Year: 1867




and why is his appearance entered? 1t ada
mits of no other solution than this that he


was informed of the application, and ap7
peared OH behalf of the Government to con-


test 1t. The Government was the prosecute
or of Milligan, who claimed that hisimpris-
onment was illegal, and sought in the only


way he could to recover his liberty. The


case was Il grave one, and the court unques-


tionably directed that the law officer of the


Government should be informed of 1t. He


very properly appeared, and as the facts


were uncontroverted, and the difficulty was


in the application Of the law, there was no


useful purpose to be obtained by issning the


writ. The cause was therefore submittedtO


theieourt for their consideration and deter


mination. But Milligan claimed his dis


charge from custody by virtue OF the act


of Congress relating to habedS corpus and


regulating judicial proceedings in certain
cases, approved March 3, 1868. Did that con-


fer jurisdiction on the Circuit Court of In


diana to hear this case In interpreting the


law, the motives which must have opera


tedwith the Legislature in passing it, are


proper to be considered. This law was


passed in a time of great national peril,


when our heritage of free government was


in danger-an armed rebellion against the


national authority of greater proportions





ing, and the public safety required that the


privilege of the hdbedS corpus should be


suspended. The President had practically


suspended 1t aud detained suspected per-
sons in custody without trial, but his au-


thOrity to do this was questioned. lt was
claimed that Congress- alone could exercise
this power, and that the Legislature and 4
not the President should judge of the po-
lltical considerations on which the right


to suspend it rested. The privilege of this


great writ had never before been withheld
from the citizen; and as the exigenCy of
the times demanded Immediate ac ion, it
was of the highest Importance that, the
lawfulness of the suspension should be
fully established It was under these cir
cumstances, which were such as to arrest
the attention of the country, that this
law was passed. The President wa
authorized by it to suspend the privi-
lege of the writ of hdbeds corpus when |
ever in his judgment the public safety re-
quired; and he did, by proclamation bear
ing date September 10, 1868, rectting among
other things the authority of this statute to
suspend it.. The suspension of the writ
does not authorize the arrest of any one,
but simply denies to one arrested the.privi- |
lege of this writ in order to obtain his
liberty. 1t is proper, therefore, to inquire |
under what circumstances these courts
could rightlully refuse to grant this writ,
and when the citizen was at liberty to in
woke its aid. The second and third sections
OF the law are explicit on these points.
The language used is plain and direct, and
the meaning of the Congress cannot be
mistaken. The public safety demanded if
the President thought proper to arrest
suspected person, that he should not be re-
A.
on return TO writ OF hdbeQs corpus but it
was not contemplated that such person
should be detained in custody beyond cer-
tain fixed period, unless certain ju-
dicial proceedings known to the COM
mon law were commenced against him.
The Secretaries of State and War were di-
rected to furnish to the judges of the courts
of the United States a list of names of all
parties not prisoners who we're resident in !
their respective Jurisdictions who then |
were or afCerward should be held in custo- |
dy by the authority of the President, and |
who were citizens of States in which |
the administration of the laws in
the Federal tribunals was unimpaired. At
of the district convened and adjourned and
did not indict or present one of the prison
ers thus named, he was entitled to his
discharge, and it was the duty of the judge
of the court to order him brought be-
fore him to be discharged, if he desired it.
The refusal or omission to furnish the list
could not operate to the injury Of any one
who was not indicted or presented by the |
grand jury, for If twenty days had elapsed |
from the time Of his arrest and the termin-
alton of the session of the grand jury, he |
was equally entitled to his discharge as II |
the list were furnished, and any credible |
person or petition, verified by affidavit, |
could obtain the Judges order for that pur- |
pose. Nlilligan, in his application to b1 re- |
leased from imprisonment, averred the eX-
istence OF every fact necessary, under the |
terms of the law, to give the Circuit Court |
of Indiana jurisdiction. If he was detain-
ed in custody by the order of the President
otherwise than as a prisoner of war; if he
was citizen of Indiana, and had never
been in the military or naval service, and
the grand jury of the district had met af-
ter he had been arrested for a period of
twenty days, and adjourned without TAX !
Ing any .proct e1ings against him, then
the court had right to entertain his pc
tition and determine the lawfulness of
his imprisonment. Because the word |
''court" is not found In the body of the I'd |
section, it was argued at the bar that
the application shoul have been made to a
judge of the court, and not to the court it.
self; but this is not so, for power is express
ly conferred, in the last proviso of the sec
tion, on the court equally with judge oft
to discharge from imprisonment, 1t was
the manifest design of Congress to secure a
certain remedy by which any one deprived
of liberty could obtain it If there was a ja-
dicial failure to find cause of offense against
him. Courts are not always in session, and |
can adjourn on the discharge of the grand
jury and before those who are in confine-
ment could take proper steps to procure
their liberation. To provide for this con-
tingency, authority was given to judges |
out of court to grant relief to any partyI
who could show that under the law he
should be no longer restrained Of his liber-
ty.1 1t was insisted that Miligan's case was
defective, because it did not state that the
list Was furnished to the judges, and. there
fore it was impossible to say under which
section of the act it was presented. 1t is
not easy to see how this omission could
affect the question of jurisdiction. Milli-
gan could not know that the list was not
furnished unless the judges volunteered,
to tell him, for the law did not require
that any record should be made of it, or
anybody but the judges informed Of it.
Why aver the fact when the truth of the
matter was apparent to the court without
any averment? How can Milligan be
harmed by the absence of the averment
when he states that he was under arrestfo
more than sixty days before the court and |
grand jury which could have considered
his case met at Indianapolis?l It is appar-
ent, therefore, that under the hdIedS corpus
act of 1868, the Circuit Court of Indiana
had complete Jurisdiction TO adjudlcate up
on this case, and If the Judges could not
agree upon questions vital to the progress
of the cause, they had the authority, as we !