McCardle case brought to test the validity of the Reconstruction Act of March 7, 1867. The case first reached the Supreme Court in the December, 1867, term on a motion to dismiss, for want of jurisdiction, an appeal from the circuit court for the district of Mississippi. By the judgment of the circuit court McCardle was held by the military authorities for a violation of the reconstruction act. The Supreme Court denied the motion to dismiss the appeal, holding that it had jurisdiction under the existing law.35 The case was then argued on the merits and taken under advisement, but before a decision was reached, Congress, by act passed March 27, 1868, over the President's veto, repealed the act conferring jurisdiction of such cases.36 The case having been continued until the next term for decision on the merits, it was then dismissed by the Supreme Court on the ground that the jurisdiction of the court had been taken away by the act of Congress.37 Thus Congress prevented a possible decision that the reconstruction act was unconstitutional.

Since the establishment of the circuit courts of appeals and under the new Judicial Code it will be found that the scheme of federal appellate jurisdiction, in general outline, is as follows:

All cases tried in the federal trial courts, that is, in the district courts, may be taken to a higher court, and for purposes of writ of error or appeal, cases in the district courts are divisible into two classes, namely:

(1) Those which may be taken directly to the Supreme Court, and

(2) Those which may be taken to the circuit court of appeals, but which cannot be taken directly to the Supreme Court.

Again, cases of the second class, that is, cases which

35-Ex parte McCardle, 6 Wall. 318. For some account of this case, see Carson, History of Supreme Court, 425.

36-15 Stat. L. 44.

37-Ex parte McCardle, 7 Wall. 506.

cannot be taken directly to the Supreme Court but must be taken to the circuit courts of appeals, are also divisible into two classes, namely, (1) those in which the judgments or decrees of the circuit court of appeals may be reviewed, as of right, by the supreme court, in which class of cases the matter in controversy must exceed one thousand dollars, besides costs, and (2) those in which the judgments or decrees of the circuit court of appeals are made final. In this last case, however, as will be seen, the finality of the decisions of the circuit court of appeals is qualified by the provision for review on certificate from the circuit court of appeals or on certiorari from the Supreme Court. It happens, therefore, that, notwithstanding the establishment of the circuit courts of appeals, it is possible for any case tried in a district court to reach the Supreme Court, provided in the cases not made final, the matter in controversy exceeds one thousand dollars.

§ 66. Appeals from district courts. The act of 1891 establishing the circuit courts of appeals did not entirely take away the jurisdiction of the Supreme Court to review the decisions of the existing district and circuit courts, but in section 5 of the act provided for such review in several cases of special importance. The Judicial Code now provides for a review of the decisions of the district courts in a section which is practically a re-enactment of the former law. This provision, constituting section 238 of the Code, is as follows:

"Appeals and writs of error may be taken from the district courts, including the United States District Court for Hawaii, direct to the supreme court in the following

cases:

[1] in any case in which the jurisdiction of the court is in issue, in which case the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision;

[2] from the final sentences and decrees in prize causes;

[3] in any case that involves the construction of or application of the Constitution of the United States;

[4] in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question; and

[5] in any case in which the constitution or law of a state is claimed to be in contravention of the Constitution of the United States." 38

Under the act of 1891 appeals were allowed also in cases of conviction of a capital or otherwise infamous crime, but in 1897 this was limited to capital cases, and these cases were omitted from the Judicial Code.

As the object of establishing the circuit court of appeals was to lighten the work of the Supreme Court, the propriety of limiting the right of appeal from the district and circuit courts directly to the Supreme Court to a few important cases, is obvious. At the same time, the importance of the cases enumerated above makes desirable this right of direct appeal in these cases.

Under Other Acts there are some further cases in which direct appeals are allowed to the Supreme Court, notably cases arising under the anti-trust act.39

§ 67. Appeals from circuit courts of appeals. The act of 1891 establishing the circuit courts of appeals provides for taking cases in these courts to the Supreme Court as set out in section 6 of the act 40 and re-enacted in substantially the same from as sections 239, 240 and 241 of the Judicial Code.

38-For cases decided under this section, see the annotations in 4 Fed. St. Ann. 399-408.

39-See Northern Securities Co. v. United States, 193 U. S. 197.

40-For cases under this section, see annotations in 4 Fed. St. Ann. 409-422.

There are three methods of review: (1) On certificate from the circuit court of appeals; (2) on certiorari from the Supreme Court; and (3) by appeal or writ of error. The provisions of the Judicial Code are as follows:

1. Review on Certificate from Circuit Court of Appeals. Section 239. "In any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight, the circuit court of appeals at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision; and thereupon the Supreme Court may either give its instruction on the questions and propositions certified to it, which shall be binding upon the circuit court of appeals in such case, or it may require that the whole record and cause be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal." 41

2. Review on Certiorari from Supreme Court. Section 240. "In any case, civil or criminal, in which the judgment or decree of the circuit court of appeals is made final by the provisions of this Title it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court."

It is held that this power should be sparingly exercised by the Supreme Court, and only when the importance of the question involved, the necessity of avoiding conflict between two or more circuit courts of appeals, or other important reason demands its exercise.42 The power has

41-See Warner v. New Orleans, 167 U. S. 467.

42-Forsyth v. Hammond, 166 U. S. 506.

been exercised, however, in a considerable number of cases. 43

The writ is ordinarily issued only after final decree of the circuit court of appeals, but it may be issued before decree if the Supreme Court be of opinion that an earlier interference is necessary.* 44

3. Review by Appeal or Writ of Error. Section 241. "In any case in which the judgment or decree of the circuit court of appeals is not made final by the provisions of this Title, there shall be of right an appeal or writ of error or review of the case by the Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars, besides costs."' 45

Under the Bankruptcy Act (§ 25), appeals may be taken from the circuit courts of appeals to the Supreme Court in certain cases.46

§ 68. Appeals from other federal and congressional courts. The Supreme Court is given jurisdiction to review by appeal or writ of error the decisions of various courts established by Congress in addition to those above mentioned. Where the court is not established under the article defining the judicial power but under some other provision of the Constitution, e. g., the territorial courts, it would seem that the jurisdiction of the Supreme Court must be derived from the act of congress, rather than from the grant of judicial power in Article III of the Constitution, though the point does not seem to have been considered by the Supreme Court. The Judicial Code provides for appeals in certain cases to the Supreme

43-See numerous cases cited in 22 Enc. Pl. & Pr. 320, and Supp. (1912) Fed. St. Ann., vol. 2, 1343, 1352.

44-American Construction Co. v. Jacksonville, etc., R. Co., 148 U. S. 372; The Conqueror, 166 U. S. 110.

45-Under the original statutes appeals of this class were required to be taken within one year.

46-See Judicial Code, § 252, and Act of Jan. 28, 1915, c. 22 (38 Stat. L. 804, Supp. (1916) Fed. St. Ann. 137).