The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-10-27
The Yergcr Decision.

In the judgment Of the Supreme Court in
the Yerger case we have as yet save by very
faint implication, no hint Of the view that may
be taken of the military trial of civilians in
time of peace, because thus far the only point
brought up Is whether or no the court has
jurisdiction in this case. But in the absence
of light on the main point as to military trials
we have much apropos to the question of
jurisdiction, touching the degree in which the
recent legislation of Congress has affected the
ancient powers of the court and especially
judicial presumption in favor of the habeas
corpus, which must assure the people that the
courts will never favor any limiting of the
application of that writ Yerger, charged
with murder, was in the bands of the United
States military authorities in Mississippi and
was held for trial, but was brought before the
United States Circuit Court on the writ Of
habeas corpus and on examination had into
the legality Of his detention. That court had
before it the question of the right to trial by
jury, &C., and decided that the man was legally
held by the military power. From that deci-
sion the accused appealed to the Supreme
Court Of the United States, and the question
before the court was whether it could
hear his appea-whether his case was or was
not one of those taken out OF the power of the
court by recent legislation in regard to ''appel-
late jurisdiction" The court decides that it is
not one of those cases; and this is the more
remarkable because in so doing it expressly
md a1u ftnatx fol- xvsa raotlx
to that hitherto taken in the McCardle case
The appellate jurisdiction of the Supreme
Court is vaguely defined in the constitution,
and more distinctly in the law of l739 But
by law passed in 1867 that jurisdiction was
extended to all cases OF restraint of liberty in
violation of the constitution" The last law in
regard to appellate jurisdiction was passed in
1868, and was simply repeal of tho act of
1867. 1t left untouched, therefore, the ancient
power of the court to hear appeals from below
on habeas corpus, and thus does not reach the
present case. 1t takes away only the recent
extension of power-not the former power. 1t
is the view of the court that the act of 1868
was aimed especially at the McCardle case.
Certainly it is clear that If every person
restrained of his liberty" by the military
could at once come before the Supreme Court
the government OF unreconstructed States
would be extra troublesome, and it is
probable, therefore, that Congress had
in view the prevention of such difficulty
by the repeal. But it is also obvious
that in this Yerger case the same end is
reached, though by rather more roundabout
way. Although a man cannot get his case
before the Supreme Court on the mere restraint
of liberty, he can get before the lower court on
habeas corpus, and thence before the Supreme
Court on appeal. If Congress, therefore, still
fears that the military reconstruction is not
safe before this court, and wishes to prevent
the resort to it in such cases, it must frame
another repeal; and to this it is invited by the
ample recognition the court gives Of the
validity of legislation on this point. But as the
only remaining States will perhaps be in when
Congress comes together the necessity may no
longer exist.