Watts v. United States

1 Wash. Terr. 288

• Court: Washington Territory
• Decided: December 15, 1870
• Status: Published

Opinions

Opinion by

Greene, Associate Justice.

This is a cause involving the life of one of the citizens of the nation, and, to pass judgment, we are called to solve at least one question of difficulty, a jurisdictional question novel and perplexing, and not only of serious individual but of constitu- • tional and international concern. Before touching the merits of the case however we feel compelled briefly to animadvert upon the manner in which it is presented by the plaintiff in error. The whole record is carelessly made. An original demurrer from the flies or the Court below, fastened into the transcript, is most improperly inserted, and cannot be regarded as part of’ the transcript or retained here but must go back to the district clerk’s office where it belongs.

Some of the matters assigned for error are sham or impertinent and have no foundation in the record. Others are twice assigned. It does not appear of record (as stated in the fourth matter assigned for error) that plaintiff in error ever applied to the Court below to have the jury discharged. It not only does not appear, that the Court below refused (as stated in the fourteenth- matter assigned for error) to give the fifth and seventh instructions asked by defendant’s counsel, but on the contrary it does appear that those instructions were actually given as asked. It does not appear, that any ninth instruction (as mentioned in the fifteenth matter assigned for error) was asked or refused. The remainder of the matters fourteenthly and fifteenthlv assigned for error is redundant, being mere repetition of what is in previous paragraphs sufficiently assigned. The thirteenth specification of supposed error has no color of ground in the record.

This cause presents three general questions:

1. Did the Court below have jurisdiction?

2. Was the prisoner entitled to draw a jury from a panel filled to the full number of jurymen ordered in the venire?

3. Does the evidence sustain the verdict?

But, as is evident, the decision of the second and third question is necessary only in case of an affirmative answer to the first.

Under the organic act of this Territory, the District courts “have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the Circuit and District courts of the United States, and also of all cases arising under the laws of said Territory and otherwise.” Act of March 2, 1853, Sec. 9, 10 Stat., 175.

At the time of the passage of that act, the district courts of the United States had, and they still have, by virtue of the judiciary act of 1789, as amended by the act of 181-2, “cognizance of all crimes and offenses * * * cognizable under the authority of the United States, committed within their respective districts * * * except, offenses punishable capitally.” Act 24 Sept., 1789, Sec. 9, 1 Stat., 76; Aug. 23, 1812, Sec. 3, 5 Stat., 517.

The same statute of 1789 gives to the circuit courts of the United States an “exclusive cognizance (still subsisting) of all crimes and offenses cognizable under the authority of the United States except, where this act otherwise provides, or the laws of the United States shall otherwise direct, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein.” Ibid, Sec. 11, 1 Stat., 78.

From these two statutes the organic act and the judiciary act, as amended, collated, it appears that if, of the supposed crime of the plaintiff, in error, it can be predicated, first, that it was a crime or offense cognizable under the authority of the United States, and, second, that it was committed within the Third Judicial District of Washington Territory, then the district court of that district had jurisdiction of it, as an offense against the United States. And, on the other hand, it is true, there being no law extending the jurisdiction of the district court in the premises, that if the supposed crime was not cognizable under the authority of the United States, or was not committed within the district of the court, then the court Jacked jurisdiction of it, as an offense against the United States, and all its proceedings were and are void.

The crime of which the plaintiff in error stands indicted, is willful murder, and jurisdiction is asserted. Sec. 3, of the act of Congress, approved April 30, 1790, 1 Stat., 113.

That act provides, that “If any person or persons shall, within any fort, arsenal, dockyard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons, on being thereof convicted, shall suffer death.”

The indictment charges the crime to have been committed at “San Juan Island, and under the sole and exclusive jurisdiction of the United States.” The whole prosecution proceeds upon the hypothesis, that the Island of San Juan is within the sole and exclusive jurisdiction of the federal government. If the jurisdiction of the federal government be not “sole and exclusive,” then confessedly there was no jurisdiction, at the suit of the United States, in the Court below of the crime of which tlie plaintiff in error is charged.

