"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 contra-distinguished 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 government 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 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.