In re Heath

• Decision Date: 21 March 1892
• Citation: 36 L.Ed. 358,12 S.Ct. 615,144 U.S. 92
• Parties: In re HEATH
• Court: U.S. Supreme Court

144 U.S. 92

12 S.Ct. 615

36 L.Ed. 358

In re HEATH.

March 21, 1892.

STATEMENT BY MR. CHIEF JUSTICE FULLER.

Thomas H. Heath was convicted of manslaughter at a special criminal term of the supreme court of the District of Columbia, and sentenced to be confined in the penitentiary at Albany, N. Y. Upon appeal to the general term of that court the judgment was affirmed, whereupon he applied for a writ of error from this court.

The petition was originally presented to the chief justice, and, by order duly made, referred to the court in session for the consideration and determination of the question of jurisdiction arising thereon.

John Lyon, for petitioner.

Asst. Atty. Gen. Maury, for District of Columbia.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

By section 5 of the judiciary act of March 3, 1891, (26 St. p. 826,) it was provided that appeals and writs of error might be taken 'from the district courts or from the existing circuit courts' directly to this court 'in cases of conviction of a capital or otherwise infamous crime;' and, although this case is not embraced, in terms, within the appellate jurisdiction conferred by the provision, yet it is contended that it falls within it, when taken in connection with section 846 of the Revised Statutes of the District of Columbia. That section is as follows: 'Any final judgment, order, or decree of the supreme court of the District may be re-examined and reversed or affirmed in the supreme court of the United States, upon writ of error or appeal, in the same cases and in like manner as provided by law in reference to the final judgments, orders, and decrees of the circuit courts of the United States.'

The argument is that the phrase, 'as provided by law,' should be construed as if it read, 'as is or has been or may be provided by law.' But, when we consider the general rule that the affirmative description of the cases in which the jurisdiction may be exercised implies a negative on the exercise of such power in other cases, it will be seen that to give to this local jegislation, extending the appellate jurisdiction of this court to the District of Columbia, the construction contended for, so as to make it include all subsequent legislation touching our jurisdiction over circuit courts of the United States, is quite inadmissible.

Prior acts may be incorporated in a subsequent one in terms or by relation, and when this is done the repeal of the former leaves the latter in force, unless also repealed expressly or by necessary implication; and the adoption in a local law of the provisions of a general law does not carry with it the adoption of changes afterwards made in the general law. This was so ruled in Kendall v. U.S., 12 Pet. 524, 625. One of the questions there was whether the then circuit court of this District had power to issue the writ of mandamus to a public officer. That court was established by the act of congress of February 27, 1801, (2 St. p. 105,) which provided by section 3, 'that there shall be a court in said District, which shall be called the 'Circuit Court of the District of Columbia,' and the said court and the judges thereof shall have all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States.' At the time this law went into effect the powers of the circuit courts of the United States were prescribed by the act of February 13, 1801, (2 St. p. 89,) which act was repealed by the act of March 8, 1802, (2 St. p. 132.) This court held that the circuit court of the District possessed the powers vested under the act of February 13, 1801, notwithstanding its repeal; and Mr. Justice THOMPSON, delivering the opinion of the court, said:

'It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference, British statutes; and this has been the course of legislation by congress in many instances where state practice and state process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption, and no subsequent legislation has ever been supposed to affect it; and such must necessarily be the effect and operation of such adoption. No other rule would furnish any certainty as to what was the law, and would be adopting prospectively all changes that might be made in the law. And this has been the light in which this court has viewed such legislation. In the case of Cathcart v. Robinson, 5 Pet. 280, the court, in speaking of the adoption of certain English statutes, say, by adopting them, they become our own, as entirely as if they had been enacted by the legislature. We are then to construe this third section of the act of 27th of February, 1801, as if the eleventh section of the act of 13th of February, 1801, had been incorporated at full length; and by this section it is declared that the circuit courts shall have cognizance of all cases in law or equity arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority, which are the very words of the constitution, and which is, of course, a delegation of the whole judicial power in cases arising under the...