over other Bussian subjects. 37 CHAPTER II. Head B.-^-The Ukase of 1S21, and the circumstances con- nected therewith leading up to the Treaties of ISiil and 1825. voyago, M. (le Shortly before the date of the renewal of tlie Charter of ^J'j"%«'°-^/"y];the Eussian-American Company in ISL'l, the aspect of American State aft'airs had Considerably changed. Papers, Foreign Relations, vol. v, pp. 453-454. COMPETITION BY FOREIGNERS. The Company had long before fully succeeded in getting rid of its Bussian rivals, but trading-vessels from England and from the United Stales Iretiuented the coasts in increas- Aniericanstate iug uumbcrs, and evcrywlicrc competed with the Company. Ji?438li4r'' '' ^oods were brought by these ncsscIs at prices which the Alaska, i.. 528. Couipany could not successfully meet, and furs were taken CASE OF GREAT BRITAIN. 31 by tliein direct to Chinese sea-ports, while the Oorapany, j^^|^i'^^™^ei'i«ff' as a rule, had still to depend on the overland route from cited' in note to Okhotsk to Kiakhta on the Anioor. lleeafsoAfaska, Domestic com])etition had in fact ceased, and the mostp. 446: Rezanofs serious drawback to the success of the Company consisted c«"'i'iaiutini806. in the com[)etition from abroad. The difficulties resulting to the Company on account of foreign competition appear prominently in the comi)laints made by its agents at this time, and the new claim of the right to exchide foreigners from trade is embodied in the Ukase of 1821. TKXl' OK VKASK OF 1821. The following is the translation of the Ukase which was Se<> Appendix, issued by the Emperor Alexander in 1821 : '*''• ^' ^"^ ^■ EDICT OF HIS IMPEHIAI. JMAJKSTV, AUTOCRAT Ol' ALL THE RUSSIAS. The Directing Senate niaketh known to all men : Whereas, in an Edict of His Imperial Majesty, issued to the Directing Senate on the 4th day of September [1821], and signed by His Inii)erial Majesty's own hand, it is thus ex])ressed : Observing from Reports submitted to us that the trade of our sub- jects on the Aleutian Islands and on the north-w(!st coast of Anunica appertaining unto Russia is subjected, because of secret and illicit traffic, to oppression and impediments, and tinding that the principal cause of these difticulties is the want of Rules establishing the boundaries for navigation along these coasts, and the order of 38 naval communication, as well in these places as on the whole of the eastern coast of Siberia and the Kurile Islands, ^^•e have deemed it necessary to determine these communications by specific Regulations, which are hereto attached. " In forwarding these Regulations to the Directing Senate, we com- mand that the same be published for universal information, and lliat the proper measures be taken to carry them into execution. (Countersigned) "Count D. Gukiefk, " Minister of Finances. " It is therefore decreed by the Directing Senate that His Imperial Majesty's Edict be published for the information of .all men, and that the same be obeved by all whom it may concern." [L. S.] [The original is signed by the Directing Senate. On the original is written in the handwriting of His Imperial Majesty, thus:] Be it , accordingly, Alexandeh. Rules established for the ijmits of navigation and order OF communication ALON(i THE COAST OF THE EASTERN SIBERIA, THE NORTH-WEST COAST OF AMERICA, AND THK ALEUTIAN, KURILE. AND OTHER ISLANDS. "Section 1. The pursuits of commerce, whaling, and fishery, an.oi.i n i i ...... vol. ii, I'art II, Jiigton, dated tlie 2lcs of claim laid down therein, viz., y"'' ..''' ^'^^^ ^' an exclusive soven-'ujulij alleged to belong to Russia over the territories therein described, as also the escludve rujltt of vavh/atinf/ and tradhuj irHhin flie maritime li^niis ihevein set forth, His Britannic Majesty must be understood as hereluj reservitu/ alt his rij/his, not being prepared to admit that the intercourse which is allowed on the face of this instru- ment to have hitherto subsisted on those coasts and in those seas can be deemed to be illicit, or that the sliips of friendli/ T'oircrs, even sup- ]iosing an nnqualified sovereignty was proved to appertain to the Imperial Crown in these vast and very imperfectly occupied terri- S. Ex. 177, pt. '1 3 34 CASE OF GREAT BRITAIN. tories, could, hij the acknowlvdurd law of nations, he cxrhuled from nav\- gat\nosses8in(i the sovereii/nti/ of a couti- „ 1 ?: tV .V.l'*i" v^' ''■'/ to exclude the vessels of others from the seas on its coasts to the distance vol. n,] ait 1, ^o. ;.',^„ ,, ,■■,■' 15. oj 100 Jtatiau miles. In reply, Count Nesselrode communicated to the Duke Ibid. of Wellington a "Confidential Memorandum" dated the 11th (23rd) November, lcS22, Avhich contains the following passages: Tlie (Cabinet of Russia has taken into mature I'onsidcration the Con- fidential Memorandum forwarded to tliem by tiie Duke of Wellington on tli(! 17th October last, relative to the measures adopted by His Alajesty the Emperor, under date of the Ith (Kith) September,' 1821, for defining tin; extent of tlic Russian jiossessions on the north-west CASE OF GREAT BRITAIN. 35 coast of America, and for forbidding foreign vessels to approach his possessions within a distance of 100 Italian miles. . . . It was, on the contrary, because she regarded those rights of sovereignty as legitimate, and because imjierious considerations inv(dv- ing the very existence of the commerce Avhich she carries on in the regions of the north-west coast of America compelled her to establish a system of precautions which became indispensable that the caused the Ukase of the 4th (16th) September, 1821, to be issued. . . . Conseiiiieutly, theEmperorhascharged hisCabiuettodeclare to the Duke of Wellington (such declaration not to prejudice his rights in any way if it be not accepted) that he is ready to fix, by means of friendly negotiation, aud on the basis of mutual accommo- dation, the tlegrees of latittide and longitude which the two Powers shall regard as the utmost limit of their possessions and of their estab- lishments on the north-west coast of America. 43 His Imperial Majesty is pleased to believe that this negotia- tion can be completed without difticulty to the mutual satisfac- tion of the two States; and the Cabinet of Russia can from this moment assure the Duke of Wellington that the measures of precau- tion and supervision which will then be t;iken on the Russian part of the coast of America will be entirely in conformity with the rights derived from sovereignty, and with the established customs of nations, and that there will be no jjossibility of legitimate cause of complaint against them. Ag:aiii, oil the 28th November, 1822, the Duke of Welliug- toii addressed a note to Count Lieven. contaiuiiig the fol- ]o^villg■ words: The second ground on which we object to the Ukase is that His Sec Appendix, Imperial Majesty thereby excludes from a certain considerable extent Y^''- 'J- ^''"^ ^• of the ojieu sea vessels of other nations. We contend tliat the assump- tion of this power is contrary to the law of nations, and we can not found a negotiation upon a pai)er in which it is again liroadly asserted. We contend that no Power whatever can exclude another Irom the use of the open sea. A Power can exclude itself Ironi the navigation of a certain coast, sea, &c., by its own act or engagement, but it can not by right be excluded by another. This we consider as the law of nations, and we can not negotiate upon a paper in which a right is asserted inconsistent with this ])rinciple. At an early date in the course of the negotiations with the United States and witli Great Britain the execution of tlie Ukase beyond the territorial limit of 3 miles was sus- peiuled. Indeed, as far as the waters of Behring Sea are concerned, it may safely be said that it was never put into ^•of'^'^ii^P^art'^'i' practical execution beyond this limit. The note from Count xo.' si! Nesselrode to Mr. Middleton on the subject Mas dated the American state 1st August, 1822, and is thus alluded to by Mr. ]\Iiddleton I'ai'frs. I'oreign in a despatch to Mr. Adams of the 19th September, 1823: pf448!""'^' ^ ° ' ^' Upon Sir Charles [Bagot] expressing his wish to be informed respect- ing the actual state of the )ior///-H'es^ question between the United States and Russia, so far as it might be known to me, I saw no objection to making a coiifidrntUil communication to him of the note of Count Nes- selrode, dated the 1st August, 1822, by which, in fact, staying the execution of the Ukase above mentioned, Russia has A-irtually aban- doned the pretensions therein advanced. The communication to the British Government on see Appendix, 44 the same subject wasmadein Augustl823 m theshape xi.' 29.' ^'^^^ ^' of an extract from a despatch from Count Nesselrode to Count Lieven, dated the 20th June, 1823. The following passage in it shows how complete was the abandonment of the unusual claim of maritime jurisdiction: 'J'hat the Commanders of our ships of war must confine their sur- veillance as nearly as possible to the mainland, i. e., over an extent of 36 CASE OF GREAT BRITAIN. sea Avithin ran.ije of caunou-sliot from tlic shore; that they must not extend that snrveilhmce beyond the sphere where the American Com- jiany lias ett'ectnally exercised its riiihts of Imuting and fishing since the (hite of its creation, as well as since tlie renewal of its privileges in 1799, and that, as to the islands on which are to be found colonies or settlements of the Comjiany, they are all indistinctively comprised in this geuernl rule. . . . Your P^xcellenoy will observe tiiat these new instructions — wliicli, as a matter of I'act, are to sus])end provisionally the effect of tlie Imperial I'kase of the 4th Sei^tember, 1821— were sent from St. retersbnrgh only in August of last year. See Appen.iix, Mr. Lyjill, Cliaimiaii of the Ship-owners' Society, of Loii- Nos.^33, 34^ anticlon, wFOte Oil the I'Jth November, 18:23, to Mr. Cr. Cannings, ^5- asking Avhether official advices liad been received from St. Petersbnrg- that the Uli;ase of 1821 had been annulled. Mr. Canning having privately submitted his proposed reply to Count Lieven for his comments, caused the following letter to be sent, which had received Count Lieven's approval: Lord r. Con- I am directed by Mr. Secretary Canning to acknowledge the receipt ynghani to Mr. of your letter of the 19th instant, expressing a liope that the Ukase of •^6'i8'>3'^"''''™^'"' September 1821 had been annulled. " See'Appeiidix, ^^^'- Canning can not authorize mo to state to you in distinct terms vol. ii, I'artl.Xo. that the Ukase has lieen " funiiilhd,'' because the negotiation to which 36. it gave rise is still pending, embracing, as it does, many points of great intricacy as well as importance. But I am directed by Mr. Canning to ac(|uaint you that orders have been sent out by the Court of St. Petersburg to their Naval Connnaud- ers calculated to prevent any collision between Russian sliips and those of other nations, and, in elfect, suspending the Ukase of Sep- tember 1821. See Appeji.iix, Qii the IHtli rlanuaiy, 1824, Mr. G. Canning >vrote to Sir Ao.ii, ar o. ^ Bagot, the British Ambassador at St. Petersburg: . The questions at issue between Great Britain and Russia are short and simple. The Russian Ukase contains two objecti(maljle pretensions: First, an extravagant assumption of maritime suprem- acy; secondly, an unwarranted claim of territorial dominions. 45 As to the tirst, the disavowal of Russia is, in substance all that we could desire. Nothing remains for negotiation on that head but to clothe that disavowal in precise and satisfactory terms. AVe would much rather that those terms should be suggested by Russia herself than have the air of pretending to dictate them; you will therefore request Count Nesselrode to furnish you with his notion of such a declaration on this point as may be satisfactory to your Govern- ment. That declaration may be made the preamble of tlie conven- tion of limits. . . . xVgain, in a despatch, 24th July, 1824, to Sir C. Bagot, Mr. G. Canning says : See Appendix, . . . Your Excellency will observe that there arc but two points >j"''erha])s, as Count Lieven rennirks, new. l?ut it is to be remarked, in rc^turn, that tlu^ circustances undtir which this additional security is re(|uired will be n(!W also. By the ierritorial (ii'mnrcation agreed to in this ''])rojet," Russia will become jiossessed, in acknowledged sovereignty ol' l>oth sides, of I'.ehring Straits. The ]'ow«^r which could think oC making the Pacific a tiiarc clausiim may not unnnturally be sujiposed (capable of a n to aiiply the same character to a strait com])r(diended lietween two shores of \.-hich it becomes the undisputed owner; but the shutting up of CASE OF GREAT BRITAIN. 37 I'eliiiiig Straits, or iho power to slmt tlioiii up liereafter, "would lie a thing not to be tolerated by England. Nor could we submit to be excluded, either ])ositively or construct- Set- ante, p. C2. ively, from a sea in a\ liicli the skill and science of our seamen has been and is still emiiloyed in enteri)rises interesting not to this conutry alone, but to the whole civilized worltl. The protection given by the Convention to the American coasts of each Power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory; but in some way or other if not in tlie form now prescribed, the free navigation of Behring Striiits and of the seas beyond them must 1>e secured to us. j\Ir. George Oaniiing in a despatch to Mr. Stratford Can- see Appendix, iiiiig, wlio liad been appointed British Plenipotentiary for ^'.'Jr.'J' ^'^^^ ^' the negotiation of a Convention at St. Petersburg, under date the 8th December, 1824, after giving a summary of the negotiations up to that date, goes on to say: 46 It is comparatively indifferent to us whether we hasten or postpone all (juestions respecting the limits of territorial posses- sion on the continent of America, liut the ])retensions of the Russian Ukase of 1821 to exclusi\ e dominion over the I'acitic could not con- tinue longer unrepealed without compelling lis to take some measure of public and effectual remonstrance against it. Yon will therefore take care, in the tirst instance, to repress any attempt to give this change to the character of the negotiation, and will declare without reserve that the point to which alone the solici- tude of the British Go\ernmeut and the jealousy of the British nation attach any great imi)Ortance is the doing away (in a manner as little disagreeable to Russia as possible) of the effect of the Ukase of 1821. That this Ukase is not acted upon, and that instructions have been long ago sent by the Russian (ioverunient to their cruisers in the Pacitic to suspend the execution of its ])rovisions, is true; but a private disavowal of a published claim is no security against the revival of that claim. The suspension of theexecution of a principle may be perfectly compatible with the contiuued nuiintenance of the principle itself, and when wo have seen in the course of this negotia- tion that the Russian claim to the possession of the coast of America down to latitude 5tl^ [siC] rests in fact on no other ground than the Ijresumed acfiuiescence of the nations of Eurojje in the ])rovision8 of an Ukase published by the Emi)eror Paul in the year 1799, against which it is attirmed that no public reuumstrauce was made, it becomes us to be exceedingly careful that we do not, by a similar neglect, on the present occasion allow a similar presumption to be raised as to an acquiescence in the Ukase of 1821. The right of the subjects of His Majesty to navigate freely in the Pacilic can not be held as a matter of iudulgence from any Power. Having once been publicly questioned, it must be publicly acknowl- edged. We do not desire that any distinct reference should be made to the Ukase of 1821; but we do feel it necessary that the statement of our right should be clear and positive, and that it should stand forth in the Convention in the place which properly belongs to it, as a plain and substantive stipulation, and not be brought in as an incidental consequence of other arrangements to which we attach comparatively little importance. This stipulation stands in the front of the Convention concluded ^f-'e post, y. 52. between Russia and the United States of America ; and we see no reason why upon similar claims we should not obtain exactly the like satisfaction. For reasons of the same nature we cannot consent that the liberty of navigation through Bering Straits should be stated iu the Treaty as a boon from Russia. The tendency of such a statement would be to give countenance to those claims of exclusive jurisdiction against which we, on our own behalf, and on that of the whole civilized world, protest.. 38 CASE OF GREAT BRITAIN. 47 It will of course strike the Russian Plenijioteiitiaries that, by tlie adoption of the American Article resi»ecting' navigation, &c., the provision for an exclnsive iisheryof 2 leagues from the coasts of our respective possessions falls to the ground. But the omission is, in truth, immaterial. The law of nations assigns the exclnsive sovereignty of 1 league to each Power on its own coasts, without any specitit; stipulation, and though 81r Charles Bagot was authorized to sign the Convention with the specific stipulation of 2 leagues, in ignorance of what had been decided in the American Convention at the time, yet, after that Convention has been some montlis before the world, and after the opportunity of consideration has been forced upon us by the act of Russia herself, we cannot now consent, in negotiating de novo, to a stiptilation which, while it is absolutely unimportant to any practical good, would a])pear to establish a contrast between the United States and us to onr disadvantage. THE TREATY (GREAT BRITAIN AND RUS.SIA), FEBRUARY 28, 1825. These negotiatious resulted in a Convention with Great Britain, signed on. the 28th of February, 1825, hereinafter referred to. PROTEST OF UNITED STATES. sess^-l'^sTn^'Ex^ Ou the 30th January (11th February), 1822, M. Pierre Doc. No. IOC. p. ^g Poletica, the Envoy Extraordinary and Minister Plen- ipotentiary of the Kussiau Emperor, transmitted the Ukase to Mr. Adams, Secretary of State for the United States. Ibid., p. 205. On the 25th February, 1822, Mr. Adams wrote to M. Poletica : Department of State, Wash in (J ton, Fehrnary 25, 1S32. Sir, I liave the honour of receiving your note of the 11th instant, inclosing a printed copy of the Regulations adoptijd by the Russian- American Company, and sanctioned by His Imperial Majesty, relating to the commerce of foreigners in the waters bordering on the estab- lishments of that Comjiany upon the north-west coast of America. 1 am directed by the President of the United States to inform you that he lias seen with surprise, in this Edict, the assertion of a terri- torial claim on the part of Russia, extending to the 51st degree of north latitude on this continent, and a Regulation interdicting to all com- mercial vessels other than Russian, ujjon the penalty of seizure and confiscation, the approach upon the high seas within 100 Italian miles of the shores to which that claim is made to api)ly. The relations of the United States with His Imperial Majesty have always been of the most friendly character; and it is the earnest desire of this Governnumt to j)reserve them in that state. It was expected, before any Act 48 which should define th(^ boundary between the territories of the United States and Russia on this continent, tliat the same would have been arranged l)y Treaty between the ]iarties. To exclude the vessels of our citizens from the shore, beyond the ordinary distance to which the territorial jurisdiction extends, has excited still greater surprise. This Ordinance afi'ects so deejily the rights of the United Statce and of their citizens, tiuit I am instructed to inqtiire whether you are authorized to give explanations of the grounds of right, upon ]trin- ciples generally recoguizeelning Strait southward as far as the 51st degree of latitude ou the coast of America. CASE OF GREAT BKITAIN. 39 RUSSIAN DEFENCE OF XTKASK. On the 28th of the same month the Russian Representa- J^- de Poietica tive replied at length, defending the territorial claim on A' ?^' ^o.^r ])ossession, and explaining the motive which determined Papers, Foieicrn the Imperial (Government in framing the Ukase. pp^sei^se^^^^s'^'^ He wrote: Appendix, vol. ll. Part II No. 1. I shall bf more succinct, sir, in the exposition of the motives ■which determined the Imperial Government to ])r()hibit foreign vessels from approaching the north-west coast of America belonging to Rus- sia within the distance of at least 100 Italian miles. Tliis measure, however severe it may at first appear, is, after all, but a measure of prevention. It is exclusively directed against the culpable enterjjrises of foreign adventurers, who. not content with exercising upon the coasts above mentioned an illicit trade very prejudicial to the rights reserved entirely to the Russian-American Company, take upon them besides to furnisli arms and ammunition to the natives in the Russian possessions in America, exciting them likewise in every manner to resist and revolt against the authorities there established. The American Government doubtless recollects that the irregular conduct of these adventurers, the majority of wlnun was comjiosed of American citizens, has been the ol)ject of tlie most pressing remon- strances on the part of Russia to the Federal Government from the time that Diplomatic Missions were organized between the countries. These remonstrances, repeated at ditt'erent times, remain constantly without etil'ect, and the inconveniences to which they ought to bring a remedy continue to increase. . . . UKASi: haski) on doctrine of mare ci..\r.suM. I ought, in the last ])lace, to request you to consider, sir, that the Russian possessions in the Pacitic Ocean extend, on the north-west coast of America, from Behring Strait to the 51st degree of north latitude, and on the oi)posite side of Asia and the islands adja- 49 cent, from the same strait to the 4.5th degree. The extent of sea of which these possessions form the limits comprehends all the conditions which are ordinarily attached to shut seas (''mers ferm^es"), and the Russian Government might consequently judge itself autboiizcd to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred only asserting its essential rights, without taking any advantage of localities. To this Mr. Adams replied (30th March, 1822). He said : , ^otb cong., 2n(i ^ ^ ' ' Sess., Senate Kx. This pretension is to be considered not only with reference to the^""- ^°- ^''"' P- question of territorial right, but also to that prohibition to the vessels ggg Appendix of other nations, including those of the United States, to approach vol. ii, Part 11,' within 100 Italian miles of the coasts. From the period of the exist- No. 2.' ence of the United States as an independent nation, their vessels have freely navigated those seas, and the right to navigate them is a part of that independence. With regard to the suggestion that the Russian Government might have justified the exercise of sovereignty over the Pacific Ocean as a close sea, because it claims territory both on its American and Asiatic shores, it may suffice to say that the distance from shore to shore on this sea, in latitude 51^ north, is not less than 90"^ of longitude, or 4,000 miles. The Russian Representative replied to this note on the ^ ^'^■j^® ^"J^^'q' 2nd April following, and in the course of his letter he said: Adams! Api n 2,' 1822. In the same manner the gi'eat extent of the Pacific Ocean at the Slst 50th Cong., 2nd degree of latitude can not invalidate the right which Russia may have Sess., Senate Kx. of considering that part of the ocean as close. lint as the Iniperial ^og*'" ' ^' Government has not thought iit to take advantage of that right, all ~ further discussion on this subject would be idle. 40 CASE OF GRKAT BRITAIN. As to the right claimed for the citizens of the United States of trad- ing with the natives of the country of the north-west coast of America, without the limits of the jurisdiction belonging to Russia, the Imperial Government will not certainly tliink of limiting it, and still less of attacking it there. But I cannot disscmlde, sir, that this same trade beyond the 51st degree will meet with difficulties and inconveniences, for which the American owners will only have to accuse their own imprudence after the ]inl)licity wliicli has been given to the measures taken by the Imperial Government for maintaining the rights of the Russian-American Company in their absolute integrity. I siiall not tinish tliis letter, without repeating to you, sir, the very positive assurance which I have already had the honour onceof express- ing to you that in every case where the American Government shall judge it necessary to make explanations to that of the Emperor, 50 the President of the United States may rest assured that these explanations will always be attended to by the Emperor, my august Sovereign, with the most friendly and consequently the most conciliatory, dispositions. On the 22nd July, 1823, Mr. Adams wrote to Mr. Mid- dleton, tlie United States Minister at St. Petersburg, as follows: 50th Cong., 2iul From the tenour of the Ukase, the pretenti iisof the Imperial Gov- Sess., Senate Ex. ej-nment extend to an exclusive territorial jurisdiction from the 45th 210? " ^' degree of north latitude, on the Asiatic coast, to the latitude of 51 See Appenilix, north on the western coast of the American Continent ; and tliey assume ■vol. ii. Part II, the right of interdicting the navigation and the fishery of all other ^o.ii. nations to the extent of 100 miles from the whole of that coast. The United States can admit no part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exer- cise from the earliest times, after the Peace of IT.So, throughout the whole extent 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. The correspondence between M. Poletica and this Department con- tained no discussion of the principles or of the facts upon which he attempted the justification of the Imperial Ukase. This was purposely avoided on our part, under the expectation that the Imperial Govern- ment could not fail, upon a review of the measure, to revoke it alto- gether. It did, however, excite much public animadversion in this country, as the Ukase itself had already done in England. I inclose herewith the North American Review for October, 1822, No. 37, which contains an article (p. 370) written by a jjcrson fully master of the subject; and for the view of it taken in England I refer you to the 52ud number of the Quarterlj^ Review, the article u])ou Lieutenant Kotzebue's voyages. From the article in the North American Review it "Will be seen that the rights of discovery, of occupancy, and of uncontested possession, alleged by M. Poletica, are all without foun- dation in fact. * :Jf * ii ^ Mr. Middleton, writing to the Secretary of State of the United States, on the 1st December, 1823, inclosed a con- fidential memorial which thus dealt with the claim (which is properly regarded by him as an attempt to extend terri- torial jurisdiction upon the theory of a shut sea and having no other basis) : American state The extension of territorial rights to tlie distance of 100 miles Papers, Foreign 5^ from the coasts upon two opposite continents, and the jirohihi- Ke^ations, vol. v, ^j^^^ ^^^ ai)proachiug to the same distance from these coasts, or See Appendix, from those of all the intervening islands, ar(( innovations in the lav vol. ii, Part II, of mitions, and measures unexam])l(^d. It must thus bo innigined ^°* 5- that this prohibition, bearing the ])ains of conliscation, ai)p]ies to a long line of coasts, with the intermediate islands, situated in vast seas, where the navigation is sul)ject to innumerable and unknown difhculties, and where the chief employment, which is the whale fishery, cannot be compatible with a regulated and well-determined course. CASE OF GREAT BRITAIN. 41 The right cannot be denied of shutting a port, a sea, or even an entire country, against foreign commerce in some particular cases. Hut the exercise of such a right, unless in the case of a colonial sys- tem already established, or for some other special object, would be exjiost'd to an unfavourable interpretation, as being contrary to the liberal sjiirit of modern times, wherein we look for the bonds of amity and of reciprocal commerce among all nations being mt)re closely cemented. Uni^■ersal usage, which lias obtained the force of law, has estab- lished for all the coasts an accessory limit of a moderate distance, which issuflicient for the sccni-ity of the country and tor the couvcn- ienci^ of its inhabitants, but whicli lays no restraint upon the univer- sal rights of nations, nor upon tlu3 freedom of commerce and of navigation. ( Vattel, Book I, Chapter 23, section 289.) At tlie tburtli Conference (8tli 3Iarcli, 1824) which pre- Americ.in state ceded the sig-nature of the Treaty of the .">th (ITtli) April, itri'iur.ns, "ol'v! 1824:, Mr. Middleton, tlie United States Kepresentative, i'i'-^''^-466. submitted to Count Nesselrode the following" paper: (Translation.) The domininn can not be ac<|uired l)ut by a real occnpation aiul ])os- session, and an intention (' animus') to establish it is by no means suf- ticient. Now, it is clear, according to the facts established, that neither Russia nor any other Enropean Power has tlie right of dominion u])on the Continent of America between the 50tli and (!Oth degrees of north latitude. .'Still less has she the dominion of the adjacent maritime territory, or of the sea which washes these coasts, a dominion which is only accessory to the territorial dominion. Therefore she has not the right of exclusion or of admission on these coasts, nor in these seas, which are tree seas. The right of navigating all the free seas belongs, by natural law. to every independent nation, and even constitutes an essential ])art of this independence. The United States have exercised navigation in the seas, and com- merce upon the coasts above mentioned, from the time of their inde- pendence ; and they have a perfect right to this navigation and 52 to this commerce, and they can only be deprived of it by their own act or by a Convention. CONVENTION BETWEEN THE UNITED STATES AND RUSSIA. TIIK THKATV ( l.'USSI.V AND TlIK UNTrKD STATKS), Al'Hll. 17, 1S24. The result of these negotiations between the l^^i'ited^g^'^"''gpg'^'j,",^\|' States and IJussia was the Convention of the 17th April, dix/voi. ii, Part 1821, which i)ut an end to any further pretension on the^^BHiVbook, l)art of Kussia to restrict navigation or fishing in Behring ''United states i< ,. ... .. ,, i^*^.^ -, ^y^ J. «^ ^o. 1 (1891)," p. Sea, so far as citizens ot the u nited States were concerned. 57. The English version of the Convention is as follows: App.iidix.voi. '^ III. Article I. XAVIGATION OF PACIFIC TO BE FREE. It is agreed that in anypartof the Great Ocean, commonly called the Pacitic Ocean, or South Sea, the respective citizens or subjects of the High Contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the ]tower of resorting to the coasts, upon ]ioints which may not already have been occupied, for the purpose of trading with the natives, saving always the restric- tions and conditions determined by the following Articles: AltTlCLE II. With a view of preventing the rights of navigation and of fishing, exercised ui)on the Great Ocean l)y the citizens and subjects of the 42 CASE OF GREAT l^ITAIN. High Contracting Powpi.s, from bocoiuing the pretext for an illicit trade, it is agreed that the citizens of the United States shnll not resort to any point ■where there is a Ivussian Establishment, wifchont the permission of the (Jovcruoror Commander; and that, reciprocally, the subjects of Russia shall not resort, "without permission, to any Establishment of the United States npon the north-west coast. Akticlk III. It is, moreover, agreed that hereafter tliere shall not be formed by the citizens of the United States, or under the authority of the said States, any Establishment npon the north-west coast of America, nor in any of the islands adjacent, to the north of 54"^ 40' of north latitude ; and that, in the same manner there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel. Article IV. It is, nevertheless, understood that, during a term of ten years, counting from the signature of the present Convention, the ships of both Powers, or which belong to their citizens or subjects respectively, may reciprocally frennent, without any hindrance whatever, the inte- rior seas, gulfs, harbours, and creeks npon the coast mentioned in the preceding Article, for the purpose of tishing and trading Avith the natives of the country. 5.3 Articlk V. All spirituous liquors, firearms, other arms, powder, and munitions of war of every kind are always excepted from this same commerce permitted by the preceding Article; and the two Powers engage re- ciprocally neither to sell, or suffer them to bo sold to the natives, by their res])ective citizens and subjects, nor by any person Avho may bo nndcr their authority. It is likewise stipulated that this restriction shall never afford a pretext, nor be advanced, in any case, to authorize either search or detentiou of the vessels, seizure of the merchandize, or, in tine, any measures of constraint whatever towards the mer- chants or the crews who may carry on this commerce; the High Con- tracting Powers reci])r()cally res('r\ing to themselves to determine npon the penalties to be incurred, and to inflict the punishments in case of the contravention of this Article, by their respective citizens or subjects. Article VI. When this Conveution shall have been duly ratified by the Presi- dent of the United States, with the advice and consent of the Senate on the one part, and ou the other, by His Majesty the Emperor of all the Russias, the ratifications shall bo exchanged at Washington in the space often months from the date below, or sooner if possible. In faith whereof the respective Plenipotentiaries have signed this Convention, and thereto affixed the seals of their arms. Done at St. Pctersburgh the 5th (17th) April iu the vear of (irace 1824. [l. s.] Henry Middleton, [l. s.] Le Corato C. f e Nessklhode. [l. s.] Pierre de Poletica. CONVENTION BETWEEN GREAT BRITAIN AND RUSSIA. TREATY ((iREAT I5RITAIX AND RUSSIA), EEHRt'ARY 25, 1825 ForFrenchtext The iiogotiations between Grejit Britain and Rnssia voLiiA^u't'iu, resnlted in the Convention of the 28th of Febrnary, 1825. ^""•2- The following- is the I'^nglish translation of this con- vention : NA\'I('.Ari(>N OK l'A(;iFIC TO HK EREE. Article I. Spo P.hio Book, It is agreed that the rtispectivo subjects of the High (Contracting "United stiitfs Parties shall not bo troubled or molested in any ])art of the ocean. No. 1 (1891)," i(. (jommonly called the Pacific Ocean, cither in navigating the sauu', in Appendix v,,]. Wishing therein, or in landing at such parts of the coast as shall not iii. ' have been already occupied, in order to trade with the natives, under the restrictions and conditions si)ecified iu the following Articles. CASE OF GREAT BRITAIN. 