Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-04

II is proper, therefore, to inquire under
what circumstances the courts could right
fully refuse 10 grant this writ, and when
the citizen was at liberty to invoke it, aid.
The second and third sections of the law
are explicit on these points The language
used Is plain and direct, and the meaning
Of the Congress cannot be mistaken. The
public safely demanded, if the President
thought proper to arrest a suspected per
son, that he should not be required to give
the cause of his detention on return to a
writ Of habeas. But il was not C0ntem-
plated that such person should be detained
in custody beyond a certain fixed period,
unless certain judicial proceedings known
to the common law were commend against
him. The Secretaries of State and War were
directed to furnish TO the judges Of the
courts Of the United States a list Of the
names of all parties, not prisoners Of war,
resident in their respective Jurisdictions,
who then were or afterwards should be held
in custody by the authority of the Presi-
dent, and who were citizens of States in
which the administration of the laws in
the Federal tribunals was unimpaired.
After the list was furnished, if grand jury
of the district convened and adjourned, and
thus named, he was entitled to his dis
charge and it was the duty of the judge of
the court to order him brought before him
to be discharged If he desired it. The re-
fIsal or omission to furnish the list could
not operate to the injury Of any one who
was not indicted or presented by the grand
jury for if twenty days had elapsed from
the time Of his arrest and the termination
of the session Of the grand jury, he was
equally entitled to his discharge as il the
list were furnished; and any credible per-
son, on petition verified by affidavit, could
obtain the judges order for that purpose.
Milligan, III his application to be re-
leased from imprisonment, averred the ex-
istence of every fact necessary under the
terms Of this law to give the Circuit Court
of Indiana jurisdiction. Ifhe was detained
in custody by the order of the President,
otherwise than as prisoner Of war if he
was a citizen of Indiana, and had never
been in the military or naval service, and
the grand jury of the district had met, after
he had been arrested, for period of twenty
days, and adjourned without taking any
proceedings against him. then the court had
the right to entertain his petition and de
| termine the lawfulness of his imprisOn-
ment Because the word court" is not
| found in the body of the second section, il
was argued at the bar that the application
| should have been made to a Judge of the
court. and not to the court itself; but this is
not so; for power is expressly conferred
| in the last proviso OF the section on the
court equally with judge of it to discharge
from imprisonment. 1t was the manifest
| of fn arto in,
remedy by which any one deprived Of
liberty could obtain it, if there was
| judicial failure to find cause of offence
/ against him. Courts are not always in
| session, and can adjourn on the discharge
of the grand jury; and before those who are
in confinement could take proper steps to
| procure their Liberation. To provide for
this contingency, authority was given to the
| judges ont Of court to grant relief to any
| party who could show that, under the law
| he should be no longer restrained of his
| liberty. IL was insisted that Miligan's case
was defective, becauseit did not state that
| the list was furnished to the judges, and
| therefore, it was impossible to say under
| which section of the act it was present ed.
1t ia not easy TO see how this omission
| could affect the question Of jurisdiction.
| Milligan could not know that the list was
| furnished, unless the Judges volunteered to
tell him; for the law did not require that
| any record should be made of It, or any
body but the judges informed of it. Why
| aver the fact when the truth of the matter
was apparent to the court without an aver
ment? How can Milligan be harmed by
| the absence of the ayerment when he states
that he was under arrest for more than sixty
| DAYS before the court and grand Jury,
! which should have considered his case, met
at indianapolis 1t is apparent, there
fore that under the habeas corpus act Of
| 1868 the Circuit Court of Indiana had
complete jurisdiction to adjudicate upon
this case, and if the judges could not agree
on questions vital to the progress of the
cause they had the authority, las we have
shown in a previous part of this opinion.
and it was their duty to certify those ques
tions of disagreement to this court for finaI
decision. 1t was argued that final deci
sion on the questions presented ought no
to be made, because the parties who were
| directly concerned in the arrest and de
tention Of Milligan were not before th'
court and their rights might be prejudiCeC
by the answer that should be given to those
questions. But this court cannot know
what return will be made to the writ 0
habeas corpus when issued and it is very
clear that no one is concluded upon an
question that may be raised to that re
turn. In the sense of the law of 1902
which authorized certificate Of division,
final decision means final upon Jhe point
certified; final upon the court below, s.
that it is estopped from any adverse ruling
in all the subsequent proceedings OF tn
cause. But it is said that this case is ended
as the presumption is that Milligan wa
hanged in pursuance of the order Of th
President. Although we have no iudicia
information on the subject; yet the infer
ence is that he is alive; for otherwis
termed counsel would not appear for hin
and urge the court to decide his case.
1t can never be in this country of writ
ten constitution and laws, with a judicia
department to interpret them, that an
Chief Magistrate would be 30 far fOrgettu
| of his duty as to order the execution Of
man who denied the jurisdiction that trie
; and convicted him, after his case was befor
| Federal judges, with power to decide i
who, being unable to agree on the gray
| questions involved, had, according to know
law, sent it to the Supreme Court of tn
, United States for decision. But even th
, suggestion is injurious TO the Executive
and we dismiss it from further considers
tion. There is, therefore, nothing to hiI
der this court from an investigation of th
: merits Of this controversy.
I The controlling question in the case
- this: Upon the facts stated in MilGgan
o. petition, and the exhibits filed, had Il
b commission mentioned in it jurisdiction Il
@ gally to try and sentence him? AIiliigar
e not resident of one of the rebellion
States. or a prisoner Of war, but a citiZe
o. Of Indiana for twenty years past, and nev'
r in the military OF naval service is, viii
. at home, arrested by the military power
p the United States, imprisoned, and, on &c
Y tain criminal charges preferred against mn
. tried. convicted, and sentenced to be hange
n by military commission organized una
,. the direction Of the military commander
j. the military district of Indiana. Had tn
n tribunal the legal power and authority
p try and punish this manr No graver que
"a ton was ever considered by this court, n,
l. one which more nearly concerns the rlgh
]. Of the whole people for tits the bITthug
n of every American citizen, when Charg
IS with crime, to be tried and punished =
- cording TO law. The power of punis
! ment is alone through the means Whicht q
l. laws have provided for that purpose, al
IF if they are Intellectual there is an immuni
Of from punishment no matter how great 1
d offender the individual may be, OF he
If much his crimes may have shocked {
N sense Of Justice of the country OF enda
" gered It's safety. By the protection of la
Of human rights are secured withdraw ii
le protection, and they are at the mercy