Work record
Ex parte Milligan
1866 · 19th Century · Court Decision · English
Abstract
Question Presented. Could an army tribunal lawfully try and condemn an Indiana resident who had never been a soldier, in a state untouched by invasion whose federal judges were holding sessions?
Arguments. For the prisoner: Article III and the jury guarantees protect every civilian, and military jurisdiction stops at the door of a functioning courtroom. For the government: during rebellion a commander governs his department under the laws of war, the commander in chief must be free to meet conspiracies with dispatch, and judges cannot review such measures until hostilities cease.
Holding. Unanimously, the justices declared the tribunal without authority and ordered discharge under the 1863 statute. Five went further, ruling that neither branch could impose army trials on civilians outside a zone of real fighting; four, led by Chase, said Congress might have done so but had not.
Significance. Coming as Congress prepared military government for the defeated South, the ruling drew sharp partisan reaction. In later generations it was cited by those resisting army jurisdiction over civilians and was narrowed in 1942 for enemy saboteurs, then relied upon in 1946 to void Hawaiian wartime convictions.
Text. The library supplies Davis's complete opinion, including his survey of English and American precedents on martial rule, and part of the concurring opinion by Chase.
Key figures
- Lambdin P. Milligan: Civilian prisoner seeking release
- David Davis: Justice speaking for the five-member majority
- Salmon P. Chase: Chief Justice leading four concurring colleagues
- James Speed: Attorney General defending the tribunal
Summary
Lambdin P. Milligan was an Indiana lawyer and Democrat who opposed the war policies of the Lincoln administration. On 5 October 1864, during the presidential campaign, he was arrested at his home by order of General Alvin P. Hovey, commander of the military district of Indiana, and accused of joining a secret society that planned to free Confederate prisoners and seize federal arsenals. A military commission at Indianapolis tried him on charges including conspiracy, giving aid and comfort to the rebels and inciting insurrection, found him guilty and sentenced him to hang on 19 May 1865. Milligan had never served in the armed forces, Indiana had not been invaded, and the federal courts there were open; a grand jury sat in January 1865 and did not indict him. On 10 May 1865 Milligan petitioned the federal Circuit Court in Indiana for a writ of habeas corpus under the Habeas Corpus Act of 3 March 1863, which directed that prisoners held by presidential authority in states where the courts functioned be released if a grand jury failed to indict them. The two judges divided and certified three questions to the Supreme Court. President Andrew Johnson meanwhile commuted the sentence to life imprisonment. Milligan's counsel, among them David Dudley Field, Jeremiah S. Black and James A. Garfield, argued that the Constitution guarantees grand jury charges and jury trial to every civilian and that military jurisdiction ends where the civil courts are open. Attorney General James Speed, Henry Stanbery and Benjamin F. Butler answered that in wartime the commander's authority under the laws of war extends throughout the theater of military operations, that the President as commander in chief may protect the nation by such means, and that judges cannot review those decisions while the war lasts. The Court announced its judgment on 3 April 1866 and released its opinions on 17 December. All nine justices agreed that the commission had no jurisdiction and that Milligan should be discharged. Justice Davis, for five, held that neither the President nor Congress could subject a civilian to military trial in a state where the courts were open and the government's authority unchallenged; martial rule is confined to places where war has actually closed the courts. Chief Justice Chase, for Justices Wayne, Swayne and Miller, concurred on the ground that the 1863 Act required Milligan's release, but argued that Congress itself could have authorized such commissions in Indiana. The library text gives Davis's full opinion and an excerpt from Chase's concurrence; apart from a few bare case citations, the reporter's notes are not reproduced. Milligan was freed in April 1866 and later won nominal damages against those who had held him. The decision became a leading authority on civil liberty in wartime. In Ex parte Quirin (1942) the Court distinguished it in upholding military trials of German saboteurs, and in Duncan v. Kahanamoku (1946) it set aside military trials of civilians in wartime Hawaii.
Virtues in this work
- Fortitude: Davis, a close friend of the late President, wrote that the administration's commission in Indiana had acted without lawful authority.
