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Siberia was awakened by the accounts given of the industries that might be created and the innumerable fur-bearing animals which inbabited the waters and islands in and adjacent to what is now known as Bering Sea. Owing to a conflict of interests, disorder, and a wanton destruction of seal life in the waters and on the islands of the new discoveries, an imperial ukase was issued bearing date of December 27, 1799, by which the right of fishing, hunting and trading was conferred upon what was designated the “Russian American Company.” In the ukase of that date Russia asserted a distinct claim, by right of discovery, to the western part of America, beginning from the fifty-fifth degree of north latitude, and of the chain of islands extending from Kamtchatka to the north to America and southward to Japan. Authority was also given to the company to have exclusive use of all hunting grounds and establishments then existing on the northeastern (western) coast of America, from the fiftyfifth degree of north latitude to Bering Straits, and also on the Aleutian, Kurile, and other islands sitnated on the northeastern ocean, and to make new discoveries not only north of the fifty-fifth degree of north latitude, but farther to the south, and to occupy the new lands discovered as Russian possessions. It will be observed from the foregoing that Russia claimed the exclusive right and dominion of the Sea of Kamtchatka, now known as Bering Sea, by right or discovery, and for the further reason that the sea was bounded by Russia's Asiatic coast on the west, to Bering Straits on the north, and on the American continent as far east as British possessions, and south to 540 40' north latitude, and was essentially landlocked by Russian territory.
Now, in relation to this question of title acquired by discovery, our own court of last resort has held, in the case of Johnson v. McIntosh (8 Wheat., 572), Marshall, C. J., delivering the opinion, that, " On the discovery of this immense continent the great nations of Europe were eager to appropriate to themselves so much of it as they could acquire.
But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and subsequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition which they all asserted, should be regulated as between themselves. This principle was, that the discovery gave title to the Government by whose subjects, or by whose authority it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no European could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented.”
. (See Wharton's Digest International Law, Vol. 1, $ 2.) Chancellor Kent says: “All that can be reasonably asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety and for some lawful end.” (First Kent's Commentaries, p. 28.)
Vattel says: “A nation may appropriate to herself those things of which the free and cominon use would be prejudicial or dangerous to her. This is a second reason for which governinents extend their dominion over the sea along their coasts, as far as they are able to protect their rights." (See Vattel's Law of Nations, 127.)
Supplementing the principle enuciated by Chief Justice Marshall supra with the rule as stated by Kent and Vattel, can there longer exist a doubt as to Russia's title to the Bering Sea and the extended group of the Aleutian Islands?
The Queen's counsel lays much stress in his argument upon the fact that both the United States and Great Britain treated with Russia (the United States in 1824, and Great Britain in 1825) in relation to the free use of the waters of the Bering Sea, and it is claimed that by these treaties the sea was thrown open as the common property of mankind. But an examination of these treaties and the objects in view by the three great powers fails to warrant the conclusion reached in the argument. The principal parts of the treaty between the United States and Russia, the treaty between Great Britain and Russia being similar, are thus set forth by Professor Wharton. (See First International Law Digest, 5 32):
ARTICLE 1. It is agreed that, in any part of the great ocean, commonly called the Pacific Ocean or South Sea, the respective citizens or subjects of the high contracting powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not always have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles.
ART. 2. With a view of preventing the rights of navigation and of fishing exercised upon the great ocean by the citizens and subjects of the high contracting powers from becoming the pretext for an illicit trade, it is agreed that the citizens of the United States shall not resort to any point where there is a Russian establishment, without the permission of the governor or commander; and that, reciprocally, the subjects of Russia shall not resort, without permission, to any establishment of the United States upon the northwest coast.
ART 3. It is moreover agreed that, hereafter, there shall not be formed by the citizens of the United States, or under the authority of the said States, any establishment upon the northwest coast of America, nor m any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude; and that, in the same manner, there shall be none founded by Russian subjects, or under the authority of Russia, south of the same parallel.
ART. 4. It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks upon the coast mentioned in the preceding article, for the purpose of fishing and trading with the natives of the country.
