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THE BEHRING SEA CONTROVERSY.

By William Franklin Dana.

T

HE seizures last summer of British line was that established by the treaty be

sealers by the United States reve- tween Russia and Great Britain of Febru

nue-cutter Richard Rush have ary 28, 1825, Articles III. and IV. of which caused much comment, both in this coun- defined the limits between the Russian and try and in Canada. Here and there, in British possessions in northwest America. papers published in the United States, there The western line was as follows:have been expressions of approval ; but the

The western limit within which the territories predominance of the criticism undoubt- and dominion conveyed are contained, passes edly has been hostile. The reason is not through a point in Behring's Straits on the paralfar to seek. The recent seizures are taken lel of sixty-five degrees thirty minutes north latito indicate a reassertion by Mr. Harrison's tude, at its intersection by the meridian which administration of an exclusive jurisdiction passes midway between the islands of Krusenstern,

or Ignalook, and the island of Ratmanov, or Nooon the part of the United States over narbook, and proceeds due north, without limitaBehring Sea ; and this claim is felt to be tion, into the same Frozen Ocean. The same not only against the rights of treaties and western limit, beginning at the same initial point, laws of nations, but one, moreover, which proceeds thence in a course nearly southwest, we are specially estopped from setting up to pass midway between the northwest point of

through Behring's Straits and Behring's Sea, so as by reason of our previous contentions the island of St. Lawrence and the southeast point against Russia in Monroe's administration. of Cape Choukotski, to the meridian of one hunUnquestionably, without protection from dred and seventy-two west longitude; thence, from marauders of some sort, the fur-seal fish- direction, so as to pass midway between the island

the intersection of that meridian, in a southwesterly eries on the Pribylov Islands are liable to of Attou and the Copper Island of the Kormanextinction, certain as it is speedy ; but dorski couplet or group, in the North Pacific this protection, it is argued, can best and Ocean, to the meridian of one hundred and ninety. most properly be afforded by international three degrees west longitude, so as to include in

the territory conveyed the whole of the Aleutian agreement. This, very possibly, will prove Islands east of that meridian. the wisest and most practicable course to follow, and the administration may ulti- The treaty is thus peculiar in employing a mately adopt it; but, even thus, it will water boundary line to determine the exonly be a settlement for the future ; there tent of the cession; and this use seems only will still be the past seizures, together with explainable in the light that Russia inthe present, for the government to ac- tended to convey a marine jurisdiction, as count for, and unless it succeeds in main- well as a territorial one. Russia is reported taining Behring Sea as a mare clausum, or

as concurring in this interpretation; and justifies the seizures on some other ground, that we so understood the effect of the considerable indemnity will have to be grant, at the date of the treaty, is shown in paid Great Britain. In 1886, three Brit- a reference of Charles Sumner at the time, ish schooners were seized, and in 1887, in his speech upon Alaska, to “our part of six ; to wit: in 1886, the Thornton, Caro- Behring Sea." lena, and Onward, and in 1887, the Anna The contemporary statutes also evidence Beck, William P. Sayward, Dolphin, Grace, this; for when Congress came to legislate Alfred Adams, and Ada. All of these concerning the new territory in 1868, it cases are still pending, and none is set- provided by act of July 27 of that year tled. In 1888, owing to special confiden- (now Rev. Stats., § 1954) :tial instructions from the Treasury Depart- The laws of the United States relating to cusment, no seizures were made.

toms, commerce, and navigation are extended to Alaska was ceded to the United States and over all the mainland, islands, and waters of by the treaty with Russia of March 30; Emperor of Russia, etc.

the Territory ceded to the United States by the 1867. The territory granted was described as included between two boundary lines, Also by the same act (now Rev. Stats., an eastern and a western one. The eastern $ 1956), it was provided :

No person shall kill any fur-seal or other end of the Aleutian Archipelago and chain of fur-bearing animal within the limits of Alaska islands are considered as comprised within the Territory, or in the waters thereof, etc.

waters of Alaska Territory.

