Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-14
, JANUARY "A, 1867.

to dispose of the case; but the court can
elect to waive the Issuing of the writ, and
consider whether upon the facts presented
in the petition, the prisoner, if brought
before it, could be discharged
One of the very points OH which
Peters, turned was, whether If The writ is
sued to the petitioner, he would be reman1-
ed upon the case which he had made. The
Chiel Justice, in delivering the opinion of
the court, said: "The cause of inlprison-
ment is shown as fully by the petitioners as
it could appear on the return of the writ,
consequently the writ ought not to be
awarded, If the court is satisfied that the
petitioner would be remanded to prison."
The Judges of the Circuit Court Of Indiana
were, therefore, warranted by an express
decision of this court in refusing the writ,
II satisfied that the prisoner, on his own
showing, was rightfully detained. But, 1t
is contended. if they differed about the un-
lawfulness of the imprisonment, and could
render no judgment, the prisoner is remed-
iess, and cannot have the disputed ques-
tion certified. Under the act of 1902, his
remedy is complete by writ of error or
appeal, il the court renders final Judgment
refusing to discharge him; but, If he is so
unfortunate as to be placed in the predica-
ment OF having the court divided OIL the
question, whether he should live or die, he
is helpless and without remedy. He wishes
the vital question settled, not by a single
Judge at his chambers, but by the highest
tribunal known to the Constitution; and
yet the privilege is denied him, because the
Circuit Court consists of two judges, in
stead of one. Such result was not in the
contemplation of the Legislature in 1902,
and the language used by it cannot be con-
strued to mean any such thing. The case
under consideration was introduced to
further the ends of justice, by obtaining 4
speedy settlement of important questions
where the Judges might be opposed in
opinion. The act of 1902 so changed the
judicial system that the Circuit Court, in
stead of three, was composed of two
judges; without this provision. or kin
dred one, if the judges differed, the
difference would remain, the question
be unsettled, and justice denied. The
decisions of this court upon the pro-
visions of this section have been nu-
merous. In the case of the United States
.. Daniel (6 Wheaton), the court, in holding
that division of the judges, on a motion
for new trial, could not be certified, says
that the question must be one that arises in
a cause depending before the court relative
to proceeding belonging to the cause.
Testing Milligan's case by this rule OF law,
Is it not apparent that it is righttully here,
and that we are compelled to answer the
questions of which the judges below were
opposed in opinion? II, in the sense of the
law, the proceeding for the writ of hGbeds
corpus was the cause of the party applying
for it, then it is evident that the cause was
pending before the court, and that the Ques-
tons certified arose out of it, belonged to
it, and were matters of right and not of
discretion. But it is argued that the pro-
ceeding does not ripen into cause until
there are two parties to it. This we deny.
1t was the cause of Milligan when the pc
titiOn was presented to the Circuit Court. 1t
would have been the case OF both parties If
the court had issued the writ and brought
those who held Milligan in custody before
it. Webster defines the word "cause" thus:
"A suit or action in court; any legal pro-
cess which party institutes to obtain his
demand, or by which he seeks his right or
supposed right" He says this is legal,
scriptural and popular use of the word, CO.
inciding nearly with "case," from "cado,"
an action to urge and derive. In any legal
sense, "action, suit and cause" are convert
ible terms. Milligan supposed he had a
right to test the validity of his trial and
sentence, and the proceeding which he set
in operation for that purpose was his
"cause" or "suit." 1t was the only one by
which he could recover his liberty. He was
powerless to do more. He could neither
instruct the judges nor control their action,
and should not suffer because, without
fault of his, they were unable to render
a judgment. But the true meaning to
the term "suit" has been given by this
court. One of the questions in Westonu.
The City Council of Charleston (2PetersG
...I.- v,,E h
suit. Chief Justice Marshall says: "The
term is certainly 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, Milligan pursued the only
remedy which the law afforded him.
Again, in Cohens .. Virginia (6 Wheaton),
he says, in law language, "a suit is pros
ecution of some demand in court of JUS
tice :" also, "to commence suit is to de-
msnd something by the institution of a
process in a court of justice, and to prose-
cute the suit is to continue that demand"
When Milligan demanded his release by
the proceeding relating to hdbeds corpus he
commenced suit, and he has since prose-
cuted it in all the ways known to the law.
One of the questions in Holmes .. Jen-
neson IA Peters,, was whether, under the
twenty fifth section of the Judiciary act, a
proceeding for writ Of hdbedS corpus was
suit Chief Justice Taney held that if a
party is unlawfully imprisoned the writ of
habeas corpus is his appropriate legal rem
edy. 1t Is his suit in court to obtain his
liberty. There was much diversity of
opinion on another ground of jurisdiction,
but this, that in the sense OF the twenty
fifth section of the Judiciary act the pro-
nandinn % b1booc cn7sn,o was q cnit w MT
controverted by any except Justice Bald
win, and he thought that "a suit" and "a
cause" as used in the section, mean the
same thing. The court do not say that
return must be made and the parties ap-
pear, and begin to try the case before 1t is
suit. When the petition is filed and the
writ Is prayed for, It is a suit-the suit of
the party making the application. 1t is a
suit, under the twenty-fitth section of the
Judiciary act, when the proceedings are
begun; it is by all the analogies
of the law equally suit under
the sixth section of the act of 1904
But it is argued that there must be two
parties to the suit, because the point Is to
be stated upon the request of either party
or their counsel. Such literal and tecli-
nical construction would defeat the very
purpose the Legislature had in view, which
was to enable any party TO bring the case
here when the point in a controversy was
matter of right aud not of discretion, aud
the words ''either party" in order to pre-
vent failure of justice, must be construed
as words OF enlargement and not of restric-
tion. Although this case is here er pdrte
it was not considered by the court below
without having been given to the party
supposed to have an interest in the deten-
tion of the prisoner. The statements of
the record show that this is not only fair,
but conclusive inference. When the coun-
sci for Milligan presented to the court the