Daily Davenport Democrat. [volume] (Davenport, Iowa) 1864-1874, 1867-01-07
SUPREME COURT.



No 350.-DEcrMnEa TgRx, 1896.
Ex-Iartc. In matter Of Lambdin r. Mill |
gan, petitioner. On . certificate OF dyi-
sion ofopInion between the Judges Of the
Circuit Court of the United States for the |
Ds,ric, Of Indiana.
Mr Justice Davis delivered tie opinion Of
the Court
On the 10th dsy Of May, 1864, Lambdin |
p. Mil!igan presented . petition 20 the Cir |
cult Court Of the United States for the Div |
uic, Of Indiana, to be discharged from an !
alleged unlawful imprisonment The case |
made 10y the petition is this: Milligan is |
citizen y. the United States has lived for |
twenty years in Indiana; and, at the time |
of the grievances complained Of, was not, |
and ne. cr had been IN the military or naval |
service u the United states. On the 9th |
day If October, 1864, while at home, he |
was arrested by order Of General Alvin p.
lovey, commanding the military district OF
Indiana. and has ever since been kept in
close conGnem mt
On the slst DAY o! October 1864, he was
hrou III before a military commission, con
scucd at indianapolis b. order OF General
iloyey, tticd IN certain charges and speech
cations, found gu lty, aud sentenced 10 he
hanged AID the sentence ordered to be
executed on Friday, HE 10Th day Of May,
1865.
on HE - day Of January, 1853, after the
proceedings oi the military commission
were At an end, the Circuit Court o! the
United States Tor Indiana met at Indanapo
lis and cInpannelcd grand jury, who were
charged 10 inquire whether tho laws OF the
United States had been violated and, If SO,
10 make prcsentnenfs. The court adjourned
On the nth day Of January, having. prior
thereto, discharged from further service the
grand jury. who did not end any bill Of in>
dictmcnt or make any prescntnlent against
Millienn for any ofrense whatever; and, in
fact, since his imprisonment, no bill Of in>
dictment or presentment made agsinst him
by any grand jury Of the United States.
Milligan insists that said military COM
mission had no Jurisdiction 70 try him
upon tho charges preferred, or upon any
charges whatever because he vas Z Gifts
zen Of the United States and The State Of
Indiana, aud had not bs6n, siecs The com.
insnccment OF the late rebellion, resident
VI any of the States whose citineos were
arrsycd against the GovsrnMont, ard that
the right VI trial BY jury was guaranteed 10
him by the Constitution Of the United
States.
The prayer Of the petition was, that un-
Ter the act Of Congress, approved March 3,
lsG3, entitled An act relating 10 haJ,as
corpus and regulating the judicial proceed
ings in certain cases, he may be brought
before tho court, and either turned over to
oil A~sk~s..s~t a.. ~. 4. a
against according to the law Of the land or
discharged from custody altogether.
With the petition were flied the order for
the commission, the charges aud specilica-
tons. the findings OF the court, with the
order of the War Department rcciting that
the sentence was approved 10y the PscSidcn,
"a. the United States, and directed that ii he
carried INTO execution without delay The
petition was presented aud filed IN open
coart 10y the counsel for Mill'gan Il, the
same time the District Attorney OF the
lnitcl states for Indiana appeared, and. by
the agreement of counsel, the arpllca, ION
VAS submitted to tic court. he opinions
oc the .Iud ,es "f the Circuit Court were on
posed on throe questions which ME Ger flied
10 the supreme court
/. "on the facts Stated il said petition
aud exhibits, IA lit writ Of habeds corpus
to tie ISSUED r
:. 'un tn. facts stated in said petition
AMI cAhib,s ought the Aaij Lambda +.
M,lgan TO be discharged from custody ms
in said fet,ticn prayed =
3 "Whethcr. upon the facts stated in
said petition and exhibits. the military con-
mission mentioned therein had jurisdiction
legally TO try and sentence said M,lligan in
manner and form as IN ssid petition and ex-
hihits Il stated y
The importance OF the main question pre-
>cntcd by this record can not DO ovcrstatctl.
Tor il Involves the very framework Of The
Government aud the tuIrlamental principles
F American liberty.
During the late wicked rebellion the TEN.
per Of the tines did not allow that CALM
ness III dc,ibcra'on and discussion SO nee
cssary 10 u correct conclusion of purely
judicial question. Thsa, considerations of
safety were mingled with the exercise Of
power ard feelings and interests prevailed
which ATE happi Y terminated. Nor tha.
thc public safety is assured, this question,
~ w,tl rs al o'ncts. can lie discussed and
dec l.I without PASSION or the alnixtire of
any eleiatnt not required to form a gal
judgment. We approach the investigation
ut h.s c,se, toll, sensible Of the magni
tuie 81 the inquiry and the necessity of
,ul aud cautious deliberatlon. Blt we are
met with preliminary objection. Ii is in
sisted that The Circuit Court OF Indiana had
NJ authority 10 certify these questions; and
that they are without jurisdiction to hear
and determine them The sixth section Of
the Act to amend the judicial system Of
the United States" approved April -, 1902,
de larcs that "whencvcr any question shall
occur before circuit court upon which the
opinions Of the judges shall be opposed,
the point upon which the disagrecmeAt shall
happen, shall, during the same term, upon
tho request Of either party or their counsel,
be stated under the direction Of The Judges
and certified under the seal Of the courts 10
the Supreme Court at their next session 10
be held thsseaftse; and sholl BY the said
court be finally decided Aud the decision
Of the Supreme Court and their order 10 the
premises shall b RENTED 70 the circuit
court and there 10 entered on record, and
shall have effect according 10 the nature Of
the said judgment and order: Porided,
That nothing hsrein contolned shall pre-
vent the cause from proceeding, IL 10 the
opinion Of the court, further proceedings
can be E. had without prejudice to the
Olt is under this provision oflaw that Z
Circuit Court has authority to csrtify any
question to the Supreme Court for adjudi-
cations. The inquiry, therefore, Il, wh.th-
er the case Of Milligan il brought within its
terms. Il was admitted At he bar tina, IL g
Circuit Court had Jurisdiction TO entertain
the.application Tor writ Of Aabsas corpus
and to hear and determine il; and Il could
no, be denied for the power is expressly
given in the 18th section Of the judiciary Of
1889. as wellos = the latter act of Is63.-
Chief Justice Marshall, in Bollman's case,
a Cranch,) construed this branch Of the
judiciav act to authorize the courts % we'll
90 the judges to issue the writ for the pur-
pose of iuquiring into the cause Of the com
mi,mcnt and this construction has never
been depasted from. But it is main tain
ed with earnestness and ability that certi.
ticste Of division of opinion can occur only
in a raves, and that the proceeding BY q
party moving for n writ OF hdtcds co.pu,
does not become u cause until after Lts rrit
has been issacd a.l t4e return made.
Independent OF the provisions of the &C,
Of Congress Of March 8, 1865, relating t.
habeas corpus, on which the petitioner base.
Nla,t t..rv II. aC .,~l