In re Heath

delivered' the opinion of the court.

By section five of the Judiciary Act of March 3, 1891, ( 26 Stat. 826 , c. 517,) 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 816 of the Devised 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 reexamined 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 Court 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 legislation 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one in terms or by relation, and when this is-done, the repeal of the former leaves the latter in force, unless also repealed expressly or by necessary implication.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

“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 have 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 de

We do not consider the weight of this decision, as authority, weakened by anything that fell from the court in Wales v. Whitney, 114 U. S. 564 . That was an appeal from the judgment of. the Supreme Court of the District denying an application for a writ of habeas corpus. Upon the judgment being announced, an original application was made to this court for the writ, but, as stated by Mr.'. Justice Miller in the opinion, “ on a suggestion from the court that an act of Congress, at its session just closed, had restored the appellate jurisdiction of this court in habeas corpus cases over decisions of the Circuit Courts, and that this necessarily included jurisdiction over similar judgments of the Supreme Court of the District of Columbia, counsel, on due consideration, withdrew their application,” and brought up the record on appeal; and it was added that section 846 of the Revised Statutes of the District “ justifies the exercise of our appellate jurisdiction in the present case.”

The act" of March 3, 1885, “ amending section seven hundred and sixty-four of the Revised Statutes,” ( 23 Stat. 437 ; Supp. R. S. 485, 2d ed.,) was referred to in the margin of Wales v. Whitney. The Revised Statutes of the United States and the Revised Statutes of the District were approved June 22, 1874, and section 764 of the former provided for an appeal to the Supreme Court “in the cases described in the last clause of the preceding section.” The words “ in the last clause ” operated as a limitation and by the amendatory act were stricken out. By the acts

The act of March 3, 1891, was passed to facilitate the prompt disposition of cases in this court and to relieve it from the oppressive burden of general litigation by the creation of the Circuit Courts of Appeals and the distribution of the appellate jurisdiction. By sections five and six, cases of conviction of a capital or otherwise infamous crime are to be taken directly to this court, and all other cases arising under the criminal laws to the Circuit Courts of Appeals. Sections thirteen and fifteen refer to appeals and writs of error from the decisions of the United States Court in the Indian Territory and .the judgments, orders and decrees of the Supreme Courts of the Territories. No mention is made of the Supreme Court of the District of Columbia, and we perceive no ground for holding that the judgments of that court in criminal cases were intended to be embraced by its provisions.-

The conclusion is that we have no jurisdiction to grant the writ applied for, and the. petition is, therefore,

Denied.