« PreviousContinue »
or at New Archangel, they may, fairly claim the advantage of a free trade, having so long enjoyed it unmolested, and because it has been and would continue to be as advantageous at least to those settlements as to them. But they will not contest the right of Russia to prohibit the traffic, as strictly confined to the Russian settlement itself, and not extending to the original natives of the coast.
It is difficult to conceive how the term "Northwest Coast of America," used liere and elsewhere, can be interpreted otherwise than as applying to the Northwest Coast of America generally, or how it can be seriously contended that it was meant to denote only the more westerly portion, excluding the more northwesterly part, because by becoming a Russian possession this latter had ceased to belong to the American continent.
Mr. Blaine states that when Mr. Middleton declared that Russia had no right of exclusion on the coasts of America between the fiftieth and sixtieth degrees of north latitude, nor in the seas which washed those coasts, he intended to make a distinction between Behring Sea and the Pacific Ocean. But upon reference to a map it will be seen that the sixtieth degree of north latitude strikes straight across Behring Sea, leaving by far the larger and more important part of it to the south, so that I confess it appears to me that by no conceivable construction of his words can Mr. Middleton be supposed to have excepted that sea from those which he declared to be free.
With regard to the construction which Mr. Blaine puts upon the treaty between the United States and Russia of the 17th April, 1824, I will only say that it is, as far as I am aware, an entirely novel one, that there is no trace of its having been known to the various publicists who have given an account of the controversy in treaties on international law, and that it is contrary, as I shall show, to that which the British negotiators placed on the treaty when they adopted the first and second articles for insertion in the British treaty of the 28th February, 1825, I must further dissent from his interpretation of Article VII of the latter treaty. That article gives to the vessels of the two powers "liberty to frequent all the inland seas, gulfs, havens, and creeks on the coast mentioned in Article III for the purpose of fishing and of trading with the natives.” The expression “coast mentioned in Article III” can only refer to the first words of the article: “The line of demarcation between the possessions of the high contracting parties upon the coast of thecontinent and the island of America to the northwest shall be drawn," etc. That is to say, it included all the possessions of the two powers on the Northwest Coast of America. For there would have been no sense whatever in stipulating that Russian vessels should have freedom of access to the small portion of coast which, by a later part of the article, is to belong to Russia. And as bearing on this point it will be noticed that Article VI, which has a more restricted bearing, speaks only of “the subjects of His Britannic Majesty” and of “the line of coast described in Article III."
The stipulation of the treaty were formally renewed by articles inserted in the general treaties of commerce between Great Britain and Russia of 1813 and 1859. But Mr. Blaine states that
The rights of the Russian American Company which, under both ukases, included the sovereignty over the sea to the extent of 100 miles from the shores, were reserved by special clanse in a separate and special article signed after the principal articles of the treaty had been concluded and signed.
Upon this I have to observe, in the first place, that the ukase of 1799 did not contain any mention whatever of sovereignty over the sea; secondly, that the context of the separate article is such as altogether to preclude the interpretation that it was meant to recognize the objectionable claiin contained in the ukase of 1821. I will quote the article at length:
SEPARATE ARTICLE II.
It is understood in like manner that the exceptions, immunities, and privileges hereinafter mentioned shall not be considered as at variance with the principle of reciprocity which forms the basis of the treaty of this date, that is to say:
1. The exemption from navigation dues during the first three years which is enjoyed by vessels built in Russia and belonging to Russian subjects.
2. The exemptions of the like nature granted in the Russian ports of the Black Sea, the sea of Azof, and the Danube to such Turkish vessels arriving from ports of the Ottoman Empire situated on the Black Sea as do not exceed 80 lasts burilen.
3. The permission granted to the inhabitants of the coast of the Government of Archangel to import duty free, or on payment of moderate duties, into ports of the said Government dried or salted fish, as likewise certain kinds of furs, and to export therefrom, in the same manner, corn, rope and cordage, pitch, and ravensduck.
4. The privilege of the Russian Ainerican Company. 5. The privilege of the steam navigation companies of Lubeck and Havre; lastly, 6. The immunities granted in Russia to certain English companies, called "yacht clubs."
To suppose that under the simple words “the privilege of the Rus" sian American Company," placed in connection with the privilege of French and German steam navigation companies and the immunities of yacht clubs, it was intended to acknowledge a claim of jurisdiction against which Her Majesty's Government had formally protested as contrary to international law, and which it had avowedly been one of the main objects of the treaty of 1825 to extinguish, is a suggestion too improbable to require any lengthened discussion.
But Her Majesty's Government did not of course agree to the article without knowing what was the exact nature of the privileges thus excepted from reciprocity. They had received from the Russian ambassador, in December, 1812, an explanatory memorandum on this subject, of which the following is the portion relating to the Russian American Company:
La Compagnie Russe Américaine a le privilège d'expédier francs de droits de Cronstadt autour du monde et il’Ochotsk dans les colonies russes, les produits russes ainsi que les marchandises étrangères dont les droits ont déjà été prélevés; de même l'importer au retour de ces colonies des cargaisons de pelleteries et d'antres prosluits de ces colonies, sans payer aucun droit, si d'après les lois générales il n'est pas établi d'impôt particulier intérieur sur les marchandises de pelleterie.
