2020 0521

CASES Ex parte Milligan -- 71 U.S. 2 (1866) Habeas Corpus

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Ex parte Milligan

PETITIONER

Lambdin P. Milligan et al.

RESPONDENT

United States

LOCATION

Military Commission at United States Court House in Indianapolis

DOCKET NO.

None

DECIDED BY

Chase Court

LOWER COURT

State appellate court

CITATION

71 US 2 (1866)

ARGUED

Mar 10, 1866; Mar 6, 1866; Mar 7, 1866; Mar 8, 1866; Mar 9, 1866; Mar 12,

1866; Mar 13, 1866

DECIDED

Apr 3, 1866

ADVOCATES

Jeremiah S. Blackfor Milligan

David Dudley Fieldfor Milligan

James A. Garfieldfor Milligan

Benjamin F. Butlerfor the United States

Facts of the case

Lambden P. Milligan was sentenced to death by a military commission in Indiana during
the Civil War for engaging in acts of disloyalty. Milligan sought release through
habeas corpus from a federal court.

Question
Does a civil court have jurisdiction over a military tribunal?
 Conclusion
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 UNANIMOUS DECISION FOR MILLIGAN

MAJORITY OPINION BY DAVID DAVIS

Civilians cannot be tried by presidentially created military commissions when the

civil courts are still in operation

Davis

Nelson
Grier

Clifford

Field
Chase

Wayne

Swayne

Miller

Writing for the Court, Justice David Davis held that trials of civilians by presidentially
created military commissions are unconstitutional. Specifically, it is unconstitutional
to try civilians by military tribunals unless there is no civilian court available. The
military commission therefore did not have jurisdiction to try and sentence Milligan, and
he was entitled to discharge. 
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Justia › US Law › US Case Law › US Supreme Court › Volume 71 › Ex parte Milligan

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

U.S. Supreme Court

Ex parte Milligan, 71 U.S. 4 Wall. 2 2 (1866)

Ex parte Milligan

71 U.S. (4 Wall.) 2

Syllabus

1. Circuit Courts, as well as the judges thereof, are

authorized, by the fourteenth section of the Judiciary
Act, to issue the writ of habeas corpus for the purpose
of inquiring into the cause of commitment, and they have

Page 71 U. S. 3
jurisdiction, except in cases where the privilege of the writ
is suspended, to hear and determine the question
whether the party is entitled to be discharged.

2. The usual course of proceeding is for the court, on the

application of the prisoner for a writ of habeas corpus, to
issue the writ, and, on its return, to hear and dispose of
the case; but where the cause of imprisonment is fully
shown by the petition, the court may, without issuing the
writ, consider and determine whether, upon the facts
presented in the petition, the prisoner, if brought before
the court, would be discharged.

3. 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.

4. A petition for a writ of habeas corpus, 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.

5. A person arrested after the passage of the act of March

3d, 1863, "relating to habeas corpus and regulating
judicial proceedings in certain cases," and under the
authority of said act, was entitled to his discharge if not
indicted or presented by the grand jury convened at the
first subsequent term of the Circuit or District Court of
the United States for the District.

6. 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.

7. Military commissions organized during the late civil

war, in a State not invaded and not engaged in rebellion,
in which the Federal courts were open, and in the proper
and unobstructed exercise of their judicial functions, had
no jurisdiction to try, convict, or sentence for any criminal
offence, a citizen who was neither a resident of a
rebellious State nor a prisoner of war, nor a person in the
military or naval service. And Congress could not invest
them with any such power.

8. The guaranty of trial by jury contained in the

Constitution was intended for a state of war, as well as a
state of peace, and is equally binding upon rulers and
people at all times and under all circumstances.

9. The Federal authority having been unopposed in the

State of Indiana, and the Federal courts open for the trial
of offences and the redress of grievances, the usages of
war could not, under the Constitution, afford any sanction
for the trial there of a citizen in civil life not connected
with the military or naval service, by a military tribunal,
for any offence whatever.
10. Cases arising in the land or naval forces, or in the
militia in time of war or public danger, are excepted from
the necessity of presentment or indictment by a grand
jury, and the right of trial by jury in such cases is subject
to the same exception.

Page 71 U. S. 4

11. Neither the President nor Congress nor the Judiciary

can disturb any one of the safeguards of civil liberty
incorporated into the Constitution except so far as the
right is given to suspend in certain cases the privilege of
the writ of habeas corpus.

12. A citizen not connected with the military service and a

resident in a State where the courts are open and in the
proper exercise or their jurisdiction cannot, even when
the privilege of the writ of habeas corpus is suspended,
be tried, convicted, or sentenced otherwise than by the
ordinary courts of law.

13. Suspension of the privilege of the writ of habeas

corpus does not suspend the writ itself. The writ issues as
a matter of course, and, on its return, the court decides
whether the applicant is denied the right of proceeding
any further.

14. 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.
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.

The case was thus:

An act of Congress -- the Judiciary Act of 1789, [Footnote

1] section 14 -- enacts that the Circuit Courts of the United
States

"Shall have power to issue writs of habeas corpus. And

that either of the justices of the Supreme Court, as well as
judges of the District Court, shall have power to grant
writs of habeas corpus for the purpose of an inquiry into
the cause of commitment. Provided,"

&c.

Another act -- that of March 3d, 1863, [Footnote 2]

"relating to habeas corpus, and regulating judicial
proceedings in certain cases" -- an act passed in the midst
of the Rebellion -- makes various provisions in regard to
the subject of it.

The first section authorizes the suspension, during the

Rebellion, of the writ of habeas corpus, throughout the
United States, by the President.

Two following sections limited the authority in certain

respects.

Page 71 U. S. 5
The second section required that lists of all persons,
being citizens of States in which the administration of the
laws had continued unimpaired in the Federal courts,
who were then held, or might thereafter be held, as
prisoners of the United States, under the authority of the
President, otherwise than as prisoners of war, should be
furnished by the Secretary of State and Secretary of War
to the judges of the Circuit and District Courts. These lists
were to contain the names of all persons, residing within
their respective jurisdictions, charged with violation of
national law. And it was required, in cases where the
grand jury in attendance upon any of these courts should
terminate its session without proceeding by indictment or
otherwise against any prisoner named in the list, that the
judge of the court should forthwith make an order that
such prisoner, desiring a discharge, should be brought
before him or the court to be discharged, on entering into
recognizance, if required, to keep the peace and for good
behavior, or to appear, as the court might direct, to be
further dealt with according to law. Every officer of the
United States having custody of such prisoners was
required to obey and execute the judge's order, under
penalty, for refusal or delay, of fine and imprisonment.

The third section enacts, in case lists of persons other

than prisoners of war then held in confinement or
thereafter arrested, should not be furnished within
twenty days after the passage of the act, or, in cases of
subsequent arrest, within twenty days after the time of
arrest, that any citizen, after the termination of a session
of the grand jury without indictment or presentment,
might, by petition alleging the facts and verified by oath,
obtain the judge's order of discharge in favor of any
person so imprisoned, on the terms and conditions
prescribed in the second section.

This act made it the duty of the District Attorney of the

United States to attend examinations on petitions for
discharge.

By proclamation, [Footnote 3] dated the 15th September

following,

Page 71 U. S. 6

the President, reciting this statute, suspended the

privilege of the writ in the cases where, by his authority,
military, naval, and civil officers of the United States

"hold persons in their custody either as prisoners of war,

spies, or aiders and abettors of the enemy, . . . or
belonging to the land or naval force of the United States,
or otherwise amenable to military law, or the rules and
articles of war, or the rules or regulations prescribed for
the military or naval services, by authority of the
President, or for resisting a draft, or for any other offence
against the military or naval service."

With both these statutes and this proclamation in force,

Lamdin P. 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, 1864, 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. On the 21st day of
the same month, he was placed on trial before a "military
commission," convened at Indianapolis, by order of the
said General, upon the following charges, preferred by
Major Burnett, Judge Advocate of the Northwestern
Military Department, namely:

1. "Conspiracy against the Government of the United

States;"

2. "Affording aid and comfort to rebels against the

authority of the United States;"

3. "Inciting insurrection;"

4. "Disloyal practices;" and

5. "Violation of the laws of war."

Under each of these charges, there were various

specifications. The substance of them was joining and
aiding, at different times between October, 1863, and
August, 1864, a secret society known as the Order of
American Knights or Sons of Liberty, for the purpose of
overthrowing the Government and duly constituted
authorities of the United States; holding communication
with the enemy; conspiring to seize munitions of war
stored in the arsenals; to liberate

Page 71 U. S. 7

prisoners of war, &c.; resisting the draft, &c.; . . .

"at a period of war and armed rebellion against the

authority of the United States, at or near Indianapolis
[and various other places specified] in Indiana, a State
within the military lines of the army of the United States
and the theatre of military operations, and which had
been and was constantly threatened to be invaded by the
enemy."

These were amplified and stated with various

circumstances.

An objection by him to the authority of the commission to

try him being overruled, Milligan was found guilty on all
the charges, and sentenced to suffer death by hanging,
and this sentence, having been approved, he was ordered
to be executed on Friday, the 19th of May, 1865.

On the 10th of that same May, 1865, 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.
These exhibits consisted of the order for the commission;
the charges and specifications; the findings and sentence
of the court, with a statement of the fact that the
sentence was approved by the President of the United
States, who directed that it should "be carried into
execution without delay;" all "by order of the Secretary of
War."

The petition set forth the additional fact that, while the
petitioner was held and detained, as already mentioned,
in military custody (and more than twenty days after his
arrest), a grand jury of the Circuit Court of the United
States for the District of Indiana was convened at
Indianapolis, his said place of confinement, and duly
empaneled, charged, and sworn for said district, held its
sittings, and finally adjourned without having found any
bill of indictment, or made any presentment whatever
against him. That at no time had he been in the military
service of the United States, or in any way connected with
the land or naval force, or the militia in actual service; nor
within the limits of any State whose citizens were
engaged in rebellion against the United States, at any
time during the war, but, during all the time aforesaid,
and for twenty years last past, he had been an

Page 71 U. S. 8

inhabitant, resident, and citizen of Indiana. And so that it

had been

"wholly out of his power to have acquired belligerent

rights or to have placed himself in such relation to the
government as to have enabled him to violate the laws of
war."
The record, in stating who appeared in the Circuit Court,
ran thus:

"Be it remembered, that on the 10th day of May, A.D.

1865, in the court aforesaid, before the judges aforesaid,
comes Jonathan W. Gorden, Esq., of counsel for said
Milligan, and files here, in open court, the petition of said
Milligan, to be discharged.. . . . At the same time comes
John Hanna, Esquire, the attorney prosecuting the pleas
of the United States in this behalf. And thereupon, by
agreement, this application is submitted to the court, and
day is given, &c."

The prayer of the petition was that, under the already

mentioned act of Congress of March 3d, 1863, 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.

At the hearing of the petition in the Circuit Court, the

opinions of the judges were opposed upon the following
questions:

I. On the facts stated in the petition and exhibits, ought a

writ of habeas corpus to be issued according to the
prayer of said petitioner?

II. On the facts stated in the petition and exhibits, ought

the said Milligan to be discharged from custody as in said
petition prayed?
III. Whether, upon the facts stated in the petition and
exhibits, the military commission had jurisdiction legally
to try and sentence said Milligan in manner and form, as
in said petition and exhibit is stated?

And these questions were certified to this court under the

provisions of the act of Congress of April 29th, 1802,
[Footnote 4] an act

Page 71 U. S. 9

which provides

"that whenever any question shall occur before a Circuit

Court upon which the opinions of the judges shall be
opposed, the point upon which the disagreement shall
happen shall, during the same term, upon the request
of either party or their counsel, be stated under the
direction of the judges and certified under the seal of the
court to the Supreme Court, at their next session to be
held thereafter, and shall by the said court
be finally decided, and the decision of the Supreme Court
and their order in the premises shall be remitted to the
Circuit Court and be there entered of record, and shall
have effect according to the nature of the said judgment
and order; Provided, That nothing herein contained shall
prevent the cause from proceeding if, in the opinion of
the court, further proceedings can be had without
prejudice to the merits."
The three several questions above mentioned were
argued at the last term. And along with them, an
additional question raised in this court, namely:

IV. A question of jurisdiction, as -- 1. Whether the Circuit

Court had jurisdiction to hear the case there presented? --
2. Whether the case sent up here by certificate of division
was so sent up in conformity with the intention of the act
of 1802? in other words, whether this court had
jurisdiction of the questions raised by the certificate?

Page 71 U. S. 107

Mr. Justice DAVIS delivered the opinion of the court.

On the 10th day of May, 1865, Lambdin P. Milligan

presented a petition to the Circuit Court of the United
States for the District of Indiana to be discharged from an
alleged unlawful imprisonment. The case made by the
petition is this: Milligan is a citizen of the United States;
has lived for twenty years in Indiana, and, at the time of
the grievances complained of, was not, and never had
been, in the military or naval service of the United States.
On the 5th day of October, 1864, while at home, he was
arrested by order of General Alvin P. Hovey, commanding
the military district of Indiana, and has ever since been
kept in close confinement.

On the 21st day of October, 1864, he was brought before

a military commission, convened at Indianapolis by order
of General Hovey, tried on certain charges and
specifications, found guilty, and sentenced to be hanged,
and the sentence ordered to be executed on Friday, the
19th day of May, 1865.

On the 2d day of January, 1865, after the proceedings of

the military commission were at an end, the Circuit Court
of the United States for Indiana met at Indianapolis and
empaneled a grand jury, who were charged to inquire

Page 71 U. S. 108

whether the laws of the United States had been violated.

and, if so, to make presentments. The court adjourned on
the 27th day of January, having, prior thereto, discharged
from further service the grand jury, who did not find any
bill of indictment or make any presentment against
Milligan for any offence whatever, and, in fact, since his
imprisonment, no bill of indictment has been found or
presentment made against him by any grand jury of the
United States.

Milligan insists that said military commission had no

jurisdiction to try him upon the charges preferred, or
upon any charges whatever, because he was a citizen of
the United States and the State of Indiana, and had not
been, since the commencement of the late Rebellion, a
resident of any of the States whose citizens were arrayed
against the government, and that the right of trial by jury
was guaranteed to him by the Constitution of the United
States.
The prayer of the petition was that, under the act of
Congress approved March 3d, 1863, entitled, "An act
relating to habeas corpus and regulating judicial
proceedings in certain cases," he may be brought before
the court and either turned over to the proper civil
tribunal to be proceeded against according to the law of
the land or discharged from custody altogether.

With the petition were filed the order for the commission,
the charges and specifications, the findings of the court,
with the order of the War Department reciting that the
sentence was approved by the President of the United
States, and directing that it be carried into execution
without delay. The petition was presented and filed in
open court by the counsel for Milligan; at the same time,
the District Attorney of the United States for Indiana
appeared and, by the agreement of counsel, the
application was submitted to the court. The opinions of
the judges of the Circuit Court were opposed on three
questions, which are certified to the Supreme Court:

1st. "On the facts stated in said petition and exhibits,

ought a writ of habeas corpus to be issued?"

Page 71 U. S. 109

2d. "On the facts stated in said petition and exhibits,

ought the said Lambdin P. Milligan to be discharged from
custody as in said petition prayed?"
3d. "Whether, upon the facts stated in said petition and
exhibits, the military commission mentioned therein had
jurisdiction legally to try and sentence said Milligan in
manner and form as in said petition and exhibits is
stated?"

The importance of the main question presented by this

record cannot be overstated, for it involves the very
framework of the government and the fundamental
principles of American liberty.

During the late wicked Rebellion, the temper of the times

did not allow that calmness in deliberation and discussion
so necessary to a correct conclusion of a purely judicial
question. Then, considerations of safety were mingled
with the exercise of power, and feelings and interests
prevailed which are happily terminated. Now that the
public safety is assured, this question, as well as all
others, can be discussed and decided without passion or
the admixture of any element not required to form a legal
judgment. We approach the investigation of this case fully
sensible of the magnitude of the inquiry and the necessity
of full and cautious deliberation.

But we are met with a preliminary objection. It is insisted

that the Circuit Court of Indiana had no authority to
certify these questions, and that we are without
jurisdiction to hear and determine them.

The sixth section of the "Act to amend the judicial system

of the United States," approved April 29, 1802, declares
"that whenever any question shall occur before a Circuit
Court upon which the opinions of the judges shall be
opposed, the point upon which the disagreement shall
happen shall, during the same term, upon the request of
either party or their counsel, be stated under the
direction of the judges and certified under the seal of the
court to the Supreme Court at their next session to be
held thereafter, and shall by the said court be finally
decided, and the decision of the

Page 71 U. S. 110

Supreme Court and their order in the premises shall be

remitted to the Circuit Court and be there entered of
record, and shall have effect according to the nature of
the said judgment and order: Provided, That nothing
herein contained shall prevent the cause from
proceeding, if, in the opinion of the court, further
proceedings can be had without prejudice to the merits."

It is under this provision of law that a Circuit Court has

authority to certify any question to the Supreme Court for
adjudication. The inquiry, therefore, is, whether the case
of Milligan is brought within its terms.

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 of 1789, as well as in the later
act of 1863. 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 been
departed from. But it is maintained with earnestness and
ability that a certificate of division of opinion can occur
only in a cause, and that the proceeding by a party
moving for a writ of habeas corpus does not become a
cause until after the writ has been issued and a return
made.

Independently of the provisions of the act of Congress of

March 3, 1863, relating to habeas corpus, on which the
petitioner bases his claim for relief and which we will
presently consider, can this position be sustained?

It is true that it is usual for a court, on application for a

writ of habeas corpus, to issue the writ, and, on the
return, to dispose of the case, but the court can elect to
waive the issuing of the writ and consider whether, upon
the facts presented in the petition, the prisoner, if
brought before it, could be discharged. One of the very
points on which the case of Tobias Watkins, reported in 3
Peters, [Footnote 6] turned was

Page 71 U. S. 111

whether, if the writ was issued, the petitioner would be

remanded upon the case which he had made.
The Chief Justice, in delivering the opinion of the court,
said:

"The cause of imprisonment is shown as fully by the

petitioner as it could appear on the return of the writ;
consequently, the writ ought not to be awarded if the
court is satisfied that the prisoner would be remanded to
prison."

The judges of the Circuit Court of Indiana were therefore

warranted by an express decision of this court in refusing
the writ if satisfied that the prisoner. on his own showing.
was rightfully detained.

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 1802. His remedy is
complete by writ of error or appeal, if the court renders a
final judgment refusing to discharge him; but if he should
be so unfortunate as to be placed in the predicament of
having the court divided on the question whether he
should live or die, he is hopeless, and without remedy. He
wishes the vital question settled not by a single judge at
his chambers, but by the highest tribunal known to the
Constitution, and yet the privilege is denied him because
the Circuit Court consists of two judges, instead of one.

Such a result was not in the contemplation of the

legislature of 1802, and the language used by it cannot be
construed to mean any such thing. The clause under
consideration was introduced to further the ends of
justice by obtaining a speedy settlement of important
questions where the judges might be opposed in opinion.

The act of 1802 so changed the judicial system that the

Circuit Court, instead of three, was composed of two
judges, and, without this provision or a kindred one, if the
judges differed, the difference would remain, the
question be unsettled, and justice denied. The decisions
of this court upon the provisions of this section have
been numerous. In United States v. Daniel, [Footnote 7] the
court, in holding that a division

Page 71 U. S. 112

of the judges on a motion for a new trial could not be

certified, say: "That the question must be one which
arises in a cause depending before the court relative to a
proceeding belonging to the cause." Testing Milligan's
case by this rule of law, is it not apparent that it is
rightfully here, and that we are compelled to answer the
questions on which the judges below were opposed in
opinion? If, in the sense of the law, the proceeding for the
writ of habeas corpus was the "cause" of the party
applying for it, then it is evident that the "cause" was
pending before the court, and that the questions certified
arose out of it, belonged to it, and were matters of right,
and not of discretion.

But it is argued that the proceeding does not ripen into a

cause until there are two parties to it.
This we deny. It was the cause of Milligan when the
petition was presented to the Circuit Court. It would have
been the cause of both parties if the court had issued the
writ and brought those who held Milligan in custody
before it. Webster defines the word "cause" thus: "A suit
or action in court; any legal process which a party
institutes to obtain his demand, or by which he seeks his
right, or supposed right" -- and he says,

"this is a legal, scriptural, and popular use of the word,

coinciding nearly with case, from cado, and action,
from ago, to urge and drive."

In any legal sense, action, suit, and cause, are convertible

terms. Milligan supposed he had a right to test the
validity of his trial and sentence, and the proceeding
which he set in operation for that purpose was his
"cause" or "suit." It was the only one by which he could
recover his liberty. 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. But the true meaning
to the term "suit" has been given by this court. One of the
questions in Weston v. City Council of Charleston, [Footnote
8] was whether a writ of prohibition was a suit, and Chief
Justice Marshall says:

"The

Page 71 U. S. 113
term is certainly a comprehensive one, and is understood
to apply to any proceeding in a court of justice by which
an individual pursues that remedy which the law affords
him."

Certainly Milligan pursued the only remedy which the law

afforded him.

Again, in Cohens v. Virginia, [Footnote 9] he says: "In law

language, a suit is the prosecution of some demand in a
court of justice." Also,

"To commence a suit is to demand something by the

institution of process in a court of justice, and to
prosecute the suit is to continue that demand."

When Milligan demanded his release by the proceeding

relating to habeas corpus, he commenced a suit, and he
has since prosecuted it in all the ways known to the law.
One of the questions in Holmes v. Jennison, et
al., [Footnote 10] was whether, under the 25th section of
the Judiciary Act, a proceeding for a writ of habeas corpus
was a "suit." Chief Justice Taney held that,

"if a party is unlawfully imprisoned, the writ of habeas

corpus is his appropriate legal remedy. It is his suit in
court to recover his liberty."

There was much diversity of opinion on another ground

of jurisdiction, but that, in the sense of the 25th section of
the Judiciary Act, the proceeding by habeas corpus was a
suit was not controverted by any except Baldwin, Justice,
and he thought that "suit" and "cause," as used in the
section, mean the same thing.

The court do not say that a return must be made and the
parties appear and begin to try the case before it is a suit.
When the petition is filed and the writ prayed for, it is
a suit -- the suit of the party making the application. If it is
a suit under the 25th section of the Judiciary Act when the
proceedings are begun, it is, by all the analogies of the
law, equally a suit under the 6th section of the act of
1802.

But it is argued that there must be two parties to the suit,

because the point is to be stated upon the request of
"either party or their counsel."

Such a literal and technical construction would defeat the

very purpose the legislature had in view, which was to
enable

Page 71 U. S. 114

any party to bring the case here when the point in

controversy was a matter of right, and not of discretion,
and the words "either party," in order to prevent a failure
of justice, must be construed as words of enlargement,
and not of restriction. Although this case is here ex
parte, it was not considered by the court below without
notice having been given to the party supposed to have
an interest in the detention of the prisoner. The
statements of the record show that this is not only a fair,
but conclusive, inference. When the counsel for Milligan
presented to the court the petition for the writ of habeas
corpus, Mr. Hanna, the District Attorney for Indiana, also
appeared, and, by agreement, the application was
submitted to the court, who took the case under
advisement, and on the next day announced their
inability to agree, and made the certificate. It is clear that
Mr. Hanna did not represent the petitioner, and why is his
appearance entered? It admits of no other solution than
this -- that he was informed of the application, and
appeared on behalf of the government to contest it. The
government was the prosecutor of Milligan, who claimed
that his imprisonment was illegal and sought, in the only
way he could, to recover his liberty. The case was a grave
one, and the court unquestionably directed that the law
officer of the government should be informed of it. He
very properly appeared, and, as the facts were
uncontroverted and the difficulty was in the application of
the law, there was no useful purpose to be obtained in
issuing the writ. The cause was therefore submitted to
the court for their consideration and determination.