- Justice: The Court insists that even a man accused of conspiring with the enemy must be indicted and tried by a jury in the open courts of his state.
- Prudence: Chase's concurrence preserves for Congress a power to meet future emergencies, cautioning against deciding more than Milligan's release required.
Plot or Argument
- A question too grave for wartime
Davis states the facts of the arrest, trial and sentence and the three questions certified from Indiana, observing that the Court could decide calmly now that the passions of the war had subsided.
- The Court's jurisdiction and the 1863 Act
Answering the government's preliminary objections, Davis holds that a habeas petition is a suit that a divided circuit court may certify, and that Milligan stated every fact the Habeas Corpus Act of 1863 required: he was a citizen of a loyal state, held by presidential authority, and no grand jury had indicted him.
- No judicial power in the commission
The Constitution vests the judicial power in courts ordained by Congress. A military commission is no such court, the laws and usages of war cannot reach citizens of loyal states where the courts are open, and Milligan could have been tried in the Circuit Court for the very offences charged.
- Jury trial in war and peace
The Fifth Amendment exempts only cases arising in the land or naval forces or the militia in actual service. Every other person, in war as in peace, keeps the right to be charged by a grand jury and tried by an impartial jury.
- The limits of martial rule
Martial law may exist where invasion or civil war has actually closed the courts, and only in the locality of actual war. Davis surveys English history from Edward III, Parliament's debate over the missionary John Smith at Demerara, the colonists' protest against General Gage, and Luther v. Borden, concluding that the third question must be answered no.
- Habeas corpus and discharge
Suspension of the privilege of the writ does not suspend the writ itself; it issues as of course, and the court then decides whether the prisoner may be held. Milligan was not a prisoner of war and must be discharged under the 1863 Act.
- Chase's concurrence
The Chief Justice agrees that the 1863 Act requires Milligan's release but rejects the majority's conclusion that Congress lacked power. Congress's war powers, he argues, include authority to provide for military commissions in states where the courts are open, if public danger requires; Congress simply did not exercise it here.
Characters
- Lambdin P. Milligan, petitioner
Indiana lawyer and Peace Democrat sentenced to death by a military commission in 1864.
- David Davis, author of the opinion of the Court
Illinois judge appointed by Lincoln in 1862, writing for a five-justice majority.
- Salmon P. Chase, Chief Justice; author of the concurrence
Former Ohio governor and Treasury Secretary who wrote for four justices concurring in the judgment.
- Alvin P. Hovey, commanding general
Union general who ordered Milligan's arrest and convened the commission at Indianapolis.
- David Dudley Field, counsel for Milligan
New York law reformer, brother of Justice Stephen J. Field, who argued for the petitioner.
- James Speed, Attorney General
Kentuckian who defended the military commission for the United States.
Lessons
A Constitution for war and peace
Davis's central claim is that the Constitution does not lapse in emergencies; its guarantees bind rulers and protect citizens at all times. The opinion treats the temptation to suspend rights in a crisis as the very danger the framers foresaw.
- What reasons does Davis give for thinking the nation may not always have wise and humane rulers?
- Does the Constitution itself recognize any emergency powers? Where?
- Is it possible to protect liberty too strictly in a time of war?
Open courts as the test
The majority draws a bright line: where the civil courts are open and able to act, civilians must be tried by them. The old English maxim that when the king's courts are open it is a time of peace gave Davis a test that judges could apply without second-guessing generals on strategy.
- Why does Davis emphasize that a grand jury sat in Indianapolis in January 1865?
- What are the advantages of a bright-line test like open courts? What might it overlook?
Who decides what war requires?
The justices agreed on the result but divided on whether Congress could have authorized military trials. Chase's concurrence defends the power of the elected branches to judge public danger, while the majority places the limit in the Constitution itself.
- Why did Chase think Congress, but not the President alone, could authorize such commissions?
- Which institution is better placed to judge the needs of national security: Congress, the President or the courts?
- Why might the majority have decided a question that was not necessary to free Milligan?
Timing and judgment
Davis admits that during the war the temper of the times did not allow calm deliberation. The Court ruled after the fighting ended, which allowed a careful judgment but also meant the decision came too late to affect wartime practice.
