Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-01-27
rnr QUESTION r rrs snrrLrsr roar.

What, then. il the question which petitioners
seek TO have judicially decided in this proceed
ing? II 10 simply the extent Of the dominion
Of the Government Of the United States in the
Alaskan waters or Boring Sea. The United
States, both by act and diplomatic correspond
ence, Tor hve years, ever since the question has
been raised or any attempt has been made to
invade her rights in the premises, has asserted
certain claims derived through her treaty of
purchase with Russia for the protection Of the
seal upon the islands and in the adjacent waters
OF Boring Sea, even 10 the extent Of seizing and
condemning persons and property engaged in
attacks upon the seals in violation Of her regu-
lations. What these claims have been is matter
OF public notoriety and diplomatic correspond
ence. Of which this court will take judicial no
nce. Zones v. .. s., 1871 U. s. R., 2l6.)
Section 1856 Of the Revised Statutes, above
quoted, is directed to the assertion Of these
claims and lest there should be any doubt
to the legislative purpose in the enactment OF
1889, above quoted. takes occasion to give q
Legislative construction to section 1856, and to
make it the duty Of the President to protect
the seal rights Of the United States Govern
ment in the premises. And the present Con-
gress, in the appropriation act Of August so.
1880 (Chap. 8S7, Of the first session, page 377 Of
the Laws), has again enforced this view. This
construction is in conformity with the construc-
ton heretofore given by the Executive De-
partment. In pursuance Of the same construc-
der of the Executive Department, by an ex-
ecutive officer and under an order Of President
Cleveland in 1887. And in pursuance of the
same policy the district attorney of the United
States filed libel and had judicial condemna-
ton Of the offending vessel. Other seizures of
like character have been made, and none of
them have ever been disavowed. In the Lam
guage of the present Secretary of State:
The United States desires only such control
over limited extent Of the waters in the Boring
SGu Co. ArE<~ l. A-~.x
to insure the protection Of the fur seal fish
cries, already injured, possibly, to an irrepara-
BILE extent by the intrusion of Canadian vessels
sailing with the encouragement Of Great Brit
ain and protected by her flag.
THE VIEWS OF THE GOVERNMENT.
This Is the claim which has always been
made. The present Secretary of State in his
last communication to the Government Of Great
Britain upon this subject adopts, as expressing
the views of the government of the United
States upon this subject, an extract from the
last communication of Mr.. Phelps, very emf
nent lawyer and the diplomatic representative
OF this Government at the court of Her Britain
mic Majesty, on September IL, 1888, as follows:
Much learning has been expended upon the
discussion of the abstract question of the right
OF mare clausum. do not conceive it to be
applicable to the present case.
Here is q valuable fishery and large and II
properly managed permanent industry, the
property of the nations on whose shores it is
carried on. 1t is proposed by the colony Of a
foreign nation, in defiance Of the joint remon-
STRANGE Of all the countries interested, to de-
stroy this business by the indiscriminate
slaughter and determination of the animals in
question in the open neighboring sea, during
the period of CESSATION, when the common
dictates OF humanity ought to protect them
were there no interests at all involved. And it
Is suggested that we are prevented from de-
tending ourselves against such depredations,
because the sea at certain distance from The
coast is free.
The same line Of argument would take under
its protection piracy and the slave trade when
prosecuted In the open sea, or would justify one
nation in destroying the commerce of another
by placing dangerous Instructions and derelicts
in the open sea near its coast. There are many
things that can not be allowed to be done on the
open sea with IMMUNITY, and against which every
sea Is mare clausum; and the right of self de-
Tense as to person and property prevails there
as fully as elsewhere. Ii the fish upon the
Canadian coast could be destroyed by scatter
ing poison in the open sea adjacent with some
small profit to those engaged in it, would
Canada, upon the just principles of interna-
tional law, be held defenseless in such a case?
Yet that process would be no more destructive,
inhuman and wanton than this.
If precedents are wanting for defense %
necessary and 30 proper, it is because prece-
dents for such a course of conduct are likewise
unknown. The best international law has arisen
from precedents that have been established
when the just occasion for them arose, unde-
| TERED by the discussion Of abstract and made
quate rules
In view of this attitude of the Executive, the
decisions above cited, and the principles upon
which they are based, it is simply incredible
| that any authority to pass upon the merits of
these claims, or to review the action Of the Ex-
ecutive in the premises, shall be asserted as
| abiding in this or any other court.
Rut IL ia said that This 10 a of "a
right; that this mans property has been seized
| and a decree Of condemnation has been rem
dered, and tina. unless the Supreme Court in
tervenes his right may be lost. To this there
are several answers.
NOT CASE OF PRIVATE RIGHT.
In the first place, this is not a bona fide
effort to enforce private right. On the con-
trary. on page 2 of the brief of counsel we find
the following:
In addition to the petition for the writ Of pro-
hibitiOn filed by the claimant herein. a sugges-
ton for such writ IL also filed in the name of
Her Britannia Majesty's encouragement of
Canada by the Dominion of Canada, at whose
| instance counsel who sign this brief appear,
| and they are authorized by Her Britannia
Majesty,s minister to the United States to say
| that such action by the Dominion of Canals is
taken with the knowledge and approval of the
| Imperial Government OF Great Britain.
In other words, this is an attempt to transfer
an international dispute from the political dip
| lomatic branch of the Government to the Judi
cial, and nothing else. No counsel are appear
| ing here at the instance of the claimant alone.
The claimants name is confessedly used simply
| as matter Of convenience. There is no aver
ment, and it is not the fact that anything was
| being done in this suit from which any injury
| could presently result to the plaintiff. The
libel had been filed, hearing had, decree rem
dered, stipulations filed, and the matter was
quietly awaiting the action of this court on ap-
| peal, or the settlement Of this dispute by the
diplomatic agents of the two nations, when the
| representatives of the British Government ap-
| pear, dismiss the appeal, and now apply for
this writ Of prohibition.
But in the second place, assuming that the
| were the only party petitioning, the result il
| no different The mistake, as we think, made
by counsel for petitioner is in assuming that in
| adjudicating upon the rights of a private party
Gtigant the court can investigate the facts and
determine upon the right or wrong of the
| claim and position of the executive department
| Of the Government.
If the court has Jurisdiction, we must admit
its right to investigate and decide, but we say
that in determining the limits of dominion OF
the United States in Boring Sea the rule of de-
cision OF this court, as well as Of the district
court Of Alaska, must be the claim Of Con-
gress and the Executive.
THE POWER OF ADMIRALTY COURTS.
The claim is made that admiralty courts
have no power to administer the municipal Law
when that is in conflict with the law of ma
| tions. The idea advanced seems to be that
these are tribunals Of international arbitration