Ex parte McCardle – Case Brief Summary

Summary of Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).


After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous and inflammatory articles.

McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals.

The circuit court denied McCardle’s habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. After arguments were heard however, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present.


  1. Does Congress have the power to make exceptions to the Supreme Court’s appellate jurisdiction in cases in which it has already granted jurisdiction?
  2. Must the Court always first determine if it is has jurisdiction to review a case?

Holding and Rule (Chase)

  1. Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction.
  2. Yes. The Court must always determine first if it is has jurisdiction to review a case.

The court held that appellate jurisdiction of the Court is not derived from acts of Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shall make. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases.

In this case, the repeal of the act necessarily removed jurisdiction. Without jurisdiction, the Court cannot proceed; the only thing it can do is announce that fact and dismiss the cause of action. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought.


Dismissed for lack of jurisdiction.


In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a case under the Act of 1867 on appeal from a lower court. The Supreme Court would still have been able to hear an original petition for habeas corpus filed in the Supreme Court.

See Martin v. Hunter’s Lessee for a constitutional law case brief in which the Supreme Court of the United States held that it has appellate jurisdiction to review decisions of state courts involving issues of federal law.

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