U.S. Supreme Court

Ex parte McCardle, 74 U.S. 7 Wall. 506506 (1868)Ex parte McCardle

74 U.S. (7 Wall.) 506

APPEAL FROM THE CIRCUIT COURT FORTHE

SOUTHERN DISTRICT OFMISSISSIPPI

Syllabus

1. The appellate jurisdiction of this court is conferred by theConstitution, and not derived from acts of Congress, but isconferred "with such exceptions, and under such regulations, asCongress may make," and, therefore, acts of Congress affirming suchjurisdiction have always been construed as excepting from it allcases not expressly described and provided for.

2. When, therefore, Congress enacts that this court shall haveappellate jurisdiction over final decisions of the Circuit Courtsin certain cases, the act operates as a negation or exception ofsuch jurisdiction in other cases, and the repeal of the actnecessarily negatives jurisdiction under it of these casesalso.

3. The repeal of such an act, pending an appeal provided for byit, is not an exercise of judicial power by the legislature, nomatter whether the repeal takes effect before or after argument ofthe appeal.

4. The act of 27th March, 1868, repealing that provision of theact of 5th of February, 1867, to amend the Judicial Act of 1789,which authorized appeals to this court from the decisions of theCircuit Courts in cases of habeas corpus, does not except from theappellate jurisdiction of this

Page 74 U. S. 507

court any cases but appeals under the act of 1867. It does notaffect the appellate jurisdiction which was previously exercised incases of habeas corpus.

The case was this:

The Constitution of the United States ordains as follows:

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

"§ 2. The judicial power shall extend to all cases in law orequity arisingunder this Constitution, the laws of the UnitedStates,"

&c.

And in these last cases, the Constitution ordains that,

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

With these constitutional provisions in existence, Congress, onthe 5th February, 1867, by "An act to amend an act to establish thejudicial courts of the United States, approved September 24, 1789,"provided that the several courts of the United States, and theseveral justices and judges of such courts, within their respectivejurisdiction, in addition to the authority already conferred bylaw, should have power to grant writs of habeas corpus in all caseswhere any person may be restrained of his or her liberty inviolation of the Constitution, or of any treaty or law of theUnited States. And that, from the final decision of any judge,justice, or court inferior to the Circuit Court, appeal might betaken to the Circuit Court of the United States for the district inwhich the cause was heard, andfrom the judgment of the saidCircuit Court to the Supreme Court of the United States.

This statute being in force, one McCardle, alleging unlawfulrestraint by military force, preferred a petition in the courtbelow, for the writ of habeas corpus.

Page 74 U. S. 508

The writ was issued, and a return was made by the militarycommander admitting the restraint, but denying that it wasunlawful.

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

Upon the hearing, the petitioner was remanded to the militarycustody, but, upon his prayer, an appeal was allowed him to thiscourt, and upon filing the usual appeal bond, for costs, he wasadmitted to bail upon recognizance, with sureties conditioned forhis future appearance in the Circuit Court, to abide by and performthe final judgment of this court. The appeal was taken under theabove-mentioned act of February 5, 1867.

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

Subsequently, on the 2d, 3d, 4th, and 9th March, the case wasargued very thoroughly and ably upon the merits, and was takenunder advisement. While it was thus held, and before conference inregard to the decision proper to be made, an act was passed byCongress, [Footnote 2] returnedwith objections by the President, and, on the 27th March, repassedby the constitutional majority, the second section of which was asfollows:

"And be it further enacted, That so much of the actapproved February 5, 1867, entitled 'An act to amend an act toestablish the judicial courts of the United States, approvedSeptember 24, 1789,' as authorized an appeal from the judgment ofthe Circuit Court to the Supreme Court of the United States, or theexercise of any such jurisdiction by said Supreme Court, on appealswhich have been, or may hereafter be taken, be, and the same ishereby repealed. "

Page 74 U. S. 509

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

Page 74 U. S. 512

THE CHIEF JUSTICE delivered the opinion of the court.

The first question necessarily is that of jurisdiction, for ifthe act of March, 1868, takes away the jurisdiction defined by theact of February, 1867, it is useless, if not improper, to enterinto any discussion of other questions.

It is quite true, as was argued by the counsel for thepetitioner, that the appellate jurisdiction of this court is notderived from acts of Congress. It is, strictly speaking,conferred

Page 74 U. S. 513

by the Constitution. But it is conferred "with such exceptionsand under such regulations as Congress shall make."

