The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-02-08
UNITED STATES SUPREME COURT.

Argument ON the Motion to Dismiss the Me-
Ardle Case for Wnnt Of Jurisdiction.
WASHINGTON, Feb. 7, 1863
The argument in the McArde case came up to-day in
the Supreme Court, the notion being to dismiss the
appeal for want Of jurisdiction.
Judge Sharkey of Mississippi said the statute of Feb
ruary s, 1857 remedial one and should therefore
receive liberal construction, and that the clause which
gave appeal from the District Court to the Circuit
Court and from the Circuit Court to the Supreme Court
Of the United States, did not intend con6ne the
appeal to the Supreme Court to cases which merely
commenced in the District Court give tho appeal
TO which commenced originally in the District
Circuit Court. There for Congress TO
make the distinction between the two cases. The
ception in the casef the statute Of 1867 to persons
charged with military offences did not apply to the case
for no military offence was charged against the party
military offence, like every other offence was some
thing to be asserted by law 1t matter OF no con-
sequence in this argument whether Mississippi was
State not Even assuming It 10 be mere territory
II still under the constitution. ana the people in
habng It were entitled to its protection TO its fullest
extent.
Senator Trumbu of Illinois, supported the motion to
dismiss the appeal. The appellate jurisdiction Of the
court conferred by the constitution which declared
that the Supreme Court shall have appellate jurisdiction
both as To law and to fact with such exceptions and
under such regulations the Congress shall make The
cases of Wscort Bauchy Of parte Kearny 10 Cur
tbs 2l2l OF Barry MERCER ne Curtis, 32SA and Of
Metzger nc Curtis, 34S gave construction to that clause
DoyOnQ controversy
the Supreme Court only entertain appellate jursdc
ton in pursuance Of act Of Congress giving IT. and
at the time these decisions were made no statute existed
giving jurisdiction in ike the under consider
alton He argued that authority issue wrs OF habeas
corpus conferred the United States and the
justices and judges thereof by the fourteenth section of
the Judiciary act Of 1885, but that under that appeal
or writ OF error was allowed from the Circuit Court to
the supreme Court habeas corpus case and
nearly eighty years after the government was founded
no such thing as an appeal or writ OF error IN any case
like this was known TO determine whether an appeal
In in n 6rsf IN Aafop ina
whether the proceeding was under the act Of 1889
under the act Of 1867 II under the former then he
had authority to Issue wrs Of habeas corpus relieve
from Imprisonment under or by color OF the authority
Of The United ,tates lex parte Dorr Howard, 104)
McArde was held as his petition showed, under color
Of tho authority OF United States and hence
clearly within the OF 1889, and from the de-
csion Of the Circuit Court under that appeal lay
As 10 the act OF 1867 II passed to confer additional
jurisdiction and to relieve persons deprived OF their
liberty under State authority; but as McArdle
not held II had application TO his
case II expressly excluded from It's provisions per-
sons In military custody charged with any military OF.
fence and McArdie was in such custody under such
charge his case did not como within the act allowing
appeal At proper tme should this case ever come
hearing its merits he should undertake TO show
that the for the efficient government OF the
rebel States is constitutional But for the purposes OF
this motion II was mmaterial whether II
constitutional The guilt or innocence OF McArdle or
whether he was rightly wrongly charged. not
jurisdiction 10 ascertain the factsthe thing which
Congress had not authorized ii TO do. This did
only afford relief in the particular where the law
gave 1t jurisdiction, and then only to the ex
tent Of relieving the parties Immediately before It. He
contended tina; even this arising under the
act Of February 1867, st this appeal would lay
for The reason that did get into the Circuit Court
by appeal. whereas II was only that into
the Circuit Court by appeal which could be appealed to
the Supreme Court Mr.. rrumbnll said, in the course
OF his argument that the proper time should tins
case ever come up for final hearing he should under
take TO show that this act constitutional binding on
all departments OF the government that there has been
In imam rotoA hv
for the overthrow OF the Union and the constitution
that Congress has express authority from the
overthrow Of the enemies of the constitution and
the Union and 10 employ such armies for that purpose
Till In its own good time shall think proper to call them
back which will not be iii the Union shall DO restored
In all it, integrity and established upon foundations
strong that all the hosts Of treason cannot prevail
against IL that TO determine wher thai period shall
have arrived Is political question belonging to Congress
alone TO decide and when decided its decision is bind
ing on all the departments OF the government. But
without stopping the present occasion TO inquire
whether this law Is constitutional or unconstitutional il
of for bis TO nsT ns
at the time under military control; that General Ord
was as appears by the record, in command Of
and that McArdle arrested by him charged
with being disturber Of the public peace
and with MEETING insurrectiou, disorder and Violence
which was clearly military offence, and II so. this
court has no jurisdiction OF the case, because gets It's
ursae'oa y At ALL BY appeals under the act Of Feb
ruary 1867 and that act expressly excerpts from its
operation persons in the custody OF the military autho
rity charged with military offence. This court be
remarked did not sit here TO correct the wrongs OF the
country. thousands OF persons might DO unjnstly
deprived Of their liberties lives under unjust or
invalid laws In all portions of the country, and this
court could afford no relief, except in the particular
cases were the law gives Jurisdiction, and there only
to the extent OF relieving the parties shielded by It,
The court reserved its decision.
The following cases disposed Off
no. 39-shearns, claimant appellant. United States.
Case argued
NO. 20s-Siver, administrator and plaintiff in error
VS. Laid Ell al. Argued
NO. 209-Marshal ct al, administrator and plaintiff In
error, vs. Knott Case argued.
No. 2l0-Marsha OF AL, administrator and plaintiff IN
error, vs. Laid. Case argued.
No. l41-white, plaintiff in error, va. Cannon Case
argued
The Court adjourned until Monday