43 54 Article II. In order to prevent the right of navigating and fisliing exereiaed upon the ocean by thesn})jects of the High Contracting Parties, i'roui becoming the pretext for an illicit commerce, itis agreed that the snb- jects of His Britannic Majesty shall not land at any jtlace where there "may be a Russian establishment without the permission of the (iov- oruor or Commandant; and, on the other hand, that Russian subjects shall not land without permission at any British establishment on the north -Avest coast. Ahticlk III. The line of demarcation between the jiossessions of the High Con- tracting Parties upoTi the coast of the continent Jind the islands of America to the north-west, shall be drawn in the manner following: Commencing from tlie southernmost part of the island called Prince of Wales Island, which ])oiiit lies in the parallel of 54^ 40' nortii lati- tude, and between the 131st and tlic l^ord degree of west longitude (meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel, as far as the point of the cX OK UrS.SO-AMEHlCAN TUKATV. President JNIonroe wrote to ]\Ir. Madison on the 2nd August, 1824, with reference to the Convention of that year, to the etfect that — Ey this Conv<^ntioii the claim to the mare clausnm is given up, a Wharton, I)i- verv high nortliern latitude is established tor our boundarv w'ith Rtis- '^''^^' f^K ^''toma- • " 1 i 1 -ii ^1 T T 1 1 <■ * * i- »i tional Law, .seo- sia, and our trade with the Indians ))Iaced for ten years on a perfectly tion 159 vol. ii free footing, and after that term left ojK'ii for negotiation. . . . Eng-p.226. land will, of conrst', have a similar stipuhition in favour of the free navigation of the I'acific, but we shall have the credit of having taken the lead in the affair. In answer to the above, Mr. Marincii)aliy against this very claim that the [)rotest of (ircat Britan and the United States were directed, and its relinquishment was therefore, and ])ur})(>sely, i)laced at the head of each of the resulting Conventions. Article [ of the Convention l)etween liussiji and the United States is as follows: It is agreed that iu any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, tlie respective citizens or stibjects of the Hij^h Contractinj>Powerssliall lieneithcrdistiirljed nor restrained, either in navigation or in iisiiing, or in tlie power of r<>sorting to tlie coasts, iqion jK)ints which may not already havt; heen occ'upied, for the purpose of trading Avitli the natives, saving always the restric- tions and conditions (hderniincd by tlu'. following Articles. Article I of the Convention between Great Britain and Kussia is as follows : It is agreed that tlie rcsjx'ctive subjects of the High Contracting Parties shall not lie troubk'd or molested in any ])art of the ocean, commonly calh^d the Pacilic Ocean, cither in na\igating tlie same, in lishing therein, or in lanerial Government would, strictly speaking, have had the power to entirely ejose to foreigners that piirt of the Pacific Ocean on which our possessions in America and Asia border, there is all the more reason why the right, in virtue ot which it has just adopted a measure much less generally restrictive, should not be called in question. if * # » * The officers commanding the Russian vessels of 62 war, which are to see to the maintenance of the above-mentioned arrangements in the Pacific Ocean, have been ordered to i)ut them into force against those foreign vessels, «S:c. Til this note "north-west coast of America" is mentioned three times, and in each case the coast of IJehriiig Sea is included in the term. "Pacific Ocean" appears twice, and in both instances includes the Behriug Sea. CASE OF GREAT BRITAIN. 49 A. map, published officially by Eussian authorities, of ^o"" '^^P' /''^e which a copy is included among the documents annexed to ivI'No. i.^' this Case, was forwarded from St. Petersburg by Sir ^J'^^jAPP^J^^'i^- Charles Bagot to Lord Londonderry, in a despatch dated No.' 4. ' the 17th November, 1821, in which it is thus described : I have the honour to transmit to your Lordship, under a separate cover, an English translation of the Ukase, and I at the same time inclose a map of the north-west coasts of America, and the Aleutian and Kurile Islands, which has been published in the Quartermaster- General's Department here, and upon which I have marked all the principal Russian Settlements. "north-west coast." It will be seen on reference to this map that the words "part of the north-west coast of America" include the whole coast line from a point north of Behriug Straits down to latitude 54° north. Again Lord Londonderry writes to Count Lieven: The Undersigned has the honour hereby to acknowledge the note, Lord London- addressed to him by Baron de Nicolay of the 12th November last, cov- ^erry to Count ering a copy of an Ukase issued by His Imperial Majesty tlie Emperor ig'^i802 Seo'A7> of All the Russias, and bearing date the Ith September, 1821, forpeudix, voL 11, various purposes, therein set I'orth, especially connected with theter- Fart I, No. 7. ritorial rights of his Crown on the north-iveftiern coafit of America, boidcriiig upon the Pacific, and the connnerce and navigation of His Imi)erial Majesty's subjects in the seas adjacent thereto. And Mr. S. Canning writing in February 1822 to Lord Londonderry from Washington, where he was then British Minister, observes: I w^as informed this morning l)y Mr. Adams thnt the Russian Envoy Mr. Stratford has, within the last few days, communicated officially to the Ameri- Canning to the can Government an Ukaf5e of the Emperor of Russia, which has lately ^''*^"''' °i, l"""' appeared in the public prints, appropriating to the sovereignty and arv 19"822.^ See exclusive use of His lm])erial Miijesty the )iorlh-Hest coast of J (nericft Appendix, vol. ii, down to the 51st parallel of latitude, together with a considerable Part I, No. 9. portion of the opposite coasts of Asia, and the neighbouring seas to the extent of 100 Italian miles from any part of the coasts and inter- . vening islands so appropriated. In apprising me of this circumstance, Mr. Adams gave me to understand that it was not the intention 63 of the American Cabinet to admit the claim thus notified on the part of Russia. His objection appears to lie more particularly against the exclusion of foreign vessels to so great a distance from the shore. Again M. de Poletica, writing to Mr. Adams on the 28th See Appendix, February, 1822: ^"^'j"' ^'"^^^ "• The hrst discoveries of the Russians on the north-west continent of America go back to the time of the P]mperor Peter I. They belong to the attempt, made towards the end of the reign of this great Monarch, to find oints of fact; (1) If the country to the south a ud east of Ilchritig See Appendix, Strait, asfarasthe51stdegreeofnortli latitude, is fouudstricfly unoccupied. vol. ii. Part II, (2) If there has been, latterly, a real occupation of this vast terri- '■ "*■ tory? . . . The conclusion wliicli must necessarily r(!snlt from these facts does not appear to establish tlii.t the territory in (|ue8tion had been legitimately incorjiorated with llie Russian l',m])ir('. Tlie extension of territorial riglits t*) Gie distance oi' 101) miles from the coasts n])on two o])p()sito continents, and the prohibiiiou of ap- proaching to the same distance from tliese coasts, or from those of all the intervening ishmds. are iunox atioiis in the biw of nations, and measures iinexamijled. CASE OF GREAT BRITAIN. 51 In the earlier part of the same paper. Mr. Middletou observes : The Ukase even goes to the shutf'nif/ np of a strait which has never been till now shut np, and which is at iiresent the principal object of discoveries, interesting and useful to the sciences. The veryterms of the Ukase bear that this pretension has now been made for the tirst time. "pacific ocean." The same appears from Mr. G. Canning's despatch to Sir ^J^'^jf J'^j.'JJf 'f ; C. Bagot of the 24th of July, 1824 (which has been already ^'o- 44. quoted in any other connection): Your Excellency Avill observe that there are but two points which have struck Count Lieveu as susceptible of any question. The lirst, the assumption of the base of the mountains, instead of the summit as the lino of boundary; the second, the extension of the right of nar'Kjaiion of the racijir to the sea 1>eijond Beliring Straits. 65 As to the second point, it is perhaps, as Count Lieven remarks, new. But it is to be remarked, in return, that the circumstances under which this additional security is i"e(|uired will be new also. By the territorial demarcation agreed to in this " Projet," Russia will become possessed, in acknowledged sovereignty of both sides, of Bchriug Straits. The Power which could think of making the Pacilic a mare clausum may not unnaturally be supposed capable of a disposition to apply the same character to a strait comprehended between two shores of which it becomes the undisputed owner; hut the shutting up of Behring Straits, or the potcer to shut them up hereafter, would l)e a thing not to he tolerated by England. jN^or could ice submit to be excluded, either positivehj or construciiveh/. See ante, p. 32. from a sea in ivliich the skill and science of our seamen has been and is still employed in enterprises interesting not to this countrij alone, hut to the whole civilized world. The protection* given by the Convention to the American coasts of each Power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory; but in some way or other, if not in the form now prescribed, the free navigation of Behring Straits, and of the seas beyond them, must be secured to us. It would have been of little advantage to secure the right to navigate through Behring Strait unless the right to navigate the sea leading to it was secured, which would not have been the case if the Ukase had remained in full force over Behring Sea. The frequent references to Behring Strait and the seas beyond it show that there was no doubt in the minds of the British statesmen of that day that, in obtaining an acknowledgment of freedom of navigation and fishing throughout the Pacific, they had also secured this right as far as Behring Strait. As corroborative ])ro(>f of the usual practice of the British naval authorities, in the nomenclature of these Avaters, reference may be made to the instructions given in 1825 by the Lords Commissioners of the Admiralty, which will be found in the "Narrative of a Voyage to the Pacific and Behring Strait," &c., under command of Captain F. W. *(i. e.) By the extension of territorial jurisdiction to two leagues, as originally proposed in the course of the negotiations between Great Britain and Russia. 52 CASE OF GREAT BRITAIN. Beechey, R. N., in the years 1825-26-27-28, published by authority in Loudon, 1831. 60 These instructions from the Lords Commissioners, which are full and detailed, make reference only to Behring- Strait and the Pacific Ocean, and do not mention the Sea of Kamtchatka or Behring Sea. COMMON MEANING OF "PACIFIC OCEAN" AND "NORTH- WEST COAST." Greeiiiiow's The works of Mr. Robert Greenhow, Translator and works. Librarian to the United States Department of State (well known in connection witli the discussion of the " Oregon question"), afford a detailed and conclusive means of ascertaining the views oflicially held by the United States Government on the meaning of Pacijic Ocean, Behring Sect, Worth-west coast, and the extent to which the claims made by Russia in the Ukase of 1821 were abandoned by the Convention of 1821. "Memoir His- ^ " Mcmoir " was prepared by Mr. Greenho\v, on the liiicai of theoflicial requcst of jMr. L. F. Linn, Chairman of a Select '"I'm'' Tr'A*'"'?^* Committee on the Territory of Oregon, by order of Mr. ca and the adja- John Forsyth, Secretary ol State. It includes a map muLS by''- entitled "the ^^ortli-west Coast of ^orth America and ma ap and a geo-^atljaceut Territories," which extends from below Acapulco these^ooimtrk^, iu Mexico to abovc the mouth of the Kuskoqnim in Behring byKobertrireen-gj^j^ and eiubraccs also the greater part of the Aleutian liow, Translator .' ox and Librarian to chain. the Department of State." Senate, 26tli Cong., Ist Session (174), 1840. The same Memoir, separately printed, apparently iu identical form, and with the same map, and pagination, Wiley and Putnam, New York, 1840. "north-west coast." Touching the signification of the terms North-west coast and Pacific Ocean, and the meaning attached to the relin- •^ quishment of Russian claims by the Convention of 1821, */ the first part of the "Memoir," under the heading "Geo- graphy of the Western Section of Xorth xVmerica," con- tains the following passage: The north-west coast" is the expression usually employed iu the Uuited States at the present time to distiuguiah the vast portiou of the American continent Avhich extends north of the 40th parallel of lati- tude from the Pacific to the great dividiug ridge of the Bockij Moiiii- taiits, together with the contiguous islands in that ocean. The southern part of this territory, which is drained almost entirely Ity the River Columbia, is conmionly called Oregon, I'rom the supposition (no doubt erroneous) that such Avas the name applied to its principal stream by the aborigines. To the more northern parts of the conti nent many appellations, Avhich will hereafter be mentioned, have been assigned i)y navigators and fur traders of various nations. The terri- tory bordering upon the Pacific soul h ward, iromthe 40tli parallel 67 to the extremity of the i)eninsula which stretches iu that direc- tion as far as the Tropic of Cancer, is called Ca/(/"oj'«/r/, a name of uncertain derivation, formerly applied by the Spaniards to tlie whole western section of North America, as that of Florida was * N. B. — The italies in this and subsequent quotations are those employed by Greenhow himself CASE OF GRF:AT BRITAIN. 63 employed by them to designate the regions bordering upon the Alantic. The north-west coast and the west coast of California, itogether form the west coast of North America; as it has been found impossible to separate the history of these two portions, so it will be necessary to include them both in this geographical view (p. 1). Mr. Greeuhow here gives the following note: In the following pages the term coast will be used, sometimes as signifying only the sea-shore, and sometimes as embracing the whole territorj', extending therefrom to the sources of the river; care has been, however, taken to jireveut misapprehension, where the context does not sufficiently indicate the true sense. In order to avoid repe- titions, the north-west coast will be understood to be the north-west coast of North America; all latitudes will be taken as north latitudes, and all lorifjitudes as west from Greenwich, unless otherwise expressed. The "Memoir" continues as follows: " PACIFIC OCEAN." The northern extremity of the west coast of America is Caj^e Prince of Wales, in latitude 65- 52', which is also the Avesternmost spot in the Avhole continent; it is sitiiated on the eastern side of lieerinf/'s tStrait, a channel 51 miles in width, connecting tlie Paciric with the Arctic [or J<>i or North Frozen^ Ocean, on the Avestern side of which strait, o])p()site Cape Prince of Wales, is Kast Cape, the eastern extremity of Asia. Beyond lieering Strait the shores of tlie two continents recede from each other. The vortli const of America has been traced from Cape Prince of Wales north-eastward to CV(j;c' Barrow, &c., pp. 3, 4. The relations of Behring Sea to the Pacific Ocean are defined as follows in the " Memoir": The part of the Pacitic'north of the Aleutian Islands which bathes those shores is commonly distinguished as tlie Sea of Kamtchatka, and sometimes Behring Sea, in honour of the Russian navigator of that name Avho iirst explore other ter- Cape Prince oi \\ ales, the westernmost jioint ot America, is the ritories ou the eastern ]ullar of Behring Strait, a jjassagc onlj- 50 miles in width, sejia- northwest coast rating that continent from Asia, and forming tlio only direct commu- "^ ^,°^^^^ v™-!^ nicatiou between the Pacific and Arctic Oceans. 1345 ^^ °* ' 68 The jiart of the Pjicific called the Sea of Kamtchatka, or Behring Sea, north of the Aleutian chain, likewise contains several islands, &c. (p. 4). Greenliow's "History" was officially i)resented to the "I'l^e Historv Government of Great Britain by the Government of the caiitorma" a"i"d United States in July 1845, in coimection Avith the Oregon «>" other territo- T . -, . '' ' ,. » , n ^T ^ ries outhenorth- discussion autl 111 ])ursuance ot an Act or Congress.* west coast of In this History the Sea of Kamtchatka, or Behring's Sea, JJ'SbertGricn- is again referred to as a part of the Pacific Ocean. how. Translator aud Librarian to the Department * The following is the correspondence accompanvingthe presentation of State of the by the Government of the United States: " United States; author ot a Me- moir Historical ^'Mr. Buchanan to Mr. Pakenham. and Political, on the northwest ,,-r^ _ ,-, coast of N o 1' t li "Department of .state, America, pub- " ]] ashhKjton, July 12, 1S45. lisbed in 1840 by "Sir: In pursuance of an Act of Congress approved on the 20th oifl^^^^^^ l\. ^^^ February, 1845, 1 havethehonour to traiismitto yonherewith, forpres- Fnit'ed States."' entation to the Government of Great Britain, one copy of the ' History INew York, 1845. of Oregon, California, and the other territories ou the North-west Coast 54 CASE OF GREAT BRITAIN. This is a sec- Xii respcct of til 6 Understanding by the iJnited States in the^Sacrit that the claims advanced by the Ukase of 1821 had been is explained that entirely relinquished by the Russian and United its issue was ren- r^ , , "V^ i- i> -i L>i> i j.i j? 11 • • x- i dered necessary 69 Statcs Convention ot 1824, the following is found on c^opfJs'^of ^the a later page of the volume last referred to : beTn oTdered^for Tliis Convention does not appear to oflfer any grounds for dispute as the General Gov- to the construction ol' its stipulations, but is, on the contrary, clear, ennnent. and equally favourable to both nations. The rights of both parties Thesamework. ^^ navigate every part of the Pacilic, and to trade with the natives of London ml""^' imy places on the coasts of that sen, not already occupied, are first Roth ' editions distinctly acknowledged, &c. (p. 342). contain maps, ^., , ,1 un^i- j.-j_' i which anpear to It IS thus clear,*as thc-result of the investigations under- d'tflrent'^'f iom takcu by Grecuhow on behalf of the United States Govern- the maps accom- jjjgi^t S'thoughln: That Behring Sea was a part of the Pacific ; eluding nearly That the uorth-west coast was understood to extend to the same limits . . with them. Behriug Strait. ThatRussia relinquished her asserted claims over "every part of the. Pacific." RUSSIAN INTERPRETATION OF " PACIFIC OCEAN." That the phrase "Pacific Ocean" in the Treaty included Behring Sea is still further shown by the reply of the Eussian Government to Governor Etholin in 1812, when he wished to keep American whalers out of Behring Sea: The claim to a mare clauauvx, if we wished to advance such a claim 1 respect to the northern part of the Pacific Ocean, could not be theo- vol i No 5 retically justified. Under Article I of the Convention of 1824 between ^"■^' ■ • Biissia aiid the United States, tchich is still in force, American citizens have a right to fish in all parts of the Pacific Ocean. But under Article IV of the same Convention, tlie ten years' period mentioned in that Article having expired, we have power to forbid American vessels to visit inland seas, gulfs, harbours, and bays for the purposes of fish- ing and trading with the natives. That is the limit of our rights, and we have no power to prevent American ships from taking whales in the open sea. Again, in the reply of the Eussian Government to rep- Ibid. resentations of the Governor-General of Eastern Siberia in 1846, the following words occur: We have no right to exclude foreign ships from that part of the great ocean which sejiarates tlie eastern shore of Siberia from the north- western shore of America, &c. of America,' by Robert Greenhow, Esq., Translator and Librarian of the Department of State. "I avail, &c. (Signed) " James Buchanan." "Mr. Pakenham 1o the Earl of Aberdeen. "Washington, Jidy 29, 1845. (Received August 16.) "My IjOKD : I have the honour herewith to transmit a copy of a note which I have received from the Secretary of State of the Uniteil States, accompanied by a coi)y of Mr. Greenhow's work on Oregon and Cali- fornia, which, in pursuance of an Act of Congress, is iJicsoutcd to Her Majesty's ( iovernmcut. "Although Mr. Greenhow's book is already in your Lordship's ]ios- sessioii, I iliink it right, in consei(uencc of the official cliaractcr with which it is presented to forward to your Lordship the iucloseil volnuw, being the identical one which has been sent to me by Mr. Buchanan. "I have not failed to acknowledge the receipt of Mr. Bucliauau's note in suitable terms. "I have, Ac. (Signed) "K. Pakknham." Tikhmenielf. See Appendix, ■ CASE OF GREAT BRITAIN. 55 The instructions which were finally issued to the Russian cruisers on the 9th December, 1853, are to the same effect. IXTERPRETATIOX IN THE UNITED STATES. TheLegislatureof theTerritory of Washinoton, in 1866, referred to "fishing banks known to navigators to exist see post, p. 99. along the Pacific coast from the Cortes bank to Behring Strait." 70 It is clear that the Honourable Charles Sumner, when i)rop()sing to the Senate, in the year 1867, the adoi)tion of the Treaty of Cession of Alaska, ilnderstood the words "I^orth Pacific" in the sense in which these words are defined by the authorities just cited. lu his speecli on that occasion, INIr. Sumner thus referred to the waters in question: Seii-otter seems to belong' exclusively to the Nortli Pacific. . . . See Appendix, Its present zone it between the parallels offiO"^ and 65' north latitude ^'<'l- i.No. 6. on the American and Asiatic coasts, so that its rancje is very limited. Mr. H. W. Elliott, who was engaged in the study of the uoport on the seal islands of Alaska for the United States Crovernment ^^^^^^^*^''!^^^gjjf as late as the year 1881, in his official Report on the sealington.'issi! pp. islands of Alaska, remarks concerning the seals : *"' ^" Their range in the North Pacific is virtually conhned to four islands in Berinji Sea, namely, St. Paul and St. (ieorjie, of the tiny Pribilof group, and Bering and Copper of the Commander Islands. Again, he says: In the North Atlantic no suitableterritorj'^for their reception exists, or ever did exist; and really nothing in the Xorth Pacijichejoud what we have designated in Bering Sea. He also describes the rookeries in Behring Sea as "ISTorth Pacific rookeries." And writes further: Ceographically, as well as in regard to natural history, Iiering n^jj^ „ jjq_ Island is one of the most curious islands iu tlie northern jiart of the I'acijic Ocean. The above are, however, only a few from among very many similar instances which might be quoted of the con- tinued usage of the name '^Pacific Ocean" as including Behring Sea. In 188-!, a notice which affected part of Okhotsk and Behring Seas was published by A. K. Pelikan, His Royal and Imperial Majesty's Consul, Yokohama, on the 15th November, 1881, from which the following is an extract: At the request of the local authorities of Behring and other islands, 50th Cong., 2nd the Undersigned hereby notifies that the Russian Imperial Govern- Sess., Sen. Ex. ment publishes for general knowledge the following: ^^^- ^^- ^*'^' P' 71 •'I'ACII'TC.'" '' 1. Without a special permit or licence from the Governor-General of Eastern Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, &c., on the Russian coast or islands in the Okhotsk and Behring Seas, or on the north-eastern coast of Asia, or within their sea boundary line." In the correspondence between the United States and Russia, touching the meaning of this Regulation, the 56 CASE OF GREAT BRITAIN. - notice is alluded to by M. de Giers as '' relative to fishing, liuiiting, and to trade in the Eussian waters of the Pacific," and as relative to fishing and hunting in ^^ our Pacific waters." Ill the same correspondence the Secretary of State of the United States and the United States Minister at St. Petersburg similarly speak of " Pacific Coast fisheries" and "our Pacific Ocean fisheries." Writing on the 8th (20th) May, 1S82, to Mr. Hoffman, the American Minister at St. I'etersbvirg, M. de Giers, said: 50th Cong., 2nd Referring to the exchanue of commnuicatious wliicli Las taken place Sess., S^enate^Ex. jjetweeu us on the subject of a notice published by our Consul at 262. ' Yokohama relative to lishing, hunting, and to trade in the liussian See Appenilix, waters of the racljic, and in reply to the note which you addressed to vol. ii, Part II, me^ dated the 15th (27th) March, I am now in a position to give you the following information : A notice of the tenour of that annexed to your note of the 15th March was, in fact, published by our Consul at Yokohama, and our Cousul-Geueral at San Francisco is also authorized to publish it. This measure refers only to i)rohibited industries and to the trade in contraband; the restrictions which it establishes extend strictly to the territorial waters of Russia only. It was required by the numerous abuses proved in late years, and which fell with all their weight on the population of our sea- shore and of our islands, whose only meansof support is by fishing and hunting. These abuses inflicted also a marked injury on the interests of the Com])any to which the Imx)erial Government has conceded tlie monopoly of lishing and hunt- ing ("exportation"), in islands called the "(Commodore" and the ''Seals. " Beyond this new Regulation, of which the essential point is the obligation imposed upon captains of vessels who desire to hsh and to hunt in the Jiussian waters of the racific to provide themselves at Vladivostock with the permission or licence of the Governor-General of Oriental Siberia, the right of fishing, hunting, and of trade by foreigners in our teiritorial waters is regulated by Article 560, and those following, of vol. xii, Part II, of the Code of Laws. Informing you of the preceding, I have, &c. 72 Bancroft writes, in his "History of Alaska" (pp. 19, 20) : " The Anadir,whi('h emi)ties into the Pacilic." Again: "Thus the Pacific Ocean was first reached by the Eussians on the shore of the Okhotsk Sea." And yet again : " The ascent of the Lena brought the Eussians to Lake Baikal, and showed them another route to the Pacific, through China by way of the Amoor." seTs^^^n^ate'l"'^ ^*^' ^^ 1^87, it is fouud that the American Eepresentative Doc^.''no"'\o6, p. at St. Petersburg informed Mr. Bayard (17th February, ^®L A^„o„,r 1887) that the notice already quoted prohibits fishing, »5tc.. See Appendix, ■' . r, ■ n j. ii mi • i vol. ii. Part II, on "the Eussiaii Pacific coasts." This correspondence No. 18. related to a seizure which had been made in Behring Straits. GEOGRAPHICAL USE OF " PACIFIC OCEAN " AND " NORTH-WEST COAST." In the discussion of the question of jurisdiction between the United States and Great Britain, special reference has been made by the ITnited States to tlie marking of maps, from whi j i i i Malte-Brun, Tom. ii, p. 181, Paris, 1831-37. Ibid., Tom. Le Detroit de Behring. A commencer par ce detroit, le Grand Ocean viii, p. 4. ^^^^ Oct'^an I'acifique) forme la limite orientale de I'Asie. Lang lo is, Behriug (detroit celebre). II joint I'Ocean Glacial Arcticjue au "Diction n aire Grand Oc6an. de Geographic," Tom. i, Paris, 1838. " Penny Cyclo- The Pacific Ocean. Its boundary-line is pretty well determined by pfedia,"vol.xvii, the adjacent continents, which ap])roach one another towards the north, one on, . ^^^ ^^ Behring's Strait which separates them, are only about 36 miles apart. This strait may be considered as closing the Pacific on the north. " Dictionnaire Behring (Detroit de) h, I'extr^mite nord-est de I'Asie, separe ce con- Universel d'His- tinent de I'Amerique et I'Ocean Glacial Arctique de I'Ocean Pacifique. grapMe '■ p^r Behring (Mer de), partie de I'Ocean Pacifique. M. N. Bouillet, Paris, 1842. "Dictionnaire Behring (Detroit de). Canal de I'Ocean .... unissant les Gt'ographiqueetgm^x de I'Ocean Pacifique a celles de I'Ocean Arctique. Statistiqne, par ^ ^ Adrieu Guibert. Tom. i, Paris, 1850. "The Now Pacific Ocean. Between longitude 7(P west an. ited by F. M.ir- Behring's Strait, which separates it from the Arctic Ocean. tin, vol. iii, London, 1866. "Grand Die- Behring (Detroit de). Canal on bras de mer unissant les eaux de rel!'"'par l^La ^'O''^'^*^ Glacial Arcti, Chistiakof wrote to the Directors of the Com- ^^e^tlf/jf/p^XZc pany asking that an experienced whalingmaster should be and Behriug sent out. In July of this year Her iMajesty's ship "Bios- ^83i'\ohTi;^''p: som," under Captain Beechey, sailed through Behriug Sea 335.' into the Arctic Ocean. 62 CASE OF GREAT BRITAIN. Alaska, p. 546. 79 111 1827, Lutke, seut by the Eussian Government, arrived at Sitka, and thereafter made explorations in the Aleutian Ishiiids and in Behring- Sea. North-west Two vessels Only of the trading fleet on the north-west Coast, vol. 1, 1.. gQj^g^ ^j.g j,^ ^i^jg y^^^. known byname. Alaska, p. 54C. jj^ 1828, two vBssels belonging to Liitke's expedition carried on surveys in Behring Sea. The trading vessel " Eliza" was at Sitka in this year. 6r"^to"Amo?rH' ^" *^^^ ^^^^^^ ^^^^' ^^^"' ^^^ ^^^'^ ^^^ " Cliincliella," a United ii.,Ex. Doc.; 4otii States brig, Thomas Meek, master, was trading between K^iwf ■' Sitka and China. Alaska, p. 565. Jii 1829, a Eussiaii vcsscl was sent from Sitka to Chile to trade. Some explorations were also made by the Eus- sians in the inland country. ibifi.,p.547. In 1830, explorations were made in Behring Sea by Etholen. Wrangell relieved Chistiakof in command. The co^st,^voL^i,*'p*^i^™6S of four or live foreign vessels trading on the north- 341. ' west coast in this and the following year are recorded. ^Alaska, pp. 518- j^ -^332 ^y ]S3;3^ Tebciikof established a post near the mouth of the Yukon, and explorations were conducted inland. Ibid., p. 555. jj^ jg33^ ^^^ Hudson's Bay Company sent the British ves- sel "Dryad" to form an Establishment at the mouth of the Stikine, but Wrangell, having heard of the enterprise, occupied the place in advance, and turned the vessel back. Damages to the amount of £20,000 were claimed through See post, p. 83. ^^i^ British Government from Eussia. This will be referred to later. Ibid., p. 583. ^ United States whaling master, under a five years' Con- tract with the Eussian Company, arrived at Sitka, but achieved little. CMs^t^ Vol ^i'' V ^^ 1834, the name of but one of the foreign vessels trading 341. ' ' on the north-west coast is recorded. ^^ibid., pp. 341, j^ ^^^Q^ ^^g u Eii^a" was again at Sitka, and three foreign trading vessels are recorded to have visited the Alaskan coast. CASE OF THE "LORIOT." In the same year the United States brig "Loriot" sailed from the Sandwich Islands for the north west coast 80 of America for the purpose of procuring provisions, and also Indians to hunt for sea-otters on the coast. When in the Harbour of Tuckessan, latitude 51° 55' north, and longitude 132° 30' west, a Eussian armed brig ordered the "Loriot" to leave. This action was based on the expiration of the period named in the IVth Article of the Treaty, whereby, for ten years only, liberty to touch and trade at Eussian Establishments on the coast was granted. 50th Cong., 2iia The United States ])rotested against the interference Dw^No^'ioe^p! ^'^^^ *^'^ "Loriot," characterizing it as an "outrage," and 233. ' the following is an extract from instructions which were voh*'*'ii^T?'^ii; st-i't by the United States Secretary of State to :Mr. Dallas, ^"o-c. the Minister at St. Petersburg, under date 4th May, 1837: On the other hand, should there prove to l)e no Russian Establish- ments at the ])laces mentioned, this outrage on the " Loriot " assumes a still graver aspect. It is a violation of the right of the citizens of the United States, immcuiorially exercised, and secured to them as well CASE OF GREAT BEITAIN. 63 by the law of nations as by the stipulations of the 1st Article of the Convention of 1824, to fish'iu those seas, and to resort to the coast, for the prosecution of their lawful commerce upon points not already occupied. As such, it is the President's wish that you should remon- strate, in an earnest but respectful tone, against this groundless assumption of the Russian Fur Company, and claim from His Imperial Majesty's Government for the owners of the brig "Loriot," for their losses and for the damages they have sustained, such indemnitication as may, on an investigation of the case, be found to be justly due to theiii. Mr. Dallas subsequently wrote that he was led to believe g5ot|»^o°|- 2nd that Eussian Establishments had been made at the places ex. doc. No. loe, mentioned. Nevertheless, the United States contended P|g^-^pj,gmjjx_ that at the expiration of the IVth Article, the law of vol. ii. Part ii! nations practically gave United States ships the privileges ■''^fbM., p. -'36. therein mentioned. vo!®*"]!