Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1890

The Marquis of Salisbury to Sir Julian Pauncefote.

[Transmitted to the Department by Sir Julian Pauncefote.]

Foreign Office, August 2, 1890.

No. 166.]

Sir: I have received and laid before the Queen your dispatch. No. 101 of the 1st ultimo, forwarding a copy of a note from Mr. Blaine, in which he maintains that the United States have derived from Russia rights of jurisdiction over the waters of Behring’s Sea to a distance of 100 miles from the coasts transferred to them under the treaty of the 30th March, 1867.

In replying to the arguments to the contrary effect contained in my dispatch No. 106a of the 22d May, Mr. Blaine draws attention to certain expressions which I had omitted for the sake of brevity in quoting from Mr. Adams’s dispatch of the 22d July, 1823. He contends that these words give a different meaning to the dispatch, and that the latter does not refute but actually supports the present claim of the United States. It becomes necessary, therefore, that I should refer in greater detail to the correspondence, an examination of which will show that the passage in question can not have the significance which Mr. Blaine seeks to give to it, that the words omitted by me do not in reality affect the point at issue, and that the view which he takes of the attitude both of Great Britain and of the United States towards the claim put forward by Russia in 1822 can not be reconciled with the tenor of the dispatches.

It appears from the published papers that in 1799 the Emperor Paul I granted by charter to the Russian-American Company the exclusive right of hunting, trade, industries, and discoveries of new land on the northwest coast of America, from Behring’s Strait to the fifty-fifth degree of north latitude, with permission to the company to extend their discoveries to the south and to form establishments there, provided they did not encroach upon the territory occupied by other powers.

The southern limit thus provisionally assigned to the company corresponds, within 20 or 30 miles, with that which was eventually agreed upon as the boundary between the British and Russian possessions. It comprises not only the whole American coast of Behring’s Sea, but a long reach of coast line to the south of the Alaskan peninsula as far as the level of the southern portion of Prince of Wales’ Island.

The charter, which was issued at a time of great European excitement, attracted apparently little attention at the moment and gave rise to no remonstrance. It made no claim to exclusive jurisdiction over the sea, nor do any measures appear to have been taken under it to restrict the commerce, navigation, or fishery of the subjects of foreign nations. But in September, 1821, the Russian Government issued a fresh ukase, of which the provisions material to the present discussion were as follows:

• Section 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’s Strait 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’s 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 100 Italian miles. The transgressor’s vessel is subject to confiscation, along with the whole cargo.

By this ukase the exclusive dominion claimed by Russia on the American continent was pushed some 250 miles to the south as far as Vancouver Island, and notice was for the first time given of a claim to maritime jurisdiction which was regarded both in England and the United States as extravagant, or, to use Lord Stowell’s description of it, “very unmeasured and insupportable.”

Upon receiving communication of the ukase the British and United States’ Governments at once objected both to the extension of the territorial claim and to the assertion of maritime jurisdiction. For the present I will refer only to the protest of the United States Government. This was made in a note from Mr. John Quincy Adams, then Secretary of State, to the Russian representative, dated the 25th February, 1822, which contains the following statement:

I am directed by the President of the United States to inform you that he has seen with surprise in this edict the assertion of a territorial claim on the part of Russia extending to the fifty-first degree of north latitude on this 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 is made to apply. The relations of the United States with His Imperial Majesty have always been of the most friendly character, and it is the earnest desire of this Government to preserve them in that state. It was expected, before any act which should define the boundary between the territories of the United States and Russia on this continent, that the same would have been arranged by treaty between the parties. To exclude the vessels of our citizens from the shore, beyond the ordinary distance to which the territorial jurisdiction extends, has excited still greater surprise.

This ordinance affects so deeply the rights of the United States and of their citizens that I am instructed to inquire whether you are authorized to give explanations of the grounds of right, upon principles generally recognized by the laws and usages of nations, which can warrant the claims and regulations contained in it.

The Russian representative replied at length, defending the territorial claim on grounds of discovery, first occupation, and undisturbed possession, and explaining the motive “which determined the Imperial Government to prohibit foreign vessels from approaching the northwest coasts of America belonging to Russia within the distance of at least 100 Italian miles. This measure,” he said, “however severe it may at first view appear, is after all but a measure of prevention.” He went on to say that it was adopted in order to put a stop to an illicit trade in arms and ammunition with the natives, against which the Russian Government had frequently remonstrated; and further on he observed:

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 of Asia and the islands adjacent, from the same strait to the forty-fifth degree. The extent of sea 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.

To this Mr. Adams replied (30th March, 1822), pointing out that the only ground given for the extension of the Russian territorial claim was the establishment of a settlement, not upon the continent, but upon a small island actually within the limits prescribed to the Russian American Company in 1799, and he went on to say:

This pretension is to be considered not only with reference to the question of territorial right, 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. From the period of the existence of the United States as an independent nation their vessels have freely navigated those seas, and the right to navigate them is a part of that independence.

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.

The Russian representative replied to this note, endeavoring to prove that the territorial rights of Russia on the northwest coast of America were not confined to the limits of the concession granted to the Russian American Company in 1790, and arguing that the great extent of the Pacific Ocean at the fifty-first degree of latitude did not invalidate the right which Russia might have to consider that part of the ocean as closed. But he added that further discussion of this point was unnecessary, as the Imperial Government had not thought fit to take advantage of that right.

The correspondence then dropped for a time, to be resumed in the following spring. But it is perfectly clear from the above that the privileges granted to the Russian American Company in 1799, whatever effect that may have had as regards other Russian subjects, did not operate to exclude American vessels from any part of the coast, and that the attempt to exclude them in 1821 was at once resisted. Further, that the Russian Government had no idea of any distinction between Behring’s Sea and the Pacific Ocean, which latter they considered as reaching southward from Behring’s Straits. Nor throughout the whole of the subsequent correspondence is there any reference whatever on either side to any distinctive name for Behring’s Sea, or any intimation that it could be considered otherwise than as forming an integral part of the Pacific Ocean.

I now come to the dispatch from Mr. Adams to Mr. Middleton of the 22d of July, 1823, to which reference has before been made, and which it will be necessary to quote somewhat at length. After authorizing Mr. Middleton to enter upon a negotiation with the Russian ministers concerning the differences which had arisen from the ukase of the 4th (16th) September, 1821, Mr. Adams continues:

From the tenor of the ukase, the pretensions of the Imperial Government extend to an exclusive territorial jurisdiction from the forty-fifth degree of north latitude, on the Asiatic coast, to the latitude of 51° north on the western coast of the American continent; and they assume the right of interdicting the navigation and the fishery of all other nations to the extent of 100 miles from the whole of that coast.

The United States can admit no part of these claims. Their right of navigation and of fishing is perfect, and has been in constant exercise from the earliest times, after the peace of 1783, throughout the whole extent of the Southern Ocean, subject only to the ordinary exceptions and exclusions of the territorial jurisdictions, which, so far as Russian rights are concerned, are confined to certain islands north of the fifty-fifth degree of latitude, and have no existence on the continent of America.