It is unnecessary to consider whether, if Congress had made noexceptions and no regulations, this court might not have exercisedgeneral appellate jurisdiction under rules prescribed by itself.For among the earliest acts of the first Congress, at its firstsession, was the act of September 24th, 1789, to establish thejudicial courts of the United States. That act provided for theorganization of this court, and prescribed regulations for theexercise of its jurisdiction.

The source of that jurisdiction, and the limitations of it bythe Constitution and by statute, have been on several occasionssubjects of consideration here. In the case ofDurousseau v.The United States [Footnote3] particularly, the whole matter was carefully examined, andthe court held that, while "the appellate powers of this court arenot given by the judicial act, but are given by the Constitution,"they are, nevertheless, "limited and regulated by that act, and bysuch other acts as have been passed on the subject." The court saidfurther that the judicial act was an exercise of the power given bythe Constitution to Congress "of making exceptions to the appellatejurisdiction of the Supreme Court." "They have describedaffirmatively," said the court,

"its jurisdiction, and this affirmative description has beenunderstood to imply a negation of the exercise of such appellatepower as is not comprehended within it."

The principle that the affirmation of appellate jurisdictionimplies the negation of all such jurisdiction not affirmed havingbeen thus established, it was an almost necessary consequence thatacts of Congress, providing for the exercise of jurisdiction,should come to be spoken of as acts granting jurisdiction, and notas 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

Page 74 U. S. 514

appellate jurisdiction. It is made in terms. The provision ofthe act of 1867 affirming the appellate jurisdiction of this courtin cases of habeas corpus is expressly repealed. It is hardlypossible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of thelegislature. We can only examine into its power under theConstitution, and the power to make exceptions to the appellatejurisdiction of this court is given by express words.

What, then, is the effect of the repealing act upon the casebefore us? We cannot doubt as to this. Without jurisdiction, thecourt cannot proceed at all in any cause. Jurisdiction is power todeclare the law, and, when it ceases to exist, the only functionremaining to the court is that of announcing the fact anddismissing the cause. And this is not less clear upon authoritythan upon principle.

Several cases were cited by the counsel for the petitioner insupport of the position that jurisdiction of this case is notaffected by the repealing act. But none of them, in our judgment,affords any support to it. They are all cases of the exercise ofjudicial power by the legislature, or of legislative interferencewith courts in the exercising of continuing jurisdiction. [Footnote 4]

On the other hand, the general rule, supported by the bestelementary writers, [Footnote5] is that, "when an act of the legislature is repealed, itmust be considered, except as to transactions past and closed, asif it never existed." And the effect of repealing acts upon suitsunder acts repealed has been determined by the adjudications ofthis court. The subject was fully considered inNorris v.Crecker, [Footnote 6] andmore recently inInsurance Company v. Ritchie. [Footnote 7] In both of these cases, itwas held that no judgment could be rendered in a suit after therepeal of the act under which it was brought and prosecuted.

Page 74 U. S. 515

It is quite clear, therefore, that this court cannot proceed topronounce judgment in this case, for it has no longer jurisdictionof the appeal, and judicial duty is not less fitly performed bydeclining ungranted jurisdiction than in exercising firmly thatwhich the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to therepealing act in question, that the whole appellate power of thecourt, in cases of habeas corpus, is denied. But this is an error.The act of 1868 does not except from that jurisdiction any casesbut appeals from Circuit Courts under the act of 1867. It does notaffect the jurisdiction which was previously exercised. [Footnote 8]

The appeal of the petitioner in this case must be

DISMISSED FOR WANT OF JURISDICTION.

[Footnote 1]

SeeEx parteMcCardle, 6 Wallace 318.

[Footnote 2]

Act of March 27, 1868, 15 Stat. at Large 44.

[Footnote 3]

10 U. S. 6Cranch 312;Wiscart v.Dauchy, 3 Dallas 321.

[Footnote 4]

Lanier v. Gallatas, 13 Louisiana Annual 175;DeChastellux v. Fairchild, 15 Pennsylvania State 18;TheState v. Fleming, 7 Humphreys 152;Lewis v. Webb, 3Greenleaf 326.

[Footnote 5]

Dwarris on Statutes 538.

[Footnote 6]

54 U. S. 13 Howard429.

[Footnote 7]

72 U. S. 5 Wallace541.

[Footnote 8]

Ex parteMcCardle, 6 Wallace 324.