it is evident that local civil tribunals will not Standing, as I do, on the broad principles of impartially try cases brought before them, and the Constitution, and sworn to enforce the laws, render decisions according to law and evidence, I have no concessions to make to traitors; no the immediate military commander will arrest compromises to offer assassins and robbers; and or cause the arrest of the offenders or criminals, if, in the sweep of coming events, retributive and hold them in confinement, presenting their justice shall overtake the lawless and violent, cases in writing, with all the facts, to these head-their own temerity will have called it forth. quarters, with the view to the said parties being brought before and tried by a military commission or tribunal, as provided in section three of the military bill.

Proclamation of Gov. Brownlow, of Tennessee,
February 25, 1867.

Whereas, it has been made known to me, the Governor of the State of Tennessee, that certain atrocious murders and numerous outrages have been committed in certain counties in this State, by violent and disloyal men, upon the persons and property of Union men, whose only offense has been their unswerving devotion to the national flag, and their uniform support of the State government; and whereas these bad men are banding themselves together in some localities, and notifying Union men to leave within given time: Now, therefore, I, William G. BrownLow, Governor as aforesaid, by virtue of the authority and power in me vested, do hereby proclaim, that I intend to put a stop to all such outrages, by calling into active service a sufficient number of loyal volunteers, under the following recent act, which is now the law of Tennessee: An Act to organize and equip a State Guard, and for other purposes.

a

The outrages enumerated must and shall cease. Having reached the foregoing conclusion, I feel justified in expressing the opinion that the present State government in Tennessee-so generally acquiesced in by loyal and law-abiding people will be sustained and preserved, despite all the efforts of disappointed traitors and disloyal newspapers.

The interests of trade, of agricultural purState and others of the development of our suits, of commercial intercourse between this vast resources, of immigration, as well as justice to loyal sufferers-all require that these outrages at once cease in every county in the State. Disloyal men are giving forth their vile utterances in railroad cars, in public hotels, on the streets, and through the newspapers, damaging the material interests of the State, those of commerce, cation, as well as bringing reproach upon the those of the mechanic arts, of religion and edu

Commonwealth.

I cannot, however, close this brief proclamafellow-citizens of all parties the importance, the tion without endeavoring to impress upon my serving good order, and a quiet submission to, absolute necessity, of remaining quiet, of prewithin the limits of our State. Outrages upon and a rigid enforcement of, the laws everywhere loyal citizens, whether white or black, and the setting aside of the franchise law, are all the work of bad men, who desire to foment strife, and will not be tolerated.

Be it enacted by the General Assembly of the State of Tennessee, That the Governor is hereby authorized and empowered to organize, equip, and call into active service a volunteer force, to be known as the Tennessee State Guard, to be composed of one or more regiments from each Prudent and experienced men will be placed congressional district of the State: Provided al- in charge of the "State Guard" in every county ways, that the Tennessee State Guard shall be where they are placed, who will be required to composed of loyal men, who shall take and sub-protect all good citizens, irrespective of political scribe the oath prescribed in the franchise act.

SEC. 2. That the Governor shall be commander-in-chief, and any member of said force shall be subject to his order, when in his opinion the safety of life, property, liberty, or the faithful execution of law require it; to be organized, armed, equipped, regulated, and governed by the rules and articles of war, and the revised army regulations of the United States, so far as applicable, and shall receive pay and allowances according to grade of rank, as provided for the United States Army while in active service, to be paid out of any money in the State treasury not otherwise appropriated: Provided, That the force provided for by this act shall not be armed and equipped until called into active service by

the Governor.

SEC. 3. That this act shall take effect from and after its passage.

parties, and to punish murderers, robbers, and all violators of law. And the number of troops called into active service will be increased or diminished as the good or bad conduct of the people shall be developed. Hoping this procla mation will strengthen the hands and inspire the hearts of the loyal people of our State, as to the future, and deter the disloyal from further acts of violence, I respectfully submit it, with a repetition of the assurance that I mean what I say, and that the General Assembly was in earnest in the passage of this military law.

