Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-05

J
have been numerous. In United State
Is. Daniel Is wheaton, the court, ii
holding that division of the judges OF
a motion for a new trial could not be Ger
titled, say ''That the question must b.
one which arises in a cause depending
before the court relative to a proceeding
belonging TO the cause.n Testing Mill
gan's case by this ruleS of law, is it no
apparent that il is rightfully here, anC
that we are compelled to answer tn,
questions on which the judges below
were opposed in opinion? If, in th,
sense of the law, the proceeding for tn,
writ of habeas corpus was the cause
of the party applying for il, then it i
evident that the cause" was pendinl
before the court, and that the question
certified, arose out Of it, belonged to it
and were matters of right and not of dis
cretiOn.
But it is argued that the proceeding
does not riDen into a cause until there arr
two parties to it. This we deny. 1t wa
the cause of Milligan when the petition
was presented to the circuit court /
would have been the cause of both parties
if the court had issued the writ anC
brought those who held Milligan in Gus
todv before it. Webster defines the wore
"causeu - thus: A suit or action il
court: any legal process which party
institutes to obtain his demand, or by
which he seeks his right, or supposed
| right tu-and he says" this is a legal
scriptural, and popular use of the word
coinciding nearly with cause from cGdo
and action from ago, to urge and drive. .
In any legal sense, action, suit, and caust
are convertible terms. Milligan sup
posed he had right to test the validity
Of his trial and sentence and the pro
ceeding which he set in operation for tha
purpose was his cause or sUit.n Il
was the only one by which he could re
cover his liberty. He was pOwerless Il
I do more he could neither instruct the
Judges nor control their action, and
should not suffer, because, without faulj
Of bis, they were unable to render q
+. Judgment. But the true meaning to the
I term 81 suit " has been given by this
court. One Of the questions in Western
VS. City Council of Charleston 2 Peters
was, whether a writ Of prohibition was a
suit; and Chief Justice Marshall says
"The term is certainly 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 Milli-
gan pursued the only remedy which the
law afforded him.
Again, in COhens VS.. Virginia, {
/ Wheaton,, he says: " In law language a
suit is the prosecution Of some demand
in a court Of Justice" Also, to com
] mence a suit Is to demand something by
I the institution of process in a court Ol
Justice: and to prosecute the suit is tC
continue that demand" When Milli-
gan demanded his release by the pro.
/ ceeding relating 20 habeas corpus he
/ commenced a suit, and he has since
/ prosecuted il in all the ways known tC
the law. One of the. questions in
! Holmes VS.. JennisoD, Il Peters,, was
whether under the twenty-tifth section
of the judiciary act, proceeding for 8
writ OF habeRs corpus was suit
Chief Justice Taney held that. "if {
party is-unlawfully imprisoned, the wri
Of habeas corpus is his appropriate lega
remedy. u is his suit in court to recover
his liberty" There was much diversity
of opinion on another ground OF Juris
diction, but on this, that in the sense O
the twenty fifth section Of the judiciary
act, the proceeding by habeas corpus
was 8 suit, was not contrOverted by any
except Baldwin, Justice, and he though
that " suit - and "cause,n as used II
the section, mean the same thing.
The count do not say that a return
ngst be made, and the parties appea
and begin to try the case before 1t Is
suit When the petition is iiled and th'
writ prayed for, it is a SltH-the suit 0
the party making the application. If /
Is a suit under the 25th section Of th'
judiciary act, when the proceedings ar
begun, it is, by all the analogies OF thu
law, equally a suit under the 9th section
of the act OF is02.
But is argued that there must be tlC'
parties to the suit, because the point IS t
be stated upon the request of elthe
party or their COUNSEL Such ltera
and technical construction would defea
the very purpose the legislature had Il
view, which was to enable any party &
bring the case here, when the point il
controversy was matter of right ant
not of discretion and the words " eithe
partv,u in order to prevent a failure o
Justice, must be construed as words o
ENLARGEMENT, and not of restriction
Although this case is here er pdrte,
was not considered by the court belOV
without notice having been given to In
party supposed TO have an interest IN Tn
. detention of the prisoner. The state
nlents Of the record show that this is no
only a fair, but conclusive inference
! When the counsel of Milligan Iresente
] ( TO the court the petition for the writ q
J habeas corpus, MIR. Hanna, the distrlC
, attorney for Indiana, also appeared anc
by agreement, the application was sui
mitted to the court, who took tbs cas-
2 under advisement, and on the next da
- announced their inability to agree
and made the certificate. 1t IS elea
% that Mr.. Hanna did not represent tn
{ petitioner, and why is his appearanc
D entered II admits of no other SOlutio
e than this-that he was informed Of Tn
= application, and appeared on behalf {
z the government to contest il. The gov
f eminent was the prosecutor of Milligar
. who claimed that his imprisonment wI
j. illegal, and sought, in the only way h
[ could, to recover his liberty, The css
: was grave one; the court, unqusstiOI
d ably, directed that the law officer Of tn
/. government should he informed OF j
{ He very properly appeared and as III
q facts We're uncontrOverIed, and the din
] Guilty was in the application OF the Law
o there was no useful purpose to be Ol
n tanned in Issuing the writ. The eau:
G was, there:ore, submitted to the cou
q for their consideration and determine
n ton. But Milligan claimed his dl
q charge from custody by virtue Of the "a
d OF Cungre=s relating TO habeas corpu
/ and regulating Judicial proceedings
It certain cases" approved March 8, ls6
2 Did that act confer jurisdiction on Il
< circuit court of Indiana TO hear tn
e case ? In interpreting the law the m
d tgeG which must have oYerated vii
the legislature IN passing lt a
nroper TO be considered Th
q law was passed in a time of gre
y national peril, when our heTitai
i of free government was in danger. a
!, armed rebellion against the nation
Il authority, Of greater proportions thf
It history affords an example, was raging
s. and the public safety required that q
n priyilege q the writ OF habeas corp
n should be suspended. The president nj
e practically suspended it, and detain,
u suspected persons in custody wit
" ont trial; but his authority to
5f tiiis was questioned. II W
= claimed that congress alone ooU
is exercise this power, and that the legisl
,e ture, and not the president, should jud
le of the political considerations on whit
" the right TO suspend ii rested. The pri
a / ileee Of this great writ lad neVer hefo
E. been withheld from the citizen; and,
Ia the exigenee Of the times demanded il
.e mediate action, It was Of the highest Ii
m I DOTtaQce lDaI N0s thHluthCSo VI tue 81
a pension should be fully established.
* tvas under these circumstances, viii
,e were such as 10 arrest the attention
.. the country, that this law was passe
le The president was authorized by it
!. SUSPEND The privilege Of the writ of hal
l. ss dornus whenever 10 his Judgment &
ID pubIie safety required and he did,
Ia proclamation bearing date the 18th
lso,faD,ber 1SS3 reciting among 9th
IN fbin0s the authority of this statute, 81
(, pend it. The suspension OF the writ dc
ID n5t authorize the arrest Of sny one,
10 simply denies to one arrested the pri
IA jlege OF this writ IN order 10 obtain
e liberty.
II II IS proper, therefore, to inquire und
a. what circumstances the court cou
ie rightfully refuse to grant TINS writ, a
3 when the citizen was at liberty 10 invo
IL its aid.