Church of the Holy Trinity v. United States, 143 U.S. 457 (1892)

Plaintiff in error is a corporation, duly organized and incorporated as a religious society under the laws of the State of New York. E. Walpole Warren was, prior to September, p. 4581887, an alien residing in England. In that month the plaintiff in error made a contract with him, by which he was to remove to the city of New York and enter into its service as rector and pastor; and in pursuance of such contract, Warren did so remove and enter upon such service. It is claimed by the United States that this contract on the part of the plaintiff in error was forbidden by the act of February 26, 1885, 23 Stat. 332, c. 164, and an action was commenced to recover the penalty prescribed by that act. The Circuit Court held that the contract was within the prohibition of the statute, and rendered judgment accordingly, (36 Fed. Rep. 303;) and the single question presented for our determination is whether it erred in that conclusion.

It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on the one side with compensation on the other. Not only are the general words labor and service both used, but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added “ of any kind; ” and, further, as noticed by the Circuit Judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic p. 459servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of thd judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Plowden, 205 : “ From which cases, it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter, they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature, which they have collected sometimes by considering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances.”

In Margate Pier Co. v. Mannam^ 3 B. & Aid. 266, 270, Abbott, C. J. quotes from Lord Coke as follows: “ Acts of Parliament are to be so construed as no man that is innocent or free from injury or wrong be, by a literal construction, punished or endamaged.” In the case of the State v. Clark, a Butcher, (29 N. J. Law) 96, 98, 99, it appeared that an act had been passed making it a misdemeanor to wilfully break down a fence in the possession of another person. Clark was indicted p. 460under that statute. The defence was that the act of breaking down the fence, though wilful, was in the exercise of a legal right to go upon his own lands. The trial court rejected the testimony offered to sustain the defence, and the Supreme Court held that this ruling was error. In its opinion the court used this language: “The act of 1855, in terms, makes the wilful opening, breaking down or injuring of any fences belonging to or in the possession of any other person a misdemeanor. In what sense is the term wilful used ? In common parlance, wilful is used in the sense of intentional, as distinguished from accidental or involuntary. Whatever one does intentionally he does wilfully. Is it used in that sense in this act ? Did the legislature intend to make the intentional opening of a fence for the purpose of going upon the land of another indictable, if done by permission or for a lawful purpose? . . . We cannot suppose such to have been the actual intent. To adopt such a construction would put a stop to the ordinary business of life. The language of the act, if construed literally, evidently leads to an absurd result. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words. The object designed to be reached by the act must limit and control the literal import of the terms and phrases employed.” In United States v. Kirby, 1 Wall. 482, 486, the defendants were indicted for the violation of an act of Congress, providing “ that if any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offence pay a fine not exceeding one hundred dollars.” The specific charge was that the defendants knowingly and wilfully retarded the passage of one Farris, a carrier of the mail, while engaged in the performance of his duty, and also in like manner retarded the steamboat General Buell, at that time engaged in carrying the mail. To this indictment the defendants pleaded specially that Farris had been indicted for murder by a court of competent authority in Kentucky; that a bench warrant had been issued and p. 461placed in the hands of the defendant Kirby, the sheriff of the county, commanding him to arrest Farris and bring him before the court to answer to the indictment; and that in obedience to this warrant, he and the other defendants, as his posse, entered upon the steamboat General Buell and arrested Farris, and used only such force as was necessary to accomplish that arrest. The question as to the sufficiency of this plea was certified to this court, and it was held that the arrest of Farris upon the warrant from the state court was not an obstruction of the mail, or the retarding of the. passage of a carrier of the mail, within the meaning of the act. In its opinion the court says: “ All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted ‘ that whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, ‘ for he is not to be hanged because he would not stay to be burnt.’ And we think that a like common sense will sanction the ruling we make, that the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.” The following cases may also be cited. Henry v. Tilson, 17 Vermont, 479; Ryegate v. Wardsboro, 30 Vermont, 746; Ex parte Ellis, 11 California, 222; Ingraham v. Speed, 30 Mississippi, 410; Jackson n . Collins, 3 Cowen, 89; People v. Insura/nce Compa/ny, 15 Johns. 358; Burch v. Newbury, 10 N. Y. 374; People v. N. E p. 462Commissioners of Taxes, 95 N. Y. 554, 558; People v. Lacombe, 99 N. Y. 43, 49; Canal Co. v. Railroad Co., 4 G. & J., 1,152; Osgood v. Breed, 12 Mass. 525, 530 ; Wilbur v. Crane, 13 Pick. 284; Oates v. National Bank, 100 U. S. 239.

Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. United States v. Union Pacific Railroad, 91 U. S. 72, 79. The situation which called for this statute was briefly but fully stated by Mr. Justice Brown when, as District Judge, he decided the case of United States v. Craig, 28 Fed. Rep. 795, 798: “ The motives and history of the act are matters of common knowledge. It had become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts, by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at a low rate of wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupations to the level p. 464of the assisted immigrant. The evil finally became so flagrant that an appeal was made to Congress for relief by the passage of the act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage.”

A singular circumstance, throwing light upon the intent of Congress, is found in this extract from the report of the Senate Committee on Education and Labor, recommending the passage of the bill: “ The general facts and considerations which induce the committee to recommend the passage of this bill are set forth in the Report of the Committee of the House. The committee report the bill back without amendment, although there are certain features thereof which might well be changed or modified, in the hope that the bill may not fail of passage during the present session. Especially would the committee have otherwise recommended amendments, substituting for the expression ‘labor and service,’ whenever it occurs in the body of the bill, the words ‘manual labor’ or ‘ manual service,’ as sufficiently broad to accomplish the purposes of the bill, and that such amendments would remove objections which a sharp and perhaps unfriendly criticism may urge to the proposed legislation. The committee, however, believing that the bill in its present form will be construed as including only those whose labor or service is manual in character, and being very desirous that the bill become a law before the adjournment, have reported the bill without p. 465change.” 6059, Congressional Record, 48th Congress. And, referring back to the report of the Committee of the House, there appears this language: “ It seeks to restrain and prohibit the immigration or importation of laborers who would have never seen our shores but for the inducements and allurements of men whose only object is to obtain labor at the lowest possible rate, regardless of the social and material well-being of our own citizens and regardless of the evil consequences which result to American laborers from such immigration. This class of immigrants care nothing about our institutions, and in many instances never even heard of them; they are men whose passage is paid by the importers; they come here under contract to labor for a certain number of years; they are ignorant of our social condition, and that they may remain so they are isolated and prevented from coming into contact with Americans. They are generally from the lowest social stratum, and live upon the coarsest food and in hovels of a character before unknown to American workmen. They, as a rule, do not become citizens, and are certainly not a desirable acquisition to the body politic. The inevitable tendency of their presence among us is to degrade American labor, and to reduce it to the level of the imported pauper labor.” Page 5359, Congressional Record, 48th Congress.

The fundamental orders of Connecticut, under which a provisional government was instituted in 1638-1639, commence with this declaration: “ Forasmuch as it hath pleased the Allmighty God by the wise disposition of his diuyne pruidence p. 467so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and vppon the River of Conectecotte and the Lands thereunto adioyneing; And well knowing where a people are gathered togather the word of G-od requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouerment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our seines to be as one Publike State or Comonwelth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus wch we now prfesse, as also the disciplyne of the Churches, wch according to the truth of the said gospell is now practised amongst vs.”

Coming nearer to the present time, the Declaration of Independence recognizes the presence of the Divine in human affairs in these words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” “ We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare,” etc.; “ And for the p. 468support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

It may be only in the familiar requisition that all officers shall take an oath closing with the declaration “so help me God.” It may be in clauses like that of the constitution of • Indiana, 1816, Article XI, section 4: “The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed the most solemn appeal to God.” Or in provisions such as are found in Articles 36 and 37 of the Declaration of Rights of the Constitution of Maryland, 1867: “ That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought,, by any law, to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order,.peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent or maintain or contribute, unless on contract, to maintain any place of worship, or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief: Provided, He p. 469believes in the existence of God, and that, under His dispensation, such person will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come. That no religious test ought ever to be required as a qualification for any office of profit or trust in this State other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution.” Or like that in Articles 2 and 3, of Part 1st, of the Constitution of Massachusetts, 1780: “ It is the right as well as the duty of all men in society publicly and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe. . . . As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion and morality in all cases where such provision shall not be made voluntarily.” Or as in sections 5 and 14 of Article 7, of the constitution of Mississippi, 1832: “No person who denies the being of a God, or a future state of rewards and punishments, shall hold any office in the civil department of this State. . . . Religion, morality and knowledge being necessary to good government, the preservation of liberty, and the happiness of mankind, schools and the means of education, shall forever be encouraged in this State. Or by Article 22 of the constitution of Delaware, 1776, which required all officers, besides an oath of allegiance, to make and subscribe the following declaration: “ I, A. B., do profess p. 470faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration.”

