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Ex Parte McCardle

Citation. 74 U.S. (7 Wall). 506 (1869)
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Citation. 74 U.S. (7 Wall). 506 (1869)

Brief Fact Summary.

The petitioner, held in custody by military authority for trial upon charges founded upon the publication of articles alleged to be libelous, alleged unlawful restraint by military force and preferred a petition in the court below, for the writ of habeas corpus. The writ was issued but the military commander denied that the restraint was unlawful.

Synopsis of Rule of Law.

When an act of Congress is repealed, it must be considered as if never existed.


Congress by “an act to amend an act to establish the judicial courts of the United States” provided that several courts of the United States, and several justices and judges of such courts should have the power to grant writs of habeas corpus in all cases where any person may be restrained of his liberty in violation of the Constitution. 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 an appeal was allowed to him to the Supreme Court.


May Congress take away jurisdiction of appeal from the Supreme Court after that jurisdiction has been given?


Yes, the appellate jurisdiction of the U.S Supreme Court is not derived from the acts of Congress, and the jurisdiction is conferred by the Constitution. However, it is conferred under the regulations as Congress shall make. Among the earliest acts of the first Congress 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.


If Congress has taken jurisdiction away from the court, the court cannot proceed in any cause without jurisdiction. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is to announce the fact and dismiss the cause.  Although the act of the legislature has been repealed, no judgment by this court could be made in a suit after the repeal of the act under which it was brought and prosecuted. Because the current case was brought under the act – now repealed – this court has no appellate jurisdiction to make a judgment.

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