U.S. Supreme Court
EX PARTE MCCARDLE, 74 U.S. 506 (Wall.)
December Term, 1868
[74 U.S. 506, 507] APPEAL from the Circuit Court for the Southern District of
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
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. [74 U.S. 506, 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.
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,
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.' [74 U.S. 506, 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
[74 U.S. 506, 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 specifically enacted 'that the
Supreme Court of the United States shall never publicly give judgment in the
case of McCardle, already argued, and on which we anticipate that it will soon
deliver judgment, contrary to the views of the majority in Congress, of what it
ought to decide,' its purpose to interfere specifically with and prevent the
judgment in this very case would not have been more real or, as a fact, more
Now, can Congress thus interfere with cases on which this high tribunal has
passed, or is passing, judgment? Is not legislation like this an exercise by
the Congress of judicial power? Lanier v. Gallatas is much in point. There a motion was made to
dismiss an appeal, because by law the return day was the 4th Monday in
February, while in the case before the court the transcript had been filed
before that time. On the 15th of March, and while the case was under
advisement, the legislature passed an act making the 20th of March a return day
for the case; and a motion was now made to reinstate the case and hear it. The
'The case had been submitted to us before the passage of that
act, and was beyond the legislative control. Our respect for the
[74 U.S. 506, 511] General Assembly
and Executive forbids the inference that they intended to instruct this court
what to do or not to do whilst passing on the legal rights of parties in a
special case already under advisement. The utmost that we can suppose is,'
In De Chastellux v. Fairchild, the
legislature of Pennsylvania directed that a new trial should be granted in a
case already decided. Gibson, C. J., in behalf of the court, resented the
interference strongly. He said:
'It has become the duty of the court to temporize no longer. The
power to order new trials is judicial. But the power of the legislature is not
In The State v. Fleming, where the
legislature of Tennessee directed two persons under indictment to be
discharged, the Supreme Court of the State, declaring that 'the legislature has
no power to interfere with the administration of justice in the courts,'
treated the direction as void. In Lewis v. Webb, the Supreme Court of Maine declare that the
legislature cannot dispense with any general law in favor of a particular case.
Messrs L. Trumbull and M. H. Carpenter, contra:
1. The Constitution gives to this court appellate jurisdiction in any case
like the present one was, only with such exceptions and under such regulations
as Congress makes.
2. It is clear, then, that this court had no jurisdiction of this proceeding
– an appeal from the Circuit Court – except under the act of February
5th, 1867; and so this court held on the motion to dismiss made by us at the
3. The act conferring the jurisdiction having been repealed, the
jurisdiction ceased; and the court had thereafter no authority to pronounce any
opinion or render any judgment in this cause. No court can do any act in any
case, without jurisdiction of the subject-matter. It can make no difference at
what point, in the progress of a cause, the [74
U.S. 506, 512] jurisdiction ceases. After it has ceased, no judicial
act can be performed. In Insurance Company v. Ritchie, the Chief Justice, delivering the opinion of the
'It is clear, that when the jurisdiction of a cause depends upon
the statute, the repeal of the statute takes away the jurisdiction.'
And in that case the repealing statute, which was passed during the pendency
of the cause, was held to deprive the court of all further jurisdiction. The
causes which were pending in this court against States, were all dismissed by
the amendment of the Constitution denying the jurisdiction; and no further
proceedings were had in those causes.
In Norris v. Crocker, this court
affirmed and acted upon the same principle; and the exhaustive argument of the
present Chief Justice, then at the bar, reported in that case, and the numerous
authorities there cited, render any further argument or citation of cases
4. The assumption that the act of March, 1868, was aimed specially at this
case, is gratuitous and unwarrantable. Certainly the language of the act
embraces all cases in all time; and its effect is just as broad as its
The question of merits cannot now, therefore, be passed upon. The case must
The CHIEFJUSTICE delivered the
opinion of the court.
The first question necessarily is that of jurisdiction; for, if the act of
March, 1868, takes away the jurisdiction defined by the act of February, 1867,
it is useless, if not improper, to enter into any discussion of other
It is quite true, as was argued by the counsel for the petitioner, that the
appellate jurisdiction of this court is not derived from acts of Congress. It
is, strictly speaking, conferred [74 U.S. 506,
513] by the Constitution. But it is conferred 'with such exceptions
and under such regulations as Congress shall make.'
It is unnecessary to consider whether, if Congress had made no exceptions
and no regulations, this court might not have exercised general appellate
jurisdiction under rules prescribed by itself. For among the earliest acts of
the first Congress, at its first session, was the act of September 24th, 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
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 v. The United States, particularly, the whole matter was carefully
examined, and the court held, that while 'the appellate powers of this court
are not given by the judicial act, but are given by the Constitution,' they
are, nevertheless, 'limited and regulated by that act, and by such other 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
The exception to appellate jurisdiction in the case before us, however, is
not an inference from the affirmation of other [74 U.S. 506, 514] 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
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
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 the exercise of judicial power by the legislature, or of legislative
interference with courts in the exercising of continuing
On the other hand, the general rule, supported by the best elementary
writers, is, that 'when an act of the
legislature is repealed, it must be considered, except as to transactions past
and closed, as if it never existed.' And the effect of repealing acts upon
suits under acts repealed, has been determined by the adjudications of this
court. The subject was fully considered in Norris v. Crecker, and more recently in Insurance Company v.
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. [74
U.S. 506, 515] 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 of
1867. It does not affect the jurisdiction which was previously
The appeal of the petitioner in this case must be
DISMISSED FOR WANT OF JURISDICTION.
 See Ex parte McCardle, 6 Wallace, 318.
 Act of March 27, 1868, 15 Stat. at Large, 44.
 13 Louisiana Annual, 175.
 15 Pennsylvania State, 18.
 7 Humphreys, 152.
 3 Greenleaf, 326.
 6 Wallace, 318.
 5 Wallace, 544.
 Hollingsworth v. Virginia, 3 Dallas, 378.
 13 Howard, 429.
 Rex v. Justices of London, 3 Burrow, 1456; Yeaton v.
United States, 5 Cranch, 281; Schooner Rachel v. United States, 6 Id. 329;
United States v. Preston, 3 Peters, 57; Com. v. Marshall, 11 Pickering, 350.
 6 Cranch, 312; Wiscart v. Dauchy, 3 Dallas, 321.
 Lanier v. Gallatas, 13 Louisiana Annual, 175; De
Chastellux v. Fairchild, 15 Pennsylvania State, 18; The State v. Fleming, 7
Humphreys, 152, Lewis v. Webb, 3 Greenleaf, 326.
 Dwarris on Statutes, 538.
 13 Howard, 429.
 5 Wallace, 541.
 Ex parte McCardle, 6 Wallace, 324.
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