ex parte Milligan

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).

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

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