Under the Act of February 5, 1867, 14 Stat. at Large 385, to
amend the Judiciary Act of 1789, an appeal lies to this Court on
judgments in habeas corpus cases rendered by circuit courts in the
exercise of original jurisdiction.
Page 73 U. S. 319
The Judiciary Act of 1789, [
Footnote 1] enacts:
"That either of the Justices of the Supreme Court as well as
judges of the district courts, shall have power to grant writs of
habeas corpus, for the purpose of an inquiry into the cause of
commitment,
provided that writs of habeas corpus, shall in
no case extend to prisoners in jail, unless where they are in
custody under or by color of the authority of the United States, or
are committed for trial before some court of the same, or are
necessary to be brought into court to testify."
A subsequent Act, one of February 5, 1867, [
Footnote 2] to amend the Judiciary Act of 1789,
enacts:
"SEC. 1. That the several courts of the United States, and the
several justices and judges of such courts, within their respective
jurisdiction,
in addition to the authority already conferred by
law, shall have power to grant writs of habeas corpus in all
cases where any person may be restrained of his or her liberty in
violation of the Constitution, or of any treaty or law of the
United States."
After providing for the awarding, direction, serving and return
of the writ, and for the hearing &c., the act proceeds:
"From the final decision of any judge, justice, or court
inferior to the circuit court, appeal may be taken to the
circuit court of the United States for the district in
which said cause is heard, and
from the judgment of said
circuit court to the Supreme Court of the United States."
"And pending such proceedings or appeal, and until final
judgment be rendered therein, and after final judgment of discharge
in the same, any proceeding against such person so alleged to be
restrained of his or her liberty in any
state court, or
under the authority of any
state, for any matter or thing
so heard and determined, or in process of being heard and
determined, under and by virtue of such writ of habeas corpus,
shall be deemed null and void. "
Page 73 U. S. 320
The act further declares:
"SEC. 2. . . . This act shall not apply to any person who is or
may be held in the custody of the military authorities of the
United States, charged with any military offense."
In this state of statutory law, a writ of habeas corpus was
issued from the Circuit Court of the United States for the District
of Mississippi, on the 12th of November, 1867, upon the petition of
William H. McCardle, directed to Alvin C. Gillem and E. O. C. Ord,
requiring them to produce the body of the petitioner, together with
the cause of his imprisonment, and to abide the order of the court
in respect to the legality of such imprisonment.
At the time of issuing the writ, E. O. C. Ord was brevet Major
General commanding the Fourth Military District, and Alvin C.
Gillem was brevet Major General commanding the sub-district of
Mississippi, under the Reconstruction Acts of Congress.
In obedience to the writ, Major General Gillem, on the 21st of
November, made a return of the cause of imprisonment, from which it
appeared that McCardle had been arrested and was held in custody
for trial by a military commission, under the alleged authority of
the Reconstruction Acts, for charges, (1) of disturbance of the
public peace; (2) of inciting to insurrection, disorder, and
violence; (3) of libel; and (4) of impeding reconstruction.
On making this return, Major General Gillem surrendered McCardle
to the court, and he was ordered into the custody of the
marshal.
Subsequently, on the 25th of November, 1867, the circuit court
adjudged that the petitioner be remanded to the custody of Major
General Gillem, from which judgment the petitioner prayed an appeal
to this Court, which was allowed, and a bond for costs given
according to the order of the court.
On the same 25th of November, on the motion of the petitioner,
he was admitted to bail on his own recognizance, with sufficient
sureties, in the sum of one thousand dollars,
Page 73 U. S. 321
conditioned for his appearance to abide by and perform the final
judgment of this Court.
The legal consequence of this admission to bail was the
discharge of the prisoner, both from the custody of the marshal and
of Major General Gillem, with a continuing liability, however,
under the recognizance, to be returned, first to the civil court,
and then to military custody, in case of affirmance by this Court
of the judgment of the circuit court.
The ground assigned for the motion to dismiss the appeal was a
want of jurisdiction in this Court to take cognizance of it.
Page 73 U. S. 324
THE CHIEF JUSTICE delivered the opinion of the Court.
The motion to dismiss the appeal has been thoroughly argued, and
we are now to dispose of it.
The ground assigned for the motion is want of jurisdiction, in
this Court, of appeals from the judgments of inferior courts in
cases of habeas corpus.
Whether this objection is sound or otherwise depends upon the
construction of the act of 1867.
Prior to the passage of that act this Court exercised appellate
jurisdiction over the action of inferior courts by habeas corpus.
In the case of Burford, [
Footnote
3] this Court, by habeas corpus, aided by a writ of certiorari,
reviewed and reversed the judgment of the Circuit Court of the
District of Columbia. In that case, a prisoner brought before the
circuit court by the writ had been remanded, but was discharged
upon the habeas corpus issued out of this Court.
By the writ of habeas corpus also, aided by a certiorari, this
Court, in the case of
Bollman and Swartwout, [
Footnote 4] again revised a commitment
of the Circuit Court of the District. The prisoners had been
committed on a charge of treason by order of the circuit court, and
on their petition this Court issued the two writs, and, the
prisoners having been produced, it was ordered that they should be
discharged on the ground that the commitment of the circuit court
was not warranted in law.
