"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.