Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 9, 1891

Lord Salisbury to Sir Julian Pauncefote.

[Transmitted to the Department by Sir Julian Pauncefote.]

Foreign Office, February 21, 1891.

No. 34.]

Sir: The dispatch of Mr. Blaine, under date of the 17th December, has been carefully considered by Her Majesty’s Government. The effect of the discussion which has been carried on between the two Governments has been materially to narrow the area of controversy. It is now quite clear that the advisers of the President do not claim Behring’s Sea as a mare clausum, and indeed that they repudiate that contention in expressed terms. Nor do they rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international Jaw, it would not otherwise possess. Whatever importance they attach to the preservation of the far-seal species—and they justly look on it as an object deserving the most serious solicitude—they do not conceive that it confers upon any maritime power rights over the open ocean which that power could not assert on other grounds.

The claim of the United States to prevent the exercise of the seal fishery by other nations in Behring’s Sea rests now exclusively upon the interest which by purchase they possess in a ukase issued by the Emperor Alexander I in the year 1821, which prohibits foreign vessels from approaching within 100 Italian miles of the coasts and islands then belonging to Russia in Behring’s Sea. It is not, as I understand, contended that the Russian Government, at the time of the issue of this ukase, possessed any inherent right to enforce such a prohibition, or acquired by the act of issuing it any claims over the open sea beyond the territorial limit of 3 miles, which they would not otherwise have possessed. But it is said that this prohibition, worthless in itself, acquired validity and force against the British Government because that Government can be shown to have accepted its provisions. The ukase was a mere usurpation; but it is said that it was converted into a valid international law as against the British Government by the admission of that Government itself.

I am not concerned to dispute the contention that an invalid claim may, as against another government, acquire a validity which in its inception it did not possess, if it is formally or effectively accepted by that government. But the vital question for decision is whether any other government, and especially whether the Government of Great Britain, has ever accepted the claim put forward in this ukase. Our contention is that not only can it not be shown that the Government of Great Britain, at any time since 1821, has admitted the soundness of the pretension put forward by that ukase, but that it can be shown that it has categorically denied it on more than one occasion. On the 18th January, 1822, four months after the issue of the ukase, Lord Londonderry, then British foreign secretary, wrote in the following terms to Count Lieven, the Russian ambassador in London:

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 maritime 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.

On the 17th October, in the same year, the Duke of Wellington, ambassador at Verona, addressed to Count Nesselrode a note containing the following words:

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.

Again, on the 28th November, 1822, the Duke of Wellington addressed a note to Count Lieven containing the following words:

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.

It is evident, therefore, that so far as diplomatic representation went, the King’s Government of that date took every step which it was in their power to take in order to make it clear to the Russian Government that Great Britain did not accept the claim to exclude her subjects for 100 miles distance from the coast, which had been put forward in the ukase of 1821.

Mr. Blaine does not deal with these protests, which appear to Her Majesty’s Government to be in themselves amply sufficient to decide the question, whether Great Britain did or did not acquiesce in the Russian claim put forward by the ukase. He confines himself mainly, in the dispatch under consideration, to the consideration of the treaties which were subsequently made between Great Britain and Russia and America and Russia in the year 1825; and especially of that between Russia and Great Britain. This treaty, of which the text is printed at the close of Mr. Blaine’s dispatch, does not contain a word to signify the acquiescence of Great Britain in the claim recently put forward by Russia to control the waters of the sea for 100 miles from her coast. There is no stipulation upon which this interpretation can be imposed by any process of construction whatsoever. But there is a provision having in our judgment a totally opposite tendency, which indeed was intended to negative the extravagant claim that had recently been made on the part of Russia; audit is upon this provision that the main part of Mr. Blaine’s argument, as I understand it, is founded. The stipulation to which I refer is contained in the first article, and runs as follows:

Article 1. It is agreed that the respective subjects of the high contracting parties shall not be troubled or molested in any part of the ocean, commonly called the Pacific Ocean, either in navigating the same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following articles.

I understand Mr. Blaine’s argument to be that if Great Britain had intended to protest against the claim of Russia to exclude ships for 100 miles from her coasts in Behring’s Sea she would have taken this opportunity of doing so; but that in confining herself to stipulations in favor of fall liberty of navigation and fishing in any part of the ocean, commonly called the Pacific Ocean, she, by implication, renounced any claim that could arise out of the same set of circumstances in regard to any sea that was not part of the Pacific Ocean. And then Mr. Blaine goes on to contend that the phrase “Pacific Ocean” did not and does not include Behring’s Sea.

