Page images

No. 2015.



To all whom these presents shall come, greeting:

I certify that a proclamation, of which the annexed is a true copy, was issued by the President of the United States in the year 1889, and that a proclamation of similar purport was issued by him in each of the following years, to wit: 1890, 1891, and 1892.

In testimony whereof I, John W. Foster, Secretary of State of the United States, have hereunto subscribed my name and caused the seal of the Department of State to be affixed.

Done at the city of Washington, this 30th day of July, A. D. 1892, and of the Independence of the United States of America the one hundred and seventeenth. (SEAL.]



A Proclamation.

The following provisions of the laws of the United States are hereby published for the information of all concerned:

Section 1956, Revised Statutes, chapter 3, title 23, enacts that “ No person shall kill any otter, mink, marten, sable, or fur seal, or other fur. bearing animal within the limits of Alaska Territory, or in the waters thereof; and every person guilty thereof shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or imprisoned not more than six months, or both, and all vessels, their tackle, apparel, furniture and cargo, found engaged in violation of this section shall be forfeited, but the Secretary of the Treasury shall have power to authorize the killing of any such mink, marten, sable, or other furbearing animal, except fur. seals, under such regulations as he may prescribe, and it shall be the duty of the Secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions of this section until it is otherwise provided by law, nor shall he grant any special privileges under this section.”

[ocr errors][ocr errors]

Section 3 of the act entitled "An act to provide for the protection of the salmon fisheries of Alaska," approved March 2, 1889, provides that:

Sec. 3. That section 1956 of the Revised Statutes of the United States is hereby de clared to include and apply to all the dominion of the United States in the waters of Behring Sea, and it shall be the duty of the President at a timely season in each year, to issue his proclamation, and cause the same to be published for one month at least in one newspaper (if any snch there be) published at each United States port of entry on the Pacific coast, warning all persons against entering such waters for the purpose of violating the provisions of said section, and he shall also cause one or more vessels of the United States to diligently cruise said waters and arrest all persons and seize all vessels found to be or to have been engaged in any violation of the laws of the United States therein.

Now therefore I, Benjamin Harrison, President of the United States, pursuant to the above recited statutes, hereby warn all persons against entering the waters of Behring Sea, within the dominion of the United

States, for the purpose of violating the provisions of said section 1956, Revised Statutes; and I hereby proclaim, that all persons found to be, or have been engaged in any violation of the laws of the United States, in said waters, will be arrested and punished as above provided, and that all vessels so employed, their tackle, apparel, furniture, and cargoes will be seized and forfeited.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be attixed.

Done at the City of Washington, this twenty-first day of March, one thousand eight hundred and eighty-nine, and of the Independence of the United States the one hundred and thirteenth. (SEAL.)


Secretary of State.



[Disrict court, Alaska.)

Charge to the jury delivered in 1886 defining the rights and jurisdic

tion of the United States to Bering Sea, and explaining the law in

relation to the destruction of fur-bearing animals. DAWSON, J.

GENTLEMEN OF THE JURY: You are called upon to determine or rather to find the facts in a controversy of unusual importance.

The information preferred and filed by the district attorney, based upon the affidavit of the commander of the United States revenue-cutter Corwin, charges the defendants with having killed a certain number of seals and other fur-bearing animals, and appropriating the skins of such animals, in the waters of Alaska, contrary to the provisions of section 1956 of the Revised Statutes. It is the duty of the court to instruct the jury as to the law applicable to the facts of this case as developed by the evidence, and it is your duty as jurors acting under the solemn obligation of an oath, and as one of the instrumentalities designated by the law to aid in its enforcement, to obey, and in your deliberations observe the instructions given you by the court.

For the purpose of aiding you in your deliberations, I will define to you the western boundary line of Alaska as designated and set forth in the treaty of March 30, 1867, between the Government of the United States, on the one part, and by His Majesty the Emperor of all the Russias, acting through his envoy extraordinary and minister plenipotentiary to the United States, on the other. Article one of that treaty defines the western boundary as follows:

“ The western limit within which the territories and dominion conveyed are contained passes through a point in Berings Straits on the parallel of sixty-five degrees thirty minutes north latitude at its intersection by the meridian which passes midway between the islands of Krusenstern and Ignalook, and proceeds due north without limitation into the same frozen ocean. “The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest through Berings Straits and Berings Sea so as to pass midway between the northwest point of the island of St. Lawrence and the southwest point of Cape Chaukotski to the meridian of one hundred and seventy-two west longitude; thence, from the intersection of that meridian, in a southwesterly direction, so as to pass midway between the island of Attu and the Copper Island of the Kounavdoski couplet or group in the North Pacific Ocean, to the meridian of one bundred and ninety-three degrees west longitude, so as to include in the territory conveyed the whole of the Aleutian Islands east of the meridian."

