Chapter V.
Head E.

Chapter VI.
Head F.
Chapter VII.
Head G.

Chapter VIII Article VI, Point 5.

Article VIII.

This point will be considered under the following heads: (E.) What rights passed to the United States under the Treaty of Cession of March 30, 1867.

(F.) The action of the United States and Russia from 1867 to 1886.

(G.) The various contentions advanced by the United States since the year 1886.

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Point 5 of Article VI is as follows:

5. Has the United States any right, and, if so, what right, of protection or property in the fur seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary 3-mile limit?

This will be briefly considered, but the proposition which appears to be embodied in this question is of a character so unprecedented that, in view of the absence of any precise definition, it is impossible to discuss it at length at the present time. It will, however, be treated in the light of such official statements as have heretofore been made on the part of the United States, its discussion in detail being necessarily reserved till such time as the United States may produce the evidence or allegations upon which it relies in advancing such a claim.

If the determination of the foregoing questions as to the exclusive jurisdiction of the United States shall leave the subject in such position that the concurrence of Great Britain is necessary to the establishment of Regulations for the proper protection and preservation of the fur-seal in, or habitually resorting to, the Behring Sea, the Arbitrators shall then determine what concurrent Regulations outside the jurisdictional limits of the respective Governments are necessary, and over what waters such Regulations should extend, and to aid them in that determination, the Report of a Joint Commission, to be appointed by the respective Governments, shall be laid before them, with such other evidence as either Government may submit.

The High Contracting Parties furthermore agree to co-operate in securing the adhesion of other Powers to such Regulations.

The terms of this Article make it necessary that the consideration of any proposed Regulations should be postponed until the decision of the Tribunal has been given on the previous questions.

Beyond, therefore, demonstrating that the concurrence of Great Britain is necessary to the establishment of any Regulations which have for their object the limitation or control of the rights of British subjects in regard to seal fishing in non-territorial waters, it is not proposed to discuss the question of the proposed Regulations, or the nature of the evidence which will be submitted to the Tribunal.

With regard to the points raised under Article VIII 12 (which refer to questions arising out of claims for damages), it will be contended on behalf of Great Britain that the seizure of the ships was unlawful, and the Arbitrators will be asked to find that in each case the seizure took place in non-territorial waters, that such seizures were made with the authority and on behalf of the Government of the United States, and that the amounts of damages which Great Britain is entitled to claim on behalf of the owners, masters, and crews are the respective amounts stated in the Schedule of particulars appended to this Case.

HEAD A.-The User, up to the year 1821, of the Waters of Behring Sea and other Waters of the North Pacific.

It is shown in the following series of historical notes, chronologically arranged, that the waters subsequently included in the claim made by Russia under the Ukase of 1821, had been freely navigated over, and frequented for purposes of trade and for other purposes, by ships of various nations, from the earliest times. Further, that the discovery and exploration of these waters and the coasts and islands washed by them, was largely due to the navigators of various nations, and in particular to those of Great Britain.

AREA TO BE CONSIDERED.

The waters affected by the Russian Ukases of 1799 and 1821* include not only the entire area of Behring Sea (though that sea is not specifically mentioned by any name in either Ukase), but also other parts of the Pacific Ocean, and in considering the nature of the user of the waters now in question, the entire area affected by the Ukase of 1821 is included, the facts relating to all parts of this area being of equal significance.

It will be noted in this connection that the limit claimed under the Ukase extended southward to the 51st parallel of north latitude on the American coast; and that, therefore, any events occurring to the north of 54° 40', which is the southernmost point of the territory now known as Alaska, are well within this limit.

"PACIFIC OCEAN."

The Pacific Ocean as a whole, was, in the last century and in the earlier part of the present century, variously named the Pacific, or Great Ocean or South Sea, the last name arising from the circumstance that it had been reached by sailing southward round the Cape of Good Hope or Cape Horn.

"BEHRING SEA."

Behring Sea is, and was at the time of the negotiations which arose immediately on the promulgation of the Ukase of 1821, recognized by geographers as a part of the Pacific Ocean. The name by which it is now known is that of the navigator Behring, but in earlier times it was often named the Sea of Kamtchatka.