Mr. Blaine has argued at great length to show that when Mr. Adams used these clear and forcible expressions he did not mean what he seemed to say; that when he stated that the United States “could admit no part of these claims,” he meant that they admitted all that part of them which related to the coast north of the Aleutian Islands: that when he spoke of the Southern Ocean, he meant to except Behring’s Sea; and that when he contended that the ordinary exceptions and exclusions of the territorial jurisdictions had no existence, so far as Russian rights were concerned, on the continent of America, he used the latter term not in a geographical but in a “territorial” sense, and tacitly excepted, by a very singular petitio principii, the Russian possessions. In order to carry out this theory, it is necessary for him also to assume that the negotiators in the course of the discussions made indiscriminate use of the term “northwest coast of America,” with a variety of signification which he admits to be “confusing, and, at certain points, apparently contradictory and irreconcilable.”

The reputation of the American statesmen and diplomatists of that day for caution and precision affords of itself strong argument against such a view, and even if this had been otherwise, so forced a construction would require very strong evidence to confirm it. But a glance at the rest of the dispatch and at the other papers will show that the more simple interpretation of the words is the correct one. For Mr. Adams goes on to say:

The correspondence between M. Poletica and this Department contained no discussion of the principles or of the facts upon which he attempted the justification of the imperial ukase. This was purposely avoided on our part, under the expectation that the Imperial Government could not fail, upon a review of the measure, to revoke it altogether. It did, however, excite much public animadversion in this country, as the ukase itself had already done in England. I inclose herewith the North American Review for October, 1822, No. 37, which contains an article (page 370) written by a person fully master of the subject; and for the view of it taken in England I refer you to the fifty-second number of the Quarterly Review, the article upon Lieutenant Kotzebue’s voyages. From the article in the North American Review it will be seen that the rights of discovery, of occupancy, and of uncontested possession alleged by M. Poletica are all without foundation in fact. * * *

On reference to the last-mentioned article, it will be found that the writer states that:

A trade to the northwestern coast of America and the free navigation of the waters that wash its shores have been enjoyed as a common right by subjects of the United States and of several European powers without interruption for nearly forty years. We are by no means prepared to believe or admit that all this has been on sufferance merely, and that the rights of commerce and navigation in that region have been vested in Russia alone.

Further on he puts the question in the following manner (the italics are his own):

It is not, we apprehend, whether Russia has any settlements that give her territorial claims on the continent of America. This we do not deny. But it is whether the location of those settlements and the discoveries of their navigators are such as they are represented to be; whether they entitle her to the exclusive possession of the whole territory north of 51° and to sovereignty over the Pacific Ocean beyond that parallel.

These passages sufficiently illustrate Mr. Adams’s meaning, if any evidence be required that he used plain language in its ordinary sense. Clearly he meant to deny that the Russian settlements or discoveries gave Russia any claim as of right to exclude the navigation or fishery of other nations from any part of the seas on the coast of America, and that her rights in this respect were limited to the territorial waters of certain islands of which she was in permanent and complete occupation.

Having distinctly laid down this proposition as regards the rights of the case, Mr. Adams went on to state what the United States were ready to agree to as a matter of conventional arrangement. He said:

With regard to the territorial claim separate from the right of traffic with the natives and from any system of colonial exclusions, we are willing to agree to the boundary line within which the Emperor Paul had granted exclusive privileges to the Russian-American Company, that is to say, latitude 55°.

If the Russian Government apprehend serious inconvenience from the illicit traffic of foreigners with their settlements on the northwest coast, it may be effectually guarded against by stipulations similar to those a draft of which is herewith subjoined, and to which you are authorized, on the part of the United States, to agree. * * *

The draft convention was as follows:

draft of treaty between the united states and russia.

• Article I. In order to strengthen the bonds of friendship, and to preserve in future a perfect harmony and good understanding between the contracting parties, it is agreed that their respective citizens and subjects shall not be disturbed or molested, either in navigating or in carrying on their fisheries in the Pacific Ocean or in the South Seas, or in landing on the coasts of those seas, in places not already occupied, for the purpose of carrying on their commerce with the natives of the country, subject, nevertheless, 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 subjects of the contracting parties, respectively, in the Pacific Ocean or in the 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 northwest coast.
• Art. III. It is agreed that no settlement shall be made hereafter on the northwest 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 dispatch to Mr. Rush, the American minister in London, same date, Mr. Adams says:

The right of carrying on trade with the natives throughout the northwest coast they (the United States) can not 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 “northwest coast of America,” used here and elsewhere, can be interpreted otherwise than as applying to the northwest 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 northwesterly 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 fiftieth and sixtieth 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 sixtieth 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 first and second articles for insertion in the British treaty of the 28th February, 1825. I must further dissent from his interpretation of Article VII of the latter treaty. That article gives to the vessels of the 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 island of America to the northwest shall be drawn,” etc. That is to say, it included all the possessions of the two powers on the northwest 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 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 Company,” placed in connection with the privilege of French and German steam navigation companies and the immunities of yacht clubs, it was intended to acknowledge a claim of jurisdiction against which Her Majesty’s Government 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-Americaine a le privilege 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; do même d’importer au retour de ces Colonies des cargaisons de pelleteries et d’autres produits de ces Colonies, sans payer ancun droit si d’après lea lois générales il n’est pas établi d’impôt partieulier intérieur sur les marchandises de pelleterie.

Observation.—D’après le Tarif en vigueur, fiinportation des fourrures dans les ports tie St.-Pétersboug 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 can not 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, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State.

And again:

The rule of law on this subject is terrœ 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 Pentourent, les ports, les baies, les golfes, les embouchures des fleuves et les mers enclavées dans eon territoire. L’usage général des nations permet également aux États d’exercer leur juridiction sur la zone maritime jusq’uà 3 milles marins ou a la portée de cannon 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 subject 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 “terrœ dominium finitur ubi jinitur 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 jurisdiction) at 3 miles. So generally is this rule accepted that writers commonly use the expressions of a range of cannon shot and 3 miles as equivalents of each other. In other cases, they use the latter expression as a substitute for the former.

And in a later communication on the same subject of the 10th August, 1863, he observes:

Nevertheless, it can not 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 can not, 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 successfully 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 22d 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 claim of maritime jurisdiction which that ukase contained.

The inclosed copies of correspondence, extracted from the archives of this office, make it very difficult to believe that Mr. Blaine has not been altogether led into error. It results from them that not only did Her Majesty’s Government formally protest against the ukase on its first issue as contrary to the acknowledged law of nations, but that the Russian Government gave a verbal assurance that the claim of jurisdiction would not be exercised. In the subsequent negotiations great importance was attached to obtaining a more formal disavowal of the claim in the manner least hurtful to Russian susceptibilities but so as effectually to preclude its revival. And this security the British Government undoubtedly considered that both they and the United States had obtained by the conventions of 1824 and 1825.

Upon this point the instructions given by Mr. George Canning to Mr. Stratford Canning, when the latter was named plenipotentiary to negotiate the treaty of 1825, have a material bearing.

