Year: 1871

| Watts. ysi {


DISSENTING OPINION OF o. JACOBS, CHIEF
JUSTICE.


| As I cannot assent to the conclusion
reached by the majority of the Court in
this case, will briefly state the conclu-
sion of my own mind upon the question
of jurisdiction involved in the case, with
my reasons therefor.


have come to the conclusion that
the United States side of the Court had
jurisdiction, and for the following rea-
sons:


1st, We all agree !, that the phrase
"sole and exclusive Jurisdiction" as
used in the Crime act of 1890, has no
reference to claim of jurisdiction made
by any foreign power, but to State and
Federal jurisdiction; or as we are situa-
ted, to Federal as contradistinguished
from Territorial jurisdiction. We also
agree that it is the duty of the Judiciary
to extend the jurisdiction of the laws of
the United States as far as the political
department of the Government extends
the territorial area.


2dly. In my judgment it is the duty
of the Courts to eonstrue all such con-
ventions as that entered into between
the Government of the United States
and Great Britain with reference to the
island of San Juan, so as to avert the
evil apprehended and sought to be pre-
vented. When the convention was en-
tered into there was imminent danger
of a conflict of arms. That danger arose
from two cause.-the action of the mil
itary commander of the department, and
the enforcement of the laws of Wash
ington Territory over the disputed do
main. The first danger was removed by
change of commanders; the second by
the exclusion of the laws of the Terrific
nv, and that exclusion has been enforced
by the military power of the Govern
ment ever since.


3d,y, Was the intention then of the
high contracting parties to exclude all
laws from San Juan Island and to ms Ike
it secure asylum for thieves and mur-
derers2 Z think not Possibly there
might be some ground for the recogni-
nition of the distinction between acts
nala IN Sc and na'a prohiJita-acts
which under every law, human and di-
vine, are criminal and those acts which
are only criminal by virtue of some pos
itiye statute making them such. infer
that two civilized nations would not di-
rectly or indirectly concur to create any
such asylum. 1t was the design then
;thst some laws should exist and be en-
forced on that island. That it was the
design of our Government to exclude
the laws of the Territory, is manifest by
the proceedings of the Covention and
the action of our Government from the
date of the Convention down to the pre-
sent time. 1t was so understood by the
military, acquiesced in by the other de-
partments of the Government, and re-
cognized as a fact by the Legislature, as
is evident by the release of the county
of Whatcom, within whose limits the
island was included by prior act of the
Legislature, from the payment of all
costs for the prosecution of persons
committing crimes on said island. See
Law of.


Whatever jurisdistion might have been
claimed by the Territory prior to the
last cited act, was virtually abandoned
by it.


The exclusion of the Territorial laws
since the date of the Convention, has
been open, manifest and palpable, and
believe rightful. Then, if I am cor
rect in my conclusions, no other laws
were in force on the island for the pun
ishment of persons guilty Of murder
lnot connected with the military but
the laws of the United States. In fact
it would follow as a natural sequence,
that if the Territorial laws were exclud-
ed, it would be place or district fun
der the sole and exclusive jurisdiction
of the United States" Hence the laws
of the United States would be operative
there.


can see many cogent reasons why
it was desirable to exclude Territorial
laws and Territorial officers from that
island. The Territorial Legislature rep
resented but small portion of the Amer
lean people, and was far removed from
the power which was responsible for a
state of peace or war, and before meas
nres could be disapproved by Congress,
a conflict might be precipitated. Ter
ritorial officers were not responsible,
directly at least, to the supreme power.
1t had no control over their official con-
duct. All will agree that such control
ought to be directly with the response
BILE power. That could only exist legit-
imately but by the exclusion of the local
jurisdiction and the operation of the pa-
tional jurisdiction, modified by express
convention or by necessary implication.


1t might be very competent and very