75 U.S. (8 Wall.) 85 (1868)
Edward M. Yerger was detained by military officers for trial before a military tribunal.1 After the Circuit Court examined the cause of detention, it remanded Yerger to the custody of the military authorities.2
Yerger then applied to the Supreme Court of the United States for a writ of habeas corpus.3 The Supreme Court directed that argument be confined to the single point of the court's jurisdiction to issue the writ prayed for.4 The Chief Justice delivered the opinion after the court considered the reasonings addressed to it.5
The case arose following the Act of February 5, 1867, which extended original habeas corpus jurisdiction of the District and Circuit Courts to all cases of restraint of liberty in violation of the Constitution, treaties, or laws of the United States and authorized appeals to the Supreme Court.6 Under that act, a prisoner named McCardle had petitioned the Circuit Court for the Southern District of Mississippi alleging unlawful restraint by military force.7 The Circuit Court remanded him to custody.8 An appeal was allowed and perfected, and argument concluded on March 9, 1869.9
While the McCardle case remained under advisement, Congress passed the Act of March 27, 1868.10 That act was carried through both houses, returned by the President with objections, repassed by constitutional majority, and became law within eighteen days after the conclusion of argument in McCardle.11 The repealing section stated that so much of the act approved February 5, 1867, as authorizes an appeal from the judgment of the Circuit Court to the Supreme Court or the exercise of any such jurisdiction by the Supreme Court on appeals which have been or may be hereafter taken, is repealed.12
Yerger's petition presented a situation in which the actual imprisonment at the time of the application was under military authority.13 The prisoner had been remanded by order of the Circuit Court rather than under the direction of the remanding court itself.14 The Supreme Court had previously exercised appellate jurisdiction by habeas corpus in cases such as those of Kaine and Wells, where prisoners had been remanded to custody by inferior courts or commissioners.15
Whether the Supreme Court has jurisdiction under the Judiciary Act of 1789 to issue a writ of habeas corpus to inquire into the cause of detention and grant relief if the detention is unlawful when the prisoner is held by military officers after a Circuit Court has examined the cause and remanded the prisoner to custody?16
The doctrine of the Constitution and of the cases may be summed up in these propositions.17 (1.) The original jurisdiction of this court cannot be extended by Congress to any other cases than those expressly defined by the Constitution.18 (2.) The appellate jurisdiction of this court, conferred by the Constitution, extends to all other cases within the judicial power of the United States.19 (3.) This appellate jurisdiction is subject to such exceptions, and must be exercised under such regulations as Congress, in the exercise of its discretion, has made or may see fit to make.20 (4.) Congress not only has not excepted writs of habeas corpus and mandamus from this appellate jurisdiction, but has expressly provided for the exercise of this jurisdiction by means of these writs.21 In all cases where a Circuit Court of the United States has, in the exercise of its original jurisdiction, caused a prisoner to be brought before it, and has, after inquiring into the cause of detention, remanded him to the custody from which he was taken, this court, in the exercise of its appellate jurisdiction, may, by the writ of habeas corpus, aided by the writ of certiorari, revise the decision of the Circuit Court, and if it be found unwarranted by law, relieve the prisoner from the unlawful restraint to which he has been remanded.22
Yes. The Supreme Court has jurisdiction under the Judiciary Act of 1789 to issue the writ in this situation.23 The appellate jurisdiction extends to all cases within the judicial power of the United States not excepted by Congress.24 The facts establish that Yerger was remanded by the Circuit Court to military custody after examination.25
The great and leading intent of the Constitution and the law is that every citizen may be protected by judicial action from unlawful imprisonment.26 The jurisdiction given to this court is appellate but extends to revising the decisions of inferior courts in such matters.27 This is shown by prior exercises in Kaine's case and Wells's case where prisoners had been remanded to custody by inferior courts or commissioners.28 The case is one of imprisonment alleged to be unlawful and under color of authority of the United States.29
It is unimportant in what custody the prisoner may be if it is a custody to which he has been remanded by the order of an inferior court of the United States.30
The Supreme Court has jurisdiction to issue the writ of habeas corpus in this case.31
Whether the second section of the Act of March 27, 1868, repealed or affected the Supreme Court's appellate jurisdiction to issue writs of habeas corpus under the Judiciary Act of 1789 and earlier statutes?32
The words of the repealing section are not of doubtful interpretation and repeal only so much of the act of 1867 as authorized appeals or the exercise of appellate jurisdiction by this court.33 Repeals by implication are not favored and are seldom admitted except on the ground of repugnancy, and never when the former act can stand together with the new act.34 The act of 1867 did not repeal the act of 1789 by implication because the former act is an additional grant of jurisdiction, and addition is not substitution.35 The repealing section of the act of 1868 is limited in terms, and must be limited in effect to the appellate jurisdiction authorized by the act of 1867.36
No. The second section of the Act of March 27, 1868, does not repeal or affect the Supreme Court's appellate jurisdiction under the Judiciary Act of 1789.37 The facts show that the 1868 act was passed under peculiar circumstances to oust jurisdiction in the McCardle case pending on appeal under the 1867 act.38 Its words reach only appeals under that act and do not purport to touch the appellate jurisdiction conferred by the Constitution or excepted by the act of 1789.39 The act of 1789 was not repealed by the 1867 act.40
The authority conferred by the new act is expressly declared to be in addition to the authority conferred by the former acts.41 The suggestion that the provision of the act of 1789 was revived by the repeal of the repealing act need not be reached since the 1789 act was never repealed.42 We could come to no other conclusion without holding that the whole appellate jurisdiction of this court in cases of habeas corpus has been taken away without the expression of such intent and by mere implication.43
The Act of March 27, 1868, does not take away the appellate jurisdiction of the Supreme Court under the Judiciary Act of 1789.44