Writing under date of the 8th December, 1824, after giving a summary of the negotiations up to that date, he goes on to say—

It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possession on the continent of America, but the pretensions of the Russian ukase of 1821, to exclusive dominion over the Pacific, could not continue longer unrepealed without compelling us to take some measure of public and effectual remonstrance against it.

You will, therefore, take care in the first instance to repress any attempt to give this change to the character of the negotiation, and will declare, without reserve, that the point to which alone the solicitude of the British Government and the jealousy of the British nation attach any great importance is the doing away (in a manner as little disagreeable to Russia as possible) of the effect of the ukase of 1821.

That this ukase is not acted upon, and that instructions have long ago been sent by the Russian Government to their cruisers in the Pacific to suspend the execution of its provisions is true, but a private disavowal of a published claim is no security against the revival of that claim; the suspension of the execution of a principle may be perfectly compatible with the continued maintenance of the principle itself.

* * * * * * *

The right of the subjects of His Majesty to navigate freely in the Pacific can not be held as a matter of indulgence from any power. Having once been publicly questioned it must be publicly acknowledged.

We do not desire that any distinct reference should be made to the ukase of 1821, but we do feel it necessary that the statement of our right should be clear and positive, and that it should stand forth in the convention in the place which properly belongs to it as a plain and substantive stipulation, and not be brought in as an incidental consequence of other arrangements to which we attach comparatively little importance.

This stipulation stands in the grant of the convention concluded between Russia and the United States of America, and we see no reason why, upon similar claims, we should not obtain exactly the like satisfaction.

For reasons of the same nature we can not consent that the liberty of navigation through Behring’s Straits should be stated in the treaty as a boon from Russia.

The tendency of such a statement would be to give countenance to those claims of exclusive jurisdiction against which we, on our own behalf and on that of the whole civilized world, protest.

* * * * * * *

It will of course strike the Russian plenipotentiaries that, by the adoption of the American article respecting navigation, etc., the provision for an exclusive fishery of 2 leagues from the coasts of our respective possessions falls to the ground.

But the omission is, in truth, immaterial.

The law of nations assigns the exclusive sovereignty of 1 league to each power off its own coasts without any specified stipulation, and though Sir Charles Bagot was authorized to sign the convention with the specific stipulation of 2 leagues in ignorance of what had been decided in the American convention at the time, yet after that convention has been some months before the world, and after the opportunity of reconsideration has been forced upon us by the act of Russia herself, we can not now consent, in negotiating de novo, to a stipulation which, while it is absolutely unimportant to any practical good, would appear to establish a contract between the United States and us to our disadvantage.

Mr. Stratford Canning, in his dispatch of the 1st March, 1825, inclosing the convention as signed, says:

With respect to Behring’s Straits I am happy to have it in my power to assure you, on the joint authority of the Russian plenipotentiaries, that the Emperor of Russia has no intention whatever of maintaining any exclusive claim to the navigation of these straits or of the seas to the north of them.

These extracts show conclusively (1) that England refused to admit any part of the Russian claim asserted by the ukase of 1821 to a maritime jurisdiction and exclusive right of fishing throughout the whole extent of that claim, from Behring’s Straits to the fifty-first parallel; (2) that the convention of 1825 was regarded on both sides as a renunciation on the part of Russia of that claim in its entirety, and (3) that though Behring’s Straits was known and specifically provided for, Behring’s Sea was not known by that name, but was regarded as part of the Pacific Ocean.

The answer, therefore, to the questions with which Mr. Blaine concludes his dispatch is that Her Majesty’s Government have always claimed the freedom of navigation and fishing in the waters of Behring’s Sea outside the usual territorial limit of 1 marine league from the coast; that it is impossible to admit that a public right to fish, catch seals, or pursue any other lawful occupation on the high seas can be held to be abandoned by a nation from the mere fact that for a certain number of years it has not suited the subjects of that nation to exercise it.

It must be remembered that British Columbia has come into existence as a colony at a comparatively recent date, and that the first considerable influx of population, some thirty years ago, was due to the discovery of gold, and did not tend to an immediate development of the shipping interest.

I have to request that you will communicate a copy of this dispatch, and of its inclosures, to Mr. Blaine. You will state that Her Majesty’s Government have no desire whatever to refuse to the United States any jurisdiction in Behring’s Sea which was conceded by Great Britain to Russia, and which properly accrues to the present possessors of Alaska in virtue of treaties or the law of nations; and that if the United States Government, after examination of the evidence and arguments which I have produced, still differ from them as to the legality of the recent captures in that sea, they are ready to agree that the question, with the issues that depend upon it, should be referred to impartial arbitration. You will in that case be authorized to consider, in concert with Mr. Blaine, the method of procedure to be followed.

I have, etc.,

Salisbury.

[Inclosure 1.]

Lord Londonderry to Count Lieven.

Foreign Office, January 18, 1822.

The undersigned has the honor hereby to acknowledge the note addressed to him by Baron de Nicolai, of the 12th November last, covering a copy of an ukase issued by His Imperial Majesty the Emperor of all the Russias, and bearing date the 4th September, 1821, for various purposes therein set forth, especially connected with the territorial rights of his Crown on the northwestern coast of America bordering upon the Pacific and the commerce and navigation of His Imperial Majesty’s subjects in the seas adjacent thereto.

This document, containing regulations of great extent and importance, both in its territorial and maritime bearings, has been considered with the utmost attention and with those favorable sentiments which His Majesty’s Government always bears towards the acts of a State with which His Majesty has the satisfaction to feel himself connected by the most intimate ties of friendship and alliance, and having been referred for the report of those high legal authorities whose duty it is to advise His Majesty on such matters, the undersigned is directed, till such friendly explanations can take place between the two governments as may obviate misunderstanding upon so delicate and important a point, to make such provisional protest against the enactments of the said ukase as may fully serve to save the rights of His Majesty’s Crown, and may protect the persons and properties of His Majesty’s subjects from molestation in the exercise of their lawful callings in that quarter of the globe.

The undersigned is commanded to acquaint Count Lieven that, it being the King’s constant desire to respect and cause to be respected by his subjects, in the fullest manner, the Emperor of Russia’s just rights, His Majesty will be ready to enter into amicable explanations upon the interests affected by this instrument in such manner as may be most acceptable to His Imperial Majesty.

In the mean time, upon the subject of this ukase generally, and especially upon the two main principles of claim laid down therein, viz, an exclusive sovereignty alleged to belong to Russia over the territories therein described, as also the exclusive right of navigating and trading within the martime limits therein set forth, His Britannic Majesty must be understood as hereby reserving all his rights, not being prepared to admit that the intercourse which is allowed on the face of this instrument to have hitherto subsisted on those coasts and in those seas can be deemed to be illicit; or that the ships of friendly powers, even supposing an unqualified sovereignty was proved to appertain to the Imperial Crown, in these vast and very imperfectly occupied territories could, by the acknowledged law of nations, be excluded from navigating within the distance of 100 Italian miles, as therein laid down, from the coast, the exclusive dominion of which is assumed (but as His Majesty’s Government conceive in error) to belong to His Imperial Majesty, the Emperor of all the Russias.

