U.S. Supreme Court 

  EX PARTE MCCARDLE, 74 U.S. 506 (Wall.) (1868)

                  December Term, 1868

[74 U.S. 506, 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. [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.[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.' [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 universally known.

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[3] 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 court say:

     '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,'
     &c.;

In De Chastellux v. Fairchild,[4] 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 judicial.'

In The State v. Fleming,[5] 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,[6] 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 last 
term.[7]

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,[8] the Chief Justice, delivering the 
opinion of the court, says:

     '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.[9] In Norris v. Crocker,[10] 
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 unnecessary.[11]

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 
language.

The question of merits cannot now, therefore, be passed upon. The
case must fall.

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 
questions.

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 its jurisdiction.

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,[12] 
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 it.

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 
words.

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 principle.

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 
jurisdiction.[13]

On the other hand, the general rule, supported by the best elementary 
writers,[14] 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,[15] and more recently in Insurance 
Company v. Ritchie.[16] 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 
exercised.[17]

The appeal of the petitioner in this case must be

DISMISSED FOR WANT OF JURISDICTION.

Footnotes 

[1] See Ex parte McCardle, 6 Wallace, 318.

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

[3] 13 Louisiana Annual, 175.

[4] 15 Pennsylvania State, 18.

[5] 7 Humphreys, 152.

[6] 3 Greenleaf, 326.

[7] 6 Wallace, 318.

[8] 5 Wallace, 544.

[9] Hollingsworth v. Virginia, 3 Dallas, 378. 

[10] 13 Howard, 429.

[11] 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. 

[12] 6 Cranch, 312; Wiscart v. Dauchy, 3 Dallas, 321.

[13] 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.

[14] Dwarris on Statutes, 538.

[15] 13 Howard, 429.

[16] 5 Wallace, 541.

[17] Ex parte McCardle, 6 Wallace, 324.