^ p'arTHi' Mr. Dallas (16th August, 1837) wrote to the Secretary of xo.'s."' State: The 1st Article asserts for both countries general and permanent g^^ Appendix, rights of navigation, fishing, and trading with the natives, tipon vol. ii, Part II, points not occupied by either, north or south of the agreed parallel of No. 7. latitude. Mr. Forsyth, Secretary of State for the United States, |*^i*^iP-,^^j|^-i^, writing to Mr. Dallas on the 3rd November, 1837, and voi ii, Part li,' 81 referring to the 1st Article of the Convention of^"'^' April, 1824, between the United States and Kussia, said: The 1st Article of that instrument is only declaratory of a right which the parties to it possessed under the law of nations without conventional stipulations, to wit, to navigate and fish in the ocean upon an unoccupied coast, and to resort to such coast for the purpose of trading with the natives. The United States, in agreeing not to form new establishments to the north of latitude 54° 40' N., made no acknowledgment of the right of Russia to the territory above that line. And again : It can not follow that the United States ever intended to abandon the just right acknowledged by the 1st Article to belong to them under the law of nations — to frequent any part of the unoccupied coast of North America for the purpose of fishing or trading with the natives. All that the Convention admits is an inference of the right of Russia to acquire possession by settlement iu)rth of 54° 40' N. Until that actual possession is taken, the Ist Article of the Convention acknowl- edges the right of the United States to fish and trade as prior to its negotiation. In his desi)atch of the 23rd February, 1838, Count Nes- sc^s'^s^.N^eZteix^ selrode, the Russian Foreign Minister, wrote to Mr. Dallas: doc.'no. loe, p! ' 238. SeeAppen- It is true, indeed, the Ist Article of the Con\-eutiou of 1824, to which dix, vol. ii, Part the proprietors of the "Loriot" appeal, secures to the citizens of the ^^' •^°' ^^• United States entire liberty of navigation in the Pacific Ocean, as well as the right of landing without disturliance upon all points on the north-west coast of America, not already occupied, and to trade with the natives. Again, Mr. Dallas, in a despatch to Count Nesselrode, dated the 5th (17th) March, 1838, interpreted Article I of the Convention as being applicable to any part of the Pacific Ocean. He wrote: . . . The right of the citizens of the United states to navigate Q^'^X^'e^H' the Pacific Ocean, and their right to trade with the aboriginal natives vol.'^fi, Par? n' of the north-west coast of America, without the jurisdiction of other No. 11. 64 CASE OF GREAT BRITAIN. nations, are rights which con8titnteiid.,p.583. were in Behring Sea. He asks the Russian Government to send cruisers to pre- serve this sea as a mare clamum. 84 His efforts were, however, unsuccessful, the Min- ister for Foreign Affairs replying that the Treaty between Russia and the United States gave to American citizens the right to engage in fishing over the whole extent of the Pacific Ocean. In the same year, inland explorations by Zagoskin, which ^.Alaska, pp.553, continued till 1844, began. Sir George Simpson, Governor ma., pp., 553- of the Hudson's Bay Company, reached the Stikine post^^*^" just in time to prevent an Indian uprising. He also visited the Russian Establishment at Sitka and completed an arrangement between the Companies to interdict trade in spirits on the coast. About this time the Russian- American Company became alarmed at the danger to their fur trade. Every effort was, therefore, put forward by the Company and the Gov- ernors to induce the Foreign Office of the Russian Gov- ernment to drive off these whalers from the coasts, and by excluding them for a great distance from shore, prevent trespasses on shore and the traffic in furs. In 1843, explorations were carried out by the Russians iW'^- 1'- °'^^- on the Sustchina and Copper Rivers. The whalers, from 1843 to 1850, landed on the Aleutian and ggJI''*^- I'l'- ^^3, Kurile Islands, committing depredations. United States captains openly carried on a traific in furs with the natives. Tikhmenieff writes : From 1843 to 1850 there were constant comiilaints by the Compauy |''^^'^°'^fix of the increasing boldness of the whalers. vol.T No? 5?"^ ' S. Ex. 177, pt. 4 5 66 CASK OF GREAT liRrTAIN. Ill 1840 the Governor-General of Eastern Siberia asked that foreign whalers should not be allowed to come within 40 Italian miles of the Eussiaii shores. Tikhmenietf thus describes the result of these represen- tations: The exact words of the letter from the Foreisn Office are as follows: " The fixing of a line at sea within which foreign vessels should be prohibited from whaling off onr shores wonld not be in accordance with the spirit of the Convention of 1824, and wonld he contrary to the provisions of onr Couveutiou of 1825 with Great Britain. More- over the adoption of such a measure, withont preliminary negotiation and arrangement with the other Powers, might lead to protests, since no clear and uniform agreement has yet been arrived at among n'ations in regard to the limit of jurisdiction at sea." 85 In 1847 a re])resentation from Governor Tebeukof in regard to new aggressions on the part of the Avhalers gave rise to fnr- ther correspondence. Some time before, in June 1846, the Governor- General of Eastern Siberia had expressed his opinion that, in order to limit the whaling operations of foreigners, it Avonld be fair to for- bid them to come within 40 Italian miles of onr shores, the ])orts of Petropanlovsk and Okhotsk to be excluded, and a payment of 100 silver roubles to be demanded at those ports from everj^ vessel for the right of whaling. He reccnnmended that a ship of war should be employed as a crnizer to watch foreign vessels. The Foreign Oftice expressly stated as follows, in reply : " AVe have no right to exclude foreign ships from that i>art of the Great Ocean which separates the eastern shore of Siberia I'rom the north-western shore of America, or to make the payment of a sum of money a condition to allowing them to take whales." The Foreign Office were of opinion that the fixing of the line referred to above would reopen the discussions formerly carried on between England and France on the subject. The limit of a cannon shot, that is about 3 Italian miles, would alone give rise to no dispute. The Foreign Office observed, in conclusion, that no Power had yet suc- ceeded in limiting the freedom of iishiug in open seas, and that such pretensions hail never been recognised by the >ther Powers. They were confident that the fitting out of colonial crnizers would put an end to all difficulties; there had not yet been time to test the efficacy of this measure. Tikiniieineff.^ j^ 1847, traffic ill furscal skins was carried on by a United vol. i, No. 5. ' ' States whaler at Behring Island. Ill 1848, foreign whaling vessels entered the Arctic Ocean by way of Behring Straits for the first time. Alaska, p. 584. j^ 1849, the wluxliug fleet in the Arctic and northern part of the North Pacific numbered 1*99 vessels. Two-thirds of these are said to have been United States vessels, but others were French and English, the latter chiefly from Australasia. A Eussiaii Whaling Company for the North Pacific was formed at Abo, in Emlaud, with s])ecial iirivi- leges. This Ooini)any sent out six vessels in all. ibid.,1.. r,7i;. in 1850, the British vessels "Herald," "Plover," and "Investigator," all despatched in search of Sir John Frank- lin's expedition, met in Kotzebue Sound, after passing through Behring Strait. Ibid., p. 584. Ill tlie same year an armed Russian corvette was ordered to cruize in the Pacific, and in this year it is esti- 80 mated that oOO, and in later years as many as 500 foreign whalers visited the Arctic and neighbouring waters. Alaska, p. 585. Tebeiikof's administration came to an end in this year. ibid.,p.572. jii 1851, Nulato, a fort on the Yukon some way inland, was surprised by Indians and the inmates butchered, CASE OF GREAT BRITAIN, 67 including Lieutenant Barnard, an English officer of Her Majesty's sliip " Enterprise," one of the ships engaged in ,."^i'9J"'^1''P8b,; the expedition in search of Sir John Franklin. The vol xix*p°32r*' "Enterprise" passed Behring Strait on the 6th May, 1851. The United States wlialing fleet is said to have been as numerous as in 1849. The interval between the close of Tebenkof s adminis- Alaska, p. 586. tration and the beginning of that of Voievodsky was filled by the temporary ai)pointment of Kosenburg and Rudakof. In 1852, buildings at the Hot Springs, near Sitka, were n>i(i.,p.574. destroyed by the Indians. The value of catch of the whaling fleet in the North H'i'i. 1-669. Pacific in this year is estimated at 14,000,000 dollars. After 1852 the whaling industry gradually decreased. In 1853, war impending between England and Eussia, ibid., p. 570. the Hudson's Bay and Russian-American Companies influ- enced their respective Governments to prohibit hostilities on the north-west coast of America. In the same year tlie Russian-American Company again Tikbmenieff. specially requested the Government to prohibit whalers voi.l^-o.'s^" ^^ from entering Okhotsk Sea, but without success. Instruc- tions were, however, issued to Russian cruizers to prevent wlialers from entering bays or gulfs, or from coming within 3 Italian miles of the shores. Tikhmenieff gives the following details: Some time before the Companv had Avritten to the For- eign Office (22nd March, 1853): ^ If it IS found impracticable entirely to prohibit for a time fishing by ibid, foreigners in the Sea of Okhotsk, as an inland sea, would it not, at any rate, lie possible officially to prohibit whalers from coming close to our shores and whaling in the bays and among the islands, detaching one of the cruizers of the Kamtchatka llotilla for this service? The instructions to cruizers Avere approved on the 9th December, 1853. The cruizers were to see that no 87 whalers entered the bays or gulfs, or came within 3 Italian miles of the shores of Russian America (north of 54° 41'), the Peninsula of Kamtchatka, Siberia, the Kadjak Archipelago, the Aleutian Islands, the Pribilof and Commander Islands, and the others in Behring Sea, the Kuriles, Sakhalin, the Shantar Islands, and the others in the Sea of Okhotsk to the north of 40° 30' north. The cruizers were instructed constantly to keep in view that — Our Government not only does not wish to ])rohibitor put obstacles in the way of whaling l)y foreigners in the northern part of the Pacific Ocean, but allows foreigners to take whales in the Sea of Okhotsk, which, as stated in these instructions, is, from its geographical position, a liussian inland sea. (These words are in italics in the original.) In 1854, 525 foreign whalers were in Behring Sea and Alaska, p. 58*. its vicinity. In the same year Voievodsky was elected ibid., p. 585. Governor for the Company. In 1855, the Abo Whaling Company went into liquidation, iw^-. i'- ^ss. In 1856, 36G foreign whalers were reported as in Behring ibid., p. 584. Sea and vicinity. Bancroft reports that in the year 1857 — Of the 600 or 700 United States whalers thiit were fitted out in 1857, Ibid., p. 66a. at least one-half, including most of the larger vessels, were engaged in the North Pacific, . . . including, of course, Behring Sea. 68 CASE OF GREAT BKITAIN. g 50th Cong., |Ki Captain Manuel Enos, of the United States barque Doc.\"o.''ao6, pi "Java," stated in 18G7 that he had whaled unmolested in tfiav ^February ^^® bays of Okhotsk Sea for seventeen years previously. 24, 18G8. See Appendix, vol. ii. Part 11, No. 12. See p. Ui of Case. Alaska, p. 592. j^ 1859^ f\^Q cessiou of Alaska to the United States began to be discussed privately. ^^ibid., pp. 578, jj^ 18G0, the Kussiau-Auierican Company applied for a new Charter for twenty years, to date from the 1st Janu- ary, 1862, and Ifeports as to the condition of the Company were called for by the Government. Ibid., p. 580. The Russian x)opulation of the American Colonies at this date, apparently including native wives, numbered 784: Creoles, 1,700; native population estimated at over 7,000. Alaska, p. G69. 88 lu 1862, the value of the catch of the Is^orth Pacific whaling fleet was estimated at 800,000 dollars. tH es^o f ""t h'e ^^ l^^^^' ^hc United States brig " Timandra" was engaged TJnited States, in the cod fishery off Saghalien Island, Okhotsk Sea. In sec. V, vol. 1, p. g^ccegt^iiuo- years a number of vessels resorted to this sea for the cod fishery. Alaska, p. 579. In 1864, Maksutof took temporary charge for the Russian Government of the Company's affairs. ^^^^- In 1865, negotiations between the Russian Company and the Government continued, but terms such as the Com- pany would accept could not be arrived at. rishery Indus- In the Spring of this year, the "North Pacific cod-fish TJnited *" states! fleet" was Organized. It comprised seven vessels, all of sec. V, vol. i, p. wiiicii are believed to have fished in Okhotsk Sea. Alaska, p. 580. In 1866, the Russian Government still contemplated renewing the Company's Charter on certain terms. A Californian Company entered into treaty for a lease of the "coast strip" of Alaska, then held by the Hudson's Bay Company. trT^^^'J/^the Eighteen vessels were engaged in the Okhotsk Sea cod United "states, fishery. The "Porpoise" initiated the fishery in the Shu- 210." ^' ^°^" *' ^" Miagan Group, Alaska, finding there " safe harbours, fuel, water, and other facilities for prosecuting this business." Several British Columbian schooners also fished in Alaskan waters. In 1867, Alaska was sold by Russia to the United States for 7,200,000 dollars. Ibid., p. 210. I^ineteen United States vessels fished for cod in Okhotsk Sea or in Alaskan waters, the Shumagan fleet consisting of three vessels. The total catch amounted to nearly 1,000,000 fish. "Philadelphia In 1867, bi'fore the cession of Alaska, the whaling interest ?az'ette^"^F'i^i^ of the United States in these seas are thus referred to by a lay, April 12, Philadelphia pai)er: 867. Ex. Doc. ^ ^ ^ dii't'i^r'f'r'^^^^-fq' Our whaling interests are now heaviest in the seas adjacent to Rus- Cong., p. . giau-America, both above and below Behring Strait. Aia.ska, p. 669. Tlic value of tlic catcli of the Korth Pacific whaling fleet was estimated at 3,200,000 dollars. Ibid., p. 593 In 1868, the lease of the " coast strip " of Alaska to the Hudson's Bay Company by the Russian- American Company expired. CASE OF GREAT BRITAIN. 69 89 STATISTICS OF UNITED STATES WHALING INDUSTRY. NORTH PACIFIC GKOUNDS, INCLUDING OKHOTSK AND BEHRING SEAS AND ARCTIC OCEAN.) The growth and decline of the whaling industry during ^'^'l^^^yi^^i^"^^ the years discussed in this chapter may be conveniently united states,"' illustrated by the following table, which shows the number |^5' '^°'' "• pp- of United States vessels in tlie North Pacific whaling fleet from 1841 to 1867. It is taken from " The Fishery Indus- tries of the United States," 1887, section 5, vol. ii, pp. 84-85. (This list does not include whalers of other nationalities.) Year. NuiDber of ves- sels. Tear. Number of ves- sels. 1841 20 29 108 170 263 292 177 159 155 144 138 278 238 232 1855 217 1842 1856 178 1843 1857 143 1844 1858 196 1845 18.59 176 1846 .. ...'... 1800 121 1847 1861 76 1848 1862 32 1849 1863 42 1850 1864 68 1851 1865 59 1852 1866 95 1853 1867 90 1854 WALRUS HUNTING. The whaling vessels frequenting Behring Sea and the ibid., p.su. Arctic Ocean, from the first, engaged to a certain extent in walrus hunting, and about 18G0 sucli hunting began to be an important secondary object with the whalers. In sub- sequent years many thousand barrels of walrus oil and great quantities of skins and ivory were secured. 90 The facts stated in this chapter establish — That from the year 1821 to the year 1807 the rights of navigation and fishing in the waters of Behring Sea were freely exercised by the vessels of the United States, Great Britain, and other foreign nations, and were recog- nized as existing by Eussia; That the waters of Behring Sea were treated by Eussia as being subject to the provisions of the Treaties of 1824 and 1825. 70 CASE OF GREAT BRITAIN. 91 CHAPTER V. The Cession of 1867 and ivhat passed hy it. The fourtli question or point in Article VI of the Treaty is as follows : Did not all the rights of Russia as to the jurisdiction and as to the seal fisheries in Behring Sea east of the water boundary, in the Treaty between the United States and Russia of the 30th March, 1S67, pass unimpaired to the United States under that Treaty? This question may conveniently be treated under the following heads, as proposed on p. 10: (E). What rights passed to the United States under the Treaty of the 30th March, 1807. (F). The Action of the United States and Russia from 1807 to 1880. (G). The contentions of the United States since the year 1880. Ko.S. Head (E). — What rights passed to the United States under the Treaty of March 30, 1867 f TEXT OF TREATY OF CESSION, 1807. The following is the text of the Treaty of Cession of Alaska as signed: TJnlted States Sa Majesty I'Enipereiir cle Toutos les Rnssies et les I5tats-Uni3 Statutes at Large, d'Am^riqiie, dosirant rafferuiir, s'il est possible, la bonne intelligence S&gllsif version^ 1"^ existe entre enx, out nonime^, a cet effet, pour leurs ple'uipoten- ••e AppeDtlixi tiaires, savoir: Tol. il, Part III, Sa Majest6 I'Empereiir cle Tontes les Russies, le Conseiller Priv6 fidouard de Stoeclcl, son Envoy^ Extraordinaire et Ministie Plenipo- tentiaire aux I5tats-Uuis; et Le President des fitats-Unis, le Sieur William H. Seward, Secre'taire d'fitat; Lesquels, apr^s avoir 6xchag^ ienrs ploins pouvoirs, trouv^s en bonne et due forme, ont arrete et signe lea articles suivauts: 92 Article I. Sa Majesty I'Empereur de Toutes les Russies s'engage, par cette Con- vention, h c^der aux Etats-Unis, iramf'diatement aprcs I'^xchange des ratifications, tout le territoire avec droit de souverainet6 actueilenient poss^d6 par Sa Majesty sur le Continent d'Amerique ainsi qne les lies contigiies, ledit territoire ^tant compris dans lesliinitesgdograplii(ine3 ci-dessous indiquces, savoir: la limite orientale est la liguo do demar- cation entre les possessions Russes et Brit;vnniqnes dans I'Amdiique du Nord, ainsi qu'ello est 6tablie par la Convention conclue entre la Russie et la Grande-Bretague, le 16 (28) Fevrier, 1825, et definio dans les termos suivants des Articles III et IV de la dito Convention : "A partir du point le plus mdridioual de I'lle dite Prince of Wales, lequel point so trouve sous le parallele du 54° 40' de latitude nord, et entre le ISl'"" et le 133"'^' dogre de longitude ouest (uK^ridien de Green- "wich), la dite ligne remontera an nord le long de la passe dito Port- land Cliannel, .jusqu'au point de la terre ferine, oii elle atteint le 56'"' degrdde latitude nord ; deccdernicr ])()int la ligne dedc^marcationsuivra la Crete des montagues situtcs pnrallrUsment :\ la cote jnsqu'iui point d'iutersection du 111""' degre de longitude ouest (uieme m(5ridieu); et CASE OF GREAT BRITAIN. 71 finalement, dii (lit point d'intersectiou la memo ligue mt'ridienue dii 14I'"<= ilegre formera daus sou i)rolougement jiisqu'a la Mer Cilaciale la limite eutre les possessions Russes et Britauniqnes sur le Coutiueut de rAmeri(|Ti(3 Nord-Ouest. "II est eutendu, par rapport a la ligue de d<^marcatiou determiuee daus I'Article prec^deut : " 1'^. Que I'lle dite Prince of Wales appartieudra toute entiere a la Rnssie: (mais des co Jour eu vertu de cette cessiou aux fitats-Cuis). "2'^. Que partout oii la crete des moutagues qui s'eteudeut dans nuo direction parallMe a la cute, depuis le 56""= degre de latitude uord au point d'intersectiou du 141""= degre do longitude ouest se trouverait a la distance do plus de 10 lieues marines de Toccau, la limite eutre les possessions Britanuiques et la lisiere de c6te~mentionnee ci-dessus conime devant apparteuir a la Rnssie (c'est-a-tljre la limite des pos- sessions cedees i)ar cette Convention): 'sera tbrmee par une ligue parallele anx sinuosites de la cote et qui no pourra jamais en ( tre eloiguee que de 10 lieues marines.'" La limite occideutale den territoires cedes passe par uu point au Detroit (le Bebriiig sous le parallele du soixaute-einquieme degn^. trento minutes do latitude Nord a sou intersection par le uu'ridien r^ni separo a distance egale les lies Krusenstern on Ignalook et I'llc Rat- manotF ou Noouarbook, et remontc eu ligno directe, sans limitation, vers lo uord, jnsqu';\ ce qu'elle se perdo dans la mer Glaciale. Com- mengant au uu-me point de do^part, cette limite occideutale suit do 1;\ un cours i)res(iuo sud-ouest, a traVers le Dtitroit de Beliring et 93 la Mer do Bebriug, de mauiere a passer a distance ^gale eutre lo point nord-ouest de I'lle 8aint-Lanrent et lo point sud-cst du cap Cbonlvotski jus<]u'au m^ridieu cent soixante-douzii'mede longitude ouest; do ce point, a ])artir de I'iutersectiou de co unjrid ion, cette limite suit une direction siid-onest de mauicro a passer a distance 6gale eutre I'lle d'Attou et I'ilo Copper du groupe d'ilots Kormaudorski dansroct'au Pacilicpio Septentricmal, jus(|u'au meridien de cent qnatre- vingt-treize degres de longitude ouest, de mauiere il cnclaver, dans le territoire cede, toutes les lies AbM)utes situees k Test de ce nujridieu. Articlk II Dans le territoire cinle par Tarticlo ])r('c<5dent i\ la Souverainet(^ des fitats-Unis, sout compris le droit de proprie^to sur tons les terrains et places publics, terres inoccupees, toutes les constructions publiques, fortiiicatioiis, caserues, et autres (5dilices qui no sent pas propri('t6 priv('e individuelle. II est, toutefois, enteudu et conveuu ([ue les eglises, construites par lo gouvernement russe sur le territoire ce(l«5, resteront la iiropri(?t(5 des membres del'figlise Grecque Orieutale r<5si- (Uint dans te territoire et appartenaut a ce culte. Tons les arcbives, papiers, et documents du gouvernement, ayaut trait au susdit terri- toire, et qui y sout maintenant dtjposos, seront places eutre les mains de I'agent des Etats-Unis; mais les fitats-Uuis fouruiront toujonrs, qiuaud il y aura lieu, des copies Itjgalisees de ces documents au gouv- ernement russe, aux officiers ou sujets russes C[ui pourrout en faire la demande. Article III. 11 est r(^serv6 aux babitauts du territoire ct^di'' le cboix de garder leur nationalite et de reutrer eu Rnssie daus I'espace de trois aus; nuiis s'ils pr^ft^ront roster daus le territoire c<;d(5, ils seront admis, li ]'excepli(m toutefois des tribus sauvages, a jouir de tons les droits, avautages, et immunitt^s des citoyens des fitats-Uuis, et ils seront mainteuus et prot(^ge'8 dans le pleiu exercico de leur libert<^, droit de pr(>priet(^, et religion. Les tribus sauvages seront assujetties aux lois et reglements (|ue les Etats-Uuis pourrout adopter, de temps en temps, a I'egard des tribus aborigenes do co pays. Article IV. Sa Majesty FEmpereur de Toutes les Russies uommera, aussitot que possible, uu agent ou aux agents cbarge's de remmettre, formellement, a I'agent ou des agents uommt?s par les Etats-Uuis, le territoire, la souveraiuet(^, les propri(5tes, dependances, et appartenauces aiusi 72 CASE OF GREAT BRITAIN. eddies et de dresser tout autre acte qui sera n(^cessaire a raccomplisse- ment de cette trausacfion. Mais la cession, avec le droit de possession imm(^diate, doit toutefois otre cousid^rc'e compl(-te et absolue a I'ecliange des ratitications, sans attcudro la remise formelle. 94 Aktici.k V. Imm^diatement aprrs r<^clian.ire des ratifications de cette con- vention, les fortifications et les postes militaires qui se trouverontsnr le Territoire cede serout remis it ra().MIN1<)X OVER WATERS. It will be observed that in nonoof these Articles is there a reference to any extraordinary or special dominion over the waters of the JJehring Sea, nor, indeed, over any other portion of the North Tacitic Ocean. Even in the passage last cited the word "dominion" appears to have no equiva- lent in the original Erench version. Neither is there a sug- gestion that any S))ecial maritime right existed which could be conveyed. The language of tiie Convention is, on the CASE OF GREAT BRITAIN. 73 contrary, most carefully conflued to territory with tlie right of sovereisuty actually possessed by Kussia at the date of the cession . Ill Article I the limits of a portion of the I>ehriug Sea are defined in order to show the boundaries within which the territory ceded " sur le Continent d'Amerique ainsi que les lies contigucs" is contained. In Article VI, Russia again makes it emphatic that she is conveying "les droits, franchises, et privileges apparte- iiant actuellement a la Kussie dans le dit Territoire et ses dependances." The tinal clause of Article I distinctly negatives any implication of an atteni])t to convey any portion of the high seas — for the said western line is drawn, not so as to embrace any i)art of the high seas, but, as expressed in the ai)t language of the Treaty — " ^/e manicre a enclaver, dans le dit territoire cede, toutes les lies Aleoutes situees a Vest de ce meridien.^^ Had the intention been to convey the waters of the Beh- ring Sea eastward of the western limit, the words "ainsi que les iles contigiies"' would not have been used, but words would have been chosen to indicate the area of the open sea conveyed, and it would have been unnecessary to specifically mention the islands. CHARACTER OF THE WESTERN GEOGRAPHICAL LIMIT, AND REASON FOR ITS ADOPTION. ALEUTIAN ISLANDS, ETC. There was good reason i\n- a line of demarcation of the character specified. The islands in the Aleutian chain and in Behring Sea Avere not well defined geographically, and could therefore not be used for the accurate delimitation of territory ceded. In fact, even the term Aleutian Archipelago was indefi- nite in its signification, often including islands which were on the Asiatic side of Behring Sea, and far from the Island of Attn, the westernmost island of the Aleutian group intended to be ceded. 90 Greenhow, for instance, writes: The AleuHafi ^>TA?/if/rt//o is considered by tbc Russians as eonsisting of thrie firotips of islands. Nearest Aliaska are tLe Fox Jfslatuls, of wbicb tUe largest are l')ihnak, Uiialashka, and rmnak; next to tbese are tbe Jiuh-eanowski/ Islands, among which are Afscha, To uag a, find ^ . Kanaka, with many smaller islands, sometimes called the Rat Islands ; toikalam^Polit- the most western group is that first called the Ahmiian or -'//eoM/sA// ical.ofthe.North- Jslaiids, which are Attn, Alediioi (or Copper Island), and Beer'nuj's Island west Coast of (y, r,\ Nortli America, ^^ '' &c., bv Kobert In the "History of Oregon and California," &c., by the ^^;«g^^^„^.«^;;^^ same author, the Commander Islands (Copi)er and Behring Librarian to the Islands) are again classed among the Aleutian Islands, statey""" Senate! which are said to be included under two governmental dis- seth Cong., ist tricts by the Russians, the Commander Islands belonging ^^^^ ' to the western of these districts (p. 38). Greenhow also states that the name "Aleutian Islands" was first applied to Copper and Behring Islands. Indeed, in many mai)s of various dates, the title Aleu- tian Islands is so placed as im})licc- dition to the North Pacific in 1855. Positions by dirt'ereiit authorities are given in some instances to show these discrepancies. The com- parison of latitudes and longitudes at N'ictoria, ]''ort Siin]>s()n, Sitka, Chilkaht, Kadiak, and Unalaska, between English and liussian and the United States coast survey determinations, exhibit larger errors than might have been expected. The uncertainties that exist in the geographical position of many islands, headlands, straits, and reefs, the great dissimilarity of out- line and extent of recent examinations of some of the \Vest«;rn Aleu- tians, the want of ridiable data (concerning the tides, currents, and winds, the almost total want of detailed descriptions of headlands, reefs, bays, straits, Ac, and \ho, circumstantial testimony of the CASE OF GREAT HRITAIM. 75 Aleutian fisliermen concerning islands visited by theni and not laid down upon the charts, point to the great ne<;essity for an exhaustive geograpliical reconnaissance of the coast, as was done for the coast of the United States between Mexico and British Columbia. Even the latest United States chart of what are now known as the Aleutian Islands (No. (58, published in 1891) is based chiefly on information obtained by the ''North Pacific Surveying Expedition" under Rogers, which was carried out in the schooner "Fenimore Cooper" in 1855. On sheet 1 of this chart (einl)racing the western part 98 of the Aleutian Islands) such notes as the following are found : The latest Russian charts place Bouldyr Island 10 miles due south of tlie position given here, whicli is from a determination Ijy Sumner's method. The low islands between Goroloi and lonlakh, excepting the west point of Unalga, are from Russian authorities, wliich, however, are widely discrepant. Similarly, in the corresponding Britisli admiralty chart (No. 1501) published in 1800 we find the remaik: Mostly from old and imperfect British, Russian, and Anuirican surveys. On the chart of Behring Sea, i)nl)lishe(l by the United States in 1891, a small islet is shown north of St. Mattliew Island, near the centre of the sea, which does uot api)ear on the special map of St. Matthew Island published in 1875, and which could not be found in 1891. LIMIT CONTINUKD TIIHOIOH AUCTIC OCEAN. That the line drawn through Bcliring Sea between Rus- sian and United States possessions was thus intended and regarded merely as a ready and definite mode of indicating which of the numerous islands in a partially explored sea should belong to either Power, is fnrther shown by a con- sideration of the northern portion of the same line, which is the i)ortion first defined in the Treaty. From the initial point in Behring Strait, which is carefully described, the "limite occidentale" of territories ceded to the United States "remonte en ligne directe, sans linntation, vers le nord,jusqu'a ce qu'elle se perd dans la ]\rer Glaciale,"' or in the United States official translation "proceeds tlue north without limitation into the same Frozen Ocean. The "geographical limit'' in this the northern part of its length runs through an ocean which had at no time been surrounded by Russian territory, and which had never been claimed as reserved by Russia in any way; to which, on the contrary, special stipulations for access had been made in connection with the Anglo-Russian Convention of 181*5, and which since 1848 or 1849 had been freipiented by whalers and walrus-hunters of various nations, while no single fur-seal has ever been found within it. It is there- fore very clear that the geographical limit thus pro- 99 jected towards the north could have been intended only to define the ownership of such islands, if any, as might subsecjuently be discovered in this imperfectly explored ocean; and when, therefore, the Treaty proceeded 76 CASE OF GREAT BRITAIN. to define the course of '■-the same western UmW^ {cette liniite occidentale) from the initial point in Behring Strait to the southward and westward across Beliring Sea, it is obvious that it continued to possess the same character and vahie. DEBATES IN CONGRESS ON THE CESSION OF ALASKA, 18(37, 18(58. Neitlier tlie debates in Congress — whicli preceded and resulted in the cession and its ratification by the United States — nor the Treaty by which it was carried into effect, nor the subsequent legislation by the United States, indi- cate the transfer or a(;quisition of any exclusive or extraor- dinary rights in Beliring Sea. On the contrary, they show that no such idea was then conceived. MEMORIAL OF I.EGISI.ATUKE OF TKKHITOKY OF WASHINGTON. In answer to a Eesolution of the House of Eepreseuta- tives of the 19th December, 1867, calling for all corre- spondence and information in the possession of the Execu- tive in regard to the country proposed to be ceded by the Treaty, the Memorial of the Legislature of Washington Territory (which was made the occasion for the negotiation), together with Mr. Sumner's speech in the Senate, were among other documents transmitted. This Memorial shows that United States citizens were already engaged in fishing from Cortex Banks to Beliring Strait, and that they had never been under any apprehen- sion of interference with such fishing by Russia, but desired to secure coastfacilities, especially for the purposes of curing- fish and re])airing vessels. The Memorial is as follows: I'o his ExceUencji Andrew Johnson, President of the United, States. United States Your memorialists, the Legislative Assembly of Washington Tei'ri- Senate, Ex. Doe. tory, beg leave to show that abuudanco of codfish, iialibiit, and sal- Uo. l"7, 40t h mon, of excellent (quality, have been found along the shores of the in'^lS^' '^"^ ' ^^"*^^''^^' possessions. Your memorialists respectfully 'request your excellency "to obtain such rights and privileges of tlio Government of Russia as will enable our fishing-vessels to visit the ports 100 and harbours of its possessions to the end that fuel, water, and provisions may be easily obtniued; that our sick and disabled fishermen m;iy obtain sanitary assistance, together with the privilege of curing fish and re])airing vessels in need of repairs. Your memo- rialists liirtlier request that the Treasury Department be instructed to forward to the Collector of Customs of this I'uget Sound district such fishing licences, abstract-journals, and log-books iis will enable our hardy fishermen to obtain the bounties now provided and jiaid to the fishermen in the Atlantic States. Your memorialists finally l>ray your excellency to employ such ships as may be spared from the Pacific naval thiot in exploring and surveying the lishiug banks known to navigators to exist along the Pacific Coast from the Cortez bank to liehring Straits. And, as in duty bound, your memorialists will ever pray. Passed the House of Representatives, January 10, IStjli. Edward Eldridgk, Sped her /louse of licpresentatires. Passed the Coum-il, .January 13, 18()(). HaKVKV K. IIlNKS, Frcaident of the Council. CASE OF GREAT BRITAIN. 77 DEBATES IX CONGKESS. Ill the debate which took place iii Congress upon the subject of the acquisition of Ahiska, tlie value of the pro- posed iturchase, and the nature of the interests and prop- erty proposed to be accpiired were fully discussed. The debate was ])rotracted, and many leading Members spoke at length. To none of them did it occur to suggest the existence of an exclusive Jurisdiction over any waters or fisheries distant more than 3 miles from laud. On the contrary, Mr. Sumner, who had charge of the measure in the Senate, after i)ointing out that seals were to be found on the "rocks and recesses:' of the territory to be acquired, which would therefore make the acquisition more valuable, in touching upon the fisheries and marine animals found at sea, admitted that they were free to the world, contending, however, that the possession of the coast would give advantages to the United States fisher- men for the outfitting of their vessels and the curing of their catch. With reference to the whale fishery he remarked: The Narwhal wirh his two long tiisks of ivory, out of wliicli was , I'uited^ States made the famous throne of the early Danish kings, belongs to the >'''o'**i'"-'^"/o??' Fi'ozen Ocean ; but he, too, strays into the straits below. As no sea is Conf.,2nd Sess. now 7nare clausum, all these may be pursued by a ship under anj* p. 183.' 