ART. 5. All spirituous liquors, fire-arms, other arms, powder, and munitions of war of every kind, are always excepted from this same commerce permitted by the preceding article, and the two powers engage, reciprocally, neither to sell nor suffer them to be sold, to the natives by their respective citizens and subjects, nor by any person who may be under their authority. It is likewise stipulated that this restriction shall never afford a pretext, nor be advanced in any case, to authorize either search or detention of the vessels, seizure of the merchandise, or, in fine, any measures of constraint, towards the merchants or the crews who may carry on this commerce; the high contracting powers reciprocally reserving to themselves to determine upon the penalties to be incurred, and to inflict the punishments in case of the contravention of this article by their respective citizens or subjects.
Nations, like individuals, have the right of contracts, and their
treaties are subject to the same rules of interpretation and of morality which govern in municipal law. (First Bouvier Law Dictionary, 741.)
" Estoppel” in law is a term, the etymology of which implies the preclusion of a person from asserting a fact by previous conduct, inconsistent therewith, on his own part or on the part of those under whom he claims. It is in law a prohibition which denies a man the right of alleging or denying a fact in which he has with a full knowledge long acquiesced (Stephens? Plead., 239; see Vattel on the Law of Nations, $ 286 and $ 294). Applying this rule the conclusion can not be escaped that in consequence of the acquiescence of Great Britain in the claim, jurisdiction, and dominion of Russia to what is now known as Bering Sea since the expiration of the treaty of Russia and Great Britain in 1825, which was to exist ten years, Great Britain and her Dominion Government, of which British Columbia is a part, are estopped from any claim of right or privilege of taking fur-bearing animals in Bering Sea east of the line mentioned as our western boundary in the treaty, and which is recognized as the line dividing the continents of Asia and North America.
The western boundary line of the United States as agreed upon by the United States and Russia in the treaty of March, 1867, is as follows:
The western limit within which the territories and dominion conveyed are contained passes through a point in Bering's Straits on tbe parallel of sixty-five degrees thirty minutes north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern, or Ignalook, and the island of Ratmanoff, or Noon arbook, 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 Bering's Straits and Bering's Sea, so as to pass midway between the northwest point of the island of St. Lawrence and the southeast point of Cape Choukotski, 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 Attou and the Copper Island of the Kormandorski couplet or group in the North Pacific Ocean, to the meridian of one hundred and ninety-three degrees west longitude, so as to include in the territory conveyed the whole of the Aleutian Islands east of that meridian. (See Public Treaties, p. 672.)
The courts have the same right and power when called upon to interpret a public treaty to derive aid from contemporaneous interpretation, and by ascertaining the intention of those whose duty it is, under the Constitution, to make treaties as they have in the interpretation of any other law. What then was the object in purchasing Alaska? Mani. festly to extend our northwest boundary line so as to include the whole group of the Aleutian Islands.
Senator Sumner, who was chairman of the Committee on Foreign Affairs in the Senate of the United States at the time of the Alaska purchase, and after the boundary line had been agreed upon, defined it as follows:
“Starting from the Frozen Ocean the western boundary descends Bering Straits midway between the two islands of Krusenstern and Ratmanoff, to the parallel of 65° 30', just below where the continents of America and Asia approach each other the nearest; and from this point it proceeds in a course nearly southwest through Bering Straits, midway between the island of St. Lawrence and Cape Choukotski, to the meridian of 172° west longitude, and thence in a southwesterly
direction, traversing Bering Sea midway between the island of Attou on the east and Copper Island on the west, to the meridian of 1930 west longitude, leaving the prolonged group of the Aleutian Islands in the possessions now transferred to the United States, and making the western boundary of our country the dividing line which separates Asia from America. In the Aleutian range, besides innumerable islets and r ocks, there are not less than fifty-five islands exceeding 3 miles in length; there are seven exceeding 10 miles, with Ounimak, which is the largest, exceeding 73 miles. In our part of Bering Sea there are five considerable islands, the largest of which is St. Lawrence, being more than 96 miles long." (See Ex. Doc. No. 177, Fortieth Congress, second session, p. 125.) Indicating most clearly what was the under standing in the United States Senate at the time as to our western boundary.
Subdivision 2 of section 2 of the Constitution in defining the powers of the President, says: “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”
Judge Story, in considering this clause of the Constitution, says: “ It will be observed from this that the power to make treaties is by the Constitution general, and, of course, it embraces all sorts of treaties for peace or war, for commence or territory."
(See Story on the Constitution, $1508, and authorities there cited.)
It is argued that this question belongs to the political department of the Government and that it should be there adjusted, but this position is, I think, wholly untenable, at least at this stage of the controversy.
The second clause of the sixth article of the Constitution declares that: “This Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. And the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the con trary notwithstanding."
Judge Story, in commenting on this section, forcibly says: “ The propriety of this clause would seem to result from th very nature of the Constitution. If it was to establish a national governinent, that gov ernment ought, to the extent of its powers and rights, to be supreme. It would be a solecism to affirm that a national government should ex; ist with certain powers, and yet that in the exercise of those powers it should not be supreme.
"In regard to treaties, there is equal reason why they should be held when made to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no for eign nation would consent to negotiate with us; or, if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals of war. It is, therefore, indispensable, that they should have the obligation and force of a law, that they may be executed by the judicial power and be obeyed like other laws." (See Story on the Constitution, sec. 1838.)
Congress recognized the right of the United States to the whole of the new acquisition by appropriating $7,200,000 to pay for the new territory, and on the 27th day of July, 1868, extendeil the laws of the United States relating to customs, commerce, and navigation over all the mainland, islands, and waters of the territory ceded to the United States by the Emperor of Russia. (See Revised Statutes, sec. 1954,)
Showing unmistakably the understanding of the Government at the time as to what had been acquired, and that our boundary line was located at the one hundred and ninety-third degree of west longitude. The longitude of a place is the are of the equator intercepted between the meridian passing through that place and some assumed meridian to which all others are referred. Different nations have adopted different meridians. The English reckon from the Royal Observatory at Greenwich; the French from the Imperial Observatory at Paris, and the Gerinans from the observatory at Berlin, or from the island of Ferro. In the United States we sometimes reckon longitude from Washington and sometimes from Greenwich. (See Loomis' Elements of Astronomy:) But in establishing the western boundary line of Alaska the reckoning of longitude was from Greenwich, which reaches the line dividing the continents of Asia and North America. (See article 1 of the Treaty of March, 1867.)
The purchase of Alaska was unquestionably made with a view to the revenues to be derived from the taking of fur-seal in the waters of Bering Sea, and especially on the islands of St. Paul and St. George, both of which were by act of Congress of March 3, 1869, made a special reservation for Government purposes.” (See 15th Statute, 248.) Secretary Seward was a skilled diplomat, a learned man in statecraft, and he evidently foresaw the income to be derived by the Government from the seal industry on and adjacent to those islands. Hence in the pegotiation he insisted upon and Russia conceded that our boundary line should be extended to the meridian named in the treaty. The industry and consequent revenues would be hopeless without the residuary power of the United States to protect and regulate the taking of fur-bearing animals in that part of our domain. The effort of the United States to seize and drive out the illicit piratical craft that have been navigating those waters for years, indiscriminately slaughtering furbearing animals, the continuation of which can but result in the wanton destruction of the rookeries, the most valuable in the world, is a legitimate exercise of the powers of sovereignty under the law of nations, with which no nation cau lawfully interfere. The question of the constitutionality of the act of Congress of July 27, 1868 (Revised Statutes, p. 343), scarcely deserves notice, since it has been sustained by this court." (See United States v. Nelson, 29th Federal Reporter, p. 202. See same case affirmed by the United States circuit court for Oregon, Weekly Federal Reporter of April 19, p. 112. See also The Louisa Simpson, 2 Sawyer.)
The conclusion I have reached is that the demurrer must be overruled, and it is so ordered; and that judgment of forfeiture to the United States be entered against each of the vessels separately, together with their tackle, apparel, furniture, and cargoes, saving to the masters and mates their private property, such as nautical instruments and the like, and that a stay of proceedings for ninety days be granted as per stipulation filed.,
UNITED STATES VS. SCHOONER JAMES G. SWAN, ETC. (United States District Court, District of Washington, Northern Division.]
OPINION FILED MARCH 26, 1892.
Fur-seals in great numbers babitually make annual visits to the Pribilof Islands, in Bering Sea, affording to the native inhabitants their