All the waters within the boundary set forth in this treaty to the western end of the Aleutian Archipelago and chain of islands are to be considered as comprised within the waters of Alaska, and all the penalties prescribed by law against the killing of fur-bearing animals must therefore attach against any violation of law within the limits before described.

If, therefore, the jury believe from the evidence that the defendants by themselves, or in conjunction with others, did, on or about the time charged in the information, kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal or auimals, on the shores of Alaska or in Bering Sea, east of the one hundred and ninety-third degree of west longitude, the jury should find the defendants guilty.

You are further instructed, gentlemen, as a matter of law, that an accessory is one who stands by and aids, abets, or assists, or, who not being present aiding, abetting, or assisting, bas advised or encouraged others to perpetrate the act charged in the information, such a person is to be considered a principal; and if you believe from the evidence that the defendants were associated with other persons who were en-gaged in killing any of the animals herein mentioned, and that they gave aid and encouragement to such persons by word, sign, or gesticulation, while they were engaged in such unlawful enterprise, then the jury should find them guilty, and assess their punishment as hereinbefore set forth.

The jury are further instructed, as a matter of international law, that it makes no difference that one or both of the accused parties may be subjects of Great Britain. Russia had claimed and exercised jurisdiction over all that portion of Bering Sea embraced within the boundary lines set forth in the treaty, and that claim had been tacitly recognized and acquiesced in by the other maritime powers of the world for a long series of years prior to the treaty of March 30, 1867.

By the terms of that treaty the United States acquired all the rights of occupancy, jurisdiction, and control of the waters of Bering Sea that had been exercised and enjoyed by Russia, east of the one hundred and ninety-third degree, west longitude, prior to the exchange and ratification of the treaty of March 30, 1867, and acquired absolute control and dominion over all rivers which flow through the Territory of Alaska, and the seacoast adjoining it or any of the islands embraced within the treaty and the navigable waters included in all bays and between headlands and arms of the sea joining the Territory, and British vessels mained by British subjects had no right to navigate the waters before described for the purpose of killing any of the fur-bearing animals heretofore designated.

The jury are further instructed that on the 3d day of August, 1870, the United States, through its acting Secretary of the Treasury, in pursuance of an act of Congress approved July 1, 1870, entitled - An act to prevent the extermination of fur-bearing animals in Alaska," entered into a contract of lease, and by said contract did lease to the Alaska Commercial Company, a corporation duly established and incorporated under the laws of the State of California for the term of twenty years from the first day of May, 1870, the right to engage in the business of taking fur seals on the islands of St. George and St. Paul within the Territory of Alaska, and that public law implies an obligation upon the United States to protect its lessees in the legitimate use of the franchise conferred in said lease, and the capture of the defendants with the vessels under their charge and control in the waters and within the boundary lines set forth in this charge was lawful, and that it was lawful for the Secretary of the Treasury to direct and order the seizure of such vessels, their masters, mates, and crews, when found violating the law within the waters of Alaska.

The admission of the defendants that they were killing fur-bearing animals in that portion of Bering Sea which is within the boundary line set forth in the treaty, as shown by the evidence, are to be taken against them, and although such admissions are to be taken together as a whole, the jury are not bound to regard all parts of them with equal confidence; the fact that the admissions are against their interests or in their favor, their improbability, inconsistency, contradictions, and corroboration by other facts in proof are circumstances proper to be considered by the jury in determining the weight to be given to such admissions. And if the jury believe from the evidence that the defendants or either of them were in charge of the schooner Thornton and had iv their employ men furnished with small boats and firearms or other instruments or implements for the purpose of killing any of the furbearing animals mentioned in the information, and that they admitted they were engaged in that business, or when being accused they remained silent, or if dead seals were found in their possession which had recently been killed, the jury will be warranted in presunning that they were killed under the direction and at the command of the defendants.


