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power of resorting to the coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles." These "restrictions and conditions," as defined in Articles II. and III., were (1) that, "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," the citizens of the United States should not resort to any point where there was a Russian establishment without the permission of the governor or commander, nor subjects of Russia, without permission, to any establishment of the United States upon the northwest coast; and (2) that there should not be formed by the citizens of the United States, or under the authority of the United States, "any establishment upon the northwest coast of America, nor in any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude," nor by Russian subjects, or under the authority of Russia, any establishment south of that line. The subject of commercial intercourse was adjusted, temporarily, by Articles IV. and V. of the convention. By these articles it was provided that, for a term of ten years from the date of the signature of the convention, the ships of both powers might "reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks," on the northwest coast of America for the purpose of fishing and trading with the natives; but, from the commerce thus permitted, it was provided that all spirituous liquors, firearms, other arms, powder, and munitions of war of every kind should always be excepted, each of the contracting parties, however, reserving to itself the right to enforce this restriction upon its own citizens or subjects. When the commercial privilege thus secured came to an end the Russian Government refused to renew it, alleging that it had been abused. But under the most-favorednation clause, contained in Article XI. of the treaty of commerce and navigation between the United States and Russia of December 18, 1832, citizens of the United States enjoyed on the Russian coasts the same privileges of commerce as were secured by treaty to British subjects.

A convention between Great Britain and Russia for the settlement of the questions between those powers, growing out of the ukase of 1821, was concluded at St. Petersburg on February 28/16, 1825. In regard to the rights of navigation, fishing, and of landing on the coasts, its provisions were substantially the same as those of the con

a As to the construction of the convention, see Mr. Forsyth, Sec. of State, to Mr. Dallas, min. to Russia, May 4 and Nov. 3, 1837, MS. Inst. Russia, XIV. 39, 41.

vention between Russia and the United States. It also secured for the space of ten years the enjoyment of substantially the same reciprocal privileges of commerce. These privileges were renewed by Article XII. of the treaty between Great Britain and Russia of January 11, 1843.

Cession of Alaska

States.

By a convention signed at Washington on the 30th of March, 1867, the Emperor of Russia, in consideration of the sum of to the United $7,200,000 in gold,ceded “all the territory and dominion" which he possessed "on the continent of America and in the adjacent islands," to the United States. Of this cession the eastern limit, as described in Article I. of the convention, is the line of demarcation between the Russian and British possessions as established by the Anglo-Russian convention of February 28/16, 1825. The western limit is defined by a water line, beginning in Berings Straits, and proceeding north and south as follows: Beginning at a point in those straits, on the parallel of 65° 30′ north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern or Ingalook, and the island of Ratmanoff or Noonarbook, it" proceeds due north without limitation" into the "Frozen Ocean." Such is the northward course. In its southward course it begins at the same initial point, and "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.'

By acts of July 27, 1868, March 3, 1869, July 1, 1870, and March 3, 1873, legislation was adopted in relation to the terriLegislation of the United States. tory thus ceded. These acts, so far as their provisions were of a permanent nature, were afterwards embodied in the Revised Statutes of the United States, $$ 1954-1976. a For a case under $1956, see United States r. The Kodiak, 53 Fed. Rep. 126. As to the Alaskan fisheries, see Sen. Ex. Doc. 50, 40 Cong. 2 sess.

For a proposal to Russia of a convention to establish a reciprocal right to take fish of every kind on the coasts of all the possessions which the United States and Russia then owned or might acquire on the Pacific Ocean, without restriction, and the privilege of drying fish on occupied parts of the coasts, see Mr. Seward, Sec. of State, to Mr. Stoeckl, Russ. min., Oct. 5, 1868, MS. Notes to Russ. Leg. VI. 255.

No attempt was made in them to define the extent of waters to which their provisions applied; nor did any international controversy subsequently take place as to the killing of fur seals in Bering Sea till 1886. In 1889, however, while the question that was raised in 1886 was still pending, an effort was made to amend § 1956, R. S., which prohibits the killing of any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, "within the limits of Alaska Territory, or in the waters thereof," so as to make it "include and apply to all the waters of Bering Sea in Alaska, embraced within the boundary lines mentioned and described in the treaty with Russia. . . by which the Territory of Alaska was ceded to the United States." The amendment passed the House; but was changed in the Senate; and by the bill, as it became a law, March 2, 1889, § 1956 was merely "declared to include and apply to all the dominion of the United States in the waters of Bering Sea." a

August 3, 1870, the Acting Secretary of the Treasury, in pursuance of the act of July 1, 1870, leased the privilege of taking fur seals on the islands of St. Paul and St. George to the Alaska Commercial Company, a corporation organized under the laws of the State of California. March 25, 1872, Mr. T. G. Phelps called the attention of the Treasury Department to reports that expeditions were fitting out in San Francisco, Hawaii, and Australia for the purpose of intercepting the seals at the Aleutian Islands; and he suggested whether the act of July 1, 1870, did not authorize interference by means of revenue cutters "to prevent foreigners and others from doing such an irreparable mischief to this valuable interest." Mr. Boutwell, who was then Secretary of the Treasury, April 19, 1872, replied that the Treasury Department had been advised that such an employment of the revenue cutters would not be “a paying one, inasmuch as the seals go singly or in pairs, and not in droves, and cover a large region of water in their homeward travel," and that it was not apprehended that they would be driven from their accustomed resorts, even were such attempts made. "In addition," said Mr. Boutwell, "I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attempts within a marine league of the shore. As at present advised, I do not think it expedient to carry out your suggestions, but

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a 25 Stats. 1009; Congressional Record, 50 Cong. 2 sess. vol. 20, part 3, pp. 2282, 2372, 2426, 2448, 2502, 2563, 2614, 2672; Conrad, Act. At.-Gen., May 20, 1896, 21 Op. 346. In view of the award of the Paris tribunal, these words must be construed to mean the water within three marine miles of the shore. (The Alexander, 75 Fed. Rep. 519, 44 C. C. A. 659; Pacific Trading Co. v. United States, id.; the La Ninfa, 75 Fed. Rep. 513, 44 C. C. A. 648; Whitelaw v. United States, id.)

