The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-03-27
SUSTAINED IN COURT.
Judge Hanford Upholds the
Claim to Boring Sea.
THE sEALER SWAN is FORFEITED.
Declarations Of Executive and Consrsss
BINDING ON the Courts in Polit.
zeal Questions.

schooner James G. Swan, which was seized in
1853 ior taking seals in Alaskan waters in viola
s.on oil the provisions OF the federal statutes.
The ruling is one OF the most Importance, as it
establishes precedent for numerous similar
cases The decision, in the first place, gives
construction to the United Statss statutes for
tue protection OF fur seals, by making them ap-
pncapie and operative in all waters, including
tnat portion of Boring sea within the bounda-
iies defined in the treaty with Russia ceding
Alaska to the United States.
The sscend proposition advanced is that q ma
uon may extend its jurisdiction over the sea be-
yond the limits previously recognized by inter-
national law whenever necessary for the protec-
ton Of its National interests.
II Is held in the third place that national
boundaries, fixed by the action of executive or
legislative branches of the government, will be
taken judicial notice of and regarded by the
courts of the country as the actual boundaries;
and declarations of the executive and leyisia-
: lure. As to the extent OF national jurisdiction
and sovereignty, are binding upon courts, for
the reason that any questions a. to the validity
OF claims of jurisdiction so asserted are OF po-
htical nature, and not proper subjects for dis
cussien by the judicial branch of the govern
ment. The full text Of Judge Hsnfords opin-
lon Is as follows:
United States district court, District of Wash
ington. Northern Division. United States VS..
schooner James G. Swan, etc. Opinion filed
March %, 1892.
The schooner James G. Swan formerly the
Anna Beck was seized, and by q decree OF the
district court for the district of Alaska, was
condemned az forfeited to his United States for
pelng engaged in the business of killing fur
seals, in tbs waters Of Alaska in violation of
section 1885, Revised Statutes. At the marshaps
sale pursuant to said decree, the claimant, Ches-
toqua Peterson, an Indian OF the Makah tribe,
purchased said vessel and changed her name TO
the James g. Swan. In the spring Of 1859 he
sent her with crew OF Makah Indians, under
a q II n q M nm atir.x
upon the Pacific ocean and Boring sea. On
July 3d. 1889, said vessel with her said master
and crew, in Boring sea, in latitude So degrees,
A minutes north, Longitude Ill degrees 4 min
utes west, distant about seventy miles from the
nearest land, and within the boundaries of the
territory coded TO- the United States
by the emperor OF Russia, as the same
are defined in the treaty between the govern
ments OF the United States and Russia, was en-
gagged In killing fur seals; and was for that
cause then and there by the commander OF
United states revenue cutter seized and brought
to Port Townsend, in this district. Fur seals
were actually killed BY the crew, during said
OF nine miles from land. A libel Of information
was filed against said vessel by the United
States attorney in tho late district court for the
Third Judicial district of ths territory of WASH
ington. This court, upon Its organization, as
successor of said territorial court, took cogni-
zance OF the case; hearing has been had and
information and the answer there being no dis
pute as to any material fact.
r H. winston, United States attorney; P. C.
sullivan, assistant United states attorney, for
for claimant.
Hantord, j.:
Fur seals in great numbers habitually mako
annual visits to tho Pribilof islands in sering
sea. sfording to the native inha ,itants their
means OF living, the flesh of the animals being
their principal article If food and seal skins be-
Lfng the only commodity of commercial value
obtainsble by their industry. Previous to the ac-
QUESTION OF Alaska by our government the pre-
seryation Of these animals from indiscriminate
slaughter and determination was by the Rus
sian government deemed necessary for the sub
sistance of said inhabitants, and accordingly au-
shority over All OF Boring sea lor the protection
Inhabitants was assumed. The emperor of
Russia also asserted authority over Bering sea
by assuming to transfer to the United states
definite boundaries including q large part
thereof; and the United States by the
ratifcstien OF the treaty and csnsumnation Of
the purchase of said territory acquired q claim
OF right 10 exercise the authority aRd sever
eighty over that portion OF the sea which had
besn therstofore exercised by Russia. Our gov.