In testimony whereof I have hereunto set my hand and caused the great seal of the State to be affixed at the executive department in Nashville, on the twenty-fifth day of February, 1867.

[L.S.]

WILLIAM G. BROWNLOW,
Commander-in-Chief, &c.

XX.

JUDICIAL OPINIONS.

THE SUPREME COURT.

On Trial by Military Commissions, Dec. 17, 1866.
No. 350.-DECEMBER TERM, 1865.
Ex parte in matter of Lambdin P. Milligan, pe-
titioner. On a certificate of division of opinion
between the judges of the Circuit Court of the
United States for the District of Indiana.
Mr. Justice DAVIS delivered the opinion of the
Court.

On the 10th day of May, 1865, 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 or naval service of the United States. On the 5th day of October, 1864, while at home, he was arrested by order of General Alvin P. Hovey, commanding the military district of Indiana, and has ever since been kept in close confinement.

On the 21st day of October, 1864, he was brought before a military commission, convened at Indianapolis by order of General Hovey, tried on certain charges and specifications, found guilty, and sentenced to be hanged, and the sentence 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 empanneled 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 charges 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 guaranteed to him by the Constitution of the United States.

The prayer of the petition was, that under the act of Congress approved March 3, 1863, 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

14

29

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 exhibit is stated?"

The importance of the main question presented by this record cannot be overstated; for it involves the very framework of the Government and fundamental 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. But we are met with a preliminary objection. It is insisted that the Circuit Court of Indiana had no authority to certify these questions, and that we are without jurisdiction to hear and determine them. The sixth section of the "Act to amend the judicial system of the United States," approved April 29, 1802. 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

309....

decided; and the decision of the Supreme Court | remedy. He wishes the vital question settled, 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 cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits."

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 later act of 1863. Chief Justice Marshall, in Bollman's case, (4 Cranch,) 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 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?

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 one. Such a result was not in the contempla tion of the Legislature of 1802, and the language used by it cannot be construed to mean any such 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.

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 United States vs. Daniel, (6 Wheaton) 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 case 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 It is true that it is usual for a court, on appli-ripen into a cause until there are two parties to cation for a writ of habeas corpus, to issue the it. This we deny. It was the cause of Milligan writ, and on the return to dispose of the case; when the petition was presented to the circuit but the court can elect to waive the issuing of court. It would have been the cause of both the writ and consider whether, upon the facts parties, if the court had issued the writ and presented in the petition, the prisoner, if brought brought those who held Milligan in custody be before it, could be discharged. One of the very fore it. Webster defines the word "cause" thus: points on which the case of Tobias Watkins, re- "A suit or action in court; any legal process ported in 3 Peters, turned was, whether, if the which a party institutes to obtain his demand, writ was issued, the petitioner would be re- or by which he seeks his right, or supposed manded upon the case which he had made. 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."

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."

"

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 opera tion 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 fault of his, they were unable to render a judgment. But the true meaning to the term "suit

The judges of the circuit court of Indiana were therefore warranted by an express decision of this Court in refusing the writ, if satisfied that the prisoner, on his own showing, was rightfully detained; 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 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.

Again, in Cohens vs. Virginia, (6 Wheaton,) 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 vs. Jennison (14 Peters) was, whether under the 25th section of the judiciary act a proceeding for a writ of habeas corpus was a "suit." Chief Justice Taney held that, "if a party is unlawfully imprisoned, the writ of habeas corpus 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 on this, 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.

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.

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

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. 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 3, 1863. Did that act confer jurisdiction on the circuit court of Indiana to hear this case? In interpreting a law, the motives which must have operated with 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 than history affords an example, 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 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.

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 to his discharge; and it was the duty of the judge of the court to order him brought before 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 termination of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished; and any credible person, on petition verified by affidavit, could obtain the judge's order for that purpose.