tution. But it is conferred "with such excep- | the exercise of judicial power by the legislature, tions and under such regulations as Congress or of legislative interference with courts in the shall make." exercising of continuing jurisdiction.*

It is unnecessary to consider whether, if Con- On the other hand, the general rule, supported gress had made no exceptions and no regulations, by the best elementary writers,† is, that "when this court might not have exercised general ap- an act of the legislature is repealed, it must be pellate jurisdiction under rules prescribed by considered, except as to transactions past and itself. For among the earliest acts of the 1st closed, as if it never existed." And the effect of Congress, at its 1st session, was the act of Septem-repealing acts upon suits under acts repealed has ber 24, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.

been determined by the adjudications of this court. The subject was fully considered in Norris vs. Crocker, and more recently in Insurance Company vs. Ritchie. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the act under which it was brought and prosecuted.

The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau vs. It is quite clear, therefore, that this court canThe United States,* particularly, the whole mat- not proceed to pronounce judgment is this case, ter was carefully examined, and the court held for it has no longer jurisdiction of the appeal; that, while the appellate powers of this court and judicial duty is not less fitly performed by are not given by the judicial act, but are given declining ungranted jurisdiction than in exerby the Constitution," they are nevertheless "lim-cising firmly that which the Constitution and ited and regulated by that act, and by such other the laws confer. acts as have been passed on the subject." The court said further, that the judicial act was an exercise of the power given by the Constitution to Congress "of making exceptions to the appellate jurisdiction of the Supreme Court." "They have described affirmatively," said the court, "its jurisdiction, and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it."

The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an 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 appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus, is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the 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 position that jurisdiction of this case is not affected by the repealing act. But none of them, in our judgment, afford any support to it. They are all cases of *6 Cranch, 312; Wiscart vs. Dauchy, 3 Dall., 321.

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 in 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. It does affect the jurisdiction which was previously exercised.||

The appeal of the petitioner in this case must be dismissed for want of jurisdiction.

Opinions in the Cæsar Griffin Case-Virginia. OPINION OF CHIEF JUSTICE CHASE, MAY 10, 1869. Circuit court of the United States for the district of

Virginia, in the matter of Cæsar Griffin-Petition for habeas corpus.

This is an appeal from an order of discharge from imprisonment made by the district judge, acting as a judge of the circuit court, upon a writ of habeas corpus, allowed upon the petition of Cæsar Griffin."

The petition alleged unlawful restraint of the petitioner, in violation of the Constitution of the United States, by the sheriff of Rockbridge county, Virginia, in virtue of a pretended judgment rendered in the circuit court of that county by Hugh W. Sheffey, present and presiding therein as judge, though disabled from holding any office whatever by the XIVth amendment of the Constitution of the United States.

Upon this petition a writ of habeas corpus was allowed and served, and the body of the petitioner, with a return showing the cause of detention, was produced by the sheriff, in conformity with its command.

The general facts of the case, as shown to the district judge, may be briefly stated as follows:

The circuit court of Rockbridge county is a court of record of the State of Virginia, having civil and criminal jurisdiction. In this court, the petitioner, Cæsar Griffin, indicted in the

vs. Fleming, 7 Humph., 152; Lewis vs. Webb, 3 Greene, *De Chastellux vs. Fairchild, 15 Pa., 18; The State 326; Lanier vs. Gallatus, 13 La. An., 175.

†Dwarris on Statutes, 538. 13 How., 429. 25 Wall., 541. Ex parte McCardle, 6 Wall,, 324.

county court for shooting, with intent to kill, people adhered to the national Government; and was regularly tried in pursuance of his own elec- representatives from those counties soon after astion; and, having been convicted, was sentenced sembled in convention at Wheeling, and organaccording to the finding of the jury, to imprison-ized a government for the State. This government for two years, and was in the custody of the sheriff to be conveyed to the penitentiary, in pursuance of this sentence.

Griffin is a colored man; but there was no allegation that the trial was not fairly conducted, or that any discrimination was made against him, either in indictment, trial, or sentence, on account of color.

It was not claimed that the grand jury by which he was indicted, or the petit jury by which he was tried, was not in all respects lawful and competent. Nor was it alleged that Hugh W. Sheffey, the judge who presided at the trial and pronounced the sentence, did not conduct the trial with fairness and uprightness.

