New-York tribune., 1891-02-06
THE ZEAL QUESTION IN THE SAYWARD
CASE

We commend to our esteemed contemporary
..The Herald" the pensal OF PROFESSOR
Dvicbt's able article published in IHE TEIE-
r.vr on January 30, in which the proper iunc-
zion of the writ of prohibition such as treat
Rritain has asked the Supreme Court to direct
,cainst the District Court of Alaska, is fully
and with great perspicuity described. Inc
Ueraldv will perceive from the Professor :
statement of the law that the writ Is not prop
erly 10 be employed as contryance Tor taking
an apOeal from a lower court upon the merits
Of : controversy. 1t is weapon for use only
when the lower court has done or is doing q
thing that is out Of It's province. The question
70 be determined upon the application Tor a
writ i, not whether the lower court erred III
the Judgment ii rendered, but whether it is the
CONT wherein the issues involved should prop
erIy be tried.
# the Alaska court was by its character
fitted to try the issue raised by the Saywalds
seizure. it canno; be enjOncd by u wit oi
plOhibiton whether its action was taken on
GOOD law or bad The legal quality and e'iecs
Of its decision may be aSccrtdlncd by appeal
but it cannot come up on an application to pro-
bibjt the court from doing what by It's conSu-
tuition it was eminently fitted to DO. 1he dis
tinc,ion here made between the Alaska court
authority TO Try the libel against the Sayward
and the prOpiiety of the Judgment rendered
seems to us entirely plain. 1t Is not matter
of account where the seizure was made
whether one mile from land or hundred as
70 the courts jurisdiction over the case Let
us Suppose for instance, that the Rush had
captued the Sayward, not in the Bchnng sea
but in the Indian Ocean. Before the Say"ard
is condemned she must be tried. and 50 she Is
brought t. a District Court OF the United states
and delivered 10 a United states Marshal. y
United States DiStrict-Attoney undertakes her
prosecution, and proceeds against her IN red
era court That court, then, il Professor
Dwight knows the law, cannot be intcrtercd
with by a writ of prohibition on any other
ground than that it is not empowered by the
law creating it to pass upon the legality OF the
seizure And when its Judgment has been rem
dared writ of prohibition cannot be used to
hiring that Judgment before a higher court for
examination.
This. oi course, is consideration of Great
Britain's proceeding from the point Of view
of It's merits in law. Other, and in our judg-
mcnt much gravcr questions must receive the
Inc (Oiirt dtt'UIOU anu tl'I 'il'
Can the controversy Of a foreign lugant IN
orr court. whose cause has been taken up by
his own Government, pressed against ourS and
now undcrgocs diplomatic considerations he
employed by his Government in an effort TO
array our judiciary against our ExecuuNc =
Can foreign nation appeal from the President
and Congress to the supreme Court? Is the
Supreme Court entitled TO place limits upon
our National dominion even if, in - jGdS-
mont. our will as asserted to foreigners by the
President is in contravcntion Of International
law? In determining the rights OF private
liticant> under cur claims OF dominion, is il not
bound bv that view Of them which the political
departments OF the Government may take? ?
! And. ust as it is improper for the Executive
20 take up the consideration of a claim which
is lcforc the courts for ADJUDICATION, except in
response 10 the demands Of foreign Govern
mrnt (Which. Of course. cannot be forced 10
await the processes of our cOnrts. if il chooses
not to) is il not improper for the judiciary 70
take MP such a claim while 1t is IN process OF
settlement through diplomatic negotiations?