But Milligan claimed his discharge from custody by virtue

of the act of Congress "relating to habeas corpus, and
regulating judicial proceedings in certain cases,"
approved March 3d, 1863. Did that act confer jurisdiction
on the Circuit Court of Indiana to hear this case?
In interpreting a law, the motives which must have
operated with the legislature in passing it are proper to
be considered. This law was passed in a time of great
national peril, when our heritage of free government was
in danger.

Page 71 U. S. 115

An armed rebellion against the national authority, of

greater proportions than history affords an example of,
was raging, and the public safety required that the
privilege of the writ of habeas corpus should be
suspended. The President had practically suspended it,
and detained suspected persons in custody without trial,
but his authority to do this was questioned. It was
claimed that Congress alone could exercise this power,
and that the legislature, and not the President, should
judge of the political considerations on which the right to
suspend it rested. The privilege of this great writ had
never before been withheld from the citizen, and, as the
exigence of the times demanded immediate action, it was
of the highest importance that the lawfulness of the
suspension should be fully established. It was under
these circumstances, which were such as to arrest the
attention of the country, that this law was passed. The
President was authorized by it to suspend the privilege of
the writ of habeas corpus whenever, in his judgment, the
public safety required, and he did, by proclamation,
bearing date the 15th of September, 1863, reciting,
among other things, the authority of this statute, suspend
it. The suspension of the writ does not authorize the
arrest of anyone, but simply denies to one arrested the
privilege of this writ in order to obtain his liberty.

It is proper therefore to inquire under what

circumstances the courts could rightfully refuse to grant
this writ, and when the citizen was at liberty to invoke its
aid.

The second and third sections of the law are explicit on

these points. The language used is plain and direct, and
the meaning of the Congress cannot be mistaken. The
public safety demanded, if the President thought proper
to arrest a suspected person, that he should not be
required to give the cause of his detention on return to a
writ of habeas corpus. But it was not contemplated that
such person should be detained in custody beyond a
certain fixed period unless certain judicial proceedings,
known to the common law, were commenced against
him. The Secretaries of State and War were directed to
furnish to the judges of the courts of the

Page 71 U. S. 116

United States a list of the names of all parties, not

prisoners of war, resident in their respective jurisdictions,
who then were or afterwards should be held in custody
by the authority of the President, and who were citizens
of states in which the administration of the laws in the
Federal tribunals was unimpaired. After the list was
furnished, if a grand jury of the district convened and
adjourned, and did not indict or present one of the
persons thus named, he was entitled to his discharge,
and it was the duty of the judge of the court to order him
brought before him to be discharged if he desired it. The
refusal or omission to furnish the list could not operate to
the injury of anyone who was not indicted or presented
by the grand jury, for, if twenty days had elapsed from the
time of his arrest and the termination of the session of
the grand jury, he was equally entitled to his discharge as
if the list were furnished, and any credible person, on
petition verified by affidavit, could obtain the judge's
order for that purpose.

Milligan, in his application to be released from

imprisonment, averred the existence of every fact
necessary under the terms of this law to give the Circuit
Court of Indiana jurisdiction. If he was detained in
custody by the order of the President otherwise than as a
prisoner of war, if he was a citizen of Indiana and had
never been in the military or naval service, and the grand
jury of the district had met, after he had been arrested,
for a period of twenty days, and adjourned without taking
any proceedings against him, then the court had the right
to entertain his petition and determine the lawfulness of
his imprisonment. Because the word "court" is not found
in the body of the second section, it was argued at the bar
that the application should have been made to a judge of
the court, and not to the court itself; but this is not so, for
power is expressly conferred in the last proviso of the
section on the court equally with a judge of it to discharge
from imprisonment. It was the manifest design of
Congress to secure a certain remedy by which anyone
deprived of liberty could obtain it if there was a judicial
failure to find cause of offence against him. Courts are

Page 71 U. S. 117

not, always in session, and can adjourn on the discharge

of the grand jury, and before those who are in
confinement could take proper steps to procure their
liberation. To provide for this contingency, authority was
given to the judges out of court to grant relief to any party
who could show that, under the law, he should be no
longer restrained of his liberty.

It was insisted that Milligan's case was defective because

it did not state that the list was furnished to the judges,
and therefore it was impossible to say under which
section of the act it was presented.

It is not easy to see how this omission could affect the

question of jurisdiction. Milligan could not know that the
list was furnished, unless the judges volunteered to tell
him, for the law did not require that any record should be
made of it or anybody but the judges informed of it. Why
aver the fact when the truth of the matter was apparent
to the court without an averment? How can Milligan be
harmed by the absence of the averment when he states
that he was under arrest for more than sixty days before
the court and grand jury, which should have considered
his case, met at Indianapolis? It is apparent therefore
that, under the Habeas Corpus Act of 1863, the Circuit
Court of Indiana had complete jurisdiction to adjudicate
upon this case, and, if the judges could not agree on
questions vital to the progress of the cause, they had the
authority (as we have shown in a previous part of this
opinion), and it was their duty, to certify those questions
of disagreement to this court for final decision. It was
argued that a final decision on the questions presented
ought not to be made, because the parties who were
directly concerned in the arrest and detention of Milligan
were not before the court, and their rights might be
prejudiced by the answer which should be given to those
questions. But this court cannot know what return will be
made to the writ of habeas corpus when issued, and it is
very clear that no one is concluded upon any question
that may be raised to that return. In the sense of the law
of 1802 which authorized a certificate of division, a final
decision

Page 71 U. S. 118

means final upon the points certified, final upon the court
below, so that it is estopped from any adverse ruling in all
the subsequent proceedings of the cause.

But it is said that this case is ended, as the presumption is

that Milligan was hanged in pursuance of the order of the
President.

Although we have no judicial information on the subject,

yet the inference is that he is alive, for otherwise learned
counsel would not appear for him and urge this court to
decide his case. It can never be, in this country of written
constitution and laws, with a judicial department to
interpret them, that any chief magistrate would be so far
forgetful 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.
But even the suggestion is injurious to the Executive, and
we dismiss it from further consideration. There is
therefore nothing to hinder this court from an
investigation of the merits of this controversy.

The controlling question in the case is this: upon the facts

stated in Milligan's petition and the exhibits filed, had the
military commission mentioned in it jurisdiction legally to
try and sentence him? Milligan, not a resident of one of
the rebellious states or a prisoner of war, but a citizen of
Indiana for twenty years past and never in the military or
naval service, is, while at his home, arrested by the
military power of the United States, imprisoned, and, on
certain criminal charges preferred against him, tried,
convicted, and sentenced to be hanged by a military
commission, organized under the direction of the military
commander of the military district of Indiana. Had this
tribunal the legal power and authority to try and punish
this man?
No graver question was ever considered by this court, nor
one which more nearly concerns the rights of the whole

Page 71 U. S. 119

people, for it is the birthright of every American citizen

when charged with crime to be tried and punished
according to law. The power of punishment is alone
through the means which the laws have provided for that
purpose, and, if they are ineffectual, there is an immunity
from punishment, no matter how great an offender the
individual may be or how much his crimes may have
shocked the sense of justice of the country or
endangered its safety. 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. If there was law to justify this military trial,
it is not our province to interfere; if there was not, it is our
duty to declare the nullity of the whole proceedings. The
decision of this question does not depend on argument
or judicial precedents, numerous and highly illustrative as
they are. These precedents inform us of the extent of the
struggle to preserve liberty and to relieve those in civil life
from military trials. The founders of our government were
familiar with the history of that struggle, and secured in a
written constitution every right which the people had
wrested from power during a contest of ages. By that
Constitution and the laws authorized by it, this question
must be determined. 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. Those applicable to this case are found in
that clause of the original Constitution which says "That
the trial of all crimes, except in case of impeachment,
shall be by jury," and in the fourth, fifth, and sixth articles
of the amendments. The fourth proclaims the right to be
secure in person and effects against unreasonable search
and seizure, and directs that a judicial warrant shall not
issue "without proof of probable cause supported by oath
or affirmation." The fifth declares

"that no person shall be held to answer for a capital or

otherwise infamous crime unless on presentment by a
grand jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of
war or public danger, nor be deprived

Page 71 U. S. 120

of life, liberty, or property without due process of law."

And the sixth guarantees the right of trial by jury, in such

manner and with such regulations that, with upright
judges, impartial juries, and an able bar, the innocent will
be saved and the guilty punished. It is in these words:

"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."

These securities for personal liberty thus embodied were

such as wisdom and experience had demonstrated to be
necessary for the protection of those accused of crime.
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 implication,
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.

Time has proven the discernment of our ancestors, for

even these provisions, expressed in such plain English
words that it would seem the ingenuity of man could not
evade them, are now, after the lapse of more than
seventy years, sought to be avoided. Those great and
good men foresaw that troublous times would arise when
rulers and people would become restive under restraint,
and seek by sharp and decisive measures to accomplish
ends deemed just and proper, and that the principles of
constitutional liberty would be in peril unless established
by irrepealable law. The history of the world had taught
them that what was done in the past might be attempted
in the future. The Constitution of the United States is a
law for rulers and people, equally in war and in peace,
and covers with the shield of its protection all classes of
men, at all times

Page 71 U. S. 121

and under all circumstances. No doctrine involving more

pernicious consequences was ever invented by the wit of
man than that any of its provisions can be suspended
during any of the great exigencies of government. Such a
doctrine leads directly to anarchy or despotism, but the
theory of necessity on which it is based is false, for the
government, within the Constitution, has all the powers
granted to it which are necessary to preserve its
existence, as has been happily proved by the result of the
great effort to throw off its just authority.

Have any of the rights guaranteed by the Constitution

been violated in the case of Milligan?, and, if so, what are
they?

Every trial involves the exercise of judicial power, and

from what source did the military commission that tried
him derive their authority? Certainly no part of judicial
power of the country was conferred on them, because
the Constitution expressly vests it "in one supreme court
and such inferior courts as the Congress may from time
to time ordain and establish," and it is not pretended that
the commission was a court ordained and established by
Congress. They cannot justify on the mandate of the
President, because he is controlled by law, and has his
appropriate sphere of duty, which is to execute, not to
make, the laws, and there is "no unwritten criminal code
to which resort can be had as a source of jurisdiction."

But it is said that the jurisdiction is complete under the

"laws and usages of war."

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. 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

Page 71 U. S. 122

connected with the military service. Congress could grant

no such power, and, to the honor of our national
legislature be it said, it has never been provoked by the
state of the country even to attempt its exercise. 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.

Why was he not delivered to the Circuit Court of Indiana

to be proceeded against according to law? No reason of
necessity could be urged against it, because Congress
had declared penalties against the offences charged,
provided for their punishment, and directed that court to
hear and determine them. And soon after this military
tribunal was ended, the Circuit Court met, peacefully
transacted its business, and adjourned. It needed no
bayonets to protect it, and required no military aid to
execute its judgments. It was held in a state, eminently
distinguished for patriotism, by judges commissioned
during the Rebellion, who were provided with juries,
upright, intelligent, and selected by a marshal appointed
by the President. The government had no right to
conclude that Milligan, if guilty, would not receive in that
court merited punishment, for its records disclose that it
was constantly engaged in the trial of similar offences,
and was never interrupted in its administration of
criminal justice. If it was dangerous, in the distracted
condition of affairs, to leave Milligan unrestrained of his
liberty because he "conspired against the government,
afforded aid and comfort to rebels, and incited the
people to insurrection," the law said arrest him, confine
him closely, render him powerless to do further mischief,
and then present his case to the grand jury of the district,
with proofs of his guilt, and, if indicted, try him according
to the course of the common law. If this had been done,
the Constitution would have been vindicated, the law of
1863 enforced, and the securities for personal liberty
preserved and defended.
Another guarantee of freedom was broken when Milligan
was denied a trial by jury. The great minds of the country

Page 71 U. S. 123

have differed on the correct interpretation to be given to

various provisions of the Federal Constitution, and judicial
decision has been often invoked to settle their true
meaning; but, until recently, no one ever doubted that the
right of trial by jury was fortified in the organic law
against the power of attack. It is now assailed, but if ideas
can be expressed in words and language has any
meaning, this right -- one of the most valuable in a free
country -- is preserved to everyone accused of crime who
is not attached to the army or navy or militia in actual
service. The sixth amendment affirms that, "in all criminal
prosecutions, the accused shall enjoy the right to a
speedy and public trial by an impartial jury," language
broad enough to embrace all persons and cases; but the
fifth, recognizing the necessity of an indictment or
presentment before anyone can be held to answer for
high crimes, "excepts cases arising in the land or naval
forces, or in the militia, when in actual service, in time of
war or public danger," and the framers of the
Constitution doubtless meant to limit the right of trial by
jury in the sixth amendment to those persons who were
subject to indictment or presentment in the fifth.

The discipline necessary to the efficiency of the army and

navy required other and swifter modes of trial than are
furnished by the common law courts, and, in pursuance
of the power conferred by the Constitution, Congress has
declared the kinds of trial, and the manner in which they
shall be conducted, for offences committed while the
party is in the military or naval service. Everyone
connected with these branches of the public service is
amenable to the jurisdiction which Congress has created
for their government, and, while thus serving, surrenders
his right to be tried by the civil courts. All other
persons, citizens of states where the courts are open, if
charged with crime, are guaranteed the inestimable
privilege of trial by jury. This privilege is a vital principle,
underlying the whole administration of criminal justice; it
is not held by sufferance, and cannot be frittered away on
any plea of state or political necessity. When peace
prevails, and the authority of the government is
undisputed,

Page 71 U. S. 124

there is no difficulty of preserving the safeguards of

liberty, for the ordinary modes of trial are never
neglected, and no one wishes it otherwise; but if society is
disturbed by civil commotion -- if the passions of men are
aroused and the restraints of law weakened, if not
disregarded -- these safeguards need, and should receive,
the watchful care of those intrusted with the
guardianship of the Constitution and laws. In no other
way can we transmit to posterity unimpaired the
blessings of liberty, consecrated by the sacrifices of the
Revolution.

It is claimed that martial law covers with its broad mantle

the proceedings of this military commission. The
proposition is this: that, in a time of war, the commander
of an armed force (if, in his opinion, the exigencies of the
country demand it, and of which he is to judge) has the
power, within the lines of his military district, to suspend
all civil rights and their remedies and subject citizens, as
well as soldiers to the rule of his will, and, in the exercise
of his lawful authority, cannot be restrained except by his
superior officer or the President of the United States.

If this position is sound to the extent claimed, then, when

war exists, foreign or domestic, and the country is
subdivided into military departments for mere
convenience, the commander of one of them can, if he
chooses, within his limits, on the plea of necessity, with
the approval of the Executive, substitute military force for
and to the exclusion of the laws, and punish all persons
as he thinks right and proper, without fixed or certain
rules.

The statement of this proposition shows its importance,

for, if true, republican government is a failure, and there
is an end of liberty regulated by law. Martial law
established on such a basis destroys every guarantee of
the Constitution, and effectually renders the "military
independent of and superior to the civil power" -- the
attempt to do which by the King of Great Britain was
deemed by our fathers such an offence that they
assigned it to the world as one of the causes which
impelled them to declare their independence. Civil liberty
and this kind of martial law cannot endure

Page 71 U. S. 125

together; the antagonism is irreconcilable, and, in the

conflict, one or the other must perish.

This nation, as experience has proved, cannot always

remain at peace, and 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 right is conceded, and the
calamities of war again befall us, the dangers to human
liberty are frightful to contemplate. If our fathers had
failed to provide for just such a contingency, they would
have been false to the trust reposed in them. They knew
-- the history of the world told them -- the nation they
were founding, be its existence short or long, would be
involved in war; how often or how long continued human
foresight could not tell, and that unlimited power,
wherever lodged at such a time, was especially hazardous
to freemen. For this and other equally weighty reasons,
they secured the inheritance they had fought to maintain
by incorporating in a written constitution the safeguards
which time had proved were essential to its preservation.
Not one of these safeguards can the President or
Congress or the Judiciary disturb, except the one
concerning the writ of habeas corpus.

It is essential to the safety of every government that, in a

great crisis like the one we have just passed through,
there should be a power somewhere of suspending the
writ of habeas corpus. In every war, there are men of
previously good character wicked enough to counsel their
fellow-citizens to resist the measures deemed necessary
by a good government to sustain its just authority and
overthrow its enemies, and their influence may lead to
dangerous combinations. In the emergency of the times,
an immediate public investigation according to law may
not be possible, and yet the period to the country may be
too imminent to suffer such persons to go at large.
Unquestionably, there is then an exigency which
demands that the government, if it should see fit in the
exercise of a proper discretion to make arrests, should
not be required to produce the persons arrested

Page 71 U. S. 126

in answer to a writ of habeas corpus. The Constitution

goes no further. It does not say, after a writ of habeas
corpus is denied a citizen, that he shall be tried otherwise
than by the course of the common law; if it had intended
this result, it was easy, by the use of direct words, to have
accomplished it. The illustrious men who framed that
instrument were guarding the foundations of civil liberty
against the abuses of unlimited power; they were full of
wisdom, and the lessons of history informed them that a
trial by an established court, assisted by an impartial jury,
was the only sure way of protecting the citizen against
oppression and wrong. Knowing this, they limited the
suspension to one great right, and left the rest to remain
forever inviolable. But it is insisted that the safety of the
country in time of war demands that this broad claim for
martial law shall be sustained. If this were true, it could
be well said that a country, preserved at the sacrifice of all
the cardinal principles of liberty, is not worth the cost of
preservation. Happily, it is not so.

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. Nor is it a question what rule a military
commander, at the head of his army, can impose on
states in rebellion to cripple their resources and quell the
insurrection. The jurisdiction claimed is much more
extensive. The necessities of the service during the late
Rebellion required that the loyal states should be placed
within the limits of certain military districts and
commanders appointed in them, and it is urged that this,
in a military sense, constituted them the theater of
military operations, and as, in this case, Indiana had been
and was again threatened with invasion by the enemy,
the occasion was furnished to establish martial law. The
conclusion does not follow from the premises. If armies
were collected in Indiana, they were to be employed in
another locality, where the laws were obstructed and the
national authority disputed. On her soil there was no
hostile foot; if once invaded, that invasion was at an end,
and, with

Page 71 U. S. 127

it, all pretext for martial law. Martial law cannot arise
from a threatened invasion. The necessity must be actual
and present, the invasion real, such as effectually closes
the courts and deposes the civil administration.

It is difficult to see how the safety for the country required

martial law in Indiana. If any of her citizens were plotting
treason, the power of arrest could secure them until the
government was prepared for their trial, when the courts
were open and ready to try them. It was as easy to
protect witnesses before a civil as a military tribunal, and
as there could be no wish to convict except on sufficient
legal evidence, surely an ordained and establish court
was better able to judge of this than a military tribunal
composed of gentlemen not trained to the profession of
the law.

It follows from what has been said on this subject that

there are occasions when martial rule can be properly
applied. If, in foreign invasion or civil war, the courts are
actually closed, and it is impossible to administer criminal
justice according to law, then, on the theatre of active
military operations, where war really prevails, there is a
necessity to furnish a substitute for the civil authority,
thus overthrown, to preserve the safety of the army and
society, and as no power is left but the military, it is
allowed to govern by martial rule until the laws can have
their free course. As necessity creates the rule, so it limits
its duration, for, if this government is continued after the
courts are reinstated, it is a gross usurpation of power.
Martial rule can never exist where the courts are open
and in the proper and unobstructed exercise of their
jurisdiction. It is also confined to the locality of actual war.
Because, during the late Rebellion, it could have been
enforced in Virginia, where the national authority was
overturned and the courts driven out, it does not follow
that it should obtain in Indiana, where that authority was
never disputed and justice was always administered. And
so, in the case of a foreign invasion, martial rule may
become a necessity in one state when, in another, it
would be "mere lawless violence."

Page 71 U. S. 128

We are not without precedents in English and American

history illustrating our views of this question, but it is
hardly necessary to make particular reference to them.

From the first year of the reign of Edward the Third, when
the Parliament of England reversed the attainder of the
Earl of Lancaster because he could have been tried by the
courts of the realm, and declared
"that, in time of peace, no man ought to be adjudged to
death for treason or any other offence without being
arraigned and held to answer, and that regularly when
the king's courts are open it is a time of peace in
judgment of law,"

down to the present day, martial law, as claimed in this

case, has been condemned by all respectable English
jurists as contrary to the fundamental laws of the land
and subversive of the liberty of the subject.

During the present century, an instructive debate on this

question occurred in Parliament, occasioned by the trial
and conviction by court-martial, at Demerara, of the Rev.
John Smith, a missionary to the negroes, on the alleged
ground of aiding and abetting a formidable rebellion in
that colony. Those eminent statesmen Lord Brougham
and Sir James Mackintosh participated in that debate, and
denounced the trial as illegal because it did not appear
that the courts of law in Demerara could not try offences,
and that, "when the laws can act, every other mode of
punishing supposed crimes is itself an enormous crime."

So sensitive were our Revolutionary fathers on this

subject, although Boston was almost in a state of siege,
when General Gage issued his proclamation of martial
law, they spoke of it as an "attempt to supersede the
course of the common law, and, instead thereof, to
publish and order the use of martial law." The Virginia
Assembly also denounced a similar measure on the part
of Governor Dunmore

"as an assumed power which the king himself cannot

exercise, because it annuls the law of the land and
introduces the most execrable of all systems, martial
law."

In some parts of the country, during the war of 1812, our

officers made arbitrary arrests and, by military tribunals,
tried citizens who were not in the military service. These
arrests

Page 71 U. S. 129

and trials, when brought to the notice of the courts, were

uniformly condemned as illegal. The cases of Smith v.
Shaw and McConnell v. Hampden (reported in 12 Johnson
[Footnote 11]) are illustrations, which we cite not only for
the principles they determine but on account of the
distinguished jurists concerned in the decisions, one of
whom for many years occupied a seat on this bench.

It is contended, that Luther v. Borden, decided by this

court, is an authority for the claim of martial law
advanced in this case. The decision is misapprehended.
That case grew out of the attempt in Rhode Island to
supersede the old colonial government by a revolutionary
proceeding. Rhode Island, until that period, had no other
form of local government than the charter granted by
King Charles II in 1663, and, as that limited the right of
suffrage, and did not provide for its own amendment,
many citizens became dissatisfied because the legislature
would not afford the relief in their power, and, without
the authority of law, formed a new and independent
constitution and proceeded to assert its authority by
force of arms. The old government resisted this, and, as
the rebellion was formidable, called out the militia to
subdue it and passed an act declaring martial law.
Borden, in the military service of the old government,
broke open the house of Luther, who supported the new,
in order to arrest him. Luther brought suit against
Borden, and the question was whether, under the
constitution and laws of the state, Borden was justified.
This court held that a state "may use its military power to
put down an armed insurrection too strong to be
controlled by the civil authority," and, if the legislature of
Rhode Island thought the period so great as to require
the use of its military forces and the declaration of martial
law, there was no ground on which this court could
question its authority, and, as Borden acted under
military orders of the charter government, which had
been recognized by the political power of the country,
and was upheld by the state judiciary, he was justified in
breaking

Page 71 U. S. 130

into and entering Luther's house. This is the extent of the

decision. 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."

We do not deem it important to examine further the

adjudged cases, and shall therefore conclude without any
additional reference to authorities.

To the third question, then, on which the judges below

were opposed in opinion, an answer in the negative must
be returned.

