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

manded him, this court by q writ OF habeas corpus
erroneous or not.n Since this Judgment
was pronounced the Jurisdiction In cases
similar to that now before the court has
not hltnerto been questioned. We have carefully
considered the argument against 1t made In this case
and are satisfied that The doctrine heretofore
maintained Is sound. The great and leading intent
OF the constitution and the law must be Kept con-
santy IN view upon the examination OF every ques-
ton OF construction; that intent in respccs to the
writ OF habeas corpus Is manifest. 1t Is that every
citizen may be projected by judicial action from I'M
lawful imprisonment. To this end, as has been
court OF the United States should have power to
issue the writ. The jurisdiction thus given by law
to the Circuit and District Courts ls original; that
given by the constitution and the law 10 this court
Is Appellate, given N general terms 1t must neces,
sarly extend TO all cases to which the judicial
power Of the United States extends other than those
expressly excepted. AS limited by the act OF 1889,
1t did not extend 90 cases or Imprisonment after con-
vlctlon. under sentence OF competent tribunos nor
to any prisoners In JAIL unless IN custody under or
by color OF the authority Of the United States, or
committed for trial before some court or the United
States or required TO be brought INTO court to tes
thy. But this limitation has been gradually mar
rowed and the benefits OF the writ have been ex-
tendcdfrst, In 1888 e U. S. Statute. o4 to prison.
ers confined under any authority whether State or
national, for any act done or committed ia pursu-
alSce Cf law OF the United States OF any order
process or decree OF any judge or court of the
United States. Then, IN 1872 70 U. $. statute 539)
TO prisoners being subjects or citizens OF foreign
States IN custody under national state authority
for acts done omitted by or under color OF foreign
authority ana alleged 10 be valid under the law or
nations. And finally IN 1867 IA United States
Statutes, 3s5 to all cases where any person may be
restrained OF liberty IN violation OF the constitution
or OF any treaty or law OF the United States
This brief statement shows how the general
spirit and genius OF our institutions have
tended to the widening and charging or
the nabeas corpus jurisdiction OF the courts
aud judges OF the United States; and the
tendency except in one recent instance, has been
constant and uniform, and 1t is In the light OF IL
that we must determine the true meaning OF the
constitution and the law In respect 10 the appellate
tnrts n Enrt Wa ura nnta at nhar TO n
except from 1t any cases not plainly excepted
by law, and we think it sufficiently appears from
Jurisdiction embraces such q case as that now
before the Court On the contrary, the case is one
OF those expressly declared not TO be excepted from
the general grant OF urlsdicton for 1t Is case OF
imprisonment alleged to be unlawful and to be
under color OF authority OF the United States. 1t
seems to be a necessary consequence that II the
appellate jurisdiction by habeas corpus extends to
any case iJ extends to this. 1t Is unimportant In
what custody the prisoner may be II IT Is custody
to which he has been remanded by the order
from an inferior court OF the United states.
1t ID proper TO add that we are not aware OF any
thing In any act OF Congress except the act OF 1855
jurisdiction IN habeas corpus cases from this Court,
or to abrdge the Jurisdiction derived from the con-
stitutOn and defined by the act OF 1889. We agree
that Congress may withhold abridge It; for 1t Is
given subject to exception and regulation by Con-
ges But this too plain for
IN this class OF cases must greatly weaken the eff
cheney OF The writ, deprive the citizens IN many
cases Oh ltS DeucutS anu Tie
lishment OF that uniformity IN decisions upon ques.
tons OF personal rights which can only be attained
through appellate jurisdiction exercised upon the
decisions 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
that or some authority other than that OF the re-
handing court 1t Is evident that the imprisoned
citizen, however unlawful his Imprisonment may be-
in the appellate jurisdiction OF this Court. These
considerations forbid any constructions giving
to doubtful WORDS ne eec. Of rosy
strongly persuade against the denial of
the jurisdiction, even were the reasons for
Offering it less cogent than they are. We are
obliged to hold therefore. that IN all cases where
Circuit Court OF the United States has III the exer
else OF It's original jurisdiction caused prisoner TO
be,brOugnt before and has, after nquirng into the
cause OF detention remanded him to the custody
from which ne was taken, this Court, In the eXer
Of habeas corpus aided by the writ OF GER
tlorar, revise the decisions OF the Circuit
Court, and II 1t be found unwarranted by
law release the prisoner from the unlawful restraint
to which he has been renamed.
This conclusion brings Us to the inquiry whether
the second section OF act of March 81 1865 taxes
court under the constitution and the acts OF Congress
prior to 1852 We have already expressed IN Nc
Cardle's case our opinion that 1t was But the point
was not very carefully considered Il Wells, 551.)
The circumstances under which the act OF 1868 was
passed were peculiar On the 9th Of February, 1857,
Congress passed an act TO which reference has
already been made, extending the original jurlsdc-
ton by habeas corpus OF the District and Circuit
Courts and OF the several judges OF these courts
all cases OF restraint OF liberty in violation OF the
constitution treaties laws OF the United States.
Judgments OF the Circuit Court but did not repeal
any previous act comforting Jurisdiction by habeas
corpus unless ~ Implication Under - this
tary force, pettioned the Circuit Court for the
Southern district OF Mississippi for the writ OF
habeas corpus. The writ was issued and q return
was made, and upon hearing 1t the Court decided
thar the restraint was lawful and remanded him to
custody. McCardle prayed an appeal under the act
to this court, which was allowed and perfected. A
mouon to dismiss the appeal was made here and
denied. The case was then argued at the bar, ana
the argument having been concluded on the 9Th OF
March, 1869, was taken under Amusement by the
Court While the cause was thus held and before the
Court had time to consider the decision proper to
be made, the repeating act, under consider alton,
was introduced into Congress. The act was carried
through both houses, sent to the President returned
majority in each house, and became law on the
9th OF March, within eighteen Gays after the con-
cluson OF the argument. The effect OF the act was
to GUST the court OF Its jurisdiction or the par
tlcular case then before 1t appeal, and 1t
Is not to be doubted that such was the
effect intended. Nor Will II be questioned that egIs.
Iatlon of this character Is unusual and hardly to be
justified. except upon some imperlous public ext
Rency. 1t was doubtless within the constitutional
discretion OF Congress to determine whether such
an exigency existed, but 1t Is not TO be presumed
that an act passed under such circumstances was
apparent from its terms. IL Is quite clear That the
words of the act reach not only all appeals pending
but all future appeals TO this court under the or
1867, but they appear to be limited appeals taken
under that act. The words Of the repeating section
are:-
That much of the act approved February g. 1867, as
authorizes an appeal from the Judgment Of the Circuit
TO the supreme Court OF the United Sates exercise
any such Jurisdiction by said supreme Court appeals
which have been may be hereafter TAKEN be the
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 or by
ceptng from II any cases not excepted by the OF
1889. Tney reach no act except The act OF 1867. 1t
has been suggested however that the act Of 1885, so
far 1t provided for the issuing OF wrlts OF habeas
corpus OF this court already repealed by the act
OF 1857 We have already observed that there are
no repeating words In that act. II 1t repealed the
act OF 1889 1t did so by implication and any mplica-
ton which would give to 1t this effect upon the act
OF 1859 would give it the same effect upon the acts
OF 1888 and 1912. II one was repealed all were re-
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