XX.

JUDICIAL OPINIONS.

decided; and the decision of the Supreme Court | remedy. He wishes the vital question settled, and their order in the premises shall be remitted not by a single judge at his chambers, but by to the circuit court and be there entered of record, the highest tribunal known to the Constitution; and shall have effect according to the nature of and yet the privilege is denied him, because the the said judgment and order: Provided, That circuit court consists of two judges instea nothing herein contained shall prevent the cause one. Such a result was not in the contemplafrom proceeding, if, in the opinion of the court, tion of the Legislature of 1802, and the language further proceedings can be had without prejudice used by it cannot be construed to mean any such to the merits." thing. The clause under consideration was introduced to further the ends of justice by obtaining a speedy settlement of important questions where the judges might be opposed in opinion.

It is under this provision of law that a circuit court has authority to certify any question to the Supreme Court for adjudication. The inquiry, therefore, is, whether the case of Milli- The act of 1802 so changed the judicial system gan is brought within its terms. It was admit- that the circuit court, instead of three, was ted at the bar that the circuit court had juris- composed of two judges; and without this prodiction to entertain the application for the writ vision, or a kindred one, if the judges differed, of habeas corpus and to hear and determine it; the difference would remain, the question be unand it could not be denied, for the power is ex-settled, and justice denied. The decisions of this pressly given in the 14th section of the judi- court upon the provisions of this section have ciary act of 1789, as well as in the later act of been numerous. In United States vs. Daniel, 1863. Chief Justice Marshall, in Bollman's case, (6 Wheaton) the court, in holding that a division (4 Cranch,) construed this branch of the judi- of the judges on a motion for a new trial could ciary act to authorize the courts as well as the not be certified, say: "That the question must judges to issue the writ for the purpose of in- be one which arises in a case depending before quiring into the cause of the commitment; and the court relative to a proceeding belonging to this construction has never been departed from. the cause." Testing Milligan's case by this rulo But it is maintained with earnestness and abil-of law, is it not apparent that it is rightfully ity that a certificate of division of opinion can occur only in a cause; and that the proceeding by a party moving for writ of habeas corpus does not become a cause until after the writ has been issued and a return made.

Independently of the provisions of the act of Congress of March 3, 1863, relating to habeas corpus, on which the petitioner bases his claim for relief, and which we will presently consider, can this position be sustained?

It is true that it is usual for a court, on application for a writ of habeas corpus, to issue the writ, and on the return to dispose of the case; but the court can elect to waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it, could be discharged. One of the very points on which the case of Tobias Watkins, reported in 3 Peters, turned was, whether, if the writ was issued, the petitioner would be remanded upon the case which he had made.

The Chief Justice, in delivering the opinion of the Court, said: The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently the writ ought not to be awarded if the court is satisfied that the prisoner would be remanded to prison."

here, and that we are compelled to answer the questions on which the judges below were opposed in opinion? If, in the sense of the law, the proceeding for the writ of habeas corpus was the "cause" of the party applying for it, then it is evident that the" cause was pending before the court and that the questions certified arose out of it, belonged to it, and were matters of right and not of discretion.

But it is argued that the proceeding does not ripen into a cause until there are two parties to it. This we deny. It was the cause of Milligan when the petition was presented to the circuit court. It would have been the cause of both parties, if the court had issued the writ and brought those who held Milligan in custody before it. Webster defines the word "cause

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thus:

A suit or action in court; any legal process which a party institutes to obtain his demand, or by which he seeks his right, or supposed right"-and he says, "this is a legal, scriptural, and popular use of the word, coinciding nearly with case, from cado, and action, from ago, to urge and drive."

In any legal sense, action, suit, and cause are convertible terms. Milligan supposed he had a right to test the validity of his trial and sentence; and the proceeding which he set in operaThe judges of the circuit court of Indiana tion for that purpose was his "cause" or "suit." were therefore warranted by an express decision It was the only one by which he could recover of this Court in refusing the writ, if satisfied his liberty. He was powerless to do more; he that the prisoner, on his own showing, was could neither instruct the judges nor control rightfully detained; but, it is contended, if they their action, and should not suffer, because, withdiffered about the lawfulne s of the imprison-out fault of his, they were unable to render a ment, and could render no judgment, the pris- judgment. But the true meaning to the term oner is remediless, and cannot have the disputed suit" has been given by this Court. One of question certified under the act of 1802 His the questions in Weston vs. City Council of remedy is complete by writ of error or appeal, if Charleston (2 Peters) was, whether a writ of prothe court renders a final judgment refusing to hibition was a suit; and Chief Justice Marshall discharge him; but if he should be so unfortu- says: "The term is certainly a comprehensive nate as to be placed in the predicament of hav-one and is understood to apply to any proceed. ing the court divided on the question whether ing in a court of justice by which an individual he should live or die, he is hopeless and without pursues that remedy which the law affords him."

