New-York tribune., 1891-01-29
"
CONSULTATION AND TIE WRIT OF CONsULTA-
uON.

This is (particulaTly in its origin quite an ID
leIesting feature of the law OF prohibition. ltS
original meaning was2a conference between inc
members of the court which issued the VIII ana
the Judges against whom II was issued lhey had'
as il were, a Joint meeting IN which thc "hoIe
matter was gone over in oral discussion In great
cases the Priyy Council attended, archhshops, as
well as bishops and judges, being present Ihls
couree was pursued in a marked way when the
great question whether the Pope could create n
court that could st in England was discussed In
that case the Judges were called into the Court
of Chancery, with the Archbishop OF Canterbury
and with members of the Privy Council gen
eraly to determine whether there should De u
consultation with the Collector. IT. II highly
f. the credit of the Archbishop that he gave the
sound advice to have 10 consultation with That
officer, because, however eminent, he could not In
the absence Of authority from the King hold IA
court in England. He was, Notwithstanding the
bull Of the Pope, but private individual.
An interesting case where "a true consulta-
ton" was held is that of the first instance in which
an action was brought in English court on a
contract made in foreign country. 10 was the
case of bond made at Bordeaux, in FRANCE, for
money advanced 10 the defendant there to pay
soldiers The suit was brought before the Court
of the Lord High Constable" court having
Jurisdiction of contracts and other matters touch
ing deeds of arms and war. A question arose
whether he should be prohibited from dis
posing OF the case. The matter was referred to
the Privy Council, and by them 10 the Justices.
The famous Chef-JustiOe Gascoigne. who arrested
Prince Hail. attended among Others. The Lord
High Constable appeared also and there was a
lively oral discussion The opinion seemed 10 be
that the case could be brought in England in
an ordinary civil court There thus sprang ont of
this discussion the germ Of great legal subject
the topic of Private International Law. Year
Book 49, H. iv, case 10, Mich. Term, a. d. l4l3.i
At the present time there is no such discussion, ny
way of consultations" but if the Judges Of the
prohibiting court, after argument. think II right
10 allow the case TO 90 forward. they issue So
called writ of consultation" to that effect the
expression consultation" having wholly lost its
original meaning.
WRITS OF PROHIBITION AS ADDRESSED TO
COURT OF ADMIRALTY.
The main question to be discussed in this paper
is now reached. 1t is the writ of prohibition ad-
dressed TO a Court of Admiralty. This court IN
England is represented in this country by the
District Court of the United States in the re-
spectve districts into which the country is divided
by ac of Congress. The Constitution Of the United
States provides that the judicial power OF the
United States shall extend TO all cases oil ad-
miralty and maritime jurisdiction congress NAB
vested this jurisdiction in the District Court
In pursuance of the general plan of this paper.
English decisions will mainly be considered
There are, no doubt some cases in which
writ of prohibition will issue 10 an Admralty
Court Though it possesses some of the powers
Of Superior Court in England by statute. it is
still an inferior court. or rather. court Of limited