Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-04-27
THE CASE OF THE sAYwARD.
Il 10 Postponed Until the October Term
the Attorney Generals Argument

the Attorney Generals Argument
The case Of the Canadian schooner sayvard,
which involves the question Of the Jurisdiction
Of the United States over Boring sea, has been
postponed until the October term OF the SUI
preme Court, the hearing being set for October
10. The government brief in the case, which
has been made public, is . very lengthy docu-
ment
WHY TIE WRIT CANNOT ISSUE
The Attorney General claims, first that the
writ Of prohibition cannot issue after the SEN
tence Of the Alaskan court has been pronounced
unless the want Of Jurisdiction Of the latter
court was disclosed on the face Of the proceed
ings- The latter, he claims, do not include the
evidence heard by the lower court, and he says
that this cannot be examined by the supreme
Court
The second point made BY the Attorney Gen.
eral Is that in the testimony. a. shown on the
face OF the proceedings. there IL evidence from
which the trial court might have inferred that
the Sayward took seals within the three-mhe
limit
THE UNITED STATES HAS yuRIsDrcrroN.
As third point the Attorney General says
"The executive has maintained first by actual
seizure of British ships in dispute. second by .
claim asserted in diplomatic correspondents
with Great Britain, that the United States has
territorial jurisdiction over the waters Of Ber-
ing sea 10 the extent OF at least 100 miles from
the Alaskan shores for the purpose OF prevent
ing the determination of the seals by arresting
and Furnishing those engaged in such work HIS
action has been ratified by Congress
The question Of sovereignty and national
jurisdiction is political and Is primarily for the
executive ana Congress to decide. position
assumed by either as TO national jurisdiction N
conclusive upon the courts in their considers
ton of either public or private rights. The
position taken by our government in regard TO
Its Jurisdiction over Boring sea establishes con-
ciusivey for this court that the place Of seizure
and seal taking was within the territorial juris-
diction Of the United States and therefore Of
the Alaskan court"
THE JUDICIARY DOES NOT MAKE BouSDARrEs
Ii is concluded that the Judiciary does
not make boundaries: il finds them. The
courts can hear evidence, examine papers,
find the lines SO fixed and adjudged, and
decree rights, public and private, with
reference to such lines, but they are
powerless TO adjudge them TO be right or
wrong. As in actual surveys by land survey
ors. the landmarks are sometimes obscure and
dirhcult 70 fnd, but when found the survey
must conform. So with the courts; and, for
tunately, the action and correspondence Of the
political departments here leave nothing 20
doubt.
The decision of Justice Storey in the Suffolk
insurance case defeats the claim Of the petit
TONER that the executive has no power in him.
sell without any legislation 20 decide q Ques-
non OF sovereignty. The existence Of such
power, however, is made obvious by the act
under which the seizures were ordered, which
directed the President TO seize all vessels TAX
ing seal IN the waters of Boring sea. How 10
the President to execute this command Of Con-
gress If he does not determine for himself what
waters of Bering sea are within the dominion
OF the United States? Could Congress have
made palmer its wish that he should decide1
CONGRESS WOULD NOT TURN 1T OVER TO THE
COURTS
THE petitioners counsel contend that ID was
intended by this act to leave the courts 20 de-
eide what was the dominion of the United
States IN the Bering sea- Ii is impossible 10
conceive OF Congress turning over 10 the Judi
ciary question which ninety years Of judicial
opinion had decided to be question of such Q
political character as not 10 be properly cog
nizable in a court of justice. Is such an impli-
cation to be entertained in the face of the COM
mand directing the President TO make seizures2
Ii would bring about the absurd result Of max
ing revenue officers obey or disobey the Presi-
dents orders as they were willing or unwilling
10 risk subsequent decisions OF the courts. The
claim that because the rights are derived under
a treaty the courts must construe the treaty
holds no more than il the United States always
had sovereignty, for il still remains political
question to be decided by the executive or by
Congress. Numerous seizures attest the fact
that the executive has decided that the United
States has jurisdiction over Boring sea, and the
voluminous public correspondence between
Great Britain and the United States establishes
this beyond all doubt.
The question whether the Secretary Of State
as the representative of the President has taken
q position which is sound, and the historical
and international questions therein involved,
have n relevancy whatever to this discussion.
The question whether the executive has made
mistake in asserting, by his duly appointed rep
resentatlves. the territorial jurisdiction Of this
nation over the waters Of Boring sea is not one
which this court will entertain. The RESPONSE
bility by the Constitution and the laws lie placed
with him and there IL must remain. Congres-
sional action is the only mode by which
the course of the executive on such q
question can be changed or his decision
modiiied. And when We find, as we have
found, that his action has been approved and
ratified by the Congress Of the United States,
and the power which was implied before has
been expressly given him to decide the question
of the jurisdiction of the nation in the Alaskan
waters, the weight Of the other political depart
ment Of the government is added 20 the jude-
ment Of the executive. We confine ourselves
TO the fact OF a binding decision by the execu-
tive and Congress, because in doing we con-
hdently feel that we are taking the course to
which the court, in it's adjudication upon the
merits OF tins case, will find itself limited"
ARGUMENT OF THE CANADIAN COUNSEL
By the Canadian counsel il is argued that the
q
prohibition cannot be questioned, and that de-
terminiug the question the entire record must
be examined. The supposition that seals were
killed within three miles Of shore il charac-
terized as ''mere riotous imagination" there
being no evidence to prove it. The libel on
which the vessel was held is shown TO have read
that the seizure was made within the waters
of that portion Of Boring sea belonging TO the
United States, and that the vessel, her captain
and crew were then and there found engaged
in killing fur seals in said waters.
1T is confidently submitted" say the attor-
neys for Great Britain, ..as matter Of law that
no portionof Boring sec belongs 10 the United
States"
TREATY OF cEssIoN OF ALASKA QUOTED.
The treaty Of the cession Of Alaska is quoted
to prove that it does not comply any dominion
in the waters Of Boring sea. and that any Law
which Congress may pass must conform to the
law Of nations The latter is that municipal
Jurisdiction is limited to three miles or marine
league from shore Il is pointed out that the
United States has itself always insisted on this
rule.
Having thus indicated that no seals were
taken within these three miles the attorneys for
Great Britain next argue that the schooner
bayward on the high seas fifty-nine miles from
land was exempt from the Jurisdiction Of the
United States, its Law andits courts.
Finally the position taken by the Attorney
General-that the power and duty Of the su-
preme Court to decide whether the Alaska