Comment

It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal, and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied.  But this is an error.  The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867.

See last Paragraph of Section 2 of
 THIRTY-NINTH CONGRESS, Sess II. Ch. 28
"This act shall not apply to the case of any person who is or may be held in the custody of the military authorities of the United States, charged with any military of the United States prior to the passage of this act."

(Approved, February 5, 1867)