The New York herald., 1872-12-13
TIE WRIT OF PROHIBITION.
Powerful Arguments Fer and Against the Writ
as Prayed For by the Attorney General
of Louisiana-Arguments Of Messrs.
Phillips, Caleb Cushing, Senator
Carpenter and Mr.. Ogden.

WASHINGTON, d. c., Dec. IL, 1872
The Supreme Court was filed to-day with prom
inent lawyers and others interested in the deter
minaton OF the questions raised in the Kellogg
warmoth case, to hear their discussion by the
learned counsel retained in the case.
MR. PHILLIPS ARGUMENT.
Hon. F. Philips opened the case on the side Of
the petitioner with an elaborate argument OF
great force, contending that the Court possessed
the power claimed to issue the writ OF prohibition
in the exercise Of its general supervisory urisdc-
ton over the proceedings OF the inferior courts.
He conceded that the precedents in this country
were against the position assumed; but insisted
that, in the decided cases, there was nothing
but the expression OF Opnion-dicta. The cases
did not present the question at issue in
the clear and unmistakable form in which 1t now
comes before the Court and the point here pressed
upon the attention Of the Court was not necessa-
rily decided in them. Mr.. Philips went into an ex.
haustive examination of the common law authori-
ties and the decisions in the Court OF the Kings
Bench, maintaining that this Court possessed the
power there asserted, and that this was a case
calling for its exercise. The Court should inter.
pose to arrest the usurpations attempted in this
case. He contended that the provisions OF the
Judiciary act authorizing the writ to issue to
Courts OF Admiralty was not intended to exclude
the Court from issuing 1t in other cases, and said
ton OF the judiciary act, which provides that the
Court may issue writs OF scire facias, habeas cor
pus ana all other wrlts which may be necessary for
the protection OF its jurisdiction.
CALEB CusHING's ARGUMENT.
Hon. Caleb Cushing followed Mr.. Phillips ap-
pearing for Mr.. Kellogg, the petitioner In the
Court OF Judge Durel. Mr.. Cushing said he pro.
posed to confne himself strictly to the question or
Jurisdiction, the only one before the Court The
petition prays the Court TO grant writ OF prohibi-
ton Of cerorari, or such other relief as IL may
see nf. The petitioners counsel argued some
what vaguely as to the power OF the Court to issue
n mandamus, but he occupied himself chiefly with
asserting the power to issue prohibition. But in
reference to both remedies he had much TO say in
animation Of the general supervisory Jurisdiction
OF this Court over inferior Courts; but II Is thor
oughy settled in the jurisprudence OF this Court
that IL cannot exercise any supervisory or supe-
rior power in reference TO other Courts
except such as may be expressly granted TO 1t by
act OF Congress. lf the question we're new one
therefore, we should have To look at the very out.
set for some provision OF act OF Congress giving
20 this Court the power pretended but no such act
has been cited by counsel for the petitioner, nor
does any such exist. In the first place. as to pro-
hibItion An act Of Congress grants 10 the Su-
preme Court power to issue wrIts OF prohibition to
Courts OF Admiralty, ana this Court has decided on
at least i've distinct occasions beginning with the
time Of Jay and ending with Chase that the ex.
press power as to Courts OF Admiralty Implies ex-
cluson OF the power as in all other Courts. We
have the cases OF The United States vs. Peters,
The United States vs.. Chrlsty. The United