The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-02-11
The McArdle Case.

The argument on the motion to dismiss the
appeal in the McArdle case was resumed in
the Supreme Court of the United States on
Friday last:
Judge Sharkey-against the motion--con-
tended that the right to the appeal was ex-
pressly conferred by the act Of 1867; that the
act in providing that an appeal should be from
the district to the circuit court, and from the
circuit court to The appeal court, could not be
construed as binding the appeal to the Su-
preme Court to cases which originated in the
district court; that this construction was not
justified by the words used, and had no foun..
dation in reason, as no motive could be assigned
WHY Congress should have intended to grant an
appeal in the one case and deny it in the other.
Besides this, if there were doubt, the statute
being remedial one, intended to protect the
liberty Of tho subject, the rule of construction,
which requires liberal Interpretation, could
be applied; that as to the exceptions relied on
in the latter clause of the statute, which pro-
yides that it's provisions should not apply to
persons confined for military offences, in Gus
tody under the authority Of the United States
first, it was not applicable, because it could
only be applicable to persons in the military
service; second, because the record before the
court shows that no military offence was charg-
ed against McArdle. On this head he MAIN
tanned that the act complained Of as subject to
punishment must have been previously deter
mined by some law to constitute crime or
misdemeanor, and that it was not in the power
Of military commander to determine for him
self what should constitute an offence, and pro-
vide for it's punishment.
In the decision OF this question he expressed
the opinion that it was immaterial whether
Mississippi was to be considered rs State OF
not. Ali that was needed was to inquire
H. ba,. for1 for,n
United States II it did, the constitution e1-
tended over it, and her people were entitled to
the guarantees provided by that instrument.
MIR. Trumbul closed the argument in behalf
Of the motion, maintaining that whether this
court had appellate power in this case depend
ed upon the authority conferred by some
statute; that without such statute the court
was powerlcss he relerroo TO the act oI y. IIo9,
which, he said, conferred power on the Circuit
and District Judges to issue writs Of ha6eas
9dha eeG dGasf GHasnfca5 9th TIE Jl
the United States. Under this act there was
no authority given to the Supreme Court to re-
view their decisions.
The oct of 1867 was only intended to enlarge
this jurisdiction, and to give the writ in cases
where the party was confined under color ol
State authority. He insisted that the appoa
was for the first time allowed by this act to the
Supreme Court, and that tho jurisdiction was
not to be enlarged, except upon strlct con-
struction of the statute, and that by its words
it was confined 10 cases which had originated
in the district court, and had been carried by
appeal to the circuit court.
On the exception in the statute he maintained
that the record showed that the party was
charged with military offence. Whether thif
was rightfully charged or not was not the
question. 1t was sufficient to bring the case
within the exception that he was 30 charged.
The decision of the court on the motion te
dismiss for want Of jurisdiction was reserved
but it is believed will bo announced in two OF
three days.