ex parte Milligan

The case, Milligan 71 U.S. 2 (1866), brought to the U.S. Supreme Court fundamental questions regarding military authority over civilians. In 1864, a military commission in Indiana during the Civil War convicted Lambdin P. Milligan on charges of conspiracy for his part in an alleged plot to release and arm Confederate prisoners in Northern prison camps and sentenced him to death. Milligan appealed to the civil courts, challenging the military tribunal's jurisdiction over his case. When the case reached the Supreme Court in 1866, the justices unanimously ordered Milligan's release. In the majority opinion for the Court, Justice David Davis held that the Constitution prohibited military trials of civilians where civil courts remained open. Martial law was only permissible, he insisted, in “the theater of active military operations,” where civil courts could no longer function. In a concurring opinion joined by three other justices, Chief Justice Salmon P. Chase argued that Congress intended to ensure civil trials to civilians when it adopted the Habeas Corpus Act of 1863, and therefore Milligan had been wrongly tried. However, unlike Davis, Chase insisted that Congress under its war powers had the authority to enact martial law, even in areas removed from the theater of war.

Milligan promptly provoked criticism from those who feared that it compromised Republican Reconstruction plans for the South by restricting military authority over civilians. Although in the twentieth century the Supreme Court has been reluctant to endorse Milligan's wholesale ban on martial law outside the theater of war, the case has never been reversed and scholars continue to hail it as a landmark constitutional protection of civil rights.

[See also Civil Liberties and War; Civil‐Military Relations: Civilian Control of the Military; Merryman, Ex Parte; Supreme Court, War, and the Military.]

Bibliography

• Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835–1875, 1982.
• Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties, 1991

71 U.S. 2 (1866), argued 5–13 Mar. 1866, decided 3 Apr. 1866 by vote of 9 to 0; opinions released 17 Dec. 1866; Davis for the Court, Chase, joined by Miller, Swayne, and Wayne, concurring. The Milligan case grew out of restrictions on civil liberties in the North during the Civil War and presented the Court with fundamental questions concerning military authority over civilians and the government's emergency powers in time of war.

In late 1864, United States army officials in Indiana arrested Lambdin P. Milligan and several other prominent antiwar Democrats, charging them with conspiracy to seize munitions at federal arsenals and to liberate Confederate prisoners held in several northern prison camps. Indiana was not in the theater of military operations, and the defendants could have been tried in federal court for treason. Nevertheless, army officials doubted the reliability of Indiana juries and elected to try the defendants by military commission. This tribunal found Milligan and two other defendants guilty and sentenced them to hang. When Milligan challenged the conviction in the United States Circuit Court in Indianapolis, the two judges disagreed, sending the case to the Supreme Court.

Although the Court announced its decision in April 1866, opinions were not released until December. All nine justices agreed that the military court lacked jurisdiction and that Milligan and the other two prisoners must be released. There was sharp disagreement among the justices, however, on the grounds for the decision.

Writing for the Court, Justice David Davis emphasized that the Constitution was not suspended in time of emergency, eloquently noting that it was “a law for rulers and people, equally in time of war and peace” (pp. 120–121). Therefore, he concluded that military trial of civilians—which violated constitutional guarantees of indictment by grand jury and public trial by an impartial jury (see Trial by Jury)—was impermissible where the civil courts remained open. Although the court that had tried Milligan had been established by executive authority, Davis asserted that neither the president nor the Congress could authorize the trial of civilians by military commission as long as the civil courts were open.

A concurrence by Chief Justice Salmon P. Chase, joined by three other justices, agreed that Milligan should be released. Chase, however, rested his conclusion on statutory grounds, arguing that the Habeas Corpus Act of 1863 (which stipulated that civilians detained by the military must be released if grand juries failed to indict them) had been intended to guarantee trial of civilians in the civil courts. Moreover, Chase disagreed with Davis's assertion that Congress could not authorize military trial of civilians if the civil courts were functioning. Under the war power, Chase argued, Congress could enact legislation necessary for prosecution of the war. If it concluded that the civil courts were incapable of punishing treason, Congress could authorize the military to try offenders.