One of the counsel for the petitioner, indeed, upon the hearing in this court, pronounced an eulogium upon his character both as a man and as a magistrate, to deserve which might well be the honorable aspiration of any judge.

ment was recognized as the lawful government of Virginia by the executive and legislative departments of the national Government, and this recognition was conclusive upon the judicial department.

The government of the State thus recognized was, in contemplation of law, the government of the whole State of Virginia, though excluded, as the Government of the United States was itself excluded, from the greater portion of the territory of the State. It was the legislature of the reorganized State which gave the consent of Virginia to the formation of the State of West Virginia. To the formation of that State the consent of its own legislature and of the legislature of the State of Virginia and of Congress was indispensable. If either had been wanting, no State within the limits of the old could have been constitutionally formed; and it is clear, that if the government instituted at Wheeling was not the government of the whole State of Virginia, no new State has ever been constitutionally formed within her ancient boundaries.

But it was alleged and was admitted that Judge Sheffey, in December, 1849, as a member of the Virginia house of delegates, took an oath to support the Constitution of the United States, It cannot admit of question, then, that the and also that he was a member of the legisla-government which consented to the formation ture of Virginia during the late rebellion in 1862, and as such voted for measures to sustain the so-called Confederate States in their war against the United States; and it was claimed in behalf of the petitioner that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any State; and it was specially insisted that the petitioner was entitled to his discharge upon the ground of the incapacity of Sheffey under the XIVth amendment to act as judge and pass sentence of imprisonment.

of the State of West Virginia, remained, in all national relations, the government of Virginia, although that event reduced to very narrow limits the territory acknowledging its jurisdiction, and not controlled by insurgent force. Indeed, it is well known, historically, that the State and the government of Virginia, thus organized, was recognized by the national Government. Senators and Representatives from the State occupied seats in Congress, and when the insurgent force which held possession of the principal part of the territory was overcome, and the government recognized by the United States was transUpon this showing and argument it was held ferred from Alexandria to Richmond, it became by the district judge that the sentence of Cæsar in fact, what it was before in law, the governGriffin was absolutely null; that his imprisonment of the whole State. As such it was entitled, ment was in violation of the Constitution of the United States, and an order for his discharge from custody was made accordingly.

The general question to be determined on the appeal from this order is whether or not the sentence of the circuit court of Rockbridge county must be regarded as a nullity, because of the disability to hold any office under the State of Virginia imposed by the XIVth amendment on the person who in fact presided as judge in that

court. 曹

It may be properly borne in mind that the disqualification did not exist at the time that Sheffey became judge.

under the Constitution, to the same recognition and respect, in national relations, as the government of any other State.

It was under this government that Hugh W. Sheffey was, on the 22d February, 1866, duly appointed judge of the circuit court of Rockbridge county, and he was in the regular exercise of his functions as such when Griffin was tried and sentenced.

More than two years had elapsed, after the date of his appointment, when the ratification of the XIVth amendment by the requisite number of States was officially promulgated by the Secretary of State, on the 28th of July, 1868.

When the functionaries of the State govern- That amendment, in its 3d section, ordains ment existing in Virginia at the commencement that "no person shall be a senator or representof the late civil war took part, together with a ative in Congress, or elector of President and majority of the citizens of the State, in rebellion Vice President, or hold any office, civil or miliagainst the Government of the United States, tary, under the United States, or under any State, they ceased to constitute a State government for who, having previously taken an oath as a memthe State of Virginia which could be recognized ber of Congress, or as an officer of the United as such by the national Government. Their ex-States, or as a member of any State legislature, ample of hostility to the Union, however, was not or as an executive or judicial officer of any State, followed throughout the State. In many coun- to support the Constitution of the United States, ties the local authorities and majorities of the shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the | ment? What is the true scope and purpose of enemies thereof." the prohibition to hold office contained in the third section?

And it is admitted that the office held by Judge Sheffey, at the time of the trial of Griffin, was an office under the State of Virginia, and that he was one of the persons to whom the prohibition to hold office pronounced by the amendment ap. plied.

The question to be considered, therefore, is whether, upon a sound construction of the amendment, it must be regarded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once and absolutely of all official authority and power.

The proposition maintained in behalf of the petitioner is, that this prohibition instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts performed by them since that day null and void.

