"As I cannot assent to the conclusion reached by the majority
of the Court in this case, I will state as briefly as possible
the conclusion of my own mind upon the question of jurisdiction
involved in the case, with my reasons therefor.
"I have come to the conclusion that the United States side of
the Court had jurisdiction, and for the following reasons:--
"1. We all agree that the phrase 'sole and exclusive
jurisdiction,' as used in the Crime Act of A. D. 1790, 1 Stat.
113, has no reference to a claim of jurisdiction made by any
foreign power, but to State and Federal jurisdiction, or, as we
are situated, to Federal, as contra-distinguished from
Territorial jurisdiction. We also agree that it is the duty of
the judiciary to extend the jurisdiction of the laws of the
United States as far as the political department of the
government extends the territorial area.
"2. In my judgment it is the duty of the courts to construe all
such conventions as that entered into between the government of
the United States and Great Britain, with reference to the
Island of San Juan, so as to avert the evil apprehended, and
sought to be prevented.
"When the convention was entered into there was imminent danger
of a conflict of arms. That danger arose from two causes--the
action of the military commanders of this department and the
enforcement of the laws of Washington Territory over the
disputed domain. The first danger was removed by a change of
commanders. The second, by the exclusion of the laws of the
Territory, and that exclusion has been enforced by the
military power of the government ever since.
"3. Was it the intention then of the high-contracting parties,
to exclude all law from San Juan Island, and to make it a
secure asylum for thieves and murderers? I think not. Possibly
there might be some ground for the recognition of the
distinction between acts _malum in se_ and _malum prohibitum_,
acts which under every law, human and divine, are criminal, and
those acts which are only criminal by virtue of some positive
statute making them such. I infer that two civilized nations
would not directly or indirectly, concur to create any such
asylum.
"It was the design, then, that some laws should exist and be
enforced on that island. That it was the design of the
government to exclude the laws of the Territory is manifest by
the proceedings of the convention and the action of the
government from the date of the convention down to the present
time. It was so understood by the military department;
acquiesced in by the other departments of the government, and
recognized as a fact by the courts of the Territory, and by the
legislature, as is evidenced by the release of the county of
Whatcom, within whose limits the island was included by a prior
act of the legislature, from the payment of all costs for the
prosecution of persons committing crime on said island.
"Whatever jurisdiction might have been claimed by the Territory
prior to the last-cited act, was virtually abandoned by it.
"The exclusion of the territorial laws since the date of the
convention has been open, manifest, and palpable, and I believe
rightful. Then, if I am correct in my conclusions, no other
laws were in force on the island for the punishment of persons
guilty of murder (not connected with the military), but the
laws of the United States. In fact, it would follow as a
logical sequence, that if the territorial laws were excluded it
would be a place 'under the sole and exclusive jurisdiction of
the United States,' hence, the laws of the United States would
be operative there.
"I can see many cogent reasons why it was desirable to exclude
territorial laws and territorial officials from the island. The
territorial legislature represented but a small fraction of the
American people and was far removed from the power which was
responsible for a state of peace or war, and before measures
could be disapproved by Congress a conflict might be
precipitated. Territorial officers were not responsible,
directly at least, to the supreme power. It had no control over
their official conduct. All will agree that such control ought
to be directly with the responsible power. That could only
exist legitimately, but by the exclusion of the local
jurisdiction and the operation of the national jurisdiction,
modified by express convention or necessary implication.
"It might be very competent and very proper in the
accomplishment of the object in view, for the treaty-making
power to suspend the operations of all laws for the punishment
of offenders save in the cases where the acts were crimes, by
the universal judgment of mankind. The power to suspend or
modify must exist somewhere, or in the case of disputed
jurisdiction, there could be no treaty or conventions.
