New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-02-04
CAN TILE WEIT ISSIEP

The Supreme Courts decision that it Will
hear what Great Britain has to say IN support
of an application to issue wit OF ploh0itioh
against the Federal Court in Alaska, restrain
ing it from further proceedings against tie
Savvard, is not to be described as victory Tor
Great Britain by any means. 80 far as II
implies anything, it appears to imply the
reverse. Had the Sayward been condemned
by any other District Court than that OF Alaska
the question of It's owners right to ask VIII
would not have been raised. There are some
differences between the statute creating inc
Alaska court and that creating DI9tnct 'c"t'S
generally, and in approaching the supreme
Court for writ fOrbidding further proceedings
against the Sayward it was necessary 10 dispose
of the preliminary question whether or not those
differences rendered the Supreme Court less
competent than it would ordinarily be. Inc
decision rendered on Monday simply afilrmS
that no such situation had been brought aDou'
by the laws phraseOogy, and the nght OF N.Y.
Cooper. the Saywards owner, 10 petition lor
the writ follows as a matter of course.
The vital question is now to he argued ana
disnosed of. Professor Dwight. discussing TINS
issue in TIE TRIBUNE few days ago, pointed
out that the law was careful not to permit the
apphcation for writ of prohibition tc DO SER
vjce ~ an appeal from erroneous decisions OF
inferior tribunals. If the Alaska court has
erred in its views of the law and the facts
whatever remedies Mr.. Cooper may or may no'
have a writ Of prohibition is not one OF them
This is a peculiar remedy, and may only be IN
volled where it appears that the lower court
is acting or has acted without jurisdiction that
is that it is doing or has done something Whch'
whatever the law or the facts may be, 1t IS
constitutionallv incompetent to do and II, rs Is
the fact in this case, il has already acted Us
want or excess Of jurisdiction must be demon
strated beyond all doubt.
l. seems TO us that in basinG its right to d.
rect a writ against the Alaska court on the
general statutes giving it that authority over
the District Courts. the Supreme Court has al
ready ruled that the Alaska court has JurShc-
lion. If the Alaska court is fully lledged
District Court It's right to try the Sayward can
not be questioned. Its right to condemn her'
of course, depends on the extent OF our domn-
ion in Bchring Sea, but that question is not
before the supreme Court, and cannot be
brought there by an application for writ OF
prohibition 1t might be brought there by an
appeal from the Alaska courts judgment, hut in
themselves moving for a dismissal of their APP
peal. the petitioners have lost their only chance
Of obtaining a ruling from the supreme Court
on the issues they are trying to bring up
If an application for writ OF prohlolNoh
could be employed as a short cut INTO the
Supreme Court on the whole case as adJndI-
Gated in an inferior court. into what a state
Of confusion the Supreme Courts business
would be quickly plunged. This consideration
is enough to show why the court IS likely tc
keen its use confined to the purpose it is meant
10 serve. 1t will be of no value TO the petlnon'
crs to show that our dominion in Behring Sea
extends but marine league from the shore
! for that is Question which the Alaska court i
il is a District Court and the Supreme Cour
now says it isis particularly competent to try
and the question of its competency not OF It's
correctness of Judgment, is the question Whl6
Great Britain has now been empowered TO dis
cuss In fact, every argument offered by tho
counsel for Canada bearing upon the nature
and extent Of our authority i'll the sea IS al
argument against enjOining the Alaska court.