The morning call., 1891-04-27
BEHRING SEA.
PostpOnGmBnt Of The Hearing in The Say
ward and Lottery Cases.

ward and Lottery Cases.
WASHINGTON, April 26.-The Supreme
Court has postponed the hearing in the
Sayward and lottery cases until October
18th. The Government and the counsel
representing the British Government were
prepared to go on with the Sayward case,
involving jurisdiction over Behring Sea;
but the continued illness of Justice Bradley
caused the court to order postponement,
full bench being desired to hear a case OF
so much impo rtanee.
The briefs of both sides arc very volumin-
Gus. They may be divided into two parts;
first, the legal argument, involving the right
to bring the case before the court in the
rather unusual form of a writ Of prohibition;
and second, the polittcs-legal argument in
vOlying the relations b tween the depart
ments of the Government.
THE GOVERNMENT ARGUMENT.
In the brief of the Government it Is main
tanned that the writ will not, under the law,
issue unless want of jurisdiction is shown
on the face of the pr oceedings by which the
forfeiture was decreed. As the libel alleged
jurisdiction properly and the court found
it, it is maintained that even if the United
States has no control over the 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, whatever that jurisdiction may be.
Numerous authorities are cited in support
OF the denial OF the claim of counsel for ths
British Government that the Supreme Court
has the right to go beyond the face of the
returns and determine whether or nat the
court actually and rightly had jurisdiction
to try the offense.
NOT AN INFERIOR COURT.
The point is made that though the Alaska
court is subject to prohibition it is not,
when sitting in admiralty. an inferior
court in a technical sense. but a superior
court, whose DEGREES are entitled to every
favorable to its jurisdiction.
Counsel for Great Britain held that
no right of appeal lay from the Ala ska
court TO the Supreme Court in admiralty
cases and that therefore the latter court
should exercise more extended jurisdiction
in prohibition after sentence than il
party had other remedy. This matter
turned upon the meaning of the
words "in other cases" as used
in the Alaska court, and il is maintained
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
review that it had over all other lower
courts.
CONCLUSIVE EVIDENCE.
Counsel for the United States then con-
tend that these things being true, aud the
Alaska court having Jurisdiction over the
oifense alleged, and jurisdiction over the
claimant by reason ofhiS voluntary appear
ance In court, it follows that the finding of the
court that sealkilling was committed within
the jurisdiction of the United States is con-
elusive aud cannot be impeaehed. A great
number of authorities are then cited AS eS-
tablishing the doctrine that the finding Of
the Alaska court on Il matter of fact
was conclusive and that the petition
for prohibition must therefore be dis
missed, the Supreme Court having, it is
asserted, NO power in collateral proceeding
to retry and review the evidence.
AS to the seizure of the vessels on the
high seas, it is contended that any O6jec-
tons based on Illegal seizure were waived,
and furthermore, that even IL the seizure
were illegal, a municipal law having been
sePs 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
Supreme Court decisions as establishing the
conclusive right OF the United States to
seize vessels on the high seas for effenses
within places over which this
had jurisdiction.
A POLITICAL ASPECT.
This brings the argument down to the
political aspect of the case, and 1t Is con-
tended with great force. supported by eita-
lions from numerous decisions. that the
territorial jurisdiction of the United States
is political question from the c0nsidera-
tiOn nf which the court St0nDp1 nv
the action of the Executive and of
Congress in deciding that the United
States has jurisdiction over the waters
where the Sayward was seized.
The decision of Justice Storey in the Suf-
folk Insurance case, counsel say, defeats
the claim of petitioner that the Executive
has no power in himself without legislation
to decide a question of sovereignty. The exist
ence of such power is made obvious More
over, the act under which the seizures
were ordered, directed the President To
seize all vessels taking seals in the waters of
Behring Sea, and how is the President to
execute this command of Congress if 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 says
that numerous seizures attest the fact that
the Executive has decided that the United
States has jurisdiction over Behring Sea.
and the v0luminOuS correspondence be-
tween the British and American Govern
ments is quoted from as establishing this
beyond all doubt.
CHoATE AND CARLIsLE's STAND.
Messrs. Cboate aud Carlisle. in opening
their case, lay down the position of the
British Government broadly that on the
high seas seizure and condemnation by
District Court, for an GffenSe committed
many miles from land. are wholly unwar-
ranted 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 condemnation. and that the Dis
triet Court of Alaska never had jurisdiction
over the vessel or its alleged OffenSe. COun-
sci maintains that the power of the Supreme
Court to grant Il 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 "mere
riotous imagination" the record disclosing
that the Sayward was never nearer than ten
miles to shore.
JURISDICTION DISPUTED.
The strictly legal argument that the Sli-
preme Court is bound not to 60 behind the
record of the Alaska court is attacked it be-
ing maintained hat the Supreme Court can
not be prevented from thoroughly eXamin-
ing the correctness of the decision. Coming
down to the rights of the United States over
Behring Sea, it Is asserted that the
Russian treaty of cession does no
purport to convey any dominion over
the waters of Behring Sea and
if any dominion over such water passed, il
must have been as an incident or appurte-
nant to the transfer of land under tie
law of nations, an established rule OF
which limits territorial waters to three
miles from shore. Counsel says it is
not necessary to take ground that ii
is the duty of the court to release
a seized vessel, notwithstanding an explicit
declaration directing such seizure on the
high seas, their proposition being that for
egn vessels on the high seas are subject
only TO the jurisdiction of the flag they tiy.
DEyoLvEs UPON THE COURT.
1t is'admitted that Congress and the En-
scutive might, by cojoint action, have de-
termined the extent of the dominion
1f the United States over Behring Sea, but
it is insisted that they have not sworn t. d"
so, nor to make any provision by which the
Executive is to determine the question, anil
under the Constitution it therefore devOives
upon the court. The right of the EXeciI-
tive to deal with persons and property
IAN never, it is maintained, he
a political question, and any so-called lepi6-
atiye construction of the act of Congress
a ha cu11ippt IN iu1ieiat