Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-10-28

a civil court Of the United states mas,
II the exercise of its original jurisdie-
ton, caused a prisoner to be brought
before it, and has, after inquiry into
the cause Of detention, remanded him
to the custody from which he was ta-
ken, this court, in the exercise Of its
appellate jurisdiction, may, by the
writ of ha9eas corpus, extended by
the writ of certiOrari, revise the de-
cision of the Circuit Court, and If it be
found unwarranted by law, relieve the
prisoner from the unlawful restrain
ment to which he has been remanded.
THE ACT OF 1868.
This conclusion brings Us to the in
quiry whether the section Of the act Of
March q, 1868, takes away or affects
the appellate jurisdiction of this court
under the Constitution and the acts Of
Congress prior To 1867. We have
already expressad.in the Nc ardle
c 5 our opinion that it was, but the
point was not very carefully eOnsid-
cred, and we have examined it in
| Wall, 715.
The circumstances under which the
act of 1853 was passed were peculiar.
On the jth OfFebruary, 1861, Congress
passed an act, to which reference has
already been made, extending original
jurisdiction by habeas corpus OF dis
trict and circuit courts, and of the sew
eral judges of the courts, to all cases Of
restraint OF liberty, in violation OF the
Constitution, treaties or laws of the
United States. This act authorized
appeals to this court from judgments
of the circuit court, but did not repeal
ffurl1fffg-
ton by habeas corpus, unless by i'm
pl.eatiOn.
THE M'CARDLE CASE.
Under this act one McCardle, alleg-
ing the unlawful restraint of military
force, petitioned the Circuit Court for
the Southern District of Mississippi
for the writ of haheas corpus. The
writ was issued and a return was
made, and, upon hearing, the court
decided that the restraint was lawful,
and remanded him to custody. Ne
Cardle prayed an appeal under the act
to this court, which was allowed and
[ perfected. A motion to dismiss the
appeal was then made here and de-
MED. The case was then argued at
the bar, and, the arguments having
been concluded on the 9Th of March,
1865, was taken under advisement by
the court. While the case was thus
held, and before the court had time to
consider the decision proper to be
made, the repeating act under eonsid-
Grafton was introduced into Congress.
The act was carried through both
houses, sent to the President, returned
with his objections, repassed by the
lawful majority in each house and be-
[ came q law on the 9Th OF March,
within eighteen days after the cOnciu-
sion Of the argument. The effect uf
the act was TO Ou5t the court of lis IL
Z riadictiOn OF the particular case then
before it on appeal, and If is not to be
I doubted that such was the effect ia
tended; nor will il be questioned that
! legislation of this character Is unusual
and hardly TO be Justified except upon
I some imperiOus public eXigenCy. 1t
was doubtless within the cOnstitu-
tiOnal discretion OF Congress to deter
( mine whether such an eXigency eX-
/ isted, bGt Il IS not 70 be presumed that
an act passed under such CircI 1(st4n-
ces was intended to have any further
effect than that plainly apparent.
From It's lessons ii is quite clear that
the words of the act reach not only all
appeals pending, but all future ap-
/ pe2ls to this court under the act OF
/ 1867, but, they aple2r to be limited
/ 70 appeals taken UnL er that act.
: The W0Tas Of the repeating section
/ are, that 50 much Of the act approved
/ February 8, 1867, as authorizing an
appeal from this Judgment Of the Cir
cult Court 10 the Supreme Court Of
: tho 7 'nTTnI &fgfa- ~ 4hn Of
any such jurisdiction By said Supreme
/ Court, or appeals which have been or
may be heFeafter taken, be, and the
same is hereby, repealed. These words
are not Of doubtful lnterpreta ton.
I They repeal only 50 mHeh of the act
of 1867 as authorized appeal on the
! exercise of appellate jurisdiction by
this court. They aft cted only appeals
Ofappellate jurisdiction authorized by
Ilat 2ct. They do not purport to
touch the appellate jurisdiction con-
ferred by the Constitution, or by ex-
cepting from it any cases not excepted
by the act Of 17S9, they reach no act
except the act Of 1861. 1t has been
suggested, however, thar the act of
i7Sg a5 far as it provided for the iSsu-
ing of Writs Of habeas corpus Of this
court was already repealed by the act
Of 1861. We have already observed
that there are no repeating words in
that act. If IL repealed the act Of 1859,
il did 50 by implication and any im-
plieatiOn which would give to it this
effect upon the act of l7o9 would give
it the same effect upon the acts Of 1893
and 1872. If one was repealed, all
/ g'ere repealed. Repeats by impliCa-
ton are act favOred. They are set
down admitted on the grouEd OF re-
pregnancy, and never, We tt4tSk, when
the tOFIueF Get can stand together with
the new act. No dOuGt the exercise
Of appellate jurisdiction under the act
of i7S9, was less cCHdencent than un-
der the act CT 1851, b4t the provisions,
or new and more COnTeaiHut mode
of its exercise does suOtnece-sariiyt take
away the Old, and that this effect was
not intended is indicated by the fact
that tins suthOFity conferred by the
new act IS expressly declared % be in
addition TO the aathsrity Conferrsd hy
the former acts. Addition Is not sub
stitutiOn of the appeal given by this
act OF 1861 extended. Indeed, the
cases Eithil the former acts and the
act, by its grant or additional author
ity, so enlarged the jurisdiction by
habeas cOrpuSes that il deemed, as
was observed in McCardle, impJsSi-
bic to widen it. But this effect does
not take from the act its character Of
an addition. 1t operates as q repeal
Of jurisdiction heretofore allowed.
cQNCLUsECN,
Our conclusion is that none Of the
acts prior TO 1867, authorizing this
court 70 exercise appellate jurisdiction
by means Of the writ CT habeas corpus,
were repealed By act Of that year, and
that the repealing OF the section Of the
act Of 1858 is limited in terms and
must be limited in elect 10 the appel
late jurisdiction authorized by the act
of 1857. We could come TO no other
conclusion without holding that the
whole appellate jurisdiction OF this
court in cases Of habeas corpus con-
. ierred by the Constitution, recognized
by Law and exercised from the founda-
tiOn Of the Government heretofore,
has been taken away without the ex-
presSiOp of such intent and by mere
implication through the operation OF
acts OF 1851 and 1865.
The suggestion made by the bar
that the provision Of the act Of 1867
was revised by the repeal Of the re-
pealing act has not escaped our con-
sideratiQa. We are inclined to thin@
that such would he the effect OF 80
sct of 1868, but, having come to the
conclusion that the act Of 1889 was not
repealed by the act OF 1867, it is not
necessary TO express an opinion on
that point. The argument having
been confined by the direction of the
court to the question of jurisdiction Of
the court 10 issue the writ prayed for
as affirmed.
JUSTICE MILLER DIsSENTs.
Associate Justice Swayne was un-
derstood 10 remark that he had been
requested to say for ASSOCIATE Justice
Miller, who was absent, that the lat
ter disSented from the opinion.
ACCIDENT.