There has been for twenty-five years a dispute between the governments of the United States and Great Britain, as to whether the boundary line between the United States and the British possessions passes along Bosario Strait and east of the Island, of San Juan or along the Canal de Haro west of it. If along Haro, then San Juan falls within United States limits; if along Eosario, within the British possessions. Since 1859 the Island has been held by both nations in joint military occupation. By mutual understanding between them, by a very loose and ill-defined convention (if it can be called a convention), not by any formal treaty, in consideration of a certain attitude and forbearance assumed and exercised by the -British government on its part, the United States on their part have, among other things, (and apparently so far only as appeared to them necessary, in order to prevent troubles growing out of questions of jurisdiction) excluded local officers appointed by the Territorial government, from exercising their functions on the Island pending the dispute. And in such a delicate posture of affairs, it was both expedient and necessary, in order to prevent conflicts of authority, embarrassing complications, and perhaps hostilities not readily to be quelled, that the general government, which alone, as against Great Britain, could claim the soil of the Island and eminent domain therein, and from which the Territorial authorities derived all their sway, coming as a principal upon a pressing exigency to take the management into its own hands, should assume in some measure control exclusive of the Territorial government, not only of the dispute itself, but of the land which it concerned.

This, acting through the Departments of State and War, the government of the United States did. Congress, the legislative branch of the government, which must be presumed to have been fully apprised by the President of all the diplomatic /relations and acts of the nation, has for a long term of years tacitly acquiesced. A provisional convention, to all intents and "purposes, and of the character indicated, has for many years been operative upon the Island of San Juan. Whatever was to be done under it, by either government, has been done upon the faith of it; each nation maintains its present attitude until a permanent settlement can be made.

This convention respecting the common territory, in which it had, as respecting the common interests, a vested right of eminent domain, we think the government of the United States had power to make. Uo question of state rights or state sovereignty intervenes. The power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national government, and inheres where the executive power is vested. Such conventions are not treaties within the meaning of the constitution, and, as treaties, supreme law of the land, conclusive on the courts, hut they are provisional arrangements, rendered necessary by national differences involving the faith of the nation and entitled to the respect of the courts. They are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the-people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an expression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of an existing statutes. Just as here, we think, this particular convention respecting San Juan should be allowed to modify for the time being the operation of the organic act of this Territory, so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference for the government of that island. For the general welfare a few are prejudiced.

There is another view, also, in which we think the political authority of the United States are justified in their action respecting San Juan Island.

Congress in establishing temporarily a territorial government intended to establish one strictly subsidiary to the authority of the United States, not one which should in any manner limit, hinder, fetter, or interfere with the free, legitimate and necessary action of the general government or of any of its departments. The central government holds its acquired territory in trust for the states in common. To resist invasion of that territory; to preserve it in full and undiminished area; to assert dominion over it against every foreign power; to settle and.adjust, in the most amicable and inexpensive manner, consistent with the nation’s dignity, all disputes with foreign powers concerning it; to secure it, when in controversy, from being unnecessarily the field of hostile collision between local authorities and foreign agents; and, if possible, to prevent upon it the precipitation of a war dreadful to all the states; these are some of the plainest duties of the general government to its cestui que trust. The trust is prior in origin, and stronger in obligation upon every department and officer of the general government, than any contervailing law of congress can be, for congress itself is subject to it, and its legislation is qualified by it. The executive department of the United States, in tailing possession of San Juan Island exclusive of the local territorial authorities, under the circumstances existing at the time and not yet altered, executed reasonably and fitly as the appropriate governmental organ the duty of the government as trustee towards the states. And the organization of Washington Territory being the creature of the national government, not merely subordinate but subject to it, cannot be supposed to dissent from, much less resist this reasonable and obligatory exercise of power.