I will thank you to communicate to the Department any further facts or information you may be able to gather upon the subject." a

March 12, 1881, Mr. French, Acting Secretary of the Treasury, in a letter to Mr. D. A. Ancona, a citizen of San Francisco, took the ground that all the waters eastward of the water line in the treaty of 1867 were "comprised within the waters of Alaska Territory," and that the penalties prescribed by law against killing fur-bearing animals would therefore attach to violations of the law within those limits." March 16, 1886, a copy of this letter was communicated to the collector of customs at San Francisco, as conveying the construction placed by the Treasury Department on the statutes of the United States." In September and November, 1886, the British minister at Washington represented that three British Columbian sealSeizures in 1886. ing schooners, the Carolena, Onward, and Thornton, had been seized in Bering Sea by the United States revenue cutter Corwin; that the master and mate of the Thornton had been brought before Judge Dawson, of the United States court at Sitka for trial; that the evidence given by the officers of the revenue cutter showed that the vessel was seized about sixty or seventy miles southeast of St. Georges Island for the offense of hunting and killing seals in that part of Bering Sea east of the water line in the treaty of 1867; that the judge in his charge to the jury, after quoting the first article of that treaty, declared that all the waters east of the line in question were 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 heretofore described;" that, the jury having found a verdict of guilty, the master of the Thornton was sentenced to imprisonment for thirty days and to pay a fine of $500, and the mate to imprisonment for thirty days and to pay a fine of $300; and that there was reason to believe that the masters and mates of the Onward and Carolena had since been tried and sentenced to undergo similar penalties.

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In regard to the seizures the Department of State then possessed no information; but on February 3, 1887, Mr. Bayard, who was then

a Papers relating to Behring Sea Fisheries, 124-126. In a letter of January 18, 1888, to Mr. W. W. Eaton, then one of the representatives of the Alaska Commercial Company, Mr. Boutwell, referring to the letter which he had written as Secretary of the Treasury, said that, when compared with the letter to which it was a reply, it was apparent that it "had reference solely to the waters of the Pacific Ocean south of the Aleutian Islands." (House Report 3883, 50 Cong. 2 sess. XII.)

S. Ex. Doc. 106, 50 Cong. sess. 280, 281.

H. Report 3885, 50 Cong. 2 sess. xi. See United States r. La Ninfa, 49 Fed. Rep. 575; United States r. The James G. Swan, 50 id. 108; United States v. The Alexander, 60 id. 914.

Secretary of State, informed the British minister "that, without conclusion at this time of any questions which may be found to be involved in these cases orders have been issued by the President's direction for the discontinuance of all pending proceedings, the discharge of the vessels referred to, and the release of all persons under arrest in connection therewith." a

By formal copies of the judicial proceedings afterwards received in Washington, it appeared that the three vessels in question were condemned October 4, 1886, for having been "found engaged in killing fur seal within the limits of Alaska Territory and in the waters thereof in violation of section 1956 of the Revised Statutes of the United States," and that they were, on February 9, 1887, ordered to be sold. It thus appeared that the condemnation of the vessels rested on the same ground as the conviction and imprisonment of their officers."

In 1887 other vessels were seized, including the Grace, Dolphin, and W. P. Sayward. October 11, 1887, Judge Dawson filed an opinion in the cases of the Grace, Dolphin, and certain other vessels, all of which he declared to be forfeited. His decision was based on the

theory of mare clausum

Proposal of cooper

ation, 1887.

August 19, 1887, Mr. Bayard instructed the ministers of the United States in France, Great Britain, Germany, Japan, Russia, and Sweden and Norway, to request the Governments to which they were accredited to cooperate with the United States " for the better protection of the fur-seal fisheries in Bering Sea." "Without raising any question," said Mr. Bayard, "as to the exceptional measures which the peculiar character of the property in question might justify this Government in taking, and without reference to any exceptional marine jurisdiction that might properly be claimed for that end, it is deemed advisable—and I am

a S. Ex. Doc. 106, 50 Cong. 2 sess. 12.

The text of Judge Dawson's charge to the jury in the case of the officers of the Thornton on August 30, 1886, may be found at page 113, Appendix 1, Case of the United States, Fur-Seal Arbitration, II. After quoting the language of the first article of the treaty of cession of March 30, 1867, he declared that “Russia had claimed and exercised jurisdiction over all that portion of Bering Sea embraced within the boundary lines set forth in the treaty;” that “that claim bad been tacitly recognized and acquiesced in by the other maritime powers of the world for a long series of years prior to the treaty;" and that the dominion of Russia having passed to the United States, "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."

c Case of the United States, App. I. 115-121, Fur-Seal Arbitration, II.

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