- Is it a strength or a weakness that courts often decide wartime questions after the war is over?
- How might the case have been decided if it had reached the Court in 1864?
Context
During the Civil War President Lincoln suspended the privilege of the writ of habeas corpus, first along military lines in 1861 and nationwide in September 1862 for persons accused of disloyal practices, and thousands of civilians were held by military authority. Congress ratified the suspension in the Habeas Corpus Act of 1863, while requiring that prisoners in loyal states be reported to the courts. In Indiana and other northern states, secret societies such as the Sons of Liberty were accused of plotting uprisings, and the treason trials of 1864 became an issue in the presidential campaign.
Composition
The commission's proceedings were complete before the grand jury met in January 1865; the War Department's order to carry out the sentence recited the President's approval, and the habeas petition followed nine days before the scheduled execution. The case was argued in March 1866; the Court issued its judgment on 3 April and delivered the written opinions when the new term began in December. The library text is the Wikisource transcription of 71 U.S. (4 Wall.) 2, with Davis's opinion complete and Chase's concurrence excerpted.
Reception
Republicans in Congress, then drafting Reconstruction measures that relied on military tribunals in the former Confederate states, criticized the decision, while Democrats praised it. Congress later acted to limit the Court's appellate jurisdiction in habeas cases, which the Court upheld in Ex parte McCardle (1869). In the twentieth century Milligan was weighed in Ex parte Quirin, Duncan v. Kahanamoku and the detention cases after 2001, and it remains a standard text on emergency power.
Comparisons
- the-founding-documents
Davis rests his opinion on Article III's grant of judicial power, the habeas corpus clause of Article I, Section 9, and the jury guarantees of the Fifth and Sixth Amendments.
- the-federalist-papers
In Federalist No. 83 and No. 84 Hamilton discusses trial by jury and the writ of habeas corpus as safeguards against arbitrary imprisonment, themes Davis develops for wartime.
- youngstown-sheet-and-tube-v-sawyer
Both cases limit presidential action claimed under wartime necessity, Milligan for military trials and Youngstown for seizure of the steel mills in 1952.
- korematsu-v-united-states
Korematsu upheld wartime military orders against civilians in 1944, a contrast often drawn with Milligan's insistence on civilian courts.
- magna-carta
Davis's survey of English liberty descends from Magna Carta's promise that no free man be imprisoned except by the lawful judgment of his peers or the law of the land.
- lincoln-second-inaugural-address
Delivered in March 1865 while Milligan awaited execution, Lincoln's address looks toward peace and reconciliation, the setting in which the Court later felt able to decide calmly.
Quotes
Frequently cited
“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”
Frequently cited
“No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
Frequently cited
“Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.”
“The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”
“We assent, fully, to all that is said, in the opinion, of the inestimable value of the trial by jury, and of the other constitutional safeguards of civil liberty.”
“We think that Congress had power, though not exercised, to authorize the military commission which was held in Indiana.”
For Students
A reading companion for classical Christian high school students. See the student guide.
Reading Guide
Watch for
- Davis's remark about the temper of the times during the war and why the Court can now decide calmly.
- The facts Milligan alleged to bring himself within the Habeas Corpus Act of 1863.
- How Davis answers the claim that the laws and usages of war give the commission jurisdiction.
- The historical examples Davis gathers, from Edward III to General Gage and the War of 1812.
- Where exactly Chase agrees with the majority and where he parts from it.
Key terms and names
- Habeas corpus
- A writ ordering a jailer to bring a prisoner before a court so that the lawfulness of the detention can be examined.
- Military commission
- A tribunal of army officers convened to try persons for offences against the laws of war or military orders.
- Martial law
- Rule by military authorities in place of civil government, which Davis limits to places where war has closed the courts.
- Certificate of division
- The procedure by which a two-judge circuit court that disagreed sent the disputed questions to the Supreme Court.
- Grand jury
- A body of citizens that decides whether evidence is sufficient to indict a person for a serious crime.