Londonderry.

[Inclosure 2.]

Memorandum by the Duke of Wellington.—(September 11, 1822.)

[September 11, 1822]

In the course of a conversation which I had yesterday with Count Lieven, he informed that he had been directed to give verbal explanations of the ukase respecting the northwestern coast of America. These explanations went, he said, to this, that the Emperor did not propose to carry into execution the ukase in its extended sense; that His Imperial Majesty’s ships had been directed to cruise at the shortest possible distance from the shore in order to supply the natives with arms and ammunition, and in order to warn all vessels that that was His Imperial Majesty’s dominion, and that His Imperial Majesty had besides given directions to his minister in the United States to agree upon a treaty of limits with the United States.

[Inclosure 3.]

Mr. G. Canning to the Duke of Wellington.

Foreign Office, September 27, 1822.

My Lord Duke: Your grace is already in possession of all that has passed, both here and at St. Petersburg, on the subject of the issue, in September of last year, by the Emperor of Russia, of an ukase, indirectly asserting an exclusive right of sovereignty from Behring’s Straits to the fifty-first degree of north latitude on the west coast of America, and to the forty-fifth degree north on the opposite coast of Asia, and (as a qualified exercise of that right) prohibiting all foreign ships, under pain of confiscation, from approaching within 100 Italian miles of those coasts. This ukase having been communicated by Baron Nicolai, the Russian chargé d’affaires at this court, to His Majesty’s Government, was forthwith submitted to the legal authorities whose duty it is to advise His Majesty on such matters, and a note was in consequence addressed by the late Marquis of Londonderry to Count Lieven, the Russian ambassador, and also communicated to His Majesty’s ambassador at St. Petersburg, protesting against the enactments of the said ukase, and requesting such amicable explanations’ as might tend to reconcile the pretensions of Russia in that quarter of the globe with the just rights of His Majesty’s Crown and the interests of his subjects. As such explanations will probably be offered to your grace during the conferences about to take place at Vienna, I hasten to signify to you the King’s commands as to the language which you will hold on the part of His Majesty upon this subject.

The opinions given in November and December last by Lord Stowell and by His Majesty’s advocate-general (copies of which are already in your possession) will, furnish you with the best legal arguments in opposition to the pretensions put forward in the Russian ukase; and as in both these opinions much stress is very properly laid upon the state of actual occupation of the territories claimed by Russia, and the different periods of time at which they were so occupied, I have obtained from the governor of the principal company of His Majesty’s subjects trading in that part of the world the information of which your grace will find in the inclosed papers.

That information will enable you sufficiently to prove to the Russian minister not only that the point of prior discovery may be fairly disputed with Russia, but that the much more certain title of actual occupation by the agents and the trading servants of the Hudson’s Bay Company extends at this moment to many degrees of higher latitude on the northwest coast of America than is claimed as the territory of Russia by the ukase in question.

Enlightened statesmen and jurists have long held as insignificant all titles of territory that are not founded on actual occupation, and that title is, in the opinion of the most esteemed writers on public law, to be established only by practical use.

With respect to the other points in the ukase which have the effect of extending the territorial rights of Russia over the adjacent seas to the unprecedented distance of 100 miles from the line of coast, and of closing a hitherto unobstructed passage, at the present moment the object of important discoveries for the promotion of general commerce and navigation, these pretensions are considered by the best legal authorities as positive innovations on the rights of navigation; as such they can receive no explanation from further discussion, nor can by possibility be justified. Common usage, which has obtained the force of law, has indeed assigned to coasts and shores an accessorial boundary to a short limited distance for the purposes of protection and general convenience, in no manner interfering with the rights of others and not obstructing the freedom of general commerce and navigation. But this important qualification the extent of the present claim entirely excludes, and when such a prohibition is, as in the present case, applied to a long line of coasts and also to intermediate islands in remote seas, where navigation is beset with innumerable and unforeseen difficulties and where the principal employment of the fisheries must be pursued under circumstances which are incompatible with the prescribed courses, all particular considerations concur, in an especial manner, with the general principle in repelling such a pretension as an encroachment on the freedom of navigation and the unalienable rights of all nations.

I have, indeed, the satisfaction to believe, from a conference which I have had with Count Lieven on this matter, that upon these two points—the attempt to shut up the passage altogether, and the claim of exclusive dominion to so enormous a distance from the coast—the Russian Government are prepared entirely to waive their pretensions. The only effort that has been made to justify the latter claim was by reference to an article in the treaty of Utrecht, which assigns 30 leagues from the coast as the distance of prohibition. But to this argument it is sufficient to answer that the assumption of such a space was, in the instance quoted, by stipulation in a treaty, and one to which, therefore, the party to be affected by it had (whether wisely or not) given its deliberate consent. No inference could be drawn from that transaction in favor of a claim by authority against all the world.

I have little doubt, therefore, but that the public notification of the claim to consider the portions of the ocean included between the adjoining coasts of America and the Russian Empire as a mare clausum, and to extend the exclusive territorial jurisdiction of Russia to 100 Italian miles from the coast, will be publicly recalled; and I have the King’s commands to instruct your grace further to require of the Russian minister (on the ground of the facts and reasonings furnished in this dispatch and its inclosures) that such a portion of territory alone shall be defined as belonging to Russia as shall not interfere with the rights and actual possessions of His Majesty’s subjects in North America.

I am, etc.,

Geo. Canning.

[Inclosure 4.]

Memorandum on Russian Ukase of 1821.

In the month of September 1821 His Imperial Majesty the Emperor of Russia issued an Ukase asserting the existence in the Crown of Russia of an exclusive right of sovereignty in the countries extending from Behring’s Straits to the fifty-first degree of north latitude on the west coast of America, and to the forty-fifth degree of north latitude on the opposite coast of Asia; and, as a qualified exercise of that right of sovereignty, prohibiting all foreign vessels from approaching within one hundred Italian miles of those coasts.

After this Ukase had been submitted by the Kirig’s Government to those legal authorities whose duty it is to advise His Majesty on such matters, a note was addressed by the late Marquis of Londonderry to Count Lieven, the Russian Ambassador, protesting against the enactments of this Ukase, and requesting such amicable explanations as might tend to reconcile the pretensions of Russia in that quarter of the globe with the just rights of His Majesty’s Crown and the interests of his subjects.

We object, first, to the claim of sovereignty as set forth in this Ukase; and, secondly, to the mode in which it is exercised.

The best writers on the laws of nations do not attribute the exclusive sovereignty, particularly of continents, to those who have first discovered them; and although we might on good grounds dispute with Russia the priority of discovery of these continents, we contend that the much more easily proved, more conclusive, and more certain title of occupation and use ought to decide the claim of sovereignty.

Now, we can prove that the English North-West Company and the Hudson’s Bay Company have for many years established forts and other trading-stations in a country called New Caledonia, situated to the west of a range of mountains called Rocky Mountains, and extending along the shores of the Pacific Ocean from latitude 49° to latitude 60°.

