# Ex parte McCardle (73 U.S. 318)

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Ex parte McCardle, 74 U.S. 506 (1869), is a United States Supreme Court decision that examines the extent of the jurisdiction of the Supreme Court to review decisions of lower courts under federal statutory law. Warning: template has been deprecated.
United States Supreme Court
73 U.S. 318
Ex parte McCardle
MOTION to dismiss an appeal from the Circuit Court for the District of Mississippi; the case being thus:The Judiciary Act of 1789, enacts:
'That either of the justices of the Supreme Court as well as judges of the District Courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment; Provided, That writs of habeas corpus, shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.'
A subsequent act, one of February 5th, 1867, to amend the Judiciary Act of 1789, enacts:
'SEC. 1. 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, shall 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.'
After providing for the awarding, direction, serving and return of the writ, and for the hearing, &c., the act proceeds:
'From the final decision of any judge, justice, or court inferior to the Circuit Court, appeal may be taken to the Circuit Court of the United States for the district in which said cause is heard, and from the judgment of said Circuit Court to the Supreme Court of the United States.'
'And pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against such person so alleged to be restrained of his or her liberty in any State court, or under the authority of any State, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void.'The act further declares:
'SEC. 2. . . . This act shall not apply to any person who is or may be held in the custody of the military authorities of the United States, charged with any military offence.'
In this state of statutory law, a writ of habeas corpus was issued from the Circuit Court of the United States for the District of Mississippi, on the 12th of November, 1867, upon the petition of William H. McCardle, directed to Alvin C. Gillem and E. O. C. Ord, requiring them to produce the body of the petitioner, together with the cause of his imprisonment, and to abide the order of the court in respect to the legality of such imprisonment.
At the time of issuing the writ, E. O. C. Ord was brevet Major-General commanding the Fourth Military District, and Alvin C. Gillem was brevet Major-General commanding the sub-district of Mississippi, under the Reconstruction Acts of Congress.
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 h e 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.
The ground assigned for the motion to dismiss the appeal was a want of jurisdiction in this court to take cognizance of it.
Mr. Trumbull (with whom was Mr. Hughes), in support of the motion:
1. Unless Congress have given appellate jurisdiction to this court, it will be conceded that none can exist. Under the Judiciary Act of 1789 assuredly no appeal lies, for none was given then or since. Until now, eighty years since the government was formed, no such thing as an appeal or writ of error in a case like this has been known.
To determine whether the appeal lies, it is first necessary to ascertain whether the Circuit Court of Mississippi took jurisdiction of the case under the act of 1789, or 1867; if under the former, then, as we have said, and as will be admitted, no appeal lies.
Under the act of 1789, power was given to issue writs of habeas corpus for the relief of persons in custody 'under or by color of the authority of the United States.' McCardle was in prison exactly under such authority. Here, then, is a case coming within the very terms of the act of 1789, authorizing the issuing of the writ of habeas corpus, and not excepted from its provisions by the proviso. Had the act of February 5th, 1867, never been passed, the Circuit Court of Mississippi had authority to issue the writ of habeas corpus in this case.
On the other hand the act of 1867 does not properly apply to this case. What was the purpose of that act? We all know. It is matter of legislative, nay, of public history. It was to relieve persons from a deprivation of their liberty under State laws; to protect loyal men in the rebel States from oppression under color of State laws administered by rebel officers; to protect especially those who had formerly been slaves, and who, under color of vagrant and apprentice laws in some of the States, were being reduced to a bondage more intolerable than that from which they had been recently delivered. It was to protect such persons and for such a purpose that the law of 1867 was passed, and not to relieve any one from imprisonment under laws of the United States, a matter which had already been provided for by the act of 1789.
This is apparent from the terms of the act of 1867 itself. Observe the opening part of its first section. The sole object, as declared, is to confer additional authority on the United States courts and judges to issue writs of habeas corpus; and it would be absurd to say that a grant to the courts of what they already possessed was giving them something additional.
The concluding part of the same section is equally expressie . It is all aimed at State action.
2. That the Circuit Court of Mississippi had no jurisdiction of this case under the act of February 5th, 1867, is further apparent from the second paragraph of the act.
That McCardle was in the custody of the military authorities of the United States his petition admits, and the record shows that he was charged with disturbance of the public peace, with inciting insurrection, disorder, and violence, in violation of the laws of Congress, known as the Reconstruction Acts.
The State of Mississippi, where McCardle was arrested, was at the time under military control; General Ord was, as appears by the record, in command of the military district embracing Mississippi, and McCardle was arrested by him, charged with being a disturber of the public peace, and with inciting 'insurrection, disorder, and violence,' which was clearly a military offence. If so, this court has no jurisdiction of this case, because it gets its jurisdiction, if at all, by appeal under the act of February 5th, 1867, and that act expressly exempts from its operation persons in the custody of the military authority charged with a military offence.
3. But if it were admitted that the Circuit Court properly took jurisdiction of this case under the act of February 5th, 1867, still no appeal from its decision would be to this court, for the reason that it was an original proceeding in the Circuit Court, and no appeal is given in such cases. The jurisdiction exists only when an appeal comes from the Circuit Court, itself acting as an appellate court, and from the decision of any judge, justice, or court, inferior to it.
The language of the statute is plain. Of course, this being an original case in the Circuit Court, and not one taken to that court by appeal from an inferior tribunal, is not within the statute. A rule for appeals 'being provided, this court cannot depart from it.'
Messrs. Black and Sharkey, contra, contended that the statute of 1867 was a remedial one, and should therefore receive a liberal construction; that the clause which gave an appeal from the District Court to the Circuit Court, and from the Circuit Court to the Supreme Court of the United States, did not intend to confine the appeal to the Supreme Court to cases which merely commenced in the District Court, but to give the appeal to cases which commenced originally in the District or Circuit Court; that the language of the opening part of the first section was most comprehensive; that there was no reason for Congress to make the distinction between the two cases. The exception in the second section, as to persons charged with military offences, did not apply to the case, for no military offence was charged against the party. The offences charged were all civil offences. By putting the district under military rule they did not become military offences any more than they would have been ecclesiastical offences if the same district had been put under the government of a body of clergy. The offences had a specific well-known nature; and so tested, they were civil offences.
The CHIEF JUSTICE delivered the opinion of the court.

## Notes

* ↑ § 14; 1 Stat. at Large, 82.
* ↑ 14 Id. 385.
* ↑ Wiscart v. Dauchy, 3 Dallas, 321; Ex parte Kearney, 7 Wheaton, 38.
* ↑ In the matter of Metzger, 5 Howard, 188.
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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