Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-05

D
No 5-0-DECEEBER TEENI, ls65
Er parfs in matter Of LamJdjn p M
FOdu, yeftioHSr. on n certificate g
dirjsion Of opinion JctrcCH the judge
Ofthe Circuit Court 0f the United State
for the District Of Indiana.
Mr.. Justice Davis delivered the opin
ion Of the court
On the 10th day Of May, 1865, LambdiI
p. Milligan presented a petition to the
circuit court of the United States for the
District Of Indiana to be discharged from
an ALLEGED unlawful imprisonment. The
case made by the petition is this Mil
ligan is a citizen OF the United States
has lived for twenty years in Indiana,
and at the time Of the grievances com
planned Of was not, and never had been,
in the military or naval service of the
United States. On the 5th day of OctO.
Der, 1864, while at home, he was arrested
bv order Of Gen. Alvin p. HOvey, COM
manding ilitary district Of Indiana,
and has ever since been Kept in close
confinement
On the DIST day of October, 1864, lie
was brought before q military commits
sion, convened at Indianapolis by order
OF Gen. HOvey, tried on certain charges
anu - illttaAtbAl1f lHAA4A rAAAA.N eAAaNA
| sentenced to be hanged, and the sentence
ordered to be executed on Friday the 18th
day of May, ls65.
On the 2d day Of January, 1865, after
the proceedings OF the military commits
sion were at an end, the circuit court OF
the United States for Indiana met al
indianapolis and empsnnelsd a grand
Jury, who were charged to inquire
whether the laws Of the United States
had been violated, and il 80, TO make
presentments. The court adjourned on
the 9th day OF January, having prior
thereto discharged from furA-er service
the grand jury, who did not find any
bill Of indictment OF make any present
ment against Milligan for any otisnse
whatever, and, in fact, since his imprjs
onment no bill Of indictment has been
found or presentment made against him
by any grand jury OF the United States.
! Milligau insists that said military com
mission had no jurisdiction TO try him
upon the charges preferred or upon any
! charges whatever: because he was cit
izen Of the United States and the State
of Indiana, and had not been, since the
/ commencement of the late rebellion, a
resident Of any Of the States whose citi-
Zens were aTr8yed against the govern
ment, and that the right of trial by jury
was guaranteed 10 him by the cOnsutu-
ton Of the United States.
The prayer of the petition, was, that
/ under the act Of congress, approved
| March 3, 1868, entitled An ACT relating
/ to habeas corpus and regulating Judicial
proceedings in certain csses, ," he may be
! brought before the court and either
| turned over to the proper civil tribunal
to be proceeded against according 10 the
law OF the land, or discharged nom Gus
tody altogether.
With The petition were filed the order
for the commission, the charges and
specifications, the findings of the court
with the order Of the war depart
ment, recigng that the sentence was ap-
proved by the president Of the United
States. and directing that il be carried
into execution without delay. The pei-
ton was presented and fled in open
court by the counsel for Miliigan; at the
same tine the district attorney Of the
United States for Indiana appeared, and
by the agreement Of counsel, the appli-
cation was submitted 10 the court. The
apinions Of the Judge of the circuit court
were opposed on three questions which
are certified to the supreme court;
l. "On the facts stated in said petit
tiCn aud exhibits, ought q writ OF habeas
corpus to be issued ?n
> "On the facts stated in said petition
and exhibits, ought the said Lam0din =,
Milligau 20 be discharged from custody
as in said petition prayed'?"
8. " Whether, upon the facts stated II
said petition and exhibits, the military
commission mentioned herein had juris
dictiOn legally to try and sentence sale
Milligan, iu manner and form as in saiC
petition and exhibits is stated
The Importance Of the main question
presented by this record cannot be over
stat ID for it involves the very frame
work OF the government and Fundamental
urincinles Of American liberty.
; During the late wicked rebellion th'
! temper Of the times did not allow tha
Icalmness in deliberatiou and discussion
20 necessary to a correct conclusion OF
purely judicial question. 1hea consider
ations Of safety were mingled with tn
exercise Of mower, and feelings and in
te-ests prevailed which are happily ter
minated. NOlg that the public safety !
assured, this question, as well g. al
others, can be discussed and decide'
} | without passion or the admixture Of an.
element not required 10 form lega
Judgment. We approach the investiga
: zion of this case, fully sensible OF tn
/ magnitude Of the inquiry and the neees
: 4 sity Of full and cautious deliberatiol
, | But we are met with a preliminary OF
. lection. 1t is insisted that the ClrCui
court Of Indiana had no authority [
certify these questions, and that We ar
without Jurisdiction TO hear Hnd deter
mine them. The sixth section of tn
b. " Act 20 amend the judicial system
the United States" approved April :
1902, declares that whenever ANY cue,
/. ton shall occur before a circuit eoui
rs upon which the opinions Of the Judge
= / shall be opposed, the point upon Whic
u the disagreement shall happen, shal
during the same term, upon the requei
OF either party or their counsel, be state
under the direction of the judges an
certified under the seal Of the court
the supreme court at their next sessip
TO be held thereafter, and shall by I'll
said court be fiBally decided; and Il
decision of the supreme court and the
- order in the premises shall be remltte
D. TO the circuit court and be there entefe
Of record, and shall have effect accor'
" ing to the nature of the said judgmei
and order PrOrtded, That nothir
), herein contained shall prevent the eau
from proceeding, If, in the opinion OF Il
court, further proceedings can be ia
without prejudice TO the merits"
It's under this provision Of law that
| circuit court has suthoTity TO certify ar
question to the supreme court for adiud
% cation. The inquiry, therefore,
b whether the case Of Milligan is brougi
- within its terms. Ii was admitted
the bar that the circuit court had Jurl
diction 20 entertain the application {
, the writ of habeas corpus and TO he
= and determine il and il could not be d
y MED for the power Is expressly given
the fourteenth section Of tbe judicial
act Of l7S9, as well as Ia the later get
{ 1868. Chief Justice Marshall, in 30
- mans case, a Cranch construed th
branch OF the Judiciary act 10 authOri
the cSuFt IS well as the judges to issl
2 / the writ for tie purpose of inquiriI
> into the cause Of the c0mmitmentj 81
this construction has never been d
parted from. But it is maintained wi
% .earnestnees and ability CHAT certifica
Of division OF opinion 5En occur only
- a cause and that the proceeding by
party moving for writ OF habeas corp
does not become q cause until after 4
trrit has 5scjs issued and q return Hld0
independently Of the provisions OF 4
\. act Of congress of March s, 1865, rsls
ing 10 habeas corpus, on which the pc
toner bases his claim for relief, al
which we viii presently consider, CT
0 this position be sustained?
W 1t Is true thai 1t is usual for a court,
application for a wfit Of habess cnTpl
~ issue the writ, aud on the return
=. disDose of the case; but the court q
elect 10 waive the issuing Of the writ al
consider whether, upon the facts pl
sented Ia the petition, the prisoner,
brought before It, could be discharge
}. one OF the very points on which t
case Of Tobias Watkins, reported in