The New York herald., 1869-04-15

The mrCnrdlc Case-Decision or Chief Justice
Chase Dismissins the Appeal Of BIcCardle
for Want Of Jurisdlctiou.

Chase Dismssins the Appeal or DIcCardie
for Want OF Jurisdlction.
WASHINGTON, April IA, 1859.
Chief Justice Chase has delivered the opinion OF
the supreme Court In the case OF er parte william
II. McCardle. as follows:-
This case came here by appeal from the Circuit
Court OF the Southern district OF Mississippi.
petition for the wr OF habeas corpus preferred
In ina. court ov te appellant ale ynu unlawful re.
return was made by the military commander, ad-
mtting The re trant but denying thai It unlaw-
fu II appeared that the Ietiti0per was not IN the
military service Of the United strtes but was he d in
custody by military authority for trial before mill
sars commission ~ on charle founded on the pubti-
cation q articles alleged to be ibellcus IN news
paper OF which he was the editor. Upon the near
ing, the petitioner was remauded to the military
lowed INN TO this court. and upon his fling
sne usual appeal bond for costs he was
conditioned for his future appearance IA the Circuit
Court 10 abide and perform the fnal judgment OF
this court. motion ~ dismiss this appeal ~as
made here at the last term, and, after argument.
was denied. full statement OF the case made will
% found IN the report OF the decision, and
Subsequently the case was argued with great ability
ana tn0rOughness upon the merits, and was taken
held, and before conference as to the decision pro-
per to be made, an act was passed by Congress-, re-
turned with objections nv the PRESIDENT and re-
passed by the constitutional majority. which, IL II
insisted, takes rOm this court Jurisdiction OF the
appeal the second section OF this act b as fol-
February 1857 entitled IAN act amend estab
nee an o Gs
o. sss crsa Court 70 the Supreme Court Of the y1isd
be taken be. and the same 10 hereby repealed.
The attention Of the Court was directed TO this
statute ut the last term: but counsel having ex.
pressed desire to be hearI IN argument upon Its
effect and the Chief Justice being detained from his
place mere ny his duties IN the Court of Impeacn.
ment, tho caSe was continued under advisement.
A. A. Mm tnis 3 term M we nave heard argument upon the
tue case.
lhe first question necessarily Is that OF jurisdic
tt0n. for II the act OF March, 1863 takes away the
jurisdiction defined by the act of February 1867, it
s useless, II not improper. to enter into any dis
argued BY the counsel for the petitioner. that
the appellate Jurisdiction Of this court ts
not derived from acts OF Congress. 1t H. strictly
speaking conferred by the constitution. but
1t 10 conferred "with such exceptions and under
sucn regulations as Congress shall make" IL Is un
no exceptions and no regulations, this court might
not have exercised general appellate Jurisdiction
lest acts Of Congress, at its rs SESSION. was The acs
OF september. "a. 1852 to establish the judicia!
courts OF the Unl:ed States. Ibat act provided
for the organization Of this court and presented
regulations TOR the exercise OF Its jurisdiction. The
source OF that jurisdiction and the limitations OF It
by the constitution and by the statute have been
several occasions subjects Of consideration here. In
the case Of DurOussean Vs. The Unired States par
OF THIS court are not gwen by tue judicial ACT,
but are gwen by the constitution they are never.
tneiess llmlted ana regu ated by tnat act, ana oy
such other acts as have been passed on The subject"
The Court held furtner thai the judicial aci was an
exercise % OF the power given by the constitution ION
appellate lurisdlcsion to the Supreme Court"
"Ihey nave described anrmatlve "" SAID the Court,
"ts Jurisdiction. and this Affirmative description
mas teea understood to imply negative on tue ex-
erctse OF such appellate power as 1t ls not compre
hended within It," The principle thar the aiftrnna-
ton Of Jurisdiction implies the negaton OF all such
Jurisdiction not affirmed having been rhus estab-
lshed, Il was an almost necessary consequence that
acts or Congress providing Tor the exercise Of
jurisdiction should come to be spoken OF
as acts granting 0rtsdictions and not as
acts making exceptions 20 the constitutional grant
Of It. The exception to the appellate Jurisdiction
IN the case before u.s. however, ts not an Inference
nom the amrnat0n OF other appellate jurisdictions.
Il is made IN terms A provision OF law affirming
the appellate jurisdiction OF this court In cases OF
haDeas corpus Is expressly repealed. It "a hardly
possible TO imagine plainer instance OF positive
exception we are not at liberty to inquire Into the
motives OF the LEGISLATURE. we can only examiner ITS
power under tho constitution, ana the power to
make exceptlons 70 the appellate Jurisdiction OF
this court Is given 0y express words. what, then.
ls she eneCt OF the repeating act upOn the case DO