T

HE seizures last summer of British sealers by the United States revenue-cutter Richard Rush have caused much comment, both in this country and in Canada. Here and there, in papers published in the United States, there have been expressions of approval; but the predominance of the criticism undoubtedly has been hostile. The reason is not far to seek. The recent seizures are taken to indicate a reassertion by Mr. Harrison's administration of an exclusive jurisdiction on the part of the United States over Behring Sea; and this claim is felt to be not only against the rights of treaties and laws of nations, but one, moreover, which we are specially estopped from setting up by reason of our previous contentions against Russia in Monroe's administration. Unquestionably, without protection from marauders of some sort, the fur-seal fisheries on the Pribylov Islands are liable to extinction, certain as it is speedy; but this protection, it is argued, can best and most properly be afforded by international agreement. This, very possibly, will prove the wisest and most practicable course to follow, and the administration may ultimately adopt it; but, even thus, it will only be a settlement for the future; there will still be the past seizures, together with the present, for the government to account for, and unless it succeeds in maintaining Behring Sea as a mare clausum, or justifies the seizures on some other ground, considerable indemnity will have to be paid Great Britain. In 1886, three British schooners were seized, and in 1887, six; to wit: in 1886, the Thornton, Carolena, and Onward, and in 1887, the Anna Beck, William P.Sayward, Dolphin, Grace, Alfred Adams, and Ada. All of these cases are still pending, and none is settled. In 1888, owing to special confidential instructions from the Treasury Department, no seizures were made.

Alaska was ceded to the United States by the treaty with Russia of March 30, 1867. The territory granted was described as included between two boundary lines, an eastern and a western one. The eastern

line was that established by the treaty between Russia and Great Britain of February 28, 1825, Articles III. and IV. of which defined the limits between the Russian and British possessions in northwest America. The western line was as follows:

The western limit within which the territories

and dominion conveyed are contained, passes through a point in Behring's Straits on the parallel of sixty-five degrees thirty minutes north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern, or Ignalook, and the island of Ratmanov, or Noonarbook, and proceeds due north, without limitation, into the same Frozen Ocean. The same western limit, beginning at the same initial point, proceeds thence in a course nearly southwest, through Behring's Straits and Behring'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 ninetythree degrees west longitude, so as to include in the territory conveyed the whole of the Aleutian Islands east of that meridian.

The treaty is thus peculiar in employing a water boundary line to determine the extent of the cession; and this use seems only explainable in the light that Russia intended to convey a marine jurisdiction, as well as a territorial one. Russia is reported as concurring in this interpretation; and that we so understood the effect of the grant, at the date of the treaty, is shown in a reference of Charles Sumner at the time, in his speech upon Alaska, to our part of Behring Sea."

The contemporary statutes also evidence this; for when Congress came to legislate concerning the new territory in 1868, it provided by act of July 27 of that year (now Rev. Stats., § 1954):

The laws of the United States relating to customs, commerce, and navigation are extended to and over all the mainland, islands, and waters of the Territory ceded to the United States by the Emperor of Russia, etc.

Also by the same act (now Rev. Stats., § 1956), it was provided :

No person shall kill any fur-seal or other fur-bearing animal within the limits of Alaska Territory, or in the waters thereof, etc.

Also by joint resolution, March 3, 1869 (now Rev. Stats., § 1959):

The islands of Saint Paul and Saint George, in Alaska, are declared a special reservation for Government purposes, etc.

It is sufficiently plain from the above statutes that Congress meant to adopt the Russian claim to Behring Sea as a mare clausum; but we have now to consider whether the administrative and judicial officers of the United States have given effect in fact to that meaning, or have sought to evade or avoid it. We shall find them all (with possibly one exception, since explained as no exception) unanimous in the assertion of an exclusive jurisdiction.

