No. 131.
Mr. Fish to Sir Edward
Thornton.
Washington, January 10, 1877.
Sir: Referring to the correspondence which has taken place concerning the case of Peter Martin, held in custody in British Columbia, and particularly to my notes of the 2d of November and the 6th of December last, I have now the honor to inform you that a dispatch has been received from the consul of the United States at Victoria, dated December 20, stating that Martin had been brought to trial for the assault charged against him, in a court of assize held at Victoria, on the 16th December ultimo, before the Hon. P. P. Crease, a justice of the supreme court of the province, and had been found guilty and sentenced to one year and nine months’ imprisonment at hard labor, to take effect after the expiration of the term of imprisonment of fifteen months to which he was sentenced in September last.
The consul, who was present at the trial, states that two witnesses, who were on the spot at the happening of the occurrence, testified that the assault occurred in what is considered to be Alaska territory, one locating the point near the Stickine River, eight or ten miles from its mouth, the other at a distance of some ten or twenty miles from its mouth, and that the judge, in charging the jury, referred at some length to the point of jurisdiction and to the fact that a question had been raised by this government concerning the right of a court in the province to try the prisoner for an offense committed in Alaska and to correspondence between the two governments, but stated to the jury that he would entirely disembarrass them on that point by saying that no evidence had been produced or could be produced to show that the offense for which the prisoner was on trial was really committed in Alaska, as the boundary between the two countries on the Stickine River remained undetermined, and no line of demarkation existed showing how far up that river American territory actually extends, whether it was five miles, ten miles, or thirty miles; and that, under these circumstances, the court had jurisdiction or concurrent jurisdiction, and the proceedings in trying the prisoner were just and proper.
In the note originally addressed to you, under date of November 2, it was suggested that if it appeared that the assault was committed within the territory of the United States, Martin could not properly be tried for the offense with which he was charged, and that he should be set at liberty; and I had the honor to request that you would call the attention of Her Majesty’s proper authorities to the case, that an examination of the facts might be made before the case was disposed of.
The facts were laid before you, and while no unnecessary prominence was given to the violation of the sovereignty of the United States which had taken place, it was confidently hoped that before’ Martin was placed on trial for the new charge, or before any proceedings had been taken to continue his imprisonment on the former one, the facts would have been carefully examined by the colonial authorities and a conclusion reached as to what course should properly be taken, in view of the rights of Martin and of the sovereignty of the United States, which it was stated had been invaded, and it is a matter of regret that under the circumstances the court, with apparent knowledge of the facts, should have proceeded with the trial and have sentenced the prisoner, and assumed to decide questions having a serious bearing on the rights [Page 269] and jurisdiction of the two countries. Moreover, the position assumed by the learned judge who presided at the trial, if rightly reported, seems to be such as I feel quite confident will not be sustained by Her Majesty’s Government.
The absence of a line defined and marked on the surface of the earth as that of the limit or boundary between two countries cannot confer upon either a jurisdiction beyond the point where such line should in fact be. That is the boundary which the treaty makes the boundary. Surveys make it certain and patent, but do not alter rights or change rightful jurisdiction.
It may be inconvenient or difficult in a particular case to ascertain whether the spot on which some occurrence happened is or is not beyond the boundary-line; but this is simply a question of fact, upon the decision of which the right to entertain jurisdiction must depend.
I have the honor, therefore, to ask again your attention to the subject and to remark that if, as appears admittedly to be the fact, the colonial officers in transporting Martin from the place at which he was convicted to his place of imprisonment, via the Stickine River, did conduct him within and through what is the unquestioned territory of the United States, a violation of the sovereignty of the United States has been committed, and the recapture and removal of the prisoner from the jurisdiction of the United States to British soil was an illegal, violent, and forcible act, which cannot justify the subsequent proceedings whereby he has been, is, or may be restrained of his liberty.
I have, therefore, to express the hope that if Her Majesty’s authorities find the fact to be as it is represented, that Martin was conducted by the officers having him in custody into and through the Territory of Alaska, being part of and within the jurisdiction and sovereignty of the United States, he be set at liberty.
I must not allow this question to pass without entering an explicit dissent from the doctrine which seems to be advanced by the learned judge who presided at the trial of Martin, that jurisdiction or concurrent jurisdiction vests in Her Majesty’s colonial authorities or courts over offenses committed within any part of the Territory of Alaska, even though so near to the treaty-line that uncertainty or doubt may exist on which side of such line the offense is committed. It cannot, I think, be necessary to argue this point, or to do more than record this dissent and denial of a doctrine which, I have no doubt, Her Majesty’s Government agrees with me in repudiating.
I have the honor, &c.,