Even if this latter contention were correct, I should earnestly demur to the conclusion that our inherent rights to free passage and free fishing over a vast extent of ocean could be effectively renounced by mere reticence or omission. The right is one of which we could not be deprived unless we consented to abandon it, and that consent could not be sufficiently inferred from our negotiators having omitted to mention the subject upon one particular occasion.

But I am not prepared to admit the justice of Mr. Blaine’s contention that the words “Pacific Ocean” did not include Behring’s Sea. I believe that in common parlance, then and now, Behring’s Sea was and is part of the Pacific Ocean; and that the latter words were used in order to give the fullest and widest scope possible to the claim which the British negotiators were solemnly recording of a right freely to navigate and fish in every part of it, and throughout its entire extent. In proof of the argument that the words “Pacific Ocean” do not include Behring’s Sea, Mr. Blaine adduces a long list of maps in which a designation distinct from that of “Pacific Ocean” is given to Behring’s Sea; either “Behring’s Sea” or “Sea of Kamschatka “or the “Sea of Anadir.” The argument will hardly have any force unless it is applicable with equal truth to all the other oceans of the world. But no one will dispute that the Bay of Biscay forms part of the Atlantic Ocean, or that the Gulf of Lyons forms part of the Mediterranean Sea; and yet in most maps it will be found that to those portions of the larger sea a separate designation has been given. The question whether by the words “Pacific Ocean” the negotiators meant to include or to exclude Behring’s Sea depends upon which locution was esteemed to be correct usage at the time. The date is not a distant one, and there is no ground for suggesting that the usage has changed since the Anglo-Russian treaty of 1825 was signed. The determination of this point will be most satisfactorily ascertained by consulting the ordinary books of reference. I append to this dispatch a fist of some thirty works of this class, of various dates from 1795 downwards, and printed in various countries, which combine to show that, in customary parlance, the words “Pacific Ocean” do include Behring’s Sea.

If, then, in ordinary language, the Pacific Ocean is used as a phrase including the whole sea from Behring’s Straits to the Antarctic Circle, it follows that the first article of the treaty of 1825 did secure to Great Britain in the fullest manner the freedom of navigation and fishing in Behring’s Sea. In that case no inference, however direct or circuitous, can be drawn from any omission in the language of that instrument to show that Great Britain acquiesced in the usurpation which the ukase of 1821 had attempted. The other documents which I have quoted sufficiently establish that she not only did not acquiesce in it, but repudiated it more than once in plain and unequivocal terms; and as the claim made by the ukase has no strength or validity except what it might derive from the assent of any power whom it might affect, it results that Russia has never acquired by the ukase any right to curtail the natural liberty of Her Majesty’s subjects to navigate or fish in these seas any where outside territorial waters. And what Russia did not herself possess she was not able to transmit to the United States.

Her Majesty’s Government have, in view of these considerations, no doubt whatever that British subjects enjoy the same rights in Behring’s Sea which belong to them in every other portion of the open ocean; but it is, nevertheless, a matter of sincere satisfaction that the President is willing to refer to arbitration what he conceives to be the matters which have been under discussion between the two Governments for the last four years. In regard to the questions as they are proposed by Mr. Blaine, I should say that as to the first and second no objection will be offered by Her Majesty’s Government. They are as follows:

(1) What exclusive jurisdiction in the sea now known as the Behring’s Sea, and what exclusive rights in the seal fisheries therein did Russia assert and exercise prior and up to the time of the cession of Alaska to the United States?

(2) How far were these claims of jurisdiction as to the seal fisheries recognized and conceded by Great Britain?

The third question is expresed in the following terms:

Was the body of water now known as the Behring’s Sea included in the phrase “Pacific Ocean” as used in the treaty of 1825 between Great Britain and Russia; and what rights (if any) in the Behring’s Sea were given or conceded to Great Britain by the said treaty?

Her Majesty’s Government would have no objection to referring to arbitration the first part of that question, if it should be thought desirable to do so but they would give that consent with the reservation that they do not admit that the decision of it can conclude the larger questions which the arbitrator would have to determine. To the latter part of No, 3 it would be their duty to take exception:

What rights, if any, in the Behring’s Sea were given or conceded to Great Britain by the said treaty?

Great Britain has never suggested that any rights were given to her or conceded to her by the said treaty. All that was done was to recognize her natural right of free navigation and fishing in that as in all other parts of the Pacific Ocean. Russia did not give those rights to Great Britain, because they were never hers to give away.

