Statement of the Case.

discharged, and order to that effect upon stipulation filed and approved, as follows:

"Whereas a libel of information was filed in the within cause on the 13th day of September, 1887, in the above court, by the honorable M. Ball, U. S. district attorney for the District of Alaska, against the schooner W. P. Sayward, her tackle, apparel, furniture and cargo, for the reasons and causes in said libel mentioned and set forth; and whereas a decree of forfeiture was on the 19th day of September, 1887, rendered against the said vessel, her tackle, apparel, furniture, and cargo, and against Thomas Henry Cooper, of San Francisco, intervening as the sole and only claimant to said vessel, tackle, apparel, furniture and cargo; and whereas the said vessel, tackle, apparel, furniture and cargo, are now in the custody of the U. S. marshal for the said District of Alaska under process issued from this court, and in pursuance of the prayer of the said libel; and whereas the value of the said vessel, her tackle, apparel, furniture and cargo, has been appraised at $7289.50, as appears by the report of the appraisers duly appointed and sworn by this court, and on file herein; and whereas the said Cooper, claimant as aforesaid, is desirous of, and purposes, appealing from the said decree of this honorable court:

"Now, therefore, we the undersigned, the stipulators, submitting ourselves to the jurisdiction of this court, do acknowledge ourselves to be bound unto the United States of America, the said claimant, Thomas Henry Cooper, as principal, and Bailey Gatzert and Jacob Furth as sureties, jointly and severally, in the sum of $7289.50, lawful money of the United States, hereby consenting and agreeing that a summary decree may be rendered against us, and each of us, for the above appraised value, with interest thereon from this date, and that execution may thereon issue against our goods, chattels and lands for the payment thereof or any part thereof which shall be ordered or decreed: Upon condition, nevertheless, that if the undersigned stipulators shall prosecute their said appeal without unnecessary delay, and abide by any final decree that may be rendered by the Supreme Court of the United States

Statement of the Case.

of America, to which this cause may be appealed, and in the event of the said decree of this honorable court being affirmed by such court of appellate jurisdiction, then if said stipulators pay the amount named in this stipulation into this court this stipulation to be void, otherwise to remain in full force and virtue."

Bond for costs on appeal filed and approved, and April 27, 1888, leave granted to file affidavit on appeal, and appeal to the Supreme Court of the United States granted, and affidavit of James Douglas Warren, as agent for the claimant, and petition for appeal filed, and appeal allowed.

July 18, 1888, record amended so as to substitute the name of Cooper as owner for that of Warren.

The return of the District Judge thus concludes:

"Respondent further says that he is in receipt of an uncertified copy of the dismissal of the appeal taken to the Supreme Court from said decree of condemnation.

"Further answering, respondent says that he is advised that in determining his power and duty to enforce said decree as judge of said District Court of the United States, District of Alaska, he is limited to and concluded by an examination of the final record of the admiralty proceeding in which such decree was entered, as set out above in accordance with section 750 of the Revised Statutes of the United States. And he is further advised that this court in considering whether a writ should issue against him to prohibit him from enforcing said decree, is in like manner limited to and concluded by said record as above disclosed. Respondent respectfully submits that upon such record the District Court of the United States, District of Alaska, had full jurisdiction to make and enter the decree, and that it is the duty of this respondent to enforce such decree upon receiving the mandate from the Supreme Court issued in due course upon the dismissal of the appeal. Because of this record respondent is advised that all other facts stated in the petition accompanying the rule to show cause served upon this respondent are irrelevant and incompetent, and need not be answered by him.

"Respondent respectfully submits to the consideration of

Argument for Petitioner.

the court whether upon the foregoing allegations of this return the writ of prohibition should issue against him."

It is contended by the petitioner's counsel that the return is on its face improper and insufficient: First, because the respondent was bound, if he submitted "anything disclosed by the files, journal and minutes of his court for the consideration of this court," to submit everything. Second, because the record returned by respondent, as prepared under section 750, Revised Statutes, is not authenticated "in any manner known to the law and cannot be noticed by the court.” Third, because the respondent had "no right to decide for himself without allowing this court the opportunity to examine the correctness of his decision, as matter of law, that any facts stated in a petition accompanying a rule to show cause, issuing out of this court and served upon said judge, are 'irrelevant and incompetent.' ” Fourth, because the record is on its face incomplete, since it shows a motion in arrest of judgment filed and overruled, and the evidence on file was properly a part of said motion. Fifth, because the record set out in the return "does not show jurisdiction in the District Court to make and enter a decree of forfeiture against the W. P. Sayward, but does show that said court had no jurisdiction to make and enter said decree."