This Company likewise possess factories and other establishments on Mackenzie’s River, which falls into the Frazer River as far north as latitude 66° 30′, from whence they carry on trade with the Indians inhabiting the countries to the west of that river, and who, from the nature of the country, can communicate with Mackenzie’s River with more facility than they can with the posts in New Caledonia. Thus, in opposition to the claims founded on discovery, the priority of which, however, we conceive we might fairly dispute, we have the indisputable claim of occupancy and use for a series of years, which all the best writers on the laws of nations admit is the best-founded claim for territory of this description. Objecting, as we do, to this claim of exclusive sovereignty on the part of Russia, I might save myself the trouble of discussing the particular mode of its exercise as set forth in this Ukase. But we object to the sovereignty proposed to be exercised under this Ukase not less than we do to the claim of it. We cannot admit the right of any power possessing the sovereignty of a country to exclude the vessels of others from the seas on its coasts to the distance of 100 Italian miles. We must object likewise to the arrangements contained in the said Ukase conveying to private merchant ships the right to search in time of peace, etc., which are quite contrary to the laws and usages of nations and to the practice of modern times.

Wellington.

Verona, October 17, 1822.

To Count Nesselrode.

[Inclosure 5.—Mémoire Confidentiel.]

Count Nesselrode to the Duke of Wellington.

Verone, le 11 (23) Novembre, 1822.

Le Cabinet de Russie a pris en mûre considération le Memoire Confidentiel que M. le Due de Wellington lui a remis le 17 Octobre dernier, relativement aux mesures adoptees par Sa Majeste l’Empereur, sous la date du (4) 16 Septembre, 1821, pour déterminer l’étendue des possessions Russes sur la côte nord-ouest de l’Amérique, et pour interdire aux vaisseaux étrangers l’approche de ces possessions jusqu’à la distance de 100 milles d’Italie.

Les ouvertures faites à ce sujet au Gouvernement de Sa Majesté Britannique par le Comte de Lieven au moment où cette Ambassadeur allait quitter Londres doivent deja avoir prouvé que l’opinion que le Cabinet de St. James avait conçue des mesures dont il s’agit n’était point fondée sur une appréciation entièrement exacte des vues de Sa Majeste Impériale.

La Russie est loin de méconnaître que l’usage et l’occupation constituent la pias golide des titres d’après lesquels un État puisse rèclamer des droits de souveraineté sur une portion quelconque du continent. La Russie est plus loin encore d’avoir voulu outrepasser arbitrairement les limites que ce titre assigne à ses domaines sur la côte nord-ouest de l’Amérique, ou ériger en principe général de droit maritime les régles qu’une nécessité purement locale l’avait obligée de poser pour la navigation étrangère dans le voisinage de la partie de cette côte qui lui appartient.

C, était au contraire parce qu’elle regardait ces droits de souveraineté comme légitimes, et parce que des considérations impérieuses tenant à l’existence même du commerce qu’elle fait dans les parages de la côte nord-ouest de l’Amériqus, la forçaient à établir un système de précautions devenues indispensables, qu’elle a fait paraître l’oukase du (4) 16 Septembre, 1821.

La Russie serait toujours prête à faire part des motifs qui en justifient les dispositions; mais pour le moment elle se bornera aux observations suivantes:—

M. le Due de Wellington affirme, dans son Memoire Confidentiel du 17 Octobre, que des etablissements Anglais, appartenaht à deux Compagnies, celle de la Baye de Hudson et celle du Nord-Ouest, se sont formés dans une contrée appelée la Nouvelle Calédonie, qui s’étend le long de la côte de l’Océan Pacifique, depuis le 49ᵉ jusqu’ au 60ᵉ degré de latitude septentrionale.

La Russie ne parlera point des établissements qui peuvent exister-entre le 49ᵉ et le 51ᵉ parallèle; mais quant aux autres, elle n’hésite pas de convenir qu’elle en ignore jusqu’a presentl existence, pour autant aumoins qu’ ils toucberaient l’Océan Pacifique.

Les cartes Anglaises même les plus récentes et les plus détaillées n’indiquent absolument aucune des stations de commerce mentionnées dans le Mémoire du 17 Octobre, sur la côte meme de l’Amérique, entre le 51ᵉ et le 60ᵉ degré de latitude septentrionale.

D’ailleurs, depuis les expéditions de Behring et de Tchirikorf, c’est-à-dire depuis près d’un siècle, des établissements Russes ont pris, à partir du 60ᵉ degré, une extension progressive, qui dès l’année 1799 les avait fait parvenir jusqu’au 55ᵉ parallèle, comme le porte la première charte de la Compagnie Russe-Américaine, charte qui a reçu dans le temps une publicité officielle, et qui n’a motive aucune protestation de la part de l’Angleterre.

Cette même charte accordait à la Compagnie Russe le droit de porter ses établissements vers le midi au delà du 55ᵉ degré de latitude septentrionale, pourvu que de tels accroissements de territoire ne pussent donner motif de réclamation à aucune Puissance étrangère.

L’Angletefre n’a pas non plus protesté contre cette disposition; elle n’a pas même réclamé contre les nouveaux établissements que la Compagnie Russe-Américaine a pu former au sud du 55ᵉ degré, en vertu de ce privilège.

La Russie était done pleinement autorisée a profiter d’un consentement qui, pour être tacite, n’en était pas moins solennel, et à déterminer pour bornes de ses domaines le degré de latitude jusqu’auquel la Compagnie Russie avait étendu ses opérations depuis 1799.

Quoiqu’il en soit, et quelque force que ces circonstances prêtent aux titres de la Russie, Sa Majesté Impériale ne déviera point dans cette conjuncture du système habituel de sa politique.

Le premier de ses vœux sera toujours de prévenir toute discussion, et de consolider de plus en plus les rapports d’amitié et de parfaite intelligence qu’elle se félicite d’entretenir avec la Grande Bretagne.

En conséquence l’Empereur a chargé son Cabinet de déclarer à M. le Due de Wellington (sans que cette déclaration puisse préjudicier en rien à ses droits, si elle n’était point acceptée) qu’il est prêt a fixer, au moyen d’une négociation amicale, et sur la base des convenances mutuelles, les degrés de latitude et de longitude que les deux Puissances regarderont comme dernières limites de leurs possessions et de leurs etablissements sur la côte nordouest de l’Amérique.

Sa Majesté Impériale se plait à croire que cetta négociation pourra se terminer sans difficulté à la satisfaction réciproque des deux États; et le Cabinet de Russie peut assurer dès à prè à présent M. le Due de Wellington que les mesures de précaution et de surveillance qui seront prises alors sur la partie Russie de la côte d’ Amérique se trouveront entièrement conformes aux droits dérivant de la souveraineté, ainsi qu’-aux usages établis entre nations, et qu’aucune plainte légitime ne pourra s’élever contre elles.

[Inclosure 6.]

The Duke of Wellington to Mr. G. Canning.

Verona, November 28, 1822.

Sir: I inclose the copy of a confidential memorandum which I gave to Count Nesselrode on the 17th October, regarding the Russian Ukase, and the copy of his answer.

