Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-10-24

an armed violation Of his parole as rebe
or Confederate prisoner Of war, his psrol'
having been given Oh OF about May l
| 1855. at Greensboro, North Carolina"
It is positively denied by Mr.. AMBER
| SON. one Of NILLIREN's counsel, that h'
| consented that this amendment should
he made. It is admitted thst none othel
| of the counsel consented to it. The Dis
| trict Attorney had nothing to do with it
! It was not made by leave Of the Court, o
with the k~nowIedgeIof the Court.
1t is unpleasant to have to comment
upon the course that counsel choose K
take in q suit in Court, and would be
grave improperly and ~indeceucy in al
ordinary case. But when Mr.. LEVI;
accepted a retainer from the Govern.
ment OF General THOMAS, he became
for that case, an officer Of the Govern.
ment, and It is responsible for all the
steps he took in it. Not to censure hun
but 10 show that the Government Oh
Military power did not deal fairly by
MmLIKEN, or by the Court, We speak
Of what occurred.
MILLIKEN had committed no offence
for which he could have been indicted in
any Court of the United States, or Of
Tennessee. He had not violated his
parole st all. He had been p~srdoued, by
the Presidents Proclamation Of 29th
May, 1865, being w]ithinnone Ofthe exesp.
tions, and had taken the required oath on
the 8Ist of July, 1865. There was on file in
Lhe suit, the affidavit Of T. J. SHELTON,
proving this, and that on the q Of Sep
TENDER, he took this oath Of MILLIKEN
to Louisville, and gave it to Brevet Maj
Gen. r. w. JOHNSON, A. A. Gen. Of the
Department Of the Cumberland, who
kept it, saying it had better be placed
among the papers concerning the arrest.
That oath of Itself, taken under the
Proclamation, ended the parole; and
after Gen. THOMAS knew it had been
taken, it vas 8 very grave offence against
the law for him to continue the unlawful
Imprisonment Of MILLIKEN.
The old English law says this as to the
writ Of Hsbeas Corpus: at seems that
the king has supreme power ven over
all courts, within the dOminioDs Of the
king, delegated by the king, and there
fore if any man be imprisoned by any,
a corpus ctsDt cGuSG may be be granted
to them who imprisoned him For the
king ought 70 have an account given to
him Of the liberty Of his subjects, and Of
the restraintofit." The Writ was declared
by MONTAGUE, Oh. J., in BourR'S case,
Gro. Jdc. 54S, to be "a ~pTerOgative writ
which concerns the kings justice to be
administered to his subjects for he
ought to have account why any Of his
subjects are imprisoned, and it is agreea-
bIe to all persons and places"
When the United States demanded to
be informed Of the cause Of the impris-
Of MuLIKEN, the return made
by order Of General THOMAS was worth
less, and the prisoner should have been
at once discharged. It did not show
what be had done,so that the Court could
determine whether be had violated his
parole. Fer this we need cite but
one authority. In the 18th year Of James
|, when there was none too much lib
erty in England, a person being brought
into the Court of Kings Bench on a
Habeas Corpus, the return was, that he
committed by the High Commits
ion, " and The warrant OF the commit
nent was, that he was committed be-
he had used diverse r~eproschful
words against the proceedings Of the
High Commission, and this being
irAwn into form Of law in diverse arti-
lies, he refused to answer Il was moved
hat the petition is insufficient, because
{ is too general. Per COKE, the return
S not good, because it is not shown what
he articles were for p~eradventure they
we're articles concerning matters st the
Common Law also it is too general, that
he was committed for diverse reproachfuI |
words, &c, besides, no time is |
when the words were spoken, and
perhaps they are ~pardOned by some act
parliament, il the time had appeared.
The Court held the return not good. God.
le'S case, ! Role, Rep. 245. 1t was diff
erent where the commitment was by a
judicial court. Gro. JAG. 579, or by
House OF Parliament which are courts.
But where the commitment was by the
secretary OF State, for high trea-
on, tie facts had to oe stated.
NILLIKEN was imprisoned by q person
lot quite as important as the Lords Of
be High Commission Of England the
imputed 70 him were matters at
be Common Law" i.e., no offence
any other law aud he had been
,ard0ued and discharged OF his parole
here was No case whatever 70 hold
i'm bis arrest and Imprisonment were
reat wrongs, aud, as the District Attor-
ey knew and admitted, he ought to
ave been discharged at once.
In ordinary suits it is permissible to
.wyers, perhaps, 70 take advantages
are not entirely conscientious.
hey do go, at least, " when il is
pder colour OF Law, to rob one mar Of
ght for the emolument Of another. But
Re Government is not at liberty 80 to
eal with a case in which the personal
eedom OF one Of its citizens or subjects
concerned: mol are its Counsel at lib {
ty to put It in the attitude OF doing SC. q
be presumption is that it does not
lthorize what Is unfair or unconscious I
BUS. An attempt to proloug an unjust q
.prisonment by Withholding the facts Z
the Court, or by arguing against !
stice and right reason, cannot be JUST. :
ID. One feels instinctively that a great
stion oughtn not 10 endeavour to continue I
e unlawful imprisonment OF a helpless !
by resorttng to a quibble or techni. \
lily, or even 8 clear legal advantage. s
ought, on the contrary, eagerly to set ,
% free. The lip instinctively curls :
tn scorn at a denial by it, to him, Of Il
3 right to deny the truth Of the return e
d to provei il untrue. What if some Of Il
E old cases under the STUARIs did hold .
? Was the Government Of the Repub- T,
bound to insist on such a right, II it n
d it? There are few lawyers, we Z,
nix, who would not throw up their
efs, rather than make the point for it, hi
earnest. Of
{ seems to as, also, that it was wrong re
moro Than one ground IN eitber o,,se 81