The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-01-05

after the scr5t has been issued and a return
made.
Independently of the provisions of the act
of congress of March 3. 1868, relating 70 ha-
beas corpus, On which the petitioner bases
his claim for relief, and which We will pres
emily consider, can this position be sustain
ed? A q
plication for writ of habeas corpus, to h.
sue the writ, and on the return to dispose OF
the case but the court can elect to waive the
issuing of the writ and consider, whether up
on the facts presented in the petition, the pris'
oner, if brought before 1t. could be discharg-
ed. One of the very points on which the
case OF Tobias Watkins, reported In Peters,
turned was, whether if the writ WAS issued,
tho petitioner would be rNmanded upon the
case which he had made.
The chief Justice, in delivering the opinion
of the court, said: s'The cause of imprison.
ment is shown as fully by the petitioner as il
could appear on the return of the writ con-
sequensly the writ ought not to be awarded if
the court is satisfied that the prisoner would
be remsnded 10 prison" @
The judges of the circnit court of Indiana
were Their efore warranted by an express de-
clsion of this court in refusing the writ, If
satisfied that the prisoner On his Cwn show
tended, if they differed about the lawtulnsss
of tho imprisonment, and could render no
judgements, the prisoner is remediless, and
cannot have the disputed question certified
undes the act of 1902. HIS remedy is com
plete by writ of error or appeal, if the court
renders final judgement refusing to dis
charge him but if he should be so unfor.
tunate as to be placed in the predicament of
having the court divided on question
whether he should live or die, he is hopeless
and without remedy. He wishes the vital
question settled, not by single Judge at his
chamber but by the highest tribunal known
to the constitution and yet the privilege is
denied him because the circuit court consists
of two Judges instead of one. Suoh a result
was not in the emplAtion of the l.gisla-
ture of 1902, and language used by it cannot
be construed to mean any such thing. The
claus, under consideration was introduced to
further the ends of justice by obtaining a
speedy settlement of important questions
where the judges mig ht be opposed in opin.
ion.
The act of 1902 so changed the judicial
system that the circuit court, instead of three,
was composed of two judges and withou,
this provision, or kindred one, If the judges
differed, the difference would remain, the
question be unsettled, and justice denied -
The decisions of the supreme court upon the
provisions of this section have been numer-
Gus. In United States vs. Daniel &c Wheat
on) the court. in holding that a division OF
the Judges motion for q new trial could
no. be certified, say: THAT .sthe question
must be one which arises in cause depend
ing before the court relative to a proceeding
belonging to the cause" Testing Milligan's
case by this rule of law, is il not apparent
81 - - pirb4 F,,fIx hat
compelled to answer the questions on which
the judges below are opposed in opinion? If
in the sense of the law, the proceeding for
the writ OF habeas corpus was the "osuse" oil
the party applying for it. then ii is evident
that the "cause" was pending before the
court, and that the questions certified arose
opt of it, belonged to ID, and were matters of
right and not of discretion.
But it is argued that the proceeding does
not ripen into q cause until there are two par
ties TO it. This we deny. II was the cause oil
Milligan when the petition was presented TO
the circuit court. Il would have been the
cause of both parties. if the court had issued
the writ and brought those who held Mill
gan in custody before it. Webster defines
the word "csuse" thus ga SUIT or action in
court any legal process which party III
ssitutes to obtain his demand, Or by which
IL . ccSAS Aio VI hopporcu iiEnb ~hHo
he says. this is legal, soripsursl, and pop
ulsr use of the word, coinciding nearly with
case from cado, and action from ago, to urge
and drive"
In any legal sense. action, suit, and cause
are convertible terms. Milligan supposed
he had right to test the validity of his trial
and sentence and the proceeding which be
set In operation for that pnrnaae was his
cause or sssuit.' Il was the only one by
which he could recover his liberty. He was
powerless 60 do more; he could peIsher in.
struct tho judges nor control their action. and
should not suffer because, without fault OF
his, they were unable to render 3 judgement
But the true meaning to the term 'suit" hss
been been given by this court. One Of the
questions in Western vs.. City Council of
Charleston e Peters) was whether a writ oil
prohibition was suit; aud Chief Justice
Marshall says: "Ths sern is cerseinly a
comprehensive one, and is understood to apply
to any proceeding in a court Of Justice by
which an individual pursues that remedy
which the law affords him." Certainly Mil
ligan pursued the only remedy which the
law afforded him.
ito he continual !