eminent asserted its authority to restrict the
killing OF seals in all the waters included within
the boundaries described in the treaty very
promptly after tho formal transfer OF the terri
tory. At the first session of congress thereafter
a statute was passed entitled, "An act to extend
the laws of the United States relating to Gus
toms, commerce and navigation over the terri
tory coded to the United States by Russia, to ss-
tablish q collection district therein, and for
other purposes" The first section of said act
(uow section 1854 r. S.l declares that, "The laws
of the United States relating to Gus
toms, commerce and navigation are ex-
tended to and over the mainland, islands,
and waters of the territory coded to the United
States by the emperor OF Russia by treaty
concluded at Washington on the a0th day of
March, A. D. 1857, far the same may be
applicable thereto" Q5 U. s. Statutes, 2io.)
The sixth section in terms prohibits the killing
of fur seals within the limits of said territory,
or in the waters thereof, and further provides
that all vessels found engaged in violation of
the said act shall be forfeited The first section
above quoted is without change Of phrassology
incorporated into the Revised Statutes, but the
sixth section, which il section 1856 OF the Re-
vised Statutes, is therein so changed to refer
TO Alaska territory and the waters thereof by
substitution OF the name ALASKA" for the werd
said preceding the wsrd territory"
For about one century preceding the year 1885
the validity of the laws of Russia and of the
United States, respectively, for the preservation
OF fur seals in Bcring sea, remained unchal-
lensed. And it is . matter of common knowl-
edge that. since the year 1885, instances of poach-
ing by sealing vessels in Bering sea have been
greatly multiplied, and that there has been on
the part of officers of the United States charged
with the duty of enforcing the above statutes
corresponding increase of efforts TO prevent such
depredations. large number OF arrests and
seizures were made between 1855 an 1883 on tae
assumption that said laws were effective and
applicable throughout the entire extent OF the
territory and waters, including the portion of
Boring sea within the boundaries OF the terri
tory and dominion coded by the emperor of
Russia From said arrests and seizures and
the consequent prosecutions questions arose as
TO the proper construction or Interpretation of
section 1856, and as to the extent of our ma
tional Jurisdiction over Berins sea. Thereupon
on March 2, 1889, congress passed an act
s snd section To ncnd.
be applicable to all the dominion of the United
States in the waters OF Boring sea t25 U. 3.
Statutes, page 1909. sec. 81 Eject must be
given TO these statutes according to the intca-
\ lion of congress, which is TO be sscertained
from the words used and consideration OF the
course OF legislation on the subject, and the
facts and circumstances known to have been
operative In inducing such legislation. Now,
considering the several statutory provisions and
the historical facts above rscited, ana keeping
in mind section 1854, which must govern the
Interpretation of other statutes referring to the
dominion of the United States in Bsring sea.
am constrained TO hold that the killing OF fur
seals anywhere within the boundaries defined
by the treaty referred 10 in said section, is I'M
lawful, and that vessels found within said
boundaries engaged in that business are sub
ject to seizure and condemnation as forfeited to
the United States.
There is a question. however, as to the validity
OF these statutes. On the part OF the defense i.
is commended that tbs criminal laws of the
United States can have no force upon the sea
beyond the Eraits OF national Jurisdiction;
which BY the law OF nations cannot extend be-
yond the range of cannon shot from the shore;
and therefore the government has no power to
prohibit fishing or the taking OF animals
which are fer-a Bdtgrd. in the onsl sea- which
is common aad free to the Inhabitants of al
nations.
extended over the sea 40 well as ov.r land.
should circumstances render IL necessary q ma
ton having the power 70 do So may assert its
tafore admitted by the powers OF the earth to be
lawful at is probably safe 10 say. that state
has the right TO extend its territorial waters
from time TO time st Its will, with the now in
creased range OF It's guns, though IL wonld IN
doubredlv be more satisfactory that sn srrsa, e.