101 Hag, except directly on the coast and within its territorial limit. See Appendix, And j'et it seems as if the i)ossession of this coast as a conuuer- ^^ '.J^o-o- cial base must necessarily give to its people peculiar advantages in this pursuit. M)". Washburn, of Wisconsin, said: But, sir, there has never been a day since Vitus Behring sighted t^nited States that coast until the present when the people of all nations have not Congressional been allowed to fish there, and tocuretish sofarasthey canbecuredin •■Cou"^rossional a country where they have only from forty-live to sixty pleasant days GlobeT' Decem- in the whole year. England, whose relations with Russia are far less ''ei" n. I867^40tli friendly than ours, has a treaty with that Government by ^^bich p|j'"jSj'^"^g|®^^*' British subjects are allowed to lisli and cure fish on that coast. Nay, more, she has a treaty giving her subjects forever the free navigation of the rivers of Russian America, antl making Sitka a free port to the commerce of Great Britain. In 18G8 Mr. Ferriss spoke as follows: ,, ^'"'twi states '- Conure s s i o n al cert to be liii out ill! ocii, aiiu. xiu vv iicio wiMiiiic) iiittiiiic lociguoovjx tuo i&iiiuiics iggg 4flfVi Con" or main shore. 2ud' Sess., Part Mr. Peters, in the course of his speech, remarked: iv.p.see*. I believe that all the evidence upon the subject proves theproposi- Ibid., p. 3668. tion of Alaska's worthlessness to be true. Of course, I would not deny that her cod fisheries, if she has them, would be somewhat val- uable; but it seems doubtful if fish can tind sun enough to be cured on her shores, and if even that is so, ray friend from Wisconsin (Mr. Washburn) shows pretty conclusively tliat in existing treaties we had that right already. Mr. Williams, in speaking of the value of the fisheries, said : And now as to the fishes, which may be called, I suppose, the United States arqumcntuM piscatorinm. . . . Or is it the larger tenants of the P.^Vfy^s-iional ii -J.- c it- 1 1 1111 l)ebate.s, from ocean, the more gigantic game, from the whale, and seal, and walrus, ^i^^ppgji^ix to down to the halibut and cod, of which it is intended to o)>eu the pur- "Co"ugressional suit to the adventurous fishermen of the Atlantic coast, who are there rovided; and it shall also be unlawful to kill any seal in the ivaters adjacent to said islands, or on the beacheS; clifl's, or rocks where they liaul up from the sea to remain. SE.\L ISLANDS TO \iV, IKASED, Section 4. And be it further enacted, that immediately after the passage of this Act, the Secretary of the Treasury shall lease, for the rental mentioned in section 6 of this Act . . . for a term of twenty years, from the 1st day of May, 1870, the right to engage in the busi- ness of taking fur seals on the Islands of St. 1\tu1 and St. George, and to send a vessel or vessels to said islands for the skins of such seals. States, 12. Appendix, vol. iii. 80. CASE OF GREAT BRITAIN. Section 5. And be it further enacted, that . . . any jierson ■who shall kill any fur seal on eitlier of said islands, or in the waters adjacent thereto . . . without authority of the lessees thereof . . . shall be deemed guilty of a misdemeanour. I-EASK (>V ALASKA COMMKHCIAf, COMPANY. lu tlie year 1870, a lease was executed ou behalf of the vo!^i, Nrr^'""' United States Government in favour of the Alaska Com- mercial Comi)any, as provided for in this Act. It covered the Islands of St. ( ieorge and St. Panl only. INSTItUCTIUXS -I'D UNITP:!) STATKS OFFICIALS. The following instructions from the Treasury Depart- ment show that the administration conlined the interfer- ence of their ofiticers to those seal-hunters only who attempted landing upon the islands: 105 TuEASUUY Department, Septemler 10, 1S70. H. R., 44tli The following Executive Order, relating to the importation of arms Coug., 1st Sess., Into the Islands of St. I'aul and St. George, Avithin the district of ?^30 *^ - o. 8. , j^iaska, is published for the infonnation of officers of the Customs: Executive Mansion, Washiiinton, D. C, September D, 1S70. So much of Executive Order of the 4th February, 1870, as prohibits the imjtortation and use of fire-arms and aninniuition into and within the Islands of St. Paul and St. George, Alaska, is hereby modified so as to permit the Alaska Commercial Company to take a limited (|uan- tity of fire-arms aud ammunition to said Islands, subject to the clirec- tion of the revenue ofticers there and such regulations as the Secretary of the Treasury may prescribe. U. S. GUANT, Prcn'ulent. The instructions issued by this Department in its Circular of the 8th February, 1870, are accordingly modified so as to adjust them to the above Order. Revenue officers will, however, see that the privilege granted to the said Company is not abused ; that no fire-arms of any kind are ever used by said Company in the killing of seals or other fur-bearing animals, on or near said islands, or near the haunts of seals or sea- otters in the district, nor for any purpose whatever, during the months of June, July, August, September, and October of each year, nor after the arrival of seals in the spring or before their departure in the fall, excepting for necessary protection and defence against marauders or public enemies who may unlawfully attempt to land upon the islands. In all other respects, the instructions of the 8th February, 1870, will remain in force. Wm. a. Richardson, Actln 40,45th cong., ,,,.;„„ ' 3flSess.,vol. xvni, l"'-^*^- . p. 68. Sealing vessels aud their catches were also reported by j^^-^l^^- ^^'J*'/ the Uuited States cutter " Corwiii," but none were inter- cong., ist'sess. fered with when outside of the 3 -mile limit. In 1881 au Agent of the United States Government h. r.,Ex. doc. stated that during the past twenty years probably 100 ves- cong^f2mi slss.f sels had " prowled " about the Pribiloff Islaiuls. v-^sl ' COMPLAINTS OF DEPREDATIOXS OX KOOKEIllES. The agents of the United States Government sent to the seal islands previously to 1880 continually reported upon the inadequacy of th(> protection of the islands, and they frequently referred to the depredations upon the rookeries by the crews of vessels sealing in Behring Sea. LETTER 1-KOM MH. D'aNCOXA. Early in 1881, Collector D. A. d'Ancona, of San Fran- cisco, appears to have requested information from the Treasury Department at Washington in regard to the meainng placed by that Department upon the law regulat- ing the killing of fur-bearing animals in the territory of Alaska, and specially as to the interpretation of the terms " waters thereof" and " waters adjacent thereto," as used in tlie law, and how far the jurisdiction of the United States was to be understood as extending. REPLY OF MR. FRENCH. In reply, Acting Secretary H. F. French, of the Treasury Department, wrote as follows on the 12th March, 1881 : Sir: Your letter of the 19th ultimo, requestiiii;- eertain information H. R.,Ex.Doc., in regard to the meaning ]»la(ed by this Dei)artmcnt upon the law SOtli Cong., 2nd regulating the killing of fur-bearing animals inthe Territory of Alaska, Se8s.,ls^o. 3883, p. Avas duly received. The law prohibits the killing of any fur-bearing" animals, except as otherwise therein provided, within the limits of Alaska Territory or iu the waters thereof, and also prohibits the kill- ing of any fur-seals on tiie Islands of St. Paul and St. George or iu the waters adjacent thereto, except during certain months. You inquire in ivgard to the interpretation of the terms "waters thereof" and "waters adjacent thereto," as used iu tlielaw, and how far tlie jurisdiction of the United States is to be understood as extend- ing. Presuming your iuquiry to relate more especially to the waters of AVestern Alaska, you are informed that the Treaty with Russia of the SOtli March, 1870 [sJc], by which tlie Territory of Alaska was ceded to the United States, defines the l)onndary of the Territory so ceded. This Treaty is found on pp. G71 to 673 of the volume of Treaties of tlie Revised Statutes. It will be seen therefrom that the 112 limit of the cession extends from a line starting from the Arctic Ocean aud running through iSeriug Strait to the north of St. Lawrence Islands. The line runs thence in a south-westerly direction, so as to pass midway between thelsland of Attoo and Copper Island of the Krouianboski [>>(cj couplet en- group, in the Xorth Pacific Ocean, to meridian of 1M3 degrees of west longitude. All the waters within that boundary to the western end of the Aleutian Archipelago and chain of islands, are considered as comxjrisedi Avithiu the waters of Alaska Territory. 86 CASE OF GREAT BEITAIN. All the penalties prescribed by law against the killing of fur-bearing animals would therefore attack against any violation of law within the limits before described. (Signed) H. F. French, Acting Secretary. NO SEIZURES MADE BEFORE 1886. It does not appear fioiii any official documents tliat any action Avas taken at the time in accordance with the opin- ion expressed in this letter, and no seizures were made, and no warning was given to any r>ritis]i vessel engaged in sealing beyond the ordinary territorial limits prior to 1886, although at least one British vessel is known to have been 5othCong.,2iirt engaged in such sealing in 1884, and no less than thirteen Do'e ■'lo'^fui^'')' ^ *^^'® ^^ engaged in 1885. Two of these vessels are stated 134.' ' ' ^'' to have been spoken by a United States revenue cutter, Avithout being in any way molested. H. R., Mis. On the 2L*nd May, 1884, Lieutenant I. E. Lutz was Stse8s.%\)"602! instructed by the Captain of the United States revenue p- 2s. steamer ''Corwin" to watch and to seize or arrest any ves- sel or ])ersons attempting to take seals contrary to law. Ibid., p. 33. Acting under these instructions. Lieutenant Lutz arrested the "Adele," of Hamburg, Gustave Isaacson, master, with three oftlcers and a crew of eighteen Japanese, when at anchor off shore. The Lieutenant Avas careful to ascertain that the vessel was engaged in sealing ashore, and having waited the return of the ship's boat which came back loaded with seal carcasses. Lieutenant Lutz reported, that, haviiuj now secured all necessary evidence, he notitied the captain of the seizure of the vessel. It is found that from 1867 down to and including 1885, vessels continued to visit and hunt in Behring Sea with- out interference when outside of the ordinary territorial jurisdiction. The circumstances which apjjear to have led to a change of ofticial policy in 1886 will be related hereafter. It may be convenient at this point to refer to (juestions which were raised by occurrence in the Asiatic waters of the Pacific, adjacent to Russian territory. 113 QUESTIONS ARISING- BETWEEN THE UNITED STATES AND Rl'SSIA IN OKHOTSK AND BEHRING SEAS. Disputes have more than once arisen res])ecting the rights of United States v, haling vessels in Okhotsk Sea. WHALERS IX OKHOTSK SEA. Fishery Indus- The main objcctiou to these wlialers was that they iuter- United " staVt's', fcrcd witli the fur industry, and it is on lecord that the section 5, vol. iijnode of wlialiug practiced in this sea was often to anchor from "'Fik^ii'iiu- the vcsscl iu souic harbour and to send the boats there- ^i*?'^' t;^''!''^"'^^-''' from in pursuit of Avhales. The instructions to Ilussian vol. ),JNo. 5. . '^ ^ . , i-i-Ti cruizers, dating irom 1853, only ])r()liibitcd these vessels from coining " within 3 Italian miles of onr shores."' The Sea of ( )kh()tsk was covered by the Ukase of 1821 , and i>os- sesses a seal rookery (Ivobben Island). Whalers from the United States and elsewhere began to freijuent this sea about the year 1843. CASE OF GREAT BRITAIN. 87 WHALERS SOMETIMES SEAL-HCNTHKS. The following- evidence witli reference to sealing' and wLaling in Okhotsk Sea given before the Committee of Ways and Means in the House of Eepresentatives at Wasliingtou (3rd May, 1870), shows that whalers were also engaged in taking seals: Q. AVlio are Williams, Haven ct Co.l—A. Williams, Haven. A: Co. ,H- K., 44th are Mr. Henry P. Haven, of Conuepticnt, who died last Snnday, aixl^ Report 6^3^^*^ ' Ricliard Chapel. They are whalers. They took seals and whales, and had been at that business in the raeilic for a great many years. Q. They had an interest in these skins? — J. Yes, sir. They had a vessel in the waters of the Okhotsk Sea, I think, seal-tishing in 1866. While their vessel was at Honoluln in 1866, the captain bceame acquainted with a Russian eaptain who put in there in distress with the remainder, or a portion, of the Alaska seal-skins taken by the old Russian Conii)auy, and there this captain learned of this interest. He left his vessel at Honolulu, went to Connecticut, and conferred with his employers. Then Mr. Chapel, one of the concern, went out to Honolulu and fitted out this vessel and another one ami sent them to the Alaska Islands as early as April, 1868. The United States Minister at St. Petersburg, Mr. Hoflf- ,,^i'-^H«ff«^«"to man, writing in ISSli, thus refers to this sea : sen, March i4, 1882. A glance at the map will show that the Kurile Islands are dotted 50thCong.,2ml across the entrance to the Sea of Okhotsk the entire distance from Sess., Senate Ex. Japan on the south to the southernmost Cai)e of Kamtchatka on the Uoc., No. 106, ii. north. 1^^- 4f if J']]^;\; In the time when Russia owned the whole of these islands, her Rep- n'^ No. 14.' reseutatives in Siberia claimed that the Sea of Okhotsk Avas a mare tlaHSii))i, for that Russian jurisdiction extended from island to 111 island and over 2 marine leagues of intermediate sea from .Japan to Kamtchatka. But about live years ago Russia ceded the southern group of these islands to Japan, in return for the half of the Island of Saghalien, which belonged to that Power. As soon as this was done it became impossible for the Siberian authorities to maintain their claim. ^ly informant was not aware that this claim had ever been seriously made at St. Petersburgh. And in another letter he says: I do not think that Russia claims that the Sea of Okhotsk is a mare ^jarch 27 1882. clausiim, over which she has exclusive jurisdiction. If she does, her 50th Cong.' 2nd claim is not a tenable one since the cession of part of the group of Sess., Senate Ex. the Kurile Islands to Japan, if it ever were tenable at any time. £'?''• j!^°- }^^- P- '- ' •■ 261. SeeAppen- Tho following appears as an introductory statement in jj^'j^-^"!^ "' ^^''^ "Papers relating to Behring Sea Fi.sheries," published at ' the Government Printing Office in Washington, 1887: OKHOTSK SEA SUIMECT TO UKASE OF 1821. This sea [of Okhotsk] is a part of the waters to which the Ukase of 1821 applied, and which M. Poletica, in hissubsequeiit correspondence with Mr. Adams, ])rior to the Treaty of 1824, said His Imjierial Majesty, the Emperor of all the Russias, might have claimed as a close sea had he chosen to do so. As has been seen, all questions as to the right of citizens of the United States, as well as of the subjects of Great Britain, to navigate and fish in those waters, was given up by Russia once for all in the Treaty of 1824 Avith the United States, and of 1825 with Great Britain. The following correspondence between Russia and the United States in the years 1867 and 1868 contains an explicit disavowal l)y Russia of any claim to interfere with the fishing operations of citizens of the United States in the Sea of Okhotsk. 88 CASE OF GREAT BRITAIN. INTERFERENCE WITH UNITED STATES VESSELS. The correspondence referred to shows that the captain of "Europa." the " Europa," a United States whaling- vessel, complained to the Department of State at Washington that the Captain of a Russian armed steamer had stated that he was author- ized to drive United States whalers away from the vicinity of the Settlement of Okhotsk, in the Sea of Okhotsk, and " Eudeavour." that lie had tired on the ship's boat of the bark "Endeavour" of New Bedford. It appears also from the same correspondence that on the "Java.' L'Tth of July, 1807, the United States bark "Java" was cruizing for whales in Shantar Bay and standing towards Silas Richard's Bluff, when a Russian Commander ordered SewanUoCiay, iiim out of the bay, and thereupon Mr. Seward ises^Vof/ii, Part 115 in(|uired of the Russian Government what instruc- ii> ^°- 12- tions had been issued relating to fisheries in this sea. EXPLANATIONS BY KUSSIA. westmaun to In really to this inquiry, the following explanation was Secretary o f rcccivcd from M. de Westmaun, Acting Minister of Foreign i86r5oth"(Jon"^' -^fli^ii'S at St. Petersburg, which shows the claim of juris- 2nd sess., Senate diction of Russia to havc been confined to 3 miles only in p.^253.°'^'''^"'^'^*''i^^^''^''-'i'ii^ gulfs and bays, in this part of the very waters covered by the Ukase of 1821 : NO CLAIM OF JUlUSinCTIOX BEYOND 3-MILE LIMIT. These are the circuinstauces : The schooner "Aleont," under the command of Lieutenant Etoliue, had been sent in commission from Nicolaievslv to Oudrk. The abundance of floating ice liaviug forced him to enter into the Oulf of Tougoursh, he there met, the 14th •July, at about 20 miles to the south of the Straits of Chantarsk, near, the eastern coast, the American whaler ".Java," occu])ied in render- ing the oil of .1 captured whale. Considering that foreign whalers are forbidden by the laws in force to lish in the Russian gulfs and bays at a distance of less than 3 miles from the shore, where the right of fishing is exclusively reserved to Russian subjects, Lieutenant Etolino warned ("invita") the captain of the "Java" to "bear oft'' from the ( Julf of Tougoursh, which he at once did. The same day the '•Aleont" made for the Bay of Mawgou, where arrived, on the next day the American whale schooner "Caroline Foot," whose captain, accom- panied by the captain of the "Java," calleil on Lieutenant Etoline, and declared that he had no right to prevent them from hshing for whales wherever they liked. Lieutenant Etoline replied that there were in that resi)ect cstal)lished rules,("rcgies'"), and if they insisted, absolutely, upon breaking them, that he would be coiiiix'lled to prevent them. The captain of the schooner "Caroline Foot" pre- tending ("ayant pretendu") that he had entered into tlie 15ay of Tougoursh in consequence of "deviations from his course," Lieu- tenant Etoline oifered at once all assistance in his power; and, upon request, delivered him 7 ponds of biscuit from the stores of the "' Aleout," after which the two slii))s again went to sea. The lUth of .July, that is, four days afterwards, the schooner "Aleont" met a whale, upon which the Commander caused a trial lire to be made. At the same moment was seen, at about IB miles distance, a sail, name unknown, and, nearer, three "chaloupes," the nearest of which was at least 3 miles in advance in the direction of the cannon tire. In the evening all these ships had disappeared. That incident is registered ill the books of the "Aleont" in the following terms: "The littli of .July, at i) in the (evening, at anchor in the liay of Mawgons, tired a cannon shot i'or.jjractice at a whale afloat." From thes(! facts O'enrral Clay will be convinced that the incident alluded to has been exag- gerated, and even perverted ("denature") much in order to bo repre- sented as a cause of grievance against the Commander of the "Aleout" on the part of the American whalers. CASE OF GREAT BRITAIN. 89 110 The expla-uatiou was considered satisfactory. Mr. ^^ ,^,'^*'^^^°"f " 1°*^ Seward observing' that "the captain of tlie " Java,"i)ol\"No°'io6, p.' spoke unwarrantably when by implication he denied that'-^^- the liussiau authorities have the right to ]»revent foreign vessels from lisliing for whales within 3 marine miles of their own shore." In the year 1881 the liussiau Consul at Yokohama issued, on behalf of the Eussiau Imperial Government, a notice, of Mhich the following is a translation : Xoiicc. Russia notice of November, At the request of the local authorities of Behring- and other islands, q j. j, o^ts k^Vu . 1882. "6. The euiorcemcnt of the above will be intrusted to Russian men-of-war, and also to Russian merchant-vessels, which, for that purpose, will carry military detachments and be ])rovided with proper instructions. "A. Pelikan, "B. I. R. M. Consul. "Yokohama, Sovemher 75, 1SS1." The firm of Messrs. Lynde and Hougli, of San Francisco, ibid., p. 259. was in 1882, and had beim for years, engaged in the I'acificnmi'LhtlFoJger, coast tislieries. They yearly sent vessels to the Sea of *'«bruaiyi5.is82. Okhotsk, fishing from 10 to 20 miles from shore. The atten- vol ii, Pairii," tion of the firm being called to the above notice, they Avrote ^*'- ^'^• to the Secretary of State of tlie United States calling attention thereto. 117 The Secretary of State (Mr. Frelinghuysen), on soth cojg., 2nd the 7th March, 1882, inclosed their letter, togetlier i>fo."N™'lo6, p! with the regulations " touching the Paciflc coast lisheries," -■^?. JVlr Honiiiau to ashe termed them, to i\Ir. Hoffman, the United States Min-jir. i^ieiinghuy- ister at St. Petersburg. Mr. Hoffman acknowledged the^ggg ^^j,^['j' -'l^ recei]>t of this des])atch, in reference to what he also called '.-'eir' see Appen- "our Pacific Ocean fisheries." lifNo^'is."' ^'''"* APPLIED ONLY TO TEKHITOHIAI, WATERS. Mr. Hoft'man, having made inquiry of M. de Giers, the ibid., p. -'62. Eussian Foreign ^Minister, the latter, in his reply, dated^^f^. '^^g^^jj^^^f^^^" the 8th (20th) May, 1882, explained that these Eegulations iiay 8 (20), iW. applied only to "territorial waters of Eussia," and, in a vJl ii^ rart"n; subsequent letter of the 1st (l.">th) June, quoted Article i^'^oie.' 5G0 of the Eussian Code, which is as follows: 90 CASE OF GREAT BRITAIN. Article 560. Ibid., p. 262. The maritime waters, even wlien they wasli tlie sliores, where there M. (le Giers to jg j^ pgi-maugn^ populatioD, cannot be the subject of private posses- Juiio 1 a3)"l88'>' sion; they are open to the use of one and all. voT ii^i^it'n; Ii^ a letter to Mr. FrelingHnysen of the 14th Mnrcli, 1882, No.' 17.' Ibid., p'. Mr. Hoftmaii shows what he niulerstood to be the meaning lix, v^olfit^Part applied by M. de Giers to the words "territorial waters." Ti, No. 14. ' He writes : The best whaling grounds are found in ihe hai/s and inlets of the Sea of Okhotsk. Into these the Russian Government does not permit foreign whalers to enter, upon the (jronncl that the cntnince to tlicin, from headland to headland, in Jess than 2 marine leagues wide. ^ibid^^pp.^262, Indeed, M. de Giers, in the letter of the 8th (20th) May, dtx, voL ii,^Part 1882, already (pioted, makes it clear that, as to fishing and II, No. 16. hunting, the rule was the same, and that the prohibition of vessels engaged in these pursnits extended only over the marine league from the shores of the coasts "and the islands called the 'Commander' and the 'Seals.'" The island referred to as the "Seals" is Eobben Island, and the reference to this and the Commander Islands indi- cates that M. de Giers, under the term of "hunting," Avtis referring specially to the sealing industry. CA.se of the "ELIZA." On the 21st July, 1884, the United States schooner "Eliza" was seized by the liussian cruizer "Razboindc" in the Anadir Eiver, which runs into Anadir l>ay, a 50th Cong., 2nd 118 northern portion of Behring Sea. It was repre- vot^T^'m^t- sented to the United States that she was there trad- 263.' hig and hunting walrus. The United States Vice-Cousul- General at dapan termed the seizure "an act of piracy." Ibid., p. 27U. General Vlangaly, writing from the Department of voh ii^K'n; Foreign Affairs on the 19th (31st) January, 1887, explained No.io! ' that the "Eliza ''was arrested, "not for the fact of seal hunting," but for violating the prohibition touching trading, hunting, and lishing on the Itussian coasts of the Pacific without special licence. Ibid., p. 209. The crew, it was found, were trading with the natives on the coasts of Ivamtchatka, as well as hunting walrus. Ibid. seoAp This appears to have been accepted as a valid cxplana- peii'bx, voi^^ji- tion; but vrith reference to the seizure of this shi]) and of ' °' ■ the "Henrietta," Mr. Lothrop, United States Minister at St. Petersburg, Avriting to Mr. I^ayard, the United States Secretary of State, on the 17th February, 1887, remarks: I may add that the Russian Code of Prize Law of 1869, Article 21, and now in force, limits the jurisdictional water.s of Russia to 3 miles from the shore. CA.SE Ol" THE "IIENHIETTA." ii)id., p. 2ti7. The United States schooner " Henrietta" had been seized on the 29th August, 1880, off East Cape in IJehring Strait by the Pussian cor\'ette " Kreysser." Ibid., p. 20!). ljxi)laiiations from the Kussian Govt^rnment were See Api)endix, promptly demanded by the United States, and it was No!'i8.' ^^^^ ^^' alleged she was arrested tor illicit trading on the Pussiau coasts. CASE OF GREAT BKITAIN. 91 VIEWS OF MR. BAYARD. ISTevertlieless, Mr. Bayard, writing to Mr. Lotbropoii the ICtli March, 1887, observed: If, as I am to conclude from your despatch, the seizure of the "Heu- Papers relat- rietta" was luade in Russian territorial waters, then the Russian 1"= -J? -Behring authorities had jurisdiction; and if the condemnation Avas on pro- pjj{,iig]jg(\^^f\i;^; ceedings duly instituted and administered before a competent Court Go ve rum e nt and on adequate evidence, this Department has no right to complain. Printing 01 flee But if either of these conditions does not exist, the condemnation can !oo-^^ ashington, not be internationally sustained. The first of these conditions, viz, ' ^^" that the proceedings should have been duly instituted and adminis- tered, could not be held to exist if it should ajjpear that the Court before whom the proceedings were had was composed of jiarties interested in tins seizure. On general principles of international law, to enforce a condemnation by such a Court is a denial and perversion of .justice, for which this Government is entitled to claim redress. The same right to redress, also, would arise if it should appear that, while the seizure was within the 3-mile zone, the alleged offence was conmiitted exterior to that zone and on the high sees. 119 You are therefore instructed to inquire, not merely as to the mode in which the condemning Court was constituted, but as to the evidence adduced before such Court, in which the exact locality of seizure should be included. NO ASSERTION BY UNITED STATES OF EXTRAORDINARY .IFIUSDIC- TION PREVIOUS TO 1886. Tlie instructions given from time to time to (Jommanders of the Ivevenue Service, or of ships of Avar of the United States cruizing in Behring Sea, and guarding the interests of the Ahiska Commercial Companj' upon the islands leased to the Company, do not even suggest the intention of that Government to assert a chdm so vehemently dis- puted when advanced by IJussia. On the contrary, while vessels from British Columbia and elsewhere were trading and tishing generally in the Behring Sea, and while vessels — chietiy those of the United States — were actually raiding the rookeries, the instruc- tions relating to the tisheries given to Bevenue Marine ves- sels by the United States Government, until 1886, were confined, as has been shown, to the immediate protection of the seal islands. REl'ORT OF CRUIZE OF THE " CORWIN," 1885. The seizure of British sealers in the open sea followed the report on the cruize of the Revenue Marine steamer "Corwin" in the year 1885. In this report, it is among other things stated, that "^^liilei.H-R^.Es.Doc. shaping a course for St. Paul a special lookout was kept ist'sess.' ""^'' for vessels sealing. The Captain writes: While we vv^ere in the vicinity of the seal islands a lookout was kept at masthead for vessels cruizing, sealing, or illicitly trading amoiuj those iNhiiuls. But no such vessels were seen. Having drawn attention to the number of vessels which had taken, or had endeavoured to take seals on the shores of the islands, and illustrated the great difficulty of pre- 92 CASE OF GREAT BRITAIN. venting the landin.ii' thereupon, the Commander eonchides as follows: In view of the foregoing facts, I wonld respectfully suggest — 1. That the Department cause to be printed in the Western papers, l)articularly those of San Francisco, California, and Victoria, ISritish Coluuibia, the sections of the law relating to the killing of fur-bear- ing animals in Alaskan waters, and detining in specific terms what is meant by Alaskan waters. 2. That a revenue cutter be sent to cruize in the vicinity of the Pribilof Islands and Aleutian Group during the sealing season. Senate Ex. 120 On the Gth March, 1886', Mr. Daniel Manning-, Sec- 2na"seV.s.,"S/o'. rctaiy to the Treasury, wrote to the Collector of 106. p. 135. Customs at San Francisco as follows : Th^sasuky Department, March 6, ISSG. Seertn<«, p.m. Sir: I transmit herewith, for your information, a copy of a letter addressed by the Department on the 12th March, 1881, to D. A. d'Ancona, concerning the jurisdiction of the United States in the waters of the Territory of Alaska, and the prevention of the killing of fur seals and other fur-bearing animals within such areas, as ja-e- scribed by cluipter 3, title 23, of the Revised Statutes. The attention of your predecessor in office was called to this subject ou the 4th April, 1881. This communication is addressed to you, inasmuch as it is understood that certain parties at your port contemplate the fitting out of expeditions to kill fur seals in these waters. You are requested to give due publicity to such letters in order that such parties may be informed of the construction placed by this Department upon the provision of law referred to. Yours, &c., (Signed) D. Manning, Stcreiarji. Blue Book, Public notice appears to have been given accordingly in SaYgov'^T' the terms of the letter addressed by Mr. H. F. French to vol ijAPP'''"^'''' Mr. d'Ancona. (See ante, p. 111.) The statement of facts in this chapter establishes — That from the year 18(37 down to the year 188() the action of the United States and Russia, the parties to the Treaty of Cession of 1867, is consistent only with the view that the rights ])ossessed by the United States and by Kussia respectively in the wateis of Behring Sea were only those ordinarily incident to tlie ])OSsession of the coasts of that sea and the islands situated therein. That during that ])eriod, notwithstanding the i)resence of seal-hunting craft in Behring Sea, the United States authorities contined the exercise of jurisdiction to the land and waters included within the ordinary territorial limits. 121 CHAPTER VII. Head (G.) — Various Contentions of the United States since the year 1880. The considerable development of pelagic sealing in the Xorth Pacific which had taken i)lace in the years previous to 188() liad established a very strong com])etition against the Alaska Commercial Company. That Coin]»any, ]>aying a considerable royalty to the United States (Jovernment CASE OF GREAT BRITAIN. 93 upou every skin, had now to face the competition of the pelagic sealers, who paid no rent or royalty. The Company therefore exerted all its intinence, especially powerful at Washington, to check and, if possible, destroy this compe- tition. Till the development of the pelagic sealing industry, the actual circumstances had been such as to allow the Company largely to control the markets for seal-skins, and to enable them to exercise a practical monopoly of sealing in the North Pacitic. INSTRUCTIONS TO KEVENUE CUTTERS. In the year 1886 the United States Government for the first time furnished revenue cutters with instructions to prevent any vessel from sealing in any part of Behring tSea to the eastward of the geographical limit mentioned in the Treaty of Cession. This action of the United States was the first attempt to ^.^n^P'^J/^^iSl actively interfere with tbe right of the vessels of other inse'.'^p. 48; Tss?' nations to navigate and fish in the waters of Behriug Sea }!-{}^;jgJj^*®^j°'^^g other than territorial waters. No. 2 (i890), " j. 45. See Appcii dix, vol. iii. .SEIZURE OF THREE IJIMTISIl VE.SSELS. In iiursuance of the above-mentioned orders, three Brit- soo Judso ish vessels were seized during this year while fishing out- „,hrgaVin "case side ordinary territorial waters, and subsequently con- 'j'[j Jj J^''™*"^^." demned upon the ground that the waters in which they united states were fishing, formed part of the waters of Alaska and ^[,°- ^g^g*'^^'j',j,gP: were subject to the jurisdiction of the United States. dix, vol. iii. PROTEST OF RRITISII GOVERNMENT. Sir L. S. Sackville West, British Minister at Washington, at once, by instruction, made a formal ])rotest in the name of Her Majesty's Government against these seizures of British vessels. 12li Attorney-General Garland issued the following 50th Cong., 2nd order, after the British protest: d''c'.'Io!'1K: Washinuton, D. C, January '26, 1887. ^^^" Jiidfje Lafayette Dawson and M. T). Ball, United States District Attorney, Sitka, Alaska. I am directed by tbe President to instruct yon to discontinue any furtber proceediug.s in tbe matter of tlie seizure of tbe Britisb vessels "Caroleua," "Onward," and "Tboruton," and discbarge all vessels now beld under sucb seizure, and release all jiersons tbat may be under arrest in connection tberewitb. (Signed) A. H. Garland, Attorney-General . Mr. Bayard, however, the Secretary of State, wrote, on the ibid., p. 40. 3rd February, 1887, to Sir L. S. Sackville West that this order was issued " withoiit conclusiouof any questions which may be found to be involved in these cases of seizure." RENEWED SEIZURES. Fresh seizures took place in July and August of 1887, and renewed protest was made by Great Britain. 94 CASE OF GREAT BRITAIN. 1^0 seizure occurred in 1888, though British sealing vessels made large catches in that year in Behring Sea. In 1880 live British ships were seized in Behring Sea, and three others were ordered out of the sea. In 1890 no seizures were made, though a large number of sealers visited the sea and took seals therein. "MODUS VIVENDI." ■United ^States J^^^ I'^^-^l ^n agreement was come to between the United Ino. 3 (1892),' p, states and Great Britain, resulting in a modus rivendi, for dii VOL m.