Argument for the Petitioner. ON THE SIDE OF THE PETITIONER. Mr. David Dudley Field: Certain topics have been brought into this discussion which have no proper place in it, and which I shall endeavor to keep out of it. This is not a question of the discipline of camps; it is not a question of the government of armies in the field; it is not a question respecting the power of a conqueror over conquered armies or conquered states. It is not a question, how far the legislative department of the government can deal with the question of martial rule. Whatever has been done in these cases, has been done by the executive department alone. Nor is it a question of the patriotism, or the character, or the services of the late chief magistrate, or of his constitutional advisers. It is a question of the rights of the citizen in time of war. Is it true, that the moment a declaration of war is made, the executive department of this government, without an act of Congress, becomes absolute master of our liberties. and our lives? Are we, then, subject to martial rule, administered by the President upon his own sense of the exigency, with nobody to control him, and with every magistrate and every authority in the land subject to his will alone? These are the considerations which give to the case its greatest significance. But we are met with the preliminary objection, that you cannot consider it for want of JURISDICTION. The objection is twofold: first, that the Circuit Court of Indiana had not jurisdiction to hear the case there presented; and, second, that this court has not jurisdiction to hear and decide the questions thus certified. First. As to the jurisdiction of the Circuit Court. That depended on the fourteenth section of the Judiciary Act of Argument for the Petitioner. 1789, and on the Habeas Corpus Act of 1863. The former was, in Bollman's case,* held to authorize the courts, as well as the judges, to issue the writ for the purpose of inquiring into the cause of commitment. The act of March 3d, 1863, after providing that the Secretaries of State and of War shall furnish to the judges of the Circuit and District Courts a list of political and state prisoners, and of all others, except prisoners of war, goes on to declare, that if a grand jury has had a session, and has adjourned without finding an indictment, thereupon "it shall be the duty of the judge of said court forthwith to make an order, that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged." Upon this act the objection is, first, that the application of the petitioner should have been made to one of the judges of the circuit, instead of the court itself; and, second, that the petition does not show whether it was made under the second or the third section. To the former objection the answer is, first, that the decision in Bollman's case, just mentioned, covers this case; for the same reasoning which gives the court power to proceed under the fourteenth section of the act of 1789, gives the court power to proceed under the second and third sections of the act of 1863. The second answer is that, by the provisos of the second section, the court is expressly mentioned as having the power. The other objection to the jurisdiction of the Circuit Court is, that the petition does not show under which section of the act it was presented. It states that the petitioner is held a prisoner under the authority of the President; that a term has been held, and that a grand jury has been in attendance, and has adjourned without indicting. It does not state whether a list has been furnished to the judges by the Secretary of State and the Secretary of War, and, therefore, argues the learned counsel, the court has no jurisdiction. That is to say, the judges, knowing themselves whether the * 4 Cranch, 75. Argument for the Petitioner. list has, or has not been furnished, cannot proceed, because we have not told them by our petition what they already know, and what we ourselves might not know, and perhaps could not know, because the law does not make it necessary that the list shall be filed, or that anybody shall be informed of it but the judges. Second. As to the jurisdiction of this court. Supposing the Circuit Court to have had jurisdiction, has this court jurisdiction to hear these questions as they are certified? There are various objections. It is said that a division of opinion can be certified only in a cause, and that this is not a cause. It was decided by this court, in Holmes v. Jennison,* that a proceeding on habeas corpus is a suit, and suit is a more comprehensive word than cause. The argument is, that it is not a cause until the adverse party comes in. Is not a suit commenced before the defendant is brought into court? Is the defendant's appearance the first proceeding in a cause? There have been three acts in respect to this writ of habeas corpus. The first of 1789; then the act passed in 1833; and, finally, the act of 1842. The last act expressly designates the proceeding as a cause. Another objection is, that there must be parties; that is, at least two parties, and that here is only one. This argument is derived from the direction in the act, that the point must be stated "upon the request of either party" or their counsel. It is said that "either party" imports two, and if there are not two, there can be no certificate. This is too literal: "qui hæret in litera hæret in cortice." The language is elliptical. What is meant is, "any party or parties, his or their counsel." Again: "either," if precisely used, would exclude all over two, because "either" strictly means of two;" and if there are three parties or more, as there may be, you cannot have a certificate. It is not unusual, in proceedings in rem, to have several intervenors and claimants: what are we to do then? The answer must be, that "either" is an equivalent word for "any;" and that who * 14 Peters, 566. "one Argument for the Petitioner. ever may happen to be a party, whether he stand alone or with others, may ask for the certificate. The words "either party" were introduced, not for restriction but enlargement. The purpose was to enable any party to bring the case here; otherwise it might have been argued, perhaps, that all parties must join in asking for the certificate. The purpose of the act was to prevent a failure of justice, when the two judges of the Circuit Court were divided in opinion. The reason of the rule is as applicable to a case with one party as if there were two. Whether a question shall be certified to this court, depends upon the point in controversy. If it concerns a matter of right, and not of discretion, there is as much reason for its being sent ex parte as for its being sent inter partes. This very case is an illustration. IIere a writ is applied for, or an order is asked. The judges do not agree about the issue of the writ, or the granting of the order. Upon their action the lives of these men depend. Shall there be a failure of justice? The question presented to the Circuit Court was not merely a formal one; whether an initial writ should issue. It is the practice, upon petitions for habeas corpus, to consider whether, upon the facts presented, the prisoners, if brought up, would be remanded. The presentation of the petition brings before the court, at the outset, the merits, to a certain extent, of the whole case. That was the course pursued in Passmore Williamson's case;* in Rex v. Ennis ;† in the case of the Three Spanish Sailors; in Hobhouse's case;§ in Husted's case ;|| and in Ferguson's case; and in this court, in Watkins's case,** where the disposition of the case turned upon the point whether, if the writ were issued, the petitioner would be remanded upon the facts as they appeared. There may, indeed, be cases where only one party can appear, that are at first and must always remain ex parte. * 26 Pennsylvania State, 9. 2 W. Blackstone, 1324. || 1 Johnson's Cases, 136. ** 3 Peters, 202. † 1 Burrow, 765. 3 Barnewall and Alderson, 420. ¶ 9 Id. 239. Argument for the Petitioner. Here, however, there were, in fact, two parties. Who were they? The record tells us: "Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before the judges aforesaid, comes Jonathan W. Gordon, Esq., of counsel for said Milligan, and files here in open court the petition of said Milligan to be discharged. At the same time comes, also, John Hanna, Esq., the attorney prosecuting the pleas of the United States in this behalf. And thereupon, by agreement, this application is submitted to the court, and day is given," &c. The next day the case came on again, and the certificate was made. In point of fact, therefore, this cause had all the solemnity which two parties could give it. The government came into court, and submitted the case in Indiana, for the very purpose of having it brought to Washington. A still additional objection made to the jurisdiction of this court is, that no questions can be certified except those which arise upon the trial. The answer is, first, that there has been a trial, in its proper sense, as applicable to this case. The facts are all before the court. A return could not vary them. The case has been heard upon the petition, as if that contained all that need be known, or could be known. The practice is not peculiar to habeas corpus; it is the same on application for mandamus, or for attachments in cases of contempt; in both which cases the court sometimes hears the whole matter on the first motion, and sometimes postpones it till formal pleadings are put in. In either case, the result is the same. But, secondly, if it were not so, is it correct to say that a certificate can only be made upon a trial? To sustain this position, the counsel refers to the case of Davis v. Burden.* But that case expressly reserves the question. It is admitted that the question of jurisdiction is a question that may be certified. The qualification insisted upon is, * 10 Peters, 289. |