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Also by joint resolution, March 3, 1869 Very respectfully, (now Rev. Stats., $ 1959): –

H. F. FRENCH,

Acting Secretary. The islands of Saint Paul and Saint George, in Alaska, are declared a special reservation for Gov

Previously, on April 19, 1872, the folernment purposes, etc.

lowing communication had been sent by

Mr. Boutwell, Secretary of the Treasury, It is sufficiently plain from the above stat- to Mr. Phelps, the then collector of cusutes that Congress meant to adopt the toms at San Francisco :Russian claim to Behring Sea as a mare

TREASURY DEPARTMENT, clausum; but we have now to consider

Washington, D.C., April 19, 1872. whether the administrative and judicial Sir: Your letter of the 25th ultimo was duly officers of the United States have given received, calling the attention of the Department

to certain rumors circulating in San Francisco, to effect in fact to that meaning, or have

the effect that expeditions are to start from Aussought to evade or avoid it. We shall tralia and the Hawaiian Islands, to take fur-seals find them all (with possibly one exception, on their annual migration to the islands of St. Paul since explained as no exception) unani- and St. George through the narrow pass of Oonimous in the assertion of an exclusive juris- of evil resulting to the interests of the United

mak. You recommend, to cut off the possibility diction.

States from these expeditions, that a revenue cutIn 1881, one D. A. D'Ancona addressed ter be sent to the region of Oonimak Pass, by the a letter to the Secretary of the Treasury, 15th of May next. A very full conversation was inquiring concerning the extent of juris- he was at the Department, and he conceived it to diction claimed by the United States over

be entirely impracticable to make such an expediBehring Sea. A reply was sent under date tion a paying one, inasmuch as the seals go singly of March 12, 1881, by H. F. French, Act- or in pairs, and not in droves, and cover a large ing Secretary. Mr. Blaine and Mr. Win- region of water in their homeward travel to these

islands; and he did not seem to fear that the seals dom, it will be remembered, were then, as

would be driven from their accustomed resorts, now, respectively Secretary of State and

even were such attempts made. Secretary of the Treasury, both having In addition, I do not see that the United States been appointed by President Garfield, would have the jurisdiction or power to drive off March 5, 1881. The reply, which was re

parties going up there for that purpose, unless peated by the Department to the collector they made such attempt within a marine league of of customs at San Francisco, April 4, 1881, was as follows:

I am, very respectfully,
TREASURY DEPARTMENT,

GEORGE S. BOUTWELL,
SIR:
March 12, 1881.

Secretary

In a letter of January 18, 1888, from Mr. You inquire in regard to the interpretation of Boutwell to Mr. Eaton, he thus explains the terms “ waters thereof,” ... as used in the law, and how far the jurisdiction of the United the interpretation to be placed upon the States is to be understood as extending.

above : 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 diversion of seals from the Oonimak Pass and the

Mr. Phelps appears to have apprehended a [1867?], by which the Territory of Alaska was ceded to the United States, defines the boundary narrow straits near that pass, and his suggestion of of the Territory so ceded. This treaty is found on

a remedy was limited to the same field. Therefore, pages 671 to 673 of the volume of treaties of the neither upon my recollection of the facts as they Revised Statutes. It will be seen therefrom that were understood by me in 1872, nor upon the presthe limit of the cession extends from a line start- ent reading of the correspondence, do I admit the ing from the Arctic Ocean and running through claim of Great Britain, that my letter is an admisBehring Strait to the north of St. Lawrence

sion of any right adverse to the claims of the Islands. The line runs thence in a southwesterly United States in the waters known as Behring Sea. direction, so as to pass midway between the island My letter had reference solely to the waters of the of Attou and Copper Island of the Kormandorski Pacific Ocean south of the Aleutian Islands. couplet or group in the North Pacific Ocean, to meridian of 193 degrees of west longitude. All

On March 16, 1886, Mr. Manning, then the waters within that boundary to the western Secretary of the Treasury, sent the sub

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mer.

joined letter to Collector Hager at San

Seizures followed, as has been Francisco :

shown, in 1887, and protests against these TREASURY DEPARTMENT, March 16, 1886.

