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Legal Brief of “Ex Parte McCardle” by David A.W. Hittle

Ex Parte McCardle

7 Wall. (74 U.S. 506; 19 L.Ed. 264 (1869)

Vote 8 to 0


The Facts of the case are these: After the Civil War the Congress used military rule in order to reconstruct the South. Congress authorized the military to try civilians who interfered with the reconstruction program. William H. McCardle, editor of the Vicksburg Times, published a series of editorials that was highly critical of Reconstruction and of the military government that ruled in Mississippi. He was arrested and held for trial by a military commission on the charge of sedition. McCardle sought release by filing a habeas corpus petition in federal circuit court. The Congress had authorized Circuit Court to hear habeas cases. It also allowed for the appeal of a habeas petition from the Circuit Court to the Supreme Court. After the case was argued at the Supreme Court, but before a decision was reached, the Congress amended the law to prevent the Supreme Court from ruling on the Constitutionality of the Reconstruction acts.



The following are the issues in this case:

Was McCardle’s First Amendment Rights violated in his arrest over his newspaper publishing?

Was McCardle’s Fifth Amendment Rights violated in that his Due Process rights may have been violated?

Was McCardle’s Sixth Amendment Rights violated in that he was tried by a military commission and not by an impartial jury in the state and district where the “crime” took place?

Did Congress violate Article 1 Section 9 Paragraph 3 of the United States Constitution?

By a vote of 8 to 0 the Supreme Court held that it didn’t have the jurisdiction to hear the case, due to Congress’s repeal of the jurisdiction.


Mr. Chief Justice Chase delivered the opinion that the Court had no jurisdiction because Congress had repealed its jurisdiction.


The Significance of the case is these: In my opinion the Court should have been able to judge in this case for one reason. Because Congress with its repeal of the right of the Supreme Court to head the case violated Article 1 Section 9. At the time of McCardle’s “crime” the law allowed the Supreme Court to rule on these cases; however after the “crime” had taken place the law was changed. This violated the Ex Post Facto requirements under Article 1 Section 9 Paragraph 3, which disallows Congress from passing Ex Post Facto Laws. I further believe that the Defendant’s First Amendment Rights were violated as to a person has the right to “freedom of press” as well as the right to “petition the government for a redress of grievances” I further think that his Fifth Amendment Rights were violated as to his arrest and holding by the military. Finally, I believe that his Sixth Amendment Rights were violated in that he was neither tried in a public trial, nor tried by a jury of his peers or being tried in the district where he was charged. The Supreme Court at this time probably didn’t want to test its power over the Congress.