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons: they are organic utterances; they speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Rpdegraph n . The Commonwealth, 11 S. & B. 394, 400, it was decided that, “ Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania.; . . . not Christianity with an established church, and tithes, and spiritual courts ; but Christianity with liberty of conscience to all men.” And in The People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said: “The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. . . . The free, equal and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious p. 471subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the Constitution as some have strangely supposed, either not to punish at all, or to punish indiscriminately, the like attacks upon the religion of Makomet or of the Grand Lama ; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors.” And in the famous case of Vidal v. Girardis Executors, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: “ It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania.”

The District Court for the District of Alaska has jurisdiction in admiralty to forfeit vessels for violating the provisions of Rev. Stat. § 1956 on any of the navigable waters of the United States which were acquired by the treaty with Russia, concluded March 30, 1857, 15 Stat. 539. p. 473Prohibition will not go after judgment and sentence, unless want of jurisdiction appears on the face of the proceedings; but, before judgment, the superior court can examine not simply the process and pleadings technically of record, but also the facts and evidence upon which action was taken.

At a time when a diplomatic correspondence was going on between the United States and Great Britain respecting the extent of the jurisdiction of the former in the waters of Behring Sea, a libel in admiralty was filed in the District Court of Alaska, alleging a seizure by the United States authorities of a vessel “ within the limits of Alaska Territory, and in the waters thereof and within the civil and judicial District of Alaska,” to wit: “ Within the waters of that portion of Behring Sea belonging to the United States and said district, on waters navigable from the sea by vessels of ten or more tons burden,” and charging that “ the said vessel and her captain, officers and crew were then and there found engaged in killing fur seals within the limits of Alaska Territory and in the said waters thereof, in violation,” etc. The findings of fact followed this description, and described the act complained of as done “ within the waters of Alaska.” No request was made to have the findings made more specific as to the place where the offence was committed. The vessel being condemned, the claimants appealed to this court. The appeal was duly entered and docketed, and was then dismissed on application of the appellant, who applied for leave to file an application for a writ of prohibition to restrain the court below from enforcing the p. 474sentence or the decree of condemnation. Leave being granted, the petition was filed, and it is now Held, (1) That the legal inference from the findings of fact is, that the act took place within the jurisdiction of the United States;

The motion for leave to file the application was made on the twelfth of January, 1891, and leave was granted on the second day of February. The application having accordingly been filed, a rule was issued against the judge of the District p. 475Court of Alaska to show cause why the writ should not go. The petition is set out in extenso in In re Cooper^ Petitionery 138 U. S. 404. The main averments are that the schooner W. P. Sayward, a British vessel, while lawfully sailing upon the high seas in latitude 44° 43' north and longitude 167° 5V west, and fifty-nine miles from any land whatsoever, was forcibly seized by an armed revenue vessel of the United States and forcibly carried into the port of Sitka, and there forcibly detained and delivered to the United States marshal, and by the attorney for the United States of the District of Alaska, libelled in the District Court, and by said court condemned for having killed fur seal at the place of seizure. It was further averred that the decree of forfeiture was made and entered September 19, .1887; that the petitioner, having been admitted as the actual owner of the said schooner as claimant, appealed to this court April 26,1888, and docketed said appeal here October 30, 1888, but dismissed the same, (January 12, 1891,) because advised that an appeal would not lie, and that the decree was and is a nullity; and that all the matters of fact alleged in the petition, save those of which this, court takes judicial notice, appear by the record and proceedings of the District Court; and it was claimed in argument that the petitioner, having referred to the original record and proceedings of the District Court, was entitled to have the same read and considered as part of his case in this court, and he accordingly filed a complete and authenticated transcript of the entire proceedings in the District Court, as he alleged.