It is proper to say, although Milligan's trial and conviction

by a military commission was illegal, yet, if guilty of the
crimes imputed to him, and his guilt had been
ascertained by an established court and impartial jury, he
deserved severe punishment. Open resistance to the
measures deemed necessary to subdue a great rebellion,
by those who enjoy the protection of government, and
have not the excuse even of prejudice of section to plead
in their favor, is wicked; but that resistance becomes an
enormous crime when it assumes the form of a secret
political organization, armed to oppose the laws, and
seeks by stealthy means to introduce the enemies of the
country into peaceful communities, there to light the
torch of civil war and thus overthrow the power of the
United States. Conspiracies like these, at such a juncture,
are extremely perilous, and those concerned in them are
dangerous enemies to their country, and should receive
the heaviest penalties of the law as an example to deter
others from similar criminal conduct. It is said the severity
of the laws caused them; but Congress was obliged to
enact severe laws to meet the crisis, and as our highest
civil duty is to serve our country when in danger, the late
war has proved that rigorous laws, when necessary, will
be cheerfully obeyed by a patriotic people, struggling to
preserve the rich blessings of a free government.

The two remaining questions in this case must be

answered in the affirmative. The suspension of the
privilege of the

Page 71 U. S. 131

writ of habeas corpus does not suspend the writ itself.

The writ issues as a matter of course, and, on the return
made to it, the court decides whether the party applying
is denied the right of proceeding any further with it.

If the military trial of Milligan was contrary to law, then he

was entitled, on the facts stated in his petition, to be
discharged from custody by the terms of the act of
Congress of March 3d, 1863. The provisions of this law
having been considered in a previous part of this opinion,
we will not restate the views there presented. Milligan
avers he was a citizen of Indiana, not in the military or
naval service, and was detained in close confinement, by
order of the President, from the 5th day of October, 1864,
until the 2d day of January, 1865, when the Circuit Court
for the District of Indiana, with a grand jury, convened in
session at Indianapolis, and afterwards, on the 27th day
of the same month, adjourned without finding an
indictment or presentment against him. If these
averments were true (and their truth is conceded for the
purposes of this case), the court was required to liberate
him on taking certain oaths prescribed by the law, and
entering into recognizance for his good behavior.

But it is insisted that Milligan was a prisoner of war, and

therefore excluded from the privileges of the statute. It is
not easy to see how he can be treated as a prisoner of
war when he lived in Indiana for the past twenty years,
was arrested there, and had not been, during the late
troubles, a resident of any of the states in rebellion. If in
Indiana he conspired with bad men to assist the enemy,
he is punishable for it in the courts of Indiana; but, when
tried for the offence, he cannot plead the rights of war,
for he was not engaged in legal acts of hostility against
the government, and only such persons, when captured,
are prisoners of war. If he cannot enjoy the immunities
attaching to the character of a prisoner of war, how can
he be subject to their pains and penalties?

This case, as well as the kindred cases of Bowles and

Horsey, were disposed of at the last term, and the proper
orders were entered of record. There is therefore no
additional entry required.

Page 71 U. S. 132

[Footnote 1]
1 Stat at Large 81.

[Footnote 2]

12 id. 755.

[Footnote 3]

13 Stat. at Large 734.

[Footnote 4]

2 Stat. at Large 159.

[Footnote 5]

8 U. S. 4 Cranch 75.

[Footnote 6]

Page 28 U. S. 193.

[Footnote 7]

19 U. S. 6 Wheaton 542.

[Footnote 8]

27 U. S. 2 Peters 449.

[Footnote 9]

19 U. S. 6 Wheaton 264.

[Footnote 10]
39 U. S. 14 Peters 540.

[Footnote 11]

Pages 257 and 234.

The CHIEF JUSTICE delivered the following opinion.

Four members of the court, concurring with their

brethren in the order heretofore made in this cause, but
unable to concur in some important particulars with the
opinion which has just been read, think it their duty to
make a separate statement of their views of the whole
case.

We do not doubt that the Circuit Court for the District of

Indiana had jurisdiction of the petition of Milligan for the
writ of habeas corpus.

Whether this court has jurisdiction upon the certificate of

division admits of more question. The construction of the
act authorizing such certificates, which has hitherto
prevailed here, denies jurisdiction in cases where the
certificate brings up the whole cause before the court.
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. We agree, therefore, that this
court may properly answer questions certified in such a
case as that before us.
The crimes with which Milligan was charged were of the
gravest character, and the petition and exhibits in the
record, which must here be taken as true, admit his guilt.
But whatever his desert of punishment may be, it is more
important to the country and to every citizen that he
should not be punished under an illegal sentence,
sanctioned by this court of last resort, than that he should
be punished at all. The laws which protect the liberties of
the whole people must not be violated or set aside in
order to inflict, even upon the guilty, unauthorized
though merited justice.

The trial and sentence of Milligan were by military

commission convened in Indiana during the fall of 1864.
The action of the commission had been under
consideration by President Lincoln for some time when
he himself became the victim of an abhorred conspiracy.
It was approved by his successor in May, 1865, and the
sentence was ordered to be carried into execution. The
proceedings therefore had the fullest sanction of the
executive department of the government.

Page 71 U. S. 133

This sanction requires the most respectful and the most

careful consideration of this court. The sentence which it
supports must not be set aside except upon the clearest
conviction that it cannot be reconciled with the
Constitution and the constitutional legislation of
Congress.
We must inquire, then, what constitutional or statutory
provisions have relation to this military proceeding.

The act of Congress of March 3d, 1863, comprises all the

legislation which seems to require consideration in this
connection. The constitutionality of this act has not been
questioned and is not doubted.

The first section authorized the suspension, during the

Rebellion, of the writ of habeas corpus throughout the
United States by the President. The two next sections
limited this authority in important respects.

The second section required that lists of all persons,

being citizens of states in which the administration of the
laws had continued unimpaired in the Federal courts,
who were then held or might thereafter be held as
prisoners of the United States, under the authority of the
President, otherwise than as prisoners of war, should be
furnished to the judges of the Circuit and District Courts.
The lists transmitted to the judges were to contain the
names of all persons, residing within their respective
jurisdictions, charged with violation of national law. And it
was required, in cases where the grand jury in attendance
upon any of these courts should terminate its session
without proceeding by indictment or otherwise against
any prisoner named in the list, that the judge of the court
should forthwith make an order that such prisoner,
desiring a discharge, should be brought before him or the
court to be discharged on entering into recognizance, if
required, to keep the peace and for good behavior, or to
appear, as the court might direct, to be further dealt with
according to law. Every officer of the United States having
custody of such prisoners was required to obey and
execute the judge's order under penalty, for refusal or
delay, of fine and imprisonment.

The third section provided, in case lists of persons other

Page 71 U. S. 134

than prisoners of war then held in confinement, or

thereafter arrested, should not be furnished within
twenty days after the passage of the act, or, in cases of
subsequent arrest, within twenty days after the time of
arrest, that any citizen, after the termination of a session
of the grand jury without indictment or presentment,
might, by petition alleging the facts and verified by oath,
obtain the judge's order of discharge in favor of any
person so imprisoned on the terms and conditions
prescribed in the second section.

It was made the duty of the District Attorney of the United

States to attend examinations on petitions for discharge.

It was under this act that Milligan petitioned the Circuit

Court for the District of Indiana for discharge from
imprisonment.

The holding of the Circuit and District Courts of the

United States in Indiana had been uninterrupted. The
administration of the laws in the Federal courts had
remained unimpaired. Milligan was imprisoned under the
authority of the President, and was not a prisoner of war.
No list of prisoners had been furnished to the judges,
either of the District or Circuit Courts, as required by the
law. A grand jury had attended the Circuit Courts of the
Indiana district while Milligan was there imprisoned, and
had closed its session without finding any indictment or
presentment or otherwise proceeding against the
prisoner.

His case was thus brought within the precise letter and
intent of the act of Congress, unless it can be said that
Milligan was not imprisoned by authority of the President,
and nothing of this sort was claimed in argument on the
part of the government.

It is clear upon this statement that the Circuit Court was

bound to hear Milligan's petition for the writ of habeas
corpus, called in the act an order to bring the prisoner
before the judge or the court, and to issue the writ, or, in
the language of the act, to make the order.

The first question, therefore -- ought the writ to issue? --

must be answered in the affirmative.

Page 71 U. S. 135

And it is equally clear that he was entitled to the

discharge prayed for.
It must be borne in mind that the prayer of the petition
was not for an absolute discharge, but to be delivered
from military custody and imprisonment, and if found
probably guilty of any offence, to be turned over to the
proper tribunal for inquiry and punishment, or, if not
found thus probably guilty, to be discharged altogether.

And the express terms of the act of Congress required

this action of the court. The prisoner must be discharged
on giving such recognizance as the court should require,
not only for good behavior, but for appearance, as
directed by the court, to answer and be further dealt with
according to law.

The first section of the act authorized the suspension of

the writ of habeas corpus generally throughout the
United States. The second and third sections limited this
suspension, in certain cases, within states where the
administration of justice by the Federal courts remained
unimpaired. 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. No other judge or court
could make an order of discharge under the writ. Except
under the circumstances pointed out by the act, neither
circuit nor district judge or court could make such an
order. But under those circumstances, the writ must be
issued, and the relief from imprisonment directed by the
act must be afforded. The commands of the act were
positive, and left no discretion to court or judge.
An affirmative answer must therefore be given to the
second question, namely: ought Milligan to be discharged
according to the prayer of the petition?

That the third question, namely: had the military

commission in Indiana, under the facts stated, jurisdiction
to try and sentence Milligan? must be answered
negatively is an unavoidable inference from affirmative
answers to the other two.

Page 71 U. S. 136

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.

Indeed, the act seems to have been framed on purpose

to secure the trial of all offences of citizens by civil
tribunals in states where these tribunals were not
interrupted in the regular exercise of their functions.

Under it, in such states, the privilege of the writ might be

suspended. Any person regarded as dangerous to the
public safety might be arrested and detained until after
the session of a grand jury. Until after such session, no
person arrested could have the benefit of the writ, and
even then no such person could be discharged except on
such terms, as to future appearance, as the court might
impose. These provisions obviously contemplate no other
trial or sentence than that of a civil court, and we could
not assert the legality of a trial and sentence by a military
commission, under the circumstances specified in the act
and described in the petition, without disregarding the
plain directions of Congress.

We agree therefore that the first two questions certified

must receive affirmative answers, and the last a negative.
We do not doubt that the positive provisions of the act of
Congress require such answers. We do not think it
necessary to look beyond these provisions. In them, we
find sufficient and controlling reasons for our
conclusions.

But the opinion which has just been read goes further,
and, as we understand it, asserts not only that the
military commission held in Indiana was not authorized
by Congress, but that it was not in the power of Congress
to authorize it, from which it may be thought to follow
that Congress has no power to indemnify the officers who
composed the commission against liability in civil courts
for acting as members of it.

We cannot agree to this.

We agree in the proposition that no department of the

Page 71 U. S. 137
government of the United States -- neither President, nor
Congress, nor the Courts -- possesses any power not
given by the Constitution.

We assent fully to all that is said in the opinion of the

inestimable value of the trial by jury, and of the other
constitutional safeguards of civil liberty. And we concur
also in what is said of the writ of habeas corpus and of its
suspension, with two reservations: (1) that, in our
judgment, when the writ is suspended, the Executive is
authorized to arrest, as well as to detain, and (2) that
there are cases in which, the privilege of the writ being
suspended, trial and punishment by military commission,
in states where civil courts are open, may be authorized
by Congress, as well as arrest and detention.

We think that Congress had power, though not exercised,

to authorize the military commission which was held in
Indiana.

We do not think it necessary to discuss at large the

grounds of our conclusions. We will briefly indicate some
of them.

The Constitution itself provides for military government,

as well as for civil government. And we do not understand
it to be claimed that the civil safeguards of the
Constitution have application in cases within the proper
sphere of the former.
What, then, is that proper sphere? Congress has power to
raise and support armies, to provide and maintain a navy,
to make rules for the government and regulation of the
land and naval forces, and to provide for governing such
part of the militia as may be in the service of the United
States.

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.
It has been so understood and exercised from the
adoption of the Constitution to the present time.

Nor, in our judgment, does the fifth, or any other

amendment, abridge that power. "Cases arising in the
land and naval forces, or in the militia in actual service in
time of war

Page 71 U. S. 138

or public danger," are expressly excepted from the fifth

amendment, "that no person shall be held to answer for a
capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury," and it is
admitted that the exception applies to the other
amendments as well as to the fifth.

Now we understand this exception to have the same

import and effect as if the powers of Congress in relation
to the government of the army and navy and the militia
had been recited in the amendment, and cases within
those powers had been expressly excepted from its
operation. The states, most jealous of encroachments
upon the liberties of the citizen, when proposing
additional safeguards in the form of amendments,
excluded specifically from their effect cases arising in the
government of the land and naval forces. 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 indicted by a grand jury except in such cases as may
arise in the government and regulation of the land
forces."

The exception in similar amendments proposed by New

York, Maryland, and Virginia was in the same or
equivalent terms. 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. Among those thus
proposed and subsequently ratified was that which now
stands as the fifth amendment of the Constitution. We
cannot doubt that this amendment was intended to have
the same force and effect as the amendment proposed
by the states. We cannot agree to a construction which
will impose on the exception in the fifth amendment a
sense other than that obviously indicated by action of the
state conventions.
We think, therefore, that the power of Congress in the
government of the land and naval forces and of the
militia is not at all affected by the fifth or any other
amendment. It is not necessary to attempt any precise
definition of the boundaries of this power. But may it not
be said that government

Page 71 U. S. 139

includes protection and defence, as well as the regulation

of internal administration? And is it impossible to imagine
cases in which citizens conspiring or attempting the
destruction or great injury of the national forces may be
subjected by Congress to military trial and punishment in
the just exercise of this undoubted constitutional power?
Congress is but the agent of the nation, and does not the
security of individuals against the abuse of this, as of
every other, power depend on the intelligence and virtue
of the people, on their zeal for public and private liberty,
upon official responsibility secured by law, and upon the
frequency of elections, rather than upon doubtful
constructions of legislative powers?

But we do not put our opinion that Congress might

authorize such a military commission as was held in
Indiana upon the power to provide for the government of
the national forces.

Congress has the power not only to raise and support

and govern armies, but to declare war. It has therefore
the power to provide by law for carrying on war. This
power necessarily extends to all legislation essential to
the prosecution of war with vigor and success except
such as interferes with the command of the forces and
the conduct of campaigns. That power and duty belong to
the President as commander-in-chief. Both these powers
are derived from the Constitution, but neither is defined
by that instrument. Their extent must be determined by
their nature and by the principles of our institutions.

The power to make the necessary laws is in Congress, the

power to execute in the President. Both powers imply
many subordinate and auxiliary powers. Each includes all
authorities essential to its due exercise. But neither can
the President, in war more than in peace, intrude upon
the proper authority of Congress, nor Congress upon the
proper authority of the President. Both are servants of
the people, whose will is expressed in the fundamental
law. Congress cannot direct the conduct of campaigns,
nor can the President,

Page 71 U. S. 140

or any commander under him, without the sanction of

Congress, institute tribunals for the trial and punishment
of offences, either of soldiers or civilians, unless in cases
of a controlling necessity, which justifies what it compels,
or at least insures acts of indemnity from the justice of
the legislature.
We by no means assert that Congress can establish and
apply the laws of war where no war has been declared or
exists.

Where peace exists, the laws of peace must prevail. What

we do maintain is that, when the nation is involved in war,
and some portions of the country are invaded, and all are
exposed to invasion, it is within the power of Congress to
determine in what states or district such great and
imminent public danger exists as justifies the
authorization of military tribunals for the trial of crimes
and offences against the discipline or security of the army
or against the public safety.

In Indiana, for example, at the time of the arrest of

Milligan and his co-conspirators, it is established by the
papers in the record, that the state was a military district,
was the theatre of military operations, had been actually
invaded, and was constantly threatened with invasion. It
appears also that a powerful secret association,
composed of citizens and others, existed within the state,
under military organization, conspiring against the draft
and plotting insurrection, the liberation of the prisoners
of war at various depots, the seizure of the state and
national arsenals, armed cooperation with the enemy,
and war against the national government.

We cannot doubt that, in such a time of public danger,

Congress had power under the Constitution to provide
for the organization of a military commission and for trial
by that commission of persons engaged in this
conspiracy. The fact that the Federal courts were open
was regarded by Congress as a sufficient reason for not
exercising the power, but that fact could not deprive
Congress of the right to exercise it. Those courts might be
open and undisturbed in the execution

Page 71 U. S. 141

of their functions, and yet wholly incompetent to avert

threatened danger or to punish, with adequate
promptitude and certainty, the guilty conspirators.

In Indiana, the judges and officers of the courts were loyal

to the government. But it might have been otherwise. In
times of rebellion and civil war, it may often happen,
indeed, that judges and marshals will be in active
sympathy with the rebels, and courts their most efficient
allies.

We have confined ourselves to the question of power. It

was for Congress to determine the question of
expediency. And Congress did determine it. That body did
not see fit to authorize trials by military commission in
Indiana, but, by the strongest implication, prohibited
them. With that prohibition we are satisfied, and should
have remained silent if the answers to the questions
certified had been put on that ground, without denial of
the existence of a power which we believe to be
constitutional and important to the public safety -- a
denial which, as we have already suggested, seems to
draw in question the power of Congress to protect from
prosecution the members of military commissions who
acted in obedience to their superior officers and whose
action, whether warranted by law or not, was approved
by that upright and patriotic President under whose
administration the Republic was rescued from threatened
destruction.

We have thus far said little of martial law, nor do we

propose to say much. What we have already said
sufficiently indicates our opinion that there is no law for
the government of the citizens, the armies or the navy of
the United States, within American jurisdiction, which is
not contained in or derived from the Constitution. 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.

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

Page 71 U. S. 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.

We think that the power of Congress, in such times and in

such localities, to authorize trials for crimes against the
security and safety of the national forces may be derived
from its constitutional authority to raise and support
armies and to declare war, if not from its constitutional
authority to provide for governing the national forces.

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 to regulate commerce or the
power to borrow money. And we are unwilling to give our
assent by silence to expressions of opinion which seem to
us calculated, though not intended, to cripple the
constitutional powers of the government, and to augment
the public dangers in times of invasion and rebellion.

Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr. Justice

MILLER concur with me in these views.

https://casetext.com/case/ex-parte-milligan

Ex Parte Milligan
U.S.Jan 1, 1866
71 U.S. 2 (1866)

DECEMBER TERM, 1866.

1. Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section
of the Judiciary Act, to issue the writ of habeas corpus for the purpose of inquiring into
the cause of commitment, and they have  jurisdiction, except in cases where the privilege
of the writ is suspended, to hear and determine the question, whether the party is entitled
to be discharged. 2. The usual course of proceeding is for the court, on the application of
the prisoner for a writ of habeas corpus, to issue the writ, and on its return to hear and
dispose of the case; but where the cause of imprisonment is fully shown by the petition,
the court may, without issuing the writ, consider and determine whether, upon the facts
presented in the petition, the prisoner, if brought before the court, would be discharged. 3.
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. 4. A petition for a writ of habeas corpus,
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. 5. A person arrested after the passage of the act of March 3d
1863, "relating to habeas corpus and regulating judicial proceedings in certain cases,"
and under the authority of the said act, was entitled to his discharge if not indicted or
presented by the grand jury convened at the first subsequent term of the Circuit or
District Court of the United States for the district. 6. 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 such person, if not indicted or presented, to his discharge. 7.
Military commissions organized during the late civil war, in a State not invaded and not
engaged in rebellion, in which the Federal courts were open, and in the proper and
unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or
sentence for any criminal offence, a citizen who was neither a resident of a rebellious
State, nor a prisoner of war, nor a person in the military or naval service. And Congress
could not invest them with any such power. 8. The guaranty of trial by jury contained in
the Constitution was intended for a state of war as well as a state of peace; and is equally
binding upon rulers and people, at all times and under all circumstances. 9. The Federal
authority having been unopposed in the State of Indiana, and the Federal courts open for
the trial of offences and the redress of grievances, the usages of war could not, under the
Constitution, afford any sanction for the trial there of a citizen in civil life, not connected
with the military or naval service, by a military tribunal, for any offence whatever. 10.
Cases arising in the land or naval forces, or in the militia, in time of war or public danger,
are excepted from the necessity of presentment or indictment by a grand jury; and the
right of trial by jury, in such cases, is subject to the same exceptions.  11. Neither the
President, nor Congress, nor the Judiciary can disturb any one of the safeguards of civil
liberty incorporated into the Constitution, except so far as the right is given to suspend in
certain cases the privilege of the writ of habeas corpus. 12. A citizen not connected with
the military service and resident in a State where the courts are open and in the proper
exercise of their jurisdiction cannot, even when the privilege of the writ of habeas
corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary
courts of law. 13. Suspension of the privilege of the writ of habeas corpus does not
suspend the writ itself. The writ issues as a matter of course; and, on its return, the court
decides whether the applicant is denied the right of proceeding any further. 14. 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.

Mr. J.E. McDonald, Mr. J.S. Black, Mr. J.H. Garfield, and Mr. David Dudley Field, for
the petitioner. Mr. McDonald opening the case fully, and stating and examining the
preliminary proceedings.

Mr. Speed, A.G., Mr. Stanbery, and Mr. B.F. Butler, special counsel of the United States,
contra. Mr. Stanbery confining himself to the question of jurisdiction under the act of
1802.

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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.

The case was thus:

An act of Congress — the Judiciary Act of 1789, section 14 — enacts that the Circuit
Courts of the United States

Page 4 1 Stat. at Large, 81.

"Shall have power to issue writs of habeas corpus. And that either of the justices of the
Supreme Court, as well as judges of the District Courts, shall have power to grant writs
of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided,"
c.

Another act — that of March 3d 1863, "relating to habeas corpus, and regulating judicial
proceedings in certain cases" — an act passed in the midst of the Rebellion — makes
various provisions in regard to the subject of it.

Page 4 12 Id. 755.

The first section authorizes the suspension, during the Rebellion, of the writ of habeas
corpus, throughout the United States, by the President.

Two following sections limited the authority in certain respects. 

The second section required that lists of all persons, being citizens of States in which the
administration of the laws had continued unimpaired in the Federal courts, who were then
held, or might thereafter be held, as prisoners of the United States, under the authority of
the President, otherwise than as prisoners of war, should be furnished by the Secretary of
State and Secretary of War to the judges of the Circuit and District Courts. These lists
were to contain the names of all persons, residing within their respective jurisdictions,
charged with violation of national law. And it was required, in cases where the grand jury
in attendance upon any of these courts should terminate its session without proceeding by
indictment or otherwise against any prisoner named in the list, that the judge of the court
should forthwith make an order that such prisoner, desiring a discharge, should be
brought before him or the court to be discharged, on entering into recognizance, if
required, to keep the peace and for good behavior, or to appear, as the court might direct,
to be further dealt with according to law. Every officer of the United States having
custody of such prisoners was required to obey and execute the judge's order, under
penalty, for refusal or delay, of fine and imprisonment.

The third section enacts, in case lists of persons other than prisoners of war then held in
confinement, or thereafter arrested, should not be furnished within twenty days after the
passage of the act, or, in cases of subsequent arrest, within twenty days after the time of
arrest, that any citizen, after the termination of a session of the grand jury without
indictment or presentment, might, by petition alleging the facts and verified by oath,
obtain the judge's order of discharge in favor of any person so imprisoned, on the terms
and conditions prescribed in the second section.

This act made it the duty of the District Attorney of the United States to attend
examinations on petitions for discharge.

By proclamation, dated the 15th September following,  the President reciting this statute

suspended the privilege of the writ in the cases where, by his authority, military, naval,
and civil officers of the United States "hold persons in their custody either as prisoners of
war, spies, or aiders and abettors of the enemy, . . . or belonging to the land or naval
forces of the United States, or otherwise amenable to military law, or the rules and
articles of war, or the rules or regulations prescribed for the military or naval services, by
authority of the President, or for resisting a draft, or for any other offence against the
military or naval service."

