TOPIC: Military Power – commander in chief

EX PARTE MILLIGAN – US Case

Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a U.S. Supreme Court case that ruled the application
of military tribunals to citizens when civilian courts are still operating is unconstitutional. In this
particular case the Court was unwilling to give President Abraham Lincoln's administration the power of
military commission jurisdiction, part of the administration's controversial plan to deal with Union
dissenters during the American Civil War. Justice David Davis, who delivered the majority opinion, stated
that "martial rule can never exist when the courts are open" and confined martial law to areas of
"military operations, where war really prevails," and when it was a necessity to provide a substitute for a
civil authority that had been overthrown. Chief Justice Chase and three associate justices filed a
separate opinion concurring with the majority in the judgment, but asserted that Congress had the
power to authorize a military commission, although it had not done so in Milligan's case.

The landmark case stemmed from a trial by a military commission of Lambdin P. Milligan (for whom the
case is named), Stephen Horsey, William A. Bowles, and Andrew Humphreys that convened
at Indianapolis on October 21, 1864. The charges against the men included, among others, conspiracy
against the U.S. government, offering aid and comfort to the Confederates, and inciting rebellion. On
December 10, 1864, Milligan, Bowles, and Horsey were found guilty on all charges and sentenced to
hang. Humphreys was found guilty and sentenced to hard labor for the remainder of the war. (The
sentence for Humphreys was later modified, allowing his release; President Andrew Johnson commuted
the sentences for Milligan, Bowles, and Horsey to life imprisonment.) On May 10, 1865, Milligan's legal
counsel filed a petition in the Circuit Court of the United States for the District of Indiana at Indianapolis
for a writ of habeas corpus, which called for a justification of Milligan's arrest. A similar petition was filed
on behalf of Bowles and Horsey. The two judges who reviewed Milligan's petition disagreed about the
issue of whether the U.S. Constitution prohibited civilians from being tried by a military commission and
passed the case to the U.S. Supreme Court. The case was argued before the Court on March 5 and
March 13, 1866; its decision was handed down on April 3, 1866.

FACTS:

During the American Civil War, the administration of President Abraham Lincoln dealt
with Union dissenters by declaring martial law, sanctioning arbitrary arrest and detention, suspending
the writ of habeas corpus that requires justification of the detention, and initiating trials by military
commission rather than conventional civil courts. The rationale for these actions was based on Article 1,
Section 9 of the U.S. Constitution, which authorizes the suspension of the writ of habeas corpus "when
in Cases of Rebellion or Invasion the public Safety may require it."[1][2] Lincoln theorized that the civil
courts in the United States were established to try individuals and small groups "on charges of crimes
well defined in the law" and not to deal with large groups of dissenters, whose actions, while damaging
to the war effort, did not constitute a "defined crime" in states loyal to the government.[3] Lincoln
believed his administration's plan would suppress anti-government agitators, but he was also optimistic
that it would be rescinded after the war ended.[4]

The first test of Lincoln's thesis for silencing dissenters occurred in the spring of 1863. Clement
Vallandigham, an Ohio politician and anti-war Democrat, was placed under arrest on May 5, 1863, taken
to Cincinnati for a trial before a military commission, and jailed. Vallandigham was found guilty and
sentenced to prison for the remainder of the war, but Lincoln commuted the sentence. Vallandigham's
petition to the U.S. Supreme Court, known as Ex parte Vallandigham, was denied.

The next test began with trials by a military commission that led to the landmark U.S. Supreme Court
case known as Ex parte Milligan. On September 17, 1864, General Alvin Peterson Hovey, commander of
the Military District of Indiana, authorized a military commission to meet on September 19
at Indianapolis, Indiana, to begin trials of Harrison H. Dodd, "grand commander" of the Sons of Liberty in
Indiana, and others placed under military arrest.[6] These prisoners included Democrats Lambdin P.
Milligan, a lawyer living in Huntington, Indiana, and an outspoken critic of President Lincoln and
Indiana's Republican governor Oliver P. Morton; Joseph J. Bingham, editor of the Indianapolis Daily
Sentineland chairman of Indiana's Democratic State Central Committee; William A. Bowles of French
Lick, Indiana; William M. Harrison, secretary of the Democratic Club of Marion County, Indiana; Horace
Heffren, editor of the Washington (Indiana) Democrat; Stephen Horsey of Martin County, Indiana;
and Andrew Humphreys of Bloomfield, Indiana.[7][8] Two other men, James B. Wilson and David T.
Yeakel, were also seized.[9] Dodd, who was the first to be tried, escaped from jail before his trial was
completed, and fled to Canada. On October 10, 1864, he was found guilty, convicted in absentia, and
sentenced to hang. Charges against Bingham, Harrison, Yeakel, and Wilson were dismissed. Heffren was
released before the proceedings against Milligan began.[10]

