eral of the Federal Government are administered" according to the course of the common law." Second: Military courts or "courtsmartial," in which military law (not martial) is administered according to the rule of that law.

No person can be legally tried for any offense against the laws of the United States, unless he is tried by one or the other of these courts; nor can he be legally put upon trial, unless he is charged in the manner provided in the Constitution and laws for some offense or crime defined by Congress under authority of the Constitution.

The record in this case shows that the petitioner was not tried before either of the tribunals authorized by the Constitution and ordained by Congress; nor was he charged in the manner provided by the Constitution; and, therefore, the pretended finding and sentence of the Military Commission is void.

Seventh. The Act of Congress of March 3, 1863, is the only law of the land relating to this case, and under its provisions the petitioner must be discharged. It sanctions military arrests, but in effect inhibits the military trial of citizens, and restores to them the right of the writ of habeas corpus, unless indicted by the proper grand jury within the time specified. And while it protects the citizen against long continued arbitrary confinement, it particularly regards the public safety by suitable provisions to be enforced by the court.

Messrs. J. S. Black and J. A. Garfield, for petitioner:

1. We insist that the whole proceedings were null and void from the beginning, contrary to the Constitution of the United States; inconsistent with the freedom of American citizens; derogatory to the common law of the land, and repugnant to the principles of natural justice. 2. The Constitution gives every person ac

ordained court and an impartial jury, and no power exists in any department of the government to take away this right or to suspend the Constitution and substitute martial law in its place.

A "Military Commission" is no court "or-cused of crime the right to be tried before an dained or established by Congress." It is a mere council of war, convened to advised the commanding officer in what cases it might be proper to execute martial law or the law of force, and can only act in cases where he might execute martial law without its aid or advice. If it be claimed that the President's Proclamation of September 4th, 1862, conferred jurisdiction upon the Military Commission to try the petitioner, the petitioner objects.

First. The proclamation was unauthorized by any Act of Congress, and was, therefore, void.

Art. 1, sec. 9, clause 2, Constitution; Story, on the Const., Vol. II., sec. 1345; Ex parte Bollman, 4 Cranch, 95; Ex parte Merriman, opinion of Chief Justice Taney. English precedents-Habeas Corpus Act, 31st Charles II., Bill of Rights, 1686.

Second. If not void it could affect no purpose except to suspend the right to bail or trial. As President, it was his duty" to take care that the laws be faithfully executed." Art. 2, sec.

3. As Commander-in-Chief of the Army and Navy of the United States, he was bound to govern them in accordance with such rules as Congress should provide for their" government and regulation;" and in neither capacity could he enact laws or establish rules or ordain

courts.

Third. The declaration of martial law contained in the Proclamation, if authorized, could only operate in those places where military force, as a fact, has suspended the civil func tions of the government, and could only for the time suspend, not abrogate, the rights of the citizen.

Luther v. Borden, 7 How., 34. Opinion of Woodbury, S. C., 49 (H. L. Scott's Miliitary Dic., p. 382).

Fourth. Martial law, as anciently defined, can have no existence in this country. 1 Bl. Com., 413, and other text writers defining the

same.

Fifth. That the Proclamation in question has been wholly superseded by the Act of Congress of March 3d, 1863, relating to habeas corpus (12 Stat. at L., 775), under the provisions of which the petitioner claims his dis charge; and the President's Proclamation based thereon, of September 15, 1863.

3. These parties, if accused of any crime against the law, were charged with conspiracy under the Act of 1861. By the very terms of that law, they could not be punished without conviction in a Circuit or District Court of the United States.

4. The Act of 3d March, 1863, also declares that persons in the precise situation of the relator shall be handed over to the civil courts for trial, or discharged if no indictment be found against them by a grand jury.

5. The military necessity, which justifies or excuses the exercise of martial law over persons not in the military service, must be an actual, not a fictitious necessity. Martial law, which punishes without legal trial, can only be enforced at a place where war is actually blazing, where the courts are driven out and a legal trial physically impossible. It cannot be continued an hour after this state of things ceases; nor can it be tolerated at one place because the courts are broken up by war or insurrection in another place. Our views on this point are more fully expressed by Sir James Mackintosh, in his great speech on the case of Rev. Jno. Smith, delivered in the House of Commons June 1st, 1824. 3 Macintosh's Works, 726, 734. Other Authorities Cited:

