to Lord London FIRST ASSERTION OF EXCLUSIVE JURISDICTION. By this Ukase Russia first attempted to assert, as against other nations, exclusive jurisdiction of rights over the shores of America and Asia bounding the Pacific Ocean, certain islands therein, and over a portion of the Pacific Ocean including what is now known as Behring Sea. PURPOSE OF UKASE OF 1821. Baron Nicolay The purpose of the Ukase, so far as the attempted exclusion derry, October 31 of foreigners from 100 miles of the coasts is concerned, is (November 12), explained by Baron de Nicolay in his note to Lord Londonderry, the 31st October (12th November), 1821. 1821. See Appendix, vol. ii, Part I, No. 1. See Appendix, vol. i, No. 2. Poletica to Adams, February 28, 1822. 39 TO PREVENT ILLICIT TRAFFIC. He insists that the operations of "smugglers" and "adventurers" on the coast— Have for their object not only a fraudulent commerce in furs and other articles which are exclusively reserved to the Russian-American Company, but it appears that they often betray a hostile tendency. It was, he continues, therefore necessary to take severe measures against these intrigues, and to protect the Company against the considerable injury that resulted, and it was with that end in view that the annexed Regulation has been published. And again: The Government, however, limited itself, as can be seen by the newly published Regulation, to forbidding all foreign vessels not only to land on the Settlements of the American Company and on the peninsula of Kamtchatka and the coasts of the Okhotsk Sea, but also to sail along the coast of these possessions, and, as a rule, to approach them within 100 Italian miles. The justification for the Ukase, and the Regulations made thereunder, is stated on the face of the Ukase in the words: And finding that the principal cause of these difficulties [i.e., impediments caused by "secret and illicit traffic "] is want of Rules estab lishing the boundaries for navigation along these coasts, TO EXTEND TERRITORIAL JURISDICTION. * * That the object of the Ukase was to extend territorial jurisdiction over the north-west coast and islands and to prohibit the trade of foreigners, rather than to protect any existing or prospective fishery is further indicated by No. 70 of the Regulations of the Russian-American Company. This Regulation reads: 70. Aship of war, after visiting, not only the Company's Settlements, but also, and more particularly, the channels which foreign merchant vessels are likely to frequent for the purpos of illicit trading with the natives, will return to winter wherever the Government orders it. The motive and purpose of this Ukase is further explained by the letter of M. de Poletica, Russian Minister at WashSee Appendix, vol. ii, Part II, ington, dated the 28th February, 1822. No. 1. That Russia's aim was to acquire a vast North American Territory appears by the construction put by M. de Poletica on the Ukase of the Emperor Paul in 1799, as conveying to the Russian-American Company the grant of a territorial concession down to the 55th degree of latitude, and by his justification of its further extension the 51st degree on the American coast. He proceeds to defend the policy of exclusion contained the Ukase of 1821 by explaining that, as Russian posessions extend from Behring Strait to the 51st degree orth latitude on the north-west coast of America, and on he opposite coast of Asia and the islands adjacent, to the 5th degree, the sea within those limits (viz., that part of the Pacific Ocean) was a close sea, over which Russia might xercise exclusive jurisdiction; but he goes on to say that ussia preferred asserting only her essential right without taking any advantage of localities," and on these grounds he limit of 100 Italian miles is justified. The measure he declares to be directed: Against the culpable enterprises of foreign adventurers, who, not ontent with exercising upon the coasts above mentioned an illicit rade, very prejudicial to the rights reserved entirely to the RussianAmerican Company, take upon them besides to furnish arms and mmunition to the natives in the Russian possessions in America, nciting them likewise in every manner to resist and revolt against he authorities there established. The same view is expressed in the Confidential Memocandum inclosed in the Duke of Wellington's letter to Mr. G. Canning of the 28th November, 1822. Upon receiving communication of the Ukase, the British and United States Governments immediately objected both to the extension of the territorial claim and to the assertion of maritime jurisdiction. PROTEST OF GREAT BRITAIN. the British GovSee Appendix, The Ukase was brought to the notice of Lord London- The protest of derry, Secretary of State for Foreign Affairs for Great ernment. Britain, in the letter already quoted of the 12th November, vol. ii, Part I, 1821, by Baron de Nicolay, then Russian Chargé d'Affaires, No. 1. as connected with the territorial rights of the Russian Crown on the north-west coast of America, and with the commerce and navigation of the Emperor's subjects in the seas adjacent thereto. 41 CORRESPONDENCE BETWEEN GREAT BRITAIN AND RUSSIA. On the 18th of January, 1822, four months after the issue of the Ukase, Lord Londonderry wrote in the following terms to Count Lieven, the Russian Ambassador in London: In the meantime, upon the subject of this Ukase generally, and especially upon the two inain 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 terri S. Ex. 177, pt. 4- -3 See Appendix, vol. ii, Part 1, No. 7. Part I, No. 14. tories, 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. Ibid., vol. ii, The Duke of Wellington having been appointed British Plenipotentiary at the Congress of Verona, Mr. G. Canning, then Secretary of State for Foreign Affairs, addressed to him, on the 27th September, 1822, a despatch in which he dealt with the claim in the Ukase for the extension of territorial rights over adjacent seas to the distance— "unprecedented distance," he terms it-of 100 miles from the coast, and of closing "a hitherto unobstructed passage." In this dispatch Mr. Canning says: Duke of Welling ABANDONMENT OF CLAIM TO EXTRAORDINARY JURISDICTION. 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 favour of a claim by authority against all the world. 