Milligan, Ex Parte 4 Wallace 2 (1866)

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MILLIGAN, EX PARTE 4 Wallace 2 (1866)

In 1861, Chief Justice roger b. taney contrived a possibility of executive-judicial, civil-military clashes (Ex parte Merryman) ; in 1863 the Supreme Court averted similar confrontations (ex parte vallandigham; prize cases). But in 1866–1867, the chase court, inthe test oath and Ex parte Milligan decisions, overcame its restraint.

In 1864, an Army court sentenced Lambden (spelling various) Milligan, a militantly antiwar, Negrophobe Indianan, to death for overtly disloyal activities. President andrew johnson commuted the sentence to life imprisonment. Milligan's lawyer, employing the 1863 habeas corpus act, in 1865 appealed to the federal circuit court in Indiana for release. The judges, including Justice david davis, divided on whether a civil court had jurisdiction over a military tribunal and on the legitimacy of military trials of civilians. This division let the petition go to the Supreme Court. There, in 1866, Attorney General henry stanbery denied that any civil court had jurisdiction; special counsel benjamin f. butler insisted on the nation's right to use military justice in critical areas.

Milligan's lawyers included james a. garfield, jeremiah black, and david dudley field. Milligan, they argued, if indictable, was triable in civil courts for treason. Alternatively, they insisted that the Army court had failed to obey the 1863 Habeas Corpus Act's requirement to report on civilian prisoners. Further, they asserted that the Constitution's barriers against the use of military power in a state not in rebellion were fixed and unmodifiable, though Congress, they admitted, had authority to use military justice in the South.

All the Justices concurred about the military court's dereliction in not reporting Milligan's arrest. For the Court's bare majority, Justice Davis held that neither President nor Congress could establish military courts to try civilians in noninvaded areas, and, implicitly, that the final decision as to what areas were critical was the Court's. Martial law must never exist where civil courts operated, he stressed, although both had co-existed since the war started. salmon p. chase, speaking also for Justices Samuel Miller, Noah Swayne, and james wayne, disagreed. Congress could extend military authority in Indiana under the war powers without lessening bill of rights protections, Chase asserted. The option was Congress's, not the Court's.

The majority view in Milligan was at once seized upon by supporters of President Johnson, the white South, and the Democratic party, though even Justice Davis stressed that he referred not at all to the South. Until military reconstruction clarified matters, the duties of the Army, acting under President Johnson's orders and the freedmen ' s bureau statute, were complicated greatly by misuses of the Milligan decision in the southern state courts, complications increased by the Test Oath decisions. Taken together, the Milligan and the Test Oath decisions greatly limited the capacity of both the nation and the states to provide more decent, color-blind justice in either civil or military courts (including those of the Freedmen's Bureau), and to exclude from leadership in politics and the professions persons who had sparked secession and war.

In subsequent decades, legal writers thomas cooley and zechariah chafee reconstructed Milligan into a basic defense of individual liberty and of civilian primacy over the military. Both men were flaying dragons perceived by Victorian Social Darwinists and by critics of world war i witch-hunts. Milligan was never a merely theoretical threat. Neither the civil police and courts of Indiana nor the federal government, except for the Army, evidenced capacity to deal with him. In light of existing alternatives, the Army's decision to try Milligan (not its failure to report its decision and verdict) is defensible.

Republican criticism of the Milligan decision never threatened the Court. Instead, from 1863 through 1875, the Congress increased the Court's habeas corpus jurisdiction as well as that in admiralty, bankruptcy, and claims. The Milligan decision, paradoxically, became a major step in the Court's successful effort to regain the prestige that it had squandered in dred scott v. sandford (1857), and that Taney had risked dissipating altogether in Merryman.

Harold M. Hyman


Gambione, Joseph G. 1970 Ex Parte Milligan: The Restoration of Judicial Prestige? Civil War History 16:246–259.

Kutler, Stanley I. 1968 Judicial Power and Reconstruction Politics. Chaps. 6–8. Chicago: University of Chicago Press.

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Milligan, Ex Parte 4 Wallace 2 (1866)

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