No. 17.
The Marquis of
Salisbury to Sir L. S. Sackville
West.
*
Sir: By a dispatch of the 30th October last (No. 214) the late Earl of Iddesleigh instructed you to call the attention of the United States Secretary of State to the circumstances of the seizure in Behring’s Sea, by the American cruiser.Corwin, of some British Canadian vessels; and his lordship directed you to state to Mr. Secretary Bayard that Her Majesty’s Government felt sure that if the ptoceedings which were reported to have taken place in the United States district court were correctly described the United States Government would admit their illegality, and would cause reasonable reparation to be made to the British subjects for the wrongs to which they had been subjected and for the losses which they had sustained.
By a previous dispatch of the 9th September, you had been desired to ask to be furnished with any particulars which the United States Government might possess relative to the seizures in question; and on the 10th October you were instructed to enter a protest on behalf of Her Majesty’s Government, and reserve for consideration hereafter all rights to compensation.
Nearly four months having elapsed without any definite information being furnished by the United States Government as to the grounds of the seizures, my predecessor instructed you, on the 8th of June [January?] last, to express to Mr. Bayard the concern of Her Majesty’s Government at the delay, and to urge the immediate attention of the United States Government to the action of the American authorities in their treatment of these vessels and of their masters and crews.
On the 3d February Mr. Bayard informed you that the record of the [Page 1790] judicial proceedings which he had called for was shortly expected to reach Washington, and that, without conclusion at that time of any questions which might be found to be involved in these cases of seizures, orders had 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.
On the 4th of April, under instructions from me, you inquired of Mr. Bayard, in view of the approaching fishing season in Behring’s Sea, whether the owners of British vessels might rely when not near land on being unmolested by the cruisers of the United States, and you again asked when the record of the judicial proceedings might be expected.
Mr. Bayard informed you, in reply (12th April), that the papers referred to had reached him and were being examined; that there had been unavoidable delay in framing appropriate regulations and issuing orders to the United States vessels to police the Alaskan waters; that the Revised Statutes relating to Alaska, sections 1956 and 1971, contained the laws of the United States in relation to the matter; and that the regulations were being considered, and he would inform you at the earliest day possible what had been decided, so that British and other vessels might govern themselves accordingly.
In view of the statements made by Mr. Bayard in his note of the 3d February, to which I have referred above, Her Majesty’s Government assumed that, pending a conclusion ot the discussion between the two Governments on the general question involved, no further similar seizures of British vessels would be made by order of the United States Government. They learn, however, from the contents of Mr. Bayard’s note of the 13th ultimo, inclosed in your dispatch, No. 245, of the 15th ultimo, that such was not the meaning which he intended should be attached to his communication of the 3d February; and they deeply regret to find a proof of their misinterpretation of the intentions of the United States Government from an announcement recently received from the commander-in-chief of Her Majesty’s naval forces in the Pacific, that several more British vessels engaged in seal hunting in Behring’s Sea have been seized when along distance from land by an American revenue vessel.
Her Majesty’s Government have carefully considered the transcript record of the judicial proceedings in the United States district court in the several cases of the schooners Carolena, Onward, and Thornton, which were communicated to you in July, and were transmitted to me in your dispatch, No. 196, of the 12th of that month, and they can not find in them any justification for the condemnation of those vessels.
The libels of information allege that they were seized for 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 the United States Naval Gommander Abbey certainly affirmed that the vessels were seized within the waters of Alaska and theTerritory of Alaska, but according to his own evidence, they were seized 75, 115, and 70 miles, respectively, south-southwest of St. George’s Island.
It is not disputed, therefore, that the seizures in question were effected at a distance from land far in excess of the limit of maritime jurisdiction, which any nation can claim by international law, and it is hardly necessary to add that such limit can not be enlarged by any municipal law.
The claim thus set up appears to be founded on the exceptional title said to have been conveyed to the United States by Russia at the time of the cession of the Alaska Territory.
[Page 1791]The pretension which the Russian Government at one time put forward to exclusive jurisdiction over the whole of Behring Sea was, however, never admitted either by this country or the United States of America. On the contrary, it was strenuously resisted, as I shall presently show, and the American Government can hardly claim to have received from Russia rights which they declared to be inadmissible when asserted by the Russian Government. Nor does it appear from the text of the treaty of 1867 that Russia either intended or purported to make any such grant, for by Article I of that instrument Russia agreed to cede to the United States all the territory and dominion then possessed by Russia “on the continent of America and in the adjacent islands” within certain geographical limits described, and no mention was made of any exclusive right over the waters of Behring Sea.
