tion, or acquired by the act of issuing it any claims over the open sea beyond the territorial limit of 3 miles which they would not otherwise have possessed. But it is said that this prohibition, worthless in itself, acquired validity and force against the British Government because that Goverment can be shown to have accepted its provisions. The ukase was a mere usurpation; but it is said that is was converted into a valid international law, as against the British Government, by the admission of that Government itself.

Now Lord Salisbury could not, 2 think, fairly, with the correspondence of Mr. Blaine before him, which I have already read, impute to the United States Government a sole reliance upon a jurisdiction asserted to have been acquired by Russia; but he attempts to do it there, and is very sharply corrected by Mr. Blaine in a subsequent note of April 14, 1891, which will be found on page 295. I read from page 298:

In the opinion of the President, Lord Salisbury is wholly and strangely in error in making the following statement:

Nor do they [the advisers of the President] rely, as a justification for the seizure of British ships in the open sea, upon the contention that the interests of the seal fisheries give to the United States Government any right for that purpose which, according to international law, it would not otherwise possess.

The Government of the United States has steadily held just the reverse of the position which Lord Salisbury has imputed to it. It holds that the ownership of the islands upon which the seals breed, that the habit of the seals in regularly resorting thither and rearing their youg thereon, that their going out from the islands in search of food and regularly returning thereto, and all the facts and incidents of their relation to the island, give to the United States a property interest therein; that this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States. It is yet to be determined whether the lawless intrusion of Canadian vessels in 1886 and subsequent years has changed the law and equity of the case theretofore prevailing.

And with that extract I conclude my observations concerning the attitude taken by the United States. From first to last it was based upon the assertion of a property interest in these seals, strengthened indeed by the allegation that that property interest had been originally held by Russia, and while held by Russia had been recognized by both Great Britain and the United States, and that the possession of this property interest by the United States gave it the right - a right which every Government has to protect its property wherever that property has the right to be, and by such measures as are necessary for the purposes of such protection. Now, then we have out of this case, as far as I am capable of putting out of it, any argument as to whether Russia ever acquired a sovereign jurisdiction over any part of Bering Sea, or whether

she ever transmitted to the United States any sovereign jurisdiction over any part of it. We make no assertion of that character. We put no part of our case upon any such assertion. We do not suppose that any such assertion of jurisdiction was ever made by Russia. But do I mean that this matter of Russian pretentions in Bering Sea, the rights which she may have asserted and acquired in those remote waters and which the United States may have acquired from her, have no place or importance in this controversy? No; I do not mean that. These pretensions do have a place, and an important place, which I am now about, so far as I am able, to vindicate for them. That is this: It could be hardly better expressed than Mr. Blaine has expressed it in the passage from which I last read:

That this property interest was claimed and exercised by Russia during the whole period of its sovereignty over the land and waters of Alaska; that England recognized this property interest so far as recognition is implied, by abstaining from all interference with it during the whole period of Russia's ownership of Alaska, and during the first nineteen years of the sovereignty of the United States.

Now, I am going to deal with this subject but very briefly. The question mainly turns upon what rights Russia did originally assume in Bering Sea, and whether those rights were ever displaced or modified by the subsequent treaties between her and the United States and between her and Great Britain in 1824 and 1825, and if displaced, or modified, to what extent. I am going to deal, I say very briefly, with that argument, and for two reasons: First, as I have already intimated, I do not conceive that it plays any vital part whatever in this controversy, and therefore I should do injustice to the general argument of the question if I should assign a disproportionate space to it; and I could not go through with the argument and refer to all the diplomatic communications and occasional acts of the various countries which have a bearing upon it without employing several days in the discussion. I have neither time nor strength for that and am not going into it. If I did do it, I could not implant such an impression of the particular incidents of the controversy as would enable you to remember it for any succession of days. It will be inevitable it will be a task which the learned arbitrators will find it necessary to go through with to examine this diplomatic correspondence and to examine the grounds taken by the American Government in the various communications upon this subject by Mr. Blaine. I could not lessen that labor materially by any lengthy discussion now. Nevertheless I must deal with it very briefly.

I have endeavored to point out in the sketch with which I began this part of my argument, the early dealing on the part of Russia

with Bering Sea and its coasts and Islands, and I think that I succeeded in showing that Russia prior to 1821 had appropriated to herself all the coasts and islands of that sea and all their resources so far as any nation could appropriate them; that such appropriation was just and in accordance with natural law. There was enough only for one great nation, and the world would be best served by such exclusive appropriation. We do not assert an appropriation of the products of the sea unconnected with the shores. We assert no such appropriation on the part of Russia. Russia asserted the right to protect her trade and industries by the exercise of self-defensive authority upon the high seas and practically by excluding other nations from a belt of water extending 100 miles from the coasts and islands. She declared this to be, not an assumption of sovereignty, or mare clausum, or attempt to establish mare clausum, but a scheme of prevention; in other words, a measure of self-defence. That assertion of authority was protested against, formed the subject of negotiation, and was eventually modified by treaties between Great Britain and the United States, severally, and Russia.

Now, except so far as the effect of the Ukase was thus modified, it stood, and stood assented to by Great Britain and the United States. The assent was indeed an implied one; but the implication was sufficiently strong.