- Ex parte
- Latin for 'on the part of'; used in case names brought on the application of one party, such as a habeas petitioner.
Seminar Questions
- Comprehension Why was Milligan arrested, by whom was he tried, and what sentence did he receive?
- Comprehension On what point did all nine justices agree, and on what point did they divide five to four?
- Interpretation Why does Davis consider the open courts in Indiana decisive?
- Interpretation How does Chase's understanding of the war powers of Congress differ from the majority's?
- Interpretation Davis says the nation has no right to expect it will always have wise and humane rulers. How does this idea shape his reasoning?
- Big Question Should a free people ever accept limits on their liberties for the sake of security, and who should decide when?
Faith Connections
- Deuteronomy 19:15 (Scripture)
The requirement that a charge be established by two or three witnesses reflects the biblical concern for orderly judgment that Davis finds in grand jury charges and jury trial.
- Acts 25:16 (Scripture)
Festus tells the accusers of Paul that Roman custom forbids condemning any man before he meets his accusers face to face and makes his defense, a principle of fair trial Davis defends in wartime.
- William Blackstone, Commentaries on the Laws of England, Book I, ch. 1 (Great Conversation)
Blackstone called habeas corpus a second Magna Carta and warned against confinement by arbitrary will, the tradition on which Davis draws.
Logic and Rhetoric
Central argument: Because the Constitution governs in war as in peace and vests judicial power only in courts established under Article III, and because the Fifth and Sixth Amendments guarantee grand jury charges and jury trial to every civilian, a military commission cannot try a citizen of a loyal state where the civil courts are open; Milligan's trial was therefore void and the 1863 Act requires his release.
Rhetorical device: sweeping universal statement. Davis piles up totalities, 'all classes of men, at all times, and under all circumstances' (quote 0), to leave no room for an emergency exception.
Debate: Resolved: that Congress may authorize military trials of civilians in wartime even where civil courts are open.
Memory Work
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.
Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.
Writing Prompts
Essay: Explain the difference between the majority opinion and Chase's concurrence in Ex parte Milligan, and argue which better balances liberty and national safety.
Comparison with Korematsu v. United States: Compare the Court's treatment of military authority over civilians in Ex parte Milligan (1866) and Korematsu v. United States (1944), and explain what facts or reasoning account for the different outcomes.
Medical Lens
The opinions address military jurisdiction, habeas corpus and jury trial in wartime and contain no medical subject matter.
Creative Prompts
- Classroom
Argue the case in March 1866: one team for Milligan with Field, Black and Garfield, one for the United States with Speed and Butler, and a bench that must write both a majority opinion and a concurrence.
- Essay
Write a short brief for the government arguing that Indiana in 1864 was within the theater of war, then a reply using Davis's open-courts test.
- Dialogue
Imagine a conversation in December 1866 between Justice Davis and Chief Justice Chase about why they agree on Milligan's release but not on the power of Congress.
- Fiction
Write a scene in an Indianapolis courtroom in January 1865 as the federal grand jury is dismissed without indicting Milligan, while he waits in military custody nearby.
Further Reading
- All the Laws but One: Civil Liberties in Wartime, William H. Rehnquist
The late Chief Justice's account of Lincoln's suspension of habeas corpus, the Milligan case and later wartime controversies.
- The Fate of Liberty: Abraham Lincoln and Civil Liberties, Mark E. Neely Jr.
Pulitzer Prize-winning study of military arrests of civilians during the Civil War.
- Lincoln's Constitution, Daniel Farber
Examination of the constitutional questions raised by Lincoln's wartime measures, including habeas corpus and military trials.
Verification notes
Each of the six quotations was confirmed by Grep as an exact string in content/texts/ex-parte-milligan.txt. The division of the Court (unanimous on the judgment, five to four on congressional power), the April and December 1866 dates and the names of counsel follow standard accounts; web searches were unavailable while this record was written, so details such as the date the sentence was originally pronounced and the outcome of Milligan's later damages suit are stated generally.
- Confirm that President Johnson approved the sentence in May 1865 and later commuted it to life imprisonment.
- Confirm the amount and date of Milligan's later damages award against those who had detained him.