were duly filed; but it is a remarkable fact, Sir: I transmit herewith for your information illustrating the extraordinary wariness and a copy of a letter addressed by the Department on hesitation of Mr. Bayard, that, from the the 12th March, 1881, to D. A. D'Ancona, con

first protest to the close of the Cleveland cerning the jurisdiction of the United States in the administration, no stand was ever taken by tion of the killing of fur seals and other fur-bearing the Secretary of State upon the one ground animals within such areas as prescribed by chapter or upon the other. The matter was left 3, title 23, of the Revised Statutes. The attention by him, so far as regards the actual seizof your predecessor in office was called to this sub

ures, absolutely as he found it. He did ject on the 4th April, 1881. This communication is addressed to you inasmuch as it is understood

dismiss the proceedings in the cases of the that certain parties at your port contemplate the vessels seized in 1886, but he did this fitting out of expeditions to kill fur seals in these without conclusion at the time of any waters. You are requested to give due publicity questions that might be involved. August to such letters, in order that such parties may be informed of the construction placed by this Depart-19, 1887, the circular note proposing an ment upon the provision of law referred to. international regulation of the fur-seal fish

D. MANNING, eries was sent; but, even in this note, care
Secretary. was taken that the proposition should not

be regarded as a waiver of any claim of As has been said, three British schoon- the United States to Behring Sea as a mare ers were seized in the summer of 1886. clausum. France, Germany, Great Britain, The cases of the vessels and of the offi- Japan, Russia, and Sweden and Norway cers came up before District Judge Dawson were included in Mr. Bayard's proposal ; at Sitka, and, in his charge to the jury in although nothing, so far as the diplomatic one of the cases, he is reported as saying: correspondence published shows, appears

to have been accomplished. In a note of “All the waters within the boundary set forth in this treaty [the treaty of cession] to the western

Mr. White to Mr. Bayard, dated June 20, end of the Aleutian Archipelago and chain of 1888, and in notes from Mr. Bayard to islands are to be considered as comprised within Mr. Hubbard, dated respectively July 18, the waters of Alaska, and all the penalties pre- 1888, and August 9, 1888, there are hints scribed by law against the killing of fur-bearing that Canada did not altogether acquiesce animals must therefore attach against any violation of law within the limits before described.”

in the idea of an international convention.

The question seems to have been still left The Brooklyn Eagle seems to have been hanging, when the last administration went much put out by this charge, for it says: out of office. "Judge Dawson, although only a district The importance of protection to the furjudge, considers that his jurisdiction ex- seal fisheries in the North Pacific is a fact tends over the whole of the waters of admitted by all. Three or four years of Alaska, comprising about a million square indiscriminate killing, it is thought, will be miles of what would elsewhere be regarded sufficient to extinguish them. At present, as the high seas, so that he may safely be there are but three fur-seal rookeries in the regarded as the greatest maritime judge world. One is situated on the Lobos Islands extant.” But it will be seen that Judge off the La Plata River in South America, Dawson simply was following out a policy and is under the control of the Uruguay laid down by the administrative depart Republic; another is on the Kormandorski ment of the government.

Islands belonging to Russia, in the Russian It now remains to consider the posi- part of Behring Sea; and the third is the tion of the State Department of the last one owned by the United States on the administration with reference to the sub- Pribylov Islands, St. Paul and St. George. ject of jurisdiction. October 21, 1886, About the beginning of June, the fur-seals Sir L. S. Sackville West protested against make their way through the Aleutian the seizures of the three British schooners Islands, and haul themselves ashore for a made in that year as above-mentioned, and period covering about six months on St. on December 7, 1886, he inquired what Paul and St. George. Here the bulls fight position the Department would take in for the best places, and wait for the females, relation to Behring Sea the coming sum- who come later. The weaker bulls take a

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place by themselves apart from the females, Strait to the fifty-first degree of northern latitude; and are called bachelors. It is these alone

also from the Aleutian Islands to the eastern coast which are killed. The Aleuts go in be

of Siberia, as well as along the Kurile Islands from

Behring Strait to the south cape of the island of tween them and the sea, and drive them

Urup, viz., to 45° 50' northern latitude, are excluin droves inland. They are here first sively granted to Russian subjects. clubbed, and then stabbed and skinned.

