Congress was in trepidation as to the outcome of the case and was
resolved to take no chances on it. Various legislative remedies were
proposed. One was to require a unanimous vote of the Supreme Court to
pronounce any act of Congress unconstitutional and void. A bill
requiring a two-thirds vote of the court in such cases actually passed
the House on the 13th of January by yeas 116, nays 39, but it was never
considered by the Senate. The end was accomplished, however, in a
different way. The Senate had passed a bill of only one section,
reported by Williams, of Oregon, from the Committee on Finance, to amend
the code of judicial procedure in revenue cases. The House attached to
this bill another section repealing so much of the Act of February 5,
1867, as authorized an appeal to the Supreme Court in the class of
cases therein named, and withdrawing from the Supreme Court jurisdiction
as to appeals already taken. This bill passed the House March 13, 1868,
without a division. It was taken up in the Senate on the motion of
Senator Williams and passed by a vote of 32 to 6 the same day, although
Senators Buckalew and Hendricks asked for an explanation of its meaning,
which was not given to them.
Although Buckalew and Hendricks did not have time to find out the nature
of this bill, Andrew Johnson did. In due time he returned it to the
Senate with a veto message, exposing it as a measure to deprive citizens
of their rights under existing law and to arrest proceedings already in
course of judicial determination. On this veto there was a debate in the
Senate beginning on March 25, 1868, in which the Democrats, led by
Hendricks, had decidedly the best of it. The supporters of the bill had
very little to say for themselves. Trumbull contended that the bill did
not affect any case then pending in the court, but in this debate he was
worsted by Doolittle, who showed that it applied to the McCardle case.
Trumbull and Carpenter had argued that the Supreme Court had no
jurisdiction, since military cases were not appealable under the Act of
February 5, 1867. The court had ruled against them because McCardle was
arrested, not for a military, but for a civil offense. It still remained
to be determined whether the court below had jurisdiction. Trumbull was
confident that the Supreme Court would hold that the lower court had no
such jurisdiction, in which case the appeal would fail and the bill
vetoed by the President would be nugatory as to McCardle. Doolittle in
reply showed that the bill did cut off McCardle's rights as an
appellant, and the Supreme Court so held in the month of December
following, when it dismissed the petition expressly on the ground that
its jurisdiction had been withdrawn by the Act of March 27, 1868. The
bill was passed over the veto on that date, by 33 to 9 in the Senate and
by 115 to 34 in the House. It was partisan legislation. The Republicans
drew a long breath after its passage because they had apprehended
Public-domain text, read in full here on John Shaqi.
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