Ex Parte McCardle,
Annotate this Case
73 U.S. 318 (1867)
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U.S. Supreme Court
Ex Parte McCardle, 73 U.S. 6 Wall. 318 318 (1867)
Ex Parte McCardle
73 U.S. (6 Wall.) 318
Under the Act of February 5, 1867, 14 Stat. at Large 385, to amend the Judiciary Act of 1789, an appeal lies to this Court on judgments in habeas corpus cases rendered by circuit courts in the exercise of original jurisdiction.
The Judiciary Act of 1789, [Footnote 1] 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 5, 1867, [Footnote 2] 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 offense."
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 the 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.