Page 5 13 Stat. at Large, 734.

With both these statutes and this proclamation in force, Lamdin P. 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, 1864, 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. On
the 21st day of the same month, he was placed on trial before a "military commission,"
convened at Indianapolis, by order of the said General, upon the following charges;
preferred by Major Burnett, Judge Advocate of the Northwestern Military Department,
namely:

1. "Conspiracy against the Government of the United States;"

2. "Affording aid and comfort to rebels against the authority of the United States;"

3. "Inciting insurrection;"

4. "Disloyal practices;" and

5. "Violation of the laws of war."

Under each of these charges there were various specifications. The substance of them
was, joining and aiding, at different times, between October, 1863, and August, 1864, a
secret society known as the Order of American Knights or Sons of Liberty, for the
purpose of overthrowing the Government and duly constituted authorities of the United
States; holding communication with the enemy; conspiring to seize munitions of war
stored in the arsenals; to liberate  prisoners of war, c.; resisting the draft, c.; . . . "at a
period of war and armed rebellion against the authority of the United States, at or near
Indianapolis, [and various other places specified] in Indiana, a State within the military
lines of the army of the United States, and the theatre of military operations, and which
had been and was constantly threatened to be invaded by the enemy." These were
amplified and stated with various circumstances.

An objection by him to the authority of the commission to try him being overruled,
Milligan was found guilty on all the charges, and sentenced to suffer death by hanging;
and this sentence, having been approved, he was ordered to be executed on Friday, the
19th of May, 1865.

On the 10th of that same May, 1865, 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. These exhibits consisted of the order for the
commission; the charges and specifications; the findings and sentence of the court, with a
statement of the fact that the sentence was approved by the President of the United States,
who directed that it should "be carried into execution without delay;" all "by order of the
Secretary of War."

The petition set forth the additional fact, that while the petitioner was held and detained,
as already mentioned, in military custody (and more than twenty days after his arrest), a
grand jury of the Circuit Court of the United States for the District of Indiana was
convened at Indianapolis, his said place of confinement, and duly empanelled, charged,
and sworn for said district, held its sittings, and finally adjourned without having found
any bill of indictment, or made any presentment whatever against him. That at no time
had he been in the military service of the United States, or in any way connected with the
land or naval force, or the militia in actual service; nor within the limits of any State
whose citizens were engaged in rebellion against the United States, at any time during the
war; but during all the time aforesaid, and for twenty years last past, he had been
an  inhabitant, resident, and citizen of Indiana. And so, that it had been "wholly out of his
power to have acquired belligerent rights, or to have placed himself in such relation to the
government as to have enabled him to violate the laws of war."

The record, in stating who appeared in the Circuit Court, ran thus:

"Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before
the judges aforesaid, comes Jonathan W. Gorden, Esq., of counsel for said Milligan, and
files here, in open court, the petition of said Milligan, to be discharged." . . . "At the same
time comes John Hanna, Esquire, the attorney prosecuting the pleas of the United States
in this behalf. And thereupon, by agreement, this application is submitted to the court,
and day is given, c."

The prayer of the petition was that under the already mentioned act of Congress of March
3d 1863, 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.
At the hearing of the petition in the Circuit Court, the opinions of the judges were
opposed upon the following questions:

I. On the facts stated in the petition and exhibits, ought a writ of habeas corpus to be
issued according to the prayer of said petitioner?

II. On the facts stated in the petition and exhibits, ought the said Milligan to be
discharged from custody as in said petition prayed?

III. Whether, upon the facts stated in the petition and exhibits, the military commission
had jurisdiction legally to try and sentence said Milligan in manner and form, as in said
petition and exhibit is stated?

And these questions were certified to this court under the provisions of the act of
Congress of April 29th, 1802, an act  which provides "that whenever any question shall
occur before a Circuit Court, upon which the opinions of the judges shall be opposed, the
point upon which the disagreement shall happen, shall, during the same term, upon the
request of either party or their counsel, be stated under the direction of the judges, and
certified under the seal of the court to the Supreme Court, at their next session to be held
thereafter; and shall by the said court be finally decided: and the decision of the Supreme
Court and their order in the premises shall be remitted to the Circuit Court, and be there
entered of record, and shall have effect according to the nature of the said judgment and
order: Provided, That nothing herein contained shall prevent the cause from proceeding,
if, in the opinion of the court, further proceedings can be had without prejudice to the
merits."

Page 8 2 Stat. at Large, 159.

The three several questions above mentioned were argued at the last term. And along
with them an additional question raised in this court, namely:

IV. A question of jurisdiction, as — 1. Whether the Circuit Court had jurisdiction to hear
the case there presented? — 2. Whether the case sent up here by certificate of division
was so sent up in conformity with the intention of the act of 1802? in other words,
whether this court had jurisdiction of the questions raised by the certificate?

ON THE SIDE OF THE UNITED STATES.

I. JURISDICTION.

1. As to the jurisdiction of the Circuit Court. — The record shows that the application
was made to the court in open  session. The language of the third section contemplates
that it shall be made to a "judge."

But, independently of this, the record does not state the facts necessary to bring the case
within the act of 1863. It does not show under which section of the act it is presented; nor
allege that the petitioners are state or political prisoners otherwise than as prisoners of
war; nor that a list has been brought in, or that it has not been brought in. If a list had
been brought in containing the name of one of these petitioners, it would have been the
judge's duty to inquire into his imprisonment; if no list had been brought in, his case
could only be brought before the court by some petition, and the judge, upon being
satisfied that the allegations of the petition were true, would discharge him. But there is
no certificate in the division of opinion that the judges were or were not satisfied that the
allegations of these petitioners were true; nor were the petitions brought under the
provisions of that duty. But conceding, for argument's sake, this point, a graver question
exists.

2. As to the jurisdiction of this court. — If there is any jurisdiction over the case here, it
must arise under the acts of Congress which give to this court jurisdiction to take
cognizance of questions arising in cases pending in a Circuit Court of the United States
and certified to the court for its decision, and then to be remanded to the Circuit Court.
This is appellate jurisdiction, and is defined and limited by the single section of the act of
April 29, 1802.

The case is not within the provisions of this section.

First. The question in the court below arose upon the application for a habeas corpus,
before there was a service upon the parties having the petitioner in custody, before an
answer was made by those parties, before the writ was ordered or issued, while yet there
was no other party before the court, except the petitioner. The case was then an ex
parte case, and is so still. The proceeding had not yet ripened into a "cause."

No division of opinion in such a case is within the purview of the section. The division of
opinion on which this  court can act, must occur in the progress of a case where the
parties on both sides are before the court, or have a status in the case. The right to send
the question or point of division to this court can only arise upon the motion of
the parties, or either of them, — not by the court on its own motion or for its own
convenience. The record hardly exhibits the Attorney of the United States, Mr. Hanna, as
taking any part.

The parties have an equal right to be heard upon the question in the court below. It must
appear to them in open court that the judges are divided in opinion. They must have an
equal right to move for its transfer to this court. They must have an equal opportunity to
follow it here and to argue it here, — not as volunteers, not as amici curiœ, not by
permission, but as parties on the record, with equal rights.

This record shows no parties, except the petitioner. Its title is Ex parte Milligan. The
persons who are charged in the petition as having him in wrongful custody are not made
parties, and had, when the question arose, no right to be heard as parties in the court
below, and have no right to be heard as parties in this court.
In such a case, this court cannot answer any one of the questions sent here, especially the
one, "Had the Military Commission jurisdiction to try and condemn Milligan?" For if the
court answer that question in the negative, its answer is a final decision, and, as it is
asserted, settles it for all the future of the case below; and when, hereafter, that case shall,
in its progress, bring the parties complained of before the court, silences all argument
upon the vital point so decided. What becomes of the whole argument which will be
made on the other side, of the right of every man before being condemned of crime, to be
heard and tried by an impartial jury?

United States v. Daniel, 6 Wheaton, 542; Davis v. Braden, 10

Peters, 289.
Second. This being an ex parte application for a writ of habeas corpus made to a court,
the division of opinion then occurring was in effect a decision of the case. 

The case was ended when the court declined to issue the writ. It was not a division of
opinion occurring in the progress of a case or the trial of a case, and when it was
announced to the petitioner that one judge was in favor of granting the writ, and that the
other would not grant it — that settled and ended the case. The case had not arisen within
the meaning of the statute, when from necessity the case and the progress of the case
must stop until the question should be decided. And as Milligan was sentenced to be
hanged on the 19th May, for aught that appears, we are discussing a question relating to
the liberty of a dead man. Having been sentenced to be hanged on the 19th, the
presumption is that he was hanged on that day. Any answer to the questions raised will
therefore be answers to moot points — answers which courts will not give. Third. If the
parties had all been before the court below, and the case in progress, and then the
questions certified, and the parties were now here, the court would not answer these
questions.

Page 12 6 Wheaton, 548; 10 Peters, 290.

1. Every question involves matters of fact not stated in an agreed case, or admitted on
demurrer, but alleged by one of the parties, and standing alone on his ex parte statement.

Wilson v. Barnum, 8 Howard, 262.

2. All the facts bearing on the questions are not set forth, so that even if the parties had
made an agreed state of facts, yet if this court find that other facts important to be known
before a decision of the question do not appear, the questions will not be answered.

United States v. City Bank of Columbus, 19 Id. 385.

3. The main question certified, the one, as the counsel for the petitioners assert, on which
the other two depend, had not yet arisen for decision, especially for final decision, so that
if the parties had both concurred in sending that question here, this court could not decide
it.

If it be said this question did arise upon the application for the writ, it did not then arise
for final decision, but only as showing probable cause, leaving it open and
undecided  until the answer should be made to the writ. A case, upon application for the
writ of habeas corpus, has no status as a case until the service of the writ on the party
having the petitioner in custody, and his return and the production of the body of the
petitioner. No issue arises until there is a return, and when that is made the issue arises
upon it, and in the courts of the United States it is conclusive as to the facts contained in
the return.

Commonwealth v. Chandler, 11 Mass. 83.

4. The uniform practice in this court is against its jurisdiction in such a case as this
upon ex parte proceedings.

All the cases (some twenty in number) before this court, on certificates of division,
during all the time that this jurisdiction has existed, are cases between parties, and stated
in the usual formula of A. v. B., or B. ad sectam A.

So, too, all the rules of this court as to the rights and duties of parties in cases before this
court, exclude the idea of an ex parte case under the head of appellate jurisdiction.

II. THE MERITS OR MAIN QUESTION.

Mr. Speed, A.G., and Mr. Butler: By the settled practice of the courts of the United
States, upon application for a writ of habeas corpus, if it appear upon the facts stated by
the petitioner, all of which shall be taken to be true, that he could not be discharged upon
a return of the writ, then no writ will be issued. Therefore the questions resolve
themselves into two:

I. Had the military commission jurisdiction to hear and determine the case submitted to
it?

II. The jurisdiction failing, had the military authorities of the United States a right, at the
time of filing the petition, to detain the petitioner in custody as a military prisoner, or for
trial before a civil court?

1. A military commission derives its powers and authority wholly from martial law; and
by that law and by military authority only are its proceedings to be judged or reviewed. 

Dynes v. Hoover, 20 Howard, 78; Ex parte Vallandigham, 1

Wallace, 243.
2. Marital law is the will of the commanding officer of an armed force, or of a
geographical military department, expressed in time of war within the limits of his
military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged
by the orders of his military chief, or supreme executive ruler.

Hansard's Parliamentary Debates, 3d series, vol. 95, p. 80.

Speech of the Duke of Wellington. Opinions of Attorneys-
General, vol. 8, p. 367.
3. Military law is the rules and regulations made by the legislative power of the State for
the government of its land and naval forces.

Kent's Commentaries, vol. 1, p. 341, note A.

4. The laws of war (when this expression is not used as a generic term) are the laws
which govern the conduct of belligerents towards each other and other nations, flagranti
bello.

These several kinds of laws should not be confounded, as their adjudications are referable
to distinct and different tribunals.

Infractions of the laws of war can only be punished or remedied by retaliation,

negotiation, or an appeal to the opinion of nations.

Offences against military laws are determined by tribunals established in the acts of the
legislature which create these laws — such as courts martial and courts of inquiry.

The officer executing martial law is at the same time supreme legislator, supreme judge,
and supreme executive. As necessity makes his will the law, he only can define and
declare it; and whether or not it is infringed, and of the extent of the infraction, he alone
can judge; and his sole order punishes or acquits the alleged offender.

But the necessities and effects of warlike operations which create the law also give power
incidental to its execution. It would be impossible for the commanding general of an
army to investigate each fact which might be supposed to interfere with his movements,
endanger his safety, aid his enemy, or bring disorder and crime into the community under
his charge. He, therefore, must commit to his officers,  and in practice, to a board of
officers, as a tribunal, by whatever name it may be called, the charge of examining the
circumstances and reporting the facts in each particular case, and of advising him as to its
disposition — the whole matter to be then determined and executed by his order.

Examination of Major André before board of officers, Colonial

pamphlets, vol. 18.
Hence arise military commissions, to investigate and determine, not offences against
military law by soldiers and sailors, not breaches of the common laws of war by
belligerents, but the quality of the acts which are the proper subject of restraint by martial
law.

Martial law and its tribunals have thus come to be recognized in the military operations
of all civilized warfare. Washington, in the Revolutionary war, had repeated recourse to
military commissions. General Scott resorted to them as instruments with which to
govern the people of Mexico within his lines. They are familiarly recognized in express
terms by the acts of Congress of July 17th, 1862, chap. 201, sec. 5; March 18th, 1863,
chap. 75, sec. 36; Resolution No. 18, March 11th, 1862; and their jurisdiction over certain
offences is also recognized by these acts.

But, as has been seen, military commissions do not thus derive their authority. Neither is
their jurisdiction confined to the classes of offences therein enumerated.

Assuming the jurisdiction where military operations are being in fact carried on, over
classes of military offences, Congress, by this legislation, from considerations of public
safety, has endeavored to extend the sphere of that jurisdiction over certain offenders who
were beyond what might be supposed to be the limit of actual military occupation.

As the war progressed, being a civil war, not unlikely, as the facts in this record
abundantly show, to break out in any portion of the Union, in any form of insurrection,
the President, as commander-in-chief, by his proclamation of September 24th, 1862,
ordered:

"That during the existing insurrection, and as a necessary  means for suppressing the
same, all rebels and insurgents, their aiders and abettors, within the United States, and all
persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any
disloyal practice, affording aid and comfort to rebels, against the authority of the United
States, shall be subject to martial law, and liable to trial and punishment by courts martial
or military commission.

"Second. That the writ of habeas corpus is suspended in respect to all persons arrested, or
who now, or hereafter during the Rebellion shall be, imprisoned in any fort, camp,
arsenal, military prison, or other place of confinement, by any military authority, or by
the sentence of any court martial or military commission."

This was an exercise of his sovereignty in carrying on war, which is vested by the
Constitution in the President.

Brown v. The United States, 8 Cranch, 153.

This proclamation, which by its terms was to continue during the then existing
insurrection, was in full force during the pendency of the proceedings complained of, at
the time of the filing of this petition, and is still unrevoked.
While we do not admit that any legislation of Congress was needed to sustain this
proclamation of the President, it being clearly within his power, as commander-in-chief,
to issue it; yet, if it is asserted that legislative action is necessary to give validity to it,
Congress has seen fit to expressly ratify the proclamation by the act of March 3d 1863,
by declaring that the President, whenever in his judgment the public safety may require it,
is authorized to suspend the writ of habeas corpus in any case throughout the United
States, and in any part thereof.

The offences for which the petitioner for the purpose of this hearing is confessed to be
guilty, are the offences enumerated in this proclamation. The prison in which he is
confined is a "military prison" therein mentioned. As to him, his acts and imprisonment,
the writ of habeas corpus is expressly suspended.

Apparently admitting by his petition that a military commission  might have jurisdiction

in certain cases, the petitioner seeks to except himself by alleging that he is a citizen of
Indiana, and has never been in the naval or military service of the United States, or since
the commencement of the Rebellion a resident of a rebel State, and that, therefore, it had
been out of his power to have acquired belligerent rights and to have placed himself in
such a relation to the government as to enable him to violate the laws of war.

But neither residence nor propinquity to the field of actual hostilities is the test to
determine who is or who is not subject to martial law, even in a time of foreign war, and
certainly not in a time of civil insurrection. The commander-in-chief has full power to
make an effectual use of his forces. He must, therefore, have power to arrest and punish
one who arms men to join the enemy in the field against him; one who holds
correspondence with that enemy; one who is an officer of an armed force organized to
oppose him; one who is preparing to seize arsenals and release prisoners of war taken in
battle and confined within his military lines.

These crimes of the petitioner were committed within the State of Indiana, where his
arrest, trial, and imprisonment took place; within a military district of a geographical
military department, duly established by the commander-in-chief; within the military
lines of the army, and upon the theatre of military operations; in a State which had been
and was then threatened with invasion, having arsenals which the petitioner plotted to
seize, and prisoners of war whom he plotted to liberate; where citizens were liable to be
made soldiers, and were actually ordered into the ranks; and to prevent whose becoming
soldiers the petitioner conspired with and armed others.

Thus far the discussion has proceeded without reference to the effect of the Constitution
upon war-making powers, duties, and rights, save to that provision which makes the
President commander-in-chief of the armies and navies.

Does the Constitution provide restraint upon the exercise of this power? 

The people of every sovereign State possess all the rights and powers of government. The
people of these States in forming a "more perfect Union, to insure domestic tranquillity,
and to provide for the common defence," have vested the power of making and carrying
on war in the general government, reserving to the States, respectively, only the right to
repel invasion and suppress insurrection "of such imminent danger as will not admit of
delay." This right and power thus granted to the general government is in its nature
entirely executive, and in the absence of constitutional limitations would be wholly
lodged in the President, as chief executive officer and commander-in-chief of the armies
and navies.

Lest this grant of power should be so broad as to tempt its exercise in initiating war, in
order to reap the fruits of victory, and, therefore, be unsafe to be vested in a single branch
of a republican government, the Constitution has delegated to Congress the power of
originating war by declaration, when such declaration is necessary to the commencement
of hostilities, and of provoking it by issuing letters of marque and reprisal; consequently,
also, the power of raising and supporting armies, maintaining a navy, employing the
militia, and of making rules for the government of all armed forces while in the service of
the United States.

To keep out of the hands of the Executive the fruits of victory, Congress is also invested
with the power to "make rules for the disposition of captures by land or water."

After war is originated, whether by declaration, invasion, or insurrection, the whole

power of conducting it, as to manner, and as to all the means and appliances by which
war is carried on by civilized nations, is given to the President. He is the sole judge of the
exigencies, necessities, and duties of the occasion, their extent and duration.

Luther v. Borden, 7 Howard, 42-45; Martin v. Mott, 12

Wheaton, 19.
During the war his powers must be without limit, because, if defending, the means of
offence may be nearly illimitable;  or, if acting offensively, his resources must be
proportionate to the end in view, — "to conquer a peace." New difficulties are constantly
arising, and new combinations are at once to be thwarted, which the slow movement of
legislative action cannot meet.

Federalist, No. 26, by Hamilton; No. 41, by Madison.

These propositions are axiomatic in the absence of all restraining legislation by Congress.

Much of the argument on the side of the petitioner will rest, perhaps, upon certain
provisions — not in the Constitution itself, and as originally made, but now seen in the
Amendments made in 1789: the fourth, fifth, and sixth amendments. They may as well be
here set out:

4. The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants shall
issue but upon probable cause supported by oath or affirmation, and particularly
describing the place to be searched and the persons or things to be seized.

5. No person shall be held to answer for a capital or otherwise infamous crime, unless on
a presentment or indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia when in actual service in time of war or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be
taken for public use without just compensation.

6. 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, . . . . 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.

In addition to these, there are two preceding amendments  which we may also mention, to
wit: the second and third. They are thus:

2. A well-regulated militia being necessary to the security of a free State, the right of the
people to keep and bear arms shall not be infringed.

3. No soldier shall in time of peace be quartered in any house without the consent of the
owner, nor in time of war but in a manner to be prescribed by law.

It will be argued that the fourth, fifth, and sixth articles, as above given, are restraints
upon the war-making power; but we deny this. All these amendments are in pari
materiâ and if either is a restraint upon the President in carrying on war, in favor of the
citizen, it is difficult to see why all of them are not. Yet will it be argued that the fifth
article would be violated in "depriving of life, liberty, or property, without due process of
law," armed rebels marching to attack the capital? Or that the fourth would be violated by
searching and seizing the papers and houses of persons in open insurrection and war
against the government? It cannot properly be so argued, any more than it could be that it
was intended by the second article (declaring that "the right of the people to keep and
bear arms shall not be infringed") to hinder the President from disarming insurrectionists,
rebels, and traitors in arms while he was carrying on war against them.

These, in truth, are all peace provisions of the Constitution, and, like all other
conventional and legislative laws and enactments, are silent amidst arms, and when the
safety of the people becomes the supreme law.

By the Constitution, as originally adopted, no limitations were put upon the war-making
and war-conducting powers of Congress and the President; and after discussion, and after
the attention of the country was called to the subject, no other limitation by subsequent
amendment has been made, except by the Third Article, which prescribes that "no soldier
shall be quartered in any house in time of peace  without consent of the owner, or in time
of war, except in a manner prescribed by law."

This, then, is the only expressed constitutional restraint upon the President as to the
manner of carrying on war. There would seem to be no implied one; on the contrary,
while carefully providing for the privilege of the writ of habeas corpus in time of peace,
the Constitution takes it for granted that it will be suspended "in case of rebellion or
invasion ( i.e., in time of war), when the public safety requires it."

The second and third sections of the act relating to habeas corpus, of March 3d 1863,
apply only to those persons who are held as "state or political offenders," and not to those
who are held as prisoners of war. The petitioner was as much a prisoner of war as if he
had been taken in action with arms in his hands.

They apply, also, only to those persons, the cause of whose detention is not disclosed;
and not to those who, at the time when the lists by the provisions of said sections are to
be furnished to the court, are actually undergoing trial before military tribunals upon
written charges made against them.

The law was framed to prevent imprisonment for an indefinite time without trial, not to
interfere with the case of prisoners undergoing trial. Its purpose was to make it certain
that such persons should be tried.

Notwithstanding, therefore, the act of March 3, 1863, the commission had jurisdiction,
and properly tried the prisoner.

The petitioner does not complain that he has been kept in ignorance of the charges
against him, or that the investigation of those charges has been unduly delayed.

Finally, if the military tribunal has no jurisdiction, the petitioner may be held as a
prisoner of war, aiding with arms the enemies of the United States, and held, under the
authority of the United States, until the war terminates, then to be handed over by the
military to the civil authorities, to be tried for his crimes under the acts of Congress, and
before the courts which he has selected. 

ON THE SIDE OF THE PETITIONER.

Mr. David Dudley Field:

Certain topics have been brought into this discussion which have no proper place in it,
and which I shall endeavor to keep out of it.

This is not a question of the discipline of camps; it is not a question of the government of
armies in the field; it is not a question respecting the power of a conqueror over
conquered armies or conquered states.
It is not a question, how far the legislative department of the government can deal with
the question of martial rule. Whatever has been done in these cases, has been done by
the executive department alone.

Nor is it a question of the patriotism, or the character, or the services of the late chief
magistrate, or of his constitutional advisers.

It is a question of the rights of the citizen in time of war.

Is it true, that the moment a declaration of war is made, the executive department of this
government, without an act of Congress, becomes absolute master of our liberties and our
lives? Are we, then, subject to martial rule, administered by the President upon his own
sense of the exigency, with nobody to control him, and with every magistrate and every
authority in the land subject to his will alone? These are the considerations which give to
the case its greatest significance.

