No. 19.

Sir L. West to the Earl of Iddesleigh.-(Received November 26.)

My Lord, Washington, November 14, 1886. WITH reference to my despatch of the 21st ultimo, I have the honour to inclose to your Lordship herewith copy of a note which I have received from the Secretary of State, explaining and apologizing for the delay which has occurred in replying to my note of the 21st September last, asking for information respecting the seizure by the United States' Revenue cutter "Corwin," in the Behring's Sea, of British vessels, and noting the protest on the part of Her Majesty's Government against such seizures contained in my note of the 21st ultimo, copy of which was inclosed in my above, mentioned despatch.

I have, &c.

THE delay in my reply to your letters of the 27th September and 21st October, asking for the information in my possession concerning the seizure by the United States' Revenue cutter "Corwin," in the Behring's Sea, of British vessels for an alleged violation of the laws of the United States in relation to the Alaska seal fisheries, has been caused by my waiting to receive from the Treasury Department the information you desired. I tender this fact in apology for the delay and as the reason for my silence; and, repeating what I said verbally to you in our conversation this morning, I am still awaiting full and authentic Reports of the judicial trial and Judgment in the cases of the seizures referred to.

My application to my colleague the Attorney-General to procure an authentic Report of these proceedings was promptly made, and the delay in furnishing the Report doubtless has arisen from the remoteness of the place of trial.

As soon as I am enabled, I will convey to you the facts as ascertained in the trial, and the rulings of law as applied by the Court.

I take leave also to acknowledge your communication of the 21st October, informing me that you had been instructed by the Earl of Iddesleigh, Her Majesty's Principal Secretary of State for Foreign Affairs, to protest against the seizure of the vessels above referred to, and to reserve all rights of compensation. All of which shall receive respectful consideration.

I have, &c.

(Signed)

T. F. BAYARD.

No. 20.

(Telegraphic.)

The Earl of Iddesleigh to Sir L. West.

Foreign Office, December 6, 1886. CANADIAN Government inquire whether vessels equipping in British Columbia for Behring's Sea fisheries are exposed to seizure.

They seek assurance that no seizures of British vessels will be made beyond territorial waters of Alaska pending settlement of question.

No. 21.

(Extract.)

Sir L. West to the Earl of Iddesleigh.-(Received December 24.)

Washington, December 10, 1886.

I HAVE the honour to acknowledge the receipt of your Lordship's telegram of the 6th instant, and to inclose to your Lordship herewith copy of a note which I addressed to the Secretary of State in the sense of it.

Sir,

Inclosure in No. 21.

Sir L. West to Mr. Bayard.

Washington, December 7, 1886. REFERRING to your note of the 12th ultimo on the subject of the seizure of British vessels in the Behring's Sea, and promising to convey to me as soon as possible the facts as ascertained in the trial and the rulings of law as applied by the Court, I have the honour to state that vessels are now as usual equipping in British Columbia for fishing in that sea. The Canadian Government, therefore, in the absence of information, are desirous of ascertaining whether such vessels fishing in the open seas and beyond the territorial waters of Alaska would be exposed to seizure, and Her Majesty's Government at the same time would be glad if some assurance could be given that, pending the settlement of the question, no such seizures of British vessels will be made in Behring's Sea.

I have, &c.

Colonial Office to Foreign Office.-(Received January 5.)

Sil, Downing Street, January 4, 1887. WITH reference to previous correspondence respecting the seizure by the United States' Revenue-steamer "Corwin" of certain Canadian schooners engaged in the seal fishery in Behring's Sea, I am directed by Mr. Secretary Stanhope to transmit to you, for such further action in the matter as the Earl of Iddesleigh may think proper, a copy of a despatch from the Governor-General of Canada, inclosing copy of an approved Report of his Privy Council, explaining the views of the Dominion Government in the

matter.

Mr. Stanhope would be glad to receive a copy of any communication which Lord Iddesleigh may address to the United States' Government in consequence of this further representation from the Government of Canada on the subject.

I am, &c.

Sir,

Inclosure 1 in No. 22.

The Marquis of Lansdowne to Mr. Stanhope.