(4) Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in Behring’s Sea east of the water boundary in the treaty between the United States and Russia of the 30th March, 1867, pass unimpaired to the United States under that treaty?

This fourth question is hardly worth referring to an arbitrator, as Great Britian would be prepared to accept it without dispute.

The fifth proposed question runs as follows:

(5) What are now the rights of the United States as to the fur-seal fisheries in the waters of the Behring’s Sea outside of the ordinary territorial limits; whether such rights grow out of the cession by Russia of any special rights or jurisdiction held by her in such fisheries or in the waters of Behring’s Sea, or out of the ownership of the breeding islands, and the habits of the seals in resorting thither and rearing their young thereon, and going out from the islands for food, or out of any other fact or incident connected with the relation of those seal fisheries to the territorial possessions of the United States?

The first clause, “What are now the rights of the United States as to the fur-seal fisheries in the waters of the Behring’s Sea outside of the ordinary territorial limits?” is a question which would be very properly referred to the decision of an arbitrator. But the subsequent clause, which assumes that such rights could have grown out of the ownership of the breeding islands and the habits of the seals in resorting thereto, involves an assumption as to the prescriptions of international law at the present time to which Her Majesty’s Government are not prepared to accede. The sixth question, which deals with the issues that will arise in case the controversy should be decided in favor of Great Britain, would perhaps more fitly form the substance of a separate reference. Her Majesty’s Government have no objection to refer the general question of a close time to arbitration, or to ascertain by that means how far the enactment of such a provision is necessary for the preservation of the seal species; but any such reference ought not to contain words appearing to attribute special and abnormal rights in the matter to the United States.

There is one omission in these questions which I have no doubt the Government of the President will be very glad to repair; and that is the reference to the arbitrator of the question what damages are due to the persons who have been injured, in case it shall be determined by him that the action of the United States in seizing British vessels has, been without warrant in international law. Subject to these reservations, Her Majesty’s Government will have great satisfaction in joining with the Government of the United States in seeking by means of arbitration an adjustment of the international questions which have so long formed a matter of controversy between the two Governments.

I have to request that you will read this dispatch to Mr. Blaine, and leave a copy of it with him should he desire it.

I am, etc.,

Salisbury.

Appendix.

Malham, John (Naval Gazetteer, 1795): Kamsehatka Sea is a large branch of the Oriental or North Pacific Ocean.

Beering’s Straits, which is the passage from the North Pacific Ocean to the Arctic Sea.

Brookes, R. (General Gazetteer, 1802): Beering’s Island. An island in the Pacific Ocean. [Behring’s Island is in Behring’s Sea.]

Kamsehatka. Bounded east and south by Pacific.

Montefiore (Commercial Dictionary, 1803): Kamtschatka. Bounded on the north by the country of the Koriacs, on the east and southby the North Pacific Ocean, and on the west by the Sea of Okotsk.

Geographical Dictionary, London, 1804: Beering’s Island. In the North Pacific Ocean.

Cruttwell, C. (New Universal Gazetteer, 1808): Beering’s Island. An island in the North Pacific Ocean.

Kamtchatka. River, which runs into the North Pacific Ocean.

Kamtchatka. Peninsula, bounded on the east and south by the North Pacific Ocean.

Mangnall, R. (Compendium of Geography, 1815): Islands in the Eastern or Great Pacific Ocean: Bhering’s Isle.

Galletti, J. G. A. (Geographisches Wörterbuch, Pesth, 1822): Stilles Meer. Vom 5 nördl. Bran bis zur Beringsstrasse aufwarts stets heftige Stürme. [Behring’s Strait is at the northern extremity of Behring’s Sea.]

Edinburgh Gazetteer (edition 1822, vol. i, p. 432): Behring’s Island. An island in the North Pacific Ocean.

General Gazetteer, London, 1823: Beering’s Island. In the North Pacific Ocean.

New London Universal Gazetteer, 1826: Beering’s Island. In the Pacific.

Dictionnaire Géographique Universel, 1828: Mer Pacifique. II s’étend du nord au sud depuis le Cercle Polaire Arctique, c’est-à-dire, depuis le Détroit de Behring, qui le fait communiquér à l’océan Glacial Austral.

Seitz, Dr. J. C. (Geographisehes-StatistischesHandwörterbuch, Halberstadt, 1829): Stilles Meer. Vom 30 südlicher Breite bis zum 5 nördlicher Breite verdient es durch seine Heiterkeit und Stille den namen des Stillen Meers; von da an bis zur Beringsstrasse ist es heftigen Stürmen unterworfen.

