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

lawfulness Of the imprisonment, and could
render no judgment, the psisos e. 10 remee-
iless. and cannot have the disputed quest. n
Q, rtifed under the &C, Of 1892. lis rem =
dy is complete by writ u error OF appea
II the court renders final jud -ment rsisis-
ing TO discharge him; bu; il be should lie
so fortunate as 10 be placed in a predica-
ment Of having the court divided Oh the
question whether he should live or die, lie
- hopeless and without remedy. lie WISHES
tha vital question settled, not by single
Judge, al his chambers, but b. the highest
,rib.r.l known 10 tho Constitution and
VI tae pI bege Is Genie him. because the
circuit Court consists O. too Judges Ia
sead OF o. Such 70 sull Was lot IN The
contemplation Of tic leeslsiuIe of 1902 !,
and the language used by il can not BE
construed TO mean any such thing. The
clause under consideration was introduced
70 further tho ends 81 jos ice. by obtaining
a speedy settlement Of important questions
where the Judges mi hit be opposed IN opin-
ion.
The act Of 1902 20 changed the judicial
three, wss composed Of two judges; and,
without the provision, or kindred one,
il the judges differed, the difference
would remain, the question be un-
settled, and justice denied. The
decisions Of this court upon the provisions
oil this section have been numerous. In
United States vs.. Daniel. GO Wheaton, the
court, in holding hat a division Of the judg
cs on a motion for \ new trial could not be
certified, say: That the question must be
one which arises in cause depending be-
fore the court relative to = proceeding be-
longing 10 the cause Testing Milligan's
case by this rule Of law, 10 it not apparent
that it 10 rightiully here and that We are
compelled TO answer the questions on which
the jldgcs below were opposed IN opinion
II, m the sense Of the law, the proceeding
for the wit Of habeos corpus was the 'eanse'
Of the party applying for It, then 1t j, esi-
dent that The cause" was pending before
the court, ard tina, the questions certified
arose ont Of it, belonged to it, and we're mat
.ers OF right aud not Of discretion.
But it Is argued that the proceeding does
not iipeH into n cause until there are two
parties TO it. This we deny. II was the
cause Of Miligan when the petition was pre-,
| scented to the circuit cout. 1t would have
been the cause VI both parties il the court
had issued the writ and brought those who
held Milligan in custod, before il. Webster
defines the word "cause" thus: "A suit oil
action in court; any legal process which I
party institutes TO obtain his demand, OF b.
which he seeks his right, or supposed right
and he says, this is . legal scriptura
and popular use Of the word, coincidini
nearly with case. from cddo, and action, frou
agc.to urge and drive"
Ia any legal sense action, cause and sui
ars convertible terms. Milligan supposed
he had right to test the validity Of his tria
aud sentence; and the proceeding which h,
set in opcrAtioo for that purpose Was his
cause, " suit" II was tho only one b.
which he could recover HE liberties. II,
was powerlsss 10 do more; he could neither
instruct the judges nor control their action
and should not suffer because, without faul,
Of his, they were unable 70 render judg-
inent. But the true meaning to the term
suit has been gives BY this court Ons
Of the questions in Weston ~. City Council
Of Charleston G. Peters) MAS, whether ,
writ Of prohibition was . suit and Chic
Justice Marshall says: 1.-The term is cef
tainly . comprehensive one, and Is under.
stood TO apply TO any proceeding in cour
ofjusticc by which an individual pursues tina
remedy VIII Oh the law affords him. Certsinl,
Miligan pursued the only remedy which the
law afforded him.
Again, in Cohens vs. Virginia, &C Wheat
on) he says; "In law language a suit Il
| the prosecution Of some demand in . cour
al Justice Also, TO commence suit il
10 demand something by the institution Of
| process IN court Of jus,lce; ami to prosecute
thc@uit Is To- continue that demand" Whri
Hll.gan demanded his release by the pso
ceoting relating to kabcds corpus, he com
,neaccd suit: anl he has since prosecute (,
II IN al the ways known T. the law. =
Nnc OF the questions ia Holmes VS.. .lea
n.son II Peters was, whether, undo
the 10Th section OF The judiciary &C,
proceeding for q writ Of habcd
e9rprS was "sui," Chief Justice Tame,
held that ''if n party is unlawiully impris
oncd the writ of hdbeps corpus is bis appro
pirate legal remedy, II rs his suit in cour
70 recover his liberty There was mucl
diversity Of opinion on another ground Of
jurisdiction but on this, that, IN the sense
Of the 18th section Of the judiciary act, tn,
proceeding by iaJeds corpus was suit, wa
no, controverted by any except Baldwin
Justice, and he thought that suit" an,
cause as used ia the section, mean tn,
same thing
The court do not say that return must
he made and the parties appear and bcgii
| to try the case before il Is u suit. When
the petition ia filed and the writ prayed fol
It Is suit the suit OF the party maxim.
the application. II il u a suit under the 25tt
section Of the judiciary act when the pro
cecjings are begun, il is. by all the anslo
sies of the Law, equally suit under tn,
r.h section of the act of 1902
/ But it is argued that there must lie twC
parties % the suit, because the point is to bt
stated upoa the request oil 'cith,r party nj
! their council" Such a liberal and technica
construction would defeat the very purpos,
/ the Legislature had IN view, which was L
enable any party TO bring the case here
when the pcsnt in controversy Was matte
of night aud Of discretion and the wor l,
either party" Ia order TO prevent failur,
( Of justice, mus, be construed rs words 0
( enlargement. and not not OF restriction.
Although the case Is here er pdrse, il wa.
not considered by the court below withou,
notice having been given to the party sup
posed to have an interest in the detention 0
the prisoner. The statements Of the recort
show that this il not only fair, but conclu
siye inference. When The counsel for Mil
ligan presented to the court the petition 70
the writ Of habeas corpus, MIR. Hanna, tn
district attorney for Indiana, also appeared
and, BY agreement, the application was sub
United 70 The court who took the sase un
dss advissosnt end % The next day "a
nounced their inability 70 sgrsss and mad
~ certificate. Ieb clear that NJ. Ham
dill not rsPsseent the petitieass, End Why i
his appearance eatsrsd. Il sdoits Of n,
other eolueieo ehoa this--that h. weo II
formed Of the application, and appeared o
behalf Of the Government to contest Il. Tn
3ovsgnnsae was Tie psssecutss e Hill
gan, Whe clAimsa that he inpeisoansat Va
Illegal; and sought h the ~ way II csuld
70 recover his liberty. IL 60 ~
grave one and the cnsnpt 0nnonSo1nn6haQ