Ex parte Milligan, 71 U.S. 4 Wall. 2 2 (). Ex parte Milligan. 71 U.S. (4 Wall.) 2. Syllabus. 1. Circuit Courts, as well as the judges thereof, are authorized, by the. In Ex parte Milligan, the Court held that Presedent Lincoln had violated the In Ex parte Milligan (), the Supreme Court ruled that a prisoner’s ability to. U.S. Supreme Court. EX PARTE MILLIGAN. 71 U.S. 2 (). December Term, Mr. Justice DAVIS delivered the opinion of the court. On the 10th day of.

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One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior. This is the extent of the decision. He was powerless to do more; he could neither instruct the judges nor control their action, and should not suffer, because, without fault of his, they were unable to render a judgment.

There was no question in issue about the power of declaring martial law under the Federal Constitution, and the court did not consider it necessary even to inquire “to what extent nor under what circumstances that power may by exercised by a state.

Yeakel, were also seized. Where peace exists, the laws of peace must prevail. 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, ; the military commission did not have the jurisdiction to try and sentence Milligan; and he was entitled to a discharge.

It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. The opinions of the judges of the Circuit Court were opposed on three questions, which are certified to the Supreme Court:.

A person who is a resident of a loyal State, where he was arrested, who was never resident in any State engaged in rebellion, nor connected with the military or naval service, cannot be regarded as a prisoner of war. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. On May 10,Jonathan W. BlackPresident James Buchanan ‘s U. Milligan, a citizen of the United States, and a resident and citizen of the State of Indiana, was arrested on the 5th day of October,at his home in the said State, by the order of Brevet Major-General Hovey, military commandant of the District of Indiana, and by the same authority confined in a military prison at or near Indianapolis, the capital of the State.

The prayer of the petition was that, under the already mentioned act of Congress of March 3d,the petitioner might be brought before the court and either turned over to the proper civil tribunal to be proceeded with according to the law of the land or discharged from custody altogether. The two next sections limited this authority in important respects. The first section authorized the suspension, during the Rebellion, of the writ of habeas corpus throughout the United States by the President.

Archived from the original on It was admitted at the bar that the Circuit Court had jurisdiction to entertain the application for the writ of habeas corpus and to hear and determine it, and it could not be denied, for the power is expressly given in the 14th section of the Judiciary Act ofas well as in the later act of It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown.


One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior. An act of Congress — the Judiciary Act of[ Footnote 1 ] section 14 — enacts that the Circuit Courts of the United States “Shall have power to issue writs of habeas corpus.

This law was passed in a time of great national peril, when our heritage of free government was in danger. On the 10th day of May,Lambdin P. On the 10th of that same May,Milligan filed his petition in the Circuit Court of the United States for the District of Indiana, by which, or by the documents appended to which as exhibits, the above facts appeared.

Ex parte Milligan, 71 U.S. 2 (1866)

But none of the adjudicated cases is exactly in point, and we are willing to resolve whatever doubt may exist in favor of the earliest possible answers to questions involving life and liberty.

When the Circuit Court renders a final judgment refusing to discharge the prisoner, he may bring the case here by writ of error, and, if the judges of the Circuit Court, being opposed in opinion, can render no judgment, he may have the point upon which the disagreement happens certified to this tribunal.

And wherever our army or navy may go beyond our territorial limits, neither can go beyond the authority of the President or the legislation of Congress. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Ex parte Milligan :: 71 U.S. 2 () :: Justia US Supreme Court Center

Both these powers are derived from the Constitution, but neither is defined by that instrument. It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury.

The amendments proposed by the states were considered by the first Congress, and such as were approved in substance were put in form and proposed by that body to the states. Chief Justice Marshall, in Bollman’s case, [ Footnote 5 ] construed this branch of the Judiciary Act to authorize the courts as well as the judges to issue the writ for the purpose of inquiring into the cause of the commitment, and this construction has never 18666 departed from.

These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for parts protection of those accused of crime.

Kent State University Press. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by pzrte, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.

In any legal sense, action, suit, and cause, are convertible terms. Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.

Every officer of the United States having parfe of such prisoners was required to obey and execute the judge’s order, under penalty, for refusal or delay, of fine and imprisonment. We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people and exercised under direct responsibility to the people, is more likely to be abused than the power milliagn regulate commerce or the power to borrow money.


Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. We are not mikligan precedents in English and American history illustrating our views of this question, but it is hardly necessary to make particular reference to them.

This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise.

It can never sx, in this country of written constitution and laws, with a judicial department to interpret them, that any chief magistrate would be so far molligan of his duty as to order the execution of a man who denied the jurisdiction that tried and convicted him after his case was before Federal judges with power to decide it, who, being unable to agree on the grave questions involved, had, according to known law, sent it to the Supreme Court of the United States for decision.

Thus, Massachusetts proposed that no person shall be tried for any crime by which he would incur an infamous punishment or loss of life until he be first exx by a grand jury except in such cases as may arise in the government and regulation of the land forces. Under a 1866 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.

Ex Parte Milligan | law case |

The military commission could not have jurisdiction to try and sentence Milligan if he could not be detained in prison under his original arrest or under sentence after the close of a session of the grand jury without indictment or other proceeding against him. The proceedings therefore had the fullest sanction of the executive department of the government. But, it is contended, if they differed about the lawfulness of the imprisonment, and could render no judgment, the prisoner is remediless, and cannot have the disputed question certified under the act of The omission to furnish a list of the persons arrested to the judges of the Circuit or District Court as provided in the said act did not impair the right of said person, if not indicted or presented, to his discharge.

Our editors will review what you’ve submitted, and if it meets our criteria, we’ll add it to the article. By that Constitution and the laws authorized by it, this question must be determined.

A patre for a writ of habeas parge, duly presented, is the institution of a cause on behalf of the petitioner, and the allowance or refusal of the process, as well as the subsequent disposition of the prisoner is matter of law, and not of discretion. In these cases, the writ was still to issue, and, under it, the prisoner was entitled to his discharge by a circuit or district judge or court unless held to bail for appearance to answer charges.