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Ex parte Milligan

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Title: Ex parte Milligan  
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Subject: Indiana in the American Civil War, Supreme Court cases of the American Civil War, American Civil War prison camps, Reconstruction Era, David Davis (Supreme Court justice)
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Ex parte Milligan

Ex parte Milligan
Argued March 5, 1866
Decided April 3, 1866
Full case name Ex parte Lambdin P. Milligan
Citations 71 U.S. 2 (more)
4 Wall. 2; 18 L. Ed. 281; 1866 U.S. LEXIS 861
Prior history This case came before the Court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment.
Trying citizens in military courts is unconstitutional when civilian courts are still operating. Trial by military tribunal is constitutional only when there is no power left but the military, and the military may validly try criminals only as long as is absolutely necessary.
Court membership
Case opinions
Majority Davis, joined by Clifford, Field, Grier, Nelson
Concur/dissent Chase, joined by Wayne, Swayne, Miller
Laws applied
U.S. Const., Habeas Corpus Suspension Act 1863

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional. It was also controversial because it was one of the first cases after the end of the American Civil War.

Background of the case

Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps. Once the first prisoner of war camp was liberated, they planned to use the liberated soldiers to help fight against the Government of Indiana and free other camps of Confederate soldiers. They also planned to take over the state governments of Indiana, Ohio, and Michigan. When the plan leaked, they were charged with various crimes against the US government, found guilty, and sentenced to be hanged by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War ended.


The argument for the United States was delivered by Benjamin F. Butler, a New York lawyer and state legislator, and future Governor of Massachusetts.

The argument for the petitioner was delivered by Jeremiah S. Black (former United States Attorney General and Secretary of State), James A. Garfield (congressman in his first ever courtroom argument, and future President[1]), and New York lawyer David Dudley Field.

The Court's decision

The Supreme Court decided that the suspension of habeas corpus was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating.

It observed further that during the suspension of the writ of habeas corpus, citizens may be only held without charges, not tried, and certainly not executed by military tribunals; the writ of habeas corpus is not the right itself but merely the ability to issue orders demanding the right's enforcement.

It is important to note the political environment of the decision. Post-Civil War, under a Republican Congress, the Court was reluctant to hand down any decision that questioned the legitimacy of military courts, especially in the occupied South. The President's ability to suspend habeas corpus independently of Congress, a central issue, was not addressed, probably because it was moot with respect to the case at hand. Though President Lincoln suspended the writ nationwide on September 24, 1862,[2] Congress ratified this action almost six months later, on March 3, 1863, with the Habeas Corpus Suspension Act. Milligan was detained in 1864, well after Congress formally suspended the writ. That notwithstanding, military jurisdiction had been limited.

Three types of military jurisdiction

This case was also important in clarifying the scope of military jurisdiction under the US Constitution. The justices held that:

There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states or districts occupied by rebels treated [71 U.S. 2, 142] as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as MILITARY GOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.

This distinction between martial law and military government was not commonly made before 1866. After the Supreme Court's clarification in this landmark case however, it has continued to be used up to the present day. Birkhimer describes the difference on page 1 of his opus Military Government and Martial Law (3rd edition, 1914) by saying that

Military jurisdiction is treated in the following pages in its two branches of Military Government and Martial Law. The former is exercised over enemy territory; the latter over loyal territory of the State enforcing it.[3]

US Army Field Manual FM 27-10 The Law of Land Warfare, paragraph 362 states that

Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do so.[4][5]


Five justices signed the majority opinion, with four others, Chief Justice Salmon P. Chase and Justices Wayne, Swayne and Miller, concurring in the judgment but dissenting as to the Court's assertion that Congress did not have the power to authorize military commissions in Indiana. Chief Justice Chase asserted that the power of Congress "to authorize trials for crimes against the security and safety of the national forces, may be derived from its constitutional power to raise and support armies and to declare war;" and that while the civil courts "might be open and undisturbed in their functions... yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators."[6]

See also


  1. ^
  2. ^ Amnesty to Political or State Prisoners.
  3. ^
  4. ^
  5. ^
  6. ^  One or more of the preceding sentences incorporates text from a publication now in the public domain


  • Klaus, Samuel. The Milligan Case. New York: Da Capo Press, 1970.
  • Military Government and Martial Law, by William E. Birkhimer, third edition, revised (1914), Kansas City, Missouri, Franklin Hudson Publishing Co.
  • FM 27-10 "The Law of Land Warfare," DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., 18 July 1956. (This manual supersedes FM 27-10, 1 October 1940, including C 1, 15 November 1944. Changes required on 15 July 1976, have been incorporated within this document.) Chapter 6, OCCUPATION [1]

Further reading

External links

  • Works related to Ex parte Milligan at Wikisource
  • Text of Ex parte Milligan, 71 U.S. 2 (1866) is available from:  Findlaw  Justia 
  • Oyez, Official Supreme Court media, Ex Parte Milligan.
  • Historical analysis of the case – Elisheva Ruth Coleman Princeton University senior thesis
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