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Ex Parte McCardle: 1868

Ex Parte McCardle: 1868

Defendant: William H. McCardle
Crimes Charged: Inciting insurrection and impeding post-Civil Was Reconstruction
Chief Defense Lawyers: Jeremiah S. Black, David Dudley Field, Charles O'Conor, W. L. Sharkey, and Robert J. Walker
Chief Prosecutors: Mathew H. Carpenter and Lyman Trumbull
Justices: Salmon P. Chase, Nathan Clifford, David Davis, Robert Cooper Grier, Stephen, J. Field, Samuel F. Miller, Samuel Nelson, and Noah H. Swayne.
Place: Washington, D.C.
Date of Decision: 1868 December Term
Decision: That the Supreme Court was without jurisdiction to render a decision, because Congress had repealed certain appeals legislation

SIGNIFICANCE: For the first and only time in American history, Congress exercised its authority to prevent the Supreme Court from hearing certain types of politically sensitive cases.

After the Civil War, the victorious Union army occupied the defeated Confederacy and the period known as Reconstruction began. On March 2, 1867, Congress passed a law entitled "An Act to Provide for the More Efficient Government of the Rebel States," which officially provided for the military administration of the South. The act abolished the legal existence of the Southern states, and divided the Confederacy into a series of military districts, each commanded by a General who possessed extensive powers to suppress any act of defiance.

In the city of Vicksburg, Mississippi, public resentment against the Union was particularly high. The city was strategically located on the Mississippi River and had fallen to the Union after a long and bloody siege by General Ulysses S. Grant. After the Civil War, the Fourth of July was not celebrated in Vicksburg for 75 years.

William H. McCardle was the editor of a local newspaper, the Vicksburg Times. McCardle published various articles criticizing Reconstruction in general and Major General Edward O.C. Ord in particular. Ord was the Commanding General of the Fourth Military District, which included Vicksburg. General Ord was not amused. He had McCardle arrested in November 1867 for various offenses relating to inciting insurrection and impeding Reconstruction. On November 11, 1867, McCardle sent a petition to the Circuit Court of the United States for the Southern District of Mississippi, asking for a writ of habeas corpus, meaning a court order to free McCardle from illegal imprisonment. The circuit court refused McCardle's request, and McCardle appealed to the Supreme Court.

Congress Denies McCardle Access to Supreme Court

The Supreme Court is the only federal court specifically provided for by the Constitution. Under Article III, Section 2, the Supreme Court has original jurisdiction, meaning sole authority, only in "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." In all other cases, the Supreme Court has jurisdiction only on appeal from such federal courts as Congress may decide to create and from state supreme courts. This appellate jurisdiction is expressly subject to "such Exceptions, and under such Regulations as the Congress shall make."

On September 24, 1789 Congress passed the Judiciary Act, which is the basis for the federal court system and gave the Supreme Court various appellate powers. On February 5, 1867 Congress amended the Judiciary Act to enable the Supreme Court to hear appeals in habeas corpus cases. It was precisely this amendment, called the Habeas Corpus Act of 1867, that enabled the Court to hear the McCardle case.

The Radical Republicans who controlled Congress feared that the Mc-Cardle case would give the Court an excuse to overturn Reconstruction legislation and end martial law in the South. Therefore, on March 27, 1868, Congress passed a law repealing the appeal provisions of the Habeas Corpus Act of 1867:

And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An act to amend an act to establish the judicial courts of the United States, approved September 24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court, on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.

The case came before the Supreme Court during the 1868 December Term. McCardle was represented by Jeremiah S. Black, David Dudley Field, Charles O'Conor, W.L. Sharkey and Robert J. Walker. The government was represented by Mathew H. Carpenter and Lyman Trumbull.

The hearing focused on the effect of Congress' repeal of the Court's jurisdiction. If the Court didn't have jurisdiction, the validity or invalidity of McCardle's imprisonment was irrelevant. Sharkey argued that Congress' action was unconstitutional because it was designed solely to affect the McCardle case:

Its language is general, but, as was universally known, its purpose was specific. If Congress had specifically enacted 'that the Supreme Court of the United States shall never publicly give judgment in the case of McCardle, already argued, and on which we anticipate that it will soon deliver judgment, contrary to the views of the majority in Congress, of what it ought to decide,' its purpose to interfere specifically with and prevent the judgment in this very case would not have been more real or, as a fact, more universally known.

Congress Could not be Denied

Carpenter and Trumbull responded by citing the plain language of Article III, Section 2 of the Constitution, under which Congress' authority to restrict the Court's appellate jurisdiction could not be denied. Further, Carpenter Trumbull pointed out that the language of Congress' repeal of the Court's authority "embraces all cases in all time." Although Sharkey was certainly accurate in describing Congress' real motivations, Carpenter and Trumbull correctly pointed out that legally, any assumption that the repeal was aimed specifically at McCardle couldn't be proven and therefore was "gratuitous and unwarrantable."

By the end of the 1868 December Term, Chief Justice Salmon P. Chase announced the Court's unanimous decision. Chase held that McCardle's appeal was dismissed for lack of jurisdiction, because of Congress' repeal of the Court's authority. Chase stated in blunt terms that Congress had undeniably exercised its power to create exceptions to the Court's authority:

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.

The McCardle case is the only time in American history that Congress used its power under the Constitution to prevent the Supreme Court from hearing certain types of politically sensitive cases. There have been periodic movements in Congress to restrict the Court's authority to hear school desegregation cases, school prayer cases, abortion cases and other politically sensitive cases, but nothing has ever happened. However the Court did not completely surrender to Congress actions. Only one year later, in 1869, the Court agreed to hear a case very similar to McCardle's called Ex Parte Yerger, and side-stepped Congress' repeal of the Court's authority. Yerger was released from custody before the Court could hear the case and get into any confrontation with Congress. As more than one legal commentator has opined, given the need for the different branches of government to work peacefully with each other, it may be politically healthy that the limits of congressional power under the Constitution have never been completely clarified.

Stephen G. Christianson

Suggestions for Further Reading

Franklin, John Hope. Reconstruction: After the Civil War. Chicago: University of Chicago Press, 1961.

Morris, Richard B. Encyclopedia of American History. New York: Harper & Row, 1982.

Tortora, Anthony. "Ex parte McCardle." National Review (September 19, 1980): 1140-1141, 1157.

Trefousse, Hans L. Historical Dictionary of Reconstruction. Westport, Corn: Greenwood Press, 1991.

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