But it is not to be inferred, because of the international dispute, nor because a few local territorial officers are for a time restrained from the exercise of their functions on the Island, that the Island is thereby removed from the dominion of law. It still is a part of the United States of America, still a part of Washington Territory, still a part of the Third Judicial District.

This Court cannot recognize as of any validity the adverse claim of any foreign power upon the Island.

Whether or not any tract of land is within the geographical limits belonging to the United States is a political and not a judicial question. Foster vs. Neilson, 2 Peters, 252, 307. And whatever the political department of the government shall recognize as within the limits of the United States, the judicial department is also bound to recognize and to administer in it the laws of the United States, so far as they apply, and to maintain in the Territory the authority and right of the government, and also the personal rights, and rights of property of individual citizens.” Scott vs. Sandford, 19 How., 393, 447; 2 Vattel, ch. 7, See. 84.

Since, then, the United States claims San Juan Island, we must treat it as under the general laws of the United States, and as under the laws providing for the government of this part of the territory of the United States, and as entitled to the peace and security afforded by law in matters criminal as well as civil.

The organic act of the Territory is operative upon the Island. The northwestern geographical bounds of the territory, and of the third judicial district are the same as if there were no dispute of boundary, .no restraint of local officers. Those bounds are identical, in the eye of the courts of the United States, with the boundary line along the canal de Haro, claimed by the political department of the general government to be the true political boundary.

Yet, in order that the crime of which the defendant is charged should be within the jurisdiction of the Court below, it was not only necessary that it be committed within the United States, but in a place within the “sole and exclusive jurisdiction of the United States.” This phrase “sole and exclusive” means exclusive of any other domestic jurisdiction, and has no reference to foreign authority.

The counsel for the United States, admitting this, has orgued nevertheless, and with some plausibility that the phrase means exclusive of state, not. territorial jurisdiction, and that all the territories, and this Territory in particular, and every part thereof, are in the sense of this law, “within the sole and exclusive jurisdiction or the United States.”

We cannot concur in his views. The territorial governments are established preliminary to state organizations. They are republican in design, and intended, so far as the interests of the states of the Union in the common territory will permit, to afford to the people of the Territory the liberty and satisfaction of self-government, and a voice in the councils of the nation. In all important particulars they are, as closely as may be, assimilated to the common character of the governments of the states.

The organization of Washington Territory is essentially the same as that of each of the other Territories. Like each of the states, its government is divided among three departments, executive, legislative and judicial. The legislative department, as in all the states, consists of an upper and a lower house, distinguished by the number of members, and the different lengths of their respective terms of office, and has confided to it general legislative power.

The establishment of the Territorial government over the area of Washington Territory was the establishment of a jurisdiction there. That jurisdiction was analogous to that of a state and included general police power; for it extended to “all rightful subjects of legislation, not inconsistent with the constitution and laws of the United States,” (Organic Act, Sec. 6.) and as appears from the pardoning clause of the second section of the Organic Act, was assumed to embrace in such legislation the definitions of offenses and the imposition of punishment. Police power is, indeed, essential to any governmental organization, and inheres in the very idea of government.

We would not he understood to say, that, by the act establishing the Territorial government, the United States parted with their judisdiction. They still retained the power to legislate over the Territory on all matters whatever. They simply by that act implanted here a new jurisdiction. After that act,. their jurisdiction here as to all matters confided to the Territorial authorities was no longer sole and exclusive.

The intent of Congress in passing the statute against murder was, not to make murder punishable, nor to make the punishment of murder uniform in all places within its jurisdiction, else the statute would not have contained the expression “sole and exclusive.” The intent seems rather to have befen to prevent that detestable crime from finding harbor and impunity in places where no other law than that of the United States could reach to pnnish. In the presence of any other suitable jurisdiction, the law, by intent of the framer, would fall inoperative.

The government of this Territory possesses such a suitable jurisdiction. It is a jurisdiction intended to serve for the time being in lieu of a state jurisdiction; intended to bear a like relation to the people, and to have, except where expressly or by necessary implication restrained, like scope. To bound or lessen this jurisdiction there must be a real, irreconcilable inconsistency with United States law.

