Ex parte McCardle

Citation19 L.Ed. 264,74 U.S. 506,7 Wall. 506
Decision Date01 December 1868
CourtUnited States Supreme Court

74 U.S. 506
19 L.Ed. 264
7 Wall. 506
December Term, 1868

Page 507

APPEAL from the Circuit Court for the Southern District of Mississippi.

The case was this:

The Constitution of the United States ordains as follows:

'§ 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'

'§ 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States,' &c.

And in these last cases the Constitution ordains that,

'The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.'

With these constitutional provisions in existence, Congress, on the 5th February, 1867, by 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdiction, in addition to the authority already conferred by law, should have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States. And that, from the final decision of any judge, justice, or court inferior to the Circuit Court, appeal might be taken to the Circuit Court of the United States for the district in which the cause was heard, and from the judgment of the said Circuit Court to the Supreme Court of the United States.

This statute being in force, one McCardle, alleging unlawful restraint by military force, preferred a petition in the court below, for the writ of habeas corpus.

Page 508

The writ was issued, and a return was made by the military commander, admitting the restraint, but denying that it was unlawful.

It appeared that the petitioner was not in the military service of the United States, but was held in custody by military authority for trial before a military commission, upon charges founded upon the publication of articles alleged to be incendiary and libellous, in a newspaper of which he was editor. The custody was alleged to be under the authority of certain acts of Congress.

Upon the hearing, the petitioner was remanded to the military custody; but, upon his prayer, an appeal was allowed him to this court, and upon filing the usual appealbond, for costs, he was admitted to bail upon recognizance, with sureties, conditioned for his future appearance in the Circuit Court, to abide by and perform the final judgment of this court. The appeal was taken under the above-mentioned act of February 5, 1867.

A motion to dismiss this appeal was made at the last term, and, after argument, was denied.1

Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very thoroughly and ably upon the merits, and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to be made, an act was passed by Congress,2 returned with objections by the President, and, on the 27th March, repassed by the constitutional majority, the second section of which was as follows:

'And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.'-

Page 509

The attention of the court was directed to this statute at the last term, but counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here, by his duties in the Court of Impeachment, the cause was continued under advisement. Argument was now heard upon the effect of the repealing act.

Mr. Sharkey, for the appellant:

The prisoner alleged an illegal imprisonment. The imprisonment was justified under certain acts of Congress. The question then presents a case arising under 'the laws of the United States;' and by the very words of the Constitution the judicial power of the United States extends to it. By words of the Constitution, equally plain, that judicial power is vested in one Supreme Court. This court, then, has its jurisdiction directly from the Constitution, nor from Congress. The jurisdiction being vested by the Constitution alone, Congress cannot abridge or take it away. The argument which would look to Congressional legislation as a necessity to enable this court to exercise 'the judicial power' (any and every judicial power) 'of the United States,' renders a power, expressly given by the Constitution, liable to be made of no effect by the inaction of Congress. Suppose that Congress never made any exceptions or any regulations in the matter. What, under a supposition that Congress must define when, and where, and how, the Supreme Court shall exercise it, becomes of this 'judicial power of the United States,' so expressly, by the Constitution, given to this court? It would cease to exist. But this court is coexistent and co-ordinate with Congress, and must be able to exercise the whole judicial power of the United States, though Congress passed no act on the subject. The Judiciary Act of 1789 has been frequently changed. Suppose it were repealed. Would the court lose, wholly or at all, the power to pass on every case to which the judicial power of the United States extended? This act of March 27th, 1868, does take away the whole appellate power of

Page 510

this court in cases of habeas corpus. Can such results be produced? We submit that they cannot, and this court, then, we further submit, may still go on and pronounce judgment on the merits, as it would have done, had not the act of 27th March been passed.

But however these general positions may be, the case may be rested on more special grounds. This case had been argued in this court, fully. Passing then from the domain of the bar, it was delivered into the sacred hands of the judges; and was in the custody of the court. For aught that was known by Congress, it was passed upon the decided by them. Then comes, on the 27th of March, this act of Congress. Its language is general, but, as was universally known, its purpose was specific. If Congress had...

To continue reading

Request your trial
1101 cases
  • Gaede v. U.S. Forest Serv.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868). The requirement that jurisdiction be established as a threshold matter "spring[s] from the nature and limits of the j......
  • State v. Thayer
    • United States
    • United States State Supreme Court of Missouri
    • June 19, 1900
    ...Electric Co. v. Chicago Waifs' Mission and Training School, 41 Ill. App. 112; Hanna v. Railway Co., 41 Ill. App. 116; Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 264; Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114. Being a privilege, and not a vested right, the privilege of an appeal pertains to......
  • Butcher v. Wendt
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 22, 2020
    ...is properly within our subject matter jurisdiction."). "Without jurisdiction the court cannot proceed at all." Ex parte McCardle , 74 U.S. 7 Wall. 506, 514, 19 L.Ed. 264 (1868).AIn Steel Co. , the Supreme Court explained that "[t]he statutory and (especially) constitutional elements of juri......
  • Miller v. Pacific Shore Funding, No. 02-CV-569.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • May 17, 2002
    ...and just as issues of fact it must be decided after and not before the court has assumed jurisdiction...."); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868) ("Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court i......
  • Request a trial to view additional results
1 firm's commentaries
10 books & journal articles
  • Appealability of State Action Immunity: Navigating Federal Courts past the Crossroads Where Parker Immunity Meets the Collateral Order Doctrine.
    • United States
    • Suffolk University Law Review Vol. 52 No. 1, January 2019
    • January 1, 2019
    ...Court has also held that Congress has the authority to restrict even the Supreme Court's appellate jurisdiction. See Ex parte McCardle, 74 U.S. 506, 514 (1868) (dismissing appeal from habeas denial for lack of jurisdiction where Congress repealed statute conferring (25.) See Judiciary Act o......
  • Toward the decentralization of criminal procedure: state constitutional law and selective disincorporation.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 1, September 1996
    • September 22, 1996
    ...tried this only once, during the Civil War period, when it eliminated jurisdiction over habeas corpus petitions. Ex parse McCardle, 74 U.S. 506 (1869) (upheld). Also, although Article III implies that Congress could abolish lower federal courts altogether, it may not reduce judicial salarie......
  • Table of Cases
    • United States
    • The Path of Constitutional Law Suplemmentary Materials
    • January 1, 2007
    ...216, 29 N.E. 517 (Mass. 1892), 1472 McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931), 108 McCardle, Ex parte, 74 U.S. 506, 19 L.Ed. 264 (1868), McClesky v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), 645, 1116 McConnell v. Federal Election Comm'n, 540 ......
    • United States
    • Albany Law Review Vol. 84 No. 2, June 2021
    • June 22, 2021
    ...McKane v. Durston, 153 U.S. 684, 687-88 (1894))); People v. Dunn, 52 N.Y.S. 968, 972 (N.Y. App. Div. 1898) (citing Ex parte McCardle, 74 U.S. 506, 513 (1868)); Jones v. Barnes, 463 U.S. 745, 751 (1983) (first citing Griffin v. Illinois, 351 U.S. 12, 18 (1956)); and then citing Douglas v. Ca......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT