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Lord Salisbury had stated that "the Canadian Government objected to any such restrictions (as those asked for the protection of the seal fisheries, and that until Canada's consent could be obtained, Her Maj. esty's Government was not willing to enter into the convention."
I am justified, therefore, in assuming that Lord Salisbury can not recur to the remark of Mr. Phelps as one of the reasons for breaking off the negotiation, because the negotiation was in actual progress for more than four months after the reinark was made, and Mr. Phelps himself took large part in it.
Upon this recital of facts I am unable to recall or in any way to qualify the statement which I made in my note of June 4th, to the effect that Lord Salisbury "abruptly closed the negotiation because the Canadian Government objected, and that he assigned 10 other reason whatever."
Lord Salisbury expresses the belief that even if the view I bave taken of these transactions be accurate they would not bear out the argument which I found upon them. The argument to which Lord Salisbury refers is, I presume, the remonstrance which I made by direction of the President against the change of policy by Her Majesty's Government without notice and against the wish of the United States. The interposition of the wishes of a British province against the conclusion of a convention between two nations, which, according to Mr. Phelps, “ had been virtually agreed upon except as to details," was in the President's belief a grave injustice to the Government of the United States. I have, etc.,
JAMES G, BLAINE.
CORRESPONDENCE RELATIVE TO THE JURISDICTIONAL RIGHTS IN BERING SEA FORMERLY POSSESSED BY RUSSIA AND TRANSFERRED TO THE UNITED STATES BY THE TREATY OF 1867 (Continued).
Lord Salisbury to Sir Julian Pauncefote. No. 166.]
FOREIGN OFFICE, August 2, 1890. SIR: I have received and laid before the Queen your dispatch No. 101 of the 1st ultimo, forwarding a copy of a note from Mr. Blaine, in which he maintains that the United States have derived from Russia rights of jurisdiction over the waters of Behrings Sea to a distance of 100 miles from the coasts transferred to them under the treaty of the 30th March, 1867.
In replying to the arguments to the contrary effect contained in my dispatch 106A of the 22d May, Mr. Blaine draws attention to certain expressions which I had omitted for the sake of brevity in quoting from Mr. Adams's dispatch of the 22d July, 1823. He contends that these words give a different meaning to the dispatch, and that the latter does not refute but actually supports the present claim of the United States. It becomes necessary, therefore, that I should refer in greater detail to the correspondence, an examination of which will show that the passage in question can not have the significance which Mr. Blaine seeks to give to it, that the words omitted by me do not in reality affect the point at issue, and that the view which he takes of the attitudo both of Great Britain and of the United States towards the claim put forward by Russia in 1822 can not be reconciled with the tenor of the dispatches.
It appears from the published papers that in 1799 the Emperor, Paul I, granted by charter to the Russian American Company the exclusive right of hunting, trade, industries, and discoveries of new land on the Northwest Coast of America, from Behring's Strait to the fifty-fifth degree of north latitude, with permission to the company to extend their discoveries to the south, and to form establishments there, provided they did not encroach upon the territory occupied by other powers.
The southern limit thus provisionally assigned to the company corresponds, within 20 or 30 miles, with that which was eventually agreed upon as the boundary between the British and Russian possessions. It comprises not only the whole American coast of Bering Sea, but a long reach of coast line in the south of the Alaskan peninsula as far as the level of the southern portion of Prince of Wales Island.
The charter, which was issued at a time of great European excitement, attracted apparently little attention at the moment and gave rise to no remonstrance. It made no claim to exclusive jurisdiction over the sea, nor do any measures appear to have been taken under it to restrict the commerce, navigation, or fishery of the subjects of foreign nations. But in September, 1821, the Russian Government issued a fresh ukase, of which the provisions material to the present discussion were as follows:
SECTION 1. The pursuits of commerce, whaling, and fishing, and of all other industry, on all islands, ports, and gulfs, including the whole of the Northwest Coast of America, beginning from Behring's Strait to the 51st degree of northern latitude; also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring's Strait to the south cape of the Island of Urup, viz, to 45° 50' northern latitude, are exclusively granted to Russian subjects.
SEC. 2. It is therefore prohibited to all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles. The transgressor's vessel is subject to contiscation, along with the whole cargo.
By this ukase the exclusive dominion claimed by Russia on the American continent was pushed some 250 miles to the south as far as Vancouver Island, and notice was for the first time given of a claim to maritime jurisdiction which was regarded both in England and the United States as extravagant, or, to use Lord Stowell's description of it, "very unmeasured and insupportable."