There was, on the 1st July, 1862, a law passed by Congress, the phraseology of the first section of which might, to a cursory inspection, seem at variance with some of the views we have expressed, but from which a closer criticism would gather an argument in their support. The section defines and forbids bigamy, and was passed, I suppose, more particularly for the benefit of a sister Territory. The language alluded to is as follows: “Every person, having a husband or wife living, who shall marry any other person whether married or single, in a Territory of the United States, or other place over which the 'United States had exclusive jurisdiction, shall,” etc. At first •glance it might seem as if the places over which the United States have exclusive jurisdiction occurred to the legislative mind as of two classes (1) Territories and (2) other places; a classification frivolous as a distributive but good as an exhaustive one. It is certainly possible that under this impression the law was framed. But, should one select the current of thought which most probably obtained in the legislative mind and found expression in the language quoted he would reach a different . conclusion. Uppermost in the mind of the legislator, was the fact, that occasioned the legislation, namely, that the acts to be prohibited as criminal were specially prevalent in a certain one of'the Territories. The law, .therefore, should be made to cover that Territory. But if covering that Territory alone, it might perhaps be evaded, or might seem too pointed or sectional, or might not meet possible future wants elsewhere. So it was made to embrace all the Territories. At this stage it may reasonably be supposed to have come to mind, that there- was on the United States statute book actually no statute defining bigamy, and, except for the District of Columbia, none against it. Hence the description of territory to be embraced was extended so as to include the other places in need of legislation; and as these other places were within the exclusive jurisdiction of the United States, and as that was the only generic description that could be given of them they were so described.

One aim of Congress in the act as passed was to have a law, in form, general. Any design to intimate that each of the Territories was to be construed within the exclusive jurisdiction of the United States, was, it may be confidently asserted, entirely absent from its thought. Its mind was intent on making a general law, not on settling a question of construction. But had an impression of the sort been present, and the design absent, pongress would hardly have used the words “ in a Territory of the United States or other place,” etc., but rather merely the all embracing words “in any place,” etc., and thus have avoided the use of what, to a mind under such an impression, would be superfluous words, “ Territory of the United States or other.” If, on the contrary, the impression had been present, (and it is not improbable that it was) that a Territory was not within the exclusive jurisdiction of the United States, then every word used in the statute would have been necessary in order to make it embrace the Territories, and the classification into Territories and other places would have exhibited no frivolous aspect. The construction that makes no verbiage is certainly preferable.

We are of opinion, that the jurisdiction of the United States is not “sole and exclusive” on the Island of San Juan, within the meaning of the act, April 30, 1790; that the statute of the Territory against murder, at the time laid in this indictment, was, and still is, in force there and that the district court of the Third Judicial District in the exercise of its jurisdiction over all cases arising under the laws of the Territory, had authority to try and punish any person who had committed murder on that Island. So far forth as the exercise of such jurisdiction might be inconsistent with-the understanding between the United States and Great Britain respecting the Isl- and and offenses upon it, it might be the duty of that court to decline to exercise it; but, in the case of the defendant below, there was not only no lack of jurisdiction of the offense, at the suit of the Territory and under Territorial law, but there was no good reason why that jurisdiction should not be exercised by the court. By the international arrangement, each nation was to exercise jurisdiction over its own citizens on (the Island. The defendant below was a citizen of the United States, and was by the United States military commander on the Island, turned over to civil authority for punishment. The prosecution below should have been at the suit of the Territory, and not at the suit of the United States.

The evidence plainly shows that the defendant is guilty of an offense against the Territory. Such being the views of the court on the question of jurisdiction, it is unnecessary to discuss any other question in the case.

Let the judgment of the Court below be reversed and the prisoner be returned to the sheriff of the proper county there to abide the order of the District Court thereof.

The .original demurrer should be detached from the transcript sent by the clerk to the clerk of the Court below, and its place be supplied by a copy certified under the seal of this court.