^^^" t^*^ purpose of temporarily regulating tlie fishery, pending the result of expert investigation into tlie necessities of the case. Vessels were forbidden to take seals in Behring Sea for a limited ])eriod under penalty of seizure and flue, and on the other hand the number allowed to be killed on the islands was largely reduced. The only seizures that have occurred since the establishment of the modus ritendi have been made on the ground of its infraction.* 123 The legality of the seizures made in 1886, 1887, and 1880 became a subject of much discussion and debate in the United States. The uncertainty of the claim of the Government of the United States is exemplified by the fact that United States sealers entered Behring Sea to * The following table shows the names of the British sealing vessels seized or warned by the United States reveune cruisers 1886-'90, and the approximate distance from land when seized. The distances assigned in the cases of the ''Carolena,'' "Thornton," and "Onward," are on the anthoritv of V . 8. Naval Commander Abhey (see 50th Cong., 2nd Sess., Senate Ex. Doc. No. 106, pp. 20, 40, 30). The distances assigned in the cases of the "Anna Beck," " W. P. Sayward," "Dol- phin," and "Grace," are on the authority of Captain Shepard, U. S. R. M. (Blue Book, "United States No.' 2 (1890)," pp. 80-82. See Ajipeudix, vol. iii) : Name of vessel. Date of sei- zui'e. Approximate distance from land when seized. United States vessel making seizure. Aug. 1,1886 " 1, " Aug. 2,1886 " 2 " July 2.1887 JulV 9,1887 July 12, 1887 July 17,1887 Aug. 10, 1887 Aug. 25, 1887 Aug. 4,1887 July 31, 1889 July 29, 1889 July 11,1889 " 11, " Aug. 6,1889 July 30, 1889 Aug. 13, 1889 July 15,1889 Mar. 27, 1890 70 . . .. .. .. 115 Favourite Warned by " Corwin " in about thesameposition as "On ward." 66 miles Kush. W. P. Say ward 59 40 96 62 15 II I, Alfred Adams Ada Bear. Warned by " Kush " not to enter Beliring'Sea. 66 miles.. 50 Ordered out of liehring Sea by "Kush." ['.] As to position when warnetl. Pathfiuder Lily 06 11 Ariel Ordered out i)f Behring Sea by "Kush." ditto Kate .. 11 Pathllntler a Neah Bay is in the State of Washington, and the "Pathfinder " was seized there on charges niade against her in Behring Sea in the previous year. She was released two days later. CASE OF GREAT BRITAIN. ^ • 95 seal three or four years before tlie British sealers entered, and they rapidly increased in numbers, but were only occasionally interfered with or seized. DISCUSSION IX CONGRESS OF RIGHTS OF UNITED STATES. During the fiftieth Session of the House of Representa- tives, in 18S9, the Committee on Marine and Fisheries was directed " to fully investigate and report upon the nature h. r.. soth and extent of the riohts and interests of the United States ^.^"^g-^^mi^^esa^, in the fnr-seals and other fisheries in the Behring- Sea in p'.T^W accom- Alaska, whether and to what extent the same had been ^^.^^^l ^"^ ^- ^• violated, and by whom; and what, if any, legislation 124 is necessary lor the better protection and preserva- tion of the same.'' REPORT OF COMMITTEE OF HOUSE OF REPRESEN lATIVES. The Committee reported, upholding" the claim of the United States to Jurisdiction over all waters and land in- cluded in the geographical limits stated in the Treaty of Cession by Russia to the United States, and construing different Acts of Congress as perfecting the claim of national territorial rights over the open waters of Behriug Sea everywhere within the above-mentioned limits. The Report states : Tbo territory of Alaska consists of land and water. Exclusive of _n. R., 50th its lakes, rivers, harbours, and inlets, there is a large area of marine p*'"^' "^^^'^ ^^im territory which lies outside of the 3-mile limit from the shore, but is p'*jo. within the boundary lines of the teriitoiy transferred by Russia to the United States. The concluding portion of the Report states as follows: That the chief object of the purchase of Alaska was the acquisition Ibid., p. 23. of the valualde products of Behring Sea. That at thvrote to Sir Julian Pauncefote : Bine Book, Legal and diplomatic questions, apparently complicated, are often "United Slates found, after prolonged discussion, to depend on the settlement of a 37° 38*^^s' e' A^ single point. Such, in the judgment of the President, is the ]>ositiou pendix, vol. iii.^* in '^^tiich the United States and Great Britain find themselves in the pending controversy touching the true construction of the Russo American and Anglo-Russian Treaties of 1824 and 182.5. Great Britain contends that the phrase "Pacilic Ocean," as used in the 131 Treaties, was intended to include, and does include, the body of water which is now known as the Behriug Sea. The United States contends that the Behriug Sea was not mentioned, or even referred to, in either Treaty, and was in no sense included in the ])hrase "Pacific Ocean." If Great Jiritain can maintain her position that the Behring Sea at the time of the Treaties with Russia of 1824 and 1825 was included in the Pacific Ocean, the Government of the United States has no well-grounded complaint against her. If, on the other hand, this Governnieut can jirove beyond all doubt that the Behring Sea, at the date of the Treaties, was understood by the three Signatory Powers to be a separate body of water, and was not included in the phrase "Pacific Ocean," then the American Case against Great Britain is complete and undeniable. . DISAVOWAL OF MARE CLAUSUM. Bluo Book, In the same note Mr. Blaine disavows tlie contention that N^T*a89it*'''*p'^ the Behring Henis mare claiiKHm, but claims that the Ulcase, 5?- Se( .Ai>pen-vv]ii(;h asscrtcd cxclusive Jurisdiction ovcr 100 miles from ti.\, ^o .111. ^^^^ coast in that Sea, Avas never annulled by llussia. He had in this note previouslj'- argued " that Great Britain and Ibid, i>. II. ^\^Q United States recogni/ed, lespected, and obeyed the authority of llussia in the Behring Sea" for more than forty yeais after the Treaties with Itussia. In conclusion, lie claims lor the United States the right to hold Ibia specitic purpose a "comparatively restricted area of water." CASE OF GREAT BRITAIN. 101 UKASE OI' 1S21 NKVElt AXNULLKI) IX HKHKIXU's SEA. In this note the Secretary of State thus expresses himself: The Eniil., i>. 54. possibly, to an irreparable extent by the intrusion of Canadian The repeated assertions that the (Jovernment of the United ibid., ],. 56. l'S'2 States demands that the Behring Sea. be pronounced mare clausum are without foundation. Tlie Government has never claiiued it, and never desired it. It expressly disavows it. At the same time the United States docs not lack abundant author- ity, according to the ablest exponents of international law, toi- hold- ing a small section of the Behring Sea for the protection of the fur seals. Controlling a comparatively restricted area of water for that one specitic purpose is by no means the e{|uivalent of declaring the sea, or any i>art thereof, mare claunitm. This disavowal of auy claim to Behriuft- Sea as a >><udiate dix, vol. iii. that contention in express terms. Nor do they rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Gov- ernment any right for that purpose which, according to international law, it M'ould not otherwise possess. Whatever importance they attach to the preservation of the fur-seal species, — and they justly look on it as an object deserving the most serious solicitude, — they do not conceive that it confers upon any ^laritime Power rights over the open ocean which that Power could not assert on other grounds. The claim of the United States to prevent the exercise of the seal fishery by other nations in Behring Sea rests now exclusively upon the interest which by purchase they possess in a Ukase issued by the Emperor Alexander I in the year 1821, which prohibits foreign vessels from api)roaching within 100 Italian miles of the coasts and islands then belonging to Russia in I'ehring Sea. In reply to this, Mr. Blaine wrote on the 14th April, 1891 : In the opinion of the President, Lord Salisburj' is Avholly and Blue Book, strangely in error in making the following statement: " Nor do they ^^^o'^'f^q,,^*''*®; [the advisers of the President] rely as a justification for the seizure ^"^ Appeniix of P.ritish sliips in the open sea upon the contention that the interests Vol. ill. of the seal fisheries give to the United States Government any right 102 CASE OF GREAT BRITAIN. for that pnrjiose wliich, according to iut«?rnational law, it would not otherwise possess." The Governmeut of the United States hassteadily held just the reverse of tlie position Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, eitv /nteres^sTu *^^'^* ^^^^ habit of the seals in regularly resorting thither aud sea'ls). ' IS*^ rearing their young thereon, that their going out from the islands in search of food and regularly returning thereto, aud all the facts aud incidents of their relation to the islands, give to the I'uited States a property interest therein; that this property interest was claimed and exercised by Russia during the Avhole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest, so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the lirst nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Cana- dian vessels in 1886 aud subsequent years has changed the law aud equity of the case theretofore prevailing. It does not appear, liowever, that the special rights uow apparently claimed by the United States in respect of a s])ecial ])r()perty in fnr-seals have ever been otherwise advanced or more detiuitely formnlated than as above mentioned. CASE OF THE "W. P. SAYWARD." Stenographic In 1891, in the course of the Argument before the Sentriuctsf of Supreme Court of the United States in the case of the '' W. the "W. P. saj- P. Sayward," one of the learned Judges inquired of Mr. ward,"p. 9C. * w-i. r\ ^ txi -n Attorney! reneral Miller: See also Brief Do you mean that the Political Department has decided in terms for Unit e d what constitute the waters of Alaska, or only that the United States States, ex parte |jgg jurisdiction over certain waters for certain purposes? T. H. Cooper, ^' ^ "^ owner and claini- aatof the school!- To wliicli Mr. Miller replied: er "W. P. Say- ward, "p. 106. CLAIM OF TERRITORIAI. JITRISDICTION OVER 100 MILES. That is what I understand they have decided; that they have juris- diction, and that they have territorial jurisdiction over those waters to the extent of 100 miles. Judgment Mr. Chief Justicc Fuller, delivering the opinion of the Supreme" Court! Supreuic Court of the United States in the case of the ex parte T. u! " W. P. Say Ward," on the 2yth February, 18912, referred to and^dainiaXof the scizurcs in the following terms: "W. p. Say- If W6 assume that the record shows tlie locality of the alleged ward," p. 16. offense and seizure as stated, it also shows that oflicers of the United States, acting under the orders of their (lovcrumeut, seized this vessel engaged iu c;itching seal aud took her into the nearest jiort; and that the Law Otticers of the Goverument libelled lier and pro- ceeded against her for the violation of the laws of the United States, in the District Court, resulting iuher condemnation. How did it happen that the officers received such orders? It must be admittecl that they were given in the assertion on the part of 134 this Governnu'ut of territorial jurisdiction over Behring Sea to an extent exceeding 59 miles from the shores of Alaska;* that this territorial jurisdiction, in tlie enforcement of the laws protecting seal iisherics, was asserted by actual seizures during the seasons of 1886, 1887, aud 1889, of a number of British vessels ; tiiat the Govern- ment persistently maintains that sucli jurisdiction belongs to it, based not only on the peculiar nature of the seal tisherics aud the ])ro[)erty * The Supreme Court, howevei", expressed no opiuiou as to the legal validity of the jurisdiction so asserted. CASE OF GREAT BRITAIN. 103 of tlio Government in them, liufi also upon the position that this juris- diction was asserted by Russia for more than ninety years, and by that Government trausi'erred to the United States; and that negotiations are pending upon the subject. The facts stated in this chapter sliow — That the original ground upon which the vessels seized in 18SG and 1887 were condemned, was that Behring- Sea was a m((re clansnm, an inland sea, and as such had been conveyed, in part, by Kussia. to the United States. That this ground was subsequently entirely abandoned, but a claim was then made to exclusive jurisdiction over 100 miles from the coast line of the United States' terri- tory. That subsequently a- further claim has been set up to the effect that the United States have property in and a right of protection over fur seals in non-territorial waters. 135 CHAPTER VIII. Point o op Article VI. — JIas the United States anyBiglit, and, if so, what Right of I*rotiction or Propertii hi the Fur Kisiit of pro- Seals frequenting the Islands of the United States in /^V'//>'-,.rty'iuseai.s'oiu- i7ig Sea when sueh seals are found outside the o/7//7<«>'y«i*i'»3-miie limit. 3-m%le limit f A NOVEL CLAIM. The claim involved in this question is not only new in the present discussion, but is entirely without precedent. It is, moreover, in contradiction of the position assumed by the United States in analogous cases on more than one occasion. The claim appears to be, in this instance, made oidy in respect of seals, but the principle involved in it might be extended on similar grounds to other animals ferw natura', such, for instance, as whales, walrus, salmon, and marine animals of many kinds. Apart from the ordinary limits of territorial jurisdiction over waters adjacent to coasts, or to some exceptional con- dition based upon agreement, there is absolutely no prece- dent for the assum])tion of the right to property in a free-swimming animal, whose movements are uncontrolled and not controllable by man. Fur seals are indisputably animals /e/Yt'wa^j(rrt', and such animals have been universally regarded by jurists as res nullius until they are captured. No person can have property in them until he has actually reduced them into possession by capture. Why should there be a property in seals in Behring- Sea alone? Outside Behring- Sea citizens of the United States have pursued the seals for years as Canadians have done, and are doing, without let or hindrance, and with the full knowledge of the United States Government. The proposition that on one side of the Aleutian Archi- pelago a seal is the property of the United States, and on 104 CASE OF GREAT BRITAIN. tlie other it is tlie i)r()perty of any inau who can catch it, can only be supported on the j:>roimd that JJehriiig Sea is the domain of the United States, in other words, a mare clausum. CLAIM INVOLVES MAKE CLAUSUM. It is, moreover, submitted that if seals before capture constitute special property, tlie lar(;eiiy of a seal ou 1.3(5 the high seas by a vessel not belonging to the United States is not cognizable by the United States Courts, and that any claim to protection of seals beyond territorial jurisdiction must involve mare claHsiim. Whatever arguments may be brought forward in order to induce other nations to concur in the adoption of Eegu- lations limiting and interfering with their rights to fish for and catch seals or other animals /e>'rt; naturcv upon the high seas, no nation under the principles of law and the practice among nations can, without the concurrence of all interested Powers, interfere with vessels engaged in this pursuit when outsideof the ordinary territorial jurisdiction. FREEDOM OF SEAL FISHEKIES ASSERTED BY UNITED STATES. The principle suggested in the question discussed in this chapter has been steadily resisted by all nations. The Government of the United States has more than once dis- tinctly asserted the principle that the fur-seal fishery is part of the ocean fishery, and free to all, beyond the 3-mile limit. FALKLAND ISLANDS — CASE OF THE "HARRIET." In 1832 the United States scliooner " Harriet," Davison, master, was seized by the Government of the Republic of Buenos Ayres at the Falkland Islands 5 that Government having claimed the right to capture and detain United States vessels engaged in the seal fishery at the Malvinas (Falkland Islands) and the islands and coasts adjacent to Cape Horn. The United States Charge d' Affaires w^rote, on the 20th June, 1832, to the Buenos Ayres Minister as follows: ... Tli ^ ''^^.JJ}; correctly stated by Chancellor Kent as follows : i, 9th edition. "^ '' Boston, 1858, p. The open sea is not capable of being possessed as private property. 29. The free use of the ocean for navigation and tishing is common to all mankind, and the public jurists generally and explicitly deny that the mam ocean can ever be appropriated. The controversv between Grotius and Selden as to the wheaton, Eie- . , .*'., . n 1 1 ij.1 iiieuts, otii eai- right ot appropriation by a nation ot the sea beyond the tion by Dana, immediate vicinity of the coast is thus reviewed by Wheaton: i»6G,p.269. I'licro are only two decisive reasons applicable to the question. The first IS physical and material, which would alone be sufticient; but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy. 1. Those things which are originally the common property of all mankind can ouly become the exclusive property of a particular indi- vidual or society of men, by means of possession. In order to estab- 108 CASE OF GREAT BRITAIN. lish the claim of a particular nation to a right of property ia the sea, that nation must obtain and keep possession of it, which is impos- sible. 142 2. In the second place, the sea is an element which belongs equally to all men, like the air. No nation, tlion, has the right to appropriate it, even though it might be physically possible to do so. uTv^'i ^''*°^*?' It is thns demonstrated that the sea can not become the exclusive I'ii Mer "''l*ui I property of any nation. And, conse(iuently, the nee of the sea for pp. 120-126. ' these purposes, remains open and common to all mankind. NO PRESCRIPTION IN OPEN SEA. lu a note on this passage of Wbeaton, Mr. Dana adds tbat— The right of one nation, or of several nations, to an exclusive juris- diction over an ojien sea, was, as stated in the text, rested solely on a kind of prescription. But, however long ac(iuiesced in, such an appro- priation is inadmissible, in the nature of things; and whatever may be the evidence of the time or nature of the use, it is set aside as bad usage which no evidence can make legal. Sir li. Pliillimore writes: Phillimore,"In- The right of navigation, fishing, and the like, upon the open sea, tern at ion al being jura mcvfr faeuliaiis, rights which do not require a continuoiis tion^isT^I Sm ®^*^'^''^*' ^*^ maintain their validity, but which may or may not be ' ' ' exercised according to the free will and pleasure of those entitled to them, can neitlier be lost by non-user or prescvihed against, nor acquired to the exclusion of others by having l)een immemorially exercised by one nation only. No presumption can arise that those who have not hitherto exercised such rights, have abandoned the intention of ever doing so. POSITION TAKEN BY THE UNITED STATES IN 1802 : CUBA. The following- position was correctly taken by the United States in 1802, and, it is presumed, will be adliered to by that country to-day. In that year S])ain pushed her claim to an extended jurisdiction around the island of Cuba. Secretary Seward wrote : Mr. Seward to It can not be admitted, nor indeed is Mr. Tessara understood to wf l^^TYo^ t^^ claim, that the mere assertion of a Sovereign, by an act of legisla- of 'Internatioual ^io^ij however solenui, can have the etfect to establish and fix its exter- Law," vol. i, sec. nal maritime Jurisdiction. . . . He can not, by a mere Decree, extend 32, p. 103. the limit and fix it at ti miles, because, if he could, he could in the same See Blue Book, manner, and upon moti V(!S of interest, ambition, and even upon caprice, "United States, fl^ it at 10, or 20, or .50 miles, without the consent or acquiescence 518 '' ^^ °^ other Powers which have a common right Avith himself in the free- See Appendix, doni of all the oce,aiis. Such a pretension could never be successfully vol. iii. or rightfully maintained. It is claimed by Great Britain that the facts already stated establish : Chapter I. ( \)_ That ft'oiiithe earliest times down to the year ciSiour.'"''^ '""■ 1^3 1^^'^ *^'*^ ^'^^P'^ ^*" tii'^at Britain and the United States and of other foreign nations navigated the non-terri- torial waters of Behriiig Sea and the other parts of the North Pacific, and exercised freely the natural and common rights therein without interference or remonstrance by Russia. Chapter II. (]^)_ rpj,^^ whoii, ill tlic ycar 1821, Russia, in the tei-ms of tlie Ukase of that date, advanced claims to exercise control CASE OF GREAT BRITAIN. 109 over a considerable portion of the non-territorial waters of the North Pacitic (inclndin*!,' a large i)art of the non-terri torial waters of Beliring- Sea) as over a marc clasnju^ the practice of nations and tlieir admitted rights upon the high seas were already entirely opposed to any claim to such exclusive and exceptional rights as were embodied in or implied by the Ukase. That this attempt on the part of Eussialed to immediate and emphatic protests by Great Britain and the United States, which protests led to the withdrawal of Eussia's claims. That those claims were never recognized or con- ceded by Great Britain in the smallest degree. That, in view of the continued pra entice of nations and the growth of the ])rinciples of international law since 1821, the arguments then employed by (Jn at Britain and the United States have to-day, if i)ossib]e, even greater weight than at that period. (C). That the body of water now commonly known as ciiiiptcriiT. " Behring Sea" is included in the phrase " Pacific Ocean" as used in the Treaty of 1825 between Great Britain and Kussia, and tbat that Treaty was intended to declare the rights of Great Britain to navigate and fish in all the waters over which Eussia had attempted to control and limit such rights, that is to say, from Behring Strait on the north to latitude 51° on the coast of America, and latitude 45° 50' on the coast of Asia. (D). That for a period of more than fort}' years, that is to chapter iv. say, from 1821 to 1807, the subjects and vessels of Great Britain and the United States and other nations continued in increasing numbers to navigate, trade, and lish in the waters of Behring Sea, and that during the whole of that period no attempt was made on the part of Eussia to reassert or claim any dominion or Jurisdiction over the non- territorial waters of that sea; but that, on the contrary, the right of all nations to navigate, fish, and exercise com- mon rights therein was fully recognized. 144 (E). That at the time of tlie acfiuisition of Alaska chapti-rv. by the United States pursuant to the Treaty of the 30th March, 18(57, Eussia had no rights in respect of Behring Sea other than those which belonged to her as possessing territories washed by its waters, and could not transmit to the United States any rights of exclusive dominion or control over navigation and fishing in non- territorial waters, and the Unite(l States of America acquir- ing as they did all the rights of Eussia, acquired no more. Further, that at the time of the acquisition the United States of America was fully alive to the fact that the non- territorial waters of Behring Sea were open to the ships of all nations for the jiurpose of the exercise of the common rights of navigation and fishing. That as to the rights which Eussia possessed at the time of the Treaty of 1807, and A\hich v»'ere transferred to the United States by virtue of that Treaty, the ordinary rule as to the extent of maritime jurisdiction ajtplied. 110 CASE OF GREAT BRITAIN. AUTHORITIES AS TO THE 3-MILE LIMIT. Admitting, in tlie consideration of tliis question, that Eussia's title before 18G7 to the coast of Behring' Sea and to the islands Avitliin those waters was coniplete, an exam- ination of the principles of international law and the prac- tice of nations will show that her jurisdiction (subject to the question of embayed or inland waters) was contined to the distance of 1 marine league or 3 miles from her shores. ORTOLAN. Ortolan, in his " Diplomatic de la Mer," pp. 145, 153 (edition 1864), says: Proceedings of Qn doit ranger sur la raeme ligne quelesrades et les ports, les golfes ^8 Cominission ®^ ^^^ bales et tons les enfoncements coiniiis sons d'autres d6nomiua- 1877, p. 163. ' tions, lorsqne ces enfoncements, formes par les terres d'uu meme fitat, ne d^passent pas en largeur la double portce du canon, on lorsqne I'entr^o pent en ctre gouvern<^e par I'artillerie, on qu'elle est ddfendue naturelleiuent par des lies, jtar des bancs, on par des rocbes. Dans tons ces cas, en effet, 11 est vrai de dire que ces golfes on ces bales sont en la puissance de I'l^tat raaltre du territoire qui les enserre. Get £tat en a la possession : tons les raisonneinents que nous avons fait h regard des rades et des ports peuvent se r6p^ter ici. ^ -Jf Tf # -1? Ortolan, p. I5:i. ^gg ijo^jg et rivages de la mer qui baigne les cotes d'un Etat sont les limites maritinies natureUes de cet Etat. Mais pour la protection, \}o\\T la defense plus efficace de ces limites natureUes, la coutnme gen- ^rale des nations, d'accord avec beaucoup de Traitc^s publics, permet de tracer sur mer, a une distance conveuable des cAtes, et 145 suivant leurs contours, nue ligne imaginaire qui doit etre con- sidoree comnie la fronticre maritime artificielle. Tout batiment qui se trouve a terro de cette ligne est dit ctre dmts les eaux de I'fitat dont elle limite le droit de souveraiuet6 et de jnridiction. CASE OF THE "WASHINGTON." — MR. JOSHUA BATES' DECISION. Under the clauses of the Convention of the 8th Febru- ary, 1853, the case of the "Washington" (which had been seized in the Bay of Fundy and confiscated in the Vice- Admiralty Court at Yarmouth, N. S.) came before the Joint Commission for settlement of claims in London, and on the disagreement of the Commissioners was decided by the Umj)ire, Mr. Joshua Bates, in favour of the United States. In his decision he said : shores and hays of Newfoundland; but they bad that right on the shores, coasts, hoi/s, harboum, and creeks of Nova Scotia; and, as they must land to cure lish on the shores, bays, and creeks, they were evidently admitted to the shores of the hays, ears no doubt that the '•■ Washington," in Jishing 10 miles from the shore, violated no stipu- lations of the Treaty. It was urged, on behalf of tlio liriti.sh Government that by "coasts," "bays," SiC, is understooil an imaginary line drawn along the coast CASE OF GREAT BRITAIN".' Ill from headland to headland, and that the jurisdiction of Her Majesty extends 3 murine miles outside of this line; thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundj-, against Americans and otliers, making the latter a British bay. This doctrine of the headlands is new, and has received a proper limit in the convention between France aud Great Britain of the 2nd August, 1839; in which "it is agreed tliat the distance of 3 miles, fixed as the general limit for tlie exclusive right of fishery upon the coasts of tlie two countries, shall, with respect to bays the mouths of which do not exceed 10 miles in width, be measured from a straight line drawn from headland to lieadland." The Bay of Fundy is from {i5 to 75 miles wide and 130 to 140 miles long; it has several bays on its coast; thus the word "bay," as applied to this great body of water, iuis the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which 146 no nation can have the right to assume sovereignty. One of tlie headlands of tlie Bay of Fundy is in the United States, and ships bound to Passama(iuoddy must sail through a large space of it. Tlie islands of Crand Menan (British) and Little Menan (American) are situated nearly on a line from headland to lieadland. These islands, as represented in all geographies, are situated in the Atlantic Ocean. The conclusion is therefore in my mind irresistible that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word as used in the Treaties of 1783 and 1818. The Agent for tlie rinited States before the Halifax Fisheries Comiriission, 1877, quotes this decision, and adds the following note: This Convention between Franco and (lireat Britain extended the rroceedinj^s of headland doctrine to bays 10 miles wide; thus going beyond the gen- .f l;,'^'^.^ f'ish- eral rule of international law, according to which no hays are treated ,si„n^ ig;;^ p'."l53 as within the territorial. jurisdiction of a State which are more than (uote). 6 miles wide on a straight line measured from one lieadland to the other. SECRETARY IJOITT WELL'S OPINION. The principle of the marine league was in 1872 applied by Mr. Bontwell, TTnited States Secretary to the Treasury, m his letter of instructions to the Collector of Customs at ^of^'iog"'*'*' ^^' San Francisco, dated l!»lh April, 1872, already quoted, as follows : I do not see that the Fnited States would have the Jurisdiction or power to drive off y)arties going \\\) there for that jiurpose [to take fur-seals], unless they made such attemjit within a marine league of the shore. I SECRETARY FISH'S OPINION. The same principle was affirmed in respect of the waters now ill question by Mr. Fish, the United States Secretary see «»<«, p. 109. of State, who wrote to the United States Legation in Eus- sia on the 1st December, 1875: There Avas reason to hope that the practice, which formerly pre- Wharton's "Di- vailed with powerful nations, of regarding seas and bays, usually of gpst," sec. 32, p. large extent near their coast, as closed to any foreign commerce of ^"''• fishery not specially licensed by them, was, without exception, a pre- tension of the past, and that no nation would claim exemption from the general rule of jjiiblic law which limits its maritime jurisdiction to a marine league from its coast. We should particularly regret if Russia should insist on any such pretension. The same position was taken up by the United States in their brief tiled with the Halifax Fisheries Commission in 1877. 112 CASE OF GREAT BRITAIN. 147 The Agent of the United States at Halifax, after setting out the various authorities under this head, concluded as follows: AUTHORITIES QUOTED BY THE UNITED STATES IN HALI- FAX FISHERIES COMMISSION. Proceeilinii.s of The jurisdiction of a Stato or country over its adjoiniug waters is Halifax Pish- limited to 3 miles from low-water mark aloug its sea-coast, and the erics Cj) in in i^s- g^^mg, ru]y applies equally to bays and gulfs whose width exceeds 6 siou, J8/7, 15. -. jijjjgy from headland to headland. Property in and dominion over the sea can only exist as to those portions capable of permanent pos- session; that is, of a possession from the land, which possession can only be maintained by artillery. At one mile beyond the reach of coast-guns there is no more possession than in mid-ocean. This is the rule laid down by almost all the writers on international law. As to inland seas and seas over which empire may extend, the following;- authorities were referred to by the Agent in the same brief: A'ATTEL. Ibid., p. 162. At pre.sent, says Vattel, "Law of Nations," Book 1, ch. xxiii, (ji§ 289, 291, the whole space of the sea within cannon shot of the coast is considered as making a part of the territory; and, for that reason, a vessel taken under the guns of a neutral fortress is not a good prize. All we have said of tlie parts of the sea near the coast may be said more particularly, and with much greater reason, of tlie roads, bays, and straits, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and straits of small extent, and not of those great ])arts of the sea to which these names are sometimes given — as Hudson's Bay and the Straits of Magellan — over which the J^mpire cannot extend, and still less a right of property. A bay whose entrance may be defended may be possessed and rendered subject to the laws of the Sovereign; and it is of importance that it should be so, since the country may be much more easily insulted in such a place than on the coast, open to the winds and the impetuosity of the waves. uluntschli. Ibid., p. 163. Professor Bluutschli, in his " Law of Nations," Book 4, §§ 302, 309, states the rule in the same way: When the frontier of a State is formed by the oi)cn sea, the part of the sea over which the State can from the shore make its power respected — i. e., a portion of the sea extending as far as a cannon-shot from the coast — is considered as lielonging to tlie territory of that State. Treaties or agreements can establish other and more precise limits. Note. — The extent practised of this sovereignty has remaricably increased since the invention of far-shooting cannon. This is the consequence of tlie improvements made in the means of defence, of which the State makes use. The sovereignty of States over 148 the sea extended originally only to a stone's-throw from the coast; latei', to an arrow-shot; fire arms were invented, and by rapid progress we have arrived to tlu; far-shooting cannon of the present age. But still we preserve the priuci))le: '' Terrw dominiitm finitur, iibi fiitittir ormornm ris." Within certain limits, there are suluuitted to the sovereignty of the bordering State: (a) The portion of thi^ sea ]>la.C(i(l within a cannon-shot of the shore. (b) Harbours. {(■) Gulfs. (d) Roadsteads. Note. — Certain portions of the sea. are so nearly joined to the ferra firma, that, in some measure at least, they ought to form a part of the territory of the bordering State; they ar(» considered as accessories to the terra firma. The safety of the State, and the ])ubli(' (|uiet, are m CASE OF GREAT BRITAIN. 