“ The libel of information of M. D. Ball, attorney of the p. 476United States, for the District of Alaska, who prosecutes on behalf of the said United States in the name and on behalf of the said United States, alleges and informs as follows, to wit:

“ That the said vessel and her captain, officers and crew were then and there found engaged in killing fur seals within the limits of Alaska Territory, and in the said waters thereof, in violation of section 1956 of the Revised Statutes of the United States; that all the said property, after being seized as aforesaid, was brought into the port of Sitka, in said district, and turned over to the United States marshal of this district, with the exception of the 477 fur-seal skins, which latter were brought into the port of Oonalaska, in said Territory, and delivered into the keeping of Isaac Anderson, a deputy United p. 477States marshal of this district, and all of said property is now within the judicial district of Alaska, United States of America; and said M. D. Ball, attorney as aforesaid, further informs and alleges that on the 9th day of July, a .d . 1887, Geo. R. Ferry and certain other persons whose names are to the said United States attorney unknown, who were then and there engaged on board of said schooner W. P. Say ward as seamen and seal hunters, did, under the directions and by the authority of Geo. R. Ferry, then and there master of said schooner, engage in killing and did kill, in the Territory and District of Alaska and in the waters thereof, thirty fur seals, in violation of section 1956 of the Revised Statutes of the United States in such cases made and provided.

Order of court of September 15, 1887, granting leave to the p. 478proctor for claimants to file claim of master for owner and the claim; also order granting leave to proctor for claimants to file a demurrer to the libel; and the demurrer.

September 19, 1887, leave granted proctor for owners to file a waiver of the publication and posting of the notice of the p. 479libel and seizure of the property granted, and waiver filed the same day:

“ The marshal having returned on the monition issued to him in the above-entitled action that in obedience thereto he had attached the said schooner W. P. Sayward, her tackle, apparel, boats, cargo and furniture, and proctor for claimants, on behalf of said owners, having waived said owners’ right to publication and posting of the notice of the libel and seizure, and also time of hearing, and has given due notice to all persons claiming the same to appear before this court on the 19th day of Sept., 1887, at 11 o’clock a .m ., at the District of Alaska, United States of America, then and there to interpose p. 481their claims and make their allegations in that behalf, and Geo. R. Ferry, the captain of said vessel, having heretofore filed a claim to all of said property on behalf of J. D. Warren and Andrew Laing, of Victoria, B. C., and no other persons having appeared and no other claims or allegations having been made or filed by any other person or persons, and the usual proclamation having been made, and said cause having been heard this day by consent of parties, on the pleadings and proofs, M. D. Ball, Esq., U. S. dist. atty., by A. K. Delaney, Esq., of counsel in that behalf, appearing as advocate for said libellant, and W. Clark, Esq., as advocate for said claimants, and said cause having been submitted to the court for decision, and due deliberation being had in the premises, and the court having filed his findings and conclusions of law herein, it is now thereupon ordered, sentenced and decreed as follows:

vol . cxLm—31 p. 482discharged, and order to that effect upon stipulation filed and approved, as follows :

“Now, therefore, we the undersigned, the stipulators, submitting ourselves to the jurisdiction of this court, do acknowledge ourselves to be bound unto the United States of America, the said claimant, Thomas Henry Cooper, as principal, and Bailey Gatzert and Jacob Furth as sureties, jointly and severally, in the sum of $7289.50, lawful money of the United States, hereby consenting and agreeing that a summary decree may be rendered against us, and each of us, for the above appraised value, with interest thereon from this date, and that execution may thereon issue against our goods, chattels and lands for the payment thereof or any part thereof which shall be ordered or decreed: Upon condition, nevertheless, that if the undersigned stipulators shall prosecute their said appeal without unnecessary delay, and abide by any final decree that may be rendered by the Supreme Court of the United States p. 483of America, to which this cause may be appealed, and in the event of the said decree of this honorable court being affirmed by such court of appellate jurisdiction, then if said stipulators pay the amount named in this stipulation into this court this stipulation to be void, otherwise to remain in full force and virtue.”

“Respondent respectfully submits to the consideration of p. 484the court whether upon the foregoing allegations of this return the writ of prohibition should issue against him.”

Upon these authorities, and upon the principles of common sense, it must therefore' be admitted that a superior court has the power, right and duty to examine all matters touching the question of jurisdiction which were before the court below, and that it can never be said that in a case where the p. 486important question of the jurisdiction of a court is involved a superior court can solemnly adjudicate, from a view of one part of the proceedings, that the court below had or had not jurisdiction, when, by turning a leaf in its record, the contrary would conclusively appear.