I have had one or two discussions with Count Lieven upon this paper, to which I object, as not enabling His Majesty’s Government to found upon it any negotiation to settle the questions arising out of the Ukase, which have not got the better of these difficulties; and I inclose yon the copy of a letter which I have written to Count Lieven, which explains my objections to the Russian “Mémoire Confidentiel.” This question, then, stands exactly where it did. I have not been able to do anything upon it.

I have, &c.

Wellington.

[Inclosure 7.]

The Duke of Wellington to Count Lieven.

Verona, November 28, 1822.

M. le Comte, Having considered the paper which your Excellency gave me last night, on the part of his Excellency Count Nesselrode, on the subject of our discussions on the Russian Ukase, I must inform you that I can not consent, on the part of my Government, to found on that paper the negotiation for the settlement of the question which has arisen between the two Governments on this subject.

We object to the ukase on two grounds: (1) That His Imperial Majesty assumes thereby an exclusive sovereignty in North America, of which we are hot prepared to acknowledge the existence or the extent; upon this point, however, the memoir of Count Nesselrode does afford the means of negotiation; and my government will be ready to discuss it, either in London or St. Petersburg, whenever the state of the discussions on the other question arising out of the ukase will allow of the discussion.

The second ground on which we object to the ukase is that His Imperial Majesty thereby excludes from a certain considerable extent of the open sea vessels of other nations. We contend that the assumption of this power is contrary to the law of nations; and we can not found a negotiation upon a paper in which it is again broadly asserted. We contend that no power whatever can exclude another from the use of the open sea; a power can exclude itself from the navigation of a certain coast, sea, etc., by its own act or engagement, but it can not by right be excluded by another. This we consider as the law of nations; and we can not negotiate upon a paper in which a right is asserted inconsistent with this principle.

I think, therefore, that the best mode of proceeding would be that you should state your readiness to negotiate upon the whole subject, without restating the objectionable principle of the ukase which we can not admit.

I have, etc.

Wellington.

[Inclosure 8.]

The Duke of Wellington to Mr. G. Canning.

Verona, November 29, 1822.

Sir: Since I wrote to you yesterday I have had another conversation with the Russian minister regarding the ukase. It is now settled that both the memorandums which I inclosed to you should be considered as non avenus, and the Russian ambassador in London is to address you a note in answer to that of the late Lord Londonderry, assuring you of the desire of the Emperor to negotiate with you upon the whole question of the Emperor’s claims in North America, reserving them all if the result of the negotiation should not be satisfactory to both parties.

This note will then put this matter in a train of negotiation, which is what was wished.

I have, etc.,

Wellington.

[Inclosure 9.]

Count Lieven to Mr. G. Canning.

A la suite des declarations verbales que le Soussigné, Ambassadenr Extraordinaire et Plénipotentiaire de Sa Majesté l’Einpereur de toutes les Russies, a faites au Mimstère de Sa Majesté Britannique, le Cabinet de St. James a dû se convaincre que si des objections s’étaient élevées contre le Règlement publié au nom de Sa Majesté l’Empereur de toutes les Russies sous la date du 4 (16) Septembre 1821, les mesures ultérieures adoptées par Sa Majesté Impériale ne laissent aucun doute sur la pureté de ses vues et sur le désir qu’elie aura toujours de concilier ses droits et ses intérêts avec les intérêts et les droitê des Puissances auxquelles l’unissent les liens d’une amitié véritable et d’une bienveillance réciproque.

Avant de quitter Vérone, le Soussigné a reçu 1’ordre de donner au Gouvernement de Sa Majesté Britannique une nouvelle preuve des dispositions connues de l’Enipereur, en proposant à son Excellence M. Canning, Principal Secrétaire d’État de Sa Majesté Britannique pour les Affaires Étrangères, sans que cette proposition puisse porter atteinte aux droits de Sa Majesté Impériale, si elle n’est pas acceptée, que de part et d’autre la question de droit strict soit provisoirement écartée, et que tous les différends auxquels a donné lieu le Règlement dont il s’agit, s’applanissent par un arrangement amical fondé sur le seul principe des convenances mutuelles et qui serait négoeié à St.-Pétersbourg.

L’Empereur se flatte que Sir Charles Bagot ne tardera point à recevoir les pouvoirs et les instructions nécessaires à cet effet, et que la proposition du Soussigné achèvera de démontrer au Gouvernement de Sa Majesté Britannique combien Sa Majesté Impériale souhaite qu’aucune divergence d’opinion ne puisse subsister entre la Russie et la Grande-Bretagne, et que le plus parfait accord continue de présider à leurs relations.

Le Soussigné, etc.,

Lieven.

Londres, le 19 (31) Janvier 1823.

[Inclosure 10.]

Mr. G. Canning to Sir C. Bagot

Foreign Office, February 5, 1823.

No. 1.]

Sir: With respect to my dispatch No. 5 of the 31st December last, transmitting to your excellency the copy of an instruction addressed to the Duke of Wellington, as well as a dispatch from his grace dated Verona, the 29th November last, both upon the subject of the Russian ukase of September, 1821, I have now to inclose to your excellency the copy of a note which has been addressed to me by Count Lieven, expressing His Imperial Majesty’s wish to enter into some amicable arrangement for bringing this subject to a satisfactory termination, and requesting that your excellency may be furnished with the necessary powers to enter into negotiation for that purpose with His Imperial Majesty’s ministers at St. Petersburg.

I avail myself of the opportunity of a Russian courier (of whose departure Count Lieven has only just apprised me) to send this note to your excellency, and to desire that your excellency will proceed to open the discussion with the Russian minister upon the basis of the instruction to the Duke of Wellington.

I will not fail to transmit to your excellency full powers for the conclusion of an agreement upon this subject, by a messenger whom I will dispatch to you as soon as I shall have collected any further information which it may be expedient to furnish to your excellency, or to found any further instruction upon that may be necessary for your guidance in this important negotiation.

I am, etc.,

Geo. Canning.

[Inclosure 11.]

Mr. Lyall to Mr. G. Canning.—(Received November 24.)

Shipowners’ Society, New Broad Street, November 19, 1823.

Sir: In the month of June last you were pleased to honor me with an interview on the subject of the Russian ukase prohibiting foreign vessels from touching at or approaching the Russian establishments along the northwest coast of America therein mentioned, when you had the goodness to inform me that a representation had been made to that government, and that you had reason to believe that the ukase would not be acted upon; and very shortly after this communication I was informed, on what I considered undoubted authority, that the Russian Government had consented to withdraw that unfounded pretension.

The committee of this society being about to make their annual report to the shipowners at large, it would be satisfactory to them to be able to state therein that official advices have been received from St. Petersburg that the ukase had been annulled; and should that be the case, I have to express the hope of the committee to be favored with a communication from you to that effect.

I have, etc.,

George Lyall,
Chairman of Shipowner’s Committee.

[Inclosure 12.]

Lord F. Conyngham to Mr. Lyall.

Foreign Office, November 26, 1823.

Sir: I am directed by Mr. Secretary Canning to acknowledge the receipt of your letter of the 19th instant, expressing a hope that the ukase of September, 1821, had been annulled.