But, though the exercise of appellate jurisdiction over
judgments of inferior tribunals was not unknown to the practice of
this Court before the act of 1867, it was attended by some
inconvenience and embarrassment. It was necessary to use the writ
of certiorari in addition to the writ of habeas corpus, and there
was no regulated and established practice for the guidance of
parties invoking the jurisdiction.
Page 73 U. S. 325
This inconvenience and embarrassment was remedied in a small
class of cases arising from commitments for acts done or omitted
under alleged authority of foreign governments, by the Act of
August 29, 1842, [
Footnote 5]
which authorized a direct appeal from any judgment upon habeas
corpus of a justice of this Court or judge of a district court to
the circuit court of the proper district, and from the judgment of
the circuit court to this Court.
This provision for appeal was transferred, with some
modification, from the act of 1842 to the act of 1867; and the
first question we are to consider, upon the construction of that
act, is whether this right of appeal extends to all cases of habeas
corpus, or only to a particular class.
It was insisted on argument that appeals to this Court are given
by the act only from the judgments of the circuit court rendered
upon appeals to that court from decisions of a single judge, or of
a district court.
The words of the act are these:
"From the final decision of any judge, justice, or court
inferior to the circuit court, an appeal may be taken to the
circuit courts of the United States for the district in which said
cause is heard, and from the judgment of said circuit court to the
Supreme Court of the United States."
These words, considered without reference to the other
provisions of the act, are not unsusceptible of the construction
put upon them at the bar; but that construction can hardly be
reconciled with other parts of the act.
The first section gives to the several courts of the United
States, and the several justices and judges of such courts within
their respective jurisdictions, in addition to the authority
already conferred by law, power to grant writs of habeas corpus in
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 legislation is of the most comprehensive character. It
brings within the habeas corpus jurisdiction of every court
Page 73 U. S. 326
and of every judge every possible case of privation of liberty
contrary to the national Constitution, treaties, or laws. It is
impossible to widen this jurisdiction.
And it is to this jurisdiction that the system of appeals is
applied. From decisions of a judge or of a district court appeals
lie to the circuit court, and from the judgment of the circuit
court to this Court. But each circuit court, as well as each
district court and each judge, may exercise the original
jurisdiction, and no satisfactory reason can be assigned for giving
appeals to this Court from the judgments of the circuit court
rendered on appeal, and not giving like appeals from judgments of
circuit courts rendered in the exercise of original jurisdiction.
If any class of cases was to be excluded from the right of appeal,
the exclusion would naturally apply to cases brought into the
circuit court by appeal, rather than to cases originating there. In
the former description of cases, the petitioner for the writ,
without appeal to this Court, would have the advantage of at least
two hearings, while in the latter, upon the hypothesis of no
appeal, the petitioner could have but one.
These considerations seem to require the construction that the
right of appeal attaches equally to all judgments of the circuit
court unless there be something in the clause defining the
appellate jurisdiction which demands the restricted interpretation.
The mere words of that clause may admit either, but the spirit and
purpose of the law can only be satisfied by the former.
We entertain no doubt, therefore, that an appeal lies to this
Court from the judgment of the circuit court in the case before
us.
Another objection to the jurisdiction of this Court on appeal
was drawn from the clause of the first section, which declares that
the jurisdiction defined by it is "in addition to the authority
already conferred by law."
This objection seems to be an objection to the jurisdiction of
the circuit court over the cause, rather than to the jurisdiction
of this Court on appeal.
The latter jurisdiction, as has just been shown, is
coextensive
Page 73 U. S. 327
with the former. Every question of substance which the circuit
court could decide upon the return of the habeas corpus, including
the question of its own jurisdiction, may be revised here on appeal
from its final judgment.
But an inquiry on this motion into the jurisdiction of the
circuit court would be premature. It would extend to the merits of
the cause in that court; while the question before us upon this
motion to dismiss must be necessarily limited to our jurisdiction
on appeal.
The same observations apply to the argument of counsel that the
acts of McCardle constituted a military offense, for which he might
be tried under the Reconstruction Acts by military commission. This
argument, if intended to convince us that the circuit court had no
jurisdiction of the cause, applies to the main question which might
arise upon the hearing of the appeal. If intended to convince us
that this Court has no appellate jurisdiction of the cause, it is
only necessary to refer to the considerations already adduced on
this point.
We are satisfied, as we have already said, that we have such
jurisdiction under the act of 1867, and the motion to dismiss must
therefore be
Denied.
[
Footnote 1]
ยง 14; 1 Stat. at Large 82.
[
Footnote 2]
14
id. 385.
[
Footnote 3]
7 U. S. 3 Cranch
448,
7 U. S. 453.
See also Ex Parte
Dugan, 2 Wall. 134.
[
Footnote 4]
8 U. S. 4 Cranch
75.
[
Footnote 5]
5 Stat. at Large 539.