Observation. D'après le tarif en vigneur, l'importation des fourrures dans les ports de St.-Pétersbourg et d'Archangel, de production russe et sur des vaissoarix russes, est admise sans droits.
It is surely incredible that if the privilege of the Russian American Company did comprise a right of excluding vessels from approaching within 100 miles of the shore it should not even have been alluded to in this explanation.
Nor is it possible to agree in Mr. Blaine's view that the exclusion of foreign vessels for a distance of 100 miles from the coast remained in force pending the negotiations and in so far as it was not modified by the conventions. A caim of jurisdiction over the open sea, which is not in accordance with the recognized principles of international law or usage, may of cow'se be asserted by force, but can not be said to have any legal. validity as against the vessels of other countries, except in so far as it is positively admitted by conventional agreements with those countries,
I do not suppose that it is necesaary that I should argue at length upon so elementary a point as that a claim to prohibit the vessels of other nations from approaching within a distance of 100 miles from the coast is contrary to modern international usage. Mr. Adams and Mr. Canning clearly thought in 1823 that the matter was beyond doubt or discussion.
The rule which was recognized at that time, and which has been generally admitted both by publicists and Governinents, limits the jurisdiction of a country in the open sea to a distance of 3 miles from its coasts, this having been considered to be the range of a cannon shot when the principle was adopted. 1. Wheaton, who may be regarded as a contemporary authority, equally respected in Europe and America, says:
The maritime territory of every State extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State.
And again: The rule of law on this subject is terræ dominium finitur ubi finitur armorum ris ; and since the introduction of firearms that distance has usually been recognized to be about 3 miles from the shore.
Chancellor Kent, who is inclined to advocate a more extended limit, still admits that
According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon shot will reach, and no farther; and this is generally calculated to be a marine league.
Calvo, one of the most recent text writers, makes a corresponding statement:
Les limites juridictionnelles d'un État embrassent non seulement son territoire, mais encore les eaux qui le traversent ou l'entourent, les ports, les baies, les golfes, les embouchures des fleuves et les mers enclavées dans son territoire. L'usage général des nations permet également aux États d'exercer leur juridiction sur la zone maritime jusqu'à 3 milles marins ou à la portée de cannon de leurs côtes.
But I need scarcely appeal to any other authority than that of the United States Government itself.
In a note to the Spanish minister, dated the 16th December, 1862, on the subject of the Spanish claim to a 6-mile limit at sea, Mr. Seward stated : · A third principle bearing on the subject is also well established, namely, that this exclusive sovereignty of a nation—thus abridging the universal liberty of the seasextends no farther than the power of the nation to maintain it by force, stationed on the coast, extends. This principle is tersely expressed in the maxim “terra dominium finitnr ubi finitur armorum vis.
But it must always be a matter of uncertainty and dispute at what point the force of arms, exerted ou the coast, can actually reach. The publicists rather advanced toward than reached a solution when they laid down the rule that the limit of the force is the range of a cannon ball. The range of a cannon ball is shorter or longer according to the circumstances of projection, and it must be always liable to change with the improvement of the scienee of ordnance. Such uncertainty upon a point of jurisiliction or sovereignty would be productive of many and endless controversies and conflicts. A more practical limit of national jurdisdiction upon the high seas was indispensably necessary, and this was found, as the undersigned thinks, in fixing the limit at 3 miles from the coast. This limit was early proposed by the publicists of all maritime nations. While it is not insisted that all nations have accepted or acquiesced and bound themselves to abide by this rule when applied to themselves, yet three points involved in the subject are insisted upon by the United States :
1. That this limit has been generally recognized by nations; 2, That no other general rule has been accepted; and
3. That if any State has succeeded in fixing for itself a larger limit, this has been done by the exercise of maritime power, and constitutes an exception to the general
1 Whartou's International Law Digest, vol. 1, $ 32.
understanding which fixes the range of a cannon shot (when it is made the test of jurisdiction) at 3 miles. So generally is this rule accepted that writers commonly use the expressions of a range of cannon shot and 3 miles as equivalents of each other. In other cases, they use the latter expression as a substitute for the former.
And in a later communication on the same subject of the 10th Au. gust, 1863, he observes:
Nevertheless, it can not be admitted, nor indeed is Mr. Tassara understood to claim, that the mere assertion of a sovereign, by an act of legislation however solemn, can have the effect to establish and fix its external maritime jurisdiction. His right to a jurisdiction of 3 miles is derived, not from his own decree, but from the law of nations, and exists even though he may never have proclaimed or asserted it by any decree or declaration whatsoever. He can not, by a mere decree, extend the limit and tix it at 6 miles, because, if he could, he could in the same manner and upon motives of interest, anbition, or even upon caprice, fix it at 10, or 20, or 30 miles without the consent or acquisescence of other powers which have a common right with himself in the freedom of all the oceans. Such a pretension could never be successfully or rightfully maintained.
