Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-04-26

| winch the court Is estoDped by the actlon ol
the Executive and of Congress in deciding
that the United States has Jurisdiction ovei
the waters where the Sayward was seized. :.
The decision of Justice Storey in the SUI
folk Insurance case, counsel say, defeats the
claim of petitioner that the Executive has
no power in himself without any legislation
to decide question of sovereignty. The ex-
istence of such power, however, is made OBJ
vious bv the act under which the seizures
were ordered, which directed the President
| to seize all vessels taking seal in the waters
/ of Bering Sea. Glow" it is asked, "is the
| President to execute this demand of Con-
| gress if he does not determine for himself
what waters of Bering Sea are in the do
minion of the United States? Could Con-
gress have made palmer its wish that he
should decide9'
Jurisdiction Over Bering Sea.
Counsel say numerous seizures attest the
fact that the Executive has decided that the
United States has jurisdiction over Bering
Sea, and the voluminous public correspond
ence between Great Britain and the United
States is quoted from as establishing this
beyond all doubt.
I'VE confine ourselves to the fact of q
binding decision by the Executive and Con-
| gress." counsel say, because in SO doing
we confidently feel that we are taking the
course to which the court in its adjudication
upon the merits of this case will find itself
| limited.
Messrs. Choate and Carlisle. IN opening
their case, lay down the position of the
British Government broadly as follows !:
That on the high seas seizure and the con-
demnation by District Court for an otfense
committed many miles from land are wholly
unwarranted by the law of nations is confl-
IDENTIFY submitted, while, with equal con f.
dence, it is submitted that no law or treaty
OF the United States warrants such seizure
and condemnation, and that the District
Court of the United States for the district
of Alaska never had jurisdiction of the YES
sci or of the alleged offense; that its proceed
ings and decree are without jurisdiction,
and that it should be prohibited by this
any act under color of the usurped jurisdic-
ton.
Power of the Court.
Counsel then maintain that the power of
the court to grant a writ of prohibition can
not be questioned, and that its propriety is
evident from the nature of admiralty pro-
ceedings, the highest tribunal being emf
nently the court to determine questions in-s
volving the usurpation of jurisdiction over
vessels of foreign nations. The claim of
the United States that the seals might have
been killed within three miles of land is
declared TO be mere riotous Imagination"
the record now here disclosing that the
Sayward was never nearer that many miles
to shore
The strictly legal argument that the Su-
preme Court is bound not to 60 behind the
record of the Alaska court is attacked, it
being maintained that if the Alaska court,
in its return, submits anything, it is bound
N hv,,if .hn1a hat haT
not be prevented from thoroughly examin-
ing the correctness of the decision of the
Alaska Judge. This brings the argument
up to the rights of the United States over
Bering Sea. The merits of the application,
it is contended, require a judicial con-
struction of the sealeries act of 1889 TO de-
termine what is meant by the term "waters
of Bering Sea" and next a review of the
Russian treaty OF cesson.
Dominion In the Waters.
A consideration of the treaty makes it
clear, it is asserted, that the treaty does not
purport expressly to convey any dominion
in the waters OF Bering Sea-" aud that if
any dominion over the waters passed, it
must have been as an incident or appur-
tenant 10 the transfer OF the land under the
law of nations, an established rule of which
limits territorial waters to three miles from
shore. Counsel say it is no. necessary for
them to take ground that it is the duty of
the courts to release the seized vessel, not
withstanding an explicit declaration direct
ing seizure on the high seas.
'Our proposition" they say, "is that for
eign vessels on the high, seas are subject
only to the jurisdiction of the flag they
fy." Numerous English and American as
sertions of this proposition. are given. The
power and duty of the Court to decide the
question regardless of any action of the
Executive is maintained. The political de-
partments are Congress and the Ex-
ecutive."
An Oversight Charged.
1t is admitted that the two, by their CO.
joint action, might have determined the ex-
tent OF the dominion of the United States
over Bering Sea, but it is insisted that they
have not chosen to DO so, or make any pro-
vision by which the Executive is to de-
termine the question, and that under the
Constitution 1t therefore devolves upon the
Court. 1t is difficult to understand how a
question, which was judicial before the Dis
trict Court of Alaska, becomes a political |
question when submitted to- the Supreme
Court of the United States.
Some surprise is intimated at the claim
of the Government that the Executive alone
could bind the courts. The rights of the
Executive to deal with persons and prop
erty can never, it Is maintained, be politi- |
cal Question and any so-called legislative |
of an act of Congress must al |
ways be subject to judicial determination.
Next follows an elaborate argument es to |
rights in Bering sea and the |
claims of Russia, the United States and |
England.
Denying the Right of Seizure.
This part of the argument is substantially |
Identical with the position taken by Lord |
in his correspondence with the |
State Department and brings counsel mp to
its denial of the right of the United States
to seize the Sayward and its assertion that
the Supreme Court must grant this writ.
They say: "We deny that the judicial
power of the United States extends to the
trial and condemnation of British vessel,
seized in time of peace on the
high seas, SO miles from land. We deny
q district of the United States OF such vessel,
so unlawfulIy seized, can enlarge or extend
the judicial power of the United States, or
that the lawless act of the revenue officers,
which was contrary to the Law of Nations,
,an give the Alaska court the power to con-
1emn the vessel, or thatthe petitioner could
waive his rights under international law to
pursue his calling on the high seas. The
judicial power of the United States, as an
independent nation, is limited by the Law
,t Nations. just as the Federal judicial
power is limited by the Constitution of the
United States"
QUITE A DIFFERENT CASE.
Provisions Made for Shorn Lambs, but Not