Five-minute digest
Ex parte Milligan
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.
Top 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.
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.
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.
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.
Verified 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.”
“The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”
Frequently cited
“Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction.”
“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.”
Medical Lens
The opinions address military jurisdiction, habeas corpus and jury trial in wartime and contain no medical subject matter.