Government House, Ottawa, November 27, 1886. I HAVE the honour to inclose herewith copy of an approved Report of my Privy Council dealing with the recent seizure of the Canadian schooners "Caroline, "Onward," and "Thornton" by the United States' Revenue steamer "Corwin" while fishing for seals in Behring's Sea.

The statements contained in the Report are sufficient to establish that the claim now put forward on the part of the United States to the sole right of taking furbearing animals within the limits laid down in the Ist Article of the Treaty of 1867 is inconsistent with the rights secured to Great Britain under the Convention of 1825, and is in substance the same as that which, when advanced by the Russian Government on different occasions prior to the cession of Alaska by Russia to the United States, was either strenuously resisted or treated with ridicule and contempt by the Government of the latter Power.

It is impossible to believe that, when by the Convention of 1825 it was agreed that the subjects of Great Britain, as one of the Contracting Parties, should not be "troubled or molested in any part of the ocean commonly called the Pacific Ocean, either in navigating the same or in fishing therein," any reservation was intended with regard to that part of the Pacific Ocean known as Behring's Sea. The whole course of the negotiations by which this Convention and that between Russia and the United States of the same year were preceded-negotiations which, as pointed out in the Report, arose out of conflicting claims to these very waters-points to the contrary conclusion. It would, indeed, be difficult to condemn the present pretensions of the

United States' authorities in language more convincing or emphatic than that which, while those negotiations were in progress, was used by Mr. Middleton, then Russian Minister at St. Petersburgh, in his Memorandum dated the 13th December, 1823. (Vide American State Papers, Foreign Relations, vol. v, No. 384.)

It is laid down in that Memorandum that "the existence of territorial rights to the distance of 100 miles from the coasts upon two opposite continents, and the prohibition of approaching to the same distance from these coasts or from those of all the intervening islands, are innovations in the law of nations and measures unexampled. It must thus be imagined that this prohibition, bearing the pains of confiscation, applies to a long line of coasts with the intermediate islands, situate in vast seas where the navigation is subject to innumerable and unknown difficulties, and where the chief employment, which is the whale fishery, cannot be compatible with a regulated and well-determined course."

Mr. Middleton added that: "Universal usage, which has obtained the force of law, has established for all the coasts an accessory limit of a moderate distance, which is sufficient for the security of the country and for the commerce of its inhabitants, but which lays no restraint upon the universal rights of nations, nor upon the freedom of commerce and navigation."

Under the Treaty of 1867 Russia ceded to the United States "all the rights, franchises, and privileges" then belonging to her in the territory or dominion included within the limits described (vide Article VI), but could not cede a right which, in the express terms of the Treaty of 1825, was recognized as belonging to the subjects of the British Crown as well as to those of Russia.

This is, as far as I have been able to ascertain, the first occasion upon which claims of the kind now advanced have been enforced. Sealing-vessels from British Columbia have for some years past frequented the waters of Behring's Sea without molestation, and a letter, of which I inclose a copy, addressed by Mr. William Munsie, of Victoria, British Columbia, to my Minister of Marine and Fisheries, shows how serious will be the effect of this interference upon a well-established and important industry in which many British subjects have a substantial interest.

It is, I think, worth while to contrast the claims now urged by the Government of the United States to exclusive control over a part of the Pacific Ocean, the distance between the shores of which is, as was pointed out by Mr. Adams in 1822, not less than 4,000 miles, with the indignant remonstrances recently made by Mr. Bayard against the action of the Canadian authorities in warning United States' fishing-vessels from entering the territorial waters of the Dominion at points where those waters were only a few miles in width and throughout their whole extent in close proximity to Canadian territory. A warning of this kind, when given in respect of the Bay des Chaleurs, which measures about 18 miles at its mouth, was stigmatized by Mr. Bayard in his despatch of the 14th June, 1886, as a "wholly unwarranted pretension of extraterritorial authority," and as an "interference with the unquestionable rights of the American fishermen to pursue their business without molestation at any point not within 3 marine miles of the shore."

I would also draw your attention specially to the great hardship occasioned to the owners and crews of the seized vessels by the confiscation of their catch and by the imprisonment of some of the persons on board of them.