But we are met with the preliminary objection, that you cannot consider it for want of

JURISDICTION.

The objection is twofold: first, that the Circuit Court of Indiana had not jurisdiction to
hear the case there presented; and, second, that this court has not jurisdiction to hear and
decide the questions thus certified.

First. As to the jurisdiction of the Circuit Court. That depended on the fourteenth section
of the Judiciary Act of  1789, and on the Habeas Corpus Act of 1863. The former was, in
Bollman's case, held to authorize the courts, as well as the judges, to issue the writ for the
purpose of inquiring into the cause of commitment.

Page 23 4 Cranch, 75.

The act of March 3d 1863, after providing that the Secretaries of State and of War shall
furnish to the judges of the Circuit and District Courts a list of political and state
prisoners, and of all others, except prisoners of war, goes on to declare, that if a grand
jury has had a session, and has adjourned without finding an indictment, thereupon "it
shall be the duty of the judge of said court forthwith to make an order, that any such
prisoner desiring a discharge from said imprisonment be brought before him to be
discharged."

Upon this act the objection is, first, that the application of the petitioner should have been
made to one of the judges of the circuit, instead of the court itself; and, second, that the
petition does not show whether it was made under the second or the third section.

To the former objection the answer is, first, that the decision in Bollman's case, just
mentioned, covers this case; for the same reasoning which gives the court power to
proceed under the fourteenth section of the act of 1789, gives the court power to proceed
under the second and third sections of the act of 1863. The second answer is that, by the
provisos of the second section, the court is expressly mentioned as having the power.

The other objection to the jurisdiction of the Circuit Court is, that the petition does not
show under which section of the act it was presented. It states that the petitioner is held a
prisoner under the authority of the President; that a term has been held, and that a grand
jury has been in attendance, and has adjourned without indicting. It does not state
whether a list has been furnished to the judges by the Secretary of State and the Secretary
of War, and, therefore, argues the learned counsel, the court has no jurisdiction. That is to
say, the judges, knowing themselves whether the  list has, or has not been furnished,
cannot proceed, because we have not told them by our petition what they already know,
and what we ourselves might not know, and perhaps could not know, because the law
does not make it necessary that the list shall be filed, or that anybody shall be informed of
it but the judges.

Second. As to the jurisdiction of this court. Supposing the Circuit Court to have had
jurisdiction, has this court jurisdiction to hear these questions as they are certified? There
are various objections. It is said that a division of opinion can be certified only in a cause,
and that this is not a cause.

It was decided by this court, in Holmes v. Jennison, that a proceeding on habeas

corpus is a suit, and suit is a more comprehensive word than cause. The argument is, that
it is not a cause until the adverse party comes in. Is not a suit commenced before the
defendant is brought into court? Is the defendant's appearance the first proceeding in a
cause? There have been three acts in respect to this writ of habeas corpus. The first of
1789; then the act passed in 1833; and, finally, the act of 1842. The last act expressly
designates the proceeding as a cause.

Page 24 14 Peters, 566.

Another objection is, that there must be parties; that is, at least two parties, and that here
is only one. This argument is derived from the direction in the act, that the point must be
stated "upon the request of either party" or their counsel. It is said that "either party"
imports two, and if there are not two, there can be no certificate. This is too literal: " qui
hœret in litera hæet in cortice." The language is elliptical. What is meant is, "any party or
parties, his or their counsel." Again: "either," if precisely used, would exclude all over
two, because "either" strictly means "one of two;" and if there are three parties or more,
as there may be, you cannot have a certificate. It is not unusual, in proceedings in rem, to
have several intervenors and claimants: what are we to do then? The answer must be, that
"either" is an equivalent word for "any;" and that whoever  may happen to be a party,
whether he stand alone or with others, may ask for the certificate.

The words "either party" were introduced, not for restriction but enlargement. The
purpose was to enable any party to bring the case here; otherwise it might have been
argued, perhaps, that all parties must join in asking for the certificate. The purpose of the
act was to prevent a failure of justice, when the two judges of the Circuit Court were
divided in opinion. The reason of the rule is as applicable to a case with one party as if
there were two. Whether a question shall be certified to this court, depends upon the point
in controversy. If it concerns a matter of right, and not of discretion, there is as much
reason for its being sent ex parte as for its being sent inter partes. This very case is an
illustration. Here a writ is applied for, or an order is asked. The judges do not agree about
the issue of the writ, or the granting of the order. Upon their action the lives of these men
depend. Shall there be a failure of justice? The question presented to the Circuit Court
was not merely a formal one; whether an initial writ should issue. It is the practice, upon
petitions for habeas corpus, to consider whether, upon the facts presented, the prisoners,
if brought up, would be remanded. The presentation of the petition brings before the
court, at the outset, the merits, to a certain extent, of the whole case. That was the course
pursued in Passmore Williamson's case; in Rex v. Ennis;  in the case of the Three
Spanish Sailors;  in Hobhouse's case; in Husted's case; and in Ferguson's case; and in
this court, in Watkins's case, where the disposition of the case turned upon the point
whether, if the writ were issued, the petitioner would be remanded upon the facts as they
appeared.

Page 25 26 Pennsylvania State, 9.

Page 25 1 Burrow, 765.
Page 25 2 W. Dlackstone, 1324.
Page 25 3 Barnewall and Alderson, 420.
Page 25 1 Johnson's Cases, 136.
Page 25 9 Id. 239.
Page 25 3 Peters, 202.
There may, indeed, be cases where only one party can appear, that are at first and must
always remain ex parte.  Here, however, there were, in fact, two parties. Who were they?
The record tells us:

"Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before
the judges aforesaid, comes Jonathan W. Gordon, Esq., of counsel for said Milligan, and
files here in open court the petition of said Milligan to be discharged. At the same time
comes, also, John Hanna, Esq., the attorney prosecuting the pleas of the United States in
this behalf. And thereupon, by agreement, this application is submitted to the court, and
day is given," c.

The next day the case came on again, and the certificate was made.
In point of fact, therefore, this cause had all the solemnity which two parties could give it.
The government came into court, and submitted the case in Indiana, for the very purpose
of having it brought to Washington.

A still additional objection made to the jurisdiction of this court is, that no questions can
be certified except those which arise upon the trial.

The answer is, first, that there has been a trial, in its proper sense, as applicable to this
case. The facts are all before the court. A return could not vary them. The case has been
heard upon the petition, as if that contained all that need be known, or could be known.
The practice is not peculiar to habeas corpus; it is the same on application for mandamus,
or for attachments in cases of contempt; in both which cases the court sometimes hears
the whole matter on the first motion, and sometimes postpones it till formal pleadings are
put in. In either case, the result is the same.

But, secondly, if it were not so, is it correct to say that a certificate can only be made
upon a trial? To sustain this position, the counsel refers to the case
of Davis v. Burden. But that case expressly reserves the question.

Page 26 10 Peters, 289.

It is admitted that the question of jurisdiction is a question that may be certified. The
qualification insisted upon is,  that no question can be certified unless it arose upon the
trial of the cause, or be a question of jurisdiction. This is a question of jurisdiction. It is a
question of the jurisdiction of the Circuit Court to grant the writ of habeas corpus, and to
liberate these men; and that question brings up all the other questions in the cause.

Yet another objection to the jurisdiction of this court is, that the case must be one in
which the answer to the questions when given shall be final; that is to say, the questions
come here to be finally decided. What does that mean? Does it mean that the same thing
can never be debated again? Certainly not. It means that the decision shall be final for the
two judges who certified the difference of opinion, so that when the answer goes down
from this court they shall act according to its order, as if they had originally decided in
the same way.

Another objection to the jurisdiction of this court is, that the whole case is certified. The
answer is, that no question is certified except those which actually arose before the court
at the time, and without considering which it could not move at all. That is the first
answer. The second is, that if too much is certified, the court will divide the questions,
and answer only those which it finds to be properly certified, as it did in
the Silliman v. Hudson River Bridge Company  case.

Page 27 1 Black, 583.

The last objection to the jurisdiction of this court is, that the case is ended; because, it is
to be presumed that these unfortunate men have been hanged. Is it to be presumed that
any executive officer of this country, though he arrogate to himself this awful power of
military government, would venture to put to death three men, who claim that they are
unjustly convicted, and whose case is considered of such gravity by the Circuit Court of
the United States that it certifies the question to the Supreme Court?

The suggestion is disrespectful to the executive, and I am glad to believe that it has no
foundation in fact. 

All the objections, then, are answered. There is nothing, then, in the way of proceeding to

II. THE MERITS AND MAIN QUESTION.

The argument upon the questions naturally divides itself into two parts:

First. Was the military commission a competent tribunal for the trial of the petitioners
upon the charges upon which they were convicted and sentenced?

Second. If it was not a competent tribunal, could the petitioners be released by the Circuit
Court of the United States for the District of Indiana, upon writs of habeas corpus or
otherwise?

The discussion of the competency of the military commission is first in order, because, if
the petitioners were lawfully tried and convicted, it is useless to inquire how they could
be released from an unlawful imprisonment.

If, on the other hand, the tribunal was incompetent, and the conviction and sentence
nullities, then the means of relief become subjects of inquiry, and involve the following
considerations:

1. Does the power of suspending the privilege of the writ of habeas corpus appertain to
all the great departments of government concurrently, or to some only, and which of
them?

2. If the power is concurrent, can its exercise by the executive or judicial department be
restrained or regulated by act of Congress?

3. If the power appertains to Congress alone, or if Congress may control its exercise by
the other departments, has that body so exercised its functions as to leave to the
petitioners the privilege of the writ, or to entitle them to their discharge?

In considering the first question, that of the competency of the military tribunal for the
trial of the petitioners upon those charges, let me first call attention to the dates of the
transactions.
Let it be observed next, that for the same offences as those  set forth in the charges and
specifications, the petitioners could have been tried and punished by the ordinary civil
tribunals.

Let it also be remembered, that Indiana, at the time of this trial, was a peaceful State; the
courts were all open; their processes had not been interrupted; the laws had their full
sway.

Then let it be remembered that the petitioners were simple citizens, not belonging to the
army or navy; not in any official position; not connected in any manner with the public
service.

The evidence against them is not to be found in this record, and it is immaterial. Their
guilt or their innocence does not affect the question of the competency of the tribunal by
which they were judged.

Bearing in mind, therefore, the nature of the charges, and the time of the trial and
sentence; bearing in mind, also, the presence and undisputed authority of the civil
tribunals and the civil condition of the petitioners, we ask by what authority they were
withdrawn from their natural judges?

What is a military commission? Originally, it appears to have been an advisory board of

officers, convened for the purpose of informing the conscience of the commanding
officer, in cases where he might act for himself if he chose. General Scott resorted to it in
Mexico for his assistance in governing conquered places. The first mention of it in an act
of Congress appears to have been in the act of July 22, 1861, where the general
commanding a separate department, or a detached army, was authorized to appoint a
military board, or commission, of not less than three, or more than five officers, to
examine the qualifications and conduct of commissioned officers of volunteers.

Subsequently, military commissions are mentioned in four acts of Congress, but in none
of them is any provision made for their organization, regulation, or jurisdiction, further
than that it is declared that in time of war or rebellion, spies may be tried by a general
court-martial or military commission; and that "persons who are in the military service
of  the United States, and subject to the Articles of War," may also be tried by the same,
for murder, and certain other infamous crimes.

These acts do not confer upon military commissions jurisdiction over any persons other
than those in the military service and spies.

There being, then, no act of Congress for the establishment of the commission, it
depended entirely upon the executive will for its creation and support. This brings up the
true question now before the court: Has the President, in time of war, upon his own mere
will and judgment, the power to bring before his military officers any person in the land,
and subject him to trial and punishment, even to death? The proposition is stated in this
form, because it really amounts to this.
If the President has this awful power, whence does he derive it? He can exercise no
authority whatever but that which the Constitution of the country gives him. Our system
knows no authority beyond or above the law. We may, therefore, dismiss from our minds
every thought of the President's having any prerogative, as representative of the people,
or as interpreter of the popular will. He is elected by the people to perform those
functions, and those only, which the Constitution of his country, and the laws made
pursuant to that Constitution, confer.

The plan of argument which I propose is, first to examine the text of the Constitution.
That instrument, framed with the greatest deliberation, after thirteen years' experience of
war and peace, should be accepted as the authentic and final expression of the public
judgment, regarding that form and scope of government, and those guarantees of private
rights, which legal science, political philosophy, and the experience of previous times had
taught as the safest and most perfect. All attempts to explain it away, or to evade or
pervert it, should be discountenanced and resisted. Beyond the line of such an argument,
everything else ought, in strictness, to be superfluous. But, I shall endeavor to show,
further, that the theory of our government, for which I am contending,  is the only one
compatible with civil liberty; and, by what I may call an historical argument, that this
theory is as old as the nation, and that even in the constitutional monarchies of England
and France that notion of executive power, which would uphold military commissions,
like the one against which I am speaking, has never been admitted.

What are the powers and attributes of the presidential office? They are written in the
second article of the Constitution, and, so far as they relate to the present question, they
are these: He is vested with the "executive power;" he is "commander-in-chief of the
army and navy of the United States, and of the militia of the several States when called
into the actual service of the United States;" he is to "take care that the laws be faithfully
executed;" and he takes this oath: "I do solemnly swear that I will faithfully execute the
office of President of the United States, and will, to the best of my ability, preserve,
protect, and defend the Constitution of the United States." The "executive power"
mentioned in the Constitution is the executive power of the United States. The President
is not clothed with the executive power of the States. He is not clothed with any
executive power, except as he is specifically directed by some other part of the
Constitution, or by an act of Congress.

He is to "take care that the laws be faithfully executed." He is to execute the laws by the
means and in the manner which the laws themselves prescribe.

The oath of office cannot be considered as a grant of power. Its effect is merely to
superadd a religious sanction to what would otherwise be his official duty, and to bind his
conscience against any attempt to usurp power or overthrow the Constitution.

There remains, then, but a single clause to discuss, and that is the one which makes him
commander-in-chief of the army and navy of the United States, and of the militia of the
States when called into the federal service. The question, therefore, is narrowed down to
this: Does the authority to command an army carry with it authority to arrest and  try by
court-martial civilians — by which I mean persons not in the martial forces; not
impressed by law with a martial character? The question is easily answered. To command
an army, whether in camp, or on the march, or in battle, requires the control of no other
persons than the officers, soldiers, and camp followers. It can hardly be contended that, if
Congress neglects to find subsistence, the commander-in-chief may lawfully take it from
our own citizens. It cannot be supposed that, if Congress fails to provide the means of
recruiting, the commander-in-chief may lawfully force the citizens into the ranks. What is
called the war power of the President, if indeed there be any such thing, is nothing more
than the power of commanding the armies and fleets which Congress causes to be raised.
To command them is to direct their operations.

Much confusion of ideas has been produced by mistaking executive power for kingly
power. Because in monarchial countries the kingly office includes the executive, it seems
to have been sometimes inferred that, conversely, the executive carries with it the kingly
prerogative. Our executive is in no sense a king, even for four years.

So much for that article of the Constitution, the second, which creates and regulates the
executive power. If we turn to the other portions of the original instrument (I do not now
speak of the amendments) the conclusion already drawn from the second article will be
confirmed, if there be room for confirmation. Thus, in the first article, Congress is
authorized "to declare war, and make rules concerning captures on land and water;" "to
raise and support armies;" "to provide and maintain a navy;" "to make rules for the
government and regulation of the land and naval forces;" "to provide for calling forth the
militia to execute the laws of the Union, suppress insurrections, and repel invasions;" "to
provide for organizing, arming, and disciplining the militia, and governing such part of
them as may be in the service of the United States, reserving to the States respectively the
appointment of the officers, and the authority of training the militia according to the
discipline prescribed  by Congress;" "to exercise exclusive legislation in all cases
whatsoever over . . . . all places purchased . . . . for the erection of forts, magazines,
arsenals, dock-yards;" "to make all laws which shall be necessary and proper for carrying
into execution the . . . . powers vested by this Constitution in the Government of the
United States, or in any department or officer thereof."

These various provisions of the first article would show, if there were any doubt upon the
construction of the second, that the powers of the President do not include the power to
raise or support an army, or to provide or maintain a navy, or to call forth the militia, to
repel an invasion, or to suppress an insurrection, or execute the laws, or even to govern
such portions of the militia as are called into the service of the United States, or to make
law for any of the forts, magazines, arsenals, or dock-yards. If the President could not,
even in flagrant war, except as authorized by Congress, call forth the militia of Indiana to
repel an invasion of that State, or, when called, govern them, it is absurd to say that he
could nevertheless, under the same circumstances, govern the whole State and every
person in it by martial rule.
The jealousy of the executive power prevailed with our forefathers. They carried it so far
that, in providing for the protection of a State against domestic violence, they required, as
a condition, that the legislature of the State should ask for it if possible to be convened.

Const., Art. 4, § 4.
I submit, therefore, that upon the text of the original Constitution, as it stood when it was
ratified, there is no color for the assumption that the President, without act of Congress,
could create military commissions for the trial of persons not military, for any cause or
under any circumstances whatever.

But, as we well know, the Constitution, in the process of ratification, had to undergo a
severe ordeal. To quiet apprehensions, as well as to guard against possible dangers, ten
amendments were proposed by the first Congress sitting at  New York, in 1789, and were
duly ratified by the States. The third and fifth are as follows:

"ART. III. No soldier shall, in time of peace, be quartered in any house, without the
consent of the owner, nor in time of war, but in a manner to be prescribed by law."

"ART. V. No person shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia when in actual service, in time of war or public danger;
nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or
limb, nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law, nor shall private
property be taken for public use without just compensation."

If there could have been any doubt whatever, whether military commissions or courts-
martial for the trial of persons not "in the land or naval forces, or the militia" in actual
service, could ever be established by the President, or even by Congress, these
amendments would have removed the doubt. They were made for a state of war as well
as a state of peace; they were aimed at the military authority, as well as the civil; and they
were as explicit as our mother tongue could make them.

The phrase "in time of war or public danger" qualifies the member of the sentence
relating to the militia; as otherwise, there could be no court-martial in the army or navy
during peace.

This is the argument upon the text of the Constitution.

I will now show that military tribunals for civilians, or non-military persons, whether in
war or peace, are inconsistent with the liberty of the citizen, and can have no place in
constitutional government. This is a legitimate argument even upon a question of
interpretation; for if there be, as I think there is not, room left for interpretation of what
seem to be the plain provisions of the Constitution, then the principles of liberty, as they
were understood by the fathers of the Republic; the maxims of free government, as they
were  accepted by the men who framed and those who adopted the Constitution; and
those occurrences in the history of older states, which they had profoundly studied, may
be called in to show us what they must have meant by the words they used.

The source and origin of the power to establish military commissions, if it exist at all, is
in the assumed power to declare what is called martial law. I say what is called martial
law, for strictly there is no such thing as martial law; it is martial rule; that is to say, the
will of the commanding officer, and nothing more, nothing less.

On this subject, as on many others, the incorrect use of a word has led to great confusion
of ideas and to great abuses. People imagine, when they hear the expression martial law,
that there is a system of law known by that name, which can upon occasion be substituted
for the ordinary system; and there is a prevalent notion that under certain circumstances a
military commander may, by issuing a proclamation, displace one system, the civil law,
and substitute another, the martial. A moment's reflection will show that this is an error.
Law is a rule of property and of conduct, prescribed by the sovereign power of the state.
The Civil Code of Louisiana defines it as "a solemn expression of legislative will."
Blackstone calls it "a rule of civil conduct prescribed by the supreme power in the
state;" . . . "not a transient, sudden order from a superior to or concerning a particular
person, but something permanent, uniform, and universal." Demosthenes thus explains it:
"The design and object of laws is to ascertain what is just, honorable, and expedient; and
when that is discovered, it is proclaimed as a general ordinance, equal and impartial to
all."

There is a system of regulations known as the Rules and Articles of War, prescribed by
Congress for the government of the army and navy, under that clause of the Constitution
which empowers Congress "to make rules for the government and regulation of the land
and naval forces." This is generally known as military law. 

See Mills v. Martin, 19 Johnson, 70; Martin v. Mott, 12

Wheaton, 19 1 Kent's Com.. 370, note.
There are also certain usages, sanctioned by time, for the conduct towards each other of
nations engaged in war, known as the usages of war, or the jus belli, accepted as part of
the law of nations, and extended from national to all belligerents. These respect, however,
only the conduct of belligerents towards each other, and have no application to the
present case.

What is ordinarily called martial law is no law at all. Wellington, in one of his despatches
from Portugal, in 1810, in his speech on the Ceylon affair, so describes it.

Let us call the thing by its right name; it is not martial law, but martial rule. And when we
speak of it, let us speak of it as abolishing all law, and substituting the will of the military
commander, and we shall give a true idea of the thing, and be able to reason about it with
a clear sense of what we are doing.
Another expression, much used in relation to the same subject, has led also to
misapprehension; that is, the declaration, or proclamation, of martial rule; as if a formal
promulgation made any difference. It makes no difference whatever.

It may be asked, may a general never in any case use force but to compel submission in
the opposite army and obedience in his own? I answer, yes; there are cases in which he
may. There is a maxim of our law which gives the reason and the extent of the power:
" Necessitas quod cogit defendit." This is a maxim not peculiar in its application to
military men; it applies to all men under certain circumstances.

Private persons may lawfully tear down a house, if necessary, to prevent to spread of a
fire. Indeed, the maxim is not confined in its application to the calamities of war and
conflagration. A mutiny, breaking out in a garrison, may make necessary for its
suppression, and therefore justify, acts which would otherwise be unjustifiable. In all
these cases, however, the person acting under the pressure of necessity, real or supposed,
acts at his peril. The correctness of his conclusion must be judged by courts and
juries,  whenever the acts and the alleged necessity are drawn in question.

The creation of a commission or board to decide or advise upon the subject gives no
increased sanction to the act. As necessity compels, so that necessity alone can justify it.
The decision or advice of any number of persons, whether designated as a military
commission, or board of officers, or council of war, or as a committee, proves nothing
but greater deliberation; it does not make legal what would otherwise be illegal.

Let us proceed now to the historical part of the argument.

First. As to our own country. The nation began its life in 1776, with a protest against
military usurpation. It was one of the grievances set forth in the Declaration of
Independence, that the king of Great Britain had "affected to render the military
independent of and superior to the civil power." The attempts of General Gage, in
Boston, and of Lord Dunmore, in Virginia, to enforce martial rule, excited the greatest
indignation. Our fathers never forgot their principles; and though the war by which they
maintained their independence was a revolutionary one, though their lives depended on
their success in arms, they always asserted and enforced the subordination of the military
to the civil arm.

The first constitutions of the States were framed with the most jealous care. By the
constitution of New Hampshire, it was declared that "in all cases, and at all times, the
military ought to be under strict subordination to, and governed by the civil power;" by
the constitution of Massachusetts of 1780, that "no person can in any case be subjected to
law martial, or to any penalties or pains by virtue of that law, except those employed in
the army or navy, and except the militia in actual service, but by the authority of the
legislature;" by the constitution of Pennsylvania of 1776, "that the military should be kept
under strict subordination to, and governed by the civil power;" by the constitution of
Delaware of 1776, "that in all cases, and at all times, the  military ought to be under strict
subordination to, and governed by the civil power;" by that of Maryland of 1776, "that in
all cases, and at all times, the military ought to be under strict subordination to, and
control of the civil power;" by that of North Carolina, 1776, "that the military should be
kept under strict subordination to, and governed by the civil power;" by that of South
Carolina, 1778, "that the military be subordinate to the civil power of the State;" and by
that of Georgia, 1777, that "the principles of the habeas corpus act shall be part of this
constitution; and freedom of the press, and trial by jury, to remain inviolate forever."