The same principles were laid down in a note addressed to Sir E. Thornton by Mr. Fish, then Secretary of State, on the 22d January, 1875. Mr. Fish there stated:
We have always understood and asserted that pursuant to public law no nation can rightfully claim jurisdiction at sea beyond a'marine league from the coast.
He then went on to explain the only two exceptions that were apparently known to him so far as the United States were concerned: C'ertain revenue laws which admitted the boarding of vessels at a distance of 4 leagues from the coast, which, he said, had never been so applied in practice as to give rise to complaint on the part of a foreign government; and a treaty between the United States and Mexico of 1848, in which the boundary line between the two States was described as beginning in the Gulf of Mexico 3 leagues from land. As regards this stipulation, he observed that it had been explained at the time that it could only affect the rights of Mexico and the United States, and was never intended to trench upon the rights of Great Britain or of any other power under the law of nations.
It would seem, therefore, that Mr. Fish was entirely unaware of the exceptional jurisdiction in Behring Sea, which is now said to have been conceded by the United States to Russia from 1823 to 1867, transferred to the United States, so far as the American coast was concerned, only eight years before he wrote, and which would presumably be still asknowledged by them as belonging to Russia on the Asiatic shore. I must suppose that when Mr. Blaine states that “ both the United States and Great Britain recognized, respected, obeyed" the ukase of 1821, in so far as it affected Behring Sea, he has some evidence to go upon in regard to the conduct of his country which is unknown to the world at large, and which he has not as yet produced. But I must be allowed altogether to deny that the attitude of Great Britain was such as he represents, or that she ever admitted by act or by sufferance the extrao:dinary claim of maritime jurisdiction which that ukase contained.
The inclosed copies of correspondence, extracted from the archives of this office, make it very difficult to believe that Mr. Blaine has not been altogether led into error. It results from them that not only did Her Majesty's Government formally protest against the ukase on its first issue as contrary to the acknowledged law of nations, but that the Russian Government gave a verbal assurance that the claim of jurisdiction would not be exercised. In the subsequent negotiations great importance was attached to obtaining a more formal disavowal of the claim in the manner least hurtful to Russian susceptibilities, but so as
effectually to preclude its revival. And this serurity the British Gov. ernment undoubtedly considered that both they and the United States had obtained by the conventions of 1824 and 1825.
Upon this point the instructions given by Mr. George Canning to Mr. Stratford Canning, when the latter was named plenipotentiary to negotiate the treaty of 1825, have a material bearing.
Writing under date of the 8th December, 1824, after giving a summary of the negotiations up to that date, he goes on to say
It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possessions on the continent of America, but the pretensions of the Russian ukase of 1821, to exclusive dominion over the Pacitic, could not continue longer unrepealed without compelling us to take some measure of public and effectual remonstrance against it.
You will, therefore, take care in the first instance to repress any attempt to give this change to the character of the negotiations, and will declare, without reserve, that the point to which alone the solicitude of the British Government and the jealousy of the British nation attach any great importance 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 long ago been sent by the Russian Government to their cruisers in the Pacific to suspend the execution of its provisions is true, but a private disavowal of a published claim is no security against the revival of that claim; the suspension of the execution of a principle may be perfectly compatible with the continued maintenance of the principle itself.
The right of the subjects of His Majesty to navigate freely in the Pacific can not be held as a matter of indulgence from any power. Having once been publicly questioned it must be publicly acknowledged.
We do not desire that any distinct reference should be made to the ukase of 1821, but we do feel it necessary that the statemout of our right should be clear and positive, and that it should stand forth in the convention in the place whieh 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 grant of the convention concluded 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 can not consent that the liberty of navigation thļough Behring Straits should be stated in 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.
It will of course strike the Russian plenipotentiaries that, by the adoption of the American article respecting navigation, etc., the provision for an exclusive fishery of 2 leagues from the coasts of onr respective possessions falls to the ground.
But the omission is, in truth, immaterial.
The law of nations assigns the exclusive sovereignty of i league to each power off its own coasts without any specified ståpulation, and though Sir Charles Bagot was anthorized to sign the convention with the specific stipulation of 2 leagnes in ignorapce of what had been decided in the American convention at the time, yet after that convention has been some months before the world, and after the opportunity of reconsideration has been forced upon us by the act of Russia herself, we can not now consent, in negotiating de noro, to a stipulation which, while it is absolutely unimportant to any practical good, would appear to establish a contract between the United States and us to our disadvantage.
Mr. Stratford Canning, in his dispatch of the 1st March, 1825, inclosing the convention as signed, says:
With respect to Behring Straits I am happy to have it in my power to assure you, on the joint authority of the Russian plenipotentiaries, that the Emperor of Russia has no intention whatever of maintaining any exclusive claim to the navigation of these straits or of the seas to the north of them.
These extracts show conclusively (1) that England refused to admit any part of the Russian claim asserted by the ukase of 1821 to a nari. time jurisdiction and exclusive right of fishing throughout the whole