The petitioner’s case is not weakened by the narrower contention as to the face of the proceedings made by the respondent in his return to the rule. That this vessel was a British vessel, appears on the face of the libel wherein she is described as “schooner W. P. Sayward of Victoria, B. C., of 59 and tons burden as per register.” That the place of seizure and the place of the offence was on the high seas appears on the face of this so-called final record. The libel alleged that said seizure was made “ within the waters of that portion of Behring Sea belonging to the United States,” and that the vessel, her captain and crew, were “then and there” found p. 487engaged in killing fur seals “in said waters.” It is confidently submitted, as matter of law, that no portion of Behring Sea belongs to the United States.

IV. The Sayward, being a British vessel, was exempt on the high seas, fifty-nine miles from land, from the jurisdiction of the United States, its laws and its courts. 1 Phil. Int. Law, 364; Wheaton’s Int. Law, 119 ; The Exchange, 7 Cranch, 116; The Santissima Trinidad^ 7 Wheat. 283; Crapo v. Kelly, 16 Wall. 610; Wilson v. KcNamee, 102 U. S. '572; Lawrence’s Wheaton, 266, n.; Le Louis, 2 Dodson, 210; The Antelope, 10 p. 488Wheat. 66; Dana’s Wheaton, 258, n.; Mr. Webster to Lord Ashburton, (1842), 6 Webster’s Works, 320; Wharton’s Dig. Int. Law, pp. 106 to 110.

While it is plain that within its lawful sphere the executive cannot be either superseded or overruled by this court, it p. 489cannot be admitted that this court can decline to issue the writ, because its issuance, according to law, might affect some contention of the executive. Cohens v. Virginia, 6 Wheat. 264; Ex parte Milligan, 4 Wall. 2.

It is said that Great Britain herself enjoys an exclusive fishery for pearls in Australian waters under a municipal law providing for its protection, but until that law is sought to be enforced against the vessels of some friendly nation m p. 491time 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.

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 n . 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 p. 492jurisdiction of the courts of the United States. Ex parte Smith 94 U. S. 455, 456.

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 p. 493this court that the right of appeal must be expressly given or it does not exist.

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 p. 496of the territory ceded to the United States by the Emperor of Russia by treaty concluded at Washington on the thirtieth day of March, anno Domini, eighteen hundred and sixty-seven, so far as the same may be applicable thereto.”

Section 1956, (Tit. XXIII, c. 3,) Revised Statutes, reads thus: “No person shall kill any otter, mink, marten, sable or fur p. 497seal, 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.”

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 11 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 p. 500act 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 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 Sead 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 p. 502supreme law of the land.’ A treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.”

But we need not go farther in this direction, as our decision p. 504rests upon narrower grounds, and we have been led into these observations because, where an application is made to stay the enforcement of a decree three years after its rendition, and after the pendency of an appeal therefrom for the same length of time, (an appeal being allowable, as we shall presently see,) we do not regard the court as constrained to intervene in this way unless, perhaps, upon an irresistible case and adequate reason shown for the delay ; and particularly not where such intervention involves the definition of the line of demarcation between coordinate departments of the government and the determination of public questions, action in reference to which is appropriately confided to other departments than the judicial.

In Ex parte Christy, 3 How. 292, 308, which was an application for a writ of prohibition against the District Court of Louisiana sitting as a court in bankruptcy, Mr. Justice Story said: “So far as respects these allegations of facts, not so found in the proceedings of the District Court, we are not p. 505upon the present occasion at liberty to entertain any consideration thereof for the purpose of examination or decision, as it would be an exercise of original jurisdiction on the part of this court not confided to us by law. The application for the prohibition is made upon the ground that the District Court has transcended its jurisdiction in entertaining those proceedings; and whether it has or not must depend, not upon the facts stated dehors the record, but upon those stated in the record upon which the District Court was called to act, and by which alone it could regulate its judgment.” And this language was repeated, and approved in Eon parte Easton, 95 U. S. 68, where prohibition was asked against a District Court in admiralty. These were cases where the application was before sentence, and they show that the court may consider the evidence as well as the other proceedings in the court sought to be restrained. But after final judgment and the lapse of the term, for the Superior Court to enter upon an examination of the evidence upon a suggested defect in the jurisdiction, that is, a defect not apparent upon the face of the record proper, would be for it to rehear the case and direct the court below not to carry its own judgment into effect, for defect of power to try the particular issue rather than of jurisdiction over the cause. What the court below could not then do, or omit to do, the court above ought not ordinarily to undertake to compel it to do or to omit.

