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THE BEHRING SEA ARBITRATION.

The controversy which ended in the arbitration of 1893 had its origin in the disputed claims in respect of the northwestern coast of America.

In 1790, Spain claimed all the northwestern coast of America as far north as Prince William's Sound in latitude 61°, upon the ground of prior discovery and long possession. England disputed this claim, upon the principle that the earth is the common inheritance of mankind, of which each individual and each nation has a right to appropriate a share, by occupation and cultivation. This dispute was terminated by a convention between the two powers, known as the Nookta Sound Convention, stipulating that their respective subjects should not be disturbed in their navigation and fisheries in the Pacific Ocean or the South Seas, or in landing on the coasts of those seas, not already occupied, for the purpose of carrying on their commerce with the natives of the country, or of making settlements there, subject to the condition that British subjects should not navigate or fish within the space of ten marine leagues from any part of the coasts already occupied by Spain; and that where the subjects of either of the two powers should have made settlements since the month of April, 1789, or should thereafter make any, the subjects of the other should have free access, and should carry on their trade without any disturbance or molestation.-(Dana's Edition of Wheaton's International Law, p. 242.)

In 1799, the Emperor Paul of Russia granted by charter to the Russian American Company the exclusive right of hunting, trade, and the discovery of new land on the northwestern coast of America, from Behring's Strait to the fifty-fifth degree of north latitude, with permission to extend their dis

The Records of the Halifax Commission contain a presentation of the arguments on the whole question of the fisheries.

Public Documents: In Elliott's history of the Fisheries may be found a list of public documents relating to the fisheries; and also a list of other authorities.

coveries to the south and to form establishments there, provided they did not encroach upon the territory occupied by other powers.-(Foreign Relations, 1890, p. 456.)

On the 4th of September, 1821, the Emperor Alexander I. of Russia issued the following ukase :

"SECTION I.—The transaction of commerce, and the pursuit of whaling and fishing, or any other industry on the islands, in the harbors and inlets, and, in general, all along the northwestern coast of America from Behring Strait to the fifty-first parallel of northern latitude, and likewise on the Aleutian Islands and along the eastern coast of Siberia, and on the Kurile Islands; that is, from Behring Strait to the southern promontory of the Island of Urup, viz., as far south as latitude forty-five degrees and fifty minutes north, are exclusively reserved to subjects of the Russian Empire.

"SECTION II.-Accordingly, no foreign vessel shall be allowed either to put to shore at any of the coasts and islands under Russian dominion as specified in the preceding section, or even to approach the same to within a distance of less than one hundred Italian miles. Any vessel contravening this provision shall be subject to confiscation with her whole cargo.”—(Foreign Relations, 1890, p. 439.)

Both the United States and England, having undefined claims to territory on the northwest coast of America, protested against this extension of Russian jurisdiction.

In a communication to Poletica, the Russian Minister at Washington, February 25, 1822, Mr J. Q. Adams, Secretary of State, said:

"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 fiftyfirst degree of north latitude on this continent, and a regulation interdicting to all commercial vessels other than Russian, upon the penalty of seizure and confiscation, the approach upon the high seas within one hundred Italian miles of the shores to which that claim is made to apply. *** It was expected before any act which should define the boundaries between the United States and Russia on this continent, that the same would have 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." (American State Papers, Foreign Relations, IV., 871.)

On the 28th of February, 1822, Poletica replied to Adams :

"I shall be more succinct, sir, in the exposition of the motives which determined the Imperial Government to prohibit foreign vessels from approaching the northwest coast of America belonging to Russia within the distance of at least one hundred Italian miles. This measure, however severe it may at first view appear, is, after all, but a measure of prevention. It is exclusively directed against the culpable enterprises of foreign adventurers, who, not content with exercising upon the coasts above mentioned an illicit trade very prejudicial to the rights reserved entirely to the Russian-American Company, take upon them besides to furnish arms and amumunition to the natives in the Russian possessions in America, exciting them likewise in every manner to resistance and revolt against the authorities there established. *** Pacific means not having brought any alleviation to the just grievances of the Russian-American Company against foreign navigators in the waters which environ their establishments on the northwest coast of America, the Imperial Government saw itself under the necessity of having recourse to the means of coercion, and of measuring the rigor according to the inveterate character of the evil to which it is wished to put a stop. ***

"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 Behring 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 fermees), 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."-(American State Papers, Foreign Relations, IV., 862.)

In reply Adams said on the 30th of March, 1822 :

"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 nations, including those of the United States, to approach within one hundred 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 exercised the right 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 ninety degrees of longitude, or four thousand miles.

"As little can the United States accede to the justice of the reason assigned for the prohibition above mentioned. The right of the citizens of the United States to hold commerce with the aboriginal natives of the northwest coast of America, without the territorial jurisdiction of other nations, even in arms and munitions of war, is as clear and indisputable as that of navigating the seas."-(American State Papers, Foreign Relations, IV., 863.)

Under date of November 1, 1822, Adams writes in Journal:

"I received a dispatch from H. Middleton, our minister at St. Petersburg, dated 20th August, relating entirely to the Northwest Coast controversy. The Baron de Tuyl is coming out as minister from Russia, charged with a proposal for negotiating on the subject. Speransky, now Governor-General of Siberia, told Middleton that they had at first thought of declaring the Northern Pacific Ocean a mare clausum," but afterward took the one hundred Italian miles from the thirty leagues in the Treaty of Utrecht, which is an exclusion only from a fishery, and not from navigation."

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On July 17, 1823, Adams wrote:

"Baron Tuyl came, *** I told him especially that we should contest the right of Russia to any territorial establishment on this continent, and that we should assume distinctly the principle that the American continents are no longer subjects for any new European colonial establishments. We had a conversation of an hour or more, at the close of which he said that although there would be difficulties in the negotiation, he did not foresee that they would be insurmountable."—(Memoirs, VI., 163.)

In writing to Middleton, July 22, 1823, Adams said :—

"The United States can admit no part of these claims. Their right of navigation and of fishing 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 fifty-fifth degree of latitude, and have no existence on the continent of America."-(American State Papers, Foreign Relations, V., 436.)

The protests of the English government were quite as vigorous as those of the United States. On the 28th of November, 1822, the Duke of Wellington expressed the English objections in the following letter:

"M. LE COMTE,-Having considered the paper which your Excellency gave me last night, on the part of his Excellency Count Nesselrode, on the subject of our discussions on the Russian Ukase, I must inform you that I cannot consent, on the part of my government, to found on that paper the negotiation for the settlement of the question which has arisen between the two Governments on this subject.

"We object to the ukase on two grounds: (1) That IIis Imperial Majesty assumes thereby an exclusive sovereignty in North America, of which we are not prepared to acknowledge the existence or the extent; upon this point, however, the memoir of Count Nesselrode does afford the means of negotiation; and my government will be ready to discuss it, either in London or St. Petersburg, whenever the state of the discussions on the other question arising out of the ukase will allow of the discussion.

"The second ground on which we object to the ukase is that His Imperial Majesty thereby excludes from a certain considerable extent of the open sea vessels of other nations. We contend that the assumption of this power is contrary to the law of nations and we cannot found a negotiation upon a paper in which it is again broadly asserted. We contend that no power whatever can exclude another from the use of the open sea; a power can exclude itself from the navigation of a certain coast, sea, etc., by its own act or engagement, but it cannot by right be excluded by another. This we consider as the law of nations; and we cannot

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