Ex Parte McCardle

The citation for this case is 73 US [6 Wal.] 318, followed by 74 US [7 Wal.] 504. In Mississippi in 1867, by order of Maj. Gen. E. O. C. Ord and Maj. Gen. Alvin C. Gillem, William H. McCardle, a newspaper editor in Vicksburg, Mississippi, was arrested on charge of “publishing libelous editorials that incited insurrection.” [Donald G. Nieman, McCardle, Ex parte,” in Kermit L. Hall, ed., The Oxford Guide to United States Supreme Court Decisions, p. 180] They wanted to try him by military commission, but McCardle believed Ex Parte Milligan precluded such a trial and sought a writ of habeas corpus. The Circuit Court issued a writ of habeas corpus on 12 Nov 1867. “In obedience to the writ, Major General Gillem, on the 21st of November, made a return of the cause of imprisonment, from which it appeared that McCardle had been arrested and was held in custody for trial by a military commission, under the alleged authority of the Reconstruction Acts, for charges, (1) of disturbance of the public peace; (2) of inciting to insurrection, disorder, and violence; (3) of libel; and (4) of impeding reconstruction. On making this return, Major General Gillem surrendered McCardle to the court, and he was ordered into the custody of the marshal. Subsequently, on the 25th of November, 1867, the circuit court adjudged that the petitioner be remanded to the custody of Major General Gillem, from which judgment the petitioner prayed an appeal to this Court, which was allowed, and a bond for costs given according to the order of the court. On the same 25th of November, on the motion of the petitioner, he was admitted to bail on his own recognizance, with sufficient sureties, in the sum of one thousand dollars, conditioned for his appearance to abide by and perform the final judgment of this Court. The legal consequence of this admission to bail was the discharge of the prisoner, both from the custody of the marshal and of Major General Gillem, with a continuing liability, however, under the recognizance, to be returned, first to the civil court, and then to military custody, in case of affirmance by this Court of the judgment of the circuit court.” [73 US 318, 320-321]

The government challenged the Court’s jurisdiction to hear an appeal, and Chief Justice Chase delivered the opinion for the first case, saying, “The ground assigned for the motion is want of jurisdiction, in this Court, of appeals from the judgments of inferior courts in cases of habeas corpus.” [73 US 318, 324] After going through the relevant legislation in detail, Chase said, “We entertain no doubt, therefore, that an appeal lies to this Court from the judgment of the circuit court in the case before us. Another objection to the jurisdiction of this Court on appeal was drawn from the clause of the first section, which declares that the jurisdiction defined by it is ‘in addition to the authority already conferred by law.’ This objection seems to be an objection to the jurisdiction of the circuit court over the cause, rather than to the jurisdiction of this Court on appeal. The latter jurisdiction, as has just been shown, is coextensive with the former. Every question of substance which the circuit court could decide upon the return of the habeas corpus, including the question of its own jurisdiction, may be revised here on appeal from its final judgment. … The same observations apply to the argument of counsel that the acts of McCardle constituted a military offense, for which he might be tried under the Reconstruction Acts by military commission. This argument, if intended to convince us that the circuit court had no jurisdiction of the cause, applies to the main question which might arise upon the hearing of the appeal. If intended to convince us that this Court has no appellate jurisdiction of the cause, it is only necessary to refer to the considerations already adduced on this point. We are satisfied, as we have already said, that we have such jurisdiction under the act of 1867, and the motion to dismiss must therefore be Denied.” [73 US 318, 326-327]

The danger for Republicans here was the Supreme Court could potentially rule on the constitutionality of the Reconstruction Acts. “Republican leaders in Congress feared that the Court might strike down the act and destroy the party’s Reconstruction program. Consequently, in March 1868, after the Court had heard arguments but before it had rendered a decision, Congress struck at the Court’s jurisdiction by repealing the provision of the Habeas Corpus Act allowing appeals to the Supreme Court. Although Justices Robert C. Grier and Stephen J. Field wished to decide the case before Congress enacted the repeal, the majority rejected such a course. With the end of the Court’s term approaching, the justices agreed to hold the case over until the next term. When the Court issued its opinion, it bowed to Congress, dismissing the case for want of jurisdiction without passing judgment on the Reconstruction Act.” [Donald G. Nieman, “McCardle, Ex parte,” Op. Cit.]

As Chief Justice Chase wrote, “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 by the Constitution. But it is conferred ‘with such exceptions and under such regulations as Congress shall make.’ ” [74 US 506, 512-513] According to Chase, “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.” [74 US 506, 514]

“Although sometimes viewed as an example of the Reconstruction Court’s supineness, McCardle actually suggests its resliiency. In concluding his opinion, Chase pointedly noted that while Congress had repealed the provision of the Habeas Corpus Act on which McCardle had relied, this did not affect the jurisdiction that the Court possessed under other statutes. This was a thinly veiled reference to the Judiciary Act of 1789, which authorized the Court to issue writs of habeas corpus to persons held under federal authority.” [Donald G. Nieman, “McCardle, Ex parte,” Op. Cit., p. 181]

Ex Parte McCardle
Ex Parte McCardle
Student of the American Civil War
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