I understand that, owing to the amount of the fines imposed, which were so heavy that the owners have declined to pay them, the captains and mates of the seized vessels, though originally sentenced to thirty days' imprisonment, a term which has long since expired, are still detained. I may add, in explanation of the concluding passage in Mr. Munsie's letter, that Mr. Ogilvie, the captain of the "Caroline," while waiting at Ounalaska for the trial of his vessel, wandered off into the woods, in which it appears, from Mr. Munsie's statement, that he must have perished.

I have, &c. (Signed)

LANSDOWNE.

Inclosure 2 in No. 22.

Report of a Committee of the Honourable the Privy Council for Canada, approved by his Excellency the Governor-General in Council on November 27, 1886.

THE Committee of the Privy Council have had under consideration a communication from Mr. E. C. Baker, M.P., Vice-President of the British Columbia Board

British Columbia sealing fleet, asking information as to the United States' claim to the easterly half of Behring's Sea, as American waters, and also a despatch, dated the 26th August last, from the Lieutenant-Governor of British Columbia, advising of the seizure of the Canadian schooners "Caroline" and "Thornton," by the United States' Revenue steamer "Corwin," while engaged in sealing in Behring's Sea.

Also copy of a letter from Daniel Munroe, master of the Canadian sealing schooner "Onward," which has been already forwarded by his Excellency the Governor-General to the Colonial Office, and to Her Majesty's Minister at Washington.

The Sub-Committee of Council, to whom the papers were referred, observe that it appears that the schooners mentioned were Canadian vessels fitted out for the capture of seals in the North Pacific Ocean adjacent to Vancouver Island, Queen Charlotte Island, and Alaska; that they were peaceably pursuing their vocations on the high seas at a distance of some 70 miles from the nearest island, and more than 100 miles from the nearest mainland; that they were taken possession of by the United States' Revenue cutter "Corwin" on the 1st August last, and towed to the port of Ounalaska. The crews of the "Thornton" and "Caroline" (with the exception of the captain and one man on each vessel, who were detained at Ounalaska), were sent by steamer to San Francisco, and there turned adrift, while the men of the " Onward " were kept at Ounalaska. The schooners and the seals found on board of them were also detained by the United States' authorities.

The authority under which these seizures were made is apparently :

1. A letter of instructions from the Acting Secretary of the Treasury of the United States to Mr. D'Ancona, the Collector of Customs at San Francisco, dated the 12th March, 1881, with inclosures (A of Appendix).

2. A letter from the Secretary of the United States' Treasury to the Collector of Customs at San Francisco, dated the 16th March, 1886, confirming the instructions given to Mr. D'Ancona in 1881, and ordering publication of the same (B of Appendix).

3. The Revised Statutes of the United States, the 1596th Section of which prohibits the killing of fur-bearing animals within the limits of Alaska Territory, or in the waters thereof, and Sections 1960 and 1961 of which prohibit the killing of male seals, except at certain times, and under certain restrictions, and of female seals at any time, upon the Islands of St. Paul and St. George, or in the waters adjacent thereto.

The master and mate of the schooner "Thornton" were subsequently (the 13th August last) brought for trial before Judge Dawson, in the United States' District Court at Sitka.

The evidence given by the officers of the United States' Revenue cutter "Corwin " was to the effect that the "Thornton" was seized while in Behring's Sea, about 60 or 70 miles south-south-east of St. George's Island, for the offence of hunting and killing seals within that part of Behring's Sea which was ceded to the United States by Russia in 1867.

The Judge in his charge to the jury quoted the Ist Article of the Treaty of the 30th March, 1867, between Russia and the United States, in which the boundary of Alaska is defined as follows:

"The western limit, within which the territories and dominion conveyed are contained, passes through a point in Behring's Straits on the parallel of 65° 30' north latitude, at its intersection by the meridian which passes midway between the Island of Krusenstern or Igualook and the Island of Ratmanoff or Noonarbook, and proceeds due north, without limitation, into the same Frozen Ocean. The same western limit, beginning at the same initial point, proceeds then in a straight course nearly southwest through Behring's Straits and Behring's Sea, so as to pass midway between the north-west point of the Island of St. Lawrence and the south-east point of Cape Choukotski, to the meridian of 172° west longitude, thence from the intersection of that meridian in a south-westerly direction, so as to pass midway between the Island of Attou and the Copper Island of the Kormandorski couplet or group, in the North Pacific Ocean, to the meridian of 193° west longitude, so as to include in the territory conveyed the whole of the Aleutian Islands east of that meridian." Executive Documents, 2nd Session, 40th Congress, vol. xiii, document 177.

