Nr. 10188. Gross to the restrictions and provisions specified in the two following Articles. || Art. II. To the end, that the navigation and fishery of the citizens and sub- britannien. jects of the Contracting Parties, respectively, in the Pacific Ocean or in the 2. Aug. 1890. South Seas may not be made a pretext for illicit trade with their respective settlements, it is agreed, that the citizens of the United States shall not land on any part of the coast actually occupied by Russian settlements, unless by permission of the Governor or Commander thereof, and that Russian subjects shall, in like manner, be interdicted from landing without permission at any settlement of the United States on the said north-west coast. || Art. III. It is agreed, that no settlement shall be made hereafter on the north-west coast of America by citizens of the United States or under their authority, north, nor by Russian subjects, or under the authority of Russia, south of the 55th degree of north latitude." || In an explanatory despatch to Mr. Rush, the American Minister in London, same date, Mr. Adams says:- "The right of carrying on trade with the natives throughout the north-west coast they (the Unised States) cannot renounce. With the Russian settlements at Kodiak, or at New Archangel; they may fairly claim the advantage of a free trade, having so long enjoyed it unmolested, and because it has been and would continue to be as advantageous at least to those settlements as to them. But they will not contest the right of Russia to prohibit the traffic, as strictly confined to the Russian settlement itself, and not extending to the original natives of the coast....." It is difficult to conceive how the term "north-west coast of America" used here and elsewhere can be interpreted otherwise than as applying to the north-west coast of America generally, or how it can be seriously contended, that it was meant to denote only the more westerly portion, excluding the more north-westerly part, because by becoming a Russian possession this latter had ceased to belong to the American Continent. || Mr. Blaine states, that when Mr. Middleton declared, that Russia had no right of exclusion on the coasts of America between the 50th and 60th degrees of north latitude, nor in the seas which washed those coasts, he intended to make a distinction between Behring's Sea and the Pacific Ocean. But upon reference to a Map, it will be seen, that the 60th degree of north latitude strikes straight across Behring's Sea, leaving by far the larger and more important part of it to the south; so that I confess it appears to me, that by no conceivable construction of his words can Mr. Middleton be supposed to have excepted that sea from those which he declared to be free. With regard to the construction which Mr. Blaine puts upon the Treaty between the United States and Russia of the 17th April, 1824, I will only say, that it is, as far as I am aware, an entirely novel one, that there is no trace of its having been known to the various publicists who have given an account of the controversy in Treaties on International Law, and that it is contrary, as I shall show, to that which the British negotiators placed on the Treaty when they adopted the Ist and IInd Articles for insertion in the British Treaty of the Gross Nr. 10188. 28th February, 1825. I must further dissent from his interpretation of britannien. Article VII of the latter Treaty. That Article gives to the vessels of the 2. Aug. 1890. two Powers "liberty to frequent all the inland seas, gulfs, havens and creeks on the coast mentioned in Article III, for the purpose of fishing and of trading with the natives." The expression,,coast mentioned in Article III" can only refer to the first words of the Article: 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 north-west shall be drawn," &c. That is to say, it included all the possessions of the two Powers on the north-west coast of America. For there would have been no sense whatever in stipulating, that Russian vessels should have freedom of access to the small portion of coast which, by a later part of the Article, is to belong to Russia. And as bearing on this point it will be noticed, that Article VI, which has a more restricted bearing, speaks only of "the subjects of His Britannic Majesty," and of "the line of coast described in Article III." The stipulations of the Treaty were formally renewed by Articles inserted in the General Treaties of Commerce between Great Britain and Russia of 1843 and 1859. But Mr. Blaine states, that "the rights of the Russian American Company, which, under both Ukases, included the sovereignty over the sea to the extent of 100 miles from the shores, were reserved by special clause in a separate and special Article signed after the principal Articles of the Treaty had been concluded and signed." Upon this I have to observe, in the first place, that the Ukase of 1799 did not contain any mention whatever of sovereignty over the sea; secondly, that the context of the Separate Article is such as altogether to preclude the interpretation, that it was meant to recognize the objectionable claim contained in the Ukase of 1821. I will quote the Article at length:- || "Separate Article II. It is understood in like manner, that the exceptions, immunities and privileges hereinafter mentioned shall not be considered as at variance with the principle of reciprocity