In 1881, one D. A. D'Ancona addressed a letter to the Secretary of the Treasury, inquiring concerning the extent of jurisdiction claimed by the United States over Behring Sea. A reply was sent under date of March 12, 1881, by H. F. French, Acting Secretary. Mr. Blaine and Mr. Windom, it will be remembered, were then, as now, respectively Secretary of State and Secretary of the Treasury, both having been appointed by President Garfield, March 5, 1881. The reply, which was repeated by the Department to the collector of customs at San Francisco, April 4, 1881, was as follows:

SIR:

TREASURY DEpartment, March 12, 1881.

You inquire in regard to the interpretation of

the terms "waters thereof," . . . as used in the law, and how far the jurisdiction of the United States is to be understood as extending.

Presuming your inquiry to relate more especially to the waters of western Alaska, you are informed that the treaty with Russia of March 30, 1870 [1867?], by which the Territory of Alaska was ceded to the United States, defines the boundary of the Territory so ceded. This treaty is found on pages 671 to 673 of the volume of treaties of the Revised Statutes. It will be seen therefrom that the limit of the cession extends from a line starting from the Arctic Ocean and running through Behring Strait to the north of St. Lawrence Islands. The line runs thence in a southwesterly direction, so as to pass midway between the island of Attou and Copper Island of the Kormandorski couplet or group in the North Pacific Ocean, to meridian of 193 degrees of west longitude. All the waters within that boundary to the western

TREASURY DEPARTMENT, Washington, D.C., April 19, 1872.

SIR: Your letter of the 25th ultimo was duly received, calling the attention of the Department to certain rumors circulating in San Francisco, to the effect that expeditions are to start from Australia and the Hawaiian Islands, to take fur-seals on their annual migration to the islands of St. Paul and St. George through the narrow pass of Oonimak. You recommend, to cut off the possibility of evil resulting to the interests of the United States from these expeditions, that a revenue cutter be sent to the region of Oonimak Pass, by the 15th of May next. A very full conversation was had with Captain Bryant upon this subject, while he was at the Department, and he conceived it to be entirely impracticable to make such an expedition 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 to these islands; and he did not seem to fear that the seals would be driven from their accustomed resorts, even were such attempts made.

In addition, 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 attempt within a marine league of the shore.

Mr. Phelps appears to have apprehended a diversion of seals from the Oonimak Pass and the narrow straits near that pass, and his suggestion of a remedy was limited to the same field. Therefore, neither upon my recollection of the facts as they were understood by me in 1872, nor upon the present reading of the correspondence, do I admit the claim of Great Britain, that my letter is an admission of any right adverse to the claims of the United States in the waters known as Behring Sea. My letter had reference solely to the waters of the Pacific Ocean south of the Aleutian Islands.

On March 16, 1886, Mr. Manning, then Secretary of the Treasury, sent the sub

TREASURY Department, March 16, 1886.

SIR: I transmit herewith for your information a copy of a letter addressed by the Department on the 12th March, 1881, to D. A. D'Ancona, con

cerning the jurisdiction of the United States in the waters of the Territory of Alaska and the prevention of the killing of fur seals and other fur-bearing animals within such areas as prescribed by chapter 3, title 23, of the Revised Statutes. The attention of your predecessor in office was called to this subject on the 4th April, 1881. This communication is addressed to you inasmuch as it is understood that certain parties at your port contemplate the fitting out of expeditions to kill fur seals in these waters. You are requested to give due publicity to such letters, in order that such parties may be informed of the construction placed by this Department upon the provision of law referred to.

D. MANNING,

Secretary. As has been said, three British schooners were seized in the summer of 1886. The cases of the vessels and of the officers came up before District Judge Dawson at Sitka, and, in his charge to the jury in one of the cases, he is reported as saying:

"All the waters within the boundary set forth in this treaty [the treaty of cession] 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."

The Brooklyn Eagle seems to have been much put out by this charge, for it says: "Judge Dawson, although only a district. judge, considers that his jurisdiction extends over the whole of the waters of Alaska, comprising about a million square miles of what would elsewhere be regarded as the high seas, so that he may safely be regarded as the greatest maritime judge extant." But it will be seen that Judge Dawson simply was following out a policy laid down by the administrative department of the government.

