219-36 July 8, 1799, Paul I. of Russia granted to the Russian-American Company various important rights on the Russian coasts in America, including that of fishing. Twenty-two years later on September 7, 1821-there was issued by the Emperor Alexander another ukase, the apparent effect of which was much more far-reaching, since it purported to exclude foreigners from carrying on commerce and from whaling and fishing on the northwest coast of America, from Bering Strait down to the fifty-first parallel of north latitude, and forbade them even to approach within a hundred Italian miles of the coast. Against this ukase both the United States and Great Britain protested, and it was never enforced. On the other hand, a convention was concluded between the United States and Russia on April 17, 1824, by which it was agreed that "in any part of the great ocean, commonly called the Pacific Ocean, or South Sea," the citizens or subjects of the high contracting parties should be "neither disturbed nor restrained, either in navigation or in fishing." A treaty in similar terms was made by Great Britain in the following year. By a convention signed at Washington on March 30, 1867, the Russian Emperor, in consideration of the sum of seven million two hundred thousand dollars in gold, ceded "all the territory and dominion" which he possessed "on the continent of America and in the adjacent islands" to the United States. Of this cession, the eastern limit was that defined in the treaty between Great Britain and Russia of 1825. The western limit was defined by a water line, which was drawn so as to include in the territory conveyed numerous islands. In 1886 certain Canadian sealers were seized by United States revenue - cutters in Bering Sea, at a distance of upwards of sixty miles from the nearest land. The United States Court at Sitka pronounced a sentence of condemnation, but the President subsequently ordered the vessels to be released; and on August 17, 1887, Mr. Bayard, as Secretary of State, instructed the American ministers at London, Paris, and certain other capitals, to invite the governments to which they were accredited to co-operate with the United States in measures for the better protection of the fur-seals. It was represented that, as the result of indiscriminate killing, the seals were in danger of extermination, and that the nations had a common interest in preventing this from being done. The responses to this overture were generally favorable, and negotiations with Great Britain had practically reached a favorable conclusion, when, on May 16, 1888, nine days after the adverse report of the Committee on Foreign Relations of the United States Senate on the Bayard-Chamberlain treaty, they were arrested on an objection from the Canadian government. On the 12th of the following September, Mr. E. J. Phelps, then American minister in London, in a despatch to Mr. Bayard, suggested that the United States might of its own motion take measures to prevent the destruction of the fur-seals by capturing on the high seas the vessels employed in it. This suggestion was not then adopted; but, after the change of administration in 1889, seizures were renewed. A warm dispute followed, in which Mr. Blaine sought to defend the seizures on the ground that the killing of seals in the open sea was contra bonos mores, as well as on the supposition that Russia had asserted and exercised exclusive rights in Bering Sea, and that the treaties of 1824 and 1825 did not apply to that body of water. On February 29, 1892, however, a treaty was signed, by which a tribunal of arbitration,' to sit at Paris, was invested with power to decide: (1) what exclusive jurisdiction, or exclusive rights in the seal-fisheries, in Bering Sea, Russia asserted prior to the cession of Alaska to the United States; (2) how far those claims were recognized by Great Britain; (3) whether Bering Sea was included in the phrase "Pacific Ocean," as used in the treaties of 1824 and 1825; (4) whether all Russia's rights passed to the United States; and (5) whether the United States had any right of protection or property in the fur-seals in Bering Sea outside the ordinary three-mile limit. If the arbitrators found that the exclusive rights of the United States were insufficient, they were to determine what For the personnel of this tribunal see infra, p. 212. concurrent regulations the two governments should jointly enforce outside territorial waters.. Before the tribunal of arbitration, the representa tives of the United States relied much upon a theory of property in fur-seals; but on the various questions of right submitted, the decision of the arbitrators was adverse to the United States. This result was due, however, not to any lack of ability or of effort on the part of the accomplished American agent and counsel, who exhausted every resource of argument, but to certain historical and legal antecedents, among which we may mention the following: 1. That, when the first seizures were reported in 1886, the Department of State not only possessed no information concerning them, but was unable to give any explanation of them, and that, when the circumstances of the seizures were ascertained, even though the full judicial record had not then been received, the vessels were ordered to be released. 2. That the court in Alaska, in condemning the vessels and punishing their masters and crews, proceeded on a doctrine of mare clausum, which the United States had never legally asserted and which the government afterwards disavowed. It is indeed generally supposed, and the supposition apparently is shared by the Supreme Court, that Mr. Blaine in his correspondence claimed that the United States had derived from Russia exclusive dominion over Bering Sea. It is, however, a fact that in a note to Sir Julian Pauncefote, December 17, 1890, Mr. Blaine said: "The government has never claimed it and never desired it, it expressly disavows it." Whether this sweeping denial is or is not altogether justified by the record, is a question that need not be here considered. 3. That the treaty ceding Alaska to the United States did not purport to convey the waters of Bering Sea, but in terms conveyed only "the territory and dominion" of Russia "on the continent of America and in the adjacent islands," and drew a water boundary so as to effect a transfer of the islands, many of them nameless, which lay in the intervening seas. 4. That the ukase of 1821, which contained the only distinctive claim of mare clausum ever put forward by Russia, did not assume to treat the whole of Bering Sea as a close sea, but only to exclude foreign vessels from coming within one hundred Italian miles of the coast, from the fifty-first parallel of north latitude to Bering Strait, without discrimination as to localities. 5. That against this ukase both the United States and Great Britain protested; and that by the treaties of 1824 and 1825 Russia agreed not to interfere with their citizens or subjects either in navigating or in fishing in "any part of the Pacific Ocean," thus abandoning the exclusive jurisdictional claim announced in the ukase. |