"All such conventions are founded on the mutual concessions of
the high contracting parties. After the convention has been
signed, the supreme power in our government, in order to secure
its honest and faithful execution, took possession of the
disputed Territory, segregated from its former local
jurisdiction, and administers, modifies, or suspends its own
laws by its own military or judicial agents. The supreme power
acts through its own functions and not through that of an
inferior jurisdiction. It administers its own laws so far as
such administration is not in conflict with the convention. Its
power is ample and it need not borrow from the inferior
jurisdiction.
"It can not be argued successfully that because San Juan Island
is within the limits of Washington Territory, that, therefore,
it can only be subject to its laws. Puget Sound, Admiralty
Inlet, and one-half of the Straits of Fuca are within the
territorial boundaries, but still many of the criminal laws of
the United States extend over them. Neither can the joint
possession of the United States and Great Britain effect the
question.
"The high seas are in the joint possession of all the nations,
and yet every nation punishes its own subjects for crimes
committed there. Watts is an American citizen, and the victim
of his violence was also.
"4. I am unable to convince myself that, if one general law of
the Territory went to that Island, but what all general laws
went there. That they were not and are not permitted to go
there is a fact too palpable for argument. The alternative then
is presented, either that their exclusion by force has been
rightful, or that the military department has been guilty of a
gross usurpation.
"The latter branch of the alternative ought not to be received
without the clearest and most indubitable proof of its
correctness. I am not contending for the doctrine that a
military order is absolutely conclusive upon the courts, but
it is always entitled to respectful consideration and will be
presumed lawful until the contrary is shown. Especially, should
such be the case when the order emanates from the highest
functionary of the military department, and has been long
sanctioned, at least by the acquiescence of every other
department of government.
"To have permitted all the laws of the territorial legislature
to have gone to the island would have resulted in the
nullification of the convention. It would in fact have given
the territorial legislature a veto on the treaty-making power
of the government. Could this convention have stood for a day
with the extension of the taxing power of this territory over
that island? Every one knows that it could not. If the
territorial jurisdiction extended there, it had the right to
tax the property of the inhabitants thereof for territorial and
other legitimate purposes. Taxes are not levied upon citizens,
only, but inhabitants, property-holders, residents within the
jurisdiction. The rightful exercise of such a power would have
been decisive of the controversy, or rather it would have been
exclusive of any rightful claim to controversy. Its attempted
exercise would have been resisted with all the power of Great
Britain. Reverse the circumstances and let British Columbia
attempt to extend its taxing power over that island, and our
government would resist the insult with all its military power.
"On what principle could a part of the general laws of the
Territory go to that island, and a part not? It is of the very
essence of general laws, at least, that they should be uniform
and universal. If the territorial jurisdiction extended at all,
it is complete and entire. It reaches all rightful subjects of
legislation, and is supreme within those limits.
"For the above reasons, I am of the opinion that Watts was
rightfully indicted under section 4 of the Crime Act of 1790,
which reads as follows: 'If a person or persons, within any
fort, arsenal, dockyard, magazine, or in any other place, or
district or country, under the sole and exclusive jurisdiction
of the United States, commit the crime of wilful murder, such
person or persons, on being thereof convicted, shall suffer
death.'
"But if there is a doubt as to whether San Juan Island was
within the Third Judicial District or not, then the last clause
of section 28 of the Crime Act of 1790 would apply, for Watts
was first brought into the Third Judicial District and
delivered to the marshal of the Territory by the order of the
Secretary of War."
Immediately after the reversal I called a special term of the Court at
Port Townsend, at which Watts was re-indicted on the Territorial side of
the Court, tried, and again convicted and sentenced to be hung. He again
appealed to the Supreme Court, but the judgment was affirmed; he then
sued out a writ of error to the Supreme Court of the United States, and
it was allowed, and it came up for hearing while I was Delegate from the
Territory. The Court was informed that Watts had escaped from jail and
was at large, and the Supreme Court refused to hear his writ of error.
He has never been recaptured.
After all this had transpired, the German Emperor decided that the Canal
de Haro was the true boundary line under the Treaty. The British troops
were withdrawn from San Juan Island, and peace and friendship
prevailed.