It now remains to consider the position of the State Department of the last administration with reference to the subject of jurisdiction. October 21, 1886, Sir L. S. Sackville West protested against the seizures of the three British schooners made in that year as above-mentioned, and on December 7, 1886, he inquired what position the Department would take in relation to Behring Sea the coming sum

Seizures followed, as has been shown, in 1887, and protests against these were duly filed; but it is a remarkable fact, illustrating the extraordinary wariness and hesitation of Mr. Bayard, that, from the first protest to the close of the Cleveland administration, no stand was ever taken by the Secretary of State upon the one ground or upon the other. The matter was left by him, so far as regards the actual seizures, absolutely as he found it. He did dismiss the proceedings in the cases of the vessels seized in 1886, but he did this without conclusion at the time of any questions that might be involved. August 19, 1887, the circular note proposing an international regulation of the fur-seal fisheries was sent; but, even in this note, care was taken that the proposition should not be regarded as a waiver of any claim of the United States to Behring Sea as a mare clausum. France, Germany, Great Britain, Japan, Russia, and Sweden and Norway were included in Mr. Bayard's proposal; although nothing, so far as the diplomatic correspondence published shows, appears to have been accomplished. In a note of Mr. White to Mr. Bayard, dated June 20, 1888, and in notes from Mr. Bayard to Mr. Hubbard, dated respectively July 18, that Canada did not altogether acquiesce 1888, and August 9, 1888, there are hints in the idea of an international convention. The question seems to have been still left hanging, when the last administration went out of office.

The importance of protection to the furseal fisheries in the North Pacific is a fact

admitted by all. Three or four years of indiscriminate killing, it is thought, will be sufficient to extinguish them. At present, there are but three fur-seal rookeries in the world. One is situated on the Lobos Islands off the La Plata River in South America, and is under the control of the Uruguay Republic; another is on the Kormandorski Islands belonging to Russia, in the Russian part of Behring Sea; and the third is the one owned by the United States on the Pribylov Islands, St. Paul and St. George. About the beginning of June, the fur-seals make their way through the Aleutian Islands, and haul themselves ashore for a period covering about six months on St. Paul and St. George. Here the bulls fight for the best places, and wait for the females, who come later. The weaker bulls take a

place by themselves apart from the females, and are called bachelors. It is these alone which are killed. The Aleuts go in between them and the sea, and drive them in droves inland. They are here first clubbed, and then stabbed and skinned. In this way, as little seal life as possible is destroyed. The marauders, on the other hand, employ more destructive methods. They await the seals inside the Aleutian chain, and then shoot them in the sea, recovering but one in three, or one in five, according to different estimates. Moreover, females are destroyed as well as males, and this means oftentimes the destruction of two lives in place of one, the females either being with young, or having

left the rookeries in search of food for their pups already born, which are then left to starve, as they cannot swim, and as the bulls never abandon the islands during the breeding season. The Pribylov Islands are a government reserve, and the right to take fur seals is leased to the Alaska Commercial Company of California alone. This company also has control of the Russian Kormandorski Islands, and is obliged to take from them one thousand skins annually, while, on the American Pribylov Islands, it is limited to the taking of one hundred thousand skins per year.

It pays the government $55,000 per annum, and $2.62 per skin taken and shipped, and, on the $7,200,000 which the government paid for Alaska, the government has derived from this source an income equivalent to more than 4 per cent a year. The lease is dated May 1, 1870, and expires May 1 next, being for the term of twenty

years.

Considerable stress has been placed upon our contention against Russia in 1822, whereby we are said to have denied Russia's claim to Behring Sea as a mare clausum. Lord Salisbury, in his note to Sir L. S. Sackville West of September 10, 1887, makes a point of this. But Russia's claim was more extensive than ours. By an imperial ukase of September 16, 1821, Alexander I. had sanctioned certain regulations adopted by the Russian American Company, the first and second sections of which are alone important here:

SEC. 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

Strait to the fifty-first degree of northern latitude; also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands from Behring 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 a hundred Italian miles. The transgressor's vessel is subject to confiscation, along with the whole cargo.

