isions of article III seem,
superficially at least, to imply that its appellate jurisdiction would
flow directly from the Constitution until Congress should by positive
enactment make exceptions to it, rulings of the Court since 1796
establish the contrary rule. Consequently, before the Supreme Court can
exercise appellate jurisdiction, an act of Congress must have bestowed
it, and affirmative bestowals of jurisdiction are interpreted as
exclusive in nature so as to constitute an exception to all other cases.
This rule was first applied in Wiscart _v._ Dauchy[591] where the Court
held that in the absence of a statute prescribing a rule for appellate
proceedings, the Court lacked jurisdiction. It was further stated that
if a rule were prescribed, the Court could not depart from it. Fourteen
years later Chief Justice Marshall observed for the Court that its
appellate jurisdiction is derived from the Constitution, but proceeded
nevertheless to hold that an affirmative bestowal of appellate
jurisdiction by Congress, which made no express exceptions to it,
implied a denial of all others.[592]

The McCardle Case

The power of Congress to make exceptions to the court's appellate
jurisdiction has thus become, in effect, a plenary power to bestow,
withhold, and withdraw appellate jurisdiction, even to the point of its
abolition. And this power extends to the withdrawal of appellate
jurisdiction even in pending cases. In the notable case of Ex parte
McCardle,[593] a Mississippi newspaper editor who was being held in
custody by the military authorities acting under the authority of the
Reconstruction Acts filed a petition for a writ of _habeas corpus_ in
the circuit court for Southern Mississippi. He alleged unlawful
restraint and challenged the validity to the Reconstruction statutes.
The writ was issued, but after a hearing the prisoner was remanded to
the custody of the military authorities. McCardle then appealed to the
Supreme Court which denied a motion to dismiss the appeal, heard
arguments on the merits of the case, and took it under advisement.
Before a conference could be held, Congress, fearful of a test of the
Reconstruction Acts, enacted a statute withdrawing appellate
jurisdiction from the Court in certain _habeas corpus_ proceedings.[594]
The Court then proceeded to dismiss the appeal for want of
jurisdiction. Chief Justice Chase, speaking for the Court said:
"Without jurisdiction the Court cannot proceed at all