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DESCRIPTION OF BEHRING SEA.

The sea washes the northern parts of the coasts of North America and of Asia, and is regarded as extending from Behring Strait on the north to the Aleutian and Commander Islands on the south. Its area is at least twothirds of that of the Mediterranean, and more than twice

*The text of the Ukase of 1799 will be found at p. 25 of this Case; that of the Ukase of 1821 at p. 37.

that of the North Sea, while its extreme width is 1,260 miles. From north to south it extends over about 14° of latitude, or more than 800 miles.

From the south it is approached by numerous open seaways, one of which is 175 miles wide, another 95 miles, five more from 55 to 22 miles, and very many of smaller width. On the north, it communicates with the Arctic Ocean by Behring Strait, 48 miles in width.

Behring Sea is the common highway to the Arctic Ocean with its valuable fisheries. It is Great Britain's highway to her possessions in the north viâ the Yukon River (of Treaty of Wash which the free navigation is guaranteed by Treaty), as well ington, May 8, 1871, Article as the route for such communication as may be held or attempted with the northern parts of the coasts of North America to the east of Alaska, and with the estuary of the great Mackenzie River.

XXVI.

HISTORICAL OUTLINE.

In 1728 and 1729, Behring, in his first expedition, outBancroft, His lined, somewhat vaguely, the Asiatic coast of Behring Sea, and practically proved the separation of the Asiatic and American continents.

tory of Alaska, p. 37.*

Ibid., pp. 63-74.

Alaska, p. 141.

Ibid., pp. 157, 158.

Ibid.,
p. 174.

Ibid., pp. 194197.

Ibid., p. 197.

In 1741, Behring's second expedition, which sailed from Okhotsk, resulted in the discovery of the American coast. Unsatisfactory as the voyages of Behring and his associate Chirikof undoubtedly were from a geographical point of view, it was upon their results that Russia chiefly based her subsequent pretensions to the ownership of the north-western part of North America. Hunters and traders followed Behring's lead, and Behring Island, and various islands of the Aleutian chain, were visited from the Kamtchatkan coast.

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In 1763, Glottof, on a trading voyage, ventured as far east as Kadiak Island.

In 1764 to 1768, Synd, a Lieutenant of the Russian navy, made an expedition along the coast to Behring Strait.

Of the period from 1769 to 1779, Bancroft writes in his History of Alaska:

From this time to the visit of Captain Cook, single traders and small Companies continued the traffic with the islands in much the same manner as before, though a general tendency to consolidation was perceptible.

The extension of Russian influence did not pass unnoticed by Spain, and in 1774 Perez was dispatched from Mexico on a voyage of exploration, in which he reached the southern part of Alaska.

In 1775, Heceta, also instructed by the Viceroy of Mexico, explored the coast of America as far north as the 57th or 58th degree of latitude, taking possession of that part of the continent in the name of Spain.

* This work will be referred to throughout these pages by the short title of "Alaska."

For the period discussed in this Chapter reference may be made generally to "Lyman's Diplomacy of the United States," 2nd edition, Boston, 1828, vol. ii, chapter II.

In 1778, Captain Cook, sent by the English Government, Cook, Voyage reached the American coast of the North Pacific with two Ocean, 1776-1780, vessels.

In pursuance of his instructions, he explored the coast from about 44° of north latitude as far as the region of Prince William Sound and Cook River or Inlet, taking possession of the coasts there. At Cook Inlet he found evidence of Russian trade but no Russians. At Unalaska, one of the Aleutian Islands, he again heard of the Russians, and on the occasion of a second visit met Russian traders. From Unalaska he sailed eastward to Bristol Bay, landing and taking possession. From this he explored, and defined the position of the American coast northward as far as Icy Cape, beyond Behring Strait.

Cook was killed in the following winter at the Sandwich Islands, but his ships, under Clarke, returned in 1779 and made further explorations in Behring Sea and in the Arctic Ocean.

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Under this expedition, and for the first time, the main outlines of the north-western part of the Continent of America, and particularly those of the coast about Prince William Sound and Cook Inlet, with the eastern coast of Behring Sea, were correctly traced.

This expedition also opened up the trade by sea in furs from the north-western part of America to China.

