The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-04-15
UNITED STATES SUPREME COURT.

The FIOrtdn Gases TO Be Reviewed Under
the Old Practice, Notwithstanding tho Re.
peal.
Ex parte, Wm IT. McCarde, Appellant-Apped
from the Circuit Court the District OF Mississippi
The facts In this cause familiar to the public. n
will be seen from the opinion OF the court following
that 1t is held that the court has jurisdiction OF this
class Of cases Independent OF the act Of 1857, re-
Gently repealed but that the writ OF habeas corpus
must be aided by the writ OF certiorari II suoh
cause is to be brought up without the Jurisdiction
conferred by that statute.
Mr. Chief Justice Chase delivered the opinion Of tho
court:-This cause Is now before motion to dis
miss the appeal from the Circuit Court from the dis
trct OF Mississippi. On November IL, 1861 writ Of
habeas corpus was issued from that court upon the
petition Of McCarde, directed to Alvin c. Gillem and
E. o. 9. Ord, requiring them to produce the body Of
the petitioner together with the cause Of his imp
sonment, and to abide the order Of the court In
respect to the legality OF such Imprisonment. At the
time Of issuing the order E. o. c. Ord was Brevet
Major General commanding the Fourth Military
District and Alvin g. Gillem Brevet Major Gen.
eral commanding the sub<ilstrict Of Mississippi,
under the Reconstruction acts OF Congress. In
obedience to the writ Major General Gillem, on the
2lst Of November made return Of the cause OF i'm
prisonment from which it appeared that McCardle
had been arrested and held in custody for trial
by a military commission, under the alleged
authority OF the Reconstruction acts, for charges,
first, Of disturbance Of the public peace; second Of
melting Instruction disorder and violence; third,
Of libel, and four tn, Of impeding reconstruction.
On making this return Major General Gllem surren.
dered McCarde to the court, and he ordered in
to custody OF the Marshal. Subsequently on the
25th OF November, 1857, the Circuit Court adudged
that the petitioner be remanded to the custody O1
Major General EILEEN, Irom when Judgment tne pets
toner prayed an appeal to tins court, which
was allowed and bond for costs given accord.
ing to the order OF this court. On the 25th
Of November, motion OF the petitioner,
he was admitted to bail on his own recOgnizance,
with sufficient suretes, in the sum OF one thousand
dollars conditioned for his appearance to abide By
and perform the final judgment OF this court. The
legal consequence Of this admission to bail was the
discharge OF the prisoner both from the custody Of the
Marshal and OF Major General Gillem with contnu.
ing liability, however under the recognizance, to be
returned first to the civil court and then to military
custody, in case Of aflrmance by this court Of the
Judgment OF the Circuit Court The motion to dis
miss the appeal has been thoroughly argued, and We
are now to dispose OF 1t. The ground assigned for
the motion L. want Of jurisdiction, in this court Of
appeals from the judgments Of inferior courts in
sound or otherwise depends upon the act Of 1857.
Prior to the passage Of that act this court exercised
by habeas corpus In the case OF Buford g Cranch,
449, 453; also pdTte Dugan 2. Wall 134) this
court by habeas corpus aided by writ OF certiorari
reviewed and reversed the Judgment Of the Circuit
Court OF the District Of Columbia. In that case
prisoner brought before that court by the writ had
corpus issued out Of this BY the writ of haboas
corpus also aided by cerorar this court in the case
Of BalIman and Swartwou Cranch, 75l again revised
a commitment Of the Circuit Court OF the district,
The prisoners had been committed on charge o.
petition this court issued the two wrts and the pris
having been produced II was ordered that thoy
should be use On the ground that sne COM
law. But though the exercise Of appellate jursdic.
ton over the judgments Of inferior tribunals was
act Of 1867, 1t was attended with some Inconvenience
and embarrassment 1t was necessary to use the wrts
and there regulated and established practice
for the guidance Of parties invoking the Jurisdiction.
died In small class Of cases arising from commits
ments for acts done or omitted under alleged
authorized direct appeal from any Judgment upon
district Court to the Circuit Court Of the prcpes
district, and from the Judgment Of the Circuit Court
e Wh Sr pea a was
to the act Of 1851, and the first question to
consider upon the construction Of this act is whether
this right Of appeal extends to all classes Of habea1
corpus only TO particular class. 1t was insisted
on argument that appeals to this court given 81
the act only from the judgments Of the Circuit Court
rendered upon appeals to that court from decisions
OF single Judge or OF district court. The words
any judge justice or court inferior to the Circuit
Court an appeal may be taken 10 the Circuit Court
OF the United states for the district In which sad
cause ID heard and from the Judgment OF said Cir.
cult Court to the Supreme Court Of the United States"
These words, considered without reference to the
the construction put upon them at the barr but hst
construction hardly be reconced with the otheR
provisions OF the act. The first section gives to the
several courts Of the United states and the several
justices and judges Of such courts within the
already conferred by law power to grant writs Of
habeas corpus In all cases where any person may Do
restrained OF liberty In violation Of the constitution
legislation Is OF the most comprehensive character,
1t brings within the habeas corpus Jurisdiction q
every court and OF every Judge every possible case
OF prvation OF liberty contrary TO the national con-
stitution, treaties laws IL Is impossible to widen
this jurisdiction, and 1t Is to this jurisdiction that the
system Of appeals Is applied. From decisions Of Q
Judge or OF district court appeal lies to the Circuit
Court and from the Judgment Of the circuit court to
this court. But each circuit court well each dis
rict court and each judge may exercise the original
Jurisdiction, and no satisfactory reason was assigned
Tor giving appeals TO this court from the udgmenta
OF the Circuit Court rendered on appeal, and noe
giving like appeals from the Judgments OF crcuis
courts rendered Ia the exercise OF original urisdic-
ton. II any class Of cases TO be excluded FROM
the right OF appeal the exclusion would naturally
apply TO cases brought into the Circuit Court by APP
peal rather than to cases originating there. In the
former description OF cases the petitioner for the
~ appes 70 t would b ne t tSs
latter, upon the hypothesis OF no appeal, the peu-
TONER could have none. These considerations seem
to require the construction that the right or appeal
attaches equally to all judgments. OF the Circuie
Court unless there be something In the clause den
ing the appellate Jurisdiction which demands the
restricted Interpretation. The words OF that clause
may admit either but the spirit and purpose OF the
tain no doubt, therefore that an appeal lies to this
from the judgment OF the Circuit Court In the
case before us. Another objection to the juris-
dicti0n OF this court on appeal was drawn
from the clause Of the first section which declares
that the jurisdiction defined by II Is in addition TO
the authority already conferred by law" This objec.
ton seems TO be an objection to the Jurisdiction OF
the Circuit Court the cause rather than to the
jurisdiction OF this court on appeal, and the later
jursdction as has just been shown, is coextensive
with the former. Every question OF substance
which the Circuit Court could decide upon the re.
turn OF the habeas corpus, including the question OF
Its own jurisdiction, may be revised here on appear
from its final Judgment But an inquiry on TINS mo.
ton into the Jurisdiction OF the Circuit Court would
be premature IL would extend to the merits OF the
cause in that court while the question before US on
this motion to dismiss must be necessarily limited 10
our Jurisdiction on appeal. The same observations
apply to the argument Of counsel tnat the acts or
McCardle constituted military onence Tor which he
might be tried, under the Reconstruction acts by
military commission. This argument intended TO
convince that the Circuit Court had no jursdc-