There are questions, not unworthy of attention, which arise under the
treaty between Russia and Great Britain, fixing the eastern limits
of these possessions, and conceding certain privileges to the latter
power. By this treaty, signed at St. Petersburg, 28th February,
1825, after fixing the boundaries between the Russian and British
possessions, it is provided that “for the space of _ten years_ from the
signature of the present convention, the vessels of the two powers,
or those belonging to their respective subjects, shall mutually be at
liberty to frequent, without any hindrance whatever, all the inland
seas, the gulfs, havens, and creeks on the coast, for the purposes of
fishing and of trading with the natives”; and also that “the port of
Sitka, or Novo Archangelsk, shall be open to the commerce and vessels
of British subjects for the space of _ten years_ from the date of the
exchange of the ratifications of the present convention.”[12] In the
same treaty it is also provided that “the subjects of his Britannic
Majesty, from whatever quarter they may arrive, whether from the ocean
or from the interior of the continent, shall _forever_ enjoy the
right of navigating freely and without any hindrance whatever all the
rivers and streams which in their course towards the Pacific Ocean may
cross the line of demarcation.”[13] Afterwards a treaty of commerce
and navigation between Russia and Great Britain was signed at St.
Petersburg, 11th January, 1843, subject to be terminated on notice from
either party at the expiration of ten years, in which it is provided,
that, “in regard to commerce and navigation in the Russian possessions
on the northwest coast of America, the convention concluded at St.
Petersburg on the 16/28th February, 1825, continues in force.”[14]
Then ensued the Crimean War between Russia and Great Britain, effacing
or suspending treaties. Afterwards another treaty of commerce and
navigation was signed at St. Petersburg, 12th January, 1859, subject
to be terminated on notice from either party at the expiration of ten
years, which repeats the last provision.[15]
Thus we have three different stipulations on the part of Russia:
one opening seas, gulfs, and havens on the Russian coast to British
subjects for fishing and trading with the natives; the second making
Sitka a free port to British subjects; and the third making British
rivers which flow through the Russian possessions forever free to
British navigation. Do the United States succeed to these stipulations?
Among these I make a distinction in favor of the last, which by its
language is declared to be “forever,” and may have been in the nature
of an equivalent at the settlement of boundaries between the two
powers. But whatever its terms or its origin, it is obvious that it
is nothing but a declaration of public law, as always expounded by
the United States, and now recognized on the continent of Europe.
While pleading with Great Britain, in 1826, for the free navigation
of the St. Lawrence, Mr. Clay, then Secretary of State, said that
“the American Government did not mean to contend for any principle
the benefit of which in analogous circumstances it would deny to
Great Britain.”[16] During the same year, Mr. Gallatin, our minister
in London, when negotiating with Great Britain for the adjustment of
boundaries on the Pacific, proposed, that, “if the line should cross
any of the branches of the Columbia at points from which they are
navigable by boats to the main stream, the navigation of such branches
and of the main stream should be perpetually free and common to the
people of both nations.”[17] At an earlier day the United States made
the same claim with regard to the Mississippi, and asserted, as a
general principle, that, “if the right of the upper inhabitants to
descend the stream was in any case obstructed, it was an act of force
by a stronger society against a weaker, condemned by the judgment of
mankind.”[18] By these admissions our country is estopped, even if the
public law of the European continent, first declared at Vienna with
regard to the Rhine, did not offer an example which we cannot afford
to reject. I rejoice to believe that on this occasion we apply to Great
Britain the generous rule which from the beginning we have claimed for
ourselves.
The two other stipulations are different in character. They are not
declared to be “forever,” and do not stand on any principle of public
law. Even if subsisting now, they cannot be onerous. I doubt much if
they are subsisting now. In succeeding to the Russian possessions, it
does not follow that the United States succeed to ancient obligations
assumed by Russia, as if, according to a phrase of the Common Law,
they were “covenants running with the land.” If these stipulations are
in the nature of _servitudes_, they depend for their duration on the
sovereignty of Russia, and are _personal_ or _national_ rather than
_territorial_. So, at least, I am inclined to believe. But it is hardly
profitable to speculate on a point of so little practical value. Even
if “running with the land,” these servitudes can be terminated at the
expiration of ten years from the last treaty by notice, which equitably
the United States may give, so as to take effect on the 12th of
January, 1869. Meanwhile, during this brief period, it will be easy by
Act of Congress in advance to limit importations at Sitka, so that this
“free port” shall not be made the channel or doorway by which British
goods are introduced into the United States free of duty.