Certainly Milligan pursued the only remedy | of the Government should be informed of it. He which the law afforded him.

very properly appeared, and as the facts were unAgain, in Cohens vs. Virginia, (6 Wheaton,) controverted and the difficulty was in the applicahe says: In law language a suit is the prose- tion of the law, there was no useful purpose to cution of some demand in a court of justice." be obtained in issuing the writ. The cause was, Also, "to commence a suit is to demand some- therefore, submitted to the court, for their conthing by the institution of process in a court of sideration and determination. But Milligan justice; and to prosecute the suit is to continue claimed his discharge from custody by virtue of that demand," When Milligan demanded his the act of Congress "relating to habeas corpus, release by the proceeding relating to habeas cor- and regulating judicial proceedings in certain pus he commenced a suit, and he has since prose-cases," approved March 3, 1863. Did that act cuted it in all the ways known to the law. One confer jurisdiction on the circuit court of Inof the questions in Holmes vs. Jennison (14 Pe- diana to hear this case? In interpreting a law, ters) was, whether under the 25th section of the the motives which must have operated with the judiciary act a proceeding for a writ of habeas legislature in passing it are proper to be concorpus was a "suit." Chief Justice Taney held sidered. This law was passed in a time of great that, if a party is unlawfully imprisoned, the national peril, when our heritage of free governwrit of habeas corpus is his appropriate legal ment was in danger. An armed rebellion against remedy. It is his suit in court to recover his the national authority, of greater proportions liberty." There was much diversity of opinion than history affords an example, was raging: on another ground of jurisdiction, but on this, and the public safety required that the privilege that in the sense of the 25th section of the judi- of the writ of habeas corpus should be suspended. ciary act, the proceeding by habeas corpus was The President had practically suspended it, and a suit, was not controverted by any except Bald- detained suspected persons in custody without win, Justice, and he thought that suit" and trial; but his authority to do this was questioned. cause," as used in the section, mean the same It was claimed that Congress alone could exercise thing. this power, and that the legislature, and not the President, should judge of the political con siderations 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 exigence of the times demanded immediate action, it was of the highest importance that the lawfulness of the suspension should be fully established. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed. The President was authorized by it to suspend the privilege of the writ of habeas corpus whenever, in his judgment, the public safety required; and he did, by proclamation, bearing date the 15th of September, 1863, reciting among other things the authority of this statute, suspend it. The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of this writ in order to obtain his liberty.

The court do not say that a return must be made and the parties appear and begin to try the case before it is a suit. When the petition s file and the writ prayed for, it is a suit-the suit of the party making the application. If it is a suit under the 25th section of the judiciary act, when the proceedings are begun, it is, by all the analogies of the law, equally a suit under the 6th section of the act of 1802.

But it is argued that there must be two parties to the suit, because the point is to be stated upon the request of "either party or their counsel." Such a literal and technical construction would defeat the very purpose the Legislature had in view, which was to enable any party to bring the case here, when the point in controversy was a matter of right and not of discretion; and the words "either party," in order to prevent a failure of justice, must be construed as words of enlargement, and not of restriction. Although this case is here ex parte, it was not considered by the court below without notice having been given to the party supposed to have an interest in the detention of the prisoner. The statements of the record show that this is not only a fair, but conclusive inference. When the counsel for Milligan presented to the court the petition for the writ of habeas corpus, Mr. Hanna, the district attorney for Indiana, also appeared; and, by agreement, the application was submitted to the court, who took the case under advisement, and on the next day announced their inability to agree, and made the certificate. It is clear that Mr. Hanna did not represent the petitioner, and why is his appearance entered? It admits of no other solution than this-that he was informed of the application, and appeared on behalf of the Government to contest it. The Government was the prosecutor of Milligan, who claimed that his imprisonment was illegal, and sought, in the only way he could, to recover his liberty. The case was a grave one; and the court, unquestionably,directed that the law officer

It is proper, therefore, to inquire under what circumstances the courts could rightfully refuse to grant this writ, and when the citizen was at liberty to invoke 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 a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period, unless certain judicial proceedings known to the common law were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the United States a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of States in which

the administration of the laws in the Federal | the judges could not agree on questions vital to tribunals was unimpaired. After the list was fur- the progress of the cause they had the authority, nished, if a grand jury of the district convened (as we have shown in a previous part of this and adjourned, and did not indict or present opinion.) and it was their duty to certify those one of the persons thus named, he was entitled questions of disagreement to this Court for final to his discharge; and it was the duty of the judge decision. It was agreed that a final decision on of the court to order him brought before him to the questions presented ought not to be made, be discharged, it he desired it. The refusal or because the parties who were directly concerned omission to furnish the list could not operate to in the arrest and detention of Milligan were not the injury of any one who was not indicted or before the court; and their rights might be prepresented by the grand jury; for if twenty days judiced by the answer which should be given to had elapsed from the time of his arrest and the those questions But this court cannot know termination of the session of the grand jury, he what return will be made to the writ of habeas was equally entitled to his discharge as if the corpus when issued; and it is very clear that no list were furnished; and any credible person, on one is concluded upon any question that may petition verified by affidavit, could obtain the be raised to that return. In the sense of the law judge's order for that purpose. of 1802, which authorized a certificate of division, a final decision means final upon the points certified; final upon the court below, so that it is estopped from any adverse ruling in all the subsequent proceedings of the cause. But it is said that this case is ended, as the presumption is that Milligan was hanged in pursuance of the order of the President. Although we have no judicial information on the subject; yet the inference is that he is alive; for otherwise learned coursel would not appear for him and urge the Court to decide his case.

