The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-01-01

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Sscssse Without faux Il hs thew were unable 70 reader
has been gwen By thn court One OF the questions IN
q Peters, was whether writ 81 prohibition was suit
Ana Chief Justice Marshall ays:-'Ths term IL
certainly comprehensive one and u understood ..
when Al individual pursnes that remedy which
the law affords him." Certainly Miigan psrsued
Cohsns W. Virginia q wheaton he says:sIn law Ian
guage suit 10 the prosecution Of some demand in
court Of tustcei" also ITO commence suit u to do
nand something by the Institution Of . process In .
OF justice and to prosecute the suit s TO continue
thai demand y" when AiIgan demanded his release BY
na IL ha since III
known 70 the law. One Of the questions
in Holmes Va Jenni.on. a Peters was whether under
Ing FOR writ Of habeas corpus suit Chisf Justice
fancy held that II party is unlawfuy Imprisoned
the writ Of hsbeas corpus Il his appropriate legal
There was much diversity OF opinion another ground
OF jurisdiction, but this that, in the or the
ing by habeas corpus vas suit the position was not
contrcvered By any except Baldwin, Justice, and he
mean the same thing. Tho Court do NOT say that
return must made and the parties appear and begin
entry Tho before lisa suit whom the petition 10
s pfa su
nth section Of the pending act when the proceedings
are begun is By all the analogies Of the law equally
suit under the sixth section OF the act Of 1602 But
10 argued that there be parties ths suit be-
cause the point is to be stated up6n the request OF
.ether party, Or their counsel Such literal and
Legislature had in view, which 70 enable any party
70 bring the here when the point 10 controversy was
sshsr party in orosr 10 prevent failure Of justice.
must be construed words Of enlargement and not Of
restriction. Although this case Is here e. Pave, was
not considered by tho court below without notice hav
Ing been given 70 the parties supposed 70 have an in
tercet in tho detention Of the prisoner The statement
che WA @
corpus Mr. Hanna the District Attorney for Indiana,
:aSna g As cou ~So u:
ment and on the next DAY announced their inability 70
and made s .Ss y y cns that ~
appearance enteredf 1t admits Of no other solution
than this THAI he was informed Of the application
oon IT, The Sovsrnmsn. was sSs prosscu
tor Of Milgan, who claimed that his imprison-
nsnt was Illegal and sought In the only way
and the court unquesonably directed that the law
ofcer OF the government should b informed Of It he
vsrs.S. nd he dcuisy was in the application Of the
law thsrs no useful purpose g b obtained In issu
ing the writ Tho cause was therefore submitted to the
court for their consideration and determination, but
Miligan claimed his discharge from custody By virtue
Of tho act Of Congress relating 70 habeas corpus and
HsTcS fSSa DID sSss souSn confer jusdcsop on he
Circuit Court Of Indiana 70 hear this casef In interpreting
law the motives which have operatsd with the Lsgsa
law was passed at time OF great national peril when
our heritage Of free government was in danger. An
armed rebellion against the national authority. q
and the public safety required that tho privilege q the
writ Of habsas corpus should DO suspended Tho Pres
persons In custody without trial. but his authority 70 do
this vas questioned was claimed that Congress could
exercise this power and that the Lg.ature and not the
which The right % suspend il rested The privilege Of
this great writ bad before been withheld from the
Immediate action was Of the utmost Importance that
the lawfulness OF the Suspension should be equally
we're sucS a. q srrss he stssnoS Of snS country
that this law was passed The President was author
ICED by 70 suspend the privileges Of the writ Of habsas
ssfssy required and he d,a = Sy psoclanstion
bearing date 18th OF September, 1885, rscltng among
other things the authority Of this statute % suspend
Ic suspension u the writ does not authorize The arrest
OF any but simply denies 20 one arrested the pvi
lege Of this writ In order TO obtain his liberty II u
SS courts could pshuiy S 70 grant this WIT
when the defendant was rty 70 invoke its aid The
second Mud third sections Of the law are explicit on these
Ing Of the Congress cannot BE- mistaken. The public
safety demanded that If the President thought proper
70 arrest suspected person. he should % required
contemplated that such person should be detained in
judicial proceedings known TO the common law were
commenced against him. Toe Secretaries Of State aud
War directed to furnish TO the judges Of the courts
OF the United States list Of the names Of all parties
not prisoners Of war; resident In their respective juris
dicons who thon afterwards should DO held In
s ey ne s .: q the e.. and Shs
was ' un,npalrsd. Afssr the list was furnished,
ana adjourned and did NOT ndct or present one Of the
persons thus named be was entitled 70 his Discharge,
was the sS q the - 70 q ne court e 70 orGsr
sired H. The refusal or omission 70 furnish hs list could
not operate the injury Of any one who was not indicted
elapsed from the time Of his arrest and the termination
OF the session OF the Grand Jury. He equally
titled 70 hs discharge - the list were furnished, and
any credible person, petition verified by andavit
could obtain the Judges order for that purpose.
Migan, in his application to b released from impri
under the terms Of this law TO give the Circuit Court q
Indiana Jurisdiction II he detained In custody by
the order Of the President Otherwise than ~ prisoner
OF war. II he was citizen OF Indiana and had never
been In the military or naval service, and the Grand
Jury the district had after he had been arrested
Tor period OF twenty days and adjourned without taking
any proceedings against him. the Court had the
right TO entertain his petition and determine the lawful
moss ~ his Imprisonment Because tho word 'court
was argued d the bar that the application should
have boon made 10 Judge OF the court and not 10 the
curt ITSELF But this + not So for power 10 expressly
conferred In the last provso OF the section tho COURT
equally with judge q It, to discharge from mprison-
nen IL was the manifest design OF Congress TO secure
could OBTAIN il against him. Courts arc not always IN
session, and adjourn ,c discharge Of the Grand
Jury, and before those who are in confinement could
take proper steps 10 procure their liberation. To pro-
for tiis contingency authority gwen TO the
judges out OF court s grant rsiof any party who
could under the Law he should DO no longer
strained of his liberty IL insisted that Mil
ligsn's case detective because it did not state
mat the si furnished to the judges, and there
fore Il was impossible 10 say under which section
OF the Il presented IL IL not easy TO nov
this omission could AFFECT the question Of jurisdiction
Miiigan could know that the list furnished,
less tle judges volunteered TO tell him. for he law did
require thai any record should be made OF H. or any
body bus the judges informed or H. Why aver the
actwhe the truth OF the measure was apparent 10 the
court without ts How can MAligan he harmod by the
absence OF the averment when he states that he
than sixty days before the Court
and Grand jury which sbcald have considered bis
met IndianapolisY II is apparent therefore, that,
under the hancss corpus act OF 1885, the Circuit Court
OF Indiana haa complete jurisdiction 70 adJudicate
upon this case, and II the Judges could not agree
questions vital she progress Of The cause they had the
authority, as we naye shown IN previous part OF this
opinion and IL their duty 10 certify those questions
OF disagreement this court FOR final decision IL was
argued lnai decaon the questions presented
ought not lie, made because the parties who were
directly concerned in the arrest and detention Of Mill
gan wore not before the court, and their rights
might be prcIudlced by the answer which should