Ex Parte Milligan

views updated May 17 2018


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.


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.


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

Milligan, Ex Parte

views updated Jun 27 2018

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.]


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

views updated May 14 2018


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.