Memoirs of Orange Jacobs

by Orange Jacobs

"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.