Second. As to England, the constitutional history of that country is the history of a

struggle on the part of the crown to obtain or to exercise a similar power to the one here
attempted to be set up. The power was claimed by the king as much in virtue of his royal
prerogative and of his feudal relations to his people as lord paramount, as of his title as
commander of the forces. But it is enough to say that, from the day when the answer of
the sovereign was given in assent to the petition of right, courts-martial for the trial of
civilians, upon the authority of the crown alone, have always been held illegal.

Third. As to France — as France was when she had a constitutional government. I have
shown what the king of England cannot do. Let me show what the constitutional king of
France could not do.

On the continent of Europe, the legal formula for putting a place under martial rule is to
declare it in a state of siege; as if there were in the minds of lawyers everywhere no
justification for such a measure but the exigencies of impending battle. The charter
established for the government of France, on the final expulsion of the first Napoleon,
contained these provisions:

"ART. The king is the supreme chief of the state; he commands the forces by sea and
land; declares war; makes treaties of peace, alliance, and commerce; appoints to every
office and agency of public administration; and makes rules and ordinances  necessary
for the execution of the laws, without the power ever of suspending them, or dispensing
with their execution."

"ART. The king alone sanctions and promulgates the laws."

"ART. No person can be withdrawn from his natural judges."

"ART. Therefore there cannot be erected commissions or extraordinary tribunals."

When Charles the Tenth was driven from the kingdom the last article was amended, by
adding the words, "under what name or denomination soever;" Dupin giving the reason
thus:

"In order to prevent every possible abuse, we have added to the former text of the charter
`under what name or denomination soever,' for specious names have never been wanting
for bad things, and without this precaution the title of `ordinary tribunal' might be
conferred on the most irregular and extraordinary of courts."
Now, it so happened, that two years later, the strength of these constitutional provisions
was to be tested. A formidable insurrection broke out in France. The king issued an order,
dated June 6, 1832, placing Paris in a state of siege, founded "on the necessity of
suppressing seditious assemblages which had appeared in arms in the capital, during the
days of June 5th and 6th; on attacks upon public and private property; on assassinations
of national guards, troops of the line, municipal guards and officers in the public service;
and on the necessity of prompt and energetic measures to protect public safety against the
renewal of similar attacks." On the 18th of June, one Geoffroy, designer, of Paris, was, by
a decision of the second military commission of Paris, declared "guilty of an attack, with
intent to subvert the government and to excite civil war," and condemned to death.

He appealed to the Court of Cassation. Odilon Barrot, a leader of the French bar,
undertook his case, and after a discussion memorable forever for the spirit and learning of
the advocates, and the dignity and independence of the judges, the court gave judgment,
thus: 

"Whereas Geoffroy, brought before the second military commission of the first military
division, is neither in the army nor impressed with a military character, yet nevertheless
said tribunal has implicitly declared itself to have jurisdiction and passed upon the merits,
wherein it has committed an excess of power, violated the limits of its jurisdiction, and
the provisions of articles 53 and 54 of the charter and those of the laws above cited: On
these grounds the court reverses and annuls the proceedings instituted against the
appellant before the said commission, whatsoever has followed therefrom, and especially
the judgment of condemnation of the 18th of June, instant; and in order that further
proceedings be had according to law, remands him before one of the judges of instruction
of the court of first instance of Paris," c.

Thereupon the prisoner was discharged from military custody.

This closes my argument against the competency of the military commission.

It remains to consider what remedy, if any, there was against this unlawful judgment and
its threatened execution.

The great remedy provided by our legal and political system for unlawful restraint,
whether upon pretended judgments, decrees, sentences, warrants, orders, or otherwise, is
the writ of habeas corpus.

The authority to suspend the privilege of the habeas corpus is derived, it is said, from two
sources: first, from the martial power; and, second, from the second subdivision of the
ninth section of the first article of the Federal Constitution.

As to the martial power, I have already discussed it so fully that I need not discuss it
again.
How, then, stands the question upon the text of the Constitution? This is the language:
"The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases
of rebellion or invasion, the public safety may require it."

The clause in question certainly either grants the power, or implies that it is already
granted; and in either case it  belongs to the legislative, executive, and judicial
departments concurrently, or to some excluding the rest.

There have been four theories: one that it belongs to all the departments; a second, that it
belongs to the legislature; a third, that it belongs to the executive; and the fourth, that it
belongs to the judiciary.

Is the clause a grant or a limitation of power? Looking only at the form of expression, it
should be regarded as a limitation.

As a grant of power, it would be superfluous, for it is clearly an incident of others which

are granted.

Then, regarding the clause according to its place in the Constitution, it should be deemed
a limitation; for it is placed with six other subdivisions in the same section, every one of
which is a limitation.

If the sentence respecting the habeas corpus be, as I contend, a limitation, and not a grant
of power, we must look into other parts of the Constitution to find the grant; and if we
find none making it to the President, it follows that the power is in the legislative or the
judicial department. That it lies with the judiciary will hardly be contended. That
department has no other function than to judge. It cannot refuse or delay justice.

But if the clause in question were deemed a grant of power, the question would then be,
to whom is the grant made? The following considerations would show that it was made to
Congress:

First. The debates in the convention which framed the Constitution seem, at least, to
suppose that the power was given to Congress, and to Congress alone.

Second. The debates in the various State conventions which ratified the Constitution do
most certainly proceed upon that supposition.

Third. The place in which the provision is left indicates, if it does not absolutely decide,
that it relates only to the powers of Congress. It is not in the second article, which treats
of the executive department. It is not in the third, which treats of the judicial department.
It is in the first  article, which treats of the legislative department. There is not another
subdivision in all the seven subdivisions of the ninth section which does not relate to
Congress in part, at least, and most of them relate to Congress alone.
Fourth. The constitutional law of the mother country had been long settled, that the
power of suspending the privilege of the writ, or, as it was sometimes called, suspending
the writ itself, belonged only to Parliament. With this principle firmly seated in the minds
of lawyers, it seems incredible that so vast a change as conferring the grant upon the
executive should have been so loosely and carelessly expressed.

Fifth. The prevailing sentiment of the time when the Constitution was framed, was a
dislike and dread of executive authority. It is hardly to be believed, that so vast and
dangerous a power would have been conferred upon the President, without providing
some safeguards against its abuse.

Sixth. Every judicial opinion, and every commentary on the Constitution, up to the period
of the Rebellion, treated the power as belonging to Congress, and to that department only.

And so we submit to the court, that the answers to the three questions, certified by the
court below, should be, to the first, that, on the facts stated in the petition and exhibits, a
writ of habeas corpus ought to be issued according to the prayer of the petition; to the
second, that, on the same facts, the petitioner ought to be discharged; and to the third, that
the military commission had not jurisdiction to try and sentence the petitioner, in manner
and form as in the petition and exhibits is stated.

Mr. Garfield, on the same side.

Had the military commission jurisdiction legally to try and sentence the petitioner? This
is the main question.

The Constitution establishes the Supreme Court, and empowers Congress —

"To constitute tribunals inferior to the Supreme Court."

"To make rules for the government of the land and naval  forces, and to provide for
governing such part of the militia as may be employed in the service of the United
States."

For all cases not arising in the land or naval forces, Congress has provided in the
Judiciary Act of September 24th, 1789, and the acts amendatory thereof. For all cases
arising in the naval forces, it has fully provided in the act of March 2d 1799, "for the
government of the navy of the United States," and similar subsequent acts.

We are apt to regard the military department of the government as an organized

despotism, in which all personal rights are merged in the will of the commander-in-chief.
But that department has definitely marked boundaries, and all its members are not only
controlled, but also sacredly protected by definitely prescribed law. The first law of the
Revolutionary Congress, passed September 20th, 1776, touching the organization of the
army, provided that no officer or soldier should be kept in arrest more than eight days
without being furnished with the written charges and specifications against him; that be
should be tried, at as early a day as possible, by a regular military court, whose
proceedings were regulated by law, and that no sentence should be carried into execution
till the full record of the trial had been submitted to Congress or to the commander-in-
chief, and his or their direction be signified thereon. From year to year Congress has
added new safeguards to protect the rights of its soldiers, and the rules and articles of war
are as really a part of the laws of the land as the Judiciary Act or the act establishing the
treasury department. The main boundary line between the civil and military jurisdictions
is the muster into service. In Mills v. Martin, a militiaman, called out by the Governor of
the State of New York, and ordered by him to enter the service of the United States, on a
requisition of the President for troops, refused to obey the summons, and was tried by a
Federal court-martial for disobedience of orders. The Supreme Court of the State of New
York decided, that until he had gone to the place of  general rendezvous, and had been
regularly enrolled, and mustered into the national militia, he was not amenable to the
action of a court-martial composed of officers of the United States.

Page 43 19 Johnson, 7.
And see Houston v. Moore, 5 Wheaton, 1.
By the sixtieth article of war, the military jurisdiction is so extended as to cover those
persons not mustered into the service, but necessarily connected with the army. It
provides that:

"All sutlers and retainers to the camp, and all persons whatsoever, serving with the
armies of the United States in the field, though not enlisted soldiers, are to be subject to
orders according to the rules and articles of war."

That the question of jurisdiction might not be doubtful, it was thought necessary to
provide by law of Congress that spies should be subject to trial by court-martial. As the
law stood for eighty-five years, spies were described as "persons not citizens of, or owing
allegiance to, the United States, who shall be found lurking," c. Not until after the Great
Rebellion began, was this law so amended as to allow the punishment by court-martial
of citizens of the United States who should be found lurking about the lines of our army
to betray it to the enemy.

It is evident, therefore, that by no loose and general construction of the law can citizens
be held amenable to military tribunals, whose jurisdiction extends only to persons
mustered into the military service, and such other classes of persons as are, by express
provisions of law, made subject to the rules and articles of war. But even within their
proper jurisdiction, military courts are, in many important particulars, subordinate to the
civil courts. This is acknowledged by the leading authorities on the subject, and also by
precedents, to some of which I refer:

O'Brien's Military Law, pp. 222-225.

1. A Lieutenant Frye, serving in the West Indies, in 1743, on a British man-of-war, was
ordered by his superior  officer to assist in arresting another officer. The lieutenant
demanded, what he had, according to the customs of the naval service, a right to demand,
a written order before he would obey the command. For this he was put under arrest, tried
by a naval court-martial, and sentenced to fifteen years' imprisonment. In 1746 he
brought an action before a civil court against the president of the court-martial, and
damages of £ 1000 were awarded him for his illegal detention and sentence; and the
judge informed him that he might also bring his action against any member of the court-
martial. Rear Admiral Mayne and Captain Rentone, who were members of the court that
tried him, were at the time, when damages were awarded to Lieutenant Frye, sitting on a
naval court-martial. The lieutenant proceeded against them, and they were arrested by a
writ from the Common Pleas. The order of arrest was served upon them one afternoon,
just as the court-martial adjourned. Its members, fifteen in number, immediately
reassembled and passed resolutions declaring it a great insult to the dignity of the naval
service that any person, however high in civil authority, should order the arrest of a naval
officer for any of his official acts. Lord Chief Justice Willes immediately ordered the
arrest of all the members of the court who signed the resolutions, and they were arrested.
They appealed to the king, who was very indignant at the arrest. The judge, however,
persevered in his determination to maintain the supremacy of civil law, and after two
months' examination and investigation of the cause, all the members of the court-martial
signed an humble and submissive letter of apology, begging leave to withdraw their
resolutions, in order to put an end to further proceedings. When the Lord Chief Justice
had heard the letter read in open court, he directed that it be recorded in the
Remembrance Office, "to the end," as he said, "that the present and future ages may
know that whosoever set themselves up in opposition to the law, or think themselves
above the law, will in the end find themselves mistaken." 

McArthur on Courts-Martial, vol. i, pp. 268-271. See also

London Gazette for 1745-6, Library of Congress.
2. In Wilson v. McKenzie  it was proved that a mutiny of very threatening aspect had
broken out; and that the lives of the captain and his officers were threatened by the
mutineers. Among the persons arrested was the plaintiff, Wilson, an enlisted sailor, who
being supposed to be in the conspiracy, was knocked down by the captain, ironed, and
held in confinement for a number of days. When the cruise was ended, Wilson brought
suit against the captain for illegal arrest and imprisonment. The cause was tried before the
Supreme Court of New York; Chief Justice Nelson delivered the judgment of the court,
giving judgment in favor of Wilson.

Page 46 7 Hill, 95.

A clear and complete statement of the relation between civil and military courts may be
found in Dynes v. Hoover, in this court:

Page 46 20 Howard, 82.

"If a court-martial has no jurisdiction over the subject-matter of the charge it has been
convened to try, or shall inflict a punishment forbidden by the law, though its sentence
shall be approved by the officers having a revisory power of it, civil courts may, on an
action by a party aggrieved by it, inquire into the want of the court's jurisdiction and give
him redress."

"The courts of common law will examine whether courts-martial have exceeded the
jurisdiction given them, though it is said, `not, however, after the sentence has been
ratified and carried into execution.'"

It is clear, then, that the Supreme Court of the United States may inquire into the question
of jurisdiction of a military court; may take cognizance of extraordinary punishment
inflicted by such a court not warranted by law; and may issue writs of prohibition or give
such other redress as the case may require. It is also clear that the Constitution and laws
of the United States have carefully provided for the protection of individual liberty and
the right of accused persons to a speedy trial before a tribunal established and regulated
by law. 

To maintain the legality of the sentence here, opposite counsel are compelled not only to
ignore the Constitution, but to declare it suspended — its voice lost in war — to hold that
from the 5th of October, 1864, to the 9th of May, 1865, martial law alone existed in
Indiana; that it silenced not only the civil courts, but all the laws of the land, and even the
Constitution itself; and that during this silence the executor of martial law could lay his
hand upon every citizen; could not only suspend the writ of habeas corpus, but could
create a court which should have the exclusive jurisdiction over the citizen to try him,
sentence him, and put him to death.

Sir Matthew Hale, in his History of the Common Law, says:

Runnington's edition, London, 1820, pp. 42-3; and see 1

Blackstone's Com. 413-14.
"Touching the business of martial law, these things are to be observed, viz.:

"First. That in truth and reality it is not a law, but something indulged rather than allowed
as a law; the necessity of government, order, and discipline in an army, is that only which
can give those laws a countenance: quod enim necessitas cogit defendit.

"Secondly. This indulged law was only to extend to members of the army, or to those of
the opposed army, and never was so much indulged as intended to be executed or
exercised upon others, for others who had not listed under the army had no color or
reason to be bound by military constitutions applicable only to the army, whereof they
were not parts, but they were to be ordered and governed according to the laws to which
they were subject, though it were a time of war.
"Thirdly. That the exercises of martial law, whereby any person should lose his life, or
member, or liberty, may not be permitted in time of peace, when the king's courts are
open for all persons to receive justice according to the laws of the land. This is declared
in the Petition of Right (3 Car. I), whereby such commissions and martial law were
repealed and declared to be contrary to law." 

In order to trace the history and exhibit the character of martial law, reference may be
made to several leading precedents in English and American history.

1. The Earl of Lancaster. In the year 1322, the Earl of Lancaster and the Earl of Hereford
rebelled against the authority of Edward II. They collected an army so large that Edward
was compelled to raise forty thousand men to withstand them. The rebellious earls posted
their forces on the Trent, and the armies of the king confronted them. They fought at
Boroughbridge; the insurgent forces were overthrown; Hereford was slain and Lancaster
taken in arms at the head of his army, and amid the noise of battle was tried by a court-
martial, sentenced to death, and executed. When Edward III came into power, eight years
later, on a formal petition presented to Parliament by Lancaster's son, setting forth the
facts, the case was examined and a law was enacted reversing the attainder, and
declaring: "1. That in time of peace no man ought to be adjudged to death for treason or
any other offence without being arraigned and held to answer. 2. That regularly when the
king's courts are open it is a time of peace in judgment of law; and 3. That no man ought
to be sentenced to death, by the record of the king, without his legal trial per pares." 

Hale's Pleas of the Crown, pp. 499, 500; Hume, vol. 1, p. 159.
So carefully was the line drawn between civil and martial law five hundred years ago.

2. Sir Thomas Darnell. He was arrested in 1625 by order of the king, for refusing to pay a
tax which he regarded as illegal. He was arrested and imprisoned. A writ of habeas
corpus was prayed for, but answer was returned by the court that he had been arrested by
special order of the king, and that was held to be a sufficient answer to the petition. Then
the great cause came up to be tried in Parliament, whether the order of the king was
sufficient to override the writ of habeas corpus, and after a long and stormy debate, in
which the ablest minds in England were engaged, the Petition of Right, of 1628, received
the sanction of the king. In that  statute it was decreed that the king should never again
suspend the writ of habeas corpus; that he should never again try a subject by military
commission; and since that day no king of England has presumed to usurp that high
prerogative, which belongs to Parliament alone.

3. The Bill of Rights of 1688. The house of Stuart had been expelled and William had
succeeded to the British throne. Great disturbances had arisen in the realm in
consequence of the change of dynasty. The king's person was unsafe in London. He
informed the Lords and Commons of the great dangers that threatened the kingdom, and
reminded them that he had no right to declare martial law, to suspend the writ of habeas
corpus, or to seize and imprison his subjects on suspicion of treason or intended outbreak
against the peace of the realm. He laid the case before them and asked their advice and
assistance. In answer, Parliament passed the celebrated habeas corpus act. Since that day,
no king of England has dared to suspend the writ. It is only done by Parliament.

4. Governor Wall. In the year 1782, Joseph Wall, governor of the British colony at Goree,
in Africa, had under his command about five hundred British soldiers. Suspecting a
mutiny about to break out in the garrison, he assembled them on the parade-ground, held
a hasty consultation with his officers, and immediately ordered Benjamin Armstrong, a
private, and supposed ringleader, to be seized, stripped, tied to the wheel of an artillery-
carriage, and with a rope one inch in diameter, to receive eight hundred lashes. The order
was carried into execution, and Armstrong died of his injuries. Twenty years afterward
Governor Wall was brought before the most august civil tribunal of England to answer
for the murder of Armstrong. Sir Archibald McDonald, Lord Chief Baron of the Court of
Exchequer, Sir Soulden Lawrence, of the King's Bench, Sir Giles Rooke, of the Common
Pleas, constituted the court. Wall's counsel claimed that he had the power of life and
death in his hands in time of mutiny; that the necessity of the case authorized him to
suspend the usual forms of law; that as governor  and military commander-in-chief of the
forces at Goree, he was the sole judge of the necessities of the case. After a patient
hearing before that high court, he was found guilty of murder, was sentenced and
executed.

Page 50 28 State Trials, p. 51; see also Hough's Military Law,

pp. 537-540.
I now ask attention to precedents in our own colonial history.

5. On the 12th of June, 1775, General Gage, the commander of the British forces,
declared martial law in Boston. The battles of Concord and Lexington had been fought
two months before. The colonial army was besieging the city and its British garrison. It
was but five days before the battle of Bunker Hill. Parliament had, in the previous
February, declared the colonies in a state of rebellion. Yet, by the common consent of
English jurists, General Gage violated the laws of England, and laid himself liable to its
penalty, when he declared martial law. This position is sustained in the opinion of
Woodbury, J., in Luther v. Borden.

Page 50 7 Howard, p. 65. See also Annual Register for 1775, p.

133.
6. On the 7th of November, 1775, Lord Dunmore declared martial law throughout the
commonwealth of Virginia. This was long after the battle of Bunker Hill, and when war
was flaming throughout the colonies; yet he was denounced by the Virginia Assembly for
having assumed a power which the king himself dared not exercise, as it "annuls the law
of the land, and introduces the most execrable of all systems, martial law." Woodbury,
J., declares the act of Lord Dunmore unwarranted by British law.
In his dissenting opinion.
7. The practice of our Revolutionary fathers on this subject is instructive. Their conduct
throughout the great struggle for independence was equally marked by respect for civil
law, and jealousy of martial law. Though Washington was clothed with almost dictatorial
powers, he did not presume to override the civil law, or disregard the orders of the courts,
except by express authority of Congress or the States. In his file of general orders,
covering a period of  five years, there are but four instances in which civilians appear to
have been tried by a military court, and all these trials were expressly authorized by
resolutions of Congress. In the autumn of 1777, the gloomiest period of the war, a
powerful hostile army landed at Chesapeake Bay, for the purpose of invading Maryland
and Pennsylvania. It was feared that the disloyal inhabitants along his line of march
would give such aid and information to the British commander as to imperil the safety of
our cause. Congress resolved "That the executive authorities of Pennsylvania and
Maryland be requested to cause all persons within their respective States, notoriously
disaffected, to be forthwith apprehended, disarmed, and secured till such time as the
respective States think they can be released without injury to the common cause." The
governor authorized the arrests, and many disloyal citizens were taken into custody by
Washington's officers, who refused to answer the writ of habeas corpus which a civil
court issued for the release of the prisoners. Very soon afterwards the Pennsylvania
legislature passed a law indemnifying the governor and the military authorities, and
allowing a similar course to be pursued thereafter on recommendation of Congress or the
commanding officer of the army. But this law gave authority only to arrest and hold —
not to try; and the act was to remain in force only till the end of the next session of the
General Assembly. So careful were our fathers to recognize the supremacy of civil law,
and to resist all pretensions of the authority of martial law!

See argument of Mr. Field. Supra, p. 37-8. — REP.

8. Shay's Rebellion in 1787. That rebellion, which was before the Constitution was
adopted, was mentioned by Hamilton in the Federalist as a proof that we needed a strong
central government to preserve our liberties. During all that disturbance there was no
declaration of martial law, and the habeas corpus was only suspended for a limited time
and with very careful restrictions. Governor Bowdoin's order to General Lincoln, on the
19th of January, 1787, was in these words: "Consider yourself in all your military
offensive operations constantly as under the direction of the civil  officer, save where any
armed force shall appear to oppose you marching to execute these orders."

9. I refer too to a case under the Constitution, the Rebellion of 1793, in Western
Pennsylvania. President Washington did not march with his troops until the judge of the
United States District Court had certified that the marshal was unable to execute his
warrants. Though the parties were tried for treason, all the arrests were made by the
authority of the civil officers. The orders of the Secretary of War stated that "the object of
the expedition was to assist the marshal of the district to make prisoners." Every
movement was made under the direction of the civil authorities. So anxious was
Washington on this subject that he issued orders declaring that "the army should not
consider themselves as judges or executioners of the laws, but only as employed to
support the proper authorities in the execution of the laws."

10. I call the attention of the court also to the case of General Jackson, in 1815, at New
Orleans. In 1815, at New Orleans, General Jackson took upon himself the command of
every person in the city, suspended the functions of all the civil authorities, and made his
own will for a time the only rule of conduct. It was believed to be absolutely necessary.
Judges, officers of the city corporation, and members of the State legislature insisted on it
as the only way to save the citizens and property of the place from the unspeakable
outrages committed at Badajos and St. Sebastian by the very same troops then marching
to the attack. Jackson used the power thus taken by him moderately, sparingly, benignly,
and only for the purpose of preventing mutiny in his camp. A single mutineer was
restrained by a short confinement, and another was sent four miles up the river. But after
he had saved the city, and the danger was all over, he stood before the court to be tried by
the law; his conduct was decided to be illegal, and he paid the penalty without a murmur.
The Supreme Court of Louisiana, in Johnson v. Duncan, decided that everything done
during the  siege in pursuance of martial rule, but in conflict with the law of the land, was
void and of none effect, without reference to the circumstances which made it necessary.
In 1842, a bill was introduced into Congress to reimburse General Jackson for the fine.
The debate was able and thorough. Mr. Buchanan, then a member of Congress, spoke in
its favor, and no one will doubt his willingness to put the conduct of Jackson on the most
favorable ground possible. Yet he did not attempt to justify, but only sought to palliate
and excuse the conduct of Jackson. All the leading members took the same ground.

