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

/ ment refusing ID discharge him; but if he
! -houldbe SO unfortunateas 10 be placed in the
predicameut of having the court divided
/ on the question whether he should live or
/ die, he is hopeless and without remedy.
| He wishes the 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 a result was not in the
| contemplation Of the Legislature Of 1902,
and the language used by il cannot be con-
! strued To mean any such thing. The clause
under consideration was introduced 70 fur
! Their the ends Of Justice ,by obtaining a
speedy settlement Of important questions
where the Judges might be opposed in
! opinion.
The act Of 1862 30 changed the Judicial
! system that the Circuit Court, instead OF
! three, was composed of two judges; and
/ without this provision, or a kindred one, If
/ the Judges differed, the difference would re-
| MAN,; 1.-The question be unsettled, and justice
/ denied. The decisions Of this court upon
| the provisions Of this section have been
numerous In United States VS.. Daniel q
| Wheaton the court, in holding that d.
| vision Of the Judges on a motion for new
| trial could not be certified, say: That
| the question must be one which arises in
| cause depending before the court relative
! to a proceeding belonging to the cause
| Testing Miligan's case by this rule OF law,
| is il not apparent that it is rightfully here,
| and that we are compelled to answer the
questions on which the judges below were
! opposed in opinion? Ii, in the sense Of the
! law. the proceeding for the writ Of habeas
! corpus was the cause" of the party apply
! ing for it, then it il eyidentthat the cause
was pending before the court, and that the
| questions certified arose out oft, belonged
| to il, and were matters Of right and not OF
! discretion.
But it is argued that the proceeding does
! not ripen into a cause until there are two
parties to it. This we deny. It was the
cause Of Milligan when the petition was
presented to the Circuit Court. 1t would
! have been the cause 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
process which party institutes to obtain
his demand, or by which he seeks his
right, or supposed right and he says,
this is a legal, scriptural, and popular 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 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" OF "suit" 1t was the
only one bv which he could recover his
liberty He was powerless to do more; he
could neither instruct the Judges nor con
troll their action, and should not suffer,
because. without fault Of his, they we're an
able to render judgment. But the true
meaning to the term sui! has been
given by this court One of the questions
in Western We. City Council Of Charleston
q Peters, was, whether writ OF prohibi-
lion was a suit; and Chief Justice Mar
shall saws: "The term is certainly a com
prebensiye one, and is understood to APP
DIV to any proceeding in a court of justice
bv which an individual pursues that rem
edy which the law affords him." Certainly
Milligan pursued the only remedy which
the law afforded him.
AGAIN. in Cohens W. Virginia, (Whea-
ten. he says: In law language suit is
the prosecution of some demand in a court
of Justice" Also, "to commence suit is
to demand something by the institution of
process in a court Of justice; and to prose
cute the suit is TO continue that demand
When MiIligan demanded his release by
the proceeding relating to habeas corpus he
commenced a suit, and he hes since prose
cuted it in all the ways known to the law.
One of the question in Holmes vs. Jenni-
son IA Peters, was, whether under the 10th
section Of the judiciary act a proceeding
for q writ Of habeas corpus was suit
Chief Justice fancy held that " if party
is unlawfully imprisoned, the writ OF ha-
beas corpus is his appropriate legal remedy:
IL Is his suit in court 20 recove his liberty
There was much diversity of opinion on
another ground of jurisdiction, bu. on this,
that in the sense Of the 25th section OF. the
judiciary act, the proceeding by habeas
corpus was j suit was not controverted by
, any except Baldwin, Justice, and hethought
that "suit" and "Cause" as used IN the
section, mean the same thing.
The court do not say that a return must
be made, and the parties appear and begin
70 try the case before it is a suit. When
I toe netition is fled and the writ prayed
for. il is a suit-the suit of the party max
ing the application. If it is a suit under
the 25th section Of the judiciary act, when
. the proceedings are begun, it is, by the
! apaloQies of the law, equally a suit under
the 9th section of the act Of 1902.
But il is argued that there must be two
r parties to the suit, because the point Is to
+ be stated upon the request OF "either party
E ar their counsel" Such a literal and tech
nicaI construction would defeat the very
, Durnosp the Legislature had in view, which
! was to enable any party 10 bring the case
e here, when the point in controversy was a
= matter ofright and not OF discretion, and the
, words "either party" in order to prevent a
' failure of Justice must be construed as
: words of enlargement, and not Of restric-
o flor. Although this case IL here er parte, il
I was not considered by the court below
4 yithou, notice having been given to the
. party supposed TO have an interest in the
detention of the prisoner. The statements
A Of the record show that this is not only s
f fair. but conclusive inference. When the
o counsel for Milligan presented to the court
. the petition for the writ of habeas corpus
4 ! Mr. Hanna. the district attorney for lndi
f ana. also appeared and, by agreement the
,. application wal submitted to the court, who
a took the case under advisement and on the
next dav announced their inability to agree
and made the certificate. II is clear tina
q Mr.. Hanna did not represent the petitioner
y and why il his appearance entered Il
/ admits of no other solution than this-tha
II he was informed Of the application and aP
Is pearcd on behalf of the government to con
10 lest il. The government was the prosecu
n tor of Milligan, who claimed that his i'm
= prisonment was illegal, and sought, in tn
il only way ne could, to recover his liberty
Z. The case was grave one the court IN
10 ouestionahly, directed that the law office
pr orthe government should be informed oft
in He very properly appeared, and as tn
is facts we're uncontroverted and the difficult.
le was in the application Of the law, ther
ne was no useful purpose to be obtained Il
10 issuing the writ. The cause was, therefore
n submitted to the court for their considera
n ton snd determination. But MlllIEa
Al claimed his discharge from custody by viz
Of tue ofthe act of Congress relating to habea
M corpus. and regulating judicial proceed
or ings in certain cases approved March
a 1868. Did that act confer jurisdiction o
"a the Circuit Court of Indiana to hear TIL
case2 In interpreting the law, the motive
he which must have operated with the Legs
ne laure in passing it are proper to be consio
or cred This law was passed IN a time {
ye great national peril, when our heritage
IN free government was in danger An arme
rebellion against the national authority,
m greater proportions than history affords a
l. example, was raging; and the public sstei
,sa ,equirei that the privilege Of the writ
IN baheas corpus should be suspended. IL