Facts

William McCardle was held in military custody for trial before a military commission upon charges founded upon the publication of articles alleged to be incendiary and libelous in a newspaper of which he was editor.¹ Alleging unlawful restraint by military force, McCardle petitioned the Circuit Court for the Southern District of Mississippi for a writ of habeas corpus under the act of February 5, 1867.² The writ was issued, and a return was made by the military commander admitting the restraint but denying that it was unlawful.³ Upon the hearing the petitioner was remanded to the military custody, but an appeal was allowed to the Supreme Court of the United States.⁴

Upon filing the usual appeal bond for costs, McCardle was admitted to bail upon recognizance with sureties conditioned for his future appearance to abide by the final judgment of the Supreme Court.⁵ The appeal was taken under the act of February 5, 1867.⁶ A motion to dismiss the appeal was made at the last term and, after argument, was denied.⁷ Subsequently, on March 2, 3, 4, and 9, the case was argued upon the merits and taken under advisement.⁸

While the case was held under advisement, Congress passed an act on March 27, 1868, the second section of which repealed so much of the act of February 5, 1867, as authorized an appeal from the judgment of the Circuit Court to the Supreme Court or the exercise of any such jurisdiction by the Supreme Court on appeals which have been or may hereafter be taken.⁹ The attention of the Court was directed to this statute, and argument was heard upon the effect of the repealing act.¹⁰

Analysis

Issue #1

Issue

Whether the act of March 27, 1868, repealing the provision of the act of February 5, 1867, that authorized appeals from circuit court habeas corpus decisions to the Supreme Court, removes the Court's jurisdiction over McCardle's pending appeal?¹¹

Legal Rule

The appellate jurisdiction of the Supreme Court is conferred by the Constitution subject to exceptions and regulations made by Congress.¹² Repeal of a jurisdictional statute removes the Court's power to proceed in pending cases under the repealed provision.¹³

Rule Analysis

Yes. The act of March 27, 1868 expressly repealed so much of the act of February 5, 1867 as authorized appeals from the Circuit Court to the Supreme Court in habeas corpus cases.¹⁴ The repeal occurred after argument but while the case remained under advisement.¹⁵ The Court therefore no longer possesses jurisdiction to decide the appeal.¹⁶

Conclusion

The act of March 27, 1868 removes the Supreme Court's jurisdiction over the pending appeal of William McCardle.¹⁷