See 3 Martin's Louisiana Rep., O.S., 520.

Benton's Abridgment of Debates, vol. 14, page 628.
11. I may fortify my argument by the authority of two great British jurists, and call
attention to the trial of the Rev. John Smith, missionary at Demerara, in British Guiana.
In the year 1823, a rebellion broke out in Demerara, extending over some fifty
plantations. The governor of the district immediately declared martial law. A number of
the insurgents were killed, and the rebellion was crushed. It was alleged that the Rev.
John Smith, a missionary, sent out by the London Missionary Society, had been an aider
and abettor of the rebellion. A court-martial was appointed, and in order to give it the
semblance of civil law, the governor-general appointed the chief justice of the district as
a staff officer, and then detailed him as president of the court to try the accused. All the
other members of the court were military men, and he was made a military officer for the
special occasion. Missionary Smith was tried, found guilty, and sentenced to be hung.
The proceedings came to the notice of Parliament, and were made the subject of inquiry
and debate. Smith died in prison before the day of execution; but the trial gave rise to one
of the ablest debates of the century, in which the principles involved in the cause now
before this court were fully discussed. Lord Brougham and Sir James Mackintosh were
among the speakers. In the course of his speech Lord Brougham said:
"No such thing as martial law is recognized in Great Britain,  and courts founded on
proclamations of martial law are wholly unknown. Suppose I am ready to admit that, on
the pressure of a great necessity, such as invasion or rebellion, when there is no time for
the slow and cumbrous proceedings of the civil law, a proclamation may justifiably be
issued for excluding the ordinary tribunals, and directing that offences should be tried by
a military court, such a proceeding might be justified by necessity, but it could rest on
that alone. Created by necessity, necessity must limit its continuance. It would be the
worst of all conceivable grievances, it would be a calamity unspeakable, if the whole law
and constitution of England were suspended one hour longer than the most imperious
necessity demanded. I know that the proclamation of martial law renders every man
liable to be treated as a soldier. But the instant the necessity ceases, that instant the state
of soldiership ought to cease, and the rights, with the relations of civil life, to be
restored."

Sir James Mackintosh says:

Mackintosh's Miscellaneous Works, p. 734, London edition,

1851
"The only principle on which the law of England tolerates what is called `martial law,' is
necessity. Its introduction can be justified only by necessity; its continuance requires
precisely the same justification of necessity; and if it survives the necessity, in which
alone it rests, for a single minute, it becomes instantly a mere exercise of lawless
violence. When foreign invasion or civil war renders it impossible for courts of law to sit,
or to enforce the execution of their judgments, it becomes necessary to find some rude
substitute for them, and to employ for that purpose the military, which is the only
remaining force in the community."

The next paragraph lays down the chief condition that can justify martial law, and also
marks the boundary between martial and civil law:

"While the laws are silenced by the noise of arms, the rulers of the armed force must
punish, as equitably as they can, those crimes which threaten their own safety and that of
society, but no longer; every moment beyond is usurpation. As soon as  the laws can act,
every other mode of punishing supposed crimes is itself an enormous crime. If argument
be not enough on this subject — if, indeed, the mere statement be not the evidence of its
own truth — I appeal to the highest and most venerable authority known to our law."

He proceeds to quote Sir Matthew Hale on Martial Law, and cites the case of the Earl of
Lancaster, to which I have already referred, and then declares:

"No other doctrine has ever been maintained in this country since the solemn
parliamentary condemnation of the usurpations of Charles I, which he was himself
compelled to sanction in the Petition of Right. In none of the revolutions or rebellions
which have since occurred has martial law been exercised, however much, in some of
them, the necessity might seem to exist. Even in those most deplorable of all commotions
which tore Ireland in pieces in the last years of the eighteenth century, in the midst of
ferocious revolt and cruel punishment, at the very moment of legalizing these martial
jurisdictions in 1799, the very Irish statute, which was passed for that purpose, did
homage to the ancient and fundamental principles of the law in the very act of departing
from them. The Irish statute (39 George III, chap. 3), after reciting `that martial law had
been successfully exercised to the restoration of peace, so far as to permit the course of
the common law partially to take place, but that the rebellion continued to rage in
considerable parts of the kingdom, whereby it has become necessary for Parliament to
interpose,' goes on to enable the Lord Lieutenant `to punish rebels by courts-martial.' This
statute is the most positive declaration, that where the common law can be exercised in
some parts of the country, martial law cannot be established in others, though rebellion
actually prevails in those others, without an extraordinary interposition of the supreme
legislative authority itself."

After presenting arguments to show that a declaration of martial law was not necessary,
the learned jurist continues:

"For six weeks, then, before the court-martial was assembled, and for twelve weeks
before that court pronounced sentence of  death on Mr. Smith, all hostility had ceased, no
necessity for their existence can be pretended, and every act which they did was an open
and deliberate defiance of the law of England. Where, then, are we to look for any color
of law in these proceedings? Do they derive it from the Dutch law? I have diligently
examined the Roman law, which is the foundation of that system, and the writings of
those most eminent jurists who have contributed so much to the reputation of Holland. I
can find in them no trace of any such principle as martial law. Military law, indeed, is
clearly defined; and provision is made for the punishment, by military judges, of the
purely military offences of soldiers. But to any power of extending military jurisdiction
over those who are not soldiers, there is not an allusion."

Many more such precedents as I have already cited might be added to the list; but it is
unnecessary. They all teach the same lesson. They enable us to trace, from its far-off
source, the progress and development of Anglo-Saxon liberty; its conflicts with
irresponsible power; its victories, dearly bought, but always won — victories which have
crowned with immortal honors the institutions of England, and left their indelible impress
upon the Anglo-Saxon mind. These principles our fathers brought with them to the New
World, and guarded with vigilance and devotion. During the late Rebellion, the Republic
did not forget them. So completely have they been impressed on the minds of American
lawyers, so thoroughly ingrained into the fibre of American character, that
notwithstanding the citizens of eleven States went off into rebellion, broke their oaths of
allegiance to the Constitution, and levied war against their country, yet with all their
crimes upon them, there was still in the minds of those men, during all the struggle, so
deep an impression on this great subject, that, even during their rebellion, the courts of
the Southern States adjudicated causes, like the one now before you, in favor of the civil
law, and against courts-martial established under military authority for the trial of
citizens. In Texas, Mississippi, Virginia, and other insurgent States, by the order of the
rebel President, the  writ of habeas corpus was supended, martial law was declared, and
provost marshals were appointed to administer military authority. But when civilians,
arrested by military authority, petitioned for release by writ of habeas corpus, in every
case, save one, the writ was granted, and it was decided that there could be no suspension
of the writ or declaration of martial law by the executive, or by any other than the
supreme legislative authority.

The military commission, under our government, is of recent origin. It was instituted, as
has been frequently said, by General Scott, in Mexico, to enable him, in the absence of
any civil authority, to punish Mexican and American citizens for offences not provided
for in the rules and articles of war. The purpose and character of a military commission
may be seen from his celebrated order, No. 20, published at Tampico. It was no tribunal
with authority to punish, but merely a committee appointed to examine an offender, and
advise the commanding general what punishment to inflict. It is a rude substitute for a
court of justice, in the absence of civil law. Even our own military authorities, who have
given so much prominence to these commissions, do not claim for them the character of
tribunals established by law. In his "Digest of Opinions" for 1866, the Judge Advocate
General says:

Pages 131, 133.

"Military commissions have grown out of the necessities of the service, but their powers
have not been defined nor their mode of proceeding regulated by any statute law."

Again:

"In a military department the military commission is a substitute for the ordinary State or
United States Court, when the latter is closed by the exigencies of war or is without the
jurisdiction of the offence committed."

The plea set up by the Attorney-General for this military tribunal is that of the necessity
of this case. But there was  in fact no necessity. From the beginning of the Rebellion to its
close, Congress, by its legislation, kept pace with the necessities of the nation. In sixteen
carefully considered laws, the national legislature undertook to provide for every
contingency, and arm the executive at every point with the solemn sanction of law.
Observe how the case of the petitioner was covered by the provisions of law.

The first charge against him was "conspiracy against the government of the United
States." In the act approved July 31st, 1861, that crime was defined, and placed within the
jurisdiction of the District and Circuit Courts of the United States.

Charge 2. "Affording aid and comfort to the rebels against the authority of the United
States." In the act approved July 17th, 1862, this crime is set forth in the very words of
the charge, and it is provided that "on conviction before any court of the United States,
having jurisdiction thereof, the offender shall be punished by a fine not exceeding ten
thousand dollars, and by imprisonment not less than six months, nor exceeding five
years."
Charge 3. "Inciting insurrection." In Brightly's Digest, there is compiled from ten
separate acts, a chapter of sixty-four sections on insurrection, setting forth in the fullest
manner possible, every mode by which citizens may aid in insurrection, and providing for
their trial and punishment by the regularly ordained courts of the United States.

Vol. 2, pp. 191-202.

Charge 4. "Disloyal practices." The meaning of this charge can only be found in the
specifications under it, which consists in discouraging enlistments and making
preparations to resist a draft designed to increase the army of the United States. These
offences are fully defined in the thirty-third section of the act of March 3d 1863, "for
enrolling and calling out the national forces," and in the twelfth section of the act of
February 24th, 1864, amendatory thereof. The provost marshal is authorized to arrest
such offenders, but he must deliver them over for trial to the civil authorities.  Their trial
and punishment are expressly placed in the jurisdiction of the District and Circuit Courts
of the United States.

Charge 5. "Violation of the laws of war;" which, according to the specifications,

consisted of an attempt, through a secret organization, to give aid and comfort to rebels.
This crime is amply provided for in the laws referred to in relation to the second charge.

But Congress did far more than to provide for a case like this. Throughout the eleven
rebellious States, it clothed the military department with supreme power and authority.
State constitutions and laws, the decrees and edicts of courts, were all superseded by the
laws of war. Even in States not in rebellion, but where treason had a foothold, and hostile
collisions were likely to occur, Congress authorized the suspension of the writ of habeas
corpus, and directed the army to keep the peace. But Congress went further still, and
authorized the President, during the Rebellion, whenever, in his judgment, the public
safety should require it, to suspend the privilege of the writ in any State or Territory of
the United States, and order the arrest of any persons whom he might believe dangerous
to the safety of the Republic, and hold them till the civil authorities could examine into
the nature of their crimes. But this act of March 3d 1863, gave no authority to try the
person by any military tribunal, and it commanded judges of the Circuit and District
Courts of the United States, whenever the grand jury had adjourned its sessions, and
found no indictment against such persons, to order their immediate discharge from arrest.
All these capacious powers were conferred upon the military department, but there is no
law on the statute book, in which the tribunal that tried the petitioner can find the least
recognition.

What have our Representatives in Congress thought on this subject?

Near the close of the Thirty-Eighth Congress, when the miscellaneous appropriation bill,
which authorized the disbursement of several millions of dollars for the civil
expenditures  of the government, was under discussion, the House of Representatives,
having observed with alarm the growing tendency to break down the barriers of law, and
desiring to protect the rights of citizens as well as to preserve the Union, added to the
appropriation bill the following section:

" And be it further enacted, That no person shall be tried by court-martial or military

commission in any State or Territory where the courts of the United States are open,
except persons actually mustered or commissioned or appointed in the military or naval
service of the United States, or rebel enemies charged with being spies."

It was debated at length in the Senate, and almost every Senator acknowledged its justice,
yet, as the nation was then in the very midst of the war, it was feared that the Executive
might thereby be crippled, and the section was stricken out. The bill came back to the
House; conferences were held upon it, and finally, in the last hour of the session, the
House deliberately determined that, important as the bill was to the interests of the
country, they preferred it should not become a law if that section were stricken out.

The bill failed; and the record of its failure is an emphatic declaration that the House of
Representatives have never consented to the establishment of any tribunals except those
authorized by the Constitution of the United States and the laws of Congress.

A point is suggested by the opposing counsel, that if the military tribunal had no
jurisdiction, the petitioners may be held as prisoners captured in war, and handed over by
the military to the civil authorities, to be tried for their crimes under the acts of Congress
and before the courts of the United States. The answer to this is that the petitioners were
never enlisted, commissioned, or mustered into the service of the Confederacy; nor had
they been within the rebel lines, or within any theatre of active military operations; nor
had they been in any way recognized by the rebel authorities as in their service. They
could not have been exchanged as prisoners of war; nor, if all the charges against  them
were true, could they be brought under the legal definition of spies. The suggestion that
they should be handed over to the civil authorities for trial is precisely what they
petitioned for, and what, according to the laws of Congress, should have been done.

Mr. Black, on the same side:

Had the commissioners jurisdiction? Were they invested with legal authority to try the
petitioner and put him to death for the offence of which he was accused? This is the main
question in the controversy, and the main one upon which the court divided. We answer,
that they were not; and, therefore, that the whole proceeding from beginning to end was
null and void.

On the other hand, it is necessary for those who oppose us to assert, and they do assert,
that the commissioners had complete legal jurisdiction both of the subject-matter and of
the party, so that their judgment upon the law and the facts is absolutely conclusive and
binding, not subject to correction nor open to inquiry in any court whatever. Of these two
opposite views, the court must adopt one or the other. There is no middle ground on
which to stand.
The men whose acts we complain of erected themselves, it will be remembered, into a
tribunal for the trial and punishment of citizens who were connected in no way whatever
with the army or navy. And this they did in the midst of a community whose social and
legal organization had never been disturbed by any war or insurrection, where the courts
were wide open, where judicial process was executed every day without interruption, and
where all the civil authorities, both state and national, were in the full exercise of their
functions.

It is unimportant whether the petitioner was intended to be charged with treason or

conspiracy, or with some offence of which the law takes no notice. Either or any way, the
men who undertook to try him had no jurisdiction of the subject-matter.

Nor had they jurisdiction of the party. The case, not  having been one of impeachment, or
a case arising in the land or naval forces, is either nothing at all or else it is a simple
crime against the United States, committed by private individuals not in the public
service, civil or military. Persons standing in that relation to the government are
answerable for the offences which they may commit only to the civil courts of the
country. So says the Constitution, as we read it; and the act of Congress of March 3d
1863, which was passed with reference to persons in the exact situation of this man,
declares that they shall be delivered up for trial to the proper civil authorities.

There being no jurisdiction of the subject-matter or of the party, you are bound to relieve
the petitioner. It is as much the duty of a judge to protect the innocent as it is to punish
the guilty.

We submit that a person not in the military or naval service cannot be punished at all
until he has had a fair, open, public trial before an impartial jury, in an ordained and
established court, to which the jurisdiction has been given by law to try him for that
specific offence.

Our proposition ought to be received as true without any argument to support it; because,
if that, or something precisely equivalent to it, be not a part of our law, then the country is
not a free country. Nevertheless, we take upon ourselves the burden of showing
affirmatively not only that it is true, but that it is immovably fixed in the very framework
of the government, so that it is impossible to detach it without destroying the whole
political structure under which we live.

In the first place, the self-evident truth will not be denied that the trial and punishment of
an offender against the government is the exercise of judicial authority. That is a kind of
authority which would be lost by being diffused among the masses of the people. A judge
would be no judge if everybody else were a judge as well as he. Therefore, in every
society, however rude or however perfect its organization, the judicial authority is always
committed to the hands of particular persons, who are trusted to use it wisely and  well;
and their authority is exclusive; they cannot share it with others to whom it has not been
committed. Where, then, is the judicial power in this country? Who are the depositaries
of it here? The Federal Constitution answers that question in very plain words, by
declaring that "the judicial power of the United States shall be vested in one Supreme
Court, and in such inferior courts as Congress may from time to time ordain and
establish." Congress has, from time to time, ordained and established certain inferior
courts; and, in them, together with the one Supreme Court to which they are subordinate,
is vested all the judicial power, properly so called, which the United States can lawfully
exercise. At the time the General Government was created, the States and the people
bestowed upon that government a certain portion of the judicial power which otherwise
would have remained in their own hands, but they gave it on a solemn trust, and coupled
the grant of it with this express condition, that it should never be used in any way but
one; that is, by means of ordained and established courts. Any person, therefore, who
undertakes to exercise judicial power in any other way, not only violates the law of the
land, but he tramples upon the most important part of that Constitution which holds these
States together.

We all know that it was the intention of the men who founded this Republic to put the
life, liberty, and property of every person in it under the protection of a regular and
permanent judiciary, separate, apart, distinct, from all other branches of the government,
whose sole and exclusive business it should be to distribute justice among the people
according to the wants and needs of each individual. It was to consist of courts, always
open to the complaint of the injured, and always ready to hear criminal accusations when
founded upon probable cause; surrounded with all the machinery necessary for the
investigation of truth, and clothed with sufficient power to carry their decrees into
execution. In these courts it was expected that judges would sit who would be upright,
honest, and sober men, learned in the laws of their country, and lovers of justice from the
habitual  practice of that virtue; independent, because their salaries could not be reduced,
and free from party passion, because their tenure of office was for life. Although this
would place them above the clamors of the mere mob and beyond the reach of executive
influence, it was not intended that they should be wholly irresponsible. For any wilful or
corrupt violation of their duty, they are liable to be impeached; and they cannot escape
the control of an enlightened public opinion, for they must sit with open doors, listen to
full discussion, and give satisfactory reasons for the judgments they pronounce. In
ordinary tranquil times the citizen might feel himself safe under a judicial system so
organized.

But our wise forefathers knew that tranquillity was not to be always anticipated in a
republic; the spirit of a free people is often turbulent. They expected that strife would rise
between classes and sections, and even civil war might come, and they supposed, that in
such times, judges themselves might not be safely trusted in criminal cases — especially
in prosecutions for political offences, where the whole power of the executive is arrayed
against the accused party. All history proves that public officers of any government when
they are engaged in a severe struggle to retain their places, become bitter and ferocious,
and hate those who oppose them, even in the most legitimate way, with a rancor which
they never exhibit towards actual crime. This kind of malignity vents itself in
prosecutions for political offences, sedition, conspiracy, libel, and treason, and the
charges are generally founded upon the information of spies and delators, who make
merchandise of their oaths, and trade in the blood of their fellow men. During the civil
commotions in England, which lasted from the beginning of the reign of Charles I to the
Revolution of 1688, the best men, and the purest patriots that ever lived, fell by the hand
of the public executioner. Judges were made the instruments for inflicting the most
merciless sentences on men, the latchet of whose shoes the ministers that prosecuted
them were not worthy to stoop down and unloose. Nothing has occurred, indeed, in the
history of this country to justify the doubt of  judicial integrity which our forefathers
seem to have felt. On the contrary, the highest compliment that has ever been paid to the
American bench, is embodied in this simple fact, that if the executive officers of this
government have ever desired to take away the life or the liberty of a citizen contrary to
law, they have not come into the courts to get it done, they have gone outside of the
courts, and stepped over the Constitution, and created their own tribunals. But the framers
of the Constitution could act only upon the experience of that country whose history they
knew most about, and there they saw the ferocity of Jeffreys and Scroggs, the timidity of
Guilford, and the venality of such men as Saunders and Wright. It seems necessary,
therefore, not only to make the judiciary as perfect as possible, but to give the citizen yet
another shield against his government. To that end they could think of no better provision
than a public trial before an impartial jury.

We do not assert that the jury trial is an infallible mode of ascertaining truth. Like
everything human, it has its imperfections. We only say that it is the best protection for
innocence and the surest mode of punishing guilt that has yet been discovered. It has
borne the test of a longer experience, and borne it better than any other legal institution
that ever existed among men. England owes more of her freedom, her grandeur, and her
prosperity to that, than to all other causes put together. It has had the approbation not only
of those who lived under it, but of great thinkers who looked at it calmly from a distance,
and judged it impartially: Montesquieu and De Tocqueville speak of it with an admiration
as rapturous as Coke and Blackstone. Within the present century, the most enlightened
states of continental Europe have transplanted it into their countries; and no people ever
adopted it once and were afterwards willing to part with it. It was only in 1830 that an
interference with it in Belgium provoked a successful insurrection which permanently
divided one kingdom into two. In the same year, the Revolution of the Barricades gave
the right of trial by jury to every Frenchman. 

Those colonists of this country who came from the British Islands brought this institution
with them, and they regarded it as the most precious part of their inheritance. The
immigrants from other places where trial by jury did not exist became equally attached to
it as soon as they understood what it was. There was no subject upon which all the
inhabitants of the country were more perfectly unanimous than they were in their
determination to maintain this great right unimpaired. An attempt was made to set it aside
and substitute military trials in its place, by Lord Dunmore, in Virginia, and General
Gage, in Massachusetts, accompanied with the excuse which has been repeated so often
in late days, namely, that rebellion had made it necessary; but it excited intense popular
anger, and every colony, from New Hampshire to Georgia, made common cause with the
two whose rights had been especially invaded. Subsequently the Continental Congress
thundered it into the ear of the world, as an unendurable outrage, sufficient to justify
universal insurrection against the authority of the government which had allowed it to be
done.

If the men who fought out our Revolutionary contest, when they came to frame a
government for themselves and their posterity, had failed to insert a provision making the
trial by jury perpetual and universal, they would have proved themselves recreant to the
principles of that liberty of which they professed to be the special champions. But they
were guilty of no such thing. They not only took care of the trial by jury, but they
regulated every step to be taken in a criminal trial. They knew very well that no people
could be free under a government which had the power to punish without restraint.
Hamilton expressed, in the Federalist, the universal sentiment of his time, when he said,
that the arbitrary power of conviction and punishment for pretended offences, had been
the great engine of despotism in all ages and all countries. The existence of such a power
is incompatible with freedom.

But our fathers were not absurd enough to put unlimited power in the hands of the ruler
and take away the protection  of law from the rights of individuals. It was not thus that
they meant "to secure the blessings of liberty to themselves and their posterity." They
determined that not one drop of the blood which had been shed on the other side of the
Atlantic, during seven centuries of contest with arbitrary power, should sink into the
ground; but the fruits of every popular victory should be garnered up in this new
government. Of all the great rights already won they threw not an atom away. They went
over Magna Charta, the Petition of Right, the Bill of Rights, and the rules of the common
law, and whatever was found there to favor individual liberty they carefully inserted in
their own system, improved by clearer expression, strengthened by heavier sanctions, and
extended by a more universal application. They put all those provisions into the organic
law, so that neither tyranny in the executive, nor party rage in the legislature, could
change them without destroying the government itself.

Look at the particulars and see how carefully everything connected with the
administration of punitive justice is guarded.

1. No ex post facto law shall be passed. No man shall be answerable criminally for any
act which was not defined and made punishable as a crime by some law in force at the
time when the act was done.

2. For an act which is criminal he cannot be arrested without a judicial warrant founded
on proof of probable cause. He shall not be kidnapped and shut up on the mere report of
some base spy who gathers the materials of a false accusation by crawling into his house
and listening at the keyhole of his chamber door.

3. He shall not be compelled to testify against himself. He may be examined before he is

committed, and tell his own story if he pleases; but the rack shall be put out of sight, and
even his conscience shall not be tortured; nor shall his unpublished papers be used against
him, as was done most wrongfully in the case of Algernon Sydney.
4. He shall be entitled to a speedy trial; not kept in prison  for an indefinite time without
the opportunity of vindicating his innocence.

5. He shall be informed of the accusation, its nature, and grounds. The public accuser
must put the charge into the form of a legal indictment, so that the party can meet it full
in the face.

6. Even to the indictment he need not answer unless a grand jury, after hearing the
evidence, shall say upon their oaths that they believe it to be true.

7. Then comes the trial, and it must be before a regular court, of competent jurisdiction,
ordained and established for the State and district in which the crime was committed; and
this shall not be evaded by a legislative change in the district after the crime is alleged to
be done.