The Judge is reported to have gone on to say:

All the waters within the boundary set forth in this Treaty to the western end of the Aleutian Archipelago and chain of island, are to be considered as comprised within the waters of Alaska, and all the penalties prescribed by law against the killing of fur-bearing animals, must therefore attach against any violation of law within the limits before described.

“If, therefore, the jury believe from the evidence that the defendants did by themselves or in conjunction with others, on or about the time charged in the information, kill any otter, mink, martin, sable, or fur-seal, or other fur-bearing animal or animals, on the shores of Alaska, or in the Behring's Sea, east of the 193° of west longitude, the jury should find the defendants guilty, and assess their punishment separately, at a fine of not less than 200 dollars, nor more than 1,000 dollars, or imprisonment not more than six months, or by both, such fines within the limits herein set forth, and imprisonment."

The jury found the prisoners guilty, and the master of the "Thornton was sentenced to thirty days' imprisonment and to pay a fine of 500 dollars, while the mate was sentenced to a like term of imprisonment and to pay a fine of 300 dollars. It appears from a telegraphic despatch of the 18th September last that the masters and mates of the "Onward" and "Caroline" have since also been tried, and sentenced to undergo penalties similar to those inflicted on the master and mate of the "Thornton." The Sub-Committee do not here propose to comment on the enlarged construction placed by Judge Dawson on the words "adjacent waters" in the clauses of the Revised Statutes above referred to, further than to remark in passing that its effect would be to convert a purely municipal prohibition into an international obligation, and to claim for the United States a jurisdiction which their Government have in the past not only declined themselves to assert, but which they have strenuously resisted when claimed by another Power.

The following brief instance will illustrate the position taken by the United States' Government in the recent past:

As late as the 19th April, 1872, Mr. Boutwell, then Secretary of the United States' Treasury, in answer to a request made to him that a Revenue cutter should be sent to the region of Minnak Pass to prevent Australian and Hawaiian vessels from taking seals on their annual migration to the Islands of St. Paul and St. George, declined to accede to the request, and added:

“In addition, I do not see that the United States would have the jurisdiction or power to drive off parties going up there for that purpose, unless they made such attempts within a marine league of the shore."

Going further back in date, the Sub-Committee find that in 1822 a claim to sovereignty over the Pacific Ocean north of the 51st degree of latitude was put forward by Russia. An Imperial Ukase, issued on the 4th (16th) September, 1821, regulating commerce, whaling, and fishing along the eastern coast of Siberia, the north-western coast of North America, and the Aleutian and other islands, and prohibiting all foreign vessels from landing on the coasts and islands belonging to Russia, or approaching them within less than 100 Italian miles, was communicated to the American Government on the 11th February, 1822 (C of Appendix).

The Honourable John Quincy Adams, at that time United States' Secretary of State, wrote on the 25th of the same month to M. de Poletica, the Russian Minister Plenipotentiary, expressing the surprise of the President of the United States at the assertion of a territorial claim by Russia extending to the 51st degree of north latitude on this continent; stating that the exclusion of American vessels from the shore beyond the ordinary distance to which the territorial jurisdiction extends had excited still greater surprise; and requesting an explanation of the grounds of right, upon principles generally recognized by the laws and usages of nations, which could warrant such claims.

M. de Poletica, in a despatch dated the 16th (28th) February, 1882, defends the prohibition as designed to suppress the furnishing by foreigners of arms and ammunition to the natives of Russian America. He adds, however:

"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."

Mr. Adams deemed it a sufficient answer to this claim to point out the fact 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." (State Papers, vol. ix, p. 471 et seq.)

A writer in the "North American Review," in an article published a few months later, says, with respect to Mr. Adams' answer, "A volume on the subject could not have placed the absurdity of the pretensions more glaringly before us." ("North