ehring Straits, or the power to shut them up hereafter, would be a ing not to be tolerated by England.

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

The protection given by the Convention to the American coasts of ach Power may (if it is thought necessary) be extended in terms to he coasts of the Russian Asiatic territory; but in some way or other f not in the form now prescribed, the free navigation of Behring traits and of the seas beyond them must be secured to us.

See ante, p. 22.

Mr. George Canning in a despatch to Mr. Stratford Can- See Appendix, ning, who had been appointed British Plenipotentiary for vol. ii, Part I, the negotiation of a Convention at St. Petersburg, under

late the 8th December, 1824, after giving a summary of

6

the negotiations up to that date, 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 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° [sic] 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 1799, 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 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 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 cannot consent that the liberty of navigation through Bering 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.

52.

See post, p. 52.

50th Cong., 2nd

Sess., Sen. Ex.

204.

47

It will of course strike the Russian Plenipotentiaries that, by the adoption of the American Article respecting navigation, &c., 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 on its own coasts, without any specific 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 consideration has been forced upon us by the act of Russia herself, we cannot now consent, in negotiating de novo, to a stipulation which, while it is absolutely unimportant to any practical good, would appear to establish a contrast between the United States and us to our disadvantage.

THE TREATY (GREAT BRITAIN AND RUSSIA), FEBRUARY 28, 1825. These negotiations resulted in a Convention with Great Britain, signed on the 28th of February, 1825, hereinafter referred to.

PROTEST OF UNITED STATES.

On the 30th January (11th February), 1822, M. Pierre Doc. No. 106. P. de Poletica, the Envoy Extraordinary and Minister Plenipotentiary of the Russian Emperor, transmitted the Ukase to Mr. Adams, Secretary of State for the United States. On the 25th February, 1822, Mr. Adams wrote to M. Poletica:

Ibid.,

., p. 205.

DEPARTMENT OF STATE, Washington, February 25, 1822.

SIR, I have the honour of receiving your note of the 11th instant, inclosing a printed copy of the Regulations adopted by the RussianAmerican Company, and sanctioned by His Imperial Majesty, relating to the commerce of foreigners in the waters bordering on the establishments of that Company upon the north-west coast of America.

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 51st 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.

48

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.

I avail, &c.

It will be observed that both the Ukase and the protest apply to the waters from Behring Strait southward as far as the 51st degree of latitude on the coast of America.

RUSSIAN DEFENCE OF UKASE.

to Mr. J. Q.

On the 28th of the same month the Russian Representa- M. de Poletica ve replied at length, defending the territorial claim on Adams, Febru rounds of discovery, first occupation, and undisturbed ary 28, 1822, ossession, and explaining the motive which determined Papers, Foreign e Imperial Government in framing the Ukase.

He wrote:

I shall be more succinct, sir, in the exposition of the motives which etermined the Imperial Government to prohibit foreign vessels com approaching the north-west coast of America belonging to Rusa within the distance of at least 100 Italian miles. This measure, owever severe it may at first appear, is, after all, but a measure of revention. It is exclusively directed against the culpable enterprises f foreign adventurers, who, not content with exercising upon the oasts above mentioned an illicit trade very prejudicial to the rights eserved entirely to the Russian-American Company, take upon them esides to furnish arms and ammunition to the natives in the Russian ossessions in America, exciting them likewise in every manner to esist and revolt against the authorities there established.

The American Government doubtless recollects that the irregular onduct of these adventurers, the majority of whom was composed of American citizens, has been the object of the most pressing remon-trances on the part of Russia to the Federal Government from the ime that Diplomatic Missions were organized between the countries. These remonstrances, repeated at different times, remain constantly without effect, and the inconveniences to which they ought to bring a remedy continue to increase.

49

UKASE BASED ON DOCTRINE OF MARE CLAUSUM.

I ought, in the last place, to request you to consider, sir, that the Russian possessions in the Pacific Ocean extend, on the north-west coast of America, from Behring Strait to the 51st degree of north latitude, and on the opposite side of Asia and the islands adjacent, from the same strait to the 45th 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.

American State

Relations, vol. iv,
pp. 861-862. See
Appendix, vol. ii,
Part II No. 1.

Sess., Senate Ex.

207.

To this Mr. Adams replied (30th March, 1822). He said: 50th Cong., 2nd This pretension is to be considered not only with reference to the Doc. No. 106, p. question of territorial right, but also to that prohibition to the vessels See Appendix, of other nations, including those of the United States, to approach vol. ii, Part II, within 100 Italian miles of the coasts. From the period of the exist- No. 2. ence 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.

to Mr. J. Q. 1822.

Adams, April 2,

The Russian Representative replied to this note on the M. de Poletica 2nd April following, and in the course of his letter he said: In the same manner the great extent of the Pacific Ocean at the 51st degree of latitude can not invalidate the right which Russia may have of considering that part of the ocean as close. But as the Imperial 208. Government has not thought fit to take advantage of that right, all further discussion on this subject would be idle.

