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

EX PARTE MILLIGAN,

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.

DavidPark

See alsoArrest, Arbitrary, During the Civil War ; Habeas Corpus, Writ of ; Japanese American Incarceration ; Martial Law .

MILLIGAN, EX PARTE

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.

Milligan, Ex Parte (1866).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 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.

Mary J. Farmer

ex parte Milligan case decided by the U.S. Supreme Court in 1866. By authorization of Congress, President Lincoln in 1863 suspended the writ of habeas corpus in cases where military officers held persons for offenses against the armed services. Army authorities had arrested Lambdin Milligan, a civilian who was involved in Copperhead, or pro-Confederate, activities in Indiana, and in 1864 he was tried by a military commission, convicted of fomenting rebellion, and condemned to death. The Supreme Court did not deal directly with the question of habeas corpus but with the limitation of martial law. It held that civilians might be tried by a military tribunal only where civil courts could not function because of invasion or disorder. It decided that even though the United States was at war, the federal courts of Indiana were operating, and they alone might try the case.

Bibliography: See S. Klaus, ed., The Milligan Case (1929, repr. 1970); D. Kelley, Milligan's Fight Against Lincoln (1973).