Ex Parte Milligan (71 U.S. 1, 1866)
Trials in Wartime
Does an armed conflict within the United States justify imposing military law?
What's at Stake?
For five men, this case literally meant life or death. In constitutional law, it provides guidance about the extent of legal guarantees in wartime.
Facts and Background
In 1864, during the Civil War, the Union Army arrested Lambdin Milligan and four other men in Indiana. They were charged with plotting to steal weapons and free Confederate soldiers held in prisoner-of-war camps. A military court sentenced them to die, but they appealed for their release under the Constitution's right of habeas corpus.
President Lincoln was very concerned about Southern sympathizers undermining the war effort in the North. These "Copperheads" were especially active in the southern parts of Ohio, Indiana, and Illinois. To combat this threat, President Lincoln issued a number of orders putting certain civilian areas in the North under military control and imposing martial (military) law. This enabled the military to arrest and try civilians whom they suspected of being disloyal.
However, the Constitution explicitly guarantees habeas corpus, which means that people have the right to go to court and have a judge determine if it is legal for them to be held. This is an important right, which prevents the authorities from acting illegally.
In the Milligan case, the Court had to decide whether Lincoln had followed the law and the Constitution when he authorized martial law.
The decision was issued a year after the war ended. The unanimous Supreme Court held that the President had gone too far. The Court stressed that Indiana was not under attack and that Milligan was not connected with Confederate military service, nor was he a prisoner of war. He was arrested at home, not on a military maneuver. Even more important, the courts in Indiana were open and functioning normally during the war. The government could have charged him with treason and tried him in the courts, where he would have had the right to a jury and the right to a fair trial, under the Constitution.
The justices were eloquent in defending the rule of law. Here are some excerpts from the Court's opinion, which was written by Justice David Davis:
It is the birthright of every American citizen when charged with crime, to be tried and punished according to law…. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people.
Civil liberty and … martial law cannot endure together…in the conflict, one or the other must perish.
The nation…has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this [broad power of martial law] be conceded, the dangers to human liberty are frightful to contemplate.
The Impact of the Decision
Milligan was released from prison and never convicted by a civilian court.
One of Milligan's lawyers was James A. Garfield, later President of the United States.
Justice Davis, who delivered the Court's opinion critical of President Lincoln's executive order, was not only appointed to the Court by Mr. Lincoln, but was also his close friend and in fact had served as Lincoln's campaign manager in the 1860 presidential election.
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