113 depenfleiit on them that they cannot he contented, in certain gnlfs, with the portion of the sea iyinff under the tire of cannon from the coast. These exceptions from the j^eneral rule of the liberty of the sea can only be made for weighty reasons, and Avhen the extent of the arm of the sea is not large; thns, Hudson's Bay and the Gulf of Mexico evidently are a part of the open sea. No one disputes the power of England over the arm of the sea lying between the Isle of Wight and the English coast, which conld not be admitted for the sea lying between England and Ire hind ; the Ejiglisli Admiralty has, how- ever, sometimes maintained tlie theory of "narrow seas;" and has tried, lint without success, to keep for its own interest, under the name of ''King's Chambers," some considerable-extents of the sea. Kliiber, "Droit rtcs Gens Modernes de I'Europe (Paris, edition 1831)," torn, i, p. 21(5: An territoire maritime d'nn lOtat apjiartienncnt les districts mari- Proceedings of times, on naragcs susceptiblcs d'une possession exclusive, sur lesnuels ■ " /," L .'".''' lEtat a acquis (par occupation ou convention) et continiKi hi souver- 1377^ p. les. aincte. Sont de ce nombre, (1) Les parties de I'occan <|ui avoisiuent le territoire continental de I'Etat, dn moins, d'aprcs ropiuiou ])res(|ue gcndraleinent adoptee, autant qu'elles se trouvent sous la ])ort('e dn canon qui serait place sur le rivage; (2) les parties de I'oceau (iiii s'dteudent dans Ic territoire continental de I'l^tat, si elks peuvent etre gouvernces par le canon des denx bords, ou que I'entree seulcment en pent etre defenduo aux ^■aisseaux (golfes, bales, et cales); (3) les detroits qui so])areut denx continents, et qui egalement sont sous la porteedu canon ])laci' sur le rivage, ou dontj'entreeet la sortie peuvent etre defendues (dctroit, canal, bosphore, sonde). Sont encore du mrme nomlire; (1) les golfes, dotroits, et mers avoisinant le territoire continental d'nn fitat, lcs(|uels, (juoi(iu'ils lie soient pas enti( rement sous la portce dn canon, sont neaumoins reconnus par d'autres 149 Puissances comme mer fernice; c'est-i\-dire, comme soumis :\ line domination, et, par conscn8,voi.ii. the high seas. i«. 730. SLAVK TRADE. A similar view has been adopted by all nations in rela- tion to the Slave Trade. Although it cannot properly be argued that the taking of seals in any manner whatever is comi)arable with the immorality or injustice attaching to the Slave Trade, yet, even in the case of vessels engaged in that trade, the rights of nations have not been allowed to be overruled on such pleas. Upon this point legal authorities both in the United States and in (Ireat Britain are quite clear. CASE OF "LE I.OUIS" ENGAGED IN SLAVE TRADE AND SEIZED. In 1810 a French vessel ("Le Louis") sailing from ^^^'^- x^li'^ i^^T^l^S tinicjue, destined on a voyage to the coast of Africa and sons Ad'minuty back, was captured 10 or VI leagues to the southward of 2j'{,'"'"''' ^"^' ''' ''• Cape Mesurada, by the "Queen Charlotte" cutter, and' carried to Sierra Leone. She was proceeded against in the Vice-Admiralty Court of that colony. It was alleged that the vessel was fitted out for the pur- pose of carrying on the African Slave Trade, after that trade had been abolished by the internal laws of France, and by the Treaty between Creat Britain and France. 154 The King's Advocate admitted the proposition to be true genendlij that the right of visitation and to search does not exist in time of peace, but denied it be so universally. Occasions, he argued, may and must arise, at a period when no hostilities exist, in which an exercise of this power would be justifiable. The rule of law could not be maintained as a universal proposition, but was subject to exceptions, and within those exceptions must be included tlie present transaction, which was a transgression, not only of municipal law, but likewise of the general law of nations. In whatever light the Slave Trade might have been viewed in former times, it must no longer be deemed within the protection of the law of 118 CASE OF GREAT BRITAIN. nations. Since the Declaration of tlie Congress of Vienna, that the Slave Trade was repugnant to the principles of humanity and of universal morality, traHic in shives must be considered a crime, and it was the right and duty of every nation to prevent the commission of crime. On the whole, he submitted that the "Le Louis," having been engaged in a traffic prohibited by the laws of her own country, and contrary to tlie general laws of humanity and justice, ought not to be restored to tlie claimarit. LOKD STOWELL'S JUDGMENT. SEIZURE NOT .lUSTIEIEI). Sir William Scott, afterwards Lord Stowell, in the Brit- ish High Court of Admiralty, held, liowever, that trading in slaves was not a crime by universal law of nations. He observed : S<^*^. Dortson'a Neithei" this Court nor any other can carry its private apprehensions, v. 2r.2. _ _ _ Much stress is laid upon a solemn declaration of very emi- nent persons assembled in Congress, whose rank, high as it is, is by no means the most respectable fouiulatioii of the weight of their opin- ion that this traffic is contrary to all religion and morality. Great as the reverence due to such authorities may be, they can not I think be admitted to have the force of overruling the established course of the general law of nations. * ^ M * *s See Dodsoii's 155 It is next said that every country has a right to enforce its viVirp 252 ^*^''' ^^" navigation laws; and so it certainly lias, so far as it does not interfere with the rights of others. But it has no right, in con- sequence, to visit and search all the apparent vessels of other coun- tries on the high seas. lUiil.,11. 2r)0. It is said, and with just concern, that if not permitted in time of peace it will be extremely difticult to suppress the Traffic. It will be so, and no man can deny that the suppression, however desirable, and however sought, is attended with enormous difficulties; difficulties which have bafHed the most zealous endeavours for many years. To every man itmust have been evident that without a general and sincere concurrence of all the maritime States, in the principle and in the proper modes of ]>iir8uiiig it, comparatively but little of ])Ositive good could be ac(iuircd ; so far at least, as the interests of the victims of this commerce were concerned in it: and to every man who looks to the rival claims of these States, to their established habits of trade, to their real or pretended wants, to their ditf'erent modes of thinking, and to their real mode of acting upon this ]iarticular subject, it must be eciually evident that such a concurrence was matter of very difficult attainment. But the difticulty of tlie attainment will not legalize measures that are otlu^'wise illegal. To i»ress forward to a great prin- ciple by breaking through every other great priiici)tle that stands in the way of its establisliment; to force the way to the liberation of Africa by trami)ling on the independence of other States in Europe; in short, to procure an eminent good by means ihatart^ unlawful; is as little consonant to private morality as to jmblic justice. Obtain the concurrence of other nations, if you can by ai)plicatiou, by remon- strance, by example, by every peaceable instrument which man can employ to attract the consent of man. But a nation is not jnstihed in CASE OF GREAT BRITAIN. 119 ussnming rights that do not belonc; to her, merely because she means to apply them to a laii(lal)le purpose; uor in setting out upon amoral crusade of converting otlier nations by acts of unlawful force. Nor is it to be argueil that because other nations approve the ultimate pur- pose, they must, therefore submit to every measure which any one State or its subjects may inconsiderately adopt for its attainment. In accordance witli this view of the law, the Jiuljiment of the Vice- Admiralty Court of Sierra Leone, condemning- the French ship for being enii)loyed in the Slave Trade and for forcibly resisting the search of the King of England's cruizers, was reversed. CASE OF TIIK "aXTELOPE'" — UNITED STATES SUPREME COURT TO SAME EFFECT. The decision of the Supreme Court of the Ignited States wheaton. Re- in the case of the "Antelope" is to the same effect. There Sr ' ^" ' ' ^' Chief Justice Marshall delivered the opinion of the Court, holding that the Slave Trade, though contrary to the law of nature, was not in conflict with the law of nations: 156 No principle of general law is more universally acknowledged Wheaton, Ke- than the perfect equality of nations. Russia and (ieueva have f'!,'.^'^' ^'"'- ^^' P- equal riglits. It results from this equality, that no one can right- fully impose a rule on another. Each legislates for itself, but its leg- islation can operate on itself alone. A right, tlien, which is vested in all by the consent of all, can hr devested only by consent; and this trade, in which all have participated, must remain lawful to those who can not be induced to relinquish it. As no nation can prescribe a rule for others, none <'au make a law of nations; .and this tratlfic re- nuiins lawful to those Avhoso governments have not forbidden it. If it is ccmsistent with the law of nations, it can not in itself be piracy. It can be made so only by statute; and the obligation of the statute can not transcend the legislative power of the state which may enact it. If it be neither rcpugimut to tlie law of nations, nor piracy, it is almost superfluous to say in this Court, that the rigiit of bringing in for adjudication in time of ])eacc, even where the vessel belongs to a luition wliich has prohibited the trade, can not exist. The Courts of no country execute the penal laws of another, and the course of the American government on the subject of visitation and search, would decide any case in wiiicli that right had been exercised by an American cruizer, on the vessel of a foreign nation, not violating our municipal laws, iigainst the captors. It follows, tliat a foreign vessel engaged in the African slave trade, cai)tured on the high seas in time of peace, by an American cruizer, and brought in for adjudication, would be restored. MR. DANA. The subject is fully discussed in Mr. Dana's note No. 108 jp^atlomaiLaw"' to Wheaton's International Law (p. 258), where it is said of stu idition, I'.y Chief Justice AFarshall, in Church versus Hubbart, 2 f ^gjg^'^"''' ^^''"• Cranch, 187 : It is true, that Chief Justice ^Marshall admitted the right of a nation to secure itself against intended violations of its laws, by seizures made within rcasonalilo limits, as to which, he said, nations must exercise comity and concession, and the exact extent of which was not settled; and. in the case before the court, the 4 leagues were not treated as rendering tiio seizure illegal. This remark must now be treated as an unwarranted admission. ... It may he said that the principle is settled, that ninnicipal seizures can not be made, for any ll)iehring Sea was included in the phrase ''Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Kussia. 10. From the year 1824 down to 1880 the vessels of Great Britain have continuously, and without interruption or interference, exercised the riglits of navigation and fish- ing in the waters of Behring Sea other than the territorial waters tliereof. 11. The right of all nations to navigate and fish in the waters of Behring Sea, other tlian the territorial waters thereof, have been repeatedly recognized and admitted both by Kussia and by the LTnited States of America. 12. Whatever territorial rights passed to the United States under and by virtue of tlie Treaty of the 30th March, 18G7, Kussia had not the right to transmit, and the United States did not acquire, any jurisdiction over or rights in the seal fisheries in any part of the sea now known as Behring Sea, other than in the territorial waters thereof. 13. The Treaty of Cession of the 30th ]\Iarch, 18G7, did not con veyanythingmore than ordinary territorial dominion. 14. From the acquisition of Alaska by the United States in 1867 down to the year 1886, no attempt was made by the United States to assert or exercise any right to limit or interfere with the right of (ireat Britain, or of any otlier nation, to navigate and fish in tlie waters of Behring Sea other than the territorial waters. 160 15. The sole right of the United States in resjiect of the protection of seals is that incident to terri- torial possession, including the right to prevent the sub- jects of other nations from entering upon land belonging to the United States, or the territorial waters thereof, so 122 CASE OF GREAT BRITAIN. as to prevent tlieir capturing' seals or any otlier animals or fish either on such hinds or in such territorial waters. 1(». The United States have not, nor has any subject of the United States, any property in fur-seals nntil they have been reduced into possession by capture, and the property so acquired endures so long- only as they are retained in control. 17. Fur seals are animals ferw natura', and the United States has no right of protection or property in fur seals when found outside the ordinary o mile limit, whether such seals frequent the islands of the United States in Behring Sea or not. IS. The right of the subjects of all nations to navigate and fish in the non-territorial waters of the sea now known as Behring Sea remains and exists free and unfettered, and cannot be limited or interfered with except with the concurrence of any nations affected. 11). No regulations affecting British subjects can be established for the protection and preservation of the fur seal in the non-territorial Avaters of Behring vSea without the concurrence of Great Britain. 161 CONCLUSION. It is submitted on behalf of Great Britain to the Tribu- nal of Arbitration, that the questions raised in this arbi- tration are of far .ureater importance than the mere pres- ervation of a particuhir industry; they involve the right of every nation of the world to navigate on and fish in the high seas, and to exercise without interference the common rights of the human race; they involve the ques- tion of the right of one nation by Proclamation to limit and interfere with rights which are the common heritage of all mankind. In defence of these rights and in the interests of all civilized nations, the above arguments are respectfully urged upon the consideration of the Tribunal. SCHEDULE OF CLAIMS. The schedule annexed to this Case contains particulars in connection with the claims presentedunder Article VIII of the Treaty of Arbitration, and the facts and evidence contained in the Schedule are submitted to the considera- tion of the Tribunal for the purposes stated at p. V2 of this Case. 123 INDEX TO BRITISH CASE. A. Page. Action of United Stiitos and Russia, 1867-1S86 103 Adams, Mr. J. (^., article in "fsorth Americau Keview" 35 to M. Poletica, February 25, 1822 47 March 30, 1822 49 to Mr. Middleton, July 22, 1823 33, 50 " Adole," Hei/Aire of 112 Alaska, act for protection of fur-bearing animals in 104 cession of, to United States in 1867 91 debates iu Congress on 99 report on fisheries of, iu 1889 123 Aleutian Archipelago, description of, by Greenhow 96 Augell, Professor, article by, in "Forum'' 75, 151 "Anna Peck," brief for United States in case of 127 "Antelope," case of 155 Artie Ocean, line of demarcation extends to 98 Argument, heads of 10 outline of 7 recapitulation of 158 Arrangement of case 9 Authorities as to 3-nule limit 144 B. Bagot, Sir ('., to Lord Uond(mdcrr\ . November 17, 1821, map of Behring Sea sent by '. 62 Bancroft, Mr., on " Pacilic ( )ceau " 72 on Russian occupation of Alaska 35 BarauoiF, Governor 21, 22, 23 Bates, Mr. J., on case of " Washington" 145 Bayard, Mr., on seizure of " Henrietta" by Russian Government 118 Beechey, Captain, voyage of 65 Behring, expeditions of 14 Behring Sea, a part of the North Pacitic 13 description of 14 frequented Ity vessels for fishing and hunting 109 imperfectly surveyed 97 included in North Pacitic by Ukase of 1821 59 is an open sea 141 line of demarcation in 95 Behring Straits, freedom of navigation in 65 Billing, expedition of 18 Blaine, Mr., argument that Behring Sea not part of the Pacific 130 disavows contention that Behring Sea is a mare clausum 131 on contention that Behring Sea is not included in the I'aciiic 60 on ])elagic sealing 130 to Sir J. Pauncefote, 14th April, 1891. Claim of property interest iu seals 133 Bluutschli, Professor, on territorial waters 147 Boutwell, Mr., on marine league limit 146 on United States' jurisdiction in Alaskan waters 107 report of, in 1870 103 to JMr. Phelps, April 19, 1872 108 125 126 CASE OF GREAT BRITAIN. c. i'age. Canning, Mr. G., to Duke of Wellington, September 27, 1822 41 to Sir C. Bagot, July 24, 1824 45 to Mr. S. Canning, December 8, 1824 45 Canniug, Mr. S., to I^ord Londouderrv, February 19, 1822 62 to Mr. G. Canning, March 1, 1825 56 April 3, 1825 56 "Carolena," seizure of 1 Case, arrangement of 9 Census of Russian settlements in 1819 32 Cession of Alaska, debates on, in Congress 99 rights acquired by I^nil^ed States 91 Charts of Behring Sea and North Pacific 73 Claim of property, a novel cue 135 Closed seas (see Mare clai(sitm). Conclusions to Chapter I 36 II 58 III 76 IV 90 V 102 VI 121 VII 134 VIII 140 Conclusion 161 Congress, debates in, on cession of Alaska 99 on rights of the United States 123 Contentions of Great Britain, summary of 142-144, 152 of United States since 1886 121 Contra bonos mores, pelagic sealing said to be 130 Convention between United States and Russia, 1824 52 Great Britain and Russia, 1825 53 and United States of 1892 2 Cook, Captain, discoveries of, in North Pacific 15 voyages of 15 "Corwin," report of cruise of, in 1885 119 Cuba, position taken by United States as to 142 D. Dallas, Mr. , on rights of trade on Northwest Coast 81 Damages, schedule of claims for 162 Dana, Mr., note to Wheatou's "Elements" 152 Speech by 139 D'Ancona, Mr., letter from, March 12, 1881 Ill Davis, Mr. , on Russian claims in 1824 75 Demarcation, line of, in Behring Sea 95 Discoveries in North Pacific 14 JB. "Eliza," seizure of the 117 Elliott, Mr. II. W., includes Behring Sea in the Pacific 70 Etholen, reports on whalers in Behring Sea 83 Europa, case of 114 Exclusive jurisdiction, first assertion of, by Russia 38 F. Falkland Islands, case of the " Harriet" 136 seal fisheries of 137 Ferw natnnr, animals can not be property 140 Ferriss, Mr., on cession of Alaska 101 Fish, Mr., to Sir E. Thornton, .lannary 22, 1875, asserts marine league to be limit of jurisdiction 149 on convenf'ion of 1824 109 Foreigners, competition of, with Rn.ssian-American Comi)any 37 Forsyth, Mr., on case of the "Loriot," November 3, 1S37 80 "Forum," article in, by Professor Angell 75, 151 French, Mr., letter to Mr. d'Ancona, March 12, 1881 Ill CASE OF GREAT BRITAIN. 127 Page. Fur seals are animals fcra^ natiirw 135, 160 Freedom of lisliery asserted by United .States 136 right of i)ro]3erty in, claimed by United States, nuprecedented 135 suggested couveution for protection of 126 ii. Gazetteers, references to, as to Beliriny; Sea, eic 73 Geographical use of " Pacific '' and " Northwest Coast " 72 Golovnin, on Russian-American Company 32 Greenhow, memoir by, on Pacific Ocean 67 on Aleutian Archipelago 96 on Falkland Islands 137 on Northwest Coast 66 H. Halifax Fisheries Commission, proceed iugs of 145 speech of Mr. Dana at 139 Hall, Mr. W. E., on Ukase of 1821 76 Halleck, on closed seas 150 Hanna, Captain, discoveries of 16 " Harriet," case of 136 " Henrietta," seizure of 118 Historical outline of discoveries and trade in North Pacific, 1728-1799 14-22 18(10-1820 29-32 1821-1867 77-88 Hoffman, Mr., correspondence with Mr. Frelinghuysen in 1882 151 to M. de Ciiers, May 8, 1882 .- 71 Sea of Okhotsk not a viare clausnm 114 Hudson Bay Company informed of Ukase of 1821 63 1. Illicit traffic, object of Ukase of 1821 to prevent 39 Introductory statement 1 J. " Java," case of 115 Jurists, A'iews of as to Pacific Ocean and Northwest Coast 75 K. Kent, Chancellor, on op(Mi sea 141 Kliiber on marine j urisdiction 148 I.. La P^rouse, voyages of 17 "Le Louis," seizure of 153 Londonderry, Lord, to Count Lieven, January 18, 1822 41 " Loriot," case of 79 Lutz, Lieutenant, instructions to 112 Lyall, Mr., to Mr. G. Canning, November 19, 1823 44_ Lynde and Hough corresi>ondence 116 M. Manning, Mr. D., on United States jurisdiction in Alaska in 1886 120 Map sent by Sir C. Bagot . . : ' 62 Mare clausum, doctrine of, disavowed by Mr. Blaine 131 various authorities on 150 Ukase of 1821 based on 48 Marine league limit, autliorities on 144 Mr. Boutwell on 146 Marshall, Chief .Justice, on case of the " Antelope " 155 Meares, A^oyages of 17 Memoir by Greenhow on Pacific Ocean, etc 66 Memorial'by Mr. Middleton, December 17, 1823 64 128 CASE OF GREAT BRITAIN. Page. Middletoii, Mr., to Mr. Adams, September 19, 1823 43 l)ecember 1, 1823 50 memorial by, December 17, 1823 64 paper submitted to Count Nessclrode by, April -/'j, 1824 51 to Mr. Adams, April 7, 1824 .' 28 Modus Vivendi of 1891 ... 1 122 Monroe. President, to Mr. Madison, August 2, 1824 57 IV. Nesselrode, Count, memorandum by, November W, 1822 42 on case of " Loriot," February 23, 1838 81 to Count Lieven, June 26, 1823 44 Nicolay, Baron, on " Northwe.st Coast,'' October 31, 1821 61 "North American Review," article by Mr. Adams 35 Northwest Coast, meaning of 60 trading vessels on 30 passage, expeditions in search of 32 O, Okhotek, Sea of, questions between United States and Russia as to rights in.. 113 subject to Ukase of 1821 114 whaling in 113 " Onward," seizure of 1 Ortolan, ' ' Diplomatie de la Mer " 144 on mare claxsum 150 Outline of argument 7 P. Pacilic Ocean, extends to Behring Straits . . .*. G5 free navigation of asserted by Treaty of 1824 52 meaning of GO names given to 13 Russian interpretation of 69 use of term by Baron Nicolay 61 " Pearl," seizure of 57, 78 Pelikan, Mr., notice issued by 70, 116 Peters, Mr., on cession of Alaska '. 101 Petroft', Mr. Ivan, report of 1 10 Phelps, Mr., to Mr. Boutwell, March 25, 1872 107 Phillimore, Sir R., on rights of Russia 76 Poletica, M., to Mr. Adams, February 28, 1822 48, 63 April 2, 1822 49 Portlock and Dixon, discoveries of 17 Property claim involves 7nnre clausum 135 of United States novel 135 interest, claim of in fur seal 133 Proposals for international agreement 12.5 Protection, alleged right of b~>3 Protest of United States against Ukase of 1821 47 "Quarterly Review," article in on Nortliwcst Coast 64 U. Regulations, consideration of, postponed 157 Revenue cruisers, instructions to, in 1886 '- 121 Revised Statutes of United States, section 1956, made to include Bering Sea.. 125 Right of seai-ch on high seas 153 Rights of United States, discussion on, in Congress ' 123 ]iassing to United States on cession of Alaska 91 Robben Island 113 Russia, abandonment of claim to exclusive jurisdiction -- 41 action of, 1867-1886 --- 103 does not claim jurisdiction outside 3-mile limit 115 territorial claims of, in 1818 and 1821 33 CASE OF GREAT BRITAIN. 129 Pago. Jiiussiau-Araericiin Company, origin of „ 18 regiiliitions of 39 treaty, United States interpretation of 57 claiui to exclusive jurisdiction, JNIr. Adams on 35 code, article 560 117 companies, competition between 23 defense of UkasO of 1821 48 interpretation of Pacific Oce.nn 69 population in Alaska in 1860 _. 87 regulations applied only withiu 3-mile limit 115 settlements in 1819, population of 33 Mr. Sumuer ou exteut of 35 S, 'Say ward," opinion of Supreme Court in case of 133 Schedule of claims for damages 161 Seal fisheries, freedom of, asserted I)y United States 136 hunting in Bering Sea iu 1872 110 Islands, lease of 104 Seals, increased slaughter of, after cession 103 prohihition of killing, in ISHS 103 Search, right of. on high seas 153 Seizures of British vessels in ]5ehring Sea 1, 121-123 views of Mr. Blaine ou 130 Shell kof, colonies established liy 22 Sitka, destruction of 29 United States brief at court of 149 Slave trade, case of " Le Louis " 154 Stowell, Lord, Judgment of, iu case of "Le Louis" 154 Sumner, Mr. C., ou cession of Alaska 34, 100 T. "Thornton," case of the 1,127 Territorial jurisdiction, object of Ukase of 1821 to extend 39 said to extend for 100 miles 133 Trading and explorations, 1821-1836 77-79 Treaty between Cireat Britain and Russia, 1825 47, 53 of cession discussed 94 text of 91 between United States and Russia, 1824 52 made navigation free .52 text of 52 Twiss, Sir Travers, on closed seas 150 Tyler, President, ou detention of vessels on the high seas 157 U. Ukase of 1799, circumstances leading up to 22 considered 27 not notified to foreign Governments 20 purely domestic 25, 28 text of 25 and 1821, areas affected by 13 1821 based on doctrine of mare clausum 48 leading to treaties of 1824 and 1825 37 never enforced 57 protest against, by (ireat Britain 40 United States 47 purpose of 38 text of 37 Unalaska abandoned by Baranoff 30 United States, action of, 1867-1886 103 asserted no extraordinary jurisdiction previons to 1886 119 authorities include Behring Sea in the Pacific 69 contentions since 1S86 121 officials, instructions to 101 protest against Ukase of 1821 47 Avhaling industry in north Pacific 89 S. Ex. 177, pt. 4 9 130 CASE OF GREAT BRITAIN. Page. User of "waters up to 1821 .,.., 13 1821-1867 ■ 77 V. Vnu Buren, President, on ease of the " Loriot ' 82 Vancouver, voya,ij;es of 19 Vattel, on inlaud seas 147 Walrus, hnntino- of 89,110 Wasliburii, Mr., on cession of Alaska 101 Washington Territory, memorial from 99 Waters, no special mention of ciomiuion over, in treaty of cession 95 Wellington, Duke of, to Co-uit Nesselrode, October 17,' 1822 42 Mr G. Canning, November 28, 1822 40 Couut Lieven, November 28, 1822 43 West, Sir L., protest by, against seizures 121 Whalers, regulations for, in Sea of (Okhotsk 86 Russia did not claim right to exclude 85 sometinu'S hunt seals 113 Whaling fleet iu North Pacihc about 1850 85 from 1867-1880 110 value of caitch 88 industry, statistics of 89 Wharton, Mr., on Ukase of 1821 75 Wheatou, on freedom of high seas 141 Williams, Mr., on cession of Alaska 101 Woolsey, Dr., on Russian claims 75 ou present dispute 139 SCIIEDUIJi OF CLAIMS. 131 SCHEDULE OF CLAIMS. SEIZTJBE OF SHIPS JX BEHRING SEA. Statement of Claims for Compensation from the United States Govern- ment ox ACCOUNT op THE SEIZURES OF BRITISH CANADIAN SEALERS IN THE Behhixc; Ska during the Years 1886, 1887, and 1889. INDEX. Pages. 1. " Carolena " 1 2. " Tlioniton " 6 3. " Onwnrd " 10 4. " Favourite "' 15 5. " W. P. Sayward " 17 6. "Grace" 20 7. "Anna Beck" 24 8. "Dolphin" 28 9. " Alfred Adams "' 32 10. " Ada " 34 11. "Triumph" 36 12. ".Tuanita" 38 13. " rathfmdcr " 40 14. " Triumph " 45 15. " BLick Diamond" 48 16. "Lilv" ' 50 17. "Ariel" 52 18. "Kate" 54 19. " Minnie" 56 20. • ' Pathfinder " 57 No. 1. '• Citrolcud.'' — Seized hi/ United Stdleii steam-ship " Corwin," Aiif/nst 1, 1S86. Amount of claim as put forward by owner. KvideiKH' ill siii^jwrt of claim. Value of vessel, 32 tolis Value of outfit (uncousumable) Tnsuiance Waues of crew up to date of seizure I'assnjie of crew from San Prancisco to Victoria. . Passaj;e of mate, Sitka to Victoria, after release from prison. Personal expenses of o\\Tier Lefral expenses Estimated seal catch for 1886 000. 00 002. 89 352. 50 832. 22 71.72 100. 00 250. 00 250. 00 667. 00 Total I 27, 526. 33 Deduct value consumed during a full voyage i 3, 213. 32 Claim by owner, with interest at 7 per cent, to 24, 313. 01 date of payment. Two affidavits of J. D. Warron, &.c. Do. Do. Do. Do. Do. Do. Do. Do. 133 134 CASE OP GREAT BRITAIN. 2 DECLARATION OF JAMES DOUGLAS WARREN. City of Ottawa, Frorlnce of Ontario, Dominion of Canada. I, James Douglas Warren, of the city of Victoria, in tlie Province of British Cohiuibia, of the Dominion of Canada, mariner and ship-owner, solemnly and sincerely declare as follows: 1. That I am the duly authorized agent of William Munsle, of the city of Victoria aforesaid, the owner of the hereinafter-mentioned schooner " Carolena." 2. That the said schooner " Carolena" is a British vessel, registered at the port of Victoria aforesaid, of about 32 tons burden, builders meas- urement, and that in A. d. 1884 the " Carolena" was rebuilt and length- ened about 15 feet by a section built amidshi])s, and ])ut in lirst-class order and condition. In A. d. 1885 the said " Carolena" was valued for insurance by the Union Insurance Company at4,(>00 dollars, and in A. d. 188(> the Californian Insurance Company j)laced the same value, namely, 4,000 dollars, upon her for alike purpose. I am informed by the said William Munsle, and believe that since the rebuilding and enlargement of the "Carolena," she has not been reregistered at the port of Victoria aforesaid, nor at any other port, and that consequently her actual ton- nage is greater than appears by the official record, or the register of the said " Carolena." 3. That on or about the 20th day of May, A. d. 1886, the said " Caro- lena" left the port of Victoria aforesaid, after liaving been duly cleared at Customs, one James Ogilvie being master, and one James Blake mate, and a crew of nine sailors and hunters, on a fishing and hunting voyage in the North Pacific Ocean and Behring Sea. 4. That on the 1st day of August, in said year 1880, while in said Behring vSea in north latitude 55° 50', west longitude 108° 53', then being from G5 to 75 miles from the nearest land, and while, as I am informcf- '.Vnd verily believe, lawfully pursuing the objects of said voy- age, the said schooner " Carolena " was seized by the United States steam-ship "Corwin," and taken to Ounalaska, in the Territory of Alaska, of the United States of America, and her voyage broken up. 5. That on arrival at Ounalaska aforesaid the "Carolena" was, by order of the United States authorities, stripped of her outfit and run- ning-gear, the seal-skins on board taken out, the captain, James Ogilvie, and the mate, James Blake, placed under arrest and sent to Sitka, in said Territory of Alaska, and the crew sent to the city of San Francisco. 0. That upon arrival at Sitka the captain and the mate of the " Caro- lena " were formally charged witb having violated the laws of the United States of America respecting seal-fishing in the waters of Alaska, but before the day fixed for the hearing and trial of said charge Captain Ogilvie disai)])eared, and was afterwards found dead in or about the neighbourhood of Sitka. The mate, James Blake, was tried, found guilty, and sentenced to pay a fine of 300 dollars and be imprisoned at Sitka for thirty days, and which imprisonment he, James Blake, suffered. 7. That hereto annexed, marked (A), is a Statement of the articles comprising the outfit of the schooner "Carolena" on her departure on said voyage, and all of which I verily believe were on board the " Car- olena" at the time of her seizure, excepting only what had been con- sumed in the ordiimry course of the v^oyage, together with the value of said articles, also of the amount of premiums paid for insurance on the hull, outfit, and cargo of the said "Carolena "for the said voyage; also of the am00 skins less than it would have been had they all remained till the end of the season. 9. That hereto annexed, marked (C), is a Statement of the legal exi^enses incurred at Sitka and elsewhere by reason of the seizui-e of the "Carolena," and the arrest of her captain and mate as aforesaid, and also of the personal expenses connected therewith. 10. That hereto annexed, marked (I>),is a Statement of the damages claimed by the owner of the " Carolena" by reason of her said seizure and detention during the years 188G, 1887, and 1888, based upon the average catch of seal-skins per vessel astound by Exhibit (B). 3 11. The price per skin charged in Exhibits (A) and (D), namely, 7 dollars, was the market price at Victoria aforesaid at the close of the season of 1880, and was tlie price which, in the ordinary course of events, would have been realized for said seal-skins had not such seizure taken place, 12. That hereto annexed, marked (E), is an estimate of the principal sums on which interest is claimed, from the 1st day of October, A. d. 1880, on or about which date the catch of the "Carolena" would have been realized on had she not been seized, and also for the actual out- lay by her owner prior to that date, arising by reason of the seizure and detention of the "Carolena," the arrest of the captain and mate, and the exi)enses of the mate and crew in returning to Victoria from Ouualaska and Sitka. 13. That during the month of October, A. d. 1886, and ever since that time, the minimum rate of interest on money for commercial i)urposes at the city of Victoria aforesaid was and now is 7 per cent, per annum. 14. That hereto annexed, marked (F), is a Statement of the items of the outfit of the "Carolena" when on said voyage and the value thereof, which would have been wholly consumed in the ordinary prosecution of a full season's hunting and fishing voyage. 15. The paices charged for the articles and groups of articles in Exhibit (A), comprising the outfit of the "Carolena," are the market 136 CASE OF GREAT BRITAIN. prices of the said artieles uiid groups of ai'ticles at Yietoria at tlie time of their purchase for the purposes of said voyage. IG. That as to the iteui, "Oasli on board aud unaccounted for, 500 dollars/' charged in Exhibit (A), I am informed by the said William Munsle, and do verily believe, that the said sum of 500 dollars was placed on board the "Carolena" at the time of her departure from Vic- toria as aforesaid, intrusted to the master, James Ogilvie, for use in cases of emergency or unforeseen expenditures, and I verily believe that said sum of 500 dollars was on board the "Carolena" at the time of her seizure; but owing to the death of Captain Ogilvie at Sitka, it was not known by the said owner what became of the said sum of 500 dollars. 17. That at tlie tnne ot the seizure of the '"Carolena" she was in good order and condition, having been thoroughly overhauled before starting out on said voyage, and not having sustained any damage beyond ordinary wear and tear during said voyage up to the time of her seizure. 18. That the value placed on the "Carolena," namely, 4,000 dolhirs, is a fair and reasonable valuation of the said schooner, and from my personal knowledge of the "Carolena," and the value of vessels of her class at Victoria, I verily believe that she could not be replaced by a vessel in all res])ects as good and as well adapted to the purposes for which she wa's used for a less sum than 4,(»00 dollars. 19. That on or about the 13th day of July last ]>ast I was at Ouna- laska aforesaid, and saw and was on board of the said schooner "Car- olena." She was then lying anchored in the harbor at Ounalaska, stripi)ed of all her outfit and running gear. Her standing rigging was much weather-beaten, her iron work much rusted, her deck seams in a bad state, and I verily believe, from the condition in which the " Caro- lena" then was, and in view of the fact that she nuist remain so exposed until least next May (A. D. 1888), it will cost at least 4,000 dollars to put her in as good repair and condition as when seized and return her to Victoria. To be taken to Victoria under ordinary circumstances would alone cost between 2,500 and 3,000 dollars. 