which forms the basis of the Treaty of this date, that is to say: 1. The exemption from navigation dues during the first three years, which is enjoyed by vessels built in Russia and belonging to Russian subjects. || 2. The exemptions of the like nature granted in the Russian ports of the Black Sea, the Sea of Azof and the Danube to such Turkish vessels arriving from ports of the Ottoman Empire situated on the Black Sea, as do not exceed 80 lasts burden. || 3. The permission granted to the inhabitants of the coast of the Government of Archangel, to import duty free, or on payment of moderate duties, into the ports of the said Government, dried or salted fish, as likewise certain kinds of furs, and to export therefrom, in the same manner, corn, rope and cordage, pitch and ravensduck. || 4. The privilege of the Russian American Company. || 5. The privilege of the Steam Navigation Companies of Lubeck and Havre; lastly, 6. The immunities granted in Russia to certain English Companies, called 'Yacht Clubs."" To suppose, that under the simple words, "the privilege of the Russian American Gress Company," placed in connection with the privilege of French and German Nr. 10188. Steam Navigation Companies, and the immunities of yacht clubs, it was intended britannien. to acknowledge a claim of jurisdiction against which Her Majesty's Government 2. Aug. 1890. had formally protested as contrary to international law, and which it had avowedly been one of the main objects of the Treaty of 1825 to extinguish, is a suggestion too improbable to require any lengthened discussion. || But Her Majesty's Government did not of course agree to the Article without knowing what was the exact nature of the privileges thus excepted from reciprocity. They had received from the Russian Ambassador, in December 1842, an explanatory Memorandum on this subject, of which the following is the portion relating to the Russian American Company:- || "IV. La Compagnie Russe - Américaine a le privilège d'expédier francs de droits: de Cronstadt autour du monde et d'Ochotsk dans les Colonies Russes, les produits Russes ainsi que les marchandises étrangères dont les droits ont déjà été prélevés; de même d'importer au retour de ces Colonies des cargaisons de pelleteries et d'autres produits de ces Colonies, sans payer aucun droit si d'après les lois générales il n'est pas établi d'impôt particulier intérieur sur les marchandises de pelleterie. Observation. D'après le Tarif en vigueur, l'importation des | fourrures dans les ports de St.-Pétersbourg et d'Archangel, de production Russe et sur des vaisseaux Russes, est admise sans droits." || It is surely incredible, that, if the privilege of the Russian American Company did comprise a right of excluding vessels from approaching within 100 miles of the shore, it should not even have been alluded to in this explanation. || Nor is it possible to agree in Mr. Blaine's view, that the exclusion of foreign vessels for a distance of 100 miles from the coast remained in force pending the negotiations, and in so far as it was not modified by the Conventions. A claim of jurisdiction over the open sea, which is not in accordance with the recognized principles of international law or usage, may, of course, be asserted by force, but cannot be said to have any legal validity as against the vessels of other countries, except in so far as it is positively admitted by Conventional Agreements with those countries. I do not suppose, that it is necessary, that I should argue at length upon so elementary a point as that a claim to prohibit the vessels of other nations from approaching within a distance of 100 miles from the coast is contrary to modern international usage. Mr. Adams and Mr. Canning clearly thought in 1823, that the matter was beyond doubt or discussion. The rule which was recognized at that time, and which has been generally admitted both by publicists and Governments, limits the jurisdiction of a country in the open sea to a distance of 3 miles from its coasts, this having been considered to be the range of a cannon-shot when the principle was adopted. Wheaton, who may be regarded as a contemporary authority, equally respected in Europe and America, says: "The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers and adjacent parts of the sea inclosed by headlands belonging to the same State. Gross Nr. 10188. The general usage of nations superadds to this extent of territorial jurisdiction britannien. a distance of a marine league, or as far as a cannot-shot will reach from the 2. Aug. 1890. shore along all the coasts of the State." || And again- || "The rule of law on this subject is terrae dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms that distance has usually been recognized to be about 3 miles from the shore." || Chancellor Kent, who is inclined to advocate a more extended limit, still admits that:- || "According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league." || Calvo, one of the most recent text-writers, makes a corresponding statement: "Les limites juridictionnelles d'un État embrassent non seulement son territoire, mais encore les eaux qui le traversent ou l'entourent, les ports, les baies, les golfes, les embouchures des fleuves et les mers enclavées dans son territoire. L'usage général des nations permet également aux États d'exercer leur juridiction sur la zone maritime jusqu'à 3 mille marins ou à la