One of the counsel sought to vindicate this construction of the amendment upon the ground that the definitions of the verb "to hold," given by Webster, in his dictionary, are "to stop; to confine; to restrain from escape; to keep fast; to retain;" of which definitions the author says that to hold rarely or never signifies the first act of seizing or falling on, but the act of retain

One of the counsel for the petitioner suggested that the amendment must be construed with reference to the act of 1867, which extends the writing a thing when seized on or confined." of habeas corpus to a large class of cases in which the previous legislation did not allow it to be issued. And it is proper to say a few words of this suggestion here

The other counsel seemed to be embarrassed by the difficulties of this literal construction, and sought to establish a distinction between sentences in criminal cases and judgments and The judiciary act of 1789 expressly denied the decrees in civil cases. He admitted, indeed, that benefit of the writ of habeas corpus to prisoners the latter might be valid when made by a court not confined under or by color of the authority held by a judge within the prohibitive category of the United States. Under that act no person of the amendment, but insisted that the senconfined under State authority could have the tences of the same court in criminal cases must benefit of the writ Afterwards, in 1833 and be treated as nullities. The ground of the dis1842, the writ was extended to certain cases, spe- tinction, if we correctly apprehend the argument, cially described, of imprisonment under State was found in the circumstance that the act of process; and in 1867, by the act to which the 1867 provided a summary redress in the latter counsel referred, the writ was still further ex-class of cases; while in the former no summary tended to 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."

And the learned counsel was doubtless correct in maintaining that without the act of 1867 there would be no remedy for habeas corpus in the case of the petitioner, nor, indeed, in any case of imprisonment in violation of the Constitution of the United States, except in the possible case of an imprisonment not only within the provisions of this act, but also within the provisions of some one of the previous acts of 1789, 1833, and 1842.

remedy could be had, and great inconvenience would arise from regarding decrees and judgments as utterly null and without effect.

But this ground of distinction seems to the court unsubstantial. It rests upon the fallacy already commented on. The amendment makes no such distinction as is supposed. It does not deal with cases, but with persons. The prohibition is general. No person in the prohibitive category can hold office. It applies to all persons and to all offices, under the United States or any State. If upon a true construction it operates as a removal of a judge, and avoids all sentences in criminal cases pronounced by him after the promulgation of the amendment it must be held to have the effect of removing all judges and all officers, and annulling all their

But if, in saying that the amendment must be construed with reference to the act, the counsel meant to affirm that the existence of the act throws any light whatever upon the construc-official acts after that date tion of the amendment, the court is unable to perceive the force of his observation.

The literal construction, therefore, is the only one upon which the order of the learned district It is not pretended that imprisonment for judge, discharging the prisoner, can be sustained, shooting with intent to kill is unconstitutional, and was, indeed, as appears from his certificate, and it will hardly be affirmed that the act of the construction upon which the order was made. 1867 throws any light whatever upon the ques- He says expressly, "the right of the petitioner to tion, whether such imprisonment in any partic- his discharge appeared to me to rest solely on the ular case is unconstitutional. The case of un-incapacity of the said Hugh W Sheffey to act, constitutional imprisonment must be established by appropriate evidence. It cannot be inferred from the existence of a remedy for such a case. And. surely, no construction, otherwise unwarranted. can be put upon the amendment more than upon any other provision of the Constitution, to make a case of violation out of acts which, otherwise. must be regarded as not only constitutional, but right.

We come then to the question of construction. What was the intention of the people of the United States in adopting the XIVth amend

(that is, as judge,) and so to sentence the prisoner, under the XIVth amendment."

Was this a correct construction? In the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument, it is true, cannot prevail over plain words or clear reason. But, on the other hand, a construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of

In June, 1866, little more than a year later, the XIVth amendment was proposed, and was ratBut in all these States all offices had been ified in July, 1868. The only punitive section filled, before the ratification of the amendment, contained in it is the third, now under considerby citizens who at the time of the rati ication ation. It is not improbable that one of the were actively engaged in the performance of objects of this section was to provide for the setheir several duties. Very many, if not a ma-curity of the nation and of individuals by the

exclusion of a class of citizens from office; but it | any sentence of exclusion can be made to can hardly be doubted that its main purpose operate. To accomplish this ascertainment and was to inflict upon the leading and most influ- insure effective results, proceedings, evidence, ential characters who had been engaged in the decisions, and enforcement of decisions, more or rebellion, exclusion from office as a punishment less formal, are indispensable; and these can for the offence. only be provided for by Congress.

If there were no other grounds than these for seeking another interpretation of the amend-struction gives certain effect to the undoubted ment than that which we are asked to put upon intent of the amendment to insure the exclusion "it, we should feel ourselves bound to hold them from office of the designated class of persons, if sufficient. not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.