50th Cong., 2nd Sess., Senate Ex.

Doc. No. 106, p.

50th Cong., 2nd

210.

As to the right claimed for the citizens of the United States of trading with the natives of the country of the north-west coast of America, without the limits of the jurisdiction belonging to Russia, the Imperial Government will not certainly think of limiting it, and still less of attacking it there. But I cannot dissemble, sir, that this same trade beyond the 51st degree will meet with difficulties and inconveniences, for which the American owners will only have to accuse their own imprudence after the publicity which has been given to the measures taken by the Imperial Government for maintaining the rights of the Russian-American Company in their absolute integrity.

I shall not finish this letter, without repeating to you, sir, the very positive assurance which I have already had the honour once of expressing to you that in every case where the American Government shall judge it necessary to make explanations to that of the Emperor, the President of the United States may rest assured that these explanations will always be attended to by the Emperor, my august Sovereign, with the most friendly and consequently the most conciliatory, dispositions.

50

On the 22nd July, 1823, Mr. Adams wrote to Mr. Middleton, the United States Minister at St. Petersburg, as follows:

From the tenour of the Ukase, the pretenti ns of the Imperial GovSess., Senate Ex. ernment extend to an exclusive territorial jurisdiction from the 45th Doc. No. 106, P. degree of north latitude, on the Asiatic coast, to the latitude of 51 See Appendix, north on the western coast of the American Continent; and they assume vol. ii, Part II, 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.

No. 3.

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 55th degree of latitude, and have no existence on the Continent of America.

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 (p. 370) written by a person fully master of the subject; and for the view of it taken in England I refer you to the 52nd 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.

*

*

*

*

Mr. Middleton, writing to the Secretary of State of the United States, on the 1st December, 1823, inclosed a confidential memorial which thus dealt with the claim (which is properly regarded by him as an attempt to extend territorial jurisdiction upon the theory of a shut sea and having no other basis):

American State Papers, Foreign 51 Relations, vol. v,

p. 452.

The extension 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 See Appendix, from those of all the intervening islands, are innovations in the lav vol. ii, Part II, of nations, and measures unexampled. It must thus be imagined No. 5. that this prohibition, bearing the pains of confiscation, applies to a long line of coasts, with the intermediate islands, situated 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.

The right cannot be denied of shutting a port, a sea, or even an ntire country, against foreign commerce in some particular cases. But the exercise of such a right, unless in the case of a colonial sysem already established, or for some other special object, would be xposed to an unfavourable interpretation, as being contrary to the iberal spirit of modern times, wherein we look for the bonds of amity nd of reciprocal commerce among all nations being more closely emented.

Universal usage, which has obtained the force of law, has estabished for all the coasts an accessory limit of a moderate distance, which is sufficient for the security of the country and for the convenence of its inhabitants, but which lays no restraint upon the universal rights of nations, nor upon the freedom of commerce and of navigation. (Vattel, Book I, Chapter 23, section 289.)

At the fourth Conference (8th March, 1824) which pre- American State ceded the signature of the Treaty of the 5th (17th) April, Relations, vol. V. Papers, Foreign 1824, Mr. Middleton, the United States Representative, pp. 465–466. submitted to Count Nesselrode the following paper:

(Translation.)

The dominion can not be acquired but by a real occupation and possession, and an intention ('animus') to establish it is by no means sufficient.

Now, it is clear, according to the facts established, that neither Russia nor any other European Power has the right of dominion upon the Continent of America between the 50th and 60th degrees of north latitude.

Still less has she the dominion of the adjacent maritime territory, or of the sea which washes these coasts, a dominion which is only accessory to the territorial dominion.

Therefore she has not the right of exclusion or of admission on these coasts, nor in these seas, which are free seas.

The right of navigating all the free seas belongs, by natural law, to every independent nation, and even constitutes an essential part of this independence.

The United States have exercised navigation in the seas, and commerce upon the coasts above mentioned, from the time of their independence; and they have a perfect right to this navigation and to this commerce, and they can only be deprived of it by their own act or by a Convention.

52

CONVENTION BETWEEN THE UNITED STATES AND RUSSIA.
THE TREATY (RUSSIA AND THE UNITED STATES), APRIL 17, 1824.

The result of these negotiations between the United For French text, see AppenStates and Russia was the Convention of the 17th April, dix, vol. ii, Part III, No. 1. 1824, which put an end to any further pretension on the Blue Book, part of Russia to restrict navigation or fishing in Behring "United States No. 1 (1891)," p. Sea, so far as citizens of the United States were concerned. The English version of the Convention is as follows:

ARTICLE I.

NAVIGATION OF PACIFIC TO BE FREE.

It is agreed that in any part of the Great Ocean, commonly called the Pacific Ocean, or South Sea, the respective citizens or subjects of the High Contracting Powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the power of resorting to the coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following Articles:

ARTICLE II.

With a view of preventing the rights of navigation and of fishing, exercised upon the Great Ocean by the citizens and subjects of the

57.

iii.

Appendix, vol.