Upon receiving communication of the ukase the British and United States Governments at once objected both to the extension of the territorial claim and to the assertion of maritime jurisdiction. For the present I will refer only to the protest of the United States Government. This was made in a note from Mr. John Quincy Adams, then Secretary of State, to the Russian representative, dated the 25th February, 1822, which contains the following statement:
I am directed by the President of the United States to inform you that he has seen with surprise in this edict the assertion of a territorial claim on the part of Russia extending to the fifty-first degree of north latitude on this continent, and a regulation interdicting to all commercial vessels other than Russian, pon the penalty of seizure and contiscation, the approach upon the high seas within 100 Italian miles of the shores to which that claim is made to apply. 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 Government to preserve them in that state. It was expected, before any act which should define the boundary between the territories of the United States and Russia on this continent, that the same would lave been arranged by treaty between the parties. 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 affects so deeply the rights of the United States and of their citizens that I am instructed to inquire whether you are anthorized to give explanations of the grounds of right, upon principles generally recognized by the laws and usages of nations, which can warrant the claims and regulations contained in it.
The Russian representative replied at length, defending the territorial claim on grounds of discovery, first occupation, and undisturbed possession, and explaining the motive“ which determined the Imperial Government to prohibit foreign vessels from approaching the Northwest Coasts of America belonging to Russia within the distance of at least 100 Italian miles. This measure,” he said, “however severe it may at first view appear, is after all but a measure of prevention." He went on to say that it was adopted in order to put a stop to an illicit trade in arms and ammunition with the natives, against which the Russian Government had frequently remonstrated; and further on he observed:
I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacific Ocean extend, on the Northwest Coast of America, from Behrings Strait to the fifty-first degree of north latitude, and on the opposite side of Asia and the islands adjacent, from the same strait to the forty-fifth degree. The extent of sea of which these possessions form the limits comprehends all the conditions which are ordinarily attached to shut seas (“ mers fermées "), and the Russian Government might, consequently, judge itself authorized to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred only asserting its essential rights, without taking any advantage of localities.
To this Mr. Adams replied (30th March, 1822), pointing out that the only ground given for the extension of the Russian territorial claim was the establishment of a settlement, not upon the continent, but upon a small island actually within the limits prescribed to the Russian American Company in 1799, and he went on to say:
This pretension is to be considered not only with reference to the question of territorial right, but also to that prohibition to the vessels of other pations, including those of the United States, to approach within 100 Italian miles of the coasts. From the period of the existence 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 90c of longitude, or 4,000 miles.
The Russian representative replied to this note, endeavoring to prove that the territorial rights of Russia on the Northwest Coast of America were not confined to the limits of the concession granted to the Russian American Company in 1799, and arguing that the great extent of the Pacific Ocean at the fifty-first degree of latitude did not invalidate the right which Russia might have to consider that part of the ocean as closed. But he added that further discussion of this point was unnecessary, as the Imperial Government had not thought fit to take advantage of that right.
The correspondence then dropped for a time, to be resumed in the following spring. But it is perfectly clear from the above that the privileges granted to the Russian American Company in 1799, whatever effect that may have had as regards other Russian subjects, did not operate to exclude American vessels from any part of the coast, and that the attempt to exclude them in 1821 was at once resisted. Further, that the Russian Government had no idea of any distinction between Behring Sea and the Pacific Ocean, which latter they considered as reaching southward from Bering Straits. Nor throughout the whole of the subsequent correspondence is there any reference whatever on either side to any distinctive name for Behring Sea, or any intimation that it could be considered otherwise than as forming an integral part of the Pacific Ocean,
I now come to the dispatch from Mr. Adams to Mr. Middleton of the 22d of July, 1823, to which reference has before been made, and which it will be necessary to quote somewhat at length. After authorizing Mr. Middleton to enter upon a negotiation with the Russian ministers concerning the differences which had arisen from the ukase of the 4th (16th) September, 1821, Mr. Adams continues:
From the tenor of the ukase, the pretensions of the Imperial Government extend to an exclusive territorial jurisdiction from the forty-tifth degree of north latitude, on the Asiatic coast, to the latitude of 51° north on the western coast of the American continent; and they assume the right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of that coast.
The United States can admit no part of these claims. Their right of navigation and of tishing is perfect, and has been in constant exercise from the earliest times, after the peace of 1783, 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 tifty-fifth degree of latitude, and have no existence on the continent of America.
