Dissenting Opinion by
Jacobs, Chief Justice.As I cannot assent to the conclusion reached jby the major*301ity 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 contradistinguished 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 governments 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 this 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 exclusión 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 fon thieves and murderers? I think not. Possibly there might be some ground for the recognition of the distinction between acts mala/m in re, and malam proMbita, 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.
*302It was the design then that some laws should exist and he enforced on that Island. That it was the design of our Government to exclude the laws of the Territory is manifest by the proceedings of the convention and the action of our 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 officers from that 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.
*303It might be very competent and very proper in the accomplishment of the object had 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 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 had been signed, the supreme power in our government, in order to secure its honest and faithful execution, .took possession of the disputed Territory, segregated it 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 eannot 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 affect 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.
*304The 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 that 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 c'ould not. If the Territorial jurisdiction extended there, it had a 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, resident 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 Sec. 4, of the crime act of 1790, which reads as follows. “If a person or persons, within any fort, ar*305senal, dockyard, magazine, or in any other place, or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons on being thereof convicted, shall suffer death.”
But if there he a doubt as to whether San Juan Island was within the Third Judicial District or not, then the last clause of Sec. 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.