State, expressed surprise on the part of

Mr. Adams, who was then Secretary of

the United States at the claims of Russia, and M. de Poletica proceeded to justify them. In a note, dated February 28, 1822, he said :

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 100 Italian miles. This measure, however severe it may at first 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 allowed entirely to the Russian American Company, take upon them besides to furnish arms and ammunition to the natives in the Russian possessions in America, exciting them likewise in every manner to resist and revolt against the authorities there established.

*

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 fifty-first degree of north latitude, and on the opposite side strait to the forty-fifth degree. The extent of sea, of Asia, and the islands adjacent, from the same 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.

Russia did not abandon her contention, but the matter was dropped as being a merely theoretical dispute, M. de Poletica saying:

In the same manner the great extent of the Pacific Ocean at the fifty-first degree of latitude cannot invalidate the right which Russia may have of considering that part of the ocean as close. But as the Imperial Government has not thought fit to take advantage of that right, all further discussion on this subject would be idle.

Mr. Adams did not intend to controvert any claim to Behring Sea as a mare clausum, but simply wished to assert our right to fish and trade on the northwest coast. April 17, 1824, a treaty was concluded with Russia, the first, third, and fourth articles of which were these:

ART. I. It is 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 be neither disturbed nor restrained, either in navigation or in fishing, or in the 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:

ART. III. It is moreover agreed, that, hereafter, there shall not be formed by the citizens of the United States, or under the authority of the said 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; and that, in the same manner, there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel.

ART. IV. It is, nevertheless, understood that during a term of ten years, counting from the signature of the present convention, the ships of both Powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks, upon the coast mentioned in the preceding article, for the purpose of

fishing and trading with the natives of the country." A similar treaty was concluded between Russia and Great Britain, February 28, 1825. The first and third and seventh articles thereof were these:

ART. I. It is agreed that the respective subjects of the High Contracting Parties shall not be troubled or molested in any part of the ocean commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following articles.

ART. III. The line of demarcation between the possessions of the High Contracting Parties, upon the coast of the continent, and the islands of America to the northwest shall be drawn in the manner following:

Commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 54 degrees 40 minutes north latitude, and between the 131st and 133d degree of west longitude (meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel, as far as the point of the continent where it strikes the 56th degree of north latitude; from this last-mentioned point, the line of demarcation shall follow the summit of the mountains situated parallel to the coast as far as the point of intersection of the 141st degree of west longitude (of the same meridian); and finally, from the said point of intersection, the said meridian line of the 141st degree, in its prolongation as far as the Frozen Ocean, shall form the limit between the Russian and British possessions on the continent of America to the northwest.

ART. VII. It is also understood, that, for the space of 10 years from the signature of the present convention, the vessels of the two Powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the island seas, the gulfs, havens, and creeks on the coast mentioned in Article III. for the purposes of fishing and of trading with the natives.

The American treaty was not renewed at the expiration of the ten years mentioned therein, and Russia claimed that the first article was no longer in force. February 11, 1843, Russia, by a treaty with Great Britain, Article XII. thereof, agreed to regard the treaty of February 28, 1825, with that country as in force. It is fairly evident that the discussion and treaties of 1824 and 1825 related to the northwest coast, islands and waters to the south of the Aleutian Islands, and that the question of Behring Sea did not enter into the dispute or conclusion at all. Russia was desirous of forbidding the importation of firearms, ammunition, and liquors into places upon the northwest coast, where settlements were growing up, and she made the claims that she did to secure this end. The treaties were a settlement primarily of a discussion upon territorial, not upon marine rights.

She

Russia has always maintained her exclusive jurisdiction over Behring Sea. had not conceded any rights therein to Great Britain or any other country prior to her cession of Alaska to the United

States. She is to-day enforcing her jurisdiction over her portion of the sea, and,