In United States v. Peters, 3 Dall. 121, the Cassius, the vessel seized, was under commission by the French government, and was libelled in the District Court of Pennsylvania on account of the seizure of a schooner belonging to libellants upon the high seas, and the libel showed that the schooner had been taken into Port de Paix, (in the dominions of the French IRepublic,) which justified the presumption that she was carried there for legal adjudication, and it appeared from the suggestion for the prohibition that such was the fact, and that therefore the jurisdiction for the adjudication of the libel was in a French and not in an American admiralty court.* That was an application before sentence and the court could look into the evidence before the District Court if necessary, p. 506though it appears to us that the want of jurisdiction was evident on the face of the libel; and prohibition was accordingly issued.

By section 750, Revised Statutes, it is provided: “In equity p. 507and admiralty causes only the process, pleadings and decree, and such orders and memorandums as may be necessary to 1 show the jurisdiction of the court and regularity of the proceedings, shall be entered upon the final record.”

As already seen, the first section of the act of May 17, 1884, 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,” should constitute a civil and judicial district. And by section 1954 of the Revised Statutes, the laws of the United States relating to customs, commerce and navigation were extended “ to and over all the main-land, islands and waters of the territory ceded to the United States by the Emperor of Russia by treaty concluded at Washington on the thirtieth day of March, anno Domini eighteen hundred and sixty-seven.” The finding refers similarly to that portion of Behring Sea ceded by Russia, and states that the killing was “ within the waters of Alaska.” The second and third findings were that the vessel, her furniture, apparel, tackle, cargo and 477 fur-seal skins, were seized in said waters, that is to say, in the waters of Alaska, by the commanding officer of the United States revenue-cutter Rush, then and there engaged in the revenue marine service of the United States, who was duly p. 509commissioned by the President of the United States, and made such seizure under the direction and by the authority of the Treasury Department.

The latter part of section 7 of the act of May 17, 1884, 23 Stat. 24, 26, is as follows: “Writs of error in criminal cases shall issue to the said District Court from the United States Circuit Court for the District of Oregon in the cases provided ]n chapter one hundred and seventy-six of the laws of eighteen hundred and seventy-nine; and the jurisdiction thereby conferred upon Circuit Courts is hereby given to the Circuit Court of Oregon. And the final judgments or decrees of said Circuit and District Court may be reviewed by the Supreme Court of the United States as in other cases.” We p. 510are of opinion that the word Circuit as here used refers to the Circuit Court of Oregon, and, for the purposes of the matter in hand, the. clause may be read: “ And the final judgments or decrees of said District Court of Alaska may be reviewed by the Supreme Court of the United States as in other cases.”

It is said that if there could be such a thing as an appeal from the District Court of Alaska in an ordinary admiralty case direct to this court, this court would be obliged to try the case de novo; that the District Court of Alaska, sitting as an p. 511admiralty court, would supply and take the place of a Circuit Court in admiralty sitting in appeal, although all the statutes authorizing District Courts to exercise the functions of Circuit Courts expressly exclude the power of appeal; that the only foundation of a right of appeal from the Alaska court, based upon this right to exercise the jurisdiction of a Circuit Court, is section 692 of the Revised Statutes, and that only extends to the final decrees of such District Court when exercising the jurisdiction of a Circuit Court, while the exercise of admiralty and maritime jurisdiction by the District Court for Alaska was, by the act creating it and the Revised Statutes, the exercise of purely District Court jurisdiction as such; nor could the Alaska court be supposed to have acted in the exercise of both jurisdictions, as the only admiralty and maritime jurisdiction which belongs to the Circuit Courts is appellate.

The act of February 16, 1875, (18 Stat. 315,) provides that Circuit Courts of the United States in deciding causes of admiralty or maritime jurisdiction on the instance side of the court, shall find the facts and the conclusions of law upon which it renders its judgments or decrees, and shall state the facts and conclusions of law separately. And the review of the judgments or decrees entered upon such findings, by this court, upon appeal, is “ limited to a determination of the p. 512questions of law arising upon the record, and to such rulings of the Circuit Court, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law.”

“ The plain meaning of these words is, that wherever the District Court decides a cause which, if decided in a Circuit Court, either in an original suit, or on an appeal, would be subject to a writ of error from the Supreme Court, the p. 513judgment of the District Court shall, in like manner, be subject to a writ of error.”