Milligan, Ex Parte, 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 and William M. Wiecek , Equal Justice under Law: Constitutional Development, 1835–1875 (1982).
Donald G. Nieman