The military commission for the trial of Milligan, Horsey, Bowles, and Humphreys convened at
Indianapolis on October 21, 1864. The commission considered five charges against the
men: conspiracy against the U.S. government, offering aid and comfort to the Confederates,
inciting insurrections, "disloyal practices," and "violation of the laws of war."[11][12] The defendants were
alleged to have established a secret organization that planned to liberate Confederate soldiers from
Union prisoner-of-war camps in Illinois, Indiana, and Ohio, and then seize an arsenal, provide the freed
prisoners with arms, raise an armed force to incite a general insurrection, and join with the
Confederates to invade Indiana, Illinois, and Kentucky and make war on the government of the United
States.

The military commission's decision on December 10, 1864, found Milligan, Bowles, and Horsey guilty.
The men were sentenced to hang on May 19, 1865. Humphreys was found guilty and sentenced to hard
labor for the remainder of the war.[12][14] With President Lincoln's support, General Hovey modified the
sentence for Humphreys, allowing his release, but Humphreys was required to remain within two
specific townships in Greene County, Indiana, and could not participate in any acts that opposed the
war. Efforts were made to secure pardons for Milligan, Bowles, and Horsey, with the decision passing to
President Johnson following Lincoln's assassination.

DECISION

Chief Justice Salmon P. Chase handed down the Court's decision, which decreed that the writ of habeas
corpus could be issued based on the congressional act of March 3, 1863; the military commission did not
have the jurisdiction to try and sentence Milligan; and he was entitled to a discharge. Milligan, Bowles,
and Horsey were discharged from prison on April 12, 1866.[21] The Court's opinion was read during the
next Court session.

On December 17, 1866, Justice Davis delivered the majority opinion explaining that Milligan, who was a
civilian not in military service and resident of a state in which civilian courts were still functioning, had a
right, when charged with a crime, to be tried and punished according to the law.[19][21] Under the U.S.
Constitution this included security against unreasonable search and seizure, a warrant for probable
cause before arrest, and if indicted, a speedy trial by jury. Justice Davis disagreed with the federal
government's argument regarding the propriety of the military commission, stating that "martial rule
can never exist when the courts are open" and confined martial law to areas of "military operations,
where war really prevails," and when it became a necessity to provide a substitute for a civil authority
that had been overthrown. This was not the situation in Indiana, where the civilian courts were still
operating at the time of Milligan's arrest, trial, and incarceration.[22] The majority opinion further
observed that during the suspension of the writ of habeas corpus, citizens may be only detained without
charges, not "tried" or executed under the jurisdictions of military tribunals. The writ is not the right
itself, but merely the ability to issue orders demanding the right's "enforcement."[12]

In Ex parte Milligan, which in essence was a case about governmental power and personal liberty, the
Court's decision stood "on the side of personal liberty."[23] In this case the Court was unwilling to give
President Lincoln's administration the power of military commission jurisdiction. The Court's decision
avoided the risk of its abuse by future administrations in other situations.[23] It is also important to note
the political environment of the decision. Under a Republican Congress immediately after the Civil War,
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 the writ of habeas corpus without
congressional approval was not addressed in this case, most likely because it was a moot issue with
respect to the case at hand. President Lincoln had suspended the writ nationwide on September 24,
1862,[24] and Congress had ratified this action on March 3, 1863, with the Habeas Corpus Suspension Act.
Milligan was detained in October 1864, more than a year after Congress formally suspended the writ.