The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-10-26


is hereby repealed.
These words are not of doubtful Interpretation.
They repeal only so much OF the act OF 1867 as
authorizes appeals or the exercise OF appellate
jurisdiction by this court They affect only appeals
and appellate jurisdiction authorized by that act
They do not purport to touch the appellate
jurisdiction conferred by the constitution by ex-
ceptng from II any cases not excepted by the OF
1884, Tney reach no act except the act OF 1867. IL
has been suggested however that the act of 1885, so
far as II provided for the issuing OF wrts OF habeas
Of 1877 SaVe already that ere
repeating words In that act. II 1t repealed the
act Of 1889 1t did by implication, and any implica
ton which would give TO 1t this effect upon the act
OF 1859 would give 1t the same effect upon the acts
OF 1888 and 1872 II one was repealed all were
pealed. Repeats by implication are not favored.
They are seldom admitted except on the ground OF
repugnancy, and never, we think, when the former
act can stand together with the new act. No doubt
the exercise OF appellate jurisdiction under the act
OF 1885, was less convenient than under the act OF
1867. But the provision OF new and more
convenient mode OF its exercise IKE! does not
effect was intended Is indicated BY the fact
the authority conferred by the new act Is expressly
declared to be 'in addition" to the authority con-
terred by the former acts. Addition is not substu.
ton. The appeal given by this act OF 1861 extended
indeed, the cases within the former acts, and the
the Jurisdiction by habeas corpus that 1t seemed "a
was observed in the McArdie case, impossible to
widen IT, But this effect does not take from the act
It's character OF an additional grant OF Jursaicon
and operate repeal OF jurisdiction here
tolore allowed. One conclusion is that none OF the
appellate jurisdiction by means OF the writ OF habeas
corpus, were repealed by the act OF that year and
that the repealing section OF the act OF 1865 IL Inn
tied I'm terms and must be limited In effect to the
appellate jurisdiction authorized by the act OF 1867
We couu come to no other conclusion
without holding that the whole appellate
jurisdiction or this court In cases OF habeas corpus
conferred by the constitution recognized by law and
exercised from the foundation OF the government
heretofore has been taken away without the express.
sion OF such intent and by mere Implication through
the operation OF the acts OF 1867 and 1868 The sg
geston at the bar that the provision of the act
OF 1889 relating TO the jurisdiction OF this court by
habeas corpus repealed by the effect OF the act OF
1867 revised by the repeal OF the repeating act
has not escaped our consideration. We are nclined
to think that such would be the effect OF the
act OF 1861 but having come 10 the conclusion that
the act OF 1850 was not repealed by the act OF 1857 1t
is not necessary To express opinion on that point
The argument having been confined by direction OF
the Court 10 the question OF jurIsdictlon this opinion
Is limited to that question. The jurisdiction OF the
court TO issue the writ prayed for Is affirmed
Associate Justice Swayne was understood TO re-
mark that he had been requested say for Associate