20. That the "Carolena" at the time of her seizure was insured in the California Insurance Company for the sum of 2,500 dollars on her hull, and in the sum of 1,(»00 dollars on her outfit and cargo. 21. That the estimated h)ss of 5,0i)0 dollars for each of tiie years 1887 and 1888 by reason of the seizure and detention of tlie " Carolena" as aforesaid is based upon an average catch of 2,380 seal-skins for each of the said years, at 5i dollars per skin, Avliich was the market value per skin at Victoria at the close of the season of 1887, after deducting therefrom the cost of outfit and wages, based on the " Carolena's" voyage of A. D. 1880. Aud I, James Douglas Warren, aforesaid, make this solemn declara- tion, conscientiously believing the same to be true, and by virtne of "The Act respecting Extra-Judicial Oaths." J. D. Warken. Declared and affirmed before me at the city of Ottawa, in the county of Carleton, in tlie rrovince of Ontario, tliis 28th day of NoAember, A. D. 1887, and certilied under my official seal. W^ D. Hogg, Notary Public for Ontario. CARE OF GREAT BRITAIN. 137 4 Exhibit (A). ^'al^l(3 of the schooner "Caroleiia" at tbo time of seizure. Uutht: Groceries Aiuinuuitiou Six short guns , Five riHes Gun implements and tools Dry goods Ship chandlery Water-casks Chronometer Four canoes and outtii One boat Salt Coal and Avood for fuel Cooking stovo and utensils Miscellaneous Cash on board and unaccounted for , Two sextants $4, 000. 00 $598. GO 173. 34 300. 00 130. 00 17.29 71.37 376. 83 12.00 IGO. 00 248. 50 100. 00 81. 00 37. 02 79. 00 42.34 500. 00 75.00 Insurance iiremium and survey fee on 2,500 dollars on hull and 1,000 dollars on outtit and cargo Wages paid to hunters andcrewsforvoyagen])to time of seizure. $1, 832. 22 Part of crew having l)een sent to San Francisco by United States authorities, board of tive men at San Francisco and passage- money thence to Victoria 71. 72 Passage-money and expenses of mate, James Blake, from Sitka to Victoria after release from prison 100. 00 686 seal-skins on board the "Caroleua" when seized, and not returned, at 7 dollars per skin . 002. 89 352. 50 ■1, 003. 94 802. 00 Total, Exhibit (A) 14, 161. 33 Exhibit (B). Number of sealskins taken hi/ each of the following thirteen sealing-resseh during the year ISSO in and about the Behring Sea, most of the said vessels leaving the sea before the end of the season, fearing capture. Vessel. Xumher of I seal-skins. Pathfinder j\Iary Ellen Tliuresa Favourite lilack Dianio'Kl. . Alfred Adams . . . Active City of Santiago. 1,766 4,256 2,625 2,325 1,760 2,465 2,275 1,620 Vessel. Silvia Handy Dolphin Anna Beck Grace Say ward Total catch Average jier vessel Number of seal-skins. 1, 587 2,601 1.400 2, 550 2, 725 30, 955 2,381 Exhibit (C). Legal expenses at Sitka in connection -with the seizure of the " Carolena ". . $500. 00 Counsel and other legal fees and expenses in and about the seizure of the " Carolena," and the claims arising thereunder, exclusive of the above 500 dollars 750. 00 Personal expenses other than the abovt? in the same connection 250. 00 Total _.,... 1,500.00 138 • CASE OF GREAT BRITAIN. 5 Exhibit (])). Estimated damages arisimj from the seizure and detention of the schooner " f'arolena" based on the average catch per vessel as given in Exhibit (B), season ISSG. No. Average catch of seals 2, 381 Less oil board at seizure, and charged in. Exhibit (A) 689 Balance at 7 dollars per skin 1, 695 = $11, 8()5. 00 Keasonalile and probable profit on operations for year 1887. . . $5, 000. 00 " Carolena," not being released and not available to engage in next year's operations, reasonable and probable profit for 1888 5,000.00 10, 000. 00 Total of Exhibit (D) 21,865.00 Exhibit (E). Estimate of the princi))ai. sums on wltich interest at 7 per rent, per annum is claimed, and titc time for which interest is so claimed. Value of "Carolena's" estimated catch for 1886 — namely, 2,381 skins, at 7 dollars per skin — I'rora the 1st day of October, A. D. 1886, when the cat cli would have been realized on $16, 667. 00 Actual cash outlay for legal and other necessary expenses in- curred by reason of the said seizure 500. 00 Total })riucipal on which interest is claimed from October, a. d. 1886, to date of payment of claim $17, 167.00 Estimated value of the "Carolena' catch for 1887, less cost of outfit and wages of crew and hunters, on which interest at 7 per cent, is claimed from 1st October, A. v>. 1887, on or about which date the catch would be realized on to date of payment 5, 000. 00 If the claim for 18S7 be not allowed, tlien interest is claimed on the value of the "Carolena" from 1st October, 1S86, to date of payment 1,000.00 Exhibit (F). Details of items of "' Carolena' s " outfit consumed during ine cou}-se of a full hunting and sealing roi/age. Groceries $598. 60 Ammuuitioii 173. 34 Dry goods 71. 37 Ship chandlery 376. 83 Salt '. 81. 00 Coal and wood 37. 62 Miscellaneous 42. 34 Wages of crew 1. 832. 22 Total value consumed 3, 213. 32 CASE OF GREAT BRITAIN. 139 No. 2. " Thornton." — Seized hy United States sieam-sltip " Coririn," August 1, 1886. Amount of ' For— ■ pi^t'forward Evidence in support of claim, by owner Value of vessel, 78 tons $0,000.00 Two affidavits of J. 1). Warren, &c. Value of outfit (nnconsuniable) • 2,941.64 Do. Insurance i 591. 43 Do. Wages paid to date of seizure to crew, &c I 1,370.00 Do. Passage-money of crew from San Francisco to i 177. 16 Do. Victoria. Passage-money of crew and expenses of captain 200. 00 Do. and mate after release, Sitka to Victoria. Personal expenses of owners 1, 000. 00 Legal expenses 1, 250. 00 Estimated catch of seals for 188G IG, 667. 00 30, 197. 23 Deduct value consumed on a full vovage 3, 379. 58 Claim by owner, with interest at 7 per cent, to 26, 817. 65 date of payment. Do. Do. Do. DECLARATION OF .lAME^l DOUGLAj^ WARREN. City of Ottawa, Province of Ontario, Dominion of Critish steam-schooner " Tiiornton," 78 tons burden by builder's measurement, registered at the port of Vi(;- toria aforesaid, before and at the time of her seizure hereinafter set out by the United States steam-ship '' Corwin."' 3. That the said steam-schooner "Thorn ton" was rebuilt by me in A. D. 18^7,* at a cost of 3,o(K) dollars, and in A. D. 1880 and A. D. 1881 was fitted up with steam-proi)ening' ])ower at an additional cost of 3,()(K) dollars, ller bottom and sides of above light water line were (•o])i)eied and copper fastened. 4. That on or about the 10th (hiy of May, 1880, the said steam- schooner "Thorntou" was regularly cleared at the port of Victoria aforesaid for a full season of about four months' fishing and hunting in the North Pacific Ocean and Behring Sea, and that on or about the 27th day of said month of May the " Thornton" finally sailed from Clayoquot Sound, on the south-west of Vancouver Island, on said fishing aud hunting voyage, 5. The master of the " Thornton" on and for said voyage was one JIans Guttormsen, of the said city of Victoria, and the mate one Harry Norman, of the same place, and a crew of thirteen men. G. That ou the 1st day of August, A. D. 1880, while in Beliring Sea in north latitude 55° 45' and west longitude 108° 44', lawfully, as I verily believe, pursuing the objects of said voyage, the said steam- schooner "Thornton" was seized by the United States steam-ship "Corwin," and by the " Corwin" taken to Ounalaska, in the United States Territory of Alaska, aud her voyage was broken up. 7. That on arrival at Ounalaska the said "Thornton" was, by order of the United States authorities, stripped of her outfit and running *Qy. 1877. 140 CASE OP GREAT BRITAIN. gear, tlie seal-skins tlien on board taken out, the captain and mate made prisoners and sent to Sitka, in said Territory of Alaska, wliere, after trial, they were fined, the cai)tain in the sum of ."iOO dollars, and the mate in the sum of oOO dollars, and each imprisoned lor thirty days. The remainder of the crew, with only two excepted, Avere sent by the United States authorities to the city of San Francisco by a steamer belonging- to the Alaska Commercial Company. 8. That I am infoi-mcd by Caj)tain (ruttormsen that immediately upon the arrival at Ounalaska of the " Corwin " with the "Thornton," he (the captain) entered his solemn protest against the seizure of his vessel and her outfit and the seal-skins then on board. 9. That on or about the loth day of July of the present year I was at Ounalaska, and saw the said steam-schooner "Thornton," and 7 found her in a very bad condition. She was lying on her bilge on a gravel beach, partially embedded, and exposed to all weathers, and was consequently greatly depreciated in value since her seizure. Her copper is nnich chafed, her deck seams are opened, through which water had leaked upon the steam-boiler, engine, and machinery, all of which are well nigh ruined. She cannot be brought away from Ounalaska without repairs involving great exi)ense, and not at all before next summer can this be done. I verily believe, from the inspection I then made, that it would cost over (),(t()0 dollars to take the "Thorn- ton" from Ounalaska to Victoria aforesaid, the nearest port at which the repairs could be made, and put her in as good order and condition as she was in when seized. 10. That at the time of her seizure the "Thornton" was in good repair and condition and perfectly seaworthy, excepting only that her mainmast-head had been carried away during the voyage she then was on. 11. That for and during the said voyage the "Thornton" was insured by Lloyd's underwriters in the sum of 1,-00/. on the hull and machinery, and in the sum of 1,000L on the outfit and cargo. 12. That hereto annexed, marked (A), is a detailed Statement of the outfit of the "Thornton" for the voyage on which she was seized as above set out, and all of which, excepting only what had been con- sumed in the regular course of the voyage, was on board the " Thorn- ton" at the time of her seizure; also of the amount of premiums paid by me for insurance up(m the hull, machinery, outfit, and cargo of the "Thornton" during the said voyage, and also for wages paid by me to the hunters and crew of the said "Thornton" of said voyage for the time of said voyage up to the said seizure. Also a statement of the sums paid by me for i)assage-money of the crew from San Francisco to Victoria, and passage nioney and expenses of the ca])taiu and mate at and from Sitka after their release to Victoria aforesaid. 13. That also in said Statement (A) are charged 403 seal-skins taken from the "Thornton" at the time of seizure, and Avhich, s()ai)pearsfroni the lieport of the officers of the United States steam-ship "Corwin," submitted to the Couit at Sitka on the trial of the said ca|)tain and mate of the "Thornton," and the price there charged, namely, 7 dollars I)er skin, was the market value per skin at Victoria aibresaid, on or about the 1st October, A. D. 188(), when the said skins, had not such seizure taken ])lace, would have been placed on the market at Victoria. 14. That the value i)laced upon the various articles and groups of articles in the outfit mentioned in Exhibit (A) is the actual cost of the said articles at the city ol' Victoria aforesaid at the time of their i)ur- chase in the spring of 1880. CASE OF GREAT BRITAIN. 141 15. That liercto annexed, marked (B), is a Statement showing the number of seal-skins taken by each one of the thirteen sealing-schooners in and about Behring's Sea during the season of 1S8(>. Tlie said State- ment is based upon the Eeport of tlie Inspector of Fisheries for the Province of British Cohimbia for the year 188(5, as contained in the Report of the Minister of Marine and Fisheries for Canada for said year at pp. 248 and 249. The schooners "Carolena," "Onward," and said steam-schooner "Thornton" were seized on the 1st and 2nd August of said year wlien the sealing season was not lialf over, and the schooneis "Mnry Taylor," "Mountain Chief," "Rustler," and "Kate" were not in Behring Sea during the season of 1886, so that in calculating the aver- age catch for the Behring Sea Heet, the catch of the seven above-men- tioned schooners was not included. With one or two exceptions the thhteen sealing-schooners, mentioned in Exhibit (B), left Behring Sea, or the best tishing grounds therein, long before the end of the said season, as their masters feared seizure by the United States authori- ties, and the said average catch, so found by Exhibit (B), is therefore fully 500 less than it otherwise would have been. 10. That hereto annexed, marked (C), is a Statement of the amount of legal exi)enses paid and incurred by me at Sitka and elsewhere, and also of the amount of my personal expenses incurred by reason of the said seizure. 17. That hereto annexed, marked (D), is a Statement showing the estimated loss incurred by mc as owner of tlie said " Thornton," by reason of the said seizure and detention, and of the seizure and deten- tion of the seal-skins then on board the "Thornton," and the breaking up of the said sealing voyage. Also, the estimated loss incurred by me during the present year by reason of the non-release of the "Thorn- ton;" and in view of the fact that it is now too late to put the "Thorn- ton " in repair and condition to engage in next year's business, the estimated loss for next year. And I verily believe that the said esti- mates of the losses incurred by me by reason of the seizure and deten- tion of the said "Thornton" for the years 1886, 1887, and 1888, are fair and reasonable estimates, and rather under than over the actual losses so sustained. 18. That the estimated loss of r>,000 dollars for each o/ the years 1887 and 1888, by reason of the seizure and detention of the " Thorn- ton," is based upon an average catch of 2,o80 seal-skins valued at 5 dol. 50 c. per skin, the market value at Victoria for the present season, deducting from the gross value thereof the cost of outrtt and amount of the wages of hunters and crew, based on the "Thornton's" voyage of A. D. 1886. 19. That during and since the year 1880 7 per cent, per annum was, and now is, the minimum rate at which money for ordinary commercial purposes could be obtained at the city of Victoria aforesaid, and that hereto annexed, marked (E), is an estimate of the in-incipal sums on which interest is claimed at the rate of 7 per cent, per annum, and the time for which it is so claimed. And I, James Douglas Warren aforesaid, make tliis solemn 8 declaration, conscientiously believing the same to be true, and by virtue of " The Act respecting Extra Judicial Oaths." (Signed) J. J). Warren. Declared and affirmed befon^ me at the city of Ottawa, in the county of Carletou, this 25th day of November, A. d. 1887, and certified under my ofiticial seal. [SEAL.] (Signed) D. B. MacTavish, Notary Public. 142 CASE OF GREAT lUUTAIN. Exhibit (A). Value of steam-schoouer "Tlioriitoii ' ;it time of soiziue by United States steam-ship " Corwiu " $6. 000. 00 Value of "Thorutou's" outfit: Groceries $533. 37 Ammunition 340. 2() Dry goods : 49. 88 Iron Avater tanks 50. 00 Ship chandlery for sealing purposes 278. 64 One chronometer 81. 45 Extra suit of new sails 307. 18 Seven No. 10 shot guns 248. 00 Five lilies ". ." 125. 96 Gun implements and tools 23. 20 Four new sealing-boats and sails 612. 70 Water casks 25. 00 6 tons salt 90. 00 18 tons coal 126. 00 Cooking range and utensils 50. 00 Total outfit 2.941.64 Insurance: Preuiium on 1,200?. — insurance on hull, lOlL 48 492.83 Premium on 1,000?. — insurance on outfit and cargo, 20?. 38. id. 98. 60 591. 43 Wages paid hunters and crew up to time of seizure, hunters and crew having been taken to San Francisco by United States authorities 1, 370. 00 Passage-money thence to Victoria 177. 16 Passage-money aud expenses of Captain Guttormsen and mate, Harry Norman, after release from Sitka to Victoria 200.00 403 seal-skins on board the " Thornton" at the time of seizure, at 7dollar8 per skin 2,821.00 Total 4,568.16 Total, Exhibit (A) 14,101.23 (Signed) ' I). B. MacTavish, Notary Fublic. Exhibit (B). Xumher of seals taken hj/ IhefollowiiKj thirteen sealiuf/ schooners during the i/ear 1S86 in and about the Behrinij Sea, most of the thirteen leaving the sea before the end of the season, fearing capture. Schooners : No. of Snals. Pathfinder 1, 766 Marv Ellen 4, 256 Theresa 2, 625 Favourite 3, 325 Black DiamoiHl 1, 760 Alfred Adams 2, 465 Active 2, 275 City of Santiago 1, 620 Silvia Handy 1, .587 Doli.hin 2,601 Anna Beck 1, 400 Grace 2, .550 Say ward 2, 725 Total catcli 30, 955 Average per vessel 2, 381 (Signed) 1). B. MacTavisii. Notary Public. CASE OF GKKAT BRITAIN. 143 9 Exhibit (C). Legal expenses at Sitka iu connection witli seiznre of " Tliornton " $500.00 Counsel and other legal lees and expenses in and about the claims arising from said seizure 750. 00 Travelling, hotel, and other necessary expenses in connection with said seizure and claims 1, 000. 00 Grand total. Exhibit (C) 2, 150.00 (Signed) }). P.. MacTavish, Kotary Puhlic. Exhibit (D). iJamagrs arisinr/ from ihe seizure and dctenlion of flie " Thornioti,'' bo-scd Kpoii the arcrayc catch of neal-skins per season as given in Statoncnt {H), season of 1SS6, Ko. Estimated average catch 2, 381 Less 403 skins on board the "Thornton" at the time of seizure, and charged iu Statement (A) 403 Balance, at 7 dollars per skin 1, 97S =$13.84(3. 00 Reasonable and jirobable protit '" Thornton'' would have earned in 1887 for owner 5, 000. 00 In view of fact that "Thornton"' cannot be made available for next year's operations, reasonable and probable protit for 1888 5, 000. 00 Total amount, Exhibit (D) 23, 846. 00 (Signed) D. B. MacTavisil Noiary Puhlic, Su mm aril of Exhibits. Value of "Thornton" '. . ." .$6,000.00 Value of "Thornton's" outfit 3. .533. 07 Wages of crew and hunters 1, 37(t. 00 Passage-money and expenses of officers and crew in returning to Victoria 377. 16 403 seal-skins, at 7 dollars 2, 821. 00 Total, Exhibit (A) $14, 101.23 Personal expenses of owner 1, 000. 00 Legal expenses 1, 2'0. 00 Total, Exhibit (C) 2,250.00 Balance on estimated seal catch for 1886 13, 846. 00 Estimated loss to'owner by detention of the "Thornton " during 1887 ■; '. 5, 000. 00 Estimated loss on same grounds for 1888 .5, 000. 00 Total, Exhibit (D) 23, 846. 00 Total amount of claim 40, 197. 23 Memorandum. — If the owiitr of tlie '^'Thornton"' is iudemnified for balance, of estimated seal catch for the j-ear ISSG, there should be deducted from the total claim the sum of 3, 379 dol. 58 c. included iu Exhibit (A) for outfit, which would necessarily have been consumed in the prosecution of the voyage, and including the sam of 1,370 dollars paid in Avages, as per Exhibit (F). Total claiu) .$40, 197. 23 Value consumed on voyage 3, 379. 58 Net claim 36, 817. 65 (Signed) 13. B. MacTavisii, :^otayy ruhlic. 144 CASE OP GREAT BRITAIN. 10 Exhibit (E). Estimate of the principal funis on vliich interest at 7 per cent, per onvnni is claimed, and the time fur which interest is so claimed, Valne of "Thornton's" estimated fnH catch for 1886, namely, 2,381 skins, at 7 flolhirs per slvin, from the 1st October, 1886, when the catch woiihl liave heen realized on $16, 667. 00 Aetna! cash outlay for legal and other necessary expenses incurred by reason of the seizure before the 1st October, 1888 500. 00 Total principal on which interest is claimed since the 1st October, 1886, to date of payment of claim 17, 167. 00 Estimated value of the "Thornton" catch for 1887, less cost of outfit and wages of crew and hunters, on which interest at 7 per cent, per annum is claimed Irom the 1st October, 1887, on or about which date the catch would be realized on, to date of payment 5, 000. 00 If the claim for 1887 be not allowed, then interest is claimed on the value of the " Thornton" at 7 per cent, per annum I'rom the 1st October, A. D. 1886, to time of payment 6, 000. 00 (SigBcd) I). B. MacTavish, Notary rnhUc. Exhibit (F). Details of items of "Thornton's" outfit consumed ditring the course of full sealing and fishing roi/age. ITEMS. Groceries $533. 37 Ammunition 340. 26 Dry goods 49. 88 Ship chandlery 278. 64 Insurance premiums 591 . 43 Wa^es of crew and hunters 1, 370 0( | 6 tons salt 90. 00^ 18 tons coal 126 00 Total valne consumed 3, 379. 5o (Signed) 1). B. MacTavish, Notary Public. No. 3. " Onward." — Seized hy United States steam-ship " Cortvin," August 2, 1886. For- V.nhie of vessel, 94 tons Vahie of outfit (uncoiisumable) . . Iiisiir.'inco Wages paid for voyage TaKHage, &o., of master and mate Per.sonal expenses of owner Legal expenses Estiiniited catch iJediKit, value coiisuuieil during a lull voyage Claim by owner, willi intere.st at 7 per cent, to date of payment. $4, 000. 00 1,778. 09 200. 00 1,820,(10 200. 00 2r)0. 00 1,250.00 16, 667. 00 26, 225. 09 2, 955. 98 23, 209. 71 Kvldeuce in suiiport n! chi o atlidavil.s ■ Do. Do. Do. Do. Do. Do. Do. if .T. D. Warien, .tc CASE OF GREAT BRITAIN. 145 11 DECLARATION OF JAMES DOUGLAS WARREN. City of Ottawa, Province of Ontario, Dominion of Canada. I, James Donglns Warren, of the city of Victoria, in tlie Province of British Cohimbia, of the Dominion of Canada, master mariner and ship- owner, do solemnly and sincerely declare as follows: 1. That I am the dnly anthorized agent of Charles Spring, merchant, of the said city of Victoria, and owner of the hereinafter-mentioned schooner "Onward." 1'. That the said schooner " Onward " is a British vessel of abont 94 tons bnrden, builder's measurement, and at the time of her seizure, as hereinafter set out, was, and now is, registered at the port of Victoria aforesaid. 3. That about the lOtli day of June, A. D. 1886, the said schooner "Onward" sailed from the west coast of Vancouver Island, having previously cleared at the port of Victoria aforesaid, on and for a full- season hunting and tishing voyage in the North Pacific Ocean and Behring Sea. 4. That on and for said voyage the crew of the "Onward" consisted of Daniel Monroe, of Victoria aforesaid, master; John Margotich, of the same place, mate; and twenty sailors and hunteis; all of whom were on board the "Onward" at the time of her seizure hereinafter mentioned. 5. That on the morning of the 2nd August, A. D. 188(), while in said Behring Sea, in north latitude 54"^ 32' ami west longitude 167° r)5', and about 68 miles from Ounalaska Island, the nearest land, lawfully, as I verily believe, pursuing the objects of her said voyage, tlie "Onward" was seized by the United States steamship "Corwin," and taken in tow of said "Corwin" to Ounalaska, in the Territory of Alaska, of the United States of America, having then on board 100 seal skins. 6. That upon the said "Corwin's" arrival at Ounalaska aforesaid with the said "Onward," the " Onw^ard" was, by order of the United States authorities thereat, stripped of her sails and outfit, the skins on board taken out, her master, the said Daniel Monroe, and mate, the said John Margotich, placed under arrest, and her voyage completely broken up. 7. That the said master ami mate, Daniel Monroe and frohn Margo- tich, were by the said United States authorities taken to Sitka, in the said Territory of Alaska, there to be tried on a charge of having violated the laws of the United States respecting seal fishing in the waters of Alaska. On arrival at Sitka the said master and mate were bound over to appear for trial on said charge, and were on or about the 1st of the month of September following so tried, found guilty, and sentenced — the master, Daniel Monroe, to pay a fine of oOO dollars, the mate, John Margotich, to pay a fine of 300 dollars, and each to be imprisoned for the space of thirty days, which imprisonment they suffered. 8. That hereto annexed, marked "(A)" is a statement of the articles comprising the outfit of the "Onward" at tlie time of her departure on said voyage, and the value thereof, all of which were on board the "Onw^ard" at the time of her said seizure, excepting only what had been consumed in the ordinary course and prosecution of the voyage; also of the amount paid for insurance on said voyage, also the amount of wages paid the crew and hunters on said voyage, also the amount paid for fares and expenses of the master and mate in returning to Victoria from Sitka after their release, and also of the number aud S. Ex. 177, pt. 4 10 146 CASE OF GREAT BRITAIN. value of tlie seal-skins on board the "Onward" at the time of her seizure, and which were taken from the "Onward" at Ouualaska by the United States authorities. 9. That the ])rices charged for the various articles and groups of articles comprising- the outfit of the "Onward" on and for said voyage are the regular market prices of the said articles at Victoria aforesaid at the time of their purchase for use on said voyage. The price charged in said statement for the seal-skins on board the "Onward" when seized, uamely, 7 dollars per skin, was the market price iier skin at Victoria aforesaid at the close of the sealing season of 1880, when the catch of the "Onward," had not such seizure taken place, would have been placed on the market. . 10. That the value of the schooner "Onward," as given in Exhibit (A), namely, 4,000 dollars, is a fair and reasonable value for the said schooner at the time of her seizure; she was then, and had always been, kept in first-class order and condition, and was always a staunch, seaworthy vessel, and for the said voyage had been refitted with new sails and sailing gear. 11. That hereto annexed, marked " (B) " is a statement of the catch of thirteen sealing vessels, in and about Behring Sea, during the season of 1880; the said statement is comjdled from the Beport of the Inspector of Fisheries for the Province of British Columbia for the year 1880, as contained in the Report of the Department of Fisheries for Canada for that year at pp. 248 and 249, and from personal knowledge of the facts therein set out, I verily believe the said statement to be substantially true and correct. The steam-schooner "Thornton," the schooners "Carolena" and "Onward," meaning the "Onward" herein mentioned, were seized on the 1st and 2nd August, 1880, in Behring Sea, at the beginning of the best sealing period ; and the schooners " Mary Taylor," "Mountain Chief," "Rustler," and "Kate" were not in Behring Sea during the season of 1880, so in estimating the average catch per vessel in Behring Sea for 1880, the catch of the above-named seven vessels is not included in Exhibit (B) ; all of the thirteen vessels named in Exhibit (B), with only one or two exceptions, left Behring Sea long before 12 the end of the sealing season of 1880, because of the seizures which had been made by the United States steam-ship "Corwin," fearing to remain lest they also should be seized; by reason of such departure from the said sea, or the best sealing ground therein, before the close of the season, 1 verily believe that the catch i)er vessel, as found in Exhibit (B), namely, 2,381 seal-skins, is fully 500 less than it would have been had the said vessels remained the full season in said sea. 12. That hereto annexed, marked "(C)," is a statement of the legal ex])enses incurred at Sitka and elsewhere by reason of the said seizure of the "Onward," the arrest and imprisonment of the said master and mate, and the claims arising therefrom, and also of the personal exjtenses of the said owner and' said agent in the same connection. 13. That the Exhibit (D), hereto annexed, is a statement of the esti- mated loss and damage resulting to the owner of the " Onward " by reason of her seizure and detention in A. d. 1880, A. D. 1887, and A. D. 1888. The estimated loss for the year 1880 is based upon the average catch per vessel, as found in Exhibit (B), less the number of skins on board the "Onward" when seized, the balance being valued at 7 dollars ])er skin, the price per skin at Victoiia at the close of the season 1880. The claim for A. D. 1887 and A. D. 1888 is based upon the same average catch as for A. D. 1880, valued at 5 dol. 50 c. x)tjr skin, which was the CASE OF GREAT BRITAIN. 147 juarliefr value ]>er sldii at Victoria aforesaid at the close of the season 1887, after deducting- therefrom the cost of outfit and wa.ues of crew and hunters for each year, based on the "On ward's" said voyage of A. D. 1S80. The said claim of 5,000 dollars for each of said years A. d. 1887 and A. D. 1888 is a fair aud reasonable estimate of the earnings of the '• Onward" in hunting and fishing for the said years. 14. That Exhibit (E), hereto annexed, is a statement of the princi])al sums on Avhich interest at 7 per cent, per annum is claimed, and tlic time for which said interest is so claimed. At the time when the catch of the " Onward" lor 1886 would have, in the ordinary' course of events, been realized on, namely, on or about tlie 1st October in said year, the minimum rate of interest on money for commercial pur^joses was, has since continued to be, and now is, 7 percent, per annum. If). That hereto annexed, marked "(E)," is a statement of the articles, and tlie value thereof, as given in Exhibit (A)of the "Onwavd's" outfit on said voyage of 1880, inchulinginsurance premiums and wages, which would necessarily be wholly, or almost wholly, consumed in the course of a full season's hunting and fishing, such as contemplated by the "Onward" in 1886. 16. That on the 13th day of July last past I was at Ounalaska afore- said, and was then on board of the said schooner "Onward." She was then lying side-to on a gravel beach, in the harbour of Ounalaska, ]iar- tially embedded in the gravel, and generally in a very bad condition. Her standing rigging was nuich weather-beaten, also her deck and side- seams were in a very bad state, the long exposure and severe frosts of the previous winter having broken out the pitch, and, judging from their appearance, they were very leaky. Erom what I tlien saw of the condition of the "Onward," I verily believe that she could not be fioated and put in a fit state for sea without extensive repairs, which at Ounalaska, where there is neither the recpiisite worknu'ii nor material, would involve very large expenditure, and that to float the said "Onward," take her to Victoria afi)resaid, the nearest port where the recjuisite facilities exist, and where she could be repaired and refitted at least cost, and there repair and refit her, would cost at least 4,500 (lobars. And I, Douglas Warren. aforesaid, make this solemn declaration, con- scientiously believing the same to be true, and by virtue of "The Act respecting Extra-Judicial Oaths." (Signed) J. D. Wareen. Declared and afflrmed before me at the city of Ottawa, in the County of Carleton, in the Province of Ontario, this 9th day of December, A. d. 1887, and certified under my official seal. (Signed) D. O'Connor, jNotary Fublic/or Ontario. 148 CASE OF GREAT BRITAIN. 13 Exhibit (A). Value of the schooner " Onward " at the time of her seizure $4, 000. CO Outfit: Groceries $470. 70 Ammunition 19. 07 Dry goods 68. 25 Ship chandlery 251. 59 Four shot guns 61. 00 Three iron water-tanks 57. 00 Fourteen water-casks 21. 00 Nine canoes and outfit 445. 50 Salt 52. 57 Coal 13. 80 Cooking stove and utensils 56. 63 ("lironometer, sextant, and two flags 140. 00 Thi'ce extra compasses 24. 00 Sundries 97.58 1,778.69 Insurau ce premium and survey on hull 260. 00 Wages paid to hunters and crew for voyage 1, 820. 00 Fines and expenses of ca])tain and mate from Si tka lo \'icloria afterrelease. 200. 00 400 seal-skins on board, at 7 dollars per skin 2, 800. 00 Total, Exhibit (A) 10,858.69 ( Signed) J. D. Warren. (Sigued) D. O^Coi!iiSion, Notary Public. Exhibit (B). Xumier of senl-slhis taJccn hy each of the following thirteen sealing-vesseh diirincj the year ISSG in and about the Jiehiinf) Sea, most of the said vessels leaving the sea before the end of the said season, fearing seizure. Vessels. Patbtinder Mary Ellen Theresa Favourite Black Diamond. Alfred Adams . . Active City of Santiago Seal-skins. 1,766 4, 256 2, 625 2,325 1,760 2,465 2, 275 1,620 Vessels. Silvia Handy Dolphin Anna ]3eck Grace W. P. Sayvrard Total catch Average per vessi 1 Seal-skins. 1,587 2,601 1,400 2,550 2, 725 30, 955 2,381 (Signed) (Signed) D. O'Connor, Notary Public. J. D. Warren. Exhibit (C). Legal expenses at Sitka in connection Avith the seizure of the "Onward ". $500.00 Counsel and other h^gal fees and expenses in and about the seizure of the " Onward," and the claims arising thereunder, exclusive of the above 500 dollars 750.00 Personal expenses other than the above in the same connection 250. 00 Total 1,500.00 (Signed) J. J). WARREN. (Signed) D. O'Connor, Notary Public. case of great britain. 149 14 Exhibit (D). Estimaied damages ariniiig from the siizure and detention of the schooner "Onward," based on the average catcli per vessel for 1S86, as yircn in Exhibit (B). Average catcli seal 2, 381 Less number on board at seizure, and charged in Exhibit (A). 400 Balance, at 7 dollars per skin 1, 981 = $13, 867. 00 Reasonable and probable profit ou operations for the year 1887 5, 000. 00 "Onward "'not being releiiscd, and not available to engage in next year's operations, reasonable and probable profit for 1888 5, 000. 00 Total, Exhibit (D) 23,867.00 (Signed) J. D. Warren. (Signed) D. O'Connor, Notary Public. Exhibit (E). Estimate of the principal snms on which interest at 7 per cent, per annum is claimed, and the time for ivhich, interest is so claimed. Value of the " Onward's" estimated catch for 1886, namely, 2,381 skins, at 7 dollars per skin, from the 1st day of October, a. d. 1886, when the catcli would have been realized on $16, 667. 00 Actual outlay for legal andotliernecessaryexiienses incurred by reason of the seizure of the "Onward " before the Ist October, 1886 500. 00 Total principal on which interest is claimed from October, A. D. 1886, to date of payment of claim 17, 167. 00 Estimated value of "Onward's" catch for 1887 (less cost of outfit and wages of crew and hunters) ou which interest at 7 per cent, per annum is claimed from the 1st October, a. d. 1887, ou or about which date the catch would be realized on, to date of payment 5,000.00 If claim for 1887 be not allowed, then interest is claimed on the value of the " Ouward" from the Ist October, a. d. 1886, to date of payment.. . 4, 000. 00 (Signed) J. D. Warren. (Signed) D. O'Connor, Notary Public. Exhibit (F). Value of articles of "Onirard's" outfit, n'hicJi would have been wholly, or almost wholly, consumed on a full hunting and fishing trip. Groceries $470. 70 Ammunition 19. 07 Dry goods 68. 25 Ship chandlery 251.59 Salt \ 52. 57 Coal 13. 80 Wages 1, 820. 00 Insurance prcniiiinis 260.00 Total consumption duriug voyage 2, 955. 