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Wheat. 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.

V. The power and duty of this court to decide whether the Alaska court had or had not jurisdiction, cannot be affected by any action of the executive. 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 have determined so as to bind the courts, have chosen neither to determine the extent of the dominion of the United States nor to make any provision of law by which that extent is to be determined by the executive. The determination of that extent is, therefore, by the Constitution and laws of the United States made a 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 any warrant of any law of the United States.

The question of the legality of the seizure of British vessels in Behring Sea by the United States is a question of law, not only under the law of nations, but under the municipal law of the United States. The judiciary is not asked to overrule the executive and Congress in a position which they have taken towards Great Britain, but to do, what it cannot avoid doing in a case involving private right—to construe acts of Congress and a treaty, which are all parts of the supreme law of the land, and which leave to its construction the true meaning of the words, "the Territory of Alaska and the waters thereof" and "dominion of the United States in Behring Sea." With the broader international question this court is not asked by counsel for petitioner to concern itself; and even that is a matter not between the United States and Great Britain, but between the United States and the civilized world, before which the Congress of the United States has distinctly refused to assert, by the mere force of a municipal law, any extent of dominion not recognized by the law of nations.

While it is plain that within its lawful sphere the executive cannot be either superseded or overruled by this court, it can

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not 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.

This court has had to deal with the action of executive departments in many cases. Gelston v. Hoyt, 3 Wheat. 246; Williams v. Suffolk Insurance Co., 13 Pet. 415; Kennett v. Chambers, 14 How. 38, as to the recognition of a new State: United States v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52, as to a civil war in another country: Foster V. Neilson, 2 Pet. 253; Garcia v. Lee, 12 Pet. 511, as to boundaries: Frelinghuysen v. Key, 110 U. S. 63; Alling v. United States, 114 U. S. 562; Jones v. United States, 137 U. S. 202; United States v. Rauscher, 119 U. S. 407, as to the Secretary of State and funds in that department: United States v. Holliday, 3 Wall. 407, as to the Secretary of the Interior: Merritt v. Welsh, 104 U. S. 694; Morrill v. Jones, 106 U. S. 466, as to the Secretary of the Treasury.

The application before this court is not an attempted proceeding against the United States. This court is not asked to control or direct or interfere with the executive in the performance of any duty imposed by the Constitution or the laws. It is not asked to send its process to any of the officers or agents of the executive. It is asked for a judicial writ to be directed to the District Court of Alaska, in accordance with the special authority given by the laws of the United States. The only question now before the court is, shall this writ issue? The right of the executive to deal with persons and property can never, under the Constitution of the United States, be a political question. Little v. Barreme, 2 Cranch, 170.

Without the clear authority of a law of Congress, the execu tive can never, by determining a so-called political question, or by construing an 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. Little v. Barreme, ubi sup.; United States v. Rauscher, 119 U. S. 407, 418.

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VI. No action heretofore taken by the United States government amounts to an assertion of any sovereignty in the United States, which would give jurisdiction to its courts over any portion of the Behring Sea or the wild animals therein, beyond a marine league from any shores of the United States.

Not only does the diplomatic correspondence of the United States fail to disclose such an assertion of sovereignty or definiteness of position with respect to this question, as would preclude the court from giving to it original examination, but the right of the court to examine and the propriety of its determining this question has been expressly acknowledged and definitely preferred by that very department of the gov

ernment.

VII. It is earnestly insisted that the allegation in the diplomatic correspondence of the United States of the admission by Great Britain of any exclusive jurisdiction of Russia in Behring Sea cannot, in the absence of an act of Congress or a treaty, affect the legality of this seizure and condemnation, even if the allegation were well founded. The allegation and contention of the United States in this respect are, however, without foundation.

The contention, advanced for the first time by the United States in this controversy, after an acquiescence of more than sixty-five years in the world's construction of the treaties of 1824 and 1825, that the phrase "Pacific Ocean," as used in those treaties, was not intended to include, and did not include the body of water which is now known as the Behring Sea, because the words "Behring Sea" were not used in either treaty, is absolutely without foundation; and yet the amazing concession is made by the United States that, "if Great Britain can maintain her position that the Behring Sea at the time of the treaties with Russia of 1824 and 1825, was included in the Pacific Ocean, the government of the United States has no well grounded complaint against her."

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 in

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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

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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.

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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