324 APPENDIX TO CASE OF GREAT BRITAIN. 
; [Inclosure 2 in No. 207.] 
Messrs. Handy and Co. to the President of the United States. 
32, CLAY STREET, San Francisco. 
Under the provisions of Article 2, Section 2, of the Federal Constitution, as 
expounded in six opinions (Attorneys-General, p. 393), and in the case of ex parte 
Garland (4 Wall, 333), we herewith respectfully apply to you to remit the forfeiture 
adjudged against our vessel, the American schooner ‘‘San Diego.” her tackle, apparel, 
furniture, and cargo, in the District Court of the United States for the District of 
Alaska, as appears by the papers on file in the office of the Secretary of the Treasury, 
which, by reference, are made a part of this Petition. 
The oftence for which our vessel and cargo were judicially condemned was the 
killing of fur-seals in the waters of Alaska, contrary to the Statute in such cases 
made and provided, Remission and pardon are invoked upon the following grounds: 
1. That the offence was not, in fact, committed. 
2. That, owing to the distance and inaccessibility of the place of seizure, trial, and 
condemnation, and the ignorance of the master of said schooner, a fair opportunity 
did not offer itself to us to make an adequate defence against the condemnation. 
3. That although the trial and condemnation were had under a belief shared by 
all parties to the proceeding that an appeal would lie for either party against the 
decision of the District Court of Alaska, and although such an appeal was duly 
taken in our behalf from the Judgment of Condemnation, it now appears exceed- 
ingly doubtful whether the Act of May 17, 1884, which organizes a judicial system 
for the territory of Alaska, permits rights of appeal in any case not strictly criminal. 
4, Because the Attorney-General, in opinions rendered to the Secretary of the 
Treasury under dates of the 19th March and 16th April, 1887, has held that the 
remissory power conferred upon the Secretary of the Treasury by sundry provisions 
of the Revised Statutes does not extend to our case. 
From the foregoing summary of the grounds of this Petition, it will be seen that 
we are in danger of being for ever deprived of our property upon a doubtful state of 
facts without a full though a. legal hearing, under an apparently mistaken belief on 
the part of the trial Judge and Council that means to review the decision of such 
Judge had been provided, and with no other effectual remedy now left to us than to 
resort to the constitutional power of the President to grant pardons and remissions. 
It has been said by Mr. Attorney-General Cushing (6 Opin., 488), that the power 
of remission is proper to be exercised in cases where doubtful questions of law are 
involved, or where parties are so situated that a due process of law cannot or has 
not been had. 
Our case is at least within the spirit of this opinion on both points, firstly, because 
we had not had, and seemingly cavnot have, one fair day in Court, and secondly, 
because if our vessel had been engaged in killing seals in the waters alleged (a fact 
which we deny), it would be extremely doubtful if such killing would be an offence 
against any law of the United States. 
Upon this point we refer to the decision of Mr. Secretary Boutwell, of the 
292. Treasury Department, rendered in April 1872, wherein he held that the taking 
of fur-seals in Behring’s Sea was not unlawful unless attempted within a 
marine leagne from the shore. We need not remind your Excellency that the same 
position is held to-day by the Government of the United States in the matter of the 
Canadian fisheries, and that the three British vessels lately seized and judicially 
condemned for seal killing in Behring’s Sea have been released in obedience to the 
uniform and unswerving doctrine of our Government upon the question of what con- 
stitutes the high seas. When we add that our vessel was seized in the same waters - 
at the same time, and condemned in the same Court upon precisely the same grounds 
as were these British sealers, recently set free, with title restored to their owners, 
we believe that we have stated full, sufficient, and reasonable grounds why the 
repudiated headland doctrine should not lie against us. There is no pretence set up 
in the evidence submitted on the part of the Government that our vessel was sealing 
within the 3-mile limit, or was actually caught catching seals within the waters of 
Behring’s Sea. In the case of the ‘Ocean Spray,” reported in 4 Law., p. 105, Judge 
Deady held that, to constitute a violation of Section 1956, Revised Statutes, under 
which law our vessel was condemned, there must be an actual killing established. 
Permit me to observe that if the forfeiture in our case shall be permitted to stand, 
the anomalous spectacle is presented that alien persons and foreign vessels are per- 
mitted by our Government to pursue an industry and receive the mercy of pardon 
denied to citizens and vessels of the United States. No such distinction in matter 
of right and law between aliens and American citizens has ever been drawn by a 
a Federal Administration. 
The facts of this case, as shown by the papers in the Treasury Department, which 
the Secretary of the Treasury has not been permitted to examine by reason of the 
adverse opinion of the Attorney-General upon the question of his power to remit, 
are as follows: 
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