The Sunday herald and weekly national intelligencer., 1891-04-26
BEHRING SEA ARGUMENTS.
CONTINUED From First Page


diction. AS to the seizure of the vessel on
the high seas, it is contended that any OBJ.
1ections based on illegal seizure were
waived, and furthermore that even If the sez-
ure were illegal, municipal law having been
violated, the court when it found the vessels
owner in its jurisdiction has nothing to do
with how he came there, but solely with his
trial for violation of law. The Ker case is
quoted, in which habeas corpus was denied
Notwithstanding the man had been kidnapped
and forcfbly brought within jurisdiction. But
counsel say they do not admit that the seizure
on the high seas was unlawful and cite from
Supreme Court decisions as establishing con-
clusively the right of the United States to
seize vessels on the high seas for offenses
which are committed within places over which
this Government has jurisdiction.
To be brief, says Government counsel, the
judiciary does not make boundaries; it 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 surveyors, the
landmarks are sometimes obscure and diff
cult to find, but when found the survey mast
conform SO with the courts; and fortunately
the action and correspondence of the political
departments here leave nothing to doubt.
The decision of Justice Story in the Suffolk
assurance case, counsel say, defeats the
claim OF the petitioner that the Executive has
no power in himself without any legislation
to decide question OF sovereignty
"On the WHOLE" says the brief, .'it would
be difficult to imagine how the action of the
Executive could have been more decided or
more definite, with respect to the political
question of the territorial jurisdiction over
Behring Sea, than it has been. - The
question whether the Secretary of State, as
the representative of the President. has
taken position which is sound
and the historical and international
questions therein involved, have no relevancy
whether the Executive has made mistake in
asserting by his duly appointed representa-
uves the territorial jurisdiction of this nation
over the waters of Behring Sea is not one
which this court will entertain. The respon-
sibility by the Constitution and the laws is
placed with him, and there it must remain.
Congressional action is the only mode by
Which the course of the Executive on such a
position can be changed or his decision modi-
ned. 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 ex-
pressly given him to decide the question
OF the jurisdiction of the nation in
the Alaskan waters, the weight of
the other political department of the Govern
ment is added to the judgment of the Exec
utlve. We confne ourselves to the fact of
binding decision by the Executive and Con-
gress, because in so dong we confidently feel
that we are taking ne course to which the
court, in its adjudication upon the merits of
the case, will find itself limited.'
Messrs. Choate and Carlisle, in opening
their case, lay down the position of the Brit
ish government broadly, as follows:
That on the high seas a seizure and the con-
demnation by district court for an offense
unwarranted by the law of nations is conf
IDENTIFY submitted, while with equal conf-
dence, it is submitted that no lawor treaty of
the United States warrants such seizure and
condemnation, and that the District Court of
the United States for the district of Alaska
mover had jurisdiction and that it would be
prohibited by this court from enforcing said
decree or doing any act under color of the
usurped jurisdiction.
Counsel then maintained that the power of
the court to grant writ of prohibition cannot
be questioned, and that its propriety is evident
from the nature of admiralty proceedings, the
highest tribunal being eminently the court to
determine questions involving the ursupation
of Jurisdiction over vessels of foreign nations.
That in determining the lower courts jurisdic-
tion the courts examination is coextensive
with that of the condemning court, counsel
say, must be answered in the affirmative from
bare statement OF the proposition, for 1t must
have equal information with that as the court
whose inding OF jurisdiction is to be reviewed.
That the evidence Is a part Of the face of the
proceedings counsel affirm on the strength of
numerous cited opinions, the accuracy and
authority of which is undoubted
The claim of the United States that seals
might have been killed within three miles of
land is declared to be "mere riotous imagina-
tion," the record nowhere disclosing that the
Sayward was ever nearer than ten miles to
shore
The strictly legal argument of the Solicitor
General that the Supreme Court is bound not
to go behind the record of the Alaska court Is
attacked, 1t being maintained that If the
Alaska court In its return submits anything 1t
is bound to submit the whole and that the
court cannot be prevented from thoroughly
examining the correctness of the decision of
the Alaska judge.
This brings the argument up to the rights of
the United States over Behring Sea. The
merits of the application, 1t is contended, re-
quire judicial construction of the sealeries
act OF 1889 to determine what is meant by the
terms "waters of Behring Sea-" and next
review of the Russian treaty of cession.
consideration of the treaty makesit clear,
1t is asserted, that the treaty does not purport
expressly to convey any "domain in the
waters of Behnng Sea" and that If any do
minion over the waters passed it must have
been as an incident or appurtenant to the
transfer of the land under the law of nations,
an established rule OF which limits territorial
waters to three miles from shore.
Next follows an elaborate argument as to
International rights In Behring Sea, and the
claims of Russia and the United States and
England. This part of the argument is sub
stantially Identical with the position taken by
Lord Salisbury in his correspondence with the
State Department and brings counsel up to its
denial OF the right of the United States to
seize the Sayward and its assertion that
the Supreme Court must grant the writ.
A Duel With Pistols.