argument presented in the notes recently addressed to this Department on behalf of your Government will permit. "As the resumption of actual occupation of the Falkland Islands by Great Britain in 1833 took place under a claim of title which had been previously asserted and maintained by that Government, it is not seen that the Monroe doctrine, which has been invoked on the part of the Argentine Republic, has any application to the case. By the terms in which that principle of international conduct was announced, it was expressly excluded from retroactive operation. "If the circumstances had been different, and the acts of the British Government had been in violation of that doctrine, this Government could never regard its failure to assert it as creating any liability to another power for injuries it may have sustained in consequence of the omission. . . "But it is believed that, even if it could be shown that the Argentine Republic possesses the rightful title to the sovereignty of the Falkland Islands, there would not be wanting ample grounds upon which the conduct of Captain Duncan in 1831 could be defended. . . . "On the whole, it is not seen that the United States committed any invasion of the just rights of the Government of Buenos Ayres in putting an end in 1831 to Vernet's lawless aggressions upon the persons and property of our citizens." Mr. Bayard, Sec. of State, to Mr. Quesada, Mar. 18, 1886, MS. Notes to 3. BERING SEA. § 172. Ukase of 1799. By an imperial ukase of July 8, 1799, the Emperor Paul I. of Russia granted to the Russian-American Company its first charter, which secured to the company various rights as to hunting and trading "in the northeastern seas and along the coasts of America." a Ukase of 1821. By a ukase of the Emperor Alexander, of September 7, 1821, giving his sanction to certain regulations of the RussianAmerican Company, "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 Bering's Strait to the 51° of northern latitude, also from the Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands, from Bering's Strait to the south cape of the island of Urup, viz, to 45° 50′ northern latitude," were "exclu a For a fuller history of the subject, see Moore, International Arbitrations, 1. chap. xvii. 755 et seq. sively granted to Russian subjects," and all foreign vessels were forbidden, except in case of distress, "not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than a hundred Italian miles." A copy of the ukase was communicated by M. Poletica, Russian minister at Washington, to Mr. John Quincy Adams, then Secretary of State, on January 30/February 11, 1822. Mr. Adams replied on the 25th of February. He protested against the Russian claim of territory to a point so far south as the fifty-first degree of north latitude, and declared that the claim to exclude American vessels from the shore, "beyond the ordinary distance to which the territorial jurisdiction extends," had "excited still greater surprise." He therefore inquired as to the grounds of the Russian Government's action. M. Poletica replied on the 28th of February, stating that the prohibition of foreign vessels from approaching the coast within a distance of a hundred Italian miles was a measure intended to prevent illicit trade and the supplying of the natives with arms and ammunition, and in conclusion he suggested that the possession by Russia of the territory both on the American and the Asiatic coast from Bering Strait downwards might have justified a claim of shut seas, but that the Russian Government had "preferred only asserting its essential rights, without taking any advantage of localities.” a With regard to the suggestion of mare clausum, Mr. Adams, in a note of March 30, 1822, observed that it might "suffice to say that the distance from shore to shore on this sea in latitude 51° north is not less than ninety degrees of longitude, or 4,000 miles;" and with regard to the prohibition of approach to the coasts he declared that the President was "persuaded that the citizens of this Union will remain unmolested in the prosecution of their lawful commerce, and that no effect will be given to an interdiction manifestly incompatible with their rights." Treaties of 1824 and 1825. Great Britain, as well as the United States, protested against the ukase of 1821, and as the result of their protests a negotiation was entered upon at St. Petersburg, which resulted, April 17, 1824, in the conclusion of a convention between the United States and Russia, whereby (Art. I.) it was 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 parties shall be neither disturbed nor restrained, either in navigation or in fishing, or in the "As to the ukase of 1821, see Traité de Droit International, by F. de Martens, professor at the University of St. Petersburg (Paris ed. 1883), I. 500. See, in this relation, Memoirs of J. Q. Adams, VI. 169. 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." These "restrictions and conditions," as defined in Articles II. and III., were (1) that, "with a view of preventing the rights of navigation and of fishing exercised upon the Great Ocean by the citizens and subjects of the high contracting powers from becoming the pretext for an illicit trade," the citizens of the United States should not resort to any point where there was a Russian establishment without the permission of the governor or commander, nor subjects of Russia, without permission, to any establishment of the United States upon the northwest coast; and (2) that there should not be formed by the citizens of the United States, or under the authority of the United States, "any establishment upon the northwest coast of America, nor in any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude," nor by Russian subjects, or under the authority of Russia, any establishment south of that line. The subject of commercial intercourse was adjusted, temporarily, by Articles IV. and V. of the convention. By these articles it was provided that, for a term of ten years from the date of the signature of the convention, the ships of both powers might reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbors, and creeks," on the northwest coast of America for the purpose of fishing and trading with the natives; but, from the commerce thus permitted, it was provided that all spirituous liquors, firearms, other arms, powder, and munitions of war of every kind should always be excepted, each of the contracting parties, however, reserving to itself the right to enforce this restriction upon its own citizens or subjects. When the commercial privilege thus secured came to an end the Russian Government refused to renew it, alleging that it had been abused." But under the most-favorednation clause, contained in Article XI. of the treaty of commerce and navigation between the United States and Russia of December 18, 1832, citizens of the United States enjoyed on the Russian coasts the same privileges of commerce as were secured by treaty to British subjects. 