SEC. 2. It is therefore prohibited to all foreign In this way, as little seal life as possible is

vessels not only to land on the coasts and islands

belonging to Russia, as stated above, but also to destroyed. The marauders, on the other

approach them within less than a hundred Italian hand, employ more destructive methods. miles. The transgressor's vessel is subject to conThey await the seals inside the Aleutian fiscation, along with the whole cargo. chain, and then shoot them in the sea, recovering but one in three, or one in five,

Mr. Adams, who was then Secretary of according to different estimates. More State, expressed surprise on the part of over, females are destroyed as well as

the United States at the claims of Russia, males, and this means oftentimes the de

and M. de Poletica proceeded to justify struction of two lives in place of one, the

them. In a note, dated February 28, females either being with young, or having

1822, he said : left the rookeries in search of food for their pups already born, which are then left to

I shall be more succinct, sir, in the exposition starve, as they cannot swim, and as the of the motives which determined the Imperial bulls never abandon the islands during the Government to prohibit foreign vessels from apbreeding season. The Pribylov Islands proaching the northwest coast of America belong

ing to Russia within the distance of at least 100 are a government reserve, and the right to

Italian miles. This measure, however severe it take fur seals is leased to the Alaska Com

may at first appear, is, after all, but a measure of mercial Company of California alone. This prevention. It is exclusively directed against the company also has control of the Russian culpable enterprises of foreign adventurers, who, Kormandorski Islands, and is obliged to mentioned, an illicit trade very prejudicial to the

not content with exercising upon the coasts above take from them one thousand skins an

rights allowed entirely to the Russian American nually, while, on the American Pribylov Company, take upon them besides to furnish arms Islands, it is limited to the taking of one and ammunition to the natives in the Russian poshundred thousand skins per year.

sessions in America, exciting them likewise in

every manner to resist and revolt against the authe government $55,000 per annum, and

thorities there established. $2.621 per skin taken and shipped, and, on the $7,200,000 which the government

I ought, in the last place, to request you to paid for Alaska, the government has de

consider, sir, that the Russian possessions in the rived from this source an income equiva- Pacific Ocean extend, on the northwest coast of lent to more than 4 per cent a year. The America, from Behring's Strait to the fifty-first lease is dated May 1, 1870, and expires

degree of north latitude, and on the opposite side May I next, being for the term of twenty strait to the forty-fifth degree. The extent of sea,

of Asia, and the islands adjacent, from the same years.

of which these possessions form the limits, comConsiderable stress has been placed prehends all the conditions which are ordinarily upon our contention against Russia in attached to shut seas (mers fermées), and the 1822, whereby we are said to have denied itself authorized to exercise upon this sea the right

Russian Government might consequently judge Russia's claim to Behring Sea as a mare

of sovereignty, and especially that of entirely interclausum. Lord Salisbury, in his note to dicting the entrance of foreigners. But it preferred Sir L. S. Sackville West of September 10, only asserting its essential rights, without taking 1887, makes a point of this. But Russia's any advantage of localities. claim was more extensive than ours. By an imperial ukase of September 16, 1821, Among other things, he observed :

Mr. Adams replied March 30, 1822. Alexander I. had sanctioned certain regulations adopted by the Russian American

With regard to the suggestion that the Russian Company, the first and second sections of Government might have justified the exercise of which are alone important here :

sovereignty over the Pacific Ocean as a close sea,

because it claims territory both on its American SEC. I. The pursuits of commerce, whaling and and Asiatic shores, it may suffice to say that the fishing, and of all other industry, on all islands, distance from shore to shore on this sea, in latitude ports, and gulfs, including the whole of the north- 51° north, is not less than 90° of longitude, or west coast of America, beginning from Behring 4000 miles.

