The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-04-26
THE SAYWARD CASE
The Hearing is Postponed Until
October Nineteenth.
THE BRIEF OF THE GOVERNMENT
Maintains Writ of Prohibition Cannot Issue
Counsel for Great Britain Hold Other
wise-The Law Of Nations.

WASHINGTON, April 25.-The supreme
court has postponed the hearing in the Say
ward and lottery cases until October 49,
The government and counsel representing
the British government were prepared to
go on with the Sayward case involving the
question of jurisdiction over Behring sea.
but the continued illness of Justice Brad
ley caused the court to order a postpone
ment, full bench being desired to hear a
case of so much Importance The briefs of
both sides are very voluminous. They are
divided into two parts: Illegal argument
involving the right to bring the case before
the court in the rather unusual form of a
writ OF prohibition; and, 2-The politico-
legal argument involving the relations be-
tween the departments of the government.
In the brief of the government it is main
tanned the writ will not, under the law, is
sue unless want of jurisdiction is shown on
the lace OF the proceedings by which for
feiture was decreed. AS to libel jurisdic-
ton proper, it is maintained that even if
the United States has not control over
waters more than three miles from shore,
the conclusion must necessarily be drawn
that the court found according to what was
the jurisdiction of the United States, what
ever that jurisdiction may be. Numerous
authorities are cited in support of the denial
of the claim of counsel for the British gov
eminent 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 has Jurisdiction to
try the offense. The point is made that
though the Alaska court is subject to pro-
h1bltlon, 1t is not when sitting in admiral
| Ivy an inferior court in technical sense
|
entitled to every presumption favorable to
| its Jurisdiction
Counsel for Great Britain held 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 pro-
hlb1tlng, II the party had no other remedy.
This matter turned upon the meaning of
the words I'm 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 power of review and that it is really
intended by these words to give the su-
preme court the same power of review that
1t had over all other lower courts
| Counsel for the United States then con-
tended that these things being true and the
Alaska court having Jurisdiction over the
| ofense alleged and Jurisdiction over the
claimant by reason of his voluntary appear
ance in court, it follows that the finding of
the court that seal killing was committed
within the Jurisdiction of the United States
ls conclusive and cannot be impeached. A
great number of authorities are then cited
as establishing the doctrine that the find
Ing OF the Alaska court on the matter of
| fact OF Jurisdiction was conclusive and that
| the petition for writ of prohibition must
therefore be dismissed, the supreme court
having, it1 is asserted, no power in COL
10 70,
evidence.
AS to the seizure of the vessel on the
high seas, 1t is contended that any obiec-
lions based on illegal seizure were waived; ;
and furthermore, that even if the seizure
were illegal municipal law having been
violated, the court, when it found the YES
| sel's 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 seizure on the
high seas was lawful and cite from su-
preme court decisions as establishing con-
! clusively the right of the United States to
sieze vessels on the high seas for offenses
committed within places over which this
| government has jurisdiction.
This brings the argument down to the
political aspect of the case and it is con-
tended with great force, supported by cita-
tions from numerous decisions, that the
territorial jurisdiction of the United States
is a political question, from the considera-
ton OF which the court is stopped by the
| action of the executive and of Congress de-
Gliding that the United States has jurisdic-
ton over the waters where the Sayward
was seized.
The decision of Justice Story in Suffolk
Insurance case, counsel say, defeats the
| claimant; that the executive has no power
in himself without legislation to decide q
question OF sovereignty. The existence of
such power is made obvious, however by
the act under which the seizures were or
dered, which directed the President to seize
all vessels taking seals in the waters
of Behring sea. How is the President
! to execute this command of Congress
ii he does not determine for himself what
waters of Behring sea are within the
dominion of the United States Could
Congress have made palmer its wish that
he should decide? Counsel say numerous
seizures attest the fact that the executive
has decided that the United States has
jurisdiction over the Behring sea, and the
voluminous correspondence between the
British and American governments is
quoted from as establishing that beyond
all 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 bv a
district court for an offense Committed
many miles from land are wholly unwar-
ranted by the law of nations, while with
/ equal confidence 1T is submitted that no law
or treaty of the United States warrants
such seizure and condemnation, and that
the district court of Alaska never
had Jurisdiction Of the vessel or
its alleged offense Counsel main
court to grant writ of prohibition cannot
be questioned. The claim of the United
States that the seals might have been
killed within three miles of land is declared
a mere riotous Imagination, 1.-THE record dis
closing that the Sayward was never nearer
than ten miles to the shore. The strictly
legal argument that the supreme court ia
bound not to go behind the record of the
Alaska court is attacked, it being main
tanned the supreme court cannot be pre-
vented from thoroughly examining the cor
rectness of the decision.
Coming down to the rights of the United
| States over Behring saa, it is asserted the
Russian treaty of cession does not purport
to convey any dominion in the waters of
Behrlng sea. and if any dominion over such
waters is passed, 1t must have been as in
cident or appurtenant to the transfer of the
land under the law of nations, the estab
lished rule of which limits territorial
waters to three miles from shore. Conn
sci say it is not necessary to take the
ground that 1T is the duty of the court to
release the seized vessel, Notwithstanding
the explicit direction directing a
seizure upon the high seas, their
proposition being that foreign
vessels on the high seas are subject only to
the jurisdiction of the flag they fly. 1t is
admitted Congress and the executive
might, byl conjoint action, have determined
the extent of the dominion of the United
States over Behring sea, but it is insisted
they have not sworn to do so nor to make
any provision by which the executive is TO