or in custody, under or by any authority, or law, or process founded thereon, of the United States or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, or order, or sanction of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof. And upon the return of said writ, and due proof of the service of notice of the said proceeding to the Attorney-General or other officer prosecuting the pleas of the State under whose authority the petitioner has been arrested, committed, or is held in custody, to be prescribed by the said justice or judge at the time of granting said writ, the said justice or judge shall proceed to hear the said cause," etc.

The second objection of my learned friend 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. My friend says that "either party" imports two, and if there are not two there can be no certificate. This strikes me as altogether too literal: "qui hæret in litera hæret in cortice." The learned gentleman insists upon the grammar, but he can not render the language grammatical as it stands. It is "either party or their counsel." This 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 one of two"; and if there are are three parties or more, as there may be, you can not 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 whoever 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 the parties must join in asking for the certificate. No, said Congress, any party having anything to do with the case may have it certified.

The reasoning of Chief-Justice Marshall, in respect to the habeas corpus, is here applicable. The words, "either of the

Justices of the Supreme Court," in the fourteenth section of the Act of 1789, were understood by him to have been used by way of enlargement, to provide for cases when the Court was not sitting; and he construed them, therefore, to embrace the Court, as well as the Judge. So, here, the language was introduced for the purpose of giving a more extended application to the statute. 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. Here 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 a merely 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.*

There may, indeed, be cases where only one party can appear, cases that are at first, and must always remain, ex parte. What shall be done with them? Such a case occurred not long ago in New York. A statute was passed, directing that students who received a diploma from Columbia College should be admitted to the bar, without further examination. A student applied to the Supreme Court of New York to be admitted. The application was refused. He appealed to the Court of Appeals, and the order was reversed. Here was a case where

* That was the course pursued in Passmore Williamson's case, 1st Casey; in Rex vs. Ennis, 1 Burrows, 765; in the case of the Three Spanish Sailors, reported in 2 Wm. Blackstone, 1324; Hobhouse's case, reported in 2 Barnewall & Alderson, 420; Husted's case, reported in 1 Johnson, 326; Ferguson's case, 9 Johnson, 139; and in this Court, in Watkins's case, reported in 3 Peters, 202, 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 could be but one party. There was no one but the applicant before the Court, no defendant, no contestant. Suppose that a question similar to that which has been argued here in Mr. Garland's case were to come before a Circuit Court, and that the learned Judges should be divided in opinion, upon the constitutionality of the test-oath, I should like to be informed, by my learned friend, whether he thinks that case could not be certified to this Court. Must the applicant be told that his application can not be decided?

There is one view of this case in which it is to be regarded as essentially ex parte. You will observe that the application was for a writ of habeas corpus or for such other order or process as the Court might make for the deliverance of the party. If you allow the writ under the Judiciary Act, there may be a contestant; if you proceed under the Act of 1863, there may not be a contestant, because the Judges are bound to discharge upon the fact of continued imprisonment, without indictment. The language of the act is, that if the list is furnished, "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." The third section declares, that the same thing shall be done on the application of a citizen, if the list is not furnished. Suppose that the party had asked simply for the order. It would have been ex parte of necessity; the Government would have had no right to be heard; no rights would have been determined, except that the man should go discharged of the particular imprisonment for which he was held. He might have been arrested the next day; he might have been indicted. The lawgiver says, you shall not keep a man in prison longer than through the session of a grand jury, if it has not found an indictment against him; and the moment the grand jury adjourns, if the Judge does not see that there is an indictment, he is bound to give a discharge. Neither General Hovey, the commandant of the District of Indiana, nor the President, nor any other officer of the Government, has a right to be heard against it.

Thus far, I have argued against this objection, as if there had been but one party before the Court; but there were, in

fact, two parties. Who were they? The record tells us in these words:

"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 Bowles, and files here in open Court the petition of said Bowles 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," etc.

The next day the case came on again, and the certificate was made. My learned friend asks, "Who is John Hanna, prosecuting the pleas of the United States?" Who is John Hanna? May I not as well ask who is the Attorney-General of the United States? I need not say, that this Court, judicially, knows who is the Attorney-General; and so the Circuit Court, judicially, knew that John Hanna was the District Attorney of the United States for the District of Indiana; and their judicial knowledge is your judicial knowledge, because you are to take all that they knew. But "prosecuting the pleas" is an expression which my friend does not understand. He asks what is meant by prosecuting the pleas of the United States. Let me see if I can not find something to satisfy him on that point. Here is the Habeas Corpus Act of 1842, which thus speaks:

"And upon the return of the said writ, and due proof of the service of notice of the said proceeding to the Attorney-General, or other officer prosecuting the pleas of the State, under whose authority the petitioner has been arrested," etc.

It would not be proper for me to say what took place in the Circuit Court, except so far as I get it from the record. I can imagine that, in a case of this gravity, the learned Judges, when the petition was presented, directed notice to be given to the law officer of the Government.

Notice, in like cases, is directed to be given by the Statutes of Indiana. They provide that, "when any person has an interest in the detention, the prisoner shall not be discharged, until the person having such interest is notified"; as you will find, if you look at the Revised Statutes of Indiana, page 196, section 728.

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.

It has come here and argued the case, by the ablest counsel that could be had. It has brought, from the East, an able lawyer and gallant general, more interested in the question than any other person in the country; and, from the West, one of its greatest advocates; and with these appears the AttorneyGeneral of the United States. After all this, is it not trifling with the Court, to say that it can not hear and decide this cause, because, forsooth, there is only one party before it!

The third objection which the learned counsel makes to the jurisdiction of this Court is, that no questions can be certified except those which arise upon the trial.

To this I answer first, that there has been 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 vs. Bruden.* But that case expressly reserves the question. Let me read from page 290: "We do not mean to decide," say the Court, definitively, that no question can be brought here upon a certificate of division of opinion, unless the point arose upon the trial of the cause; but we are very much inclined to think that such is the true construction of the act; but, from the general words used, cases may possibly arise that we do not foresee. The question, however, brought up in the present case, being one resting entirely in the discretion of the Court, is clearly not within the act."

* 10 Peters, 289.