The Court's opinion was controversial. By late 1866, when the opinions were released, violence against southern African‐Americans was growing, and most Republicans believed that military courts were essential to afford the slaves security. Consequently, when President Andrew Johnson used Milligan as justification to reduce military authority in the occupied states, Republicans denounced the Court. Moreover, Davis's opinion led many Republicans to fear that the Court would declare unconstitutional the Reconstruction Act of 1867, which authorized military trial of civilians in the rebel states.

In the twentieth century many commentators have viewed Milligan as a constitutional landmark, and the Court has not repudiated it. Nevertheless, some have criticized Milligan, arguing that by categorically prohibiting imposition of martial law when the civil courts are open, it unduly limited the government's ability to protect national security. The Court itself has not always followed Milligan. In Duncan v. Kahanamoku (1946), a case challenging the imposition of martial law in Hawaii during World War II, the Court ruled against the government. The majority, however, rested its decision on congressional legislation governing Hawaii rather than on the constitutional principles established in Milligan. Moreover, in acquiescing in the government's internment of Japanese‐Americans during World War II, the Court ignored the limits on the government's emergency powers suggested by Milligan.

See also Habeas Corpus; Military Trials and Martial Law; War Powers.

Bibliography

• Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (1982)

— Donald G. Nieman

• 4 Wall. 2 (1866)
• Vote: 9–0
• For the Court: Davis

In 1864, the general in command of the military district of Indiana arrested Lambdin P. Milligan. The Civil War still raged in other parts of the country. Federal agents alleged they had evidence of a conspiracy by Milligan and others to release and arm rebel prisoners so they could take part in a Confederate invasion of Indiana.

The army brought Milligan before a special military court instead of before the regular civil courts that were still operating in Indiana. The military court convicted Milligan of conspiracy and sentenced him to death.

Early in the Civil War, President Abraham Lincoln had placed some sections of the country under military rule and replaced civilian courts with military courts to try individuals accused of insurrection. Lincoln also suspended the writ of habeas corpus in such situations. A writ of habeas corpus orders an official who has a person in custody to bring the prisoner to court and explain why he is detaining the person. This basic civil liberty prevents arbitrary arrest and imprisonment.

Article 1, Section 9, of the Constitution says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Lincoln believed that his order, later confirmed by Congress, was crucial to the preservation of the Union.

Milligan applied to a civilian court in Indiana for a writ of habeas corpus. He claimed his conviction was unconstitutional and asked for his right to a trial by jury in a civilian court.

The Issue

The issue came before the Supreme Court in 1866, a year after the Civil War had ended with the defeat of the Confederacy. The appeal did not involve the question of Milligan's guilt or innocence. Rather, the Court dealt with the constitutional issue of whether the government in wartime could suspend citizens' constitutional rights under the 5th and 6th Amendments and set up military courts in areas that were free from invasion or rebellion and in which the civilian courts were still operating.

Opinion of the Court

The Court ruled against the government on this question. It ruled that suspending the right of habeas corpus and trying civilians in military courts when civilian courts still operated violated the Constitution.

The Court declared that the civilian courts had been open in Indiana and that the state had been far removed from the battle zone. Thus, neither the President nor Congress could legally deny to an accused person a civilian trial by jury and due process of law as guaranteed by the 5th and 6th Amendments.

Significance

The Milligan decision represented a great victory for American civil liberties in times of war or internal turmoil. The Court upheld the principle that civilian authorities should control the military even in times of great stress and emergency. Moreover, it reaffirmed that the right of citizens to due process of law remains absolute as long as civilian courts are operating.