42 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 command to instruct your Grace further to require of the Russian Minister (on the ground of the facts and reasonings furnished in their [sic] despatch 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. On the 17th October in the same year, the Duke of Wellington, at Verona, addresed to Count Nesselrode, the Russian Plenipotentiary at the Congress, a Confidential Memorandum containing the following words: Confidential Objecting, as we do, to this claim of exclusive sovereignty on the Memorandum in- part of Russia, I might save myself the trouble of discussing the closed in letter of particular mode of its exercise as set forth in this Ukase, but we ton to G. Canning, object to the mode in which the sovereignty is proposed to be exerNovember 28, cised 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 counSee Appendix, vol. ii, Part I, No. try to exclude the vessels of others from the seas on its coasts to the distance of 100 Italian miles. 1822. 15. Ibid. In reply, Count Nesselrode communicated to the Duke of Wellington a "Confidential Memorandum" dated the 11th (23rd) November, 1822, which contains the following passages: The Cabinet of Russia has taken into mature consideration the Confidential Memorandum forwarded to them by the Duke of Wellington on the 17th October last, relative to the measures adopted by His Majesty the Emperor, under date of the 4th (16th) September, 1821, for defining the extent of the Russian possessions on the north-west past of America, and for forbidding foreign vessels to approach his ossessions within a distance of 100 Italian miles. It was, on the contrary, because she regarded those rights of overeignty as legitimate, and because imperious considerations involvng the very existence of the commerce which she carries on in the egions of the north-west coast of America compelled her to establish system of precautions which became indispensable that the caused he Ukase of the 4th (16th) September, 1821, to be issued. Consequently, the Emperor has charged his Cabinet to declare o the Duke of Wellington (such declaration not to prejudice his ights in any way if it be not accepted) that he is ready to fix, by means of friendly negotiation, and on the basis of mutual accommolation, the degrees of latitude and longitude which the two Powers hall regard as the utmost limit of their possessions and of their establishments on the north-west coast of America. 3 Again, on the 28th November, 1822, the Duke of Wellington addressed a note to Count Lieven. containing the following words: No. 15. The second ground on which we object to the Ukase is that His See Appendix, Imperial Majesty thereby excludes from a certain considerable extent vol. ii, Part I, 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, &c., 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. At an early date in the course of the negotiations with the United States and with Great Britain the execution of the Ukase beyond the territorial limit of 3 miles was suspended. Indeed, as far as the waters of Behring Sea are concerned, it may safely be said that it was never put into See Appendix, practical execution beyond this limit. The note from Count No. 31. Nesselrode to Mr. Middleton on the subject was dated the American State 1st August, 1822, and is thus alluded to by Mr. Middleton Papers, Foreign Relations, vol. v, in a despatch to Mr. Adams of the 19th September, 1823: p. 448. Upon Sir Charles [Bagot] expressing his wish to be informed respecting the actual state of the north-west question between the United States and Russia, so far as it might be known to me, I saw no objection to making a confidential communication to him of the note of Count Nesselrode, dated the 1st August, 1822, by which, in fact, staying the execution of the Ukase above mentioned, Russia has virtually abandoned the pretensions therein advanced. 44 vol. ii, Part I, See Appendix, vol. ii, Part I, The communication to the British Government on the same subject was made in August 1823 in the shape No. 29. of an extract from a despatch from Count Nesselrode to Count Lieven, dated the 26th June, 1823. The following passage in it shows how complete was the abandonment of the unusual claim of maritime jurisdiction: That the Commanders of our ships of war must confine their surveillance as nearly as possible to the mainland, i. e., over an extent of See Appendix, vol. ii, Part I, 35. sea within range of cannon-shot from the shore; that they must not extend that surveillance beyond the sphere where the American Company has effectually exercised its rights of hunting and fishing since the date of its creation, as well as since the renewal of its privileges in 1799, and that, as to the islands on which are to be found colonies or settlements of the Company, they are all indistinctively comprised in this general rule. Your Excellency will observe that these new instructionswhich, as a matter of fact, are to suspend provisionally the effect of the Imperial Ukase of the 4th September, 1821-were sent from St. Petersburgh only in August of last year. Mr. Lyall, Chairman of the Ship-owners' Society, of LonNos. 33, 34, and don, wrote on the 19th November, 1823, to Mr. G. Canning, asking whether official advices had been received from St. Petersburg that the Ukase of 1821 had been annulled. Mr. Canning having privately submitted his proposed reply to Count Lieven for his comments, caused the following letter to be sent, which had received Count Lieven's approval: Lord F. Con I am directed by Mr. Secretary Canning to acknowledge the receipt yngham to Mr. of your letter of the 19th instant, expressing a hope that the Ukase of Lyall, November September 1821 had been annulled. 26, 1823. See Appendix, Mr. Canning can not authorize me to state to you in distinct terms vol. ii, Part I, No. 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. 36. See Appendix, 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 Sep tember 1821. On the 15th January, 1824, Mr. G. Canning wrote to Sir vol. ii, Part I, No. C. Bagot, the British Ambassador at St. Petersburg: 37. 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 dominions. 45 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. Again, in a despatch, 24th July, 1824, to Sir C. Bagot, See Appendix, No. 44. the navigation of the Pacific to the sea beyond Behring Straits. * * * * * As to the second point, it is, perhaps, as Count Lieven remarks, new. But it is to be remarked, in return, that the circustances 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 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 |