Mr. Blaine has argued at great length to show that when Mr. Adams used these clear and forcible expressions he did not mean what he seemed to say; that when he stated that the United States 6 could admit no part of these claims,” he meant that they admitted all that part of them which related to the coast north of the Aleutian Islands; that when he spoke of the Southern Ocean he meant to except Behring Sea, and that when he contended that the ordinary exceptions and exclusions of the territorial jurisdictions had no existence, so far as Russian rights were concerned, on the continent of America, he used the latter term not in a geographical but in a “territorial” sense, and tacitly excepted, by a very singular petitio principii, the Russian possessions. In order to carry out this theory it is necessary for him also to assume that the negotiators, in the course of the discussions, made indiscriminate use of the term “Northwest Coast of America,” with a variety of signification which he admits to be “confusing, and, at certain points, apparently contradictory and irreconcilable.”
The reputation of the American statesmen and diplomatists of that day for caution and precision affords of itself strong argument against such a view, and even if this had been otherwise, so forced a construction would require very strong evidence to contirm it. But a glance at the rest of the dispatch and at the other papers will show that the more simple interpretation of the words is the correct one. For Mr. Adams goes on to say:
The correspondence between M. Poletica and this Department contained 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 Government could not fail, upon a review of the measure, to revoke it altogether. 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 (page 370) written by a person fully master of the subject; and for the view of it taken in England I refer you to the fifty-second number of the Quarterly Review, the article upon Lientenant 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 foundation in fact.
On reference to the last-mentioned article, it will be found that the writer states that:
A trade to the northwestern coast of America and the free navigation of the waters that wash its shores have been enjoyed as a common right by subjects of the United States and of several European powers without interruption for nearly forty years, We are by no means prepared to believe or admit that all this has been on sufferance merely, and that the rights of commerce and navigation in that region have been vested in Russia alone.
Further on he puts the question in the following manner (the italics are his own):
It is not, we apprehend, whether Russia has any settlements that give her terri torial claims on the continent of America. This we do not deny. But it is whether the location of those settlements and the discoveries of their navigators are such as they are represented to be; whether they entitle her to the exclusive possession of the whole territory north of 51° and to sovereignty over the Pacific Ocean beyond that parallel.
These passages sufficiently illustrate Mr. Adams's meaning, if any evidence be required that he used plain language in its ordinary sense. Clearly he meant to deny that the Russian settlements or discoveries gave Russia any claim as of right to exclude the navigation or fishery of other nations from any part of the seas on the coast of America, and that her rights in this respect were limited to the territorial waters of certain islands of which she was in permanent and complete occupation.
Having distinctly laid down this proposition as regards the rights of the case, Mr. Adams ent on to state what the United States were ready to agree to as a matter of conventional arrangement. He said:
With regard to the territorial claim separate from the right of traffic with the natives and from any system of colonial exclusions, we are willing to agree to the boundary line within which the Emperor Paul had granted exclusive privileges to the Russian American Company, that is to say, latitude 55o.
If the Russian Government apprehended serious inconvenience from the illicit traffic of foreigners with their settlements on the Northwest Coast, it may be effectually guarded ag iinst by stipulations similar to those a drait of which is herewith subjoined, and to which you are authorized, on the part of the United States, to agree.
The draft convention was as follows:
DRAFT OF TREATY BETWEEN THE UNITED STATES AND RUSSIA.
ARTICLE I. In order to strengthen the bonds of friendship, and to preserve in futurg a perfect harmony and good understanding between the contracting parties, it i agreed that their respective citizens and subjects shall not be disturbed or molested either in navigating or in carrying on their fisheries in the Pacific Ocean or in the South Seas, or in landing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country, sub)ject, nevertheless, to the restrictions and provisions specified in the two following articles.
ART. II. To the end that the navigation and fishery of the citizens and subjects of the contracting parties, respectively, in the Pacific Ocean or in the South Seas may not be made a pretext for illicit trade with their respective settlements, it is agreed that the citizens of the United States shall not land on any part of the coast actually occupied by Russian settlements, unless by permission of the governor or commander thereof, and that Russian subjects shall, in like manner, be interdicted from landing without permission at any settlement of the United States on the said Northwest Coast.
Arr. III. It is agreed that no settlement shall be made hereafter on the Northwest Coast of America by citizens of the United States, or uuder their anthority, north, nor by Russian subjects, or under the authority of Russia, south, of the 55th degree of north latitude.
In an explanatory dispatch to Mr. Rush, the American Minister in London, same date, Mr. Adams says:
The right of carrying on trade with the natives throughout the Northwest ('oast they (the Cnited States) can not renounce. With the Russian settlements at Kodiak,