The record-union., 1891-04-26
AN INSIGHT INTO THE ARGUMENTS
OF -rE ATTORNEYS
Difference Rank In the Army Df-
lated Q The Redemption of
Four-and alf Per Cent. Bonds
Discontinu by Secretary Foster
to Help the Adjustment.
Special to the SUNDAY UNION.
to Help the Adjustment,

reSenting the British Government were
prepared to go on with the Sayward case,
involving jurisdiction over the Behring
Sea, but the continued illness of Justice
Bradley caused the court to order the
postponement, a full bench being desired
to hear a case of so much importance.
The briefs of both sides are very volumi-
nous. They may be divided into two
parts. First, the legal argument, in
volving the right to bring the case before
the court in the rather unusual form of
writ of prohibition; and second, the po-
htlco-legal argument, involving the re-
lations between the departments of the
Government.
In the brief of the Government it is
| maintained that the writ will not under
the law issue unless want of jurisdiction
is shown on the face of the proceedings
by which the forfeiture was decreed as
the libel alleged jurisdiction properly
and the court found it. 1t is maintained
that even If the United States has not
control over waters more than three
miles from the shore, the conclusion
must necessarily be drawn that the court
found according to what was the juris-
diction or the United States, whatever
that jurisdiction may be. Numerous
denial OF the claim of counsel for the
British Government that the Supreme
| Court has the right to go beyond the face
OF the returns and determine whether or
not the court actually and rightly had
jurisdiction to try the offense. The point
| is made that though the Alaska court is
subject to prohibition, it is not, when
sitting in admiralty, an inferior court in
technical sense, but a superior court
whose DEGREES are entitled to every pre-
sumption favorable to its Jurisdiction
Counsel for Great Britain hold that no
right of appeal lay from the Alaska court
to the Supreme Court in admiralty cases,
and that, therefore, the latter court should
exercise more extended jurisdiction in
prohibition after sentence than if the
party had other remedy. This matter
turned upon the meaning of the words
lin other cases. as used in the Alaska
court, and it is maintained that it is much
too narrow a view to hold that by these
words the Supreme Court is excluded
from the power of review, and that it was
really intended by these words to give
the Supreme Court the same power of re-
view that 1t had over all other lower
courts.
Counsel for the United States then con-
tend that these things being true, and the
Alaska court having jurisdiction over the
otfense alleged, and jurisdiction over the
claimant by reason Of his voluntary ap-
pearance in court, it follows that the find
ing of the court that the seal killing was
committed within the jurisdiction of the
United States is conclusive and cannot
be impeached. A great number of
authorities are then cited as establishing
the doctrine that the finding of the
Alaska court on the matter of fact of
jurisdiction was conclusive and that the
petition for prohibition must therefore be
dismissed, the Supreme Court having no
power in collateral proceedings to retry
and review the evidence.
AS to seizure of the vessel on the high
seas, it is contended that any objections
based on Illegal seizure were waived, and
furthermore, that even if the seizure were
Illegal a municipal law having been vio-
lated, the court, when it found the vessel
owner in its jurisdiction, had nothing to
do with how he came there, but solely
with his trial for violation of the law.
Counsel do not admit that the seizure on
the high seas was unlawful, and cite from
the Supreme Court decisions as estab-
fishing the conclusive right of the United
States to seize offenders on the high seas
for offenses committed within places over
which the Government had jurisdiction
This brings the argument down to the
political aspect of the case, and it is con-
tended with great force, supported by
citations from numerous DECISIONS that
the territorial jurisdiction of the United
States is political question, from the
consideration of which the court is
stopped by the action of the Executive.
and of Congress, in deciding that the
United States has jurisdiction over
waters where the Sayward was so seized.
The decision of Justice Story in the
Suffolk insurance case, counsel say, de-
feats the claim of the petitioner that the
Executive has no power in himself with
out legislation to decide the question of
nJn raJC rT1tyy JCtn Nf ,aI,
power is made obvious, moreover, in the
Act under which the seizures We're
ordered, which directed the President to
seize all vessels taking seals in the waters
of Behring Sea.
How is the President to execute this
demand of Congress if he does not de-
termine for himself what waters of Beh-
ring Sea are within the dominion of the
United States? Could Congress have
made palmer its wish that he should de-
eide? Counsel say that numerous seizures
attest the fact that the Executive has de-
clded that the United States has jurisdic-
ton over Behring Sea, and voluminous
correspondence between the British and
American Governments is quoted from
as establishing this beyond ali doubt.
Messrs. Choate and Carlisle, in opening
their case, lay down the position of the
British Government broadly, that on the
high seas seizure and condemnation by
many miles from land are wholly un-
warranted by the law Of nations, while
with equal confidence it is submitted
that no law or treaty Of the United States
warrants such seizures and cendemna-
ton, and that the District Court of Alaska
never had jurisdiction of the vessel or it's
alleged offense.
Counsel maintain that the power of the
Supreme Court to grant writ of prohibit
ton cannot be questioned. The claim of
the United States that seals might have
been killed within three miles of land is
declared mere riotous imagination" the
record disclosing that the Sayward was
never nearer than ten miles of the Shore
The strictly legal argument that the
Supreme Court is bound not to go be-
hind the record of the Alaska court is
attacked, it being maintained that the
Supreme Court cannot be prevented from
thoroughly examining the correctness of
the decision.
Coming down to the rights of the
United States over Behring Sea, it is as
serted that the Russian treaty Of cession
does not purport to convey any dominion
in the waters of Behring Sea, and if any
dominion passed, it must have been as
an incident or appurtenant to the transfer
of land under the law OF nations, the es-
tablished rule of which limits territorial
waters to three miles from the shore.
Counsel says it is not necessary to take
the ground that it is the duty of the court
n |.