The morning news. [volume] (Savannah, Ga.) 1887-1900, 1891-04-26
CASE OF THE SAYWARD.
THE SUPREME COURT BEARING
POSTPONED TILL OCTOBER.

Matter Comes Before the Tribunal
The Briefs Filed BY the Opposing
Coursel Exceedingly voluminous-
The Arguments Outlined.
WASHINGTON, April 25.-The case OF
Thomas Henry Cooper, the owner of the
schooner Sayward. brought at the suggestion
of the government of Great Britain to
test the question Of the jurisdiction of the
United States over the seal fisheries in Ber-
ing sea, which has been in dispute between
the governments during several administra-
tiont. has been postponed by the supreme
court of the United States until Oct. 10
next, when the argument will begin.
NATURE OF THE CASE.
The case is before the court in the form
OF petition on behalf OF the owner OF the
Sayward for a writ OF prohibition to pre-
vent the United States district court of
Alaska from proceeding with the con-
donation and sale Of the vessel under the
decree of forfeiture by the court
for violation of the laws Of the
United States prohibiting the taking
OF fur seals within the waters of
Bering sea. 1t is sought by the British gov
ernment to secure in this manner an opinion
from the highest judicial tribunal of the
United States on the right of the United
States to exercise jurisdiction over the sea
more than three miles from the land.
CONTENTION OF THIS COUNTRY.
There is contention on the part Of the
United States that some of the seals may
have been taken by the Sayward within the
three miles limit, but not much Importance
is attached to this claim, so that If the court
decides the question on its merits, aside from
legal technlcalities, it would constitute, so
far as this country Is concerned, judicial
determination of the pending diplomatic
controversy. The case was to have come
up for argument Monday, and both sides
have their briefs prepared for submission to
the court Monday, but the court decided
not TO hear the counsel at this time, owing
to the illness Of Justice Bradley, and its de-
sire not to try such an important matter
without full bench.
LONG BRIEFS.
The briefs, however, have been made
public. They are voluminous documents
of nearly 200 pages each, and there are in
addition copious appendices. Attorney
General Miller and Solicitor General Taft
prepared the argument for the United
States and Joseph II. Choate Of New York
city and Calderon Carlisle of Washington
that for the petitioner. The argument of
the counsel on each side may be divided
into two parts, viz, first, strictly legal
argument involving the right to bring the
case before the court in the rather unusual
form Of a writ Of prohibition; and, second,
what may be termed politico-legal argu>
ment, involving the relations between the
legislative and executive and judicial de-
| partments of the government, and the bind
Ing force upon the judiciary of decision by
the executive as 30 the jurisdiction apper-
| tanning to the United States.
THE FIRST TAKEN UP.
The former branch of the case Is the first
taken up in the brief of the United States.
the counsel maintaining that the writ OF
prohibition will not, under the law. issue
unless want of jurisdiction is shown on the
face Of the proceedings by which forfeiture
was decreed. The argument Is directed to
establishing the fact that the jurisdic-
| tion of the Alaska court was complete
and final. AS to the political aspect
OF the case, it is contended with great
force, supported by citations from numer-
| Gus decisions. that the territorial iurisdic-
tion of the United States is a political
question, from the consideration of which
the court Is estopped by the action of the
executive and congress in deciding that the
United States had jurisdiction over the
waters where the cay ward was seized.
DUTY OF THE JUDICIARY.
I'm brief" says the government counsel,
'the judiciary does not make boundaries
it fluids them. On the whole,n SAYS the
brief, lit would be difficult to imagine how
the action of the executive could have been
more decided or more definite with respect
to the political question Of territorial iuris,
diction over Bering sea, than it has been.
The question whether the Secretary Of
State, as the representative of the
President, has taken a position which is
sound, and the historical and international
questions therein involved, have no rele-
vancy whatever to this discussion. The
question whether the executive has made a
mistake In asserting by his duly appointed
representatives territorial jurisdiction of
this nation over the waters of Bering sea is
not one which this court will entertain. The
responsibility by the constitution and
laws is placed with him, and there it must
remain"
CLAIMS OF THE BRITISH.
Messrs. Choate and Carlisle, in opening
their case, lay down the position of the
British government broadly as follows:
That on the high seas seizure and con-
demnation by district court for an offense
committed many miles from land are
wholly unWarranted by the law
of nations is confidently submitted
while with equal confidence it is submitted
that no law or treaty OF the United States
warrants seizure and condemnation, and
that the district court of the United States
for the district of Alaska never had iuris-
diction. and that 1t would be prohibited by
this court from enforcing said decree or do
ing any act under the color Of usurped ju-
risdiction."
JURISDICTION DENIED.
IL summing up they say: I'VE deny that
the judicial power OF the United States ex-
tends to the trial and condemnation Of
British vessel wrongfully seized in time
Of peace on the high seas, ffty-nine miles
from land. We deny that forcibly bringing
into the limits Of the district Of the United
States Of such vessel, so unlaw-
fully seized, can enlarge or extend
the judicial power Of the United
States, and that the lawless
act Of revenue officers, which was contrary
to the Law of nations, can give the Alaska
court power to condemn a vessel. or that
the petitioner could waive his rights under
International law to pursue his calling on
the high seas. The judicial power OF the
United States as al independent nation is
limited by the law of nations, Just as the
federal judicial power is limited by the