See also Habeas corpus, writ of

Sources

• Allan Nevins, “The Case of the Copperhead Conspirator”, in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1987)

Ex Parte Milligan, 71 U.S. 2 (1866) is a landmark case that drew the constitutional perimeters of the discretionary powers of the executive over the civil rights and liberties of individual citizens and also of military authority in relation to civilian authority in times of war, insurrection, or natural disaster. During the Civil War, President Abraham Lincoln—determined to preserve the Union by "taking any measure which may subdue the enemy," that is, the Confederacy—acted as commander in chief of the armed forces of the United States to proclaim martial law and suspend habeas corpus by executive action. In 1864, a civilian activist for the Confederate cause named Lambden P. Milligan was arrested at his home in Indiana by U.S. Army officials and charged with providing "aid and comfort to rebels" and inciting the people to insurrection. He was found guilty by a military commission and sentenced to death by hanging. Milligan sought release through habeas corpus from the U.S. Circuit Court in Indianapolis, claiming that he had been deprived of his constitutional right to a trial by jury. However, the two judges failed to agree on a decision and sent the case to the U.S. Supreme Court.

In 1866, the Court unanimously invalidated Milligan's conviction on grounds emanating either from the U.S. Constitution (in the opinion of the majority of five) or from the federal Habeas Corpus Act of 1863 (in the opinion of the concurring four). Speaking for the Court, Justice David Davis—an ardent supporter of Lincoln and himself a Lincoln appointee—held that as a civilian Milligan should have been tried in a civil court as the state had not been in the theater of military operations and civil courts had been fully open, and that he had been denied his right to a trial by jury as guaranteed by the Sixth Amendment. Davis also stated that Milligan had been deprived of the constitutional privilege of a writ of habeas corpus. Davis wrote emphatically that "martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the [civil] courts and deposes the civil administration." The Court further held that, absent prior congressional legislation, the chief executive was not empowered to suspend habeas corpus or impose martial law even in time of war or insurrection.

After Milligan, the Court in Moyer v. Peabody (1909) upheld trials of civilians in state military tribunals during a condition of social unrest as declared by the governor. Far more infamously, during World War II the Court upheld the violation of basic civil rights and liberties of Japanese Americans in Hirabayashi v. United States (1943) and Korematsu v. United States (1944). Nevertheless, running through Sterling v. Constantin (1932) and O'Callahan v. Parker (1969), in which the Court repeatedly subjected military discretion to judicial review by the civil courts and limited the scope of military justice, the Milligan principle that the Constitution reigns as the law of the land not only in peacetime but also in time of war has held in large measure.

Bibliography

Duker, William F. A Constitutional History of Habeas Corpus. Westport, Conn.: Greenwood Press, 1980.

Hyman, Harold M., and William M. Wiecek. Equal Justice under Law: Constitutional Development, 1835–1875. New York: Harper and Row, 1982.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

—David Park

An 1866 Supreme Court decision, Milligan ex parte, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281, recognized that a civilian and citizen of a state that is not invaded by hostile forces during wartime is not subject to the jurisdiction of a court-martial.

In 1864, Lambdin P. Milligan, a civilian, was arrested in Indiana for conspiracy, insurrection, and other crimes arising from his alleged involvement in organizing a secret military unit in the state to assist the Confederacy. His arrest and detention were made pursuant to the orders of General Alvin P. Hovey, commander of the military district of Indiana. He was brought to trial before a military commission in Indianapolis, convicted, and sentenced to death. Milligan applied for a writ of habeas corpus to the Supreme Court, challenging the jurisdiction of the military commission to try and sentence him.

The Court acknowledged that Article III, Section 2, Clause 3 of the Constitution — which provides "that the trial of all crimes, except in cases of impeachment, shall be by jury" — and other constitutional provisions safeguarded this right. It recognized, however, that in times of war, various civil liberties and the right to challenge illegal detention by a writ of habeas corpus may be suspended. Martial law might be imposed, however, only where an actual invasion of enemy forces effectively stopped the operation of the civil government.

