# Ex parte McCardle (74 U.S. 506)/Opinion of the Court

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United States Supreme Court
74 U.S. 506
Ex parte McCardle
'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, 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 last term.
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 The act conferring the jurisdiction having been repealed, the jurisdiction ceased; and the court had thereafter no authority to pronounce any opinion or render any judgment in this cause.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 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 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. 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 unnecessary.
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 CHIEF JUSTICE 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 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, 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 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.
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.
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.
The appeal of the petitioner in this case must be
DISMISSED FOR WANT OF JURISDICTION.

## Notes

* ↑ 7 Humphreys, 152.
* ↑ 3 Greenleaf, 326.
* ↑ 6 Wallace, 318.
* ↑ 5 Wallace, 544.
* ↑ Hollings worth 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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