Penny National Library: Geography and Gazetteer, 1830: Beering’s Island. In the North Pacific Ocean.

Arrowsmith (Grammar of Modern Geography, 1832; Bhering’s Strait connects the Frozen Ocean with, the Pacific.

The Anadir flows into the Pacific Ocean.

The principal gulfs of Asiatic Russia are: the Gulf of Anadir, near Bhering’s Strait; the Sea of Penjina, and the Gulf of Okhotsk, between Kamtchatka and the mainland of Russia—all three in the Pacific Ocean.

Précis de la Géographie Universelle, par Malte-Brun, vol. 2, p. 181, edition 1835: L’Oéan Pacifique Boréal s’étend depuis le Détroit de Behring jusqu’au tropique de Cancer.

Précis de la Géographie Universelle, par Malte-Brun, vol. 8, p. 4: Le Détroit de Behring. A commencer par ce détroit, le Grand Océan (ou Océan Pacifique) forme la limite orientale de l’Asie.

Langlois (Dictionnaire de Géographie, 1838): Behring (Détroit célèbre). II joint I’Océan Glacial Arctique au Grand Océan.

Penny Cyclopædia, 1840: The Pacific Ocean. Its boundary line is pretty well determined by the adjacent continents, which approach one another towards the north, and at Behring’s Strait, which separates them, are only about 36 miles apart. This strait may be considered as closing the Pacific on the north.

Dictionnaire Universel d’Histoire et de Géographie, par M. N. Bouillet, Paris, 1842: Behring (Détroit de) à I’extrémité nord-est de l’Asie, sépare ce Continent de l’Amérique et l’Océan Glacial Arctique de l’Océan Pacifique.

Behring (Mer de), partie de l’Océan Pacifique.

Dictionnaire Géographique et Statistique par Adrien Guibert, Paris, 1850: Behring (Détroit de). Canal de l’Océan * * * unissant les eaux de l’Océan Pacifique à celles de l’Océan Arctique.

The New American Cyclopædia, edited by George Ripley and Charles A. Dana, New York, 1851: Pacific Ocean. Between longitude 70° west and 110° east, that is for a space of over 180°—it covers the greater part of the earth’s surface, from Behring’s Straits to the Polar Circle, that separates it from the Antarctic Ocean.

Grand Dictionnaire de Geographic Universelle, par M. Bescherelle Aîné, 4 vols., 1855: Behring (Détroit de). Canal du Grand Océan unissant les eaux de l’océan Pacifique à celles de l’océan Glacial Arctique.

Imperial Gazetteer, 1855: Behring’s Sea, sometimes called the Sea of Kamtchatka, is that portion of the North Pacific Ocean lying between the Aleutian Islands and Behring’s Strait.

Fullarton’s Gazetteer of the World, 1856: Behring’s Island. An island in the North Pacific Ocean.

Cyclopædia of Geography, by Charles Knight, 1856: Behring’s Strait, which connects the Pacific with the Arctic Ocean, is formed by the approach of the continents of America and Asia.

McCulloch’s Geographical Dictionary, edited by F. Martin, 1866: Pacific Ocean. Its extreme southern limit is the Antarctic Circle, from which it stretches northward through 132 degrees of latitude to Behring’s Strait, which separates it from the Arctic Ocean.

Grand Dictionnaire Universel, par M. Pierre Labousse, Paris, 1867: Behring (Détroit de). Canal ou bras de mer unissant les eaux de l’Océan Glacial Arctique à celles de l’océan Pacifique.

Encyclopædia Britannica, 1875: Behring’s Strait. The narrow sea between the “northeast part of Asia and the northwest part of North America, connecting the North Pacific with the Arctic Ocean.

St.-Martin, Nouveau Dictionnaire de Géographie Universelle, Paris, 1879: Bering (Détroit de). Passage qui unit l’océan Glacial Arctique au Grand Océan.

Lippincott’s Gazetteer of the World, Philadelphia, 1880: Behring Sea, or Sea of Kamchatka, is that part of the North Pacific Ocean between the Aleutian Islands in latitude 55° north and Behring Strait in latitude 66° north, by which latter it communicates with the Arctic Ocean.

Bryce and Johnston, Cyclopædia of Geography, London and Glasgow, 1880; Behring, or Bhering. A strait, sea, island, and bay, North Pacific Ocean.

Brockhaus’ Conversations Lexicon, Leipzig, 1882: Bering’s Meer. Der nordöstlichste Teil des Stillen Ocean’s.