While I have always been in favor of liberty regulated by law, and have
believed that order and security were the sure resultants of law's
vigorous enforcement, yet there may be times and conditions, in frontier
communities, when the suspension of the general rule, like the
suspension of the great writ of Habeas Corpus, may be justified in the
forum of reason and morals. Especially, is this true when the furore of
the populace is not based on race, or class prejudice, or the frenzy of
religion, or party madness; but has only for its ultimate, the security
of person, property and habitation.
Hold-ups on the streets, with pistol accompaniments, were frequent in
the City of Seattle; burglaries were the regular order of business; no
man was safe in the streets after nightfall; in fact, fear had become so
intensified that in the visitation of one neighbor to another's house
after dark, the visitant, after proper precautions, was received with
pistol in hand. Such were the conditions, I am sorry to say, existing in
the embryo city of Seattle in January, 1882, and such had been the
conditions for several months previous to that time. The town was full
of thugs and criminals. Such a situation was intolerable. During its
continuance one George Reynolds, a young and popular business man, was
shot down in cold blood, between seven and eight o'clock in the evening,
while going down Marion Street to his place of business on Front Street,
now First Avenue. He was held up by two ruffians between what are now
called Third, and Fourth Avenues. His money and his other valuables were
demanded by them, and upon his refusal to deliver up, he was
assassinated.
I have never been a believer in Divine interposition or impulsions, but
I must confess that on that fatal evening, and on a few other occasions
my rationalism was somewhat shaken. My usual route from my residence on
Fourth Avenue to my office on James Street was down Marion Street. On
that evening, arriving at Marion Street, under the influence of some
occult force, or power, I stopped, looked down Marion Street, and saw
the assassins of George Reynolds standing near the west end of the block
and leaning against the wall of the Stacy premises. Impelled by this
mysterious force, I involuntarily went on to Columbia Street, and, when
nearly opposite on the block to the south, heard the report of the shot
that ended the life of Reynolds. Soon after I arrived at my office, I
was informed that Reynolds had been shot and that he was dying; that
many citizens were assembling at the engine-house, and that my
attendance was requested. I accompanied my informant to the engine-house
and found there assembled from seventy to a hundred men, greatly excited
and determined. We quickly formed ourselves into a Committee of Ways and
Means, and resolved to spare no expense, nor to omit any means for the
apprehension and punishment of the guilty parties. I was elected
Chairman of that meeting. We also immediately sent out twenty-five armed
men to patrol the streets leading out of town, and to guard, in boats,
the water front. We soon after added to the patrol twenty-five more men;
soon after, fifty more; and within an hour-and-one-half after the firing
of the fatal shot, we had at least one hundred armed men, and detectives
in the field, besides the active, vigilant, willing and intelligent
regular police-force of the town. In addition, a select committee,
headed by the Honorable William H. White, was appointed to investigate
the circumstances of the shooting, and to ascertain, as nearly as
possible, the facts and circumstances identifying the guilty parties. I
remained in the engine-house until after one o'clock, listening to the
reports, made by patrolmen concerning suspicious characters, which were
summarily examined and in most cases were dismissed as unfounded; but in
a few cases the order was made to keep these suspects under strict
surveillance, awaiting further developments. Between one and two o'clock
a. m. the report came in that the guilty parties had been arrested,
delivered to the sheriff and by him locked up in the County jail. They
had been found concealed under bales of hay on Harrington's wharf. One
had in his possession a pistol, but recently discharged. There were two
of them. The news of their capture spread like wildfire. The patrolmen
and other citizens came rushing in to the engine-house; and when the
captors gave an account of their success, they were angrily asked, why
they had delivered them to the sheriff, and why they had not brought
them to the engine-house? The question was ominous. They were told that
the captives were in the proper custody; and they were asked what they
wanted the captives brought to the engine-house for? The reply was, that
they wanted to look at them. This was still more ominous. I saw that so
firm was the conviction that the parties arrested and in the rightful
custody of the sheriff, were the guilty parties, that if the populace
could get hold of them they would be strung up, without examination or
trial. To this threatened act I was opposed, and I left the meeting and
went down to my office. The light was still burning in the front room; I
extinguished it, and, leaving the front door unlocked, went to the rear
or consultation-room, locked the door and sat in a chair to meditate in
the darkness on the situation, or condition of affairs. I had not been
there long before two persons whom I recognized by their voices came
into the front room and called me by name. I did not answer. They then
came to the door of the consultation-room, rapped on the door, called me
by my name and gave their own names. I finally admitted them. They told
me that they had just left the crowd at the engine-house, and that the
determination was fast approaching unity, and, if its culmination was
not prevented, the captured men would be taken out of the jail and hung
that night. They thought that I might prevent such an unnecessary and
unwarranted ending of our grand and successful work. Knowing that the
sheriff was a man of nerve and courage, and fearless in the discharge of
his official duty I dreaded the result of such an undertaking, and I
finally consented to go.