Mr. Canning can not authorize me to state to you in distinct terms that the ukase has been annulled, because the negotiation to which it gave rise is still pending, embracing as it does many points of great intricacy as well as importance.

But I am directed by Mr. Canning to acquaint you that orders have been sent out by the court of St. Petersburg to their naval commanders calculated to prevent any collision between Russian ships and those of other nations, and in effect suspending the ukase of September, 1821.

I am, etc.,

F. Conyngham.

[Inclosure 13.—Extract.]

Mr. G. Canning to Sir C. Bagot.

Foreign Office, January 20, 1824.

A long period has elapsed since I gave your excellency reason to expect additional instructions for your conduct in the negotiation respecting the Russian ukase of 1821.

That expectation was held out in the belief that I should have to instruct you to combine your proceedings with those of the American minister, and the framing such instructions was, of necessity, delayed until Mr. Rush should be in possession of the intentions of his Government upon the subject.

* * * * * * *

It remains, therefore, only for me to direct your Excellency to resume your negotiation with the court of St. Petersburgh at the point at which it was suspended in consequence of the expected accession of the United States, and to endeavor to bring it as speedily as possible to an amicable and honorable conclusion.

The questions at issue between Great Britain and Russia are short and simple. The Russian ukase contains two objectionable pretensions: first, an extravagant assumption of maritime supremacy; secondly, an unwarranted claim of territorial dominion.

As to the first, the disavowal of Russia is, in substance, all that we could desire. Nothing remains for negotiation on that head but to clothe that disavowal in precise and satisfactory terms. We would much rather that those terms should be suggested by Russia herself than have the air of pretending to dictate them. You will, therefore, request Count Nesselrode to furnish you with his notion of such a declaration on this point as may be satisfactory to your Government. That declaration may be made the preamble of the convention of limits.

* * * * * * *

[Inclosure 14.]

Mr. G. Canning to Sir C. Bagot.

Foreign Office, July 24, 1824.

No. 29.—Extract.]

The “projet” of a convention which is inclosed in my No. 26 having been communicated by me to Count Lieven, with a request that his excellency would note any points in it upon which he conceived any difficulty likely to arise, or any explanation to be necessary, I have received from his excellency the memorandum a copy of which is herewith inclosed.

Your excellency will observe that there are but two points which have struck Count Lieven as susceptible of any question; the first, the assumption of the base of the mountains, instead of the summit, as the line of boundary; the second the extension of the right of navigation of the Pacific to the sea beyond Behring’s Straits.

* * * * * * *

As to the second point, it is perhaps, as Count Lieven remarks, new. But it is to be remarked, in return, that the circumstances under which this additional security is required will be new also.

By the territorial demarcation agreed to in this “projet” Russia will become possessed, in acknowledged sovereignty, of both sides of Behring’s Straits.

The power which could think of making the Pacific a mare clausum may not unnaturally be supposed capable of a disposition to apply the same character to a strait comprehended between two shores, of which it becomes the undisputed owner. But the shutting up of Behring’s Straits, or the power to shut them up hereafter, would be a thing not to be tolerated by England.

Nor could we submit to be excluded, either positively or constructively, from a sea in which the skill and science of our seamen has been and is still employed in enterprises interesting not to this country alone but the whole civilized world.

The protection given by the convention to the American coasts of each power may (if it is thought necessary) be extended in terms to the coasts of the Russian Asiatic territory; but in some way or other, if not in the form now presented, the free navigation of Behring’s Straits, and of the seas beyond them, must be secured to us.

[Inclosure 15.]

Mr. G. Canning to Mr. S. Canning.

Foreign Office, December 8, 1824.

No. I.—Extract.]

His Majesty having been graciously pleased to name you his plenipotentiary for concluding and signing with the Russian Government a convention for terminating the discussions which have arisen out of the promulgation of the Russian ukase of 1821, and for settling the respective territorial claims of Great Britain and Russia on the northwest coast of America, I have received His Majesty’s commands to direct you to repair to St. Petersburg for that purpose, and to furnish you with the necessary instructions for terminating the long-protracted negotiation.

The correspondence which’ has already passed upon this subject has been submitted to your perusal. And I inclose you a copy—

1. Of the “projet” which Sir Charles Bagot was authorized to conclude and sign some months ago, and which we had every reason to expect would have been entirely satisfactory to the Russian Government.

2. Of a “contre-projet” drawn up by the Russian plenipotentiaries, and presented to Sir Charles Bagot at their last meeting before Sir Charles Bagot’s departure from St. Petersburg.

3. Of a dispatch from Count Nesselrode, accompanying the transmission of the “contre-projet” to Count Lieven.

In that dispatch, and in certain marginal annotations upon the copy of the “pro-jet,” are assigned the reasons of the alterations proposed by the Russian plenipotentiaries.

In considering the expediency of admitting or rejecting the proposed alterations, it will be convenient to follow the articles of the treaty in the order in which they stand in the English “projet.”

You will observe in the first place that it is proposed by the Russian plenipotentiaries entirely to change that order, and to transfer to the latter part of the instrument the article which has hitherto stood first in the “projet.”

To that transposition we can not agree, for the very reason which Count Nesselrode alleges in favor of it, viz, that the “economic,” or arrangement of the treaty, ought to have reference to the history of the negotiation.

The whole negotiation grows out of the ukase of 1821.

So entirely and absolutely true is this proposition, that the settlement of the limits of the respective possessions of Great Britain and Russia on the northwest coast of America was proposed by us only as a mode of facilitating the adjustment of the difference arising from the ukase, by enabling the court of Russia, under cover of the more comprehensive arrangement, to withdraw, with less appearance of concession, the offensive pretensions of that edict.

It is comparatively indifferent to us whether we hasten or postpone all questions respecting the limits of territorial possession on the continent of America; but the pretensions of the Russian ukase of 1821 to exclusive dominion over the Pacific could not continue longer unrepealed without compelling us to take some measure of public and effectual remonstrance against it.

You will therefore take care, in the first instance, to repress any attempt to give this change to the character of the negotiation; and will declare without reserve that the point to which alone the solicitude of the British Government and the jealousy of the British nation may attach any great importance is the doing away (in a manner as little disagreeable to Russia as possible) of the effect of the ukase of 1821.

That this ukase is not acted upon, and that instructions have been long ago sent by the Russian Government to their cruisers in the Pacific to suspend the execution of its provisions, is true; but a private disavowal of a published claim is no security against the revival of that claim; the suspension of the execution of a principle may be perfectly compatible with the continued maintenance of the principle itself, and when we have seen in the course of this negotiation that the Russian claim to the possession of the coast of America down to latitude 59° rests, in fact, on no other ground than the presumed acquiescence of the nations of Europe in the provisions of an ukase published by the Emperor Paul in the year 1800, against which it is affirmed that no public remonstrance was made, it becomes us to be exceedingly careful that we do not, by a similar neglect on the present occasion, allow a similar presumption to be raised as to an acquiescence in the ukase of 1821.

