The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-10-29

III,
benefits and seriously hinder the establishment
| of that uniformity in decisions upon questions of
! personal rights which can only be attained
through appellate jurisdiction exercised upon de-
cisions of courts OF original jurisdiction. In the
particular class OF cases Of which that before the
| court Is an example, where the custody to which
the prisoner is remanded is that OF come author1-
| ty other than that Of the remanding court it is
evident that the imprisoned citizen, however un-
| lawful his imprisonment may be In fact, Is
| wholly without remedy unless 1t be found in the
| appellate Jurisdiction OF this court.
These considerations forbid any constructions
| giving to doubtful words the effect OF withhold
| ing or abridging this Jurisdiction. They would
strongly persuade against the denial OF the tur1s-
diction even were the reasons for Offering 1t less
We are obliged to hold, therefore, that In all
| cases where Circuit Court OF the United States
has in the exercise OF its original jurisdiction,
caused prisoner TO be brougnt oeiore II, am anu
has after Inquiring into the cause OF detention,
remanded him to the custody from which ne was
taken this court in the exercise OF Its appellate
| Jurisdiction may, by the writ OF hd6edS corpus,
aided by the writ OF ce7ttoror1, revise tne aeos
ion Of the Circuit Court, and 1t be found unWar-
ranted by law relieve the prisoner nom the un-
lawful restraint to which he has been remanded.
THE ACT OF 1858.
This. conclusion brings US to the inquiry wheth-
er the second section OF the act Of March 81, 1883,
takes away or affects the appellate jurisdiction OF
this court under the Constitution and the acts OF
| Congress prior to 1867.
We have already expressed in the McCardle
case an opinion that it does. But the point was
not carefully considered, and we have re-examin-
ed it. Il WALL 5l5.)
The circumstances under which the act Of 1868
was passed were peculiar.
THE N'CARDLE CASE
| On the 5th OF February, 1867, Congress passed
an act;,to which reference has already been made,
| extending the original jurisdiction by hd6eds
corpus OF the district and circuit courts, ana OF
the several judges OF these courts, to all cases OF
restraint Of liberty In violation OF the Consttu-
ton, treaties or laws OF the United states. IH1s
act authorized appeals to this court from judg-
ments Of the Circuit Court but did not repeal 9ny
| previous act comforting Jurisdiction by haoeds
| corpus, unless by Implication. Under this act
one McCardle 2llegng unlawful r. restraint n o., Sy
Southern District of Mississippi for the writ OF
hdbeds corpus. The writ was Issued anu re-
| turn was made. And, upon hearing, the court
decided that the restraint was lawful, and re-
manded him to custody. NcCardle prayed an
appeal, under the act, to this court, which was
| allowed and perfected. motion 10 dismiss the
| appeal was made here and denied. The case was
| ing been concluded, on the 9th OF March, 1869,
| was taken under advsenlent by the court. Wnne
| the cause was thus held and before the court had
time to consider the decision proper 10 De maae'
the repeating act under consideration was intro,
| duced into Congress. The act was carried
| through both Houses, sent to the President re-
turned with his objections, repassed by the con-
! law on the 27th Of March, within eighteen days
| after the conclusion OF the argument.
The eect OF the act was TO oust the conrt OF lts
jurisdiction OF the particular case then before II
| on appeal and 1t is not to be doubted that such
was the eject intended. Nor will 1t be questioned
| that legislation OF this character Is unusual and
hardly TO be justified, except upon some fmperious
| public eXigency.
cretion OF Congress to determine whether such an
exigency existed; but 1t is not to be presumed that
| an act passed under such circumstances was IN
tended to have any further effect than that plainly
| apparent from Its terms.
Il IA oute clear that the words OF the act reach
not only all appeals pending, but oil future ap-
peals to this court under the act OF 1857 but they
appear to be limited to appeals taken under that
The words of the repeating section are, 'That
so much Of the act approved February 8, 1867, as
| authorizes an appeal from the Judgment OF tne
| Circuit Court to the Supreme Court OF the United
States or the exercise OF any such jurisdiction by
said Supreme Court on appeals which have been
| or may be hereafter taken, be, ana the same Is
| hereby, repealed"
These words are not OF doubtful Interpretation.
They repeal only go much OF the act Of 1857 as au-
thortzed appeals or the exercise Of appel late tu-
| risdction by this court. They anected only ap-
peals and appellate Jurisdiction authorized by
that act. They do not purport TO touch the ap-
late Jurisdiction conferred by tAe constitution py
| excepting from 1t any cases not excepted by the
act OF 1889. They reach no act except the act OF
| 1857.
II has been suggested, however, the act Of 1889,
so far as IL provided for the Issuing OF Wits OF
habedS corpus by this court was already repealed
| by the act OF 1857. We have already observed
that there are no repeating words In that act. II
It repealed the act OF 1850, 1t did 80 by implica-
tion; and any implication which would give 20 u
this effect upon the act Of 1889, would give It the
same erect upon the acts OF 1888 and 1872 ii one
was repealed all were repealed.
| Repeals by implication are not favored Tney
are seldom admitted except on the ground OF re-
pugnancy; 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 1859 was less convenient than under tne
act of 1857; but the provision Of new ana more
sariy take away the old; and that this effect was
not Intended s indicated by the fact that the au-
| thority conferred by the new act is expressly
declared to be 'n addition" TO the authority con-
| ferred by the former acts. Addition is not sub.
| stitution.
The appeal given by this act Of 1867, extended,
indeed, the cases within the former acts; and the
act, by Its grant OF additional authority so en-
larged the Jurisdiction by haoeaS corpus that II
| seemed, as was observed In the AcCardle case,
"impossible to widen It," But this effect does
not take from the act Its character Of an addition
al grant Of Jurisdiction, and make 1t operate as
repeal OF Jurisdiction heretofore allowed.
CONCLUSION.
| Our conclusion is that none OF the acts prior
to 1857, authorizing this court to exercise appel
late Jurisdiction by means OF the writ OF hdoeds
corpus were repealed by the act OF tnat year ana
that the repeating section OF the act OF 1sos Is Is
limited in terms, and must be limited In enecs 10
the appellate Jurisdiction authorized by tne act
| OF 1857. .-,.
holding that the whole appellate jurisdiction OF
this court In cases OF hdbedS corpus, conferred
by the Constitution, recognized by law, and exer-
| cised from the foundation Of the Government
hitherto, has been taken away, without the
expression Of such intent, and by mere lmpli-
cation through the operation OF the acts OF 1857
and 1868. ,
ion OF the act OF 1885, relating to the Jurisdiction
OF the court by hd0enS corpus, Ii repealed Dy tne
effect Of the act Of 1867 was revised by the repesi
OF the repeating act has not escaped our consldera
tIon. We are inclined to think that such would
be the effect OF 1868; but having come to the con-
clusion that the act OF 1859 was not repealed by
the act OF 1857 1t is not necessary to express an
opinion on that point.
The argument having been confined, by dlrec-
tion OF the court to the question OF jurisdictlon
this opinion is limited to that question. Tne lurlS-
diction Of the court to issue the VIII prayed lor ~
affirmed.
JUSTICE MILLER DISSENTS
Associate Justice Swayne was understood TO
remark that lie had been requested to say Tor As
sociate Justice Miller, who was absent, that the
latter dssented from the opinion.