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Argument for Petitioner.

time of peace, it certainly cannot be cited as authority for the subject in hand; and even if Great Britain should resort to force against foreign nations in support of its claim, such a circumstance would not justify the legality of the present seizure, for courts do not administer laws in that way. They administer justice as based upon recognized rules of law. But the fact is that the special act in question, by its own terms, expressly limits its provisions to British ships, and boats attached to British ships.

VIII. The defect of jurisdiction in the District Court was not waived, and no act of the parties could cure such defect or confer jurisdiction.

The judicial power of the United States is limited not alone with reference to the States of the Union, but also with reference to the nations of the earth; not only by the Constitution of the United States, but by the principles of the law of nations, recognized by our Constitution and laws. In the words of Chief Justice Marshall : “ The law of nations is the law of all tribunals in the society of nations.”

We deny that the judicial power of the United States extends to the trial and condemnation of a British vessel, wrongfully seized in time of peace on the high seas, fifty-nine miles from land.

We deny that the forcible bringing in to the limits of a district of the United States of such vessel, so unlawfully seized, can enlarge or extend the judicial power of the United States.

We deny that any act of the United States' executive officers, from the President to the lowest, – that any act of the officers of a court of the United States, or that any act of the court itself, could make the judicial power of the United States extend to such a case.

The proceedings of the inferior court of admiralty are before this court for a single purpose — to see if that court has proceeded without jurisdiction or in excess of jurisdiction. The test is well stated by Mr. Justice Miller in the case of Cooper v. Reynolds, 10 Wall. 308. The court will examine the facts of this case as they appear on the face of the proceedings, for there are no presumptions in favor of the jurisdic

Argument for Petitioner.

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tion of the courts of the United States. Ex parte Smith, 94 U. S. 455, 456.

The District Court of Alaska never had lawful jurisdiction of the vessel. No instance court of admiralty of the United States can gain any jurisdiction of a foreign vessel by a seizure which the United States, the sovereignty that created the court, could not authorize, and which, as a matter of fact, was not authorized any more by the laws of the United States than by the law of nations.

It is confidently submitted that in the case of this foreign vessel so seized, the trespass is so connected with the subsequent seizure by the civil authority under process of the District Court, as to annul the proceedings of that court against the vessel. “A seizure is a single act, and not a continuous fact. Possession, which follows seizure, is continuous." Thompson v. Whitman, 18 Wall. 451, 471.

While it is admitted that the vessel was actually in the port of Sitka when the libel was filed and the monition served, it is confidently denied that she was within the jurisdiction of the court of Alaska. In such a case appearance and pleading to the merits cannot confer jurisdiction. Rhode Island v. Massachusetts, 12 Pet. 657. And objections to the jurisdiction when they go to the subject matter and not to the form merely of its presentation or to the character of the relief prayed are not waived because they were not made in the lower court. Boom Co. v. Patterson, 98 U. S. 403; Ex parte Bradley, 7 Wall. 364.

IX. There is no provision for the review of the Alaska admiralty court except by the writ of prohibition.

It has repeatedly been held by this court that there can be no review by appeal here unless it is expressly given by an act of Congress, and that statutes providing for such appeal cannot be enlarged by implication. Crawford v. Points, Assignee, 13 How. 11; The Lucy, 8 Wall. 307; Butterfield v. Usher, 91 U. S. 246.

So that no greater right of appeal can be construed out of this act than its terms directly express, and whatever may have been formerly held, it is now the established doctrine of

Opinion of the Court.

this court that the right of appeal must be expressly given or it does not exist.

We submit, as the result of a careful examination of all the statutes bearing on the subject, that the clear and necessary construction of the final clause of section 7, of the Alaska act, is that the appeals shall lie, as in other cases they are allowed from the decrees and final judgments of District Courts, and of District Courts acting as Circuit Courts; and while this does not give a large and extensive right of appeal, the right of appeal direct from the District Court of Alaska in admiralty cases, other than prize, to this court has been omitted and denied.

In submitting to this august tribunal a case involving the legality, under the laws of our own country, of an act of the executive, counsel cannot refrain from quoting the language in which this court has announced the fundamental principle which must govern its decision in this aspect of the case.

“No man in this country,” says this court, in United States v. Lee, 106 U. S. 196, 220, “is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government; and every man, who, by accepting office, participates in its functions, is only the more strongly bound to submit to the supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”

Unless the laws of the United States admit of no other construction, it is confidently submitted that they will not be held to justify a seizure and condemnation that violate all the principles of international law which the United States have steadily maintained against all the nations of the earth, from the beginning of their existence.

Mr. Attorney General and Mr. Solicitor General opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Opinion of the Court.

By section one of the act of Congress of May 17, 1884, entitled “An act providing a civil government for Alaska," (23 Stat. 24, c. 53,) it is provided “that the territory ceded to the United States by Russia by the treaty of March thirtieth, eighteen hundred and sixty-seven, and known as Alaska, shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided. The temporary seat of government of said district is hereby established at Sitka."

The first part of section three is as follows:

“That there shall be, and hereby is, established a District Court for said district, with the civil and criminal jurisdiction of District Courts of the United States, and the civil and criminal jurisdiction of District Courts of the United States exercising the jurisdiction of Circuit Courts, and such other jurisdiction, not inconsistent with this act, as may be established by law.”

Under this section the court thus established acquired all the admiralty jurisdiction within the District of Alaska belonging to District Courts of the United States. The City of Panama, 101 U. S. 453.

Section 688, Revised Statutes, provides: “The Supreme Court shall have power to issue writs of prohibition to the District Courts when proceeding as courts of admiralty and maritime jurisdiction.” And although we were of opinion when the application for the rule was made, and subsequently held, (McAllister v. United States, 141 U. S. 174,) that the District Court for Alaska was not one of the courts mentioned in Article III of the Constitution, declaring that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall from time to time establish, we nevertheless concluded that where the District Court of Alaska was acting as a District Court of the United States and, as such, proceeding in admiralty, it came within that section, and this court had power to issue the writ of prohibition to that court in a proper case; and as the questions involved could be, in our judgment, more satisfactorily presented upon a return, we granted the rule. In re Cooper, Petitioner, 138 U. S. 401.

Opinion of the Court.

The writ thus provided for by section 688 is the common law writ, which lies to a court of admiralty only when that court is acting in excess of, or is taking cognizance of matters not arising within, its jurisdiction. Its office is to prevent an unlawful assumption of jurisdiction, and not to correct mere errors and irregularities. E. parte Gordon, 104 U. S. 515; Ex parte Ferry Company, 104 U. S. 519.

Whether the granting or refusal of the writ is discretionary or demandable of right has been much debated.

As remarked by Mr. Justice Gray in Smith v. Whitney, 116 U. S. 167, 173, it may be said to be discretionary, “where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ of prohibition. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as a matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error.”'

But it is clear upon reason and authority that where the case has gone to sentence and the want of jurisdiction does not appear upon the face of the proceedings, the granting of the writ, which even if of right is not of course, is not obligatory upon the court, and the party applying may be precluded by acquiescence from obtaining it.

Section fourteen of the act of May 17, 1884, provided : “That the provisions of chapter three, title twenty-three, of the Revised Statutes of the United States, relating to the unorganized Territory of Alaska, shall remain in full force, except as herein specially otherwise provided." Chapter 3 of Title XXIII of the Revised Statutes is entitled : “Provisions relating to the unorganized Territory of Alaska,” and begins with section 1954, which is as follows: “The laws of the United States relating to customs, commerce and navigation are extended to and over all the mainland, islands and waters

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