Ex parte McCardle, 7 Wallace (74 U.S.) 506; 19 L. Ed. 264 (1869)

Ex parte McCardle, 7 Wallace (74 U.S.) 506; 19 L. Ed. 264 (1869)

Facts—The Constitution assigns appellate jurisdiction to the Supreme Court with “such exceptions and under such regulations, as the Congress shall make.” In February 1867 Congress passed an act granting the Supreme Court appellate jurisdiction in the matter of writs of habeas corpus in cases where persons were restrained in violation of the Constitution, or of any treaty or law of the United States. The military held McCardle in custody for trial before a military commission for the publication of incendiary and libelous articles in a newspaper that he edited. Before the judges acted upon his appeal, Congress repealed the act providing for the appellate jurisdiction.

Question—Does the Court have appellate jurisdiction in a case after the act pertaining to such jurisdiction has been repealed?


ReasonsC.J. Chase (8–0). The Constitution grants appellate jurisdiction to the Court with exceptions and regulations by Congress. This does not imply that Congress grants appellate jurisdiction, but that it can make exceptions to that power. Therefore, the act of 1868 repealing the act of 1867 deprived the Court of jurisdiction in this case. When an act is repealed, it must be considered, except as to transactions past and closed, as if it never existed. The Court then had no choice but to decline jurisdiction of this case. This does not imply that the entire appellate jurisdiction of this Court over cases of habeas corpus was denied, but only appeals from the circuit courts under the act of 1867.

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