The American Judiciary, page 99 by Simeon E. Baldwin
<< Return to Title Details & Download100
to determine whether to obey them. Some held that the new court was a de facto court, and to be respected accordingly. The ultimate decision fell to the old court, which, after the repealing Act of 1826, held that there could be no such thing as a de facto Court of Appeals so long as civil government was maintained and the de jure court was in the exercise of its functions.[Footnote: Hildreth's Heirs v. M'Intire's Devisee, 1, J. J. Marshall's Kentucky Reports, 206.]
The same spirit of jealousy still occasionally manifests itself in a less outspoken but more effective fashion. If a question of political importance is likely to come before a court, it may be within the power of the legislature to prevent it by a change in its statutory jurisdiction.
In this way the Supreme Court of the United States was kept from passing on the validity of the Reconstruction Acts enacted by Congress at the close of the Civil War, in a case which was actually pending. Under these Acts a Mississippi newspaper editor was arrested in 1867 by military order on account of an article which he had published reflecting on the policy of the government, and held for trial before a military commission. He appealed to the Circuit Court of the United States for the District of Mississippi for discharge on a writ of _habeas corpus_. Judgment went against him, and he appealed to the Supreme Court of the United States. The court, on August 1, held that it had jurisdiction to review the decision and to decide whether he could be tried before such a commission.[Footnote: Ex parte McCardle, 6 Wallace's Reports, 318, 327.] The cause was then heard on its merits and all the questions involved discussed at length, four days being devoted to it. Congress apprehended a decision that the Reconstruction Acts were unconstitutional, and before one was arrived at, during the same month, passed an act repealing the right of appeal in such cases from the Circuit Court. The purpose of this was obvious, bu