The military argued that the designation of Indiana as a military district with a commander because of the constant threat of invasion by Confederate troops justified the imposition of martial law. The military commission, therefore, had lawful jurisdiction under the "laws and usages of war." The Court rejected this argument. The state of Indiana had not opposed federal authority, its civil and criminal courts continued to operate during the war, and Milligan was a civilian who was not connected to the military. Although civil liberties and habeas corpus could be suspended in wartime, to permit the military commission to determine the fate of Milligan, a civilian, in a state which was loyal to the Union, and where there was only a mere threat of invasion and the courts were open, would usurp the powers of the courts in violation of the Constitution. The Court decided that the military commission had no jurisdiction over Milligan and therefore ordered Milligan's release.

by David Davis, 1866

As a wartime measure, Congress in March 1863 authorized President Abraham Lincoln to suspend the writ of habeas corpus in cases where officers held civilians for offenses against the military. Lambdin P. Milligan, a civilian, was arrested in 1864 for inciting insurrection, tried and found guilty by a military tribunal, and sentenced to be hanged. He petitioned the U.S. Circuit Court for the District of Indiana for a writ of habeas corpus. The case went to the U.S. Supreme Court in 1866. The Court's decision condemned military trials for civilians in areas where the civil courts were functioning. The decision became unpopular with Radical Republicans, who viewed it as casting doubt on the legality of their military occupation of the South. Portions of the opinion of the Court, given by Justice David Davis of Illinois, are reprinted below.

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 rebellious states or a prisoner of war, but 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, on certain criminal 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 justice of the country or endangered its safety. 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 interfere; if there was not, it is our duty to declare the nullity 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 precedents 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 direct 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"; and in the 4th, 5th, and 6th articles of the amendments. The 4th proclaims the right to be secure in person and effects against unreasonable search and seizure; and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The 5th declares "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived of life, liberty, or property, without due process of law." And the 6th guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished.

It is in these words: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." 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 adoption 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. ...

Have any of the rights guaranteed by the Constitution been violated in the case of Milligan? And, if so, what are they? ...

This Court has judicial knowledge that in Indiana the federal authority was always unopposed and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise 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 provoked by the state of the country even to attempt 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? No reason of necessity could be urged against it; because Congress had declared penalties against the offenses charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it and required no military aid to execute its judgments. It was held in a state eminently distinguished for patriotism, by judges commissioned during the rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive, in that court, merited punishment; for its records disclose that it was constantly engaged in the trial of similar offenses and was never interrupted in its administration of criminal justice.

If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.

Another guarantee of freedom was broken when Milligan was denied a trial by jury. ... This right - one of the most valuable in a free country - is preserved to everyone accused of crime who is not attached to the Army or Navy or militia in actual service. ... All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance and cannot be frittered away on any plea of state or political necessity.

When peace prevails and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion - if the passions of men are aroused and the restraints of law weakened, if not disregarded - these safeguards need, and should receive, the watchful care of those entrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this - that in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens as well as soldiers to the rule of his will, and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.

If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution and effectually renders the "military independent of and superior to the civil power" - the attempt to do which by the king of Great Britain was deemed by our fathers such an offense that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.

This nation, as experience has proved, cannot always remain at peace and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.

If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew - the history of the world told them - the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the judiciary disturb, except the one concerning the writ of habeas corpus.

It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war there are men of previously good character wicked enough to counsel their fellow citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and, yet, the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus.

The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right and left the rest to remain forever inviolable.

But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.

It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and it is urged that this, in a military sense, constituted them the theater of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law.

The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.

It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be "mere lawless violence." ...

