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
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)