The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-04-19
dONDAY MORNING, APRIL 10, 1869.

an act to establish the judic1nl courts OF tne oneo
States, approved September a. 1884,, as authorizes
an appeal from the Judgment of the Circuit Court to
the Supreme Court of the United States CT the e1er
else OF any such jurisdiction by said Supreme Court
on appeals which have been or may hereaiter Dc
takeu, be, and the same Is hereby, repealed.
The attention of the court was directed to
this statute ut the last term; but counsel hav-
ing expressed desire to be heard in argument
upon its effect, and the Chief Justice being de-
tanned from his place here by his duties in the
Court of Impeachment, the case was continued
under Amusement. at this term we have
heard argument upon the effect of the repeal
ing act, and will now dispose of the case.
The first question is necessarily that OF ju-
risdiction; for if the act of March, 1868, takes
February, 1867, it is useless, if not improper,
to enter into any discussion Of other questions:
It is quite true, as was argued by the counsel
for the petitioner, that the appellate jurisdic.
tion OF this court is not derived from acts OF
Congress. It is, strictly speaking, conferred
by the constitution. But it is conferred "with
such exceptions and under such regulations as
Congress shall make" 1t is unnecessary to
consider whether, if Congress had made no
exceptions and no regulations, this court might
not have exercised general appellate jurisdic-
tion under rules presented by itself; for among
the earliest acts OF Congress-, at It's first ses-
sien, was the act Of September 24, 1789. to es-
tablish the judicial courts Of the United States.
That act provided forth organization OF this
court, and presented regulations for the exer-
cise of it's jurisdiction. The source OF that
jurisdiction, and the limitations OF 1t by the
constitution and by the statute, have been on
seyeral occasions subjects OF consideration
here. In the case Of Duroussean vs.. The Uni
ted States, particularly, the whole matter was
carefully considered, and the court held that
while "the appellate powers OF this court are
not given by the judicial act. but are given by
the constitution" they are nevertheless lin
tied and regulated by that act, and by such
other acts as have been passed on the subject"
The The court held further, that the judicial act
was an exercise of the power given by the con-
stitution to Congress ''of making exceptions to
the appellate jurisdiction to the Supreme
Court.n sThey have described affirnatively,"
said the court, ''its jurisdiction, and this
affirmative description has been understood to
imply negative on the exercise OF such appel.
late power as tits not comprehended within IT.
The principle that the affirmation OF lurisaic-
tion implies the negation OF all such jurisdlc-
tion not affirmed having been thus established,
it was On almost necessary consequence that
acts of Congress providing for the exercise OF
jurisdiction should come to be spoken OF as
acts granting Jurisdiction, and not as acts
making exceptions to the constitutional grant
of it. The exception to the appellate jurls-
diction in the case beforeus, however,, ls
not an inference from the affirmation OF other
A provision of law affirming the appellate 1u-
risdiction Of this court in cases Of hdbeas cor
pus is expressly repealed. 1t is hardly posi-
bile to imagine palmer instance OF positive
exception. We are not ut liberty to enquire
into the motives of the legislature. We can
onlv examine its power under the constitution,
and the power to make exceptions to the ap-
pelIate Jurisdiction Of this court is given by
express words. What, then, is the efect o.
the repealiuc act upon the case before us
We cannot doubt as to this. Without jur1sdlc-
ton the court cannot proceed at all IN any
cause. Jurisdiction is power to declare the
law, and when it ceases to exist the only 1unc'
tion remaining to the court is that Of announc.
inc tho fact and dismissing the cause. And
this is not less clear upon authority than upon
principle. Several cases were cited by the
counsel for the petitioner in support OF the po-
stion that jurisdiction OF this case Is not at1ac-
ted bv the repeating act, but none OF them, IL
our Judgment, afford any support to 1t. IheJ
are all cases Of exercise Of Judicial power by
the legislature, or Of Legislative interference
with the courts in the exercise OF continuing
jurisdiction. On the other hand, the genera
rule supported by the best elementary writers
N haat ,s ,sSheR 90 Gf 0i The Legislature II s Es
transactions passed and closed, as it it nevel
existed" and the effect OF repeating acts upol
suits under acts repealed has been determined
by the adjudication Of this court. The sub
ject was fully considered in Morris vs. Crocker
and more recently in Insurance Company vs.
Ritchic, in both OF which cases it was held tina
no Judgment could be rendered in a suit afte
the repeal Of the act under which it wa'
brought and presented. 1t is quite clear
therefore that this court cannot proceed tc
pronounce judgment in this case, for it has nj
longer jurisdiction of the appeal; and judicia
duty is no less fitly performed by declining un
authorized jurisdiction than in exercisinl
firmly that which the constitution and tn
laws confer. Counsel seems to have supposed
if effect be given to the repeating act in gue,s
tion, that tho whole appellate power OF tn
court in cases of habeas corpus is denied. Blu
this is on error. The act Of 1868 does NOT c1
cept from that jurisdiction any other case
and appeals from circuit courts under the &C
of 1867. 1t does not affect that jurisdiction
which was previously exercised. The appea
OF the petitioner in this case must be dismissed
Tor want of jurisdiction.