If the military trial of Milligan was contrary to law, then he was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3, 1863. The provisions of this law having been considered in a previous part of this opinion, we will not restate the views there presented. Milligan avers he was a citizen of Indiana, not in the military or naval service, and was detained in close confinement, by order of the President, from the 5th day of October, 1864, until the 2nd day of January, 1865, when the Circuit Court for the District of Indiana, with a grand jury, convened in session at Indianapolis; and afterward, on the 27th day of the same month, adjourned without finding an indictment or presentment against him. If these averments were true (and their truth is conceded for the purposes of this case), the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior.

But it is insisted that Milligan was a prisoner of war, and, therefore, excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offense, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?

Ex parte Milligan
Supreme Court of the United States
Argued March 5, 1866 Decided April 3, 1866
Full case name	Ex parte Lambdin P. Milligan
Citations	71 U.S. 2 (more) 4 Wall. 2; 18 L. Ed. 281; 1866 U.S. LEXIS 861
Prior history	This case came before the Court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment.
Holding
Trying citizens in military courts is unconstitutional when civilian courts are still operating. Trial by military tribunal is only constitutional when there is no power left but the military, and the military may only validly try criminals as long as is absolutely necessary.
Court membership
Chief Justice Salmon P. Chase Associate Justices James M. Wayne · Samuel Nelson Robert C. Grier · Nathan Clifford Noah H. Swayne · Samuel F. Miller David Davis · Stephen J. Field
Case opinions
Majority	Davis, joined by Clifford, Field, Grier, Nelson
Concurrence	Chase, joined by Wayne, Swayne, Miller
Laws applied
U.S. Const.

Ex parte Milligan, 71 U.S. 2 (1866), was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional.

Contents 1 Background of the case 2 Arguments 3 The Court's decision 4 See also 5 References 6 Further reading 7 External links

Background of the case

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps. Once the first prisoner of war camp was liberated they planned to use the liberated soldiers to help fight against the Government of Indiana and free other camps of Confederate soldiers. They also planned to take over the state governments of Indiana, Ohio, and Michigan. When the plan leaked, they were charged, found guilty, and sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War ended.

Arguments

The argument for the United States was delivered by Benjamin F. Butler, a Massachusetts lawyer and state legislator, and future Governor of Massachusetts.

The argument for the petitioner was delivered by Jeremiah S. Black, former United States Attorney General and Secretary of State, James A. Garfield, future President, and New York lawyer David Dudley Field.

The Court's decision

Lambdin P. Milligan

The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating, and the Constitution of the United States provided for suspension of habeas corpus only if these courts are actually forced closed. In essence, the Court ruled that military tribunals could not try civilians in areas where civil courts were open, even during times of war.

It observed further that during the suspension of the writ of habeas corpus, citizens may be only held without charges, not tried, and certainly not executed by military tribunals. After all, the writ of habeas corpus is not the right itself but merely the ability to issue orders demanding the right's enforcement.

It is important to note the political environment of the decision. Post-war, under a Republican Congress, the Court was reluctant to hand down any decision that questioned the legitimacy of military courts, especially in the occupied South. The President's ability to suspend habeas corpus independently of Congress, a central issue, was not addressed probably because it was moot with respect to the case at hand. Though President Lincoln suspended the writ nationwide on September 24, 1862, Congress ratified almost six months later, on March 3, 1863. Milligan was detained in 1864, well after Congress formally suspended the writ. That notwithstanding, military jurisdiction had been limited.

See also

• Supreme Court cases of the American Civil War
• List of United States Supreme Court cases, volume 71
• Ex parte Merryman
• Ex parte Quirin
• Hamdi v. Rumsfeld

References

• Klaus, Samuel. The Milligan Case. New York: Da Capo Press, 1970.

Further reading

• Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: William Morrow & Co. ISBN 0-688-05142-1. 

External links

• Text of Ex parte Milligan, 71 U.S. 2 (1866) is available from:  · Enfacto · Findlaw

• Oyez, Official Supreme Court media, Ex Parte Milligan.
• Historical analysis of the case - Elisheva Ruth Coleman Princeton University senior thesis

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