It pays

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Russia did not abandon her contention, ART. III. The line of demarcation between the but the matter was dropped as being a possessions of the High Contracting Parties, upon merely theoretical dispute, M. de Poletica the coast of the continent, and the islands of

America to the northwest shall be drawn in the saying:

manner following:

Commencing from the southernmost point of In the same manner the great extent of the

the island called Prince of Wales Island, which Pacific Ocean at the fifty-first degree of latitude point lies in the parallel of 54 degrees 40 minutes cannot invalidate the right which Russia may have north latitude, and between the 131st and 133d of considering that part of the ocean as close. degree of west longitude (meridian of Greenwich), But as the Imperial Government has not thought the said line shall ascend to the north along the fit to take advantage of that right, all further dis- channel called Portland Channel, as far as the cussion on this subject would be idle.

point of the continent where it strikes the 56th

degree of north latitude; from this last-mentioned Mr. Adams did not intend to controvert point, the line of demarcation shall follow the any claim to Behring Sea as a mare clau- summit of the mountains situated parallel to the sum, but simply wished to assert our right coast as far as the point of intersection of the 141st to fish and trade on the northwest coast. degree of west longitude (of the same meridian); April 17, 1824, a treaty was concluded said meridian line of the 141st degree, in its pro

and finally, from the said point of intersection, the with Russia, the first, third, and fourth longation as far as the Frozen Ocean, shall form articles of which were these :

the limit between the Russian and British posses

sions on the continent of America to the northArt. I. It is agreed, that, in any part of the west. Great Ocean, commonly called the Pacific Ocean, ART. VII. It is also understood, that, for the or South Sea, the respective citizens or subjects of space of 10 years from the signature of the present the high contracting powers shall be neither dis- convention, the vessels of the two Powers, or those turbed nor restrained, either in navigation or in belonging to their respective subjects, shall mutufishing, or in the power of resorting to the coasts, ally be at liberty to frequent, without any hinupon points which may not already have been drance whatever, all the island seas, the gulfs, occupied for the purpose of trading with the havens, and creeks on the coast mentioned in natives, saving always the restrictions and condi- Article III. for the purposes of fishing and of tradtions determined by the following articles :- ing with the natives.

Art. III. It is moreover agreed, that, here- The American treaty was not renewed after, there shall not be formed by the citizens of at the expiration of the ten years menthe United States, or under the authority of the said States, any establishment upon the northwest tioned therein, and Russia claimed that coast of America, nor in any of the islands adja- the first article was no longer in force. cent, to the north of fifty-four degrees and forty February 11, 1843, Russia, by a treaty minutes of north latitude; and that, in the same with Great Britain, Article XII. thereof, manner, there shall be none formed by Russian subjects

, or under the authority of Russia, south agreed to regard the treaty of February of the same parallel.

28, 1825, with that country as in force. Art, IV. It is, nevertheless, understood that It is fairly evident that the discussion and during a term of ten years, counting from the sig: treaties of 1824 and 1825 related to the nature of the present convention, the ships of both northwest coast, islands and waters to the Powers, or which belong to their citizens or subjects respectively, may reciprocally frequent, with south of the Aleutian Islands, and that out any hindrance whatever, the interior seas, the question of Behring Sea did not enter gulss, harbors, and creeks, upon the coast men- into the dispute or conclusion at all. tioned in the preceding article, for the purpose of Russia was desirous of forbidding the imfishing and trading with the natives of the country.”

portation of firearms, ammunition, and A similar treaty was concluded between liquors into places upon the northwest Russia and Great Britain, February 28, coast, where settlements were growing up, 1825. The first and third and seventh and she made the claims that she did to articles thereof were these :

secure this end. The treaties were a set

tlement primarily of a discussion upon terArt. I. It is agreed that the respective sub- ritorial, not upon marine rights. jects of the High Contracting Parties shall not be troubled or molested in any part of the ocean

Russia has always maintained her exclucommonly called the Pacific Ocean, either in navi- sive jurisdiction over Behring Sea. She gating the same, in fishing therein, or in landing had not conceded any rights therein to at such parts of the coast as shall not have been Great Britain or any other country prior already occupied, in order to trade with the natives, under the restrictions and conditions specified States. She is to-day enforcing her juris

to her cession of Alaska to the United in the following articles.

diction over her portion of the sea, and,

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