New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-02-08
THE McARDLE CASE.
ARGUMENT BY JUDGES SHARKEY AND TRUl


BULL, IN THE L. s. SUPREME COURT.
The argument in the McArdle case came up
Yesterday in the Supreme Court the motion being 10 dis
the appeal for want Of Jurisdiction Judge sharky
said that the statute of February D. 1851 was remedial
one should therefore receive liberal constructions
and that the clause which appeal from the District
Court the Circuit Court and from the Circuit Court 70
the Supreme Court Of the United States Old not intend 10
cOnfne the appeal the Supreme Court 10 which
merely commenced IN the District Court but TO give the
appeal TO which commenced originally In the Dis
trct or Circuit Court Congress should not make the dis
tinctOn between the two The exception In the
military oIenses did not apply 10 the case military
oense charged against the party Auxiliary ohense
like every other ofcnse, something 10 be asserted
by law. IL was matter Of no consequence IN this argu
snminS II 10 he mere Te,rit il was sin under the
Constitution. and the people inhabtng u were entitled
10 it's protection It's fullest extent Senator Trumbu
Of Illinois supported the motion TO dismiss the appeal
The appellate Jurisdiction Of the court was conferred by
the Constitution which declares that the Supreme Court
shall have appellate jurisdiction both 20 law and TO
fact with snch exceptions and under such regulations as
the Congress shah make The of Wiscort agt.
Barclay Of pare Kearney Curtis, 2l2 Of Barry agt
Mercer u6 Curtis $751; and OF Meter n6 Curtis s4el
settled beyond controversy that the Supreme Court can
entertain only appellate nG IN es OF
decisions were made, no statute existed GIVING
Grafton. He argued that authority to issue .wrts
Of habeas corpus was confined TO the United e..
the l4h section Of the judiciary Act OF 1859; but that
under that act appeal or writ OF error was allowed
corpus and that for nearly eighty years after the
Government founded such thing as an appeal or
mine whether an appeal lay in this case ii first
necessary determine whether the proceeding was
the former then he cOnteDded that appeal lay Under
il Circuit Courts had authority to issue wrs of habeas
the authority OF the United states lex parte DorT
Howard 1O4 McArde was held as his petition showed,
hence his case was clearly within the Act OF 1889 and
from the decision OF the Circuit Court under that act no
appeal lay AS to the Act Of 1867 1t was passed 70
confer additional jurisdiction, and to relieve persons
deprived of their liberty under state authority but as
Ma r1lo held al ID lis
1t expressly excluded from its provisions persons
and "a McArde was in such custody under such charge
his did not within the act allowing an appeal
on its merts he should undertake show act
for the more efficient government OF the Rebel states IL
constitutional for the purposes Of this motion 1t
imnaterlal whether not constitutional Tie
guilt Of MeArdie whether he was rightly
Court would have take jurisdiction TO ascertain the
factshe very thing which Congress had not authorized
the country and could afford relief in only the particular
cases where the law gave 1t jurisdiction, and then
aeiy before it. He contended that even if this were
case arising under the act Of February 1867 stl this
appeal would not lie for the that IT did not get
INTO the Circuit Court by appeal whereas It was only
could be appealed to the Supreme Court Mr. Trumbuil
sad In the course OF his argument that at the proper
should undertake TO show that this act is constitutional
binding on all departments OF the Government; that
by its enemies for the overthrow Of the Union and the
Constitution that Congress has express authority from
overthrow OF the enemies Of the Constitution and OF
the Union and TO employ such armies for that purpose
until IN It's own good time, 10 shall think proper call
them back which will not be until the Union shall re-
stored in all s integrity and established upon founda
tons strong that all the hosts Of treason cannot pre-
vail against IT, that 20 determine when period shall
have arrived is political question belonging Congress
alone decide, and when decided its decision binding
all the Departments OF the Government But without
stopping consider whether this constltu.
uonal or UNCONSTITUTIONAL IL enough for his present
purpose 10 show that the State OF Mississippi where
McArdle arrested, was at the time military
controE that Gen ORD was appears by the record,
IN command OF the military district ii embracing Msss
sipP and that McArdle arrested by him, charged
with being dsturber OF the public peace and with In
citing instruction. disorder, and violence, which was
clearly military ofense and II this Court has no
jurisdiction OF the because gets its Jurisdiction il
at ALL by appeals under the Act OF February 1867 and
that act expressly excerpts from its operation persons
the custody OF the military authority charged with mill
fary oense This Court he remarked did not sit here 10
correct the wrongs In the country Thousands OF persons
might be unjustly deprived OF their liberties or lives
under unjust and invalid laws in all portions Of the
country and this Court could afford relief except in
the particular where the law given II Jurisdiction
and then only TO the extent Of reheyiug the parties
shielded by II.
The Court reserved its decision.