66 A convention between Great Britain and Russia for the settlement of the questions between those powers, growing out of the ukase of 1821, was concluded at St. Petersburg on February 28/16, 1825. In regard to the rights of navigation, fishing, and of landing on the coasts, its provisions were substantially the same as those of the con aAs to the construction of the convention, see Mr. Forsyth, Sec. of State, to Mr. Dallas, min. to Russia, May 4 and Nov. 3, 1837, MS. Inst. Russia, XIV. 39, 41. vention between Russia and the United States. It also secured for the space of ten years the enjoyment of substantially the same reciprocal privileges of commerce. These privileges were renewed by Article XII. of the treaty between Great Britain and Russia of January 11, 1843. States. By a convention signed at Washington on the 30th of March, 1867, Cession of Alaska the Emperor of Russia, in consideration of the sum of to the United $7,200,000 in gold, ceded "all the territory and dominion" which he possessed "on the continent of America and in the adjacent islands," to the United States. Of this cession the eastern limit, as described in Article I. of the convention, is the line of demarcation between the Russian and British possessions as established by the Anglo-Russian convention of February 28/16, 1825. The western limit is defined by a water line, beginning in Berings Straits, and proceeding north and south as follows: Beginning at a point in those straits, on the parallel of 65° 30′ north latitude, at its intersection by the meridian which passes midway between the islands of Krusenstern or Ingalook, and the island of Ratmanoff or Noonarbook, it "proceeds due north without limitation" into the "Frozen Ocean." Such is the northward course. In its southward course it begins at the same initial point, and "proceeds thence in a course nearly southwest, through Bering's Straits and Bering's Sea, so as to pass midway between the northwest point of the island of St. Lawrence and the southeast point of Cape Choukotski, to the meridian of one hundred and seventy-two west longitude; thence from the intersection of that meridian in a southwesterly 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 one hundred and ninety-three degrees west longitude, so as to include in the territory conveyed the whole of the Aleutian Islands east of that meridian.” By acts of July 27, 1868, March 3, 1869, July 1, 1870, and March 3, 1873, legislation was adopted in relation to the terriLegislation of the tory thus ceded. These acts, so far as their provisions United States. were of a permanent nature, were afterwards embodied in the Revised Statutes of the United States, §§ 1954-1976. a For a case under §1956, see United States v. The Kodiak, 53 Fed. Rep. 126. As to the Alaskan fisheries, see Sen. Ex. Doc. 50, 40 Cong. 2 sess. For a proposal to Russia of a convention to establish a reciprocal right to take fish of every kind on the coasts of all the possessions which the United States and Russia then owned or might acquire on the Pacific Ocean, without restriction, and the privilege of drying fish on occupied parts of the coasts, see Mr. Seward, Sec. of State, to Mr. Stoeckl, Russ. min., Oct. 5, 1868, MS. Notes to Russ. Leg. VI. 255. No attempt was made in them to define the extent of waters to which their provisions applied; nor did any international controversy subsequently take place as to the killing of fur seals in Bering Sea till 1886. In 1889, however, while the question that was raised in 1886 was still pending, an effort was made to amend § 1956, R. S., which prohibits the killing of any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, "within the limits of Alaska Territory, or in the waters thereof," so as to make it "include and apply to all the waters of Bering Sea in Alaska, embraced within the boundary lines mentioned and described in the treaty with Russia . . . by which the Territory of Alaska was ceded to the United States." The amendment passed the House; but was changed in the Senate; and by the bill, as it became a law, March 2, 1889, § 1956 was merely "declared to include and apply to all the dominion of the United States in the waters of Bering Sea." a August 3, 1870, the Acting Secretary of the Treasury, in pursuance of the act of July 1, 1870, leased the privilege of taking fur seals on the islands of St. Paul and St. George to the Alaska Commercial Company, a corporation organized under the laws of the State of California. March 25, 1872, Mr. T. G. Phelps called the attention of the Treasury Department to reports that expeditions were fitting out in San Francisco, Hawaii, and Australia for the purpose of intercepting the seals at the Aleutian Islands; and he suggested whether the act of July 1, 1870, did not authorize interference by means of revenue cutters "to prevent foreigners and others from doing such an irreparable mischief to this valuable interest." Mr. Boutwell, who was then Secretary of the Treasury, April 19, 1872, replied that the Treasury Department had been advised that such an employment of the revenue cutters would not be " a paying one, inasmuch as the seals go singly or in pairs, and not in droves, and cover a large region of water in their homeward travel," and that it was not apprehended that they would be driven from their accustomed resorts, even were such attempts made. "In addition," said Mr. Boutwell, "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. As at present advised, I do not think it expedient to carry out your suggestions, but @ 25 Stats. 1009; Congressional Record, 50 Cong. 2 sess. vol. 20, part 3, pp. 2282, 2372, 2426, 2448, 2502, 2563, 2614, 2672; Conrad, Act. At.-Gen., May 20, 1896, 21 Op. 346. In view of the award of the Paris tribunal, these words must be construed to mean the water within three marine miles of the shore. (The Alexander, 75 Fed. Rep. 519, 44 C. C. A. 659; Pacific Trading Co. v. United States, id.; the La Ninfa, 75 Fed. Rep. 513, 44 C. C. A. 648; Whitelaw v. United States, id.) |