Ritter’s Geographisch-Statistisch Lexicon, Leipzig, 1883: Beringsstrasse. Meerenge das nordöstlichste Eismeer mit dem Stillen Ocean verbindend.

Pocket Encyclopaedia, Sampson Low, 1888: Behring’s Sea. North-east part of the Pacific between Asia and America.

Chamber’s Encyclopædia, 1888: Behring Strait connects the Pacific with the Arctic Ocean.

Behring Sea. A part of the Pacific Ocean, commonly known as the Sea of Kamchatka.

Blackie’s Modern Cyclopædia, 1889 edition: Behring’s Strait, connecting the North Pacific with the Arctic Ocean.

Behring’s Sea, sometimes called the Sea of Kamchatka, is that portion of the North Pacific Ocean lying between the Aleutian Islands and Behring’s Straits.

In support of his argument that the term “Pacific Ocean” was not understood at the time as including Behring’s Sea, Mr. Blaine has quoted a note which, it appears, was presented by the Russian minister at Washington after the ratification of the treaty of the 5th (17th) April, 1824, between the United States and Russia.

In this note Baron Tuyl stated that “the Aleutian Islands, the coasts of Siberia, and the Russian possessions in general on the northwest coast of America to 59° 30’ of north latitude were positively excepted from the liberty of hunting, fishing, and commerce stipulated in favor of United States citizens for ten years.” The rights alluded to could not be those contained in the first article of the treaty, which is unlimited in duration, but those of frequenting the interior seas, harbors, and creeks conferred by article iv.

Baron Tuyl grounded this construction of the treaty on the argument that “the coasts of Siberia are washed by the Sea of Okhotsk, the Sea of Kamsehatka, and the Icy Sea, and not by the South Sea mentioned in the first article of the convention” and that “the Aleutian Islands were also washed by the Sea of Kamsehatka or Northern Ocean.”

He added that “it was not the intention of Russia to impede the free navigation of the Pacific Ocean, and that she would be satisfied with causing to be recognized, as well understood and placed beyond all manner of doubt, the principle that beyond 59° 30’ no vessel could approach her coasts and islands, nor fish or hunt within the distance of 2 marine leagues.”^*

Mr. Adams, on being shown the draft of the note, stated to Baron Tuyl that, if it were presented, he should return an answer to the effect that “the construction of treaties depending here upon the judiciary tribunals, the Executive Government, even if disposed to acquiesce in that of the Russian Government, as announced by him (Baron Tuyl), could not be [? make it] binding upon the courts or upon this nation.” He went on to say that it would be much better not to present the note, as the United States merchants would not go to trouble the Russians on the coast of Siberia or north of the fifty-seventh degree of latitude, and it was wisest not to put such fancies into their heads.

The incident therefore shows nothing material to the present issue except that the Russian minister attempted in a note, which has hitherto been kept secret, to argue that the Behring’s Sea was not a part of the South Sea (a term which is not employed in the British treaty), and that Mr. Adams stated that, even if the United States Government were disposed to acquiesce in this view, they could not hind the nation or the courts to it.

On the other hand, the regulations of 1881, under which the American schooners Eliza and Henrietta were seized by the Russian authorities, are headed:

“Notice of order relative to commerce on Russian Pacific Coast.”

“Without a special permit or license from the governor-general of Eastern Siberia foreign vessels are not allowed to carry on trading, hunting, fishing, etc., on the Russian coasts or islands in the Okhotsk and Behring’s Seas, or on the northeastern coast of Asia, or within their sea boundary line.”

(Memorandum in Mr. Lothrop’s dispatch to Mr. Bayard of the 7th March, 1887, Ex. Doc. No. 106, Fiftieth Congress, second session, p. 271.)

M. de Giers, in his subsequent note of the 8th May, 1882, speaks of these regulations as “a notice published by our consul at Yokohama relative to fishing, hunting, and to trade in the Russian waters of the Pacific” (ibid., p. 262).

Mr. Frelinghuysen also speaks of the matter as “touching the Pacific coast fisheries” (ibid., p. 258.)

1. It does not appear, however, that the proposed limit of 2 leagues was observed or enforced, for in 1868 the Russian minister for foreign affairs, explaining the treatment of the American sealer “Java” in the Sea of Okhotsk, writes:

   “Considering that foreign sealers are forbidden by the laws in force to fish in the Russian gulfs and bays at a distance less than 3 miles from the shore.” (Mr. Westmann to Mr. Clay, 31st July, 1868. Ex. Doc. No. 106, Fiftieth Congress, second session, p. 253.)