Milligan, in his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the circuit court of Indiana jurisdiction. If he was detained in custody by the order of the President, otherwise than as a prisoner of war; if he was a citizen of Indiana, and had never been in the military or naval service, and the grand jury of the district had met, after he had been arrested for a period of twenty days, and adjourned without taking any proceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment. Because the word "court" is not found in the body of the second section, it was argued at the bar that the application should have been made to a judge of the court, and not to the court itself; but this is not so; for power is expressly conferred in the last proviso of the section on the court equally with a judge of it to discharge from imprisonment. It 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 judicial failure to find cause of offence against him. Courts are not always in session, and can adjourn on the discharge of the grand jury; and before those who are in confinement could take proper steps to procure their liberation. To provide for this contingency, authority was given to the judges out of court to grant relief to any party who could show that, under the law, he should be no longer restrained of his liberty. It was insisted that Milligan's case was defective, because it did not state that the list was furnished to the judges, and, therefore, it was impossible to say under which section of the act it was presented. It is not easy to see how this omission could affect the question of jurisdiction. Milligan could not know that the list was 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 an averment? How can Milligan be harmed by the absence of the averment when he states that he was under arrest for more than sixty days before the court and grand jury, which should have considered his case, met at Indianapolis? It is apparent, therefore, that under the habeas corpus act of 1863, the circuit court of Indiana had complete jurisdiction to adjudicate upon this case, and if

It can never be in this country of written constitution and laws, with a judicial department to interpret them, that any Chief Magistrate would be so far forgetful of his duty as to order the execution of a man who denied the jurisdiction that tried and convicted him, after his case was before federal judges, with power to decide it, who, being unable to agree on the grave ques. tions involved, had, according to known law, sent it to the Supreme Court of the United States for decision. But even the suggestion is injurious to the Executive, and we disraiss it from further consideration. There is, therefore, nothing to hinder this Court from an investigation of the merits of this controversy.

The controlling question in the case is this: Upon the facts stated in Milligan's petition, and the exhibits filed, had the military commission mentioned in it jurisdiction legally to try and sentence him? Milligan, not a resident of one of the rebellions States, or a prisoner of war, bat a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at his home, arrested by the military power of the United States, imprisoned, and, en certain crim inal charges preferred against him, tried, convicted, and sentenced to be hanged by a military commission, organized under the direction of the military commander of the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man? No graver question was ever considered by this Court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen, when charged with crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of

sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek, by sharp and decisive measures, to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of Government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the Government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

justice of the country or endangered its safety. | now, after the lapse of more than seventy years, By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to in terfere; if there was not, it is our duty to declare the nallity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These prece dents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our Government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution, and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direst to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says, "that the trial of all crimes, except in case of impeachment, shall be by jury;" Have any of the rights guarantied by the and in the fourth, fifth, and sixth articles of the Constitution been violated in the case of Millıamendments. The fourth proclaims the right to gan? and, if so, what are they? Every trial be secure in person and effects against unreason-involves the exercise of judicial power; and from able search and seizure; and directs that a judi- what source did the military commission that cial warrant shall not issue "without proof of tried him derive their authority? Certainly no probable cause supported by ath or affirmation." part of the judicial power of the country was The fifth declares that no person shall be held conferred on them, because the Constitution exto answer for a capital or otherwise infamous pressly vests it "in the Supreme Court and such crime unless on presentment by a grand jury, inferior courts as the Congress may, from time except in cases arising in the land or naval forces to time, ordain and establish," and it is not preor in the militia when in actual service in time tended that the commission was a court ordained of war or public danger, nor be deprived of life, and established by Congress. They cannot jusliberty, or property without due process of law." tify on the mandate of the President, because he And the sixth guaranties the right of trial by is controlled by law, and has his appropriate jury in such manner and with such regulations sphere of duty, which is to execute, not to make that with upright judges, impartial juries, and the laws; and there is "no unwritten criminal an able bar, the innocent will be saved and the code to which resort can be had as a source of guilty punished. It is in these words: "In all jurisdiction." But it is said that the jurisdiction criminal prosecutions the accused shall enjoy is complete under the "laws and usages of war." the right to a speedy and public trial by an im- It can serve no useful purpose to inquire what partial jury of the State and district wherein those laws and usages are, whence they originathe crime shall have been committed, which dis ted, where found, and on whom they operate; trict shall have been previously ascertained by they can never be applied to citizens in States law, and to be informed of the nature and cause which have upheld the authority of the Governof the accusation, to be confronted with the wit-ment, and where the courts are open and their nesses against them, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was proposed for adop-provoked by the state of the country even to attion, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are

process unobstructed. This Court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and to redress grievances; and no usage of war could sanction a military trial there, for any offence whatever, of a citizen in civil life, in no wise connected with the military service. Congress could grant no such power; and, to the honor of our National Legislature be it said, it has never been

tempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior. Why was he not delivered to the circuit court of Indiana, to be proceeded against according to law?