portée de canon de leurs côtes." || But I need scarcely appeal to any other authority than that of the United States' Government itself. In a note to the Spanish Minister, dated the 16th December, 1862, on the subjects of the Spanish claim to a 6-mile limit at sea, Mr. Seward stated: "A third principle bearing on the subject is also well established, namely, that this exclusive sovereignty of a nation-thus abridging the universal liberty of the seas-extends no farther than the power of the nation to maintain it by force, stationed on the coast, extends. This principle is tersely expressed in the maxim: 'Terrae dominium finitur, ubi finitur armorum vis.' But it must always be a matter of uncertainty and dispute at what point the force of arms, exerted on the coast, can actually reach. The publicists rather advanced towards than reached a solution when they laid down the rule, that the limit of the force is the range of a cannon-ball. The range of a cannon-ball is shorter or longer according to the circumstances of projection, and it must be always liable to change with the improvement of the science of ordnance. Such uncertainty upon a point of jurisdiction or sovereignty would be productive of many and endless controversies and conflicts. A more practical limit of national jurisdiction upon the high seas was indispensably necessary, and this was found, as the Undersigned thinks, in fixing the limit. at 3 miles from the coast. This limit was early proposed by the publicists of all maritime nations. While it is not insisted, that all nations have accepted or acquiesced and bound themselves to abide by this rule when applied to themselves, yet three points involved in the subject are insisted upon by the United States: "1. That this limit has been generally recognized by nations; 2. That no other general rule has been accepted; and || 3. That if any State has succeeded in fixing for itself a larger limit, this has been done by the exercise of maritime power, and constitutes an exception to the general understanding which fixes the range of a cannon-shot (when it is made the test of Gross jurisdiction) at 3 miles. So generally is this rule accepted, that writers com- Nr. 10188. monly use the expressions of a range of cannon-shot and 3 miles as equivalents britannien. of each other. In other cases, they use the latter expression as a substitute 2. Aug. 1890. for the former." || And in a later communication on the same subject of the 10th August, 1863, he observes: "Nevertheless, it cannot be admitted, nor indeed is Mr. Tassara understood to claim, that the mere assertion of a Sovereign, by an act of legislation, however solemn, can have the effect to establish and fix its external maritime jurisdiction. His right to a jurisdiction of 3 miles is derived, not from his own Decree, but from the law of nations, and exists, even though he may never have proclaimed or asserted it by any Decree or Declaration whatsoever. He cannot, by a mere Decree, extend the limit and fix it at 6 miles, because, if he could, he could in the same manner, and upon motives of interest, ambition, or even upon caprice, fix it at 10, or 20, or 50 miles without the consent or acquiescence of other Powers which have a common right with himself in the freedom of all the oceans. Such a pretension could never be succesfully or rightfully maintained." || The same principles were laid down in a note addressed to Sir E. Thornton by Mr. Fish, then Secretary of State, on the 22nd January, 1875. Mr. Fish there stated; "We have always understood and asserted, that pursuant to public law no nation can rightfully claim jurisdiction at sea beyond a marine league from the coast." He then went on to explain the only two exceptions that were apparently known to him so far as the United States were concerned: certain Revenue Laws which admitted the boarding of vessels at a distance of 4 leagues from the coast, which, he said, had never been so applied in practice as to give rise to complaint on the part of a foreign Government; and a Treaty between the United States and Mexico of 1848, in which the boundary-line between the two States was described as beginning in the Gulf of Mexico, 3 leagues from land. As regards this stipulation, he observed, that it had been explained at the time, that it could only affect the rights of Mexico and the United States, and was never intended to trench upon the rights of Great Britain or of any other Power under the law of nations. || It would seem, therefore, that Mr. Fish was entirely unaware of the exceptional jurisdiction in Behring's Sea, which is now said to have been conceded by the United States to Russia from 1823 to 1867, transferred to the United States, so far as the American coast was concerned, only eight years before he wrote, and which would presumably be still acknowledged by them as belonging to Russia on the Asiatic shore. I must suppose, that when Mr. Blaine states that "both the United States and Great Britain recognized, respected, obeyed" the Ukase of 1821, in so far as it affected Behring's Sea, he has some evidence to go upon in regard to the conduct of his country which is unknown to the world at large, and which he has not as yet produced. But I must be allowed altogether to deny, that the attitude of Great Britain was such as he represents, or that she ever admitted by act or by sufferance the extraordinary Staatsarchiv LII. 12 |