Cook's surveys still remain in many cases the most authentic; and these, with other results of the expedition were published in full in 1784.

to the Pacific

London, 1874.

217-221.

In 1779, another officially accredited Spanish expedition Alaska, pp. under Arteaga and Quadra, explored part of the coast northward from about latitude 550, and westward to Mount St. Elias.

In 1783, the first attempt was made, following Cook's Ibid., p. 186. discoveries, to establish a Russian trading post on the American mainland, at Prince William Sound. It ended disastrously.

Ibid., p. 191.

For some years after this reverse only one small vessel was dispatched from Siberia for trading purposes; but in 1784, Shelikof visited Unalaska and reached Kadiak Island, Ibid., p. 224. with the intention of effecting a permanent occupation

there.

tory of the North

In 1785, Captain Hanna entered into the trade between Bancroft, Histhe north-west coast of America and China, for which west Coast, Vol. Captain Cook's expedition had shown the way. He made I, pp. 173, 174.* a second voyage in the following year, but appears to have confined bis trading operations to the vicinity of the northern part of Vancouver Island. Other commercial adventurers were, however, practically contemporaneous with Hanna, and this year is an important one in connection with the whole region.

The "Captain Cook" and "Experiment," from Bombay, traded at Nootka and at Prince William Sound. An English vessel, the "Lark," Captain Peters, from

*This work will be referred to throughout these pages by the short title of "North-west Coast."

Alaska, p. 243.

Sauer's account

of Billing's expedition, London,

1802, pp. 279, 281.

A Voyage round the World, &c., London, 1789.

ages, 1790. See

Bengal viâ Malacca and Canton, after trading at Petro-
paulovsk in Kamtchatka, sailed for Copper Island with
the supposed purpose, as alleged, of obtaining a cargo of
copper there.
She was wrecked on the Commander

Islands.

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In the same year, 1786, Portlock and Dixon, and Meares, arrived upon the American coast, and traded and explored far to the northward. These voyages are important, because detailed accounts of both were published, in 1789 and 1790 respectively, while the voyages of other traders have generally not been recorded.

Portlock and Dixon, who had sailed from London in 1785 in the "King George" and "Queen Charlotte," in 1786, first visited Cook Inlet, where they found a party of Russians encamped, but with no fixed establishment. Trade was carried on with the natives there, and subsequently at various other places on what is now the Alaskan coast, and several harbours were surveyed. In the following year, Portlock and Dixon returned to the vicinity of Prince William Sound, where they found Meares, who had spent the previous winter there. They subsequently called at a number of places on the Alaskan coast, as well as at ports now included in the coast line of British Columbia, making very substantial additions to geographical knowledge.

Meares' Voy. Meares sailing from Bengal in the "Nootka" early in also, "Annual the year, reached the Islands of Atka and Amlia of the Register," 1790 Aleutian chain, staying two days at the last-named island, vol. xxxii, p. 287 and holding communication with the natives and Russians found there. He then proceeded eastward along the Aleutian Islands, and was piloted into Unalaska by a Russian who came off to the ship. He describes the Russian establishment as consisting of underground huts like those occupied by the natives; but being anxious to leave the vicinity of the Russian traders, he continued his voyage eastward to Cook Inlet and eventually wintered in Prince William Sound, as above stated.

Alaska, p. 255.

Meares' later voyage, in 1788 and 1789, which is better known than his first venture, was directed to that part of the coast lying to the southward of the limits afterwards included by the Ukase of 1799. In 1788, Meares built at Nootka, in the northern part of Vancouver Island, the first vessel ever constructed on the coast of the northwestern part of America. She was intended for use in the fur trade, and was appropriately named the "North-west America."

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Also in 1786, La Pérouse, on his voyage round the world, under instructions of the French Government, first made the American land near Mount St. Elias. Thence he sailed eastward and southward, calling at Alaska, p. 243. places on the Alaskan coast. At Lituya Bay he obtained in trade 1,000 sea-otter skins.

In the same year the Russian Pribyloff discovered the islands in Behring Sea, now known by his name.

In 1788, a Spanish expedition, in the vessels "Princesa” and "San Carlos," under Martinez and Haro, set out. It