Opinion of the Court.

seal, or other fur-bearing animal within the limits of Alaska Territory, or in the waters thereof; and every person guilty thereof shall, for each offence, be fined not less than two hundred nor more than one thousand dollars, or imprisoned not more than six months, or both; and all vessels, their tackle, apparel, furniture and cargo, found engaged in violation of this section shall be forfeited; but the Secretary of the Treasury shall have power to authorize the killing of any such mink, marten, sable or other fur-bearing animal, except fur seals, under such regulation as he may prescribe; and it shall be the duty of the Secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions of this section until it is otherwise provided by law; nor shall he grant any special privileges under this section."

Section 3 of the act of March 2, 1889, (25 Stat. 1009, c. 415,) is as follows:

"That section nineteen hundred and fifty-six of the Revised Statutes of the United States is hereby declared to include and to apply to all the dominion of the United States in the waters of Behring Sea; and it shall be the duty of the President, at a timely season in each year, to issue his proclamation and cause the same to be published for one month in at least one newspaper if any such there be published at each United States port of entry on the Pacific coast, warning all persons against entering said waters for the purpose of violating the provisions of said section; and he shall also cause one or more vessels of the United States to diligently cruise said waters and arrest all persons, and seize all vessels found to be, or to have been, engaged in any violation of the laws of the United States therein."

Section 734, Revised Statutes, is as follows:

"Proceedings on seizures, for forfeiture under any law of the United States, made on the high seas, may be prosecuted in any district into which the property so seized is brought and proceedings instituted. Proceedings on such seizures made within any district shall be prosecuted in the district where the seizure is made, except in cases where it is otherwise provided."

VOL. CXLIII-32

Opinion of the Court.

Under section 563, the District Courts have exclusive juris diction over forfeitures and seizures on navigable waters, and on land and on waters not within admiralty and maritime. jurisdiction. The District Court of Alaska had jurisdiction in admiralty, therefore, to forfeit vessels for violation of section 1956 on any of the navigable waters within the dominion of the United States, acquired by the treaty of March 30, 1867.

The contention on behalf of the petitioner is that it appears from the record that the schooner Sayward was forcibly arrested by the United States on the high seas fifty-nine miles | from shore, and forcibly taken within the limits of the District of Alaska, and subjected to condemnation and forfeiture in the Alaska District Court for the violation of section 1956 of the Revised Statutes of the United States, by its master and seamen and seal hunters under him, in killing fur seal at the place of seizure; and that the court was absolutely destitute of jurisdiction, because by the recognized principles of international law the territorial waters of each nation and its municipal jurisdiction on the high seas are limited to three miles or a marine league from shore. And it is insisted that when Congress in section 1956 speaks of "Alaska Territory" and "the waters thereof,". it could only mean, so far as the sea was concerned, three miles or a marine league from the shore of the continent, or from the shores of one of the adjacent islands, and that the act of March 2, 1889, does not in any way enlarge the effect of section 1956, because "the dominion of the United States in the waters of Behring Sea" is limited by the law of nations to the distance from the shore above mentioned.

If we assume that the record shows the locality of the alleged offence and seizure as stated, it also shows that officers of the United States, acting under the orders of their government, seized this vessel engaged in catching seal and took her into the nearest port; and that the law officers of the government libelled her and proceeded against her for the violation. of the laws of the United States, in the District Court, resulting in her condemnation.

Opinion of the Court.

How did it happen that the officers received such orders? It must be admitted that they were given in the assertion on the part of this government of territorial jurisdiction over Behring Sea to an extent exceeding fifty-nine miles from the shores of Alaska; that this territorial jurisdiction, in the enforcement of the laws protecting seal fisheries, was asserted by actual seizures during the seasons of 1886, 1887 and 1889, of a number of British vessels; that the government persistently maintains that such jurisdiction belongs to it, based not only on the peculiar nature of the seal fisheries and the property of the government in them, but also upon the position that this jurisdiction was asserted by Russia for more than ninety years, and by that government transferred to the United States; and that negotiations are pending upon the subject.

While it is conceded that in matters committed by the Constitution and laws of the United States either to Congress or to the executive, or to both, courts are clearly bound by the action of Congress or the executive, or both, within the limits of the authority conferred by the Constitution and laws, yet it is insisted that Congress and the executive, constituting the political departments of the government, having before them the question "of the extent of the dominion of the United States in the Behring Sea," which they could doubtless by conjoint action determine so as to bind the courts, have chosen neither to determine that extent nor to make any provision of law by which it is devolved on the executive to determine it, and that, therefore, it is the duty of this court in the case at bar, involving the legality of the seizure and condemnation of a foreign vessel alleged to be in violation of the law of nations and without warrant of any law of the United States to determine the question.

Assuming that the executive alone can speak so as to bind our courts in respect of the sovereignty of foreign territory, the changes in foreign governments, the existence of civil war in foreign countries, and the character of a foreign minister, counsel nevertheless confidently assert "that without the clear authority of the law of Congress, the executive can never, by determining a so-called political question or by construing an

Opinion of the Court.

act of Congress or a treaty, conclude the rights of persons or property under the protection of the Constitution and laws of the United States, or conclude the courts of the United States in a determination of these rights;" and Little v. Barreme, 2 Cranch, 170, 177, and United States v. Rauscher, 119 U. S. 407, 418, are cited.

In Little v. Barreme, the legality of the seizure of a French vessel, coming from a French port, on the high seas, by the orders of the President, purporting to be issued under an act of Congress authorizing the seizure of vessels bound to a French port, but not those coming from a French_port, was involved, and Mr. Chief Justice Marshall, delivering the opinion of the court, said:

"It is by no means clear that the President of the United States, whose high duty it is to take care that the laws be faithfully executed,' and who is commander-in-chief of the armies and navies of the United States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication American vessels which were forfeited by being engaged in this illicit commerce. But when it is observed that the general clause of this first section of the act, which declares that such vessels may be seized, and may be prosecuted in any District or Circuit Court, which shall be holden within or for the district where the seizure shall be made,' obviously contemplates a seizure within the United States; and that the fifth section gives a special authority to seize on the high seas, and limits that authority to the seizure of vessels bound or sailing to a French port, the legislature seem to have prescribed that the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port. Of consequence, however strong the circumstances might be, which induced Captain Little to suspect the Flying-Fish to be an American vessel, they could not excuse the detention of her, since he would not have been authorized to detain her had she been really American."

Opinion of the Court.

And he states the conclusion of the court to be: "That the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass."

In United States v. Rauscher, it appeared that the United States asserted the right under the law of nations to try persons extradited from Great Britain for offences other than those for which they were extradited, while Great Britain insisted that no such right existed under the law of nations or was conceded by treaty. The question was, whether, under the treaty with Great Britain, a man extradited from England to this country on the charge of murder could be tried here for another offence, and it was held that he could not be. And Mr. Justice Miller, delivering the opinion of the court quoted from the Head Money Cases, 112 U. S. 580, 598, the following language as determinative of the principle upon which the court proceeded: "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties. which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress, by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the