Upon arriving at the engine-house I found it filled by an excited yet
joyous crowd. I made my way through this crowd to the rear of the large
assembly-room, and while working my way through, received something of
an ovation. While yet standing, someone said: "Judge, we thought you had
thrown off on us." "Never," I replied. "But to illustrate my position,"
I said, "let me tell a story: Three negroes, passionately fond of
hunting, and whose ambition in that regard was not fully satisfied by
the capture of deer, turkey and quail in their native State, decided on
a hunting-trip in the Rocky Mountains, to add the capture of larger and
more dangerous game to their trophies. Being fully equipped, they bought
tickets for a recommended point in the mountains. Arriving there, they
left the train and went up into the dark woods, the sunless canyon, the
silent coves and snow-crowned mountains, where the denizens of the wild
were supposed to dwell. On the second day of their camping-trip, they
came upon a large grizzly bear in a mountain cove. They fired at the
grizzly and wounded him. Then the scene changed, and the bear commenced
to hunt them fiercely. Two of them succeeded in climbing trees, but were
unable to take their guns up with them. Sam, the other, was pushed so
closely that he was unable to tree. He ran in a circle, with the bear in
close and hot pursuit. His companions, safely perched in their tree,
halloed to him to run. 'Sam, for God's sake, run.' One of the companions
slipped down from the tree and, as Sam and the bear approached him, made
a successful shot and finished the race so far as bruin was concerned.
Sam, as soon as he could get his breath, says: 'What did you niggers
mean by crying out to me, run Sam, for God's sake, run? did you suppose
I was such an enormous fool as to throw off on that race?'" I told two
more of the most ludicrous and laughable stories that I could think of;
the object being manifest: I wanted time for the sober second thought to
assert itself. I continued somewhat thus: "Are you afraid that the
sheriff will send away the prisoners tonight, or that they will escape?
If so, that can be prevented by sending twenty-five or fifty, or if you
please, one hundred men, to keep watch and guard until nine o'clock
tomorrow morning, when the justice has promised me to hold a public
examination of the prisoners in the Pavilion, where all may come and see
them and hear the examination." The Honorable William H. White, who was
present, made a clear, earnest and forcible speech in favor of the
proposition, and it was carried by a good majority.
The Pavilion was on the Southeast corner of Front and Cherry Streets.
It was used as a church, as a Court House, as a theater, and for all
public meetings. It was over a hundred feet in length and about thirty
feet in width. Its entrance was from Front Street.
At the appointed time Justice Samuel Coombs was in his seat and the
prisoners were present. They both pleaded not guilty. Honorable William
H. White and myself acted as prosecuting attorneys. A Mr. Holcomb, a
lawyer of good standing and ability, appeared for the prisoners and
sharply cross-examined the witnesses sworn on the part of the Territory.
The Pavilion was full of spectators, among them was his Honor Roger S.
Greene, the then Chief Justice of the Territory. When the evidence was
all in, the Territory waived its opening, but the prisoners' counsel
made a brief argument in their behalf. The Territory waived its right to
reply. During the progress of the examination, the windows in the rear
of the Pavilion had been quietly removed.
