New-York tribune., 1891-01-29

JURISDICTION, for the purposes of this writ Inc
ground Of the writ in such case is that the court
has no jurisdiction. flames v The London ana
Southwestern Company. Law Rep I. Exchequer
lS1, IA. ID. 1872. S. 6. And on appeal. p. $50.
Ihere Is, however highly important quail
hcatlon TO this principle t. the following effect.
A prohibition will not be directed to the Court OF
Admiralty on the ground that it is proceeding
without jurisdiction in matter involving inter
national law unless the facts and rules of law
governing them are clearly beyond its powers.
for that court is peculiarly adapted To the de-
cision of questions arising upon international
and maritime law. TN the matter of the Charlieh,
l.. r. s, .. b. o. also reported in AZ, L. Journal.
q. b. Is "A. d. 1872
The important bearing of this case on the pres
ent discussion requires that il should be stated at
some length
On the 9th day OF October, 1872 the steamship
Charkieh came into collision with the steamship
Batavter In the river Thames The latter vessel,
which belonged TO n corporation, sank and bccaIne
total loss On the 2lst of October warrant of
arrest in cause of damage, instituted In the Court
Of Admiralty on behalf of the owners of the sunken
ship, was served upon the Charkeh, then lying in
the port of London.
Thercupon there issued from the Court of
Queens Bench rule or order directed TO the Judge
of the High Court OF Admiralty and to the owners
of the Batavier commanding them to show cause
why writ of prohibition should not issue to pro-
hbt that court from further proceedings III the
cause
The questions in the case presented on afi-
davits. II stated in these that the Charkeh
the property of the Khedye of Egypt and was
a ship of the Egyptian branch OF the Turkish
Navy carrying the Ottoman naval pennant. She
had been employed as a Government packet, carry
ing the mails, passengers and cargo between Alex
andria and Constantinope. but she had been sent
10 England TO be repaired In order 10 lessen the
expense of the voyage she had brought cargo
from Egypt. All freight and passage money earned
by her were ultimately accounted for 10 the Min
lister of the Interior Of Egypt
Additional facts stated in the aildayitS were
that she Oh her trial trip since her re-
pairs were made, and that The khcdiyc exercises
power In Egypt levies taxes IN that country,
that he was vassal of the Sult1n Of Turkey, and
that the ship was not manof war, nor was lcr
construction adapted for waIlke purposes These
facts were deemed pertinent TO show that there
might be ali international question In the case.
The prohibition asked foi under this state of
facts. on the grounds that tine Court of Adj
miralty has no jurisdiction TO entertain a suit
foreign prince. and that the suit was against him
in that character. The writ, however, was re-
fused
IL is plain that in this case there were both
questions of fact and OF law. The law questions
were matters of international Laws. A. 10 the
facts. il is clear that il would bc highly unNatis-
factory to have them tried on alidnuts. where
there would be no opportunity for croSs-cNanina-
tion II would BE- far better, in the case Of
such grave questions rs conflicting views Of in
ternationnl law present 10 have the facts a. well
as the law tried by competent court. Il must
not be overlooked that international law i .
part of the municipal law OF the land and proper
domestic court is as competent 10 decide n quc>-
ton of that branch of municipal law as OF any
other
This reasonable view Is taken in the opinions of
the very eminent judges who participated in the
decision refusing the writ. One of them was
Lord Chief Justice Cockburn, famous for his par
ticpation in tie matter Of the Alabama claims
growing ont of our recent civil war. and another
was Justice Blackburn. subsequently made
member of the House of Lords. ~ Law Io,d.
for his judicial ability In order to be- entirely
accurate their opinions are quoted In fall. Cock
burn, c. j. said: We are Of opinion
that the rule for a prohibition should bc dis
charged The question raised relates 10 inter
national law which is recognized by the municipal
law of this country. one of iN principles Is
that a sovereign prince or State cannot be sum
moncd TO answer complaint made in a foreign
court II is alleged that tins vessel beoug, ~
the khcdive But if she belongs 10 the khcdiyc
land this for the purpose Of the argument
assume she IS found in the hands of other
pciYons and under circumstances which ccriaipN
lead 20 the inference that she is not a vessel Of
war. vessel al tie tilac Of the occurrence, in
the employment of the khedive a sovereign
prince. There, therefore, is "A further question.
whether or not vessel belonging 10 a foreign
potcntatc. but not used a vessel Of state or
vessel of war is entitled 70 the immunity which
ships of and ships used for the purposes
of government enjoy. This is n question pc
culiarly within the province Of the Court OF Ad-
Iniraty to decide. Why aye 10 hold that the
Court of Admiralty cannot deal with II? If IL
entertains the suit there is appeal To the
Judicial Committee Of the Prvy Council a court
of the highest authority. | feel dlsinclincd to
grpnt q rule for a prohibition in n ease where the
facts are in doubt and the court whose jurisdiction
is sought 10 be impcaccd is Just as competent 10
determine the question are. If the court
finds contrary to the evidence in order 10 give
itself jurisdiction, this court would not be- bound
by It's authority, or, If IT gave "A mnnfestlN
erroneous decision. although not for the purpose
Of giving itself jurisdiction this court would he
entitled to look into the cTcums anccs. But both
facts and law are within the jurisdiction of the
Court of Admiralty and that court is perfectly
competent TO decide them"
Blackburn j., said :" / am also of opinion
that this rule should be discharged. Prohibition
is granted by this court where an inferior court is
exceeding its jurisdiction and taking itself
70 decide matter which is
beyond its powers. Now, taking every
fact brought before us on the part of the persons
applying for the prohibition TO be true. the
would be this: That the Khedive of Egypt is
sovcrign princc-as | assume for present purposes,