Hale, Com., 41-43; 3 Hall. Const. Hist. of Eng., 350; 1 Ib., 328; 1 Black, 413; 1 De Lolme on British Const., 265, 266, mentions Lieut. Frey's case, Vol. II., p. 982; see for this case McA. Milit. L; see, also, London Gazette for 1746, in Cong. Library; Steven's Definition of Martial Law, Com. Law, 561; Hough's Mil. L., 511; Wellington's opinion of Martial Law, as expressed in the Honse of Lords in 1851. Hough, 515; Hickman, Naval Court-Martial, 85; O'Brien's Am. Mil. L., 222, 225, 226; 3 Benton, Abr. of Debates, 504; Debate on Jefferson's Application for Suspension of habeas corpus; Mackintosh's Speech on Smith's case, Mackintosh's Works, 726; Brougham's Speech on same case, Brougham's Speeches; See Ed inburgh Review, Vol. XL., Review of Smith's case; Earl of Lancaster's case, Attainder Re

versed, 1 Edw., III.; Hale, Pleas of the Crown, I was arrested by order of Gen. Alvin P. Hovey, 499, 500; Petition of Right, 5 Statutes of the comnianding the military district of Indiana; Realm, 424; Geoffrey's case in France (Court of aud has ever since been kept in close confineCassation, June 29, 1832); 24 Journal Du Palais, ment. p. 1218; Lord McGuire's case. 4 How. St. Tr., 654; Prynn's Argument for Prosecution, p. 690.

These authorities, when considered in connection with the Constitution of the United States, show that all attempts to take the life or liberty or property of an American citizen without a judicial trial, under the circumstances attending this case, are clearly void.

April 3, 1866 (see 3 Wall., 776), Mr. Chief Justice Chase announced the order of the

court:

The following order is directed, by a majority of the court, to be entered in this cause, and the like order will be entered in No. 365, Ex parte in the Matter of William A. Bowles, petitioner, and in No. 376, Ex parte in the Matter of Stephen Horsey, petitioner.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Indiana, and on the points and questions on which the said judges of the circuit court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the Act of Congress in such case made and provided; and was argued by counsel; on consideration whereof, this court is of opinion

I. That on the facts as stated in said petition and exhibits, a writ of habeas corpus ought to be issued according to the prayer of said petition.

II. That on the facts as stated in the said petition and exhibits, the said Lambdin P. Milligan ought to be discharged from custody as in said petition is prayed, and according to the Act of Congress, passed 3d March, 1863, entitled "An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases."

III. That on the facts stated in said petition and exhibits, the Military Commission mentioned therein, had no jurisdiction legally to try and sentence said Lambdin P. Milligan in the manner and form as in said petition and exhibits are stated,

And it is therefore now here ordered and adjudged by this court, that it be so certified to the said circuit court.

The Chief Justice also announced that the opinion of the court in these cases will be read at the next term, when such of the dissenting judges as see fit to do so will state their ground of dissent.

December 17, 1866, Mr. Justice Davis de livered the opinion of the court:

On the 10th day of May, 165, Lambdin P. Milligan presented a petition to the Circuit Court of the United States for the District of Indiana, to be discharged from an alleged unlawful imprisonment. The case made by the petition is this: Milligan is a citizen of the United States; has lived for twenty years in Indiana; and, at the time of the grievances complained of, was not, and never had been, in the military service of the United States. On the 5th day of October, 1864, while at home, he

On the 21st day of October, 1864, he was brought before a Military Commission, convened at Indianapolis, by order of Gen. Hovey, tried on certain charges and specifications; found guilty, and sentenced to be hanged; and the setence ordered to be executed on Friday, the 19th day of May, 1865.

On the 2d day of January, 1865, after the proceedings of the Military Commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and impaneled a grand jury, who were charged to inquire whether the laws of the United States had been violated; and, if so, to make presentments. The court adjourned on the 27th day of January, having, prior thereto, discharged from further service the grand jury, who did not find any bill of indictment or make any presentment against Milligan for any offense whatever; and, in fact, since his imprisonment, no bill of indictment has been found or presentment made against him by any grand jury of the United States.

Milligan insists that said Military Commission had no jurisdiction to try him upon the charges preferred, or upon any charge whatever; because he was a citizen of the United States and the State of Indiana, and had not been, since the commencement of the late Rebellion, a resident of any of the States whose citizens were arrayed against the government, and that the right of trial by jury was guarantied to him by the Constitution of the United States. The prayer of the petition was, that under the Act of Congress, approved March 3d, 1863 (12 Stat., 755), entitled, "An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases," he may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from custody altogether.

With the petition were filed the order for the commission, the charges and specifications, the findings of the court, with the order of the War Department reciting that the sentence was approved by the President of the United States, and directing that it be carried into execution without delay. The petition was presented and filed in open court by the counsel for Milligan; at the same time the District Attorney of the United States for Indiana appeared, and, by the agreement of counsel, the application was submitted to the court. The opinions of the judges of the circuit court were opposed on three questions, which are certified to the Supreme Court: 1st. " On the facts stated in said petition and exhibits, ought a writ of habeas corpus to be issued?"

2d. "On the facts stated in said petition and exhibits, ought the said Lambdin P. Milligan to be discharged from custody as in said petition prayed?"

3d. Whether, upon the facts stated in said petition and exhibits, the Military Commission mentioned therein had jurisdiction legally to try and sentence said Milligan in manner and form as in said petition and exhibits is stated.”

The importance of the main question present | for relief, and which we will presently consided by this record cannot be overstated: for it in- er, can this position be sustained? volves the very framework of the government and the fundumental principles of American liberty.

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation.

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 Pet., 193, 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."

