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And what sufficient reasons can England show? How can any conscientious mind acquainted with all the facts be persuaded that Canada should be made the scape-goat for the faults of the Empire? We are entreated to yield for the sake of peace. The peace policy, excellent though it be, must have its limits; it must not be allowed to become a policy of weakness. For then the peace which is bought at so high a price is not a benefit, but a calamity. We would say to the defenders of the Treaty on the other side of the Atlantic: In 1783, by the Treaty of Recognition of the United States, you abandoned the State of Illinois, and other vast and valuable territories, which had been ceded to Great Britain by France in 1763, as part of La Nouvelle France or Canada.* In 1818 you gratuitously ceded the Fisheries on the unsettled shores of Newfoundland and Labrador, and abandoned your right to a Boundary Line to the Mississippi. In 1842 you gave up the territory of Maine, in spite of the fact, since demonstrated by the clearest evidence, that the American Government well knew they had not the shadow of a right to it. In 1846, by the Oregon Treaty, you abandoned the Columbia river and the Oregon territory.

To-day you surrender the Island of San Juan, the Fisheries, and the Navigation of our Rivers and Canals. And all that for the sake of peace. But do you not see that such a policy will eventually lead you to the total sacrifice of all the British Possessions in America, piece by piece, or at least that you will have so diminished and crippled their natural resources as to force them to break the Colonial tie and throw themselves into the arms of the fortunate Republic. These fears, be it observed, are not vain and chimerical; they are unfortunately too well founded, and the fact that the Treaty is viewed with favour by certain Canadian newspapers well known for their American proclivities, shows that such is its anticipated result.

But is it true that the concessions, which Canada is called upon to make, are necessary for the preservation of the friendly relations between the two great sister powers? Proof of the contrary is to be found in the Treaty itself. If peace or war depends on the surrender of our Fisheries and our Canals, whence comes it

* Even the Quebec Act, 1774, 14 Geo. 3, c. 83, sect. 1, of Consoli. dated Statutes of Canada, declares that at that time the Province of Quebec extended to the Province of Pennsylvania and the Ohio and the Missisippi Rivers.

that the Parliament of Canada (which can constitutionally exercise no control over the foreign policy of the British Crown) is invested with the decisive vote? It would then be in the Colony's power to drag the Mother Country into a conflict with the United States the very thing to be avoided! And the United States consent to submit to such a contingency! The supposition is, therefore, not only unfounded but utterly absurd and ridiculous. No it was not in the Americo-Canadians controversies that the seeds of serious dissensions lay concealed, but in England's unjus tifiable delay to settle the Alabama claims. If the British Government instead of standing on its honour and dignity and resorting for aid to every species of subterfuge, had from the first or at any time afterwards even during the deliberations of the Commissioners, frankly admitted that Great Britain was in the wrong and offered to make fair compensation for the depredations of the cruisers, the United States would certainly have consented to give us a trade equivalent for our Canals and Fisheries.

What is, finally, the reason why Canadian interests have been sacrificed by the Treaty? The leading journal of the United Kingdom has had the courage to publish it in the following guarded but significant words: "Little ingenuity" says the London Times of the 9th June, "would be required to represent this" (the surrender of the Fisheries) "as a sacrifice of small communities to the convenience of powerful States. There was most certainly no intention on the part of the Commissioners of this Country to make any portion of our Empire a scape-goat for peace of the whole. But it was never disguised that something the Maritime Provinces hitherto have possessed had been bartered away by the Treaty."

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Yet this paper boasts that the Treaty of Washington will be ratified by the Parliament of Canada !!

Montreal, 12th July, 1871.

D. GIROUARD.

WRIT OF PROHIBITION.

A government which has made much advancement in civil jurisprudence, has observed the importance of having a variety of courts, and those of different grades. A portion of those controversies which arise among people, are of such character, that a court presided over by a person of limited legal knowledge, is ample to administer justice and law between the parties. They involve matters of inconsiderable importance in value, and are governed by rules of law plain and well understood. And the convenience of having the trial of them brought to the immediate neighbourhood of the parties, overbalances the evils which result from occasional mistakes of such unlettered and unlearned courts. Some controversies, however, involve matters of greater pecuniary importance, or raise questions of law upon which there is room for doubt, and which demand the consideration of minds learned in legal science, and accustomed to discriminating thought.