The right of the subjects of His Majesty to navigate freely in the Pacific can not be held as matter of indulgence from any power. Having once been publicly questioned, it must be publicly acknowledged.

We do not desire that any distinct reference should be made to the ukase of 1821; but we do feel it necessary that the statement of our right should be clear and positive, and that it should stand forth in the convention in the place which properly belongs to it as a plain and substantive stipulation, and not be brought in as an incidental consequence of other arrangements to which we attach comparatively little importance.

This stipulation stands in the front of the convention concluded between Russia and the United States of America; and we see no reason why, upon similar claims, we should not obtain exactly the like satisfaction.

For reasons of the same nature we can not consent that the liberty of navigation through Behring’s Straits should be stated in the treaty as a boon from Russia.

The tendency of such a statement would be to give countenance to those claims of exclusive jurisdiction against which we, on our own behalf and on that of the whole civilized world, protest.

No specification of this sort is found in the convention with the United States of America; and yet it can not be doubted that the Americans consider themselves as secured in the right of navigating Behring’s Straits and the sea beyond them.

It can not be expected that England should receive as a boon that which the United States hold as a right so unquestionable as not to be worth recording.

Perhaps the simplest course, after all, will be to substitute, for all that part of the “projet” and “contre-projet” which relates to maritime rights, and to navigation, the first two articles of the convention already concluded by the court of St. Petersburg with the United States of America, in the order in which they stand in that convention.

Russia can not mean to give to the United States of America what she withholds from us, nor to withhold from us anything that she has consented to give to the United States.

The uniformity of stipulations in pari materiâ gives clearness and force to both arangements, and will establish that footing of equality between the several contracting parties which it is most desirable should exist between three powers whose interests come so nearly in contact with each other in a part of the globe in which no other power is concerned.

This, therefore, is what I am to instruct you to propose at once to the Russian minister as cutting short an otherwise inconvenient discussion.

This expedient will dispose of Article I of the “Projet,” and of Articles V and VI of the “Contre-Projet.”

The next articles relate to the territorial demarcation.

* * * * * * *

With regard to the port of Sitka or New Archangel, the offer came originally from Russia, but we are not disposed to object to the restriction which she now applies to it.

We are content that the port shall be open to us for ten years, provided only that if any other nation obtains a more extended term, the like term shall be extended to us also.

We are content also to assign the period of ten years for the reciprocal liberty of access and commerce with each other’s territories, which stipulation may he best stated precisely in the terms of Article IV of the American convention.

These, I think, are the only points in which alterations are required by Russia, and we have no other to propose.

A “projet,” such as it will stand according the observations of this dispatch, is inclosed, which you will understand as furnished to you as a guide for the drawing up of the convention; but not as prescribing the precise form of words, nor fettering your discretion as to any alterations, not varying from the substance of these instructions.

It will, of course, strike the Russian plenipotentiaries that by the adoption of the American article respecting navigation, etc., the provision for an exclusive fishery of two leagues from the coasts of our respective possessions falls to the ground.

But the omission is, in truth, immaterial. The law of nations assigns the exclusive sovereignty of one league to each power off its own coasts, without any specific stipulation, and though Sir Charles Bagot was authorized to sign the convention with the specific stipulation of two leagues, in ignorance of what had been decided in the American convention at the time, yet, after that convention has been some months before the world, and after the opportunity of reconsideration has been forced upon us by the act of Russia herself, we can not now consent, in negotiating de novo, to a stipulation which, while it is absolutely unimportant to any practical good, would appear to establish a contract between the United States and us to our disadvantage.

Count Nesselrode himself has frankly admitted that it was natural that we should expect, and reasonable that we should receive, at the hands of Russia, equal measure in all respects with the United States of America.

It remains only, in recapitulation, to remind you of the origin and principles of this whole negotiation.

It is not, on our part, essentially a negotiation about limits. It is a demand of the repeal of an offensive and unjustifiable arrogation of exclusive jurisdiction over an ocean of unmeasured extent; but a demand qualified and mitigated in its manner, in order that its justice may be acknowledged and satisfied without soreness or humiliation on the part of Russia.

We negotiate about territory to cover the remonstrance upon principle.

But any attempt to take undue advantage of this voluntary facility we must oppose.

If the present “projet” is agreeable to Russia, we are ready to conclude and sign the treaty. If the territorial arrangements are not satisfactory, we are ready to postpone them, and to conclude and sign the essential part—that which relates to navigation alone, adding an article stipulating to negotiate about territorial limits hereafter.

But we are not prepared to defer any longer the settlement of that essential part of the question; and if Russia will neither sign the whole convention nor that essential part of it, she must not take it amiss that we resort to some mode of recording, in the face of the world, our protest against the pretensions of the ukase of 1821, and of effectually securing our own interests against the possibility of its future operations.

[Inclosure 16.]

Mr. S. Canning to Mr. G. Canning.—(Received March 21.)

St. Petersburg, February 17 (March 1), 1825.

No. 15.

Sir: By the messenger Latchford I have the honor to send you the accompanying convention between His Majesty and the Emperor of Russia respecting the Pacific Ocean and northwest coast of America, which, according to your instructions, I concluded and signed last night with the Russian plenipotentiaries.

The alterations which, at their instance, I have admitted into the “projet,” such as I presented it to them at first, will be found, I conceive, to be in strict conformity with the spirit and substance of His Majesty’s commands. The order of the two main subjects of our negotiation, as stated in the preamble of the convention, is preserved in the articles of that instrument. The line of demarcation along the strip of land on the northwest coast of America, assigned to Russia, is laid down in the convention agreeably to your directions, notwithstanding some difficulties raised on this point, as well as on that which regards the order of the articles, by the Russian plenipotentiaries.

The instance in which you will perceive that I have most availed myself of the latitude afforded by your instructions to bring the negotiation to a satisfactory and prompt conclusion is the division of the third article of the new “projet,” as it stood when I gave it in, into the third, fourth, and fifth articles of the convention signed by the plenipotentiaries.

“This change was suggested by the Russian plenipotentiaries, and at first it was suggested in a shape which appeared to me objectionable; but the articles, as they are now drawn up, I humbly conceive to be such as will not meet with your disapprobation. The second paragraph of the fourth article had already appeared parenthetically in the third article of the “project,” and the whole of the fourth article is limited in its signification and connected with the article immediately preceding it by the first paragraph.

With respect to Behring Strait, I am happy to have it in my power to assure you, on the joint authority of the Russian plenipotentiaries, that the Emperor of Russia has no intention whatever of maintaining any exclusive claim to the navigation of those straits, or of the seas to the north of them.

It can not be necessary, under these circumstances, to trouble you with a more particular account of the several conferences which I have held with the Russian plenipotentiaries, and it is but justice to state that I have found them disposed, throughout this latter stage of the negotiation, to treat the matters under discussion with fairness and liberality.

As two originals of the convention prepared for His Majesty’s Government are signed by the plenipotentiaries, I propose to leave one of them with Mr. Ward for the archives of the embassy.

I have, etc.,

Stratford Canning.

1. Wharton’s International Law Digest, vol. i, §32.