Payment of the
Award.

On the 21st of November 1878 Mr. Welsh, under instructions from the President of the United States, delivered to the British Government a draft for the amount of the award. In so doing he stated, by direction of the President, that the payment was

to the effect that the decision of a majority of the commissioners under Article V. of the Jay Treaty would not be valid, was not accepted by his government. This fact appears by a letter of Mr. Pickering, Secretary of State, to Mr. Howell, the United States commissioner, of August 22, 1796, with which a copy of the opinion was enclosed. In this letter Mr. Pickering, after stating that he had consulted the Secretary of the Treasury and the Secretary of War, said:

"With respect to the operation of the decision of the commissioners, if you proceed to examine and decide the question we are unanimously of the opinion, contrary to that of the Attorney General, that the determination of any two of the three commissioners (all being met on the business) will be binding on both parties: and for the following reasons.

"1. That the great object of the treaty was to terminate the differences between the two nations; among which was the dispute about the river St. Croix as their boundary.

"2. That the 5th article declares that question shall be referred to the final decision of commissioners to be appointed in the manner therein prescribed:' yet on both sides, the very possible, and even probable dissent of one of the commissioners must have been contemplated when the article was framed.

"3. The parties, therefore, could never have intended to leave it positively in the power of either, against whom the decision should be made, to defeat its operation, by instructing its commissioner to withhold his signature from the declaration signed by the other two.

"4. The nature of such transactions between parties at variance confirms the justness of the opinion, that two out of three agreeing, their decision will be binding; for when each has chosen one, or an equal number, another is appointed to ensure a majority on one side or the other; one very important object of such an examination of any disputed point being, to bring the controversy about it to an end. This is exemplified in the 6th and 7th articles of the treaty, in which provision is made that three out of the five commissioners shall constitute a quorum for business; and any two of those three agreeing, their decision will be binding. Thus the differences mentioned in these two articles, which must embrace several millions of property, are to be terminated; and it is impossible to believe that two parties would purposely leave the termination of a third subject of difference to depend on the mere chance of unanimity among the arbitrators; especially when the only obvious and conceivable design of the appointment of the third commissioner must have been to ensure a decision by the agreement of two out of the three; and when to have rested the final decision on the precarious and even improbable ground of unanimity, would have been evidently to risque the grand effect of the whole negotiation, the continuance of peace, by removing every cause of war."

made on the ground that the Government of the United States desired to place the maintenance of good faith in treaties, and the security and value of arbitration between nations, above all question in its relations with the British Government as with all other governments. Under this motive the Government of the United States had, he said, decided to separate the question of withholding payment from that of its obligation to pay. The Government of the United States could not accept the result of the Halifax commission as furnishing any just meas ure of the value of the participation by its citizens in the inshore fisheries of the British provinces, and it protested against the actual payment of the award being considered as in any sense an acquiescence in such measure or as warranting any inference to that effect.'

For. Rel. 1878, 334.

5627-48

CHAPTER XVII.

FUR SEAL ARBITRATION.

By an imperial ukase, or edict, of July 8, The Russian-American Company. 1799, Paul I. of Russia granted to the RussianAmerican Company its first charter. By this instrument it was recited that the Emperor, in view of the "benefits and advantages" resulting to his Empire from the "hunting and trading" carried on by Russian subjects "in the northeastern seas and along the coasts of America," had taken the company, which was "organized for the above-named purpose of carrying on hunting and trading," under his immediate and "highest" protection. To this end he was to allow the commanders of his land and sea forces to employ them, if occasion should require, for the purpose of aiding the company in its enterprises, while for the further relief and assistance of the company he conceded to it the following rights and privileges: (1) To "have the use of all hunting-grounds and establishments now [then] existing on the northeastern [sic] coast of America, from the * fifty-fifth degree [of north latitude] to Behring Strait, and also on the Aleutian, Kurile, and other islands situated in the Northeastern Ocean;” (2) "to make new discoveries not only north of the fifty-fifth degree of north latitude, but farther to the south, and to occupy the new lands discovered, as Russian possessions," if they were not previously occupied by or dependent upon another nation; (3) "to use and profit by everything which has been or shall be discovered in those localities, on the surface and in the interior of the earth, without competition from others;" (4) to "establish settlements in future times, and fortify them to insure the safety of the inhabitants, and to send ships to those shores with goods and hunters, without any obstacle on the part of the government;" (5) "to extend their navigation to all adjoining nations and hold business intercourse with all surrounding powers, ;" (6) to

"employ" persons for the purposes of "navigation, hunting, and all other business;" (7) to cut timber "for repairs, and occasionally for the construction of new ships;" (8) to buy, at cost price, from the government powder and lead "for shooting animals, for marine signals, and in all unexpected emergencies on the mainland of America, and on the islands;" (9) to enjoy, as to its property, an exemption from seizure for the individual debts of members of the company; (10) to possess "the exclusive right" to "use and enjoy, in the above described extent of country and islands, all profits and advantages derived from hunting, trade, industries, and discovery of new lands;" (11) to have "full control over all above. mentioned localities, and exercise judicial powers in minor cases," and "to use all local facilities for fortifications in the defense of the country under their control against foreign attacks."

Ukase of 1821.

On September 7, 1821, the Emperor Alexander of Russia issued a ukase, by which he gave his sanction to certain regulations adopted by the Russian-American Company respecting foreign commerce in the waters bordering on its establishments. By these regulations "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 Behring's Strait to the fifty-first degree of northern latitude, also from the Aleutian islands to the eastern coast of Siberia, as well as along the Kurile islands from Behring's Strait to the south cape of the island of Urup, viz., to 45° 50′ northern latitude," were "exclusively 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.”

Protest of the United
States.

A printed copy of this ukase and of the regulations was communicated by M. Poletica, the Russian minister at Washington, to John Quincy Adams, then Secretary of State, on January 30, [February 11, 1822. Mr. Adams replied on the 25th of February. At this time the United States, Great Britain, and Russia were competing claimants to territory on the northwest coast of America. In his reply Mr. Adams said he was directed to state that the President had "seen with surprise, in this edict, the assertion of a territorial claim on the part of Russia,