98 (Signed) J. D. Warren. (Signed) D. O'Connor, Notary Public. Memo. — If \he full claim for the sealing season of 1886, as set out in Exhibit (B), he allowed, then the amount of this Exhibit, 2,955 dol. 98 c., will properly appear as a credit, and be deducted from the total of Exhibit (A), of which it forms a part. 150 15 CASE OF GREAT BRITAIN. No. 4. " Farourite.'^ — IVariicd out of Behring Sea bj; United States sleam-shi}) " Corwin," Ainjust 2, 1SS6. For— I Aiiionntof claim as |piit forward by owner. Estimated loss of catch of 1,000 seals $7, 000. 00 Two affidavits of J. B. Warren, &c Evidence in support of claim. Claim by owner, with interest at 7 j.er cent, to date of payment 7,000.00 DECLARATION OF .JAMES DOUGLAS WARREN. City of Ottawa, Frovince of Ontario^ Dominion of Canada. I, James Douglas Warren, of the city of Victoria, in the Province of British Columbia, of the Dominion of Canada, master mariner and ship-owner, do solemnly and sincerely declare as follows: 1. I am the duly authorized agent of Charles Spring, merchant, of Victoria aforesaid, the owner of the hereinafter-mentioned schooner "Favourite." 2. That the schooner "Favourite" herein referred to is a British ves- sel of 80 tons, registered at tlie port of Victoria aforesaid, and was so registered at the time of the occurrence hereinafter set out, namely, on the 1st and 2ud days of August, A. d. 1880. 3. That towards the end of the month of Maj^, A. d. 1880, after hav- ing been duly cleared at the port of Victoria aforesaid, for that ])urpose, the said schooner "Favourite" sailed on and for a full season's hunting and lishing in the North Pacific Ocean and Behring Sea. 4. That on and for said voyage the crew of the said "Favourite" consisted of Alexander McLean, of Victoria aforesaid, master, a mate, and twenty-three sailors and hunters, and completely equipped and in'ovisioned for a full season of hunting and fishing in said waters. 5. 1 am informed by the said master of the "Favourite,'' and several of the crew of the "Favourite," and do verily believe, that ou the night of the 1st August, or early morning of the 2nd August, A. D. 1880, the said "Favourite," while in the Behring Sea, not far from Avhere the schooner "Onward" was seized on the said morning of the 2nd August, 1880, and while lawfully pursuing the objects of said voyage, was hailed by United States steain-shii) " Corwin," then having in tow the seized vessels "Thornton" and "Carolena." After the usual in(puries as to the name of the vessel, the Commander or ofticer then in charge of the said "Corwhi" ordered the "Favourite" to cease sealing and leave Behring Sea forthwith, otherwise she would be seized, or words to that effect. The master of the "Favourite," not wishing to risk seizure, and fearing that if he remained in the said sea his vessel and cargo would be so seized and threatened by the Commander of the "Corwin," and for no other reason or reasons whatever, at once made all sail and left the said sealing grounds, thereby lo.smg the remainder of the seal- ing season. 0. That by reason of so being forced to cease sealing and leave Behring Sea at about the beginning of the best ])eriod of the sealing season, the "Favourite" lost at least J, 000 sealskins, and her total catch for the season was reduced by that much. CASE OF GREAT BRITAIN. 151 7. That on said voyage the "Favourite" carried twenty hunters and ten canoes. The schooner "Mary Ellen," of Victoria aforesaid, on a similar voyage the same season, witli fifteen liunters and five sealing- boats, not seeing or hearing of the said seizures, and remaining in the sea till or about the close of the sealing season, caught 4,25G seal-skins. The actual catch of the "Favourite" for the said season was only 3,325, though she had one-third more hunters than the said "Mary Ellen," and equally as good, if not better, chances of obtaining as large a catch ; and I verily believe that the sum of the actual catch of the "Favourite," together with the 1,000 herein claimed, making a total of 4,325 for the season of 1880, is a fair and reasonable estimate for the catch of the "Favourite" that year, had she not been interfered with as above set out. 8. That the market price per seal-skin at Victoria at the close of the season of 1886 was 7 dollars, and the amount claimed as the value of 1,000 skins lost t© the owner of the "Favourite," by reason of her so leaving the Behring Sea is 7,000 dollars. And I, James Douglas Warren aforesaid, make this solemn declara- tion, conscientiously believing the same to be true, and by virtue of "The Act resjjecting Extra-Judicial Oaths." (Signed) J. D. Warren. Declared and affirmed before me at the city of Ottawa, in the County of Carleton, in the Province of Ontario, this Oth day of December, A. D. 1887, and certified under my official seal. (Signed) D. O'Connor, Notary Public for Ontario. IG DEOLARATION OF JAMES DOUGLAS WARREN. (JiTY OF Ottawa, Province of Ontario, Dominion of Canada. I, James Douglas Warren, of the city of Victoria, in the Province of British Columbia, of the Dominion of Canada, master mariner and ship- owner, do solemnly and sincerely declare as follows: 1. That I have been a resident of the said city of Victoria for the past twenty-nine years, and during that time I have been largely interested in the building, equipment, and management of steam- and sailing vessels. I have also been engaged in the sealing and fishing business at said city for the past fourteen or fifteen years. 2. The steam-schooners "Grace" and "Dolphin," and the schooner "W. P. Say ward," and the rebuilding and fitting with steam-power of the steam-schooners "Anna Beck" and "Thornton," all of which vessels have been seized in Behring Sea by the United States authorities, were built and done for me, and under my i)ersonal direction, and were each owned and managed by me for some time after their completion, and are now managed by me for their resi)ective owner and owners. The schooners "Carolena," "Favourite," "Alfied Adams," "Ada," and "Onward," all also seized in Behring Sea by the United States authori- ties, were each and all well known to me from personal knowledge. From my interest in the Beliring Sea sealing business, I kept myself well posted on the matter and manner of the condition and equipment of the said vessels, and most of the facts stated in the declarations of claim in the case of each of these vessels came under my personal observation. The said vessels, excepting the "Thornton," "Onward," and "Carolena," which are at Ounalaska, are at Sitka, in the United States Territory of Alaska. 152 CASE OF GREAT BRITAIN. 8. To bring' these vessels from Sitka to Victoria, a distance of about 900 miles, will involve a cost of at least 1,000 dollars to purchase the necessary materials and take them to Sitka, and to convey the neces- sary men to Sitka and pay their wages. From leaving Victoria until arrival back with any one of said vessels would take about two months, or perhaps a few days less iu the summer months, and a few days more in the winter mouths. 4. A full hunting and sealing season begins as early as the 1st Jan- uary and up till the 1st March, and extends thence until the end of September. This season is divided into two parts, the coast season and theBehring Sea season. The coast season terminates about the end of June, but vessels intending to go to Behring Sea generally leave the coast fishing during the month of May, sealing as they go northward, and reaching Behring Sea the end of June or beginning of July. The best period of the sealing season in Behring Sea varies in dift'eient years accord- ing to the prevailing weather from about the 20th July to the end of September, after which date, though seals are plentiful, stress of weather compels sealing- vessels to leave the sea and go south. 5. On sealing voyages the hunters are paid in lieu of wages so much per seal-skin on each skin they capture, receiving from 2 to 2^ dollars per skin. The masters are generally j)aid partly in wages and partly in the same manner as the hunters. The only vessel in theBehring Sea in either of the seasons of ISSG or 1887 that made a reasonably full catch of seals was the schooner "Mary Ellen," of Victoria, which, in the season of 1880, took 4,250 seal-skins. On and for said season the ''Mary Ellen" carried fifteen hunters and five boats, an average catch i)er boat of 851 seal skins, the five boats being about equal to eight or nine canoes. The "Mary Ellen" was the only vessel in Behring Sea in either 1880 or 1887 which, so far as 1 know, or am able after inquiry to learn, remained the full season in said sea on and about the best sealing grounds without being disturbed by the United States authorities. And I believe that the said steam-schooners "Grace Dolphin" and "Anna Beck," and the said schooner " W. P. Say- ward," which were the best equipped vessels for sealing that had ever entered the Behring Sea, would have, if not seized or disturbed by the United States authorities, made an equally large catch iu said years 1880 and 1887, there being no reason why they should not do so. 0. The masters of the steam-schooner "Thornton" and schooner "Onward," and the mate of the schooner " Carolena," after their arrival at Sitka as prisoners in the latter part of August, entered into an agree- ment with one Clarke, a counsellor-at-law at Sitka, to defend their ves- sels and themselves on their pending trial at Sitka before the United States District Court, and the charge of 500 dollars for legal expenses at Sitka in the case of each of the said vessels is to cover the claim of said Clarke. 7. The wages of the ere v of each of the said seized vessels, except the "Alfred Adams" and "Onward," are based on two months' service exi^iring, on the day of seizure in each case. In the "Adams" and "Onward" cases, the crews were paid up to the time of their arrival at Victoria. And I, James Douglas Warren aforesaid, make this solemn declara- tion, conscientiously believing the same to be true, and by virtue of "The Act respecting Extra-Judicial Oaths." (Sigued) J. D. Wauren. CASE OF GREAT BRITAIN. 153 Declared and aflfiniied before ine, at the city of Ottawa, in the County of Carleton and Province of Ontario, this 9th day of December, A. u. 1887, and certified under uiy official seal. (Signed) J. M. Balderson, Notary Public for Ontario, 17 No. 5. JV, p. Sayward." — Seized hy United States steamship " Richard Rush," July 9, tSS7. For- Amount of claim as put forward by owner. Bvidence in support of claim. Passages of crew, &c Passages of officers I'ersonal expenses of owners Legal expenses Probable seal catch, 1887, 3,500 seals, at 5J dollars. . Loss by detention, 1st October, 1887, to 1st Feb- ruary, 1888. Loss 6i profit in season of 1888 (1st February to Ist October). Claim by owner, with interest at 7 per cent, to date of payment $255. 00 250. 00 250. 00 850. 00 19, 250. 00 1,200.00 6, 000. 00 28, 055. 00 Affidavit of J. D. Warren, &c. ■ Do. Do. Do. Do. Do. Do. DECLARATION OF JAMES DOUGLAS WARREN. City of Ottawa, Province of Ontario, Dominion of Canada. I, James Douglas Warren, of the city of Victoria, in tlie Province of British Columbia, of the Dominion of Canada, master mariner and ship- owner, do solemnly ;ind sincerely declare as follows: 1. That I am the.daly authorized agent, by i)ower of attorney bearing date the 4th November, A. d. 1886, of Thomas H. Cooper, of the city of San Francisco, in the State of California, one of the United States of America, the managing owner of the hereinafter-mentioned schooner "W. P. Sayward." 2. That the said Thomas H. Cooper is, as I am informed and do verily believe, a British subject by birth, and has never renounced his alle- giance to the Sovereign of Great Britain. 3. That the said schooner ^'W. P. Sayward" is a British vessel, having been built at Victoria aforesaid in A. D. 1882, and duly registered at the port of Victoria aforesaid, and was at the time of her seizure, as here- inafter set out, so registered. The said "VV. P. Sayward" is 135^ tons burden, by builder's measurement, and is a well and strongly built vessel. 4. That on the 16th day of May, A. D. 1887, after having duly cleared at Customs at the port of Victoria aforesaid for such purpose, the "W. P. Sayward" sailed from Victoria on and for a full hunting and fishing voyage in the North Pacific Ocean and Behring Sea. On said voyage George E. Percy, of the said city of Victoria, was master; Andrew Laing, of the same place, mate; and the crew numbered, in addition to the master and mate, twenty-two or twenty-three, with nine canoes and one boat for hunting and sealing purposes. 5. On the 2ud day of July then next following, the said "W. P. Say- ward" entered Behring Sea, having then on board, as by the report of the master sent to me, 497 sealskins, all taken on the voyage from 154 CASE OF GREAT BRITAIN. Victoria to Beliring Sea prior to tlie 2ud day of July. After enteriiio tlie said sea the weather was very tliick, and no sealing was done by the "W. P. Sayward." 6. On the 9th day of said July, the " W. P. Sayward" then being in latitude 54° 4.')' north and longitude 107° 51' west, and about 58 miles from Ounalaska Island, the nearest land, and lawfully pursuing the objects of her voyage, was seized by the United States steam-ship "iiichard Kush," and taken to Iloolook Harbour, at Ounalaska Island, in the United States Territory of Alaska. At said harbour the seal- skins on board the "W. P. Sayward" were taken out and stored on shore, and the " W. P. Sayward " was, by order of the authorities of the United States, sent to Sitka, in the said Territory of Alaska, in charge of an ofticer from said " Kichard Eush," togetb^r with all her crew, 7. Upon arrival at Sitka the "W. P. Sayward" was handed over to United States Marshal Atkins, the master and mate of the "W, P. Sayward," the said George E. Perey and Andrew Laing, were taken before a Judge and bound over to appear for trial on the 22nd day of August then instant, and from day to day thereafter, on a charge of having violated the laws of the United States relating to seal-hshing in the waters of Alaska. The said master and mate so appeared on the 22nd August and day by day thereafter, until the 9th day of Sep- tember, when, without having been tried on said charge or any other charge whatever, they were unconditionally released. ehring Sea. On said voyage the crew of the "Grace" consisted of ^Villiam Petit, of Victoria aforesaid, master, a mate, and twenty-nine sailors and hunters. 7. That on the (5th or 7th day of July folh)wing tlie " Grace" entered tkeBehring Sea along the 172nd west meridian, through theAmoughta Pass, commonly called the "172nd Pass," having then on board 4o8 seals taken while on the voyage from Victoria al'oresaid to tlie said pass. 8. That on the 12th day of said July, A. d. 1S87, the "Grace" began sealing in said Behring Sea, and from then till she was seized as here- CASE OF GREAT BRITAIN. 159 iiiafter set out caught 3l*3 seals. On the 17th day of the said mouth of July the United States steamship "Richard Kush" seized the said steam-schooner "Grace" for alleged violation of the laws of the United States of America respecting seal-fishing in the waters of Alaska. At the time of said seizure the " Grace" was in north latitude 55° 3' and west longitude 168° 40', then being about 92 miles from Ounalaska Island, the nearest land, and, as I verily believe, lawfully pursuing the objects of said voyage. {). The "Grace" after being seii^ed was taken to Ounalaska, in the Territory of Alaska, where by order of the United States authorities thereat, all the seal skins on board, except as hereinafter stated, were taken out and stored at Ounalaska, and all the fire-arms and ammunition taken on board the said "Richard Rush." On removing the seal-skins twelve were missing. Five were afterwards discovered on board the "Grace" and not removed, the renuiining seven were not, as far as 1 know, ever found. 10. After removal from the " Grace" of the said seal-skins as stated ill the preceding paragraph 8, a United States officer was placed on board the " Grace," and she was, in charge of said officer, taken to Sitka, in the Territory of Alaska, together with all the crew and hunters. On arrival at Sitka on the 1st August United States ]\[arshal Atkins took charge of the "Grace." The master, the said AVilliam Petit, was bound over to appear for trial on the 22nd day of August then instant, on a charge then preferred against him of having violated the laws of the United States respecting seal-fisliing in the waters of Alaska. Tlie said master so appeared for trial on the 22nd instant, and there- alter day by day until the !>Mi day of September next following, when, without having been brought to trial on such a charge or any other charge whatever, he was unconditionally released. 11. That hereto annexed, marked "(A)," is a statement of the value of said steam-schooner " Grace" at the time of her seizure, and of the outfit then on board, also of the premiums paid for insurance on the hull, outfit, and cargo of the "Grace" for and during said voyage; also of the amount of wages paid the crew and hunters on and for said voyage up to time of seizure; also of the expenses and fares of the mas- ter and five men at and from Sitka to Victoria aforesaid, and also of the number of the seal-skins on board at the time of seizure and the value thereof. 12. That the value placed upon the said steam -schooner " Grace" at the time of her seizure, namely, 12,000 dollars, is based upon the origi- nal cost of the said vessel, the state of repair she was then in, and the general market value of the vessels of the same class at the said port of Victoria, and for the same purpose for which she was designed. The first cost of the " Grace" was between 10,000 and 17,000 dollars. At the time of her seizure she was G years old, and in 188.5 had been thoroughly repaired, coppered as aforesaid, and generally put in first-class order and condition. On her departure on said voyage she was in good order and condition, and had on said voyage up to the time of seizure sus- tained no damage beyond ordinary wear and tear. Her insurance value for said year 1887 was placed at 12,500 dollars, and she was, while on said voyage, insured for the sum of 2,000/., and the said value of 12,000 dollars at the time other seizure is a reasonable and fair value for the said steam-schooner " Grace." 13. That the value in Exhibit (A) placed on the articles, and groups of articles, com])rising the outfit of the said "Grace" is tlie cost price of the said articles at the port of Victoria at the time of their purchase 160 CASE OF GREAT BRITAIN. for the purposes of said voyage. In addition to the outfit named in Exhibit (A), there was on board the " Grace" at the time of her seizure a considerable quantity of general ship stores. 22 14. The price per seal-skin charged in Exhibit (A), namely, 5 dol. 50 c. per skin for the seal-skins on board the " Grace" when seized and taken out at Ounalaska, was the market price at Victoria at the close of the sealing season of 1887, when the catch of the "Grace" for that season, in the ordinary course of events, would have been placed on the market. 15. That hereto annexed, marked "(C)," is a statement of the legal expenses incurred at Sitka and elsewliere by reason of the seizure of the " Grace " and the arrest of the captain, and the claims arising there- from, and also of the personal expenses connected therewith. 16. That hereto annexed, marked " (D)," is a statement of the amounts claimed by the owner of the steam-schooner " Grace " by reason of her seizure and detention during the season of 1887, and of the loss arising from the detention of the said " Grace" after the close of said season. 17. The estimated catch by the "Grace" for the season of 1887, namely, 4,200 seal-skins, is based upon a reasonable and probable catch per boat or canoe for that season. Experience in sealing has proved that the greater number of boats or canoes, or both, carried by any one sealing-vessel, the smaller the average per canoe or boat, and it is in view of this that the average per canoe for the " Grace " is put at 300 per canoe, while the average for the steam-schooner " Anna Beck" for the same season is placed at 350, the latter carrying eight canoes and one boat, while the former carried twelve canoes and two boats. The said average catch of 300 seal-sRins per canoe and boat for the " Grace " is a fair average catch, and I verily believe that had the "Grace" not been seized as aforesaid, her catch for the season of 1887 would have exceeded the said number of 4,200 seal-skins. 18. That during the m.onths of October, IS'ovember, and December, A. D. 1887, and January, A. D. 1888, had the "Grace" been in posses- sion of her owner, she would have been engaged in the coasting trade between the various ports of British Columbia. The estimated loss per month of 500 dollars for each of said months is a fair and reasona- ble estimate of the earnings of the said steam-schooner " Grace " for the said months of October, November, December, and January, after deducting the cost of wages and ordinary running expenses, and I verily believe that the "Grace" would have earned the said sum per month had she been in her owner's possession. 19. That in order to engage in the hunting and fishing of next year, namely, A. d. 1888, and in view of the fact that the " Grace" will require the usual overhauling and fitting out before being sent on so long a voyage, the latest date at which it will be possible to begin necessary repairs and refitting, and have them completed in order to leave at or about the usual date on said hunting and fishing voyage, will be on or about the 1st day of February, A. D. 1888. If the " Grace" be not delivered to the owners at Victoria on or before that date, it will be too late to repair and refit her for a full season hunting and fishing voyage, which begins on or about the 1st March of each year. During the sum- mer months, for a vessel of the class and equipment of the " Grace," there is very little to do in and about the coasting trade, and the season in the event of the "Grace" not being in the possession of her owner on or before the 1st February, a.d. 1888, would be practically lost to her owner. The claim for loss if detained beyond the 1st Feb- CASE OF GREAT BRITAIN. ' 161 ruary aforesaid is a fair aiul reasonable estimate of tbe loss which will iu such cases be sustained by the owner of the " Grace." 20. That hereto annexed, marked (E), is an estimate of the principal sums on which interest at 7 per cent, per annum is claimed, and the time for whicli it is so claimed. On the 1st day of October, A. d. 1887, when the catch of the " Grace" would have been, in the ordinary course of events, realized on, the minimum rate of interest on money for com- mercial puri)oses at the said city of Victoria was, has siuce coutinued to be, and now is, 7 i)er ceut. per annum. 21. That liereto annexed, marked (F), is a statement of the articles, and groups of articles, and the value thereof, from Exhibit (A), which would have been wholly, or almost wholly, consumed in the course and prosecution of the said voyage, had not the "Grace" been seized and detained as aforesaid. And I, James Douglas Warren aforesaid, make this solemn declara- tion, conscientiously believing the same to be true, and by virtue of "The Act respecting Extrajudicial Oaths." (Signed) J. D. Warren. Declared and aihrnu^d before me at the City of Ottawa, in the County of Carleton, in tin I'rovince of Ontario, this Dth day of December, a. d, 1887, and certilicd under my official seal. (iSigned) D. O'Connor, Notary Public for Ontario, 23 Exhibit (A). Value of the steam-schooner "(Jrace'' at the tiiiio of her seizure $12,000,00 Outfit : (iroceries $948. I'd Aniniuuitiou KIG. 63 Dry goods 276. 17 Three iron water-tanks (JO. 00 Water-casks 25. 00 Shij) chandlery Kll. 18 Twelve No. 10 shot guns ISO. 00 Three rilies 77. 50 Cue small cannon on carriage for signal) iii"; 50.00 Gun ini])]eiueuts and tools 10. 50 Two sealing boats and outllts 249. 5? Twelve canoes and outlits 684. 00 8^ tons of salt 127. .50 33 tons of coal 231.00 Cooking range and utensils 100. 00 3, 653. 18 insurance : ^Premium on 2,000/. insurance on hull 821.40 Premium on 2,000L insurance on outnt and cargo 514. .59 1, 335. 99 Wages paid crew and hunters on, voyage up to time of seizure 2, 104. 25 Fares from »Sitka to. Victoria of laaster and live of the crew, and master's expenses at .Sitka 200. 00 ■^81 seal-skins on hoai^d the "Grace" when seized, at 5 dol. 50 c. per skin.. 4, 295. 50 Total, Exhibit (A) , 23,648.92 (Signed) J. D, Warren. (Signed) D. O'Connor, Notary Fublio, ^. Ex. 177, pt. 1 11 162 • case of great britain. Exhibit (C). Legal expenses at Sitka in conncctiou with the seizure of the " Grace" and arrest of master $100. 00 Counsel and other legal fees and expenses in and about the seizure of tlie " Grace," and other claims arising tliereundor 750.00 Personal expenses iu the same connection 2.50.00 Total 1,100.00 (Signed) J. D. Waeren. (Signed) D. O'Connor, Notary Puhlic. Exhibit (D). Estimated loss and damage to the owner of the " Grace," by reason of her seizure and detention, during A. I). 18S7. Reasonable and probable catch of seals for the season of 1887 4, 200 Less number on board when seized, and charged in Exhibit ( A) . . 781 Balance, at 5 dol. 50 c. per skin 3, 41-9 = $18, 804. 50 Reasonable earnings of "Grace" during months of October, November, and December, 1887, and January, 1888, had she been in owner's possession, viz., four mouths at 500 dollars each 2,000.00 Estimated loss for senling season of 1888, if " Grace" not in possession of owner on or before 1st February, 1888 7, 000. 00 Total ".-- 27,804.50 (Signed) J. D. Wakken. (Signed) D. O'Connor, Notary Puhlic. 24 Exhibit (E). Estimate of the principal sums on which interest at 7 per cent, per annum is claimed, awd the time for which such interest is so claimed. Value of the "Grace's" estimated catch of seals for 1887, from the 1st October, a. d. 1887, on or before which date the said catch would have been realized ou, viz., 4,200 skins, at 5 dol. 50 c. per skin $23, 100.00 Cash expended for legal and other expenses on account of such seizure up to said date 300. 00 Total principal on which interest is clivimed at 7 per cent, per annum from 1st October to date of payment 23, 400. 00 (Signed) J. D. Warren. (Signed) D. O'Connor, Notary riMlc. Exhibit (F). Value of the articles of the '^Grace's" oulfil whicJi would have been whollg, or almost wh^>Uij, cDiisamcd on a fall It an ting and fishing roiiagc. Groceries $048. 13 Ammunition 1G6. G3 Dry goods 270. 17 Ship chandlery 101. 18 Salt 127.50 Coal 231.00 Wages 2, 164. 25 Insurance premiums 1, 335. 99 Total value consuuiod 5, 410.85 (Signed) J. D. ^VARREN. (Signed) D. O'Connor, Notary Public. CASE OF GREAT BRITAIN. 163 Memo. — If tlie full claim for the season of 1887, as set out in Exhibit (D), be allowed, then the amount of this Exhibit, 5,410 dol. 85 c., will properly ap])ear as a credit, and be deducted from the total of Exhibit (A) of which it forms a part. No. 7. "Anna Beck." — Seized hy United States steam-ship " Uiehard Rush," June 38, 18S7, For— Value of vessel Non-consumable outfit Passages of master ami crow Personal expenses of owner Legal expenses Probable seal catch, 1887—3,150, at 5 rtol. 'A) c Claim of owner, with interest at 7 per cent, to date of payniont. Amount of claim as put forward by owner. $8, 000. 00 977. 50 4(i0. 54 250. 00 850. 00 17, 325. 00 27, 803. 04 Evidence in support of claim. Two aflidavits of S.D. "Warren, &c. Do. Do. Do. Do. Do. DECLARATION OF JAMES DOUGLAS WARREN. City of Ottawa, Province of Ontario, Dominion of Canada. I, James Douglas Warren, of the city of Victoria, in the Province of British Columbia, of the Domiuion of Canada, master mariner and ship- owner, do solemnly and sincerely declare as follows: 1. That I am the duly authorized agent of Thomas H. Cooper, of the city of San Francisco, in the State of California, one of the United 25 States of America, engineer, by i)ower of attorney bearing date tbe 4th day of jSTovember, A . d. 188<;, the owner of the hereinafter- mentioned steam-schooner *'Anna Beck." 2. That the said Thomas H.Cooper is, as I am informed and verily believe, a British subject by birth, and has never renounced his alle- giance to the Sovereign of Great Britain. 3. That the said steam-schooner "Anna Beck" is a British vessel since A. d. 1872, when she was transferred by purchase from the Kegis- try of the ijort of San Francisco aforesaid to that of Victoria aforesaid, and has since remained on the Registry of the port of Victoria. In 1883 the " Anna Beck" was rebuilt and raised, and in the winter of 1880-81 she was titted up with steam-propeller, and all the machinery and appli- ances necessary for such a purj)ose. The cost of said steam-power and rebuilding was over 8,000 dollars. 4. the sole manager of the said steam-schooner "Anna Beck." 5. That on "the 21st March, A. D. 1887, the said "Anna Beck " sailed from Victoria, having previously cleared iov that purpose, on a full season's hunting and iishing voyage in the North Pacihc Ocean and Behring Sea. On or about the 25th day of May then next following the "Anna Beck" sailed from the west coast of Vancouver Island for Behring Sea. On and for said voyage to Behring Sea the crew of "Anna Beck" consisted of Louis Olsen, of the said city of Victoria, master; Michael Keefe, of the same j)lace, mate; and twenty-one sailors and liunters, with one sealing-boat and eight canoes, and a complete outlit for a full voyage of hunting and Iishing in Behring Sea, That as agent, as aforesaid, of the said Thomas H. Cooper, I am 164 CASE OF GREAT BRITAIN. 6. That on or about tlie 2Sth day of June, A. d. 1887, the "Anna Beck" entered tlie Belniiig- Sea, and on the 2nd day of July, A. d. 1887, while in said sea, in latitude 54° 58' north and longitude 107° 2G' west, then being about 00 miles from the nearest land, and lawfully engaged in the objects of said voyage, the "Anna Beck"w;is seized by the United States steam-ship "Eichard Eush," for alleged violation of the laws of the United States respecting seal-lishing in the waters of Alaska. 7. That at the time of said seizure the "Anna Beck" had on board 334 seal-skins, most of which had been taken by the "Anna Beck" on her voyage up to the time of entering said sea, and not afterwards. After seizure, the "Anna Beck" was, by the authority of the Com- mander of the " Eichard Eush," taken to Uoolook Harbour, at Ouna- laska Island, in the United States Territory of Alaska, where the said seal-skins were taken out and stored on shore, and the arms and ammu- nition transferred to the said " Eichard Eush," either at sea or in said harbour. The master, mate, and crew of the "Anna Beck" were sent to Sitka, in said Territory of Alaska, on the American schooner " Chal- lenge." On their arrival at Sitka aforesaid the master and mate of the "Anna Beck " were taken before a Judge, and bound over to appear before said Judge on the 22nd August then instant, for trial, on a charge of having violated the laws of the United States respecting seal-tishing in the Waters of Alaska. The master and mate so apjieared for trial on the 22nd day of August, A. D. 1887, and thereafter from day to day until the 9th day of September then next following, when, with- out having been brouglit to trial on said charge, or on any other charge whatever, they were unconditionally released. 8. That hereto annexed, mai'ked (A), is a statement showing the value of the said steam-schooner "Anna Beck" at the time of her seizure as above set out, exce])ting only what had been consumed in the ordinary course and prosecution of the said voyage; also of the outtit, and value thereof, ot the "Anna Beck" on said voyage; also of the amounts paid for insurance premiums ou the hull, outtit, and cargo of the " Anna ]ieck " on and during said voyage; also of the amount of v\'ages paid to the crew aiul hunters for said voyage up to the time of said seizure; also of the fares and expenses of the master and mate from Sitka to Victoria, and of sixteen of the crew of the "Anna Beck" irom Fort Simpson to Victoria; and also of the number and value of theseal-skiiis taken from the said "Aniui Beck " after such seizure at Ounalaska Island. 9. The value ]tlaced on the said steam-schooner " Anna Beck," namely, 8,000 dollars, is based upon her cost, the order and condition in wliicli she was when seized, and the value of similar vessels at Vic- toria aforesaid. As stated in the jireceding i)aragrai)h 3 of this declara- tion, the "Anna Beck " w^as fitted with steam propelling ])ower in A. D. 1880-81, and in A.D. 1883 was rebuilt and raised at a. total cost of over 8,000 dollars. At the time of her seizure she was in lirst-chiss order and condition, having been thoronglily overhauled and r(^fitte(l for said voy- age, and tlie value clainuMl for her, namely, 8,000 (lobars, is a fair and reasonable vahie for her at the time of her said seizure. 10. The prices charged in Exhibit (A) for the articles, and groui)S of articles, (comprising tlie outtit of the "Anna Beck" on said voyage are the market pri(;esat Vi(;toria aforesaid at the tinui of their purchase for the use and purj)oses of said voyage, and the price i)er skin (charged for the sealskins taken from the "Anna Beck " when seized is the market price per skin current at Victoria atbresaid at the close of the season CASE OF GREAT BRITAIN. 165 of 1887, wlien, in the ordinary course of events, the catch of the "Anna Beck" would have been placed on said maiket. 11. That hereto annexed, marked " (C)," is a statement of the leg-al and i>ersonal expenses at Sitka and elsewhere arising- ont of the seizure and detention of the "Anna Beck," the arrest of her master and mate, and the claims arising therefrom. 12. Thiit hereto annexed, marked"(D)," is a statement of the estimated loss and damage to the owner of the said "Anna Beck," by reason of her seizure and detention as aforesaid for the years A. d. 1887 and 2G A. D. 1888. The estimated catch of seals for the season of 1887, namely, 3,150, is calculated upon an average catch per boat and l)er canoe of 350 seals, which is a fair and reasonable estimate of the l)robable catch per boat and per canoe for the boat and each of the canoes of the said "Anna Beck" during the season of 1887. 13. After the close of the sealing season of 1887, and during the fol- lowing months of October