St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-04-26
British Want a Writ of Pro-
hibition to Prevent Con-
demnation and Sale,
Jurisdiction of the United
States Over the Fisheries
Questioned.ss
The Argument of the Case Is
Postponed Until the 10Th
Of October.

w ION. n pm co. Il6 CAST Ol
EX-parte Thomas Henry Cooper, owner
of the schooner Sayward, brought at
the suggestion of the government of
Great Britain to test the question of the
jurisdiction of the United States over
the seal fisheries in Behring sea, which
has been IN dispute between the two
governments during several admins
trations, has been postponed by
the supreme court of the United
States until Oct. 10Th, next,
when argument will begin. The
case is before the court in the form of
petition on behalf of the owner of the
Sayward for writ of prohibition to pre-
vent the United States district court for
Alaska from proceeding with the con-
demnation and sale of the vessel under
a decree of forfeiture by the court for
violation of the laws of the United
States, prohibiting the taking
of fur seals within the wa
by the British government to secure in
this manner an opinion from the high
est judicial tribunal of the United
States TO exercise jurisdiction over the
sea more than three miles from land.
There is a contention on the part of the
United States that some of the seals
may have been taken by the Sayward
within the three-mie limit, but not
much importance is attached to this
claim, SO that If the court decides the
question on its merits, aside from legal
technicalities, it would constitute, so far
as this country is concerned, judicial
determination Of the long-pending dip
lomatic controversy.
C1l1prnn Carlisle Of tbis oitv
counsel for the Canadian government
in the case, bases the principal points
of his argument in favor of issuance by
the supreme court of the United States
of law of prohibition upon the district
court of Alaska, where the proceedings
were had which resulted in the seizure
of the
British Schooner Sayward.
on the following grounds: That this
court has the judicial power under the
constitution and laws to issue the writ
of prohibition to the district court of
Alaska in this case, if it be shown on
the face of the proceedings that the
district court of Alaska has proceeded
without Jurisdiction or in excess of
jurisdiction. That in determining what
are 1.-THE limits of Alaska territory and
the waters thereof" and what is the
dominion OF the United States in the
waters of Behring sea, this court can
only look to the laws and treaties of
the United States and the laws of ma
tiOnS. That this court is authorized and
empowered by section 6SS, Il. S.. in the
exercise of the appellate power con-
ferred by the constitution, directly to re-
wise and review in this case as Supe-
rior court, the proceedings of the district
court of Alaska, as an inferior court of
limited jurisdiction. In the face of the
district court of Alaska it appears, as
schooner w: P. Sayward was,
the high seas fifty-nine miles from
ny land, by public armed vessel of
abe United States. forcibly carried into
tthe territorial jurisdiction of the dis
trict court of Alaska and delivered to
the United States marshal, and while in
such custody was, by the attorney of
the United States, libeled, and by that
court condemned as forfeited for acts
claimed to have been committed more
United States. That the place of seiZ-
ure and all positions of the
vessel when the acts complained
of were committed, were without the
jurisdiction of the United States and its
court. That the subject matter of the
proceedings in the district court of
Alaska being the conduct of the vessel
of foreign nation Oh the high seas,
outside the territorial limits of the
United States, was beyond the jurisdic-
tion of the district court and of the
sovereign which created it, and no
waiver or consent could confer jurisdic-
tion. In conclusion, the coun-
sci argues: Unless the court shall
find, what counsel's research has
failed TO discover, some controlling
principle of the law which requires it to
ignore fundamental want of jurisdic-
ton, disclosed on the face of the pro-
ceedings of an inferior court subject to
its direct authority and controlled by
the want of jurisdiction being in the
sovereign which created both this court
and the inferior court-the writ must
ISSUE"
The brief of
Attorney General Miller,
representing the United States govern
ment. which will probably be filed Mon
day, sets forth the position of the Unit
ed States as follows: The petition for
the writ should be denied for the fol-
lowing reasG9s: Prohibition will not
issue after sentence unless the want of
jurisdiction is disclosed on the face of
section 750 r. S., set forth in the return
herein, is the face of the proceedings and
full jurisdiction to enter decree of CON
demnation of the Sayward there appears.
In the testimony as shown in the ap-
pendiX to the petition, there is evidence
from which a trial court might have
inferred that the Sayward took seals
within the three-mile limit. If this was
jurisdictional fact, the decree of for
feiture conclnsively establishes it. The
fact that the seizure was made outside
the territorial Jurisdiction of the court
and the country cannot affect the power
of the court to adjudge a forfeit
ure for an otfense committed
within Its jurisdiction. first. because
the objection was waived by voluntary
appearance of owner to defend; second.
because the tortoise character of the
seizure cannot avoid decree founded
on punishable offense; and third. be-
cause seizure on the high seas for an
Qffense committed within the munic-
ipal Jurisdiction is lawful. The ex-
ecutive has maintained, first, by
actual seizures of British ships,
not disayowed; and, second, BY
a claim asserted in diplomatic
correspopdence with Great Britain,
that the United States has territorial
jurisdiction over the waters of Berirg
sea to. the extent of at least 100 miles
from the Alaskan shores for the pur-
pose OF preventing the extefminatioh Of
seai Dy arresting and Furnishing those
engaged in such work, His action has