Ex Parte Milligan
18 L. Ed. 281, 4 Wall. 2, 71 U.S. 2 (1866)
Rule of Law:
Military commissions do not have jurisdiction to try civilians in states where the civil courts are open and in the unobstructed exercise of their jurisdiction. Martial law can only be invoked when and where the civil courts are actually closed by invasion or rebellion, making the administration of justice impossible.
Facts:
- Lambdin P. Milligan was a U.S. citizen who had lived in Indiana for twenty years and had never been in the military or naval service of the United States.
- During the Civil War, Indiana was not a site of active rebellion and its federal courts remained open and operational.
- On October 5, 1864, Milligan was arrested at his home in Indiana by order of the military commander of the district.
- Milligan was charged with conspiracy against the government, affording aid and comfort to rebels, and inciting insurrection.
- The charges stemmed from his alleged involvement with a secret organization, the Order of American Knights or Sons of Liberty, which opposed the war.
- After his arrest, a federal grand jury convened in Indiana but did not indict Milligan for any offense.
Procedural Posture:
- On October 21, 1864, Lambdin P. Milligan was brought before a military commission convened by military order in Indianapolis, Indiana.
- The military commission found Milligan guilty and sentenced him to be hanged.
- President Andrew Johnson approved the sentence in May 1865.
- Milligan filed a petition for a writ of habeas corpus in the Circuit Court of the United States for the District of Indiana.
- The two judges of the Circuit Court were opposed in opinion on three questions regarding the legality of the commission and Milligan's detention.
- The Circuit Court certified these questions of disagreement to the Supreme Court of the United States for a decision.
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Issue:
Does a military commission have jurisdiction to try and sentence a U.S. civilian, who is not a prisoner of war or resident of a rebellious state, in a state where federal courts are open and their processes are unobstructed?
Opinions:
Majority - Justice Davis
No, a military commission does not have jurisdiction under these circumstances. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and its protections cannot be suspended during times of exigency. The right to trial by jury is guaranteed to all citizens except for those serving in the military, and Milligan, as a civilian in a state where civil courts were functioning, could only be tried by a jury in a court ordained by Congress. Martial law cannot arise from a threatened invasion; the necessity must be actual and present, the courts must be actually closed, and the civil administration deposed. Since the courts in Indiana were open and their process unobstructed, the military commission's trial and sentence of Milligan were illegal.
Concurring - Chief Justice Chase
No, the military commission did not have jurisdiction to try and sentence Milligan, but the conclusion should be based on statutory grounds, not a lack of constitutional power in Congress. While agreeing that Milligan's trial was illegal, the concurring justices believed that Congress does possess the constitutional power, under its authority to declare war and govern the armed forces, to authorize military commissions for civilians in states not in rebellion during times of great public danger. However, in this case, Congress did not authorize such a commission. In fact, the Habeas Corpus Act of 1863 implicitly prohibited it by providing a specific judicial process for civilians arrested by presidential authority, requiring them to be indicted by a grand jury or discharged. Therefore, the commission acted without legal authority from Congress.
Analysis:
Ex parte Milligan is a landmark decision that firmly establishes the supremacy of civil law over military authority concerning civilians in areas where courts are functioning. The ruling serves as a crucial check on the executive's power during wartime, affirming that constitutional guarantees, particularly the right to a jury trial, are not suspended simply because a state of war exists. While the concurrence suggests Congress might have the power to authorize such tribunals, the majority's strong constitutional language has created a powerful precedent against military trials of civilians outside of actual theaters of war where civil governance has collapsed. This case remains a cornerstone of American civil liberties and the rule of law during national emergencies.
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