But, we are met with a preliminary objection. It is insisted that the Circuit Court of Indiana The judges of the Circuit Court of Indiana had no authority to certify these questions; and were, therefore, warranted by an express decisthat we are without jurisdiction to hear and de-ion of this court in refusing the writ, if satis termine them. fied that the prisoner on his own showing was rightfully detained.

The 6th section of the "Act to Amend the Judicial System of the United States," approved April 29, 1802 (2 Stat., 159), declares "that whenever any question shall occur before a circuit court upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges and certified under the seal of the court to the Supreme Court at their next session to be held thereafter; and shall by the said court be finally decided. And the decision of the Supreme Court and their order in the premises shall be remitted to the circuit court and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the caase from proceeding, if, in the opinion of the court, further proceed ings can be had without prejudice to the merits."

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But it is contended, if they differed about the lawfulness of the imprisonment, and could render no judgment, the prisoner is remediless; and cannot have the disputed question certified under the Act of 1802. His remedy is complete by writ of error or appeal, if the court renders a final judgment refusing to discharge him; but if he should be so unfortunate as to be placed in the predicament of having the court divided on the question whether he should live or die, he is hopeless and without remedy. He wishes the vital question settled, not by a single judge at his chambers, but by the highest tribunal known to the Constitution; and yet the privilege is denied him; because the circuit court consists of two judges instead of one.

Such a result was not in the contemplation of the Legislature of 1802; and the language used by it cannot be construed to mean any such thing. The clause under consideration was in*troduced 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 Milligan is brought within its terms.

It was admitted at the bar that the circuit court had jurisdiction to entertain the application for the writ of habeas corpus, and to hear and determine it; and it could not be denied; for the power is expressly given in the 14th section of the Judiciary Act of 1789, as well as in the latter Act of 1863. Chief Justice Marshall, in Bollman's case, 4 Cranch, 75, construed this branch of the Judiciary Act to authorize the courts as well as the judges to issue the writ for the purpose of inquiring into the cause of the commitment; and this construction has never been departed from. But, it is maintained with earnestness and ability, that a certificate of division of opinion can occur only in a cause; and, that the proceeding by a party, moving for a writ of habeas corpus, does not become a cause until 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

The Act of 1802 so changed the judicial system that the circuit court, instead of three, was composed of two judges; and, without this provision or a kindred one, if the judges differed, the difference would remain, the question be unsettled, and justice denied. The decisions of this court upon the provisions of this section have been numerous. In U. S. v. Daniel, 6 Wheat., 542, the court, in holding that a division of the judges on a motion for a new trial could not be certified, say: That the question must be one which arises in a cause depending before the court relative to a proceeding belonging to the cause." Testing Milligan's case by this rule of law, is it not apparent that it is rightfully 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' 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 operation for that purpose was his "cause" or "suit." It was the only one by which he could recover his liberty. He was powerless to do more; he could neither instruct the judges nor control their action, and should not suffer, because, without fauit of his, they were unable to render a judgment. But, the true meaning to the term "suit" has been given by this court. One of the questions in Weston v. Charleston, 2 Pet., 449, was, whether a writ of prohibition was a suit; and Chief Justice Marshall says: "The term is certainly a comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him." Certainly, Milligan pursued the only remedy which the law afforded him.

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 sup posed 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 of the government should be informed of it. 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 in issuing the writ. The cause was, therefore, submitted to the court for their consideration and determination.

Again, in Cohens v. Va., 6 Wheat., 264, he says: "In law language a suit is the prosecution of some demand in a court of justice." Also, "To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is to continue that demand." When Milligan demanded his release by the proceeding relating to habeas corpus, he commenced a suit; and he has since prosecuted it in all the ways known to the law. One of the questions in Holmes v. Jennison, 14 Pet., 540, was whether, under the 25th section of the Judiciary Act, a proceeding In interpreting a law, the motives which for a writ of habeas corpus was a suit.' must have operated with the Legislature in Chief Justice Taney held, that, "if a party is passing it are proper to be considered. This unlawfully imprisoned, the writ of habeas cor-law was passed in a time of great national peril, pus is his appropriate legal remedy. It is his suit in court to recover his liberty." There was much diversity of opinion on another ground of jurisdiction; but that, in the sense of the 25th section of the Judiciary Act, the proceeding by habeas corpus was a suit, was not controverted by any except Baldwin, Justice, and he thought that suit" and "cause" as used in the section, mean the same thing.

But Milligan claimed his discharge from custody by virtue of the Act of Congress "Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases," approved March 3d, 1863. Did that Act confer jurisdiction on the Circuit Court of Indiana to hear this case?

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 is filed 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. See 4 WALL. U. S., Book 18.

when our heritage of free government was in danger. An armed rebellion against the national authority, of greater proportions than history affords an example of, was raging; and the public safety required that the privilege of the writ of habeas corpus should be suspended. The President had practically suspended it, and detained suspected persons in custody without trial; but his authority to do this was questioned. It was claimed that Congress alone could exercise this power; and that the Legislature, and not the President, should judge of the political considerations upon 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 action, it was of the highest importance that the lawfulness 19

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