The Justice, after a few moments of reflection, declared that the
evidence of the prisoners' guilt was clear and convincing beyond a
reasonable doubt, and the order of the Court was, that they be held for
trial without bail. When the Justice had ceased speaking, someone--I
have never learned who it was--slapped his hands together three or four
times; and that immense audience rushed with one accord to the open
windows in the rear, taking the prisoners along with them. Judge Greene,
at first, seemed dazed by this sudden rush, but in a short time he
started to follow the crowd. A man standing near seized him as he
attempted to go, pulled down the theater curtain, threw it over the
Judge's head, and securely held him until the crowd was nearly all out
of the building, whereupon James McNaught quietly said: "Let him go."
The Judge quickly rushed out of the building and down the alley to where
the hanging was taking place. He seized one of the ropes and attempted
to cut it, but he was soon hustled out of the crowd. Governor Elisha P.
Ferry then advised him, as he could do nothing, to go home. This he did.
The man who had thrown the theater-curtain over the Judge's head was
asked why he did so; his answer was, that Justice ought to be blind, on
such an occasion especially.
There were on the north side of James Street two large-sized maple shade
trees standing eight or ten feet apart. It was in these trees that a
strong scantling had been placed, to which the prisoners were hung. As
soon as the two men had been swung up, someone in the crowd cried out:
"Our work is not yet completed; let us hang the murderer of old man
Sires to the same scantling." The idea was immediately seconded, and
about one-half of the crowd went up to the County jail, broke down its
doors, took the murderer who was awaiting his trial, put a rope about
his neck and quickly returned with him to the fatal scantling. The rope
was thrown over it, and he was swung into eternity.
I left the Pavilion soon after the crowd had retired, and walked slowly
down to James Street. I arrived there just as the crowd was running down
the hill with the murderer of Sires. A gentleman rushed up to me as I
was slowly walking across James Street and said: "Judge, how do you feel
about this proceeding?" I answered: "As a member of Judge Greene's
Court, I feel terribly indignant; but as a private citizen, I think that
I will recover."
Sires, who had been killed about a month before by a ruffian of the
name of Payne, was an aged pioneer. His life for many years had been a
rough one, and slightly bordering on toughness; but he had reformed and
joined the church; and as he was a man of good ability, he occasionally
preached. Confidence in his sincerity and genuine reform was general. He
was poor, and, to aid in his support, he was given the office of
policeman. While in the discharge of his duties as such, he was shot
down by Payne. There was no doubt of Payne's guilt.
A coronor's jury on the hanging was summoned. Of this body I was a
member and its foreman. We examined, I think, twelve witnesses. They all
testified that John Doe and Richard Roe and Payne came to their death by
hanging. Who were present, aiding, or abetting, or counselling, or
advising, or actually doing the said hanging, or in any manner
participating in the same, they all swore that they did not know.
Finding that other and further investigation would be futile, we ceased
taking testimony and joined in a verdict embodying what has been stated,
with the addition that while we regretted the mode of their taking-off,
yet we were certain in the death of the prisoners that the Territory had
lost no desirable citizens, and Heaven had gained no subjects.
Court convened in a few days and Judge Greene gave the grand jury a
well-prepared, able and elaborate charge, stating that everyone who
participated in, or counselled, or advised, or actually performed the
acts resulting in the death of these three men was at least guilty of
manslaughter. He earnestly urged the grand jury to fearlessly
investigate the matter, and if they were convinced that any person
participated in the hanging of the three persons in any way spoken of
by him, they ought to find indictments accordingly. Everybody honored
the Judge for the faithful, fearless and full discharge of his duty in
the matter; but his brave charge resulted in nothing. Thus ended the
second, most tragic event in the history of the City of Seattle.
Whatever we may think of the mode of the taking-off of these three men,
everyone admits that the result was beneficial. Security in person,
property and habitation was again enjoyed. The criminal classes silently
left the town, and peace and order reigned.