Moreover, whatever rights as regards their respective subjects and citizens may be reciprocally conferred on the Russian and American Governments by treaty stipulation, the subjects of Her Majesty can not be thereby affected, except by special arrangement with this country.
With regard to the exclusive claims advanced in times past by Russia, I transmit to you documents communicated to the United States Congress in 1822, which show the view taken by the American Government of these pretensions.
In 1821 the Emperor of Russia had issued an edict establishing “rules for the limits of navigation and order of communication along the coast of the eastern Siberia, the northwestern coast of America, and the Aleutian, Kurile, and other islands.”
The first section of the edict said:
The pursuit 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 Straits 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 Straits to the south cape of the Island of Urup, viz, to the 45° 50′ of northern latitude, is exclusively granted to Russian subjects.
And section 2 stated:
It is, therefore, prohibited to all foreign vessels, not only to land on the coast 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 confiscation, along with the whole cargo.
A copy of these regulations was officially communicated to the American Secretary of State by the Russian minister at Washington on the 11th February, 1822, whereupon Mr. Quincy Adams, on the 25th of that month, after informing him that the President of the United States had seen with surprise the assertion of a territorial claim on the part of Russia extending to the fifty-first degree of north latitude on the American 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 100 Italian miles of the shores to which that claim was made to apply, went on to say that it was expected, before any act which should define the boundary between the territories of the United States and Russia, that the same would have been arranged by treaty between the parties, and that “to exclude the vessels of American citizens from the shore beyond the ordinary distance to which territorial jurisdictionextended has excited still greater surprise” and Mr. Adams asked whether the Russian minister was authorized to give explanations of the “ground of right upon principles generally recognized by the laws and usages of nations which can warrant the claims and regulations.”
[Page 1792]The Russian minister in his reply, dated the 28th February, alter explaining how Russia had acquired her possessions in Eorth America, said:
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’s Strait to the 51st degree of north latitude, and on the opposite side of Asia and the islands adjacent from the same strait to the 45th degree. The extent of sea of which these possessions form the limits comprehends all the conditions which are ordinarily attached to shut seas (‘mersfermées’), 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 advantage of localities.
On the 30th March Mr. Adams replied to the explanations given by the Russian minister. He stated that, with respect to the pretension advanced in regard to territory, it must be considered not only with reference to the question of territorial rights, but also to that prohibition to the vessels of other nations, including those of the United States, to approach within 100 Italian miles of the coasts. That from the period of the existence of the United States as an independent nationrtheir vessels had freely navigated these seas, the right to navigate them being a part of that independence; and 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 90° of longitude or 4,000 miles.” Mr. Adams concluded as follows:
The President is persuaded that the citizens of this Union will remain unmolested in the prosecution of their lawful commerce, and that no effect will be given to an interdiction manifestly incompatible with their rights.
The convention between the United States of America and Russia of the 17th April, 1824, put an end to any further pretension on the part of Russia to restrict navigation or fishing in Behring Sea so far as American citizens were concerned; for by Article I it was 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 neither be disturbed nor restrained, either in navigation or fishing, saving certain restrictions which are not material to the present issue; and a similar stipulation in the convention between this country and Russia in the following year (15th May, 1825), put an end as regarded British subjects to the pretensions of Russia to which I have referred, and which had been entirely repudiated by Her Majesty’s Government in correspondence with the Russian Government in 1821 and 1822, which for your more particular information I inclose herein.
Her Majesty’s Government feel sure that, in view of the considerations which I have set forth in this dispatch, which you will communicate to Mr. Bayard, the Government of the United States will admit that the seizure and condemnation of these British vessels and the imprisonment of their masters and crews were not warranted by the circumstances, and that, they will be ready to afford reasonable compensation to those who have suffered in consequence, and issue immediate instructions to their naval officers which will prevent a recurrence of these regrettable incidents.
I am, etc.,
- Left at the Department of State by Sir L. S Sackville West, Sept. 23, 1887.↩