The inquiry then arises how far the assumption of authority by Russia in the Ukase of 1821 and her acts in support of it were modified or displaced by these subsequent treaties. In other words it involves the interpretation of the language and effect of these subsequent treaties. Now as the interpretation of these documents is not entirely easy upon the face of them, it will be proper to place ourselves in the possession of certain information in regard to the matters covered by the treaties, which will be found useful to us in the endeavor to ascertain what were the intentions of the parties to them.

The two sections of the Ukase which it is necessary to read will be found on page 16 of the first volume of our Appendix:

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SEC. 1. The pursuits of commerce, whaling, and fishery, and of all other industry on all islands, ports, and gulfs including the whole of the northwest coast of America, beginning from Behring's Straits 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 Behring's Straits to the South Cape of the Island of Urup, viz, to the 45°50′ northern latitude, is exclusively granted to Russian subjects.

SEC. 2. It is therefore prohibited to all foreign vessels 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. The transgressor's vessel is subject to confiscation along with the whole cargo.

Now it would seem that when the Government of Great Britain received information of that Ukase they applied to so eminent an authority as Lord Stowell to learn what the effect of it was, and he writes to Lord Melville on the 26th of December, 1821. I am reading from the Appendix to the Case of Great Britain, volume 2, page 12:

Lord Stowell to Lord Melville.

GRAFTON STREET, LONDON,
December 26, 1821.

MY DEAR LORD: I have perused these papers, and it appears to me to be unsafe to proceed to any controversial discussion, of the proposed Regulations, till it is shown that they issue from a competent authority founded upon an acknowledged title of territorial and exclusive possession of the portions of the globe to which they relate. I am myself too slightly acquainted with the facts regarding such possession (how originally acquired and how subsequently enjoyed) to be enabled to say that upon undisputed principles such a possession exists. It is perfectly clear from these Regulations that it has not hitherto been exclusive in the extent in which it is now claimed; for they are framed for the very purpose of putting an end to foreign intercourses of traffic therein, which they denominate illicit but which they admit existed de facto.

islands portions of

The territories claimed are of different species the continent and large portions of the sea adjoining. I know too little of the history of their connection with either islands or continents to say with confidence that such a possession has in this case been acquired. I content myself with remarking that such possession does not appear in the opinion and practice of States to be founded exactly upon the same principles in the cases of islands and continents. In that of islands, discovery alone has usually been held sufficient to constitute a title. Not so in the case of continents. In the case of the South American Continent the Spaniards and Portuguese resorted to grants from an authority which in that age was universally respected, and continued in respect till subsequent possession had confirmed their title. But I think that it has not been generally held, and cannot be maintained that the mere discovery of a coast gives the right to the exclusive possession of a whole extensive continent to which it belongs, and less to the seas that adjoin to a very considerable extent of distance. An undisputed exercise of sovereignty over a large tract of such a continent and for a long tract of time would be requisite for such purposes. I am too ignorant of particular facts to say how far such principles are justly applicable to such cases. I observe that by these Regulations the commerce in these islands, continents and adjoining sea is declared to have been granted exclusively to Russian subjects: who the grantor is, is not expressly declared. If, as is probable, the Autocrat of Russia is meant, the inquiry then reverts to the question respecting the foundation of such an authority, and thinking that that question must be first disposed of, I content myself with observing upon the Regulations themselves that they are carried to an extent that appears very unmeasured and insupportable.

I have, etc.

STOWELL.

I read that letter for the purpose of showing two things: First,

the views of a distinguished jurist of that day upon the question of what right is acquired by the discovery of new regions, and what acts were necessary for the purpose of really constituting property in them; and next for the purpose of showing that Lord Stowell gathered at once from the face of these regulations that they were not designed as assuming sovereign jurisdiction over the sea, but were defensive regulations for the purpose of protecting commerce and the industries of a region over which it was assumed that Russia had sovereign control; and he, as you will perceive, rests the conclusion as to the validity of these regulations upon the completeness and perfectness of the sovereignty of the nation which had issued them over the shore. Right there I may also quote an opinion by Sir Robert Phillimore, evidently in reference to this very territory; because I think at an early period this whole territory, including Alaska, was vaguely understood by the world in general to be embraced under the term "Oregon". The passage from Sir Robert Phillimore's book, which I wish to refer to, is contained on page 39 of our Argument. He says (Int. Law, vol. 1, pp. 259,260):

A similar settlement was founded by the British and Russian Fur Companies in North America.

The chief portion of the Oregon Territory is valuable solely for the fur-bearing animals which it produces. Various establishments in different parts of this territory organized a system for securing the preservation of these animals, and exercised for these purposes a control over the native population. This was rightly contended to be the only exercise of proprietary right of which these particular regions were at that time susceptible, and to mark that a beneficial use was made of the whole territory by the occupants.

That seems to me very reasonable and to tend very much to support the observations that I made at an early period of this argument to the effect that these Northern regions, producing only one product which could be easily gathered by one nation, were fully appropriated by Russia to herself by the colonial establishments which she had formed for that purpose. It was this pretension and under this aspect, which attracted the notice of Great Britain. In order to ascertain what her view was in reference to it and how far she complained of it - I speak of both Great Britain and the United States and how far they complained of it — we must look to the protests which were made. The first British protest in reference to it will be found on page 14 of the Appendix to the British Case, volume 2 :

The Marquis of Londonderry to County Lieven.

FOREIGN OFFICE, January 18, 1882.

The undersigned has the honour hereby to acknowledge the note, addressed to him by Baron de Nicolai, of the 12th November last, covering a copy