Opinion of Judge Dawson, Alaskan Reports, Vol. 1, pp. 53 to 61, in the

case of “The British Schooner." Filed in the district court of Alaska, October 11, 1887, in the cases of the Dolphin, Anna Beck, Grace aud Ada.


The libel of information in the case of the schooner Dolphin is similar to the informations tiled against the other schooners namned, and alleges that on the 12th day of July, 1887, the commanding officer of the United States revenue cutter Rush seized the schooner Dolphin in that portion of Bering Sea which was ceded to the United States by Russia in the treaty of March, 1867. That said schooner was violating section 1956 of the Revised Statutes in relation to the protection of seal life in the waters of Alaska. To the libel of information the Queen's counsel of British Columbia filed a demurrer, alleging that the district court of Alaska had no jurisdiction over the subject-matter of the action, for the reason that the schooner was more than 1 marine league froin the shore when seized, and that the act of Congress of July 1868, is unconstitutional, in that it restricts free navigation of the Bering Sea for sealing purposes. A stipulation, signed by the Queen's coun: sel, Mr. M. W. T. Drake, upon the part of the British owners, and Mr. A. K. Delaney upon the part of the United States, was filed, in which it was agreed and conceded that the masters of the vessels named were taking fur seals in that portion of Bering Sea which is claimed by the United States under the treaty with Russia of March, 1867.

The issue as presented involves an examination of a most pertinent and critical question of international law. It will be necessary to ascertain, first, the right of the Imperial Government of Russia to the Bering Sea anterior to the treaty of March, 1867, and for information upon this subject I am largely indebted to Mr. N. L. Jeffries for a collection and citation of authorities and historical events, and for the want of books at my command upon this question, I am compelled to rely for historical facts upon his carefully prepared brief. From this elaborate brief I glean the following facts:

The Sea of Kamstchatka, or Bering Sea, is a large estuary of the North Pacific Ocean or bay, and from the date of its discovery until the cession of Alaska to the United States was bordered on all sides by the territory of Russia, except the straits at the north leading to the Frozen Ocean, and the outlet in the southwest into the North Pacific.

In the early part of the eighteenth century Peter the Great, of Russia, directed the fitting out of an exploring expedition to determine whether the continent of Asia and America joined, or were separated by the sea; also to discover if there were not an American Russia, as there was already an Asiatic and European Russia.

The expedition was commanded by Captain Bering, who set out from St. Petersburg, accompanied by officers, seamen, and shipbuilders, on the 5th of February, 1725, and after a perilous journey through Northern Siberia he reached Kamtchatka, whence he sailed on the 20th of July, 1728, in a vessel named the Gabriel, which had been built at Kamtchatka in accordance with instructions drawn up by the Emperor.

The first land discovered was the island of St. Lawrence, which he named in honor of the saint on whose day it was discovered. He continued northward until he reached what he supposed was the northeastern extremity of Asia, and was satisfied that the two continents were separated by the sea. Returning to St. Petersburg after passing through the sea and straits which bear his name, with the fixed opinion that there was a large body of land to the eastward, he aroused the spirit of discovery and induced his Government to continue the explorations. He was created an admiral and placed in command of a new expedition; the Senate, the Admiralty, and the Academy of Science all united in aiding and encouraging the enterprise. This expedition, like the former, made the long and dreary journey across northern Asia and the Sea of Okhotsk to Kamtchatka.

On the 4th of June, 1741, two well-appointed ships, the St. Paul and St. Peter, sailed in quest of new discoveries. On the 18th of July Bering first saw the continent of America, in latitude 500 28'. (See Muller's Voyages from Asia to America; Steller's Diary, p. 190.)

According to his instructions, after reaching the American coast he was to steer southward to the forty-fifth parallel, and then return to the north, crossing back to Asia at Bering Strait. (Bancroft's History of Alaska, p. 51.)

During this expedition Bering sailed as far south as forty-five degrees north latitude, and after making many discoveries his ship was finally wrecked near the island which bears his name, and on which he died on the 8th of December, 1741.

The enterprising spirit of Russian merchants and traders eren in

« PreviousContinue »