Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-01-27

| Questions for the Executive and Not the Ju-
dicial Branch Of the Governmsnt-An Art
full But Doubtful Compliment by the British
Government to the Supreme Court.
Attorney General Miller today fled with the
Supreme Court the brief in behalf Of the
United States against the filing Of the petition
Of the Canadian government for writ Of pro-
hibition to the district court Of Alaska in the
case of the sealer W. P. Sayward.
First is presented transcript Of the records
Of the ease appealed from the Alaska court.
The argument why the petition should not be
received by the Supreme Court is then sub
mittcd. Briefly the points Of objection are
stated a. follows:
THE ARGUMENT IN BRIEF.
| The Government of the United States opposes
the filing of a petition for writ Of prohibition
to the district court Of Alaska in this case for
the following reasons:
| l. This court has no power, In any case, to
issue a writ of prohibition to that court, be-
| cause 1t Is not district court OF the United
States within section 6SS, Revised Statutes.
II. The question OF jurisdiction OF the Alaska
court which petitioners seek to present cannot
be raised on the record of the admiralty pro-
ceedings on file in this court. because
(d.) The fact OF those proceedings shows
jurisdiction in the Alaska court, and after SEN
| issue.
o. Even If the evidence on appeal may be
here examined. it shows the taking Of seals
within three miles Of the Alaskan islands, which
is confessedly within the jurisdiction of that
court, and the seizure did not Gust the juriS-
dictiOn to condemn the vessel; first, because
| objection on that account was waived; second,
| because, however tortious or illegal, the seiz-
ure could not annul the proceeding; and,
third. because the seizure, even if upon the high
seas, was legal.
III. Conceding all the facts averred in the Pc
tition, the question Of the jurisdiction OF the
Alas kan court depends upon the extent of the
dominion of the United States in Boring Sea.
political department of the Government-the
Executive and Congress. They have both de-
| cided it against the petitioners contention.
This is conclusive upon the Judiciary.
THE STATUS OF THE ALASKA COURT.
On the declaration that this court has no
power to issue a writ Of prohibition to the dis
trict court of Alaska the brief says:
Section $685. by which power is given to the
supreme Court to issue writs of prohibition to
district courts when proceeding courts Of
admiralty and maritime Jurisdiction. was
taken from section Is Of the Judiciary act Of
1883. q Stat. L., S0.) The only district courts
to which the section could have referred, were
the district courts of the United States, estab-
| llshed by the same act. for at that time there
were no others. The act was passed by virtue
of article Of the Constitution. under which
Congress was given authority to ordain and es-
tablish courts inferior to the Supreme Court as
repositories of the judicial power conferred
upon the National Government by that article
| 1t is obvious that section 6S8, when its origin
and history is considered, can not refer in the
| expression district courts to any courts of
that name except such as are established by
l. Al
| ton as courts of the United States charged with
the exercise of the Judicial power therein con-
ferred.
1.-The district court Of Alaska is not such
court. 1t Is not a court of the United States,
and does not exercise the judicial power con-
ferred by the third article of the Constitution.
1t is a mere Territorial court organized by
Congress under the fourth article of the Con-
stitution, which gives Congress the power to
establish needful rules and regulations for the
Territory and property of the United States. +"
The fact that this court of
Alaska is given the jurisdiction of the United
States circuit and district courts does not make
it either circuit district court. 1t is a mere
convenieIr mode Of describing part of the
jurisdiction which Congress intended to confer
| on it."
The conclusive evidence that the court is not
| a court of the United States, established under
the third article of the Constitution, il the fact
that the term Of the judge is limited to four
| yOdis anu 10 uOt uuTlHS SOOu DcudNlOuI. dS
provided by that article. Numerous decisions
on this point are cited.
THE QUESTION OF JURISDICTION
| In support of the declaration that ths ques-
ton Of jurisdiction cannot be raised on the
record here, the brie; urges:
| First. The face of the proceedings shows juris-
| diction and in such a case after sentences pro-
hibition will not issue.
| Writs of prohibition do not issue after SEN
tence unless the want OF the jurisdiction APP
pears upon the face of the proceedings. On
| the face of the proceedings in this case, the
court had jurisdiction, and this application is
made after sentence.
1t will be admitted that the libel shows that
| the Alaska court had Jurisdiction. The seizure
and the seal killing are both averred to have
| taken place in the waters of Alaska, and SO
| within the district of Alaska and the jurisdic-
tlon of the court. There are high authorities
| to show that after sentence, want of jurisdic-
ton must appear on the face Of. the libel before
prohibition will be granted.
I'm the case at bar, the brief says. "the pc
titioner has dismissed his appeal. The tram
script of record on appeal which he might have
used to bring TO this court, in a direct proceed
ing, knowledge of the evidence upon which the
court below determined the jurisdictional fact,
| is functus officiO.
1.-The libel shows Jurisdiction as we have seen.
The answer denies that the seizure or seal kill
ing was in the waters Of Alaska. The finding
| VI IdCb Wus tudt tucy were III tu6 waters OF
Alaska. The motion in arrest denies the juris-
dictiOn of the court over the subject matter
and the decree based on the findings of fact
orders the sale Of the vessel seized as forfeited
The mere fact of a denial of the seizure within,
the limits of Alaska does not show such want
| of jurisdiction. That denial presented an issue
| Of fact which the Alaska court was given power
| to decide, and its decision of the fact, not be-
ing appealed from, is final"
THE THEEE-MILE LIMIT
On the second point, as to jurisdiction tina.
evidence shows seal killing within three-mile
limit. Jurisdiction was therefore in the court
wherever seizure was made, the brief says:
"Even il this court may examine the evidence
contained in the transcript on appeal, to deter.
mine the jurisdiction Of the court below, II
will certainly not 60 outside of the transcript
| to consider facts not before that court II il
finds any evidence upon which the court below
might have properly founded its jurisdiction,
it will not disturb its finding.
1T will be conceded by counsel for petitioner
that the waters of Boring Sea within three
miles from the shore Of the islands or MAIN
land Of Alaska are waters Of Alaska and that
seal killing within that limit is properly an Of
Tense against the United States under section
1856, Revised Statues, no matter whether The
offender is American or foreign.
l. .'There is evidence in the record from which
the court might very well have found that the
officers and crew Of the vessel had been killinu
seal within three miles of the islands o.
| Alaska,
,.TS sp "A e. I. - l. =