Intelligent legislation, therefore, divides judicial powers, giving to courts of inferior grades such judicial authority as is consonant with the capacity of the persons presiding in them, and withholding from them all those matters which demand greater ability; and creating, for the determination of important and difficult questions, courts representing a higher degree of talent and learning. It may well be expected that inferior courts will be as liable to be mistaken as to the extent of their jurisdiction as in other matters; and that higher courts will be better judges of not only their own powers but also of the judicial powers of inferior courts. It is therefore important that courts of higher grades should possess a supervisory power over courts of an inferior grade, and that they should possess the power to control and stop them when they are about to exceed the proper and legal limits of their authority. At common law higher courts were invested with this authority over inferior courts; and the process by which they prevented an inferior court from proceed, ing further in a matter not within its jurisdiction was denomi nated a writ of prohibition.

The remedy by this writ is not now as often resorted to as formerly, but still exists, although a distinguished attorney not

long since, while arguing a cause in the Court of Appeals in the State of New York, denominated it an obsolete remedy. Modern treatises and works on practice say little, if anything, upon this branch of the law, and very few cases of prohibition find their way into our reports. If, therefore, we desire to learn much of this remedy, we are under the necessity of going to the earlier reports and treatises, which, unfortunately, are fast disap. pearing from our libraries.

We do not profess to be proficient in this branch of the law; and write upon it, more with the view of calling the attention of the Bar to it, than of throwing light upon it. For, while we are not under the necessity of resorting to this remedy so often as to many others, it is yet many times a very valuable and effective remedy, and is one we cannot afford to consign to oblivion. It seeks to prevent instead of repairing injuries. It does not under. take to undo what is done, but to stop the doing of that which ought not to be done. It reaches cases and parties, which can be reached in no other way, and by no other process. In its character it is similar to the remedy by injunction. And yet it is applicable to a different class of cases and issues to parties to whom a writ of injunction will not lie.

While constitutional or legislative provisions in the States and Canada recognize the existence of this remedy, these provisions do not undertake to provide when the remedy is proper, nor to direct the mode of practice, but leave it as it existed at common law. As a sample of the legislation on this subject, we will here give the law of Lower Canada, which is as extensive and comprehensive as the constitutional and statute law of many or all of the States.

"Writs of prohibition are addressed to Courts of inferior jurisdiction, whenever they exceed their jurisdiction. They are applied for, obtained, and executed in the same manner as writs of mandamus, and with the same formalities."-Code of Civil Procedure, Art. 1031, Sec. 4.

The thirteenth section of the Judicial Act of the United States provides that: "The Supreme Court shall also have appellate jurisdiction from the Circuit Courts, and Courts of the several States, in cases hereinafter provided for; and shall have power to issue writs of prohibition to the District Courts, when proceeding as Courts of Admiralty and maritime jurisdiction, and writs of mandamus in cases warranted by the principles and usages of

VOL. I.

AA

No. 3.

law, to any Courts appointed or persons holding office under authority of the United States."

Without, therefore, a knowledge of what the common law was upon this subject, we can have but a very limited understanding of the remedy by prohibition, as it exists in the States, and in Canada.

A prohibition has been defined a "Writ issuing properly only out of the Court of King's Bench, being the King's prerogative writ; directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof upon a suggestion, that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court."

It was denominated one of the King's prerogative writs, because it was deemed the right or privilege of the Sovereign to take supervision of, and to control his substitutes, and to compel them to do right, and to administer justice according to law. It therefore, formerly issued out of the Court of King's Bench only; as in that Court, the King was understood to preside in person, and aided in the administration of justice. And according to the theory of the common law, the King is the fountain of justice, and when the laws do not afford a remedy, and enable the indivi. dual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the Sovereign may be brought in aid of the ordinary judicial powers of the Court. It had its origin in the will of the King, and not from legislative enactment. It was not a remedy provided by law, but was unknown to the law, and was given and granted by the Sovereign, because in theory, he was the fountain of justice, and might and should provide the means, by which the subject could obtain his right. But by long continued use, this remedy has outgrown its sovereign independent character, and is now regulated by law.

At first, as has been said, the writ issued out of the Court of King's Bench only; but afterwards the power to issue the writ to inferior courts was extended to the Court of Chancery, the Exchequer Court, and even the Court of Common Pleas. In the States, the power to issue the writ is generally given to certain specified courts, either by their constitutions, or by legislative enactments. In the absence of such provisions, it is apprehended that no court could issue this writ, unless it possessed the general superintending power of the Court of King's Bench, or the

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