New-York tribune., 1891-01-29
THE HPIT OF PROHIBTTION

Professor Dwight ha, furnished us with an
interesting article. printed on the eleventh
page of to-day'S paper, in which he shows that
if the request for 4 writ OF prohibition, Sllch u
is bcing asked in the BchIing sea case Of ON
supreme Court by the British Government
were made under similar conditions, in an Eng
lish court it would of necessity be refused. The
nature of this writ, how it originated what It's
function wa in earlier times, and how 1t may
now be employed are explained with the pre-
cision and lucidity that distinguish all of Pro
fc>sor Dwight'S discussions. This article. aS il
stands might we'll 60 into legal textbook
where, perhaps. ir> highest service would bc
performed and yet II is - logical and 50 flcc
from technical expressions that II can be read
with interest and profit by every one. There IS
no difference whatever between the English
law and our own ~ 10 the object and power
Of the writ, nor ~ 10 iN u,c in common prac-
tior, except that our counts have SHOWN ah
especial reluctance e. employ il when is issue
is "A matter oi judicial discretion 50 that the
fact, brorgh, ont by Professor Dwight bear di-
Icctly upon the ease now being argued at Wash
ington.
We stall not undertake to express the result
of Professor Dwight, analysis of the law. Re
fcrring however, to h> conclusion. that il j.
not obligatory upon the court to issue the writ
at the instance OF Il stranger even when it finds
tha the inferior tribunal has clearly exceeded
il, jurisdiction, il seems proper 10 point on
that the very language OF the petitioners cOun-
SCI in the >aywaId case requires the Supcm'
Court, if il grants the writ, 10 intervene where
it has no jurisdiction itself. "ln addition 10
the petition for the writ of prohibition filed by
the claimant herein" says the bret, "a sug
gc,tion for such writ j also filed in the name
Of Her Bliannic Majc,ly'S Attorney General Of
Canada by the Dominion Of Canada. at Who>c
instance counsel who sign this brief appear.
And they are authorized by Her Britannia
Majc>ty'S Minister TO the United states t. LAY
that such action by the Dominion of Canada i
taken with the knowledge and approval of the
lmEcrial Government OF Great BIitan.''
In other words. the claim of this petitioner.
Cooper, having been prosecuted by Great Brit
ain before the political departments Of the
United States Government. and having been
by them rejected, Glcat britain now comes be
fore the judicial department, and asks it 10
entertain the claim and to decree that the
thOrity Of the United state, does not 90 50 far
Us the President and Congress have affirmed.
Can anything be palmer than that the Supreme
Court has no power 10 make such an assertion.
or that, If il should undertake 10 make it, il
could in no way bind the Executive or the Con
grcSs? The right - ouf Government to >aiHc
the Sayward depends upon the extent of it,
authority in Bohnng Sea. That authority hay
ing been defined by an Act Of Congress, and
that Act having been interpreted to foreign ma
tionN by the President questions concerning
them arising in the Supreme Court are not by
that court delerminablc by international law.
Foreign Governments. OI course, may with en-
tire propricty urge that cur law is in contra
yentiOn of that higher law if they SO think
and they may argue with us. and. failing t.
convince or correct us. they may resort 10 the
ultimate trial but 50 far Is our supreme Court
l., concerned, which has no authority whatever
to hmit our National rights and pr '>,ionS,
they are political questions to be determined
according 10 the will of the Nation a> constitu-
tionaliy expressed. The authority TO declare
how far and over what our dominion extends j.
lodged in Congress and in the President the
one asserting and the other defending, and the
sui rene Court, in discharging its duty to in
divduals who ma, feel agglievcd by our acts
Of dominion, is bound 10 follow the laws of
Congress and to accept that Interpretation Of
them. if such exists, which the President has
made in his intercourse with foreign Powers
Entirely analogous questions TO the one now
before the court have arisen in boundary c;ines
and the court has specifically declared that it
is i" not the department of the Government TO
which the assertion of it's interests against for