Mr. Joseph H. Choate and Mr. Calderon Carlisle for the petitioner.

The question of this court's jurisdiction to issue the writ in this case is no longer open, as it has been adjudicated at the former hearing. In re Cooper, 138 U. S. 404, 414.

The case as now presented involves, at the outset and as preliminary to the main question, the consideration of two propositions, which may be stated as follows: (1) In determining whether or not the said court had jurisdiction, is this court limited to the examination of any particular portion of the record, or is its examination coextensive with the examination and acts of the condemning court? (2) Does an examination of the entire record and proceedings affirmatively establish the facts set forth in the petition for the writ?

Argument for Petitioner.

I. In determining the question of jurisdiction in the court below, is the examination by this court limited to any particular portion of the proceedings, or is the examination coextensive with the examination and acts of the condemning court? The issuing of writs of prohibition is part of the appellate jurisdiction of this court, and in its exercise, the superior court not only may but must, it is submitted, revise and review the whole proceedings of the inferior court of admiralty. The same matter, showing want of jurisdiction, which may be averred before sentence, as good ground of prohibition, must, if proved in the proceedings of the inferior court furnish good ground for prohibition after sentence. This is well illustrated by comparing the case of The Cassius, 2 Dall. 365, with that of The Exchange, 7 Cranch, 116.

It was urged, at the former argument upon motion for leave to file, that the phrase "the face of the proceedings" meant the libel, or pleadings, at most, and not the entire proceedings, and several early English cases were cited as supporting that view, but it is submitted that they do not, in any sense, so incline. On the contrary, that the court will examine the entire proceedings and pass upon all questions going to the jurisdiction of the court below, upon which that court did or could pass, abundantly appears by a series of decisions, the accuracy of which has never been questioned, and the authority of which is undoubted. Jones v. Owens, 5 Dowl. & L. 669; Marsden v. Wardle, 3 El. & Bl. 695; Thompson v. Ingham, 14 Q. B. 710; King v. Broom, 12 Mod. 134; Elston v. Rose, L. R. 4 Q. B. 5; S. C. sub nom. Elstone v. Rose, 9 B. & S. 509; Hunt v. North Staffordshire Railway, 2 II. & N. 451; Ex parte Heyworth, 14 Q. B. D. 49; Brown v. Cocking, 9 B. & S. 503; Jones v. Currey, 2 Lowndes, Max. & Poll. 474; Joseph v. Henry, 1 Lowndes, Max. & Poll. 388; Mayor of London v. Cox, L. R. 2 H. L. 239.

Upon these authorities, and upon the principles of common sense, it must therefore be admitted that a superior court has the power, right and duty to examine all matters touching the question of jurisdiction which were before the court below, and that it can never be said that in a case where the

Argument for Petitioner.

important question of the jurisdiction of a court is involved a superior court can solemnly adjudicate, from a view of one part of the proceedings, that the court below had or had not jurisdiction, when, by turning a leaf in its record, the contrary would conclusively appear.

II. Upon the face of the proceedings all the facts averred in the petition fully appear. The record nowhere discloses that the Sayward was ever, at any time prior to the seizure, at a closer proximity to any shores of the United States than ten miles; and there is no evidence of the killing of seal by the master or crew of the vessel at any particular place. The positions of the vessel are given in her log, and upon reference to the official map of the Coast and Geodetic Survey, as shown by the certificate of the officer in charge thereof, the nearest of said positions to any land was ten miles, and the pass of the four mountains through which she entered the Behring Sea is twenty-two miles wide between land at its narrowest point.

In this connection the language of this court applicable to fancied evidence becomes appropriate: "The rule in such cases is, that if there be a total defect of evidence to prove the essential fact, and the court find it without proof, the action of the court is void." Lamp Chimney Co. v. Brass & Copper Co., 91 U. S. 656, 659. And, as said in Brown v. Cocking, 9 B. & S. 503, 509, a case of prohibition before referred to, "if it decides without evidence that a case is within its jurisdiction . this court will interfere."

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The petitioner's case is not weakened by the narrower contention as to the face of the proceedings made by the respondent in his return to the rule. That this vessel was a British vessel, appears on the face of the libel wherein she is described as "schooner W. P. Sayward of Victoria, B. C., of 59 and tons burden as per register." That the place of seizure and the place of the offence was on the high seas appears on the face of this so-called final record. The libel alleged that said seizure was made "within the waters of that portion of Behring Sea belonging to the United States," and that the vessel, her captain and crew, were "then and there" found