8. His guilt or innocence shall be determined by an impartial jury. These English words
are to be understood in their English sense, and they mean that the jurors shall be fairly
selected by a sworn officer from among the peers of the party, residing within the local
jurisdiction of the court. When they are called into the box he can purge the panel of all
dishonesty, prejudice, personal enmity, and ignorance, by a certain number of peremptory
challenges, and as many more challenges as he can sustain by showing reasonable cause.

9. The trial shall be public and open, that no underhand advantage may be taken. The
party shall be confronted with the witnesses against him, have compulsory process for his
own witnesses, and be entitled to the assistance of counsel in his defence.

10. After the evidence is heard and discussed, unless the jury shall, upon their
oaths, unanimously agree to surrender him up into the hands of the court as a guilty man,
not a hair of his head can be touched by way of punishment.

11. After a verdict of guilty he is still protected. No cruel or unusual punishment shall be
inflicted, nor any punishment at all, except what is annexed by the law to his offence. It
cannot be doubted for a moment that if a person convicted of an offence not capital were
to be hung on the  order of a judge, such judge would be guilty of murder as plainly as if
he should come down from the bench, turn up the sleeves of his gown, and let out the
prisoner's blood with his own hand.

12. After all is over, the law continues to spread its guardianship around him. Whether he
is acquitted or condemned he shall never again be molested for that offence. No man
shall be twice put in jeopardy of life or limb for the same cause.

These rules apply to all criminal prosecutions. But in addition to these, certain special
regulations were required for treason, — the one great political charge under which more
innocent men have fallen than any other. A tyrannical government calls everybody a
traitor who shows the least unwillingness to be a slave. In the absence of a constitutional
provision it was justly feared that statutes might be passed which would put the lives of
the most patriotic citizens at the mercy of minions that skulk about under the pay of an
executive. Therefore a definition of treason was given in the fundamental law, and the
legislative authority could not enlarge it to serve the purpose of partisan malice. The
nature and amount of evidence required to prove the crime was also prescribed, so that
prejudice and enmity might have no share in the conviction. And lastly, the punishment
was so limited that the property of the party could not be confiscated and used to reward
the agents of his prosecutors, or strip his family of their subsistence.

If these provisions exist in full force, unchangeable and irrepealable, then we are not
hereditary bondsmen. Every citizen may safely pursue his lawful calling in the open day;
and at night, if he is conscious of innocence, he may lie down in security, and sleep the
sound sleep of a freeman.

They are in force, and they will remain in force. We have not surrendered them, and we
never will. The great race to which we belong has not degenerated.

But how am I to prove the existence of these rights? I do not propose to do it by a long
chain of legal argumentation, nor by the production of numerous books with the  leaves
turned down and the pages marked. If it depended upon judicial precedents, I think I
could produce as many as might be necessary. If I claimed this freedom, under any kind
of prescription, I could prove a good long possession in ourselves and those under whom
we claim it. I might begin with Tacitus, and show how the contest arose in the forests of
Germany more than two thousand years ago; how the rough virtues and sound common
sense of that people established the right of trial by jury, and thus started on a career
which has made their posterity the foremost race that ever lived in all the tide of time.
The Saxons carried it to England, and were ever ready to defend it with their blood. It
was crushed out by the Danish invasion; and all that they suffered of tyranny and
oppression, during the period of their subjugation, resulted from the want of trial by jury.
If that had been conceded to them, the reaction would not have taken place which drove
back the Danes to their frozen homes in the North. But those ruffian seakings could not
understand that, and the reaction came. Alfred, the greatest of revolutionary heroes and
the wisest monarch that ever sat on a throne, made the first use of his power, after the
Saxons restored it, to re-establish their ancient laws. He had promised them that he
would, and he was true to them because they had been true to him. But it was not easily
done; the courts were opposed to it, for it limited their power — a kind of power that
everybody covets — the power to punish without regard to law. He was obliged to hang
forty-four judges in one year for refusing to give his subjects a trial by jury. When the
historian says that he hung them, it is not meant that he put them to death without a trial.
He had them impeached before the grand council of the nation, the Wittenagemote, the
Parliament of that time. During the subsequent period of Saxon domination, no man on
English soil was powerful enough to refuse a legal trial to the meanest peasant. If any
minister or any king, in war or in peace, had dared to punish a freeman by a tribunal of
his own appointment, he would have roused the wrath of the whole population; all
orders  of society would have resisted it; lord and vassal, knight and squire, priest and
penitent, bocman and socman, master and thrall, copyholder and villein, would have risen
in one mass and burnt the offender to death in his castle, or followed him in his flight and
torn him to atoms. It was again trampled down by the Norman conquerors; but the evils
resulting from the want of it united all classes in the effort which compelled King John to
restore it by the Great Charter. Everybody is familiar with the struggles which the
English people, during many generations, made for their rights with the Plantagenets, the
Tudors, and the Stuarts, and which ended finally in the Revolution of 1688, when the
liberties of England were placed upon an impregnable basis by the Bill of Rights.

Many times the attempt was made to stretch the royal authority far enough to justify
military trials; but it never had more than temporary success. Five hundred years ago
Edward II closed up a great rebellion by taking the life of its leader, the Earl of Lancaster,
after trying him before a military court. Eight years later that same king, together with his
lords and commons in Parliament assembled, acknowledged with shame and sorrow that
the execution of Lancaster was a mere murder, because the courts were open, and he
might have had a legal trial. Queen Elizabeth, for sundry reasons affecting the safety of
the state, ordered that certain offenders not of her army should be tried according to the
law martial. But she heard the storm of popular vengeance rising, and, haughty,
imperious, self-willed as she was, she yielded the point; for she knew that upon that
subject the English people would never consent to be trifled with. Strafford, as Lord
Lieutenant of Ireland, tried the Viscount Stormont before a military commission, and
executed him. When impeached, he pleaded in vain that Ireland was in a state of
insurrection, that Stormont was a traitor, and the army would be undone if it could not
defend itself without appealing to the civil courts. The Parliament was deaf; the king
himself could not save him; he was condemned to suffer death as a traitor and a
murderer. Charles I  issued commissions to divers officers for the trial of his enemies
according to the course of military law. If rebellion ever was an excuse for such an act, he
could surely have pleaded it; for there was scarcely a spot in his kingdom, from sea to
sea, where the royal authority was not disputed by somebody. Yet the Parliament
demanded, in their petition of right, and the king was obliged to concede, that all his
commissions were illegal. James II claimed the right to suspend the operation of the
penal laws — a power which the courts denied — but the experience of his predecessors
taught him that he could not suspend any man's right to a trial. He could easily have
convicted the seven bishops of any offence he saw fit to charge them with, if he could
have selected their judges from among the mercenary creatures to whom he had given
commands in his army. But this he dared not do. He was obliged to send the bishops to a
jury, and endure the mortification of seeing them acquitted. He, too, might have had
rebellion for an excuse, if rebellion be an excuse. The conspiracy was already ripe which,
a few months afterwards, made him an exile and an outcast; he had reason to believe that
the Prince of Orange was making his preparations, on the other side of the Channel, to
invade the kingdom, where thousands burned to join him; nay, he pronounced the bishops
guilty of rebellion by the very act for which he arrested them. He had raised an army to
meet the rebellion, and he was on Hounslow Heath reviewing the troops organized for
that purpose, when he heard the great shout of joy that went up from Westminster Hall,
was echoed back from Temple Bar, spread down the city and over the Thames, and rose
from every vessel on the river — the simultaneous shout of two hundred thousand men
for the triumph of justice and law.
The truth is, that no authority exists anywhere in the world for the doctrine of the
Attorney-General. No judge or jurist, no statesman or parliamentary orator, on this or the
other side of the water, sustains him. Every elementary writer is against him. All military
authors who profess to know the duties of their profession admit themselves to be
under,  not above the laws. No book can be found in any library to justify the assertion
that military tribunals may try a citizen at a place where the courts are open. When I say
no book, I mean, of course, no book of acknowledged authority. I do not deny that
hireling clergymen have often been found to dishonor the pulpit by trying to prove the
divine right of kings and other rulers to govern as they please. Court sycophants and party
hacks have many times written pamphlets, and perhaps large volumes, to show that those
whom they serve should be allowed to work out their bloody will upon the people. No
abuse of power is too flagrant to find its defenders.

But this case does not depend on authority. It is rather a question of fact than of law.

I prove my right to a trial by jury just as I would prove my title to an estate, if I held in
my hand a solemn deed conveying it to me, coupled with undeniable evidence of long
and undisturbed possession under and according to the deed. There is the charter by
which we claim to hold it. It is called the Constitution of the United States. It is signed
with the sacred name of George Washington, and with thirty-nine other names, only less
illustrious than his. They represented every independent State then upon this continent,
and each State afterwards ratified their work by a separate convention of its own people.
Every State that subsequently came in acknowledged that this was the great standard by
which their rights were to be measured. Every man that has ever held office in the
country, from that time to this, has taken an oath that he would support and sustain it
through good report and through evil. The Attorney-General himself became a party to
the instrument when he laid his hand upon the holy gospels, and swore that he would give
to me and every other citizen the full benefit of all it contains.

What does it contain? This among other things:

"The trial of all crimes except in cases of impeachment shall be by jury." 

Again:

"No person shall be held to answer for a capital or otherwise infamous crime unless on a
presentment or indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia when in actual service in time of war or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb, nor
be compelled, in any criminal case, to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law; nor shall private property be taken
for public use without just compensation."

This is not all; another article declares that,

"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 the witnesses in his favor; and to have the assistance of
counsel for his defence."

Is there any ambiguity there? If that does not signify that a jury trial shall be the exclusive
and only means of ascertaining guilt in criminal cases, then I demand to know what
words, or what collocation of words in the English language would have that effect?
Does this mean that a fair, open, speedy, public trial by an impartial jury shall be given
only to those persons against whom no special grudge is felt by the Attorney-General, or
the judge-advocate, or the head of a department? Shall this inestimable privilege be
extended only to men whom the administration does not care to convict? Is it confined to
vulgar criminals, who commit ordinary crimes against society, and shall it be denied to
men who are accused of such offences as those for which Sydney and Russell were
beheaded, and Alice Lisle was hung, and Elizabeth Gaunt was burnt alive, and John
Bunyan was imprisoned fourteen years, and Baxter was whipped at the cart's tail, and
Prynn had his ears cut off?  No; the words of the Constitution are all-embracing, "as
broad and general as the casing air." The trial of ALL crimes shall be by jury. ALL
persons accused shall enjoy that privilege — and NO person shall be held to answer in
any other way.

That would be sufficient without more. But there is another consideration which gives it
tenfold power. It is a universal rule of construction, that general words in any instrument,
though they may be weakened by enumeration, are always strengthened by exceptions.
Here is no attempt to enumerate the particular cases in which men charged with criminal
offences shall be entitled to a jury trial. It is simply declared that all shall have it. But that
is coupled with a statement of two specific exceptions: cases of impeachment; and cases
arising in the land or naval forces. These exceptions strengthen the application of the
general rule to all other cases. Where the lawgiver himself has declared when and in what
circumstances you may depart from the general rule, you shall not presume to leave that
onward path for other reasons, and make different exceptions. To exceptions the maxim
is always applicable, that expressio unius exclusio est alterius.

But we shall be answered that the judgment under consideration was pronounced in time
of war, and it is, therefore, at least, morally excusable. There may, or there may not, be
something in that. I admit that the merits or demerits of any particular act, whether it
involve a violation of the Constitution or not, depend upon the motives that prompted it,
the time, the occasion, and all the attending circumstances. When the people of this
country come to decide upon the acts of their rulers, they will take all these things into
consideration. But that presents the political aspect of the case, with which we have
nothing to do here. I would only say, in order to prevent misapprehension, that I think it
is precisely in a time of war and civil commotion that we should double the guards upon
the Constitution. In peaceable and quiet times, our legal rights are in little danger of being
overborne; but when the wave of power  lashes itself into violence and rage, and goes
surging up against the barriers which were made to confine it, then we need the whole
strength of an unbroken Constitution to save us from destruction.

There has been and will be another quasi political argument, — necessity. If the law was
violated because it could not be obeyed, that might be an excuse. But no absolute
compulsion is pretended here. These commissioners acted, at most, under what they
regarded as a moral necessity. The choice was left them to obey the law or disobey it.
The disobedience was only necessary as means to an end which they thought desirable;
and now they assert that though these means are unlawful and wrong, they are made
right, because without them the object could not be accomplished; in other words, the end
justifies the means. There you have a rule of conduct denounced by all law, human and
divine, as being pernicious in policy and false in morals.

Nothing that the worst men ever propounded has produced so much oppression,
misgovernment, and suffering, as this pretence of state necessity. A great authority calls it
the tyrant's plea; and the common honesty of all mankind has branded it with infamy.

Of course, it is mere absurdity to say that the petitioner was necessarily deprived of his

right to a fair and legal trial. But concede for the argument's sake that a trial by jury was
wholly impossible; admit that there was an absolute, overwhelming, imperious necessity
operating so as literally to compel every act which the commissioners did, would that
give their sentence of death the validity and force of a legal judgment pronounced by an
ordained and established court? The question answers itself. This trial was a violation of
law, and no necessity could be more than a mere excuse for those who committed it. If
the commissioners were on trial for murder or conspiracy to murder, they might plead
necessity if the fact were true, just as they would plead insanity or anything else to show
that their guilt was not wilful. But we are now considering the legal effect of their
decision, and that depends on their legal authority  to make it. They had no such
authority; they usurped a jurisdiction which the law not only did not give them, but
expressly forbade them to exercise, and it follows that their act is void, whatever may
have been the real or supposed excuse for it.

If these commissioners, instead of aiming at the life and liberty of the petitioner, had
attempted to deprive him of his property by a sentence of confiscation, would any court
in Christendom declare that such a sentence divested the title? Or would a person
claiming under the sentence make his right any better by showing that the illegal
assumption of jurisdiction was accompanied by some excuse which might save the
commissioners from a criminal prosecution?

That a necessity for violating the law is nothing more than a mere excuse to the
perpetrator, and does not in any legal sense change the quality of the act itself in its
operation upon other parties, is a proposition too plain on original principles to need the
aid of authority. I do not see how any man is to stand up and dispute it. But there is
decisive authority upon the point.
See Johnson v. Duncan, in the Supreme Court of Louisiana,
already referred to by General Garfield, supra, p. 52; the case
of General Jackson's fine.
The counsel on the other side will not assert that there was war at Indianapolis in 1864,
for they have read Coke's Institute, and the opinion of Mr. Justice Grier, in the Prize
Cases, and they know it to be a settled rule that war cannot be said to exist where the civil
courts are open. They will not set up the plea of necessity, for they are well aware that it
would not be true in point of fact. They will hardly take the ground that any kind of
necessity could give legal validity to that which the law forbids.

This, therefore, must be their position: that although there was no war at the place where
this commission sat, and no actual necessity for it, yet if there was a war anywhere else,
to which the United States were a party, the technical effect of such war was to take the
jurisdiction away from the civil courts and transfer it to army officers. Nothing  else is
left them. They may not state their proposition precisely as I state it; that is too plain a
way of putting it. But, in substance, it is their doctrine. What else can they say? They will
admit that the Constitution is not altogether without a meaning; that at a time of universal
peace it imposes some kind of obligation upon those who swear to support it. If no war
existed they would not deny the exclusive jurisdiction of the civil courts in criminal
cases. How then did the military get jurisdiction in Indiana?

They must answer the question by saying that military jurisdiction comes from the mere
existence of war; and it comes in Indiana only as the legal result of a war which is going
on in Mississippi, Tennessee, or South Carolina. The Constitution is repealed, or its
operation suspended in one state because there is war in another. The courts are open, the
organization of society is intact, the judges are on the bench, and their process is not
impeded; but their jurisdiction is gone. Why? For no reason, if not because war exists,
and the silent, legal, technical operation of that fact is to deprive all American citizens of
their right to a fair trial.

That class of jurists and statesmen who hold that the trial by jury is lost to the citizen
during the existence of war, must carry out their doctrine theoretically and practically to
its ultimate consequences. The right of trial by jury being gone, all other rights are gone
with it; therefore a man may be arrested without an accusation and kept in prison during
the pleasure of his captors; his papers may be searched without a warrant; his property
may be confiscated behind his back, and he has no earthly means of redress. Nay, an
attempt to get a just remedy is construed as a new crime. He dare not even complain, for
the right of free speech is gone with the rest of his rights. If you sanction that doctrine,
what is to be the consequence? I do not speak of what is past and gone; but in case of a
future war what results will follow from your decision indorsing the Attorney-General's
views? They are very obvious. At the instant when the war begins, our whole system of
legal government will tumble  into ruin, and if we are left in the enjoyment of any
privileges at all we will owe it not to the Constitution and laws, but to the mercy or policy
of those persons who may then happen to control the organized physical force of the
country.

This puts us in a most precarious condition; we must have war often, do what we may to
avoid it. The President or the Congress can provoke it, and they can keep it going even
after the actual conflict of arms is over. They could make war a chronic condition of the
country, and the slavery of the people perpetual. Nay, we are at the mercy of any foreign
potentate who may envy us the possession of those liberties which we boast of so much;
he can shatter our Constitution without striking a single blow or bringing a gun to bear
upon us. A simple declaration of hostilities is more terrible to us than an army with
banners.

To me the argument set up by the other side seems a delusion simply. In a time of war,
more than at any other time, Public Liberty is in the hands of the public officers. And she
is there in double trust; first, as they are citizens, and therefore bound to defend her, by
the common obligation of all citizens; and next, as they are her special guardians. The
opposing argument, when turned into its true sense, means this, and this only: that when
the Constitution is attacked upon one side, its official guardians may assail it upon the
other; when rebellion strikes it in the face, they may take advantage of the blindness
produced by the blow, to stab it in the back.

The Convention when it framed the Constitution, and the people when they adopted it,
could have had no thought like that. If they had supposed that it would operate only while
perfect peace continued, they certainly would have given us some other rule to go by in
time of war; they would not have left us to wander about in a wilderness of anarchy,
without a lamp to our feet, or a guide to our path. Another thing proves their actual intent
still more strikingly. They required that every man in any kind of public employment,
state or national, civil or military, should swear, without  reserve or qualification, that he
would support the Constitution. Surely our ancestors had too much regard for the moral
and religious welfare of their posterity, to impose upon them an oath like that, if they
intended and expected it to be broken half the time.

These statesmen who settled our institutions, had no such notions in their minds.
Washington deserved the lofty praise bestowed upon him by the president of Congress
when he resigned his commission, — that he had always regarded the rights of the civil
authority through all changes and through all disasters. When his duty as President
afterwards required him to arm the public force to suppress a rebellion in Western
Pennsylvania, he never thought that the Constitution was abolished, by virtue of that fact,
in New Jersey, or Maryland, or Virginia.

Opposite counsel must be conscious that when they deny the binding obligation of the
Constitution they must put some other system of law in its place. They do so; and argue
that, while the Constitution, and the acts of Congress, and Magna Charta, and the
common law, and all the rules of natural justice remain under foot, they will try
American citizens according to what they call the laws of war.
But what do they mean by this? Do they mean that code of public law which defines the
duties of two belligerent parties to one another, and regulates the intercourse of neutrals
with both? If yes, then it is simply a recurrence to the law of nations, which has nothing
to do with the subject. Do they mean that portion of our municipal code which defines
our duties to the government in war as well as in peace? Then they are speaking of the
Constitution and laws, which declare in plain words that the government owes every
citizen a fair legal trial, as much as the citizen owes obedience to the government. When
they appeal to international law, it is silent; and when they interrogate the law of the land,
the answer is a contradiction of their whole theory.

The Attorney-General conceives that all persons whom he and his associates choose to
denounce for giving aid to the Rebellion, are to be treated as being themselves a part
of  the Rebellion, — they are public enemies, and therefore they may be punished
without being found guilty by a competent court or a jury. This convenient rule would
outlaw every citizen the moment he is charged with a political offence. But political
offenders are precisely the class of persons who most need the protection of a court and
jury, for the prosecutions against them are most likely to be unfounded both in fact and in
law. Whether innocent or guilty, to accuse is to convict them before the men who
generally sit in military courts. But this court decided in the Prize Cases that all who live
in the enemy's territory are public enemies, without regard to their personal sentiments or
conduct; and the converse of the proposition is equally true, — that all who reside inside
of our own territory are to be treated as under the protection of the law. If they help the
enemy they are criminals, but they cannot be punished without legal conviction.

You have heard much, and you will hear more, concerning the natural and inherent right
of the government to defend itself without regard to law. This is fallacious. In a
despotism the autocrat is unrestricted in the means he may use for the defence of his
authority against the opposition of his own subjects or others; and that is what makes him
a despot. But in a limited monarchy the prince must confine himself to a legal defence of
his government. If he goes beyond that, and commits aggressions on the rights of the
people, he breaks the social compact, releases his subjects from all their obligations to
him, renders himself liable to be dragged to the block or driven into exile. A violation of
law on pretence of saving such a government as ours is not self-preservation, but suicide.

Salus populi suprema lex. This is true; but it is the safety of the people, not the safety of
the ruler, which is the supreme law. The maxim is revolutionary and expresses simply the
right to resist tyranny without regard to prescribed forms. It can never be used to stretch
the powers of government against the people.

But this government of ours has power to defend itself  without violating its own laws; it
does not carry the seeds of destruction in its own bosom. It is clothed from head to foot in
a panoply of defensive armor. What are the perils which may threaten its existence? I am
not able at this moment to think of more than these, which I am about to mention: foreign
invasion, domestic insurrection, mutiny in the army and navy, corruption in the civil
administration, and last, but not least, criminal violations of its laws committed by
individuals among the body of the people. Have we not a legal mode of defence against
all these? Military force repels invasion and suppresses insurrection; you preserve
discipline in the army and navy by means of courts-martial; you preserve the purity of the
civil administration by impeaching dishonest magistrates; and crimes are prevented and
punished by the regular judicial authorities. You are not compelled to use these weapons
against your enemies, merely because they and they only are justified by the law; you
ought to use them because they are more efficient than any other, and less liable to be
abused.

There is another view of the subject which settles all controversy about it. No human
being in this country can exercise any kind of public authority which is not conferred by
law; and under the United States it must be given by the express words of a written
statute. Whatever is not so given is withheld, and the exercise of it is positively
prohibited. Courts-martial in the army and navy are authorized; they are legal institutions;
their jurisdiction is limited, and their whole code of procedure is regulated by act of
Congress. Upon the civil courts all the jurisdiction they have or can have is bestowed by
law, and if one of them goes beyond what is written its action is ultra vires and void. But
a military commission is not a court-martial, and it is not a civil court. It is not governed
by the law which is made for either, and it has no law of its own. Its terrible authority is
undefined, and its exercise is without any legal control. Undelegated power is always
unlimited. The field that lies outside of the Constitution and laws has no boundary. So
these commissions have no legal origin and no  legal name by which they are known
among the children of men; no law applies to them; and they exercise all power for the
paradoxical reason that none belongs to them rightfully.

How is a military commission organized? What shall be the number and rank of its
members? What offences come within its jurisdiction? What is its code of procedure?
How shall witnesses be compelled to attend it? Is it perjury for a witness to swear falsely?
What is the function of the judge-advocate? Does he tell the members how they must
find, or does he only persuade them to convict? Is he the agent of the government, to
command them what evidence they shall admit and what sentence they shall pronounce;
or does he always carry his point, right or wrong, by the mere force of eloquence and
ingenuity? What is the nature of their punishments? May they confiscate property and
levy fines as well as imprison and kill? In addition to strangling their victim, may they
also deny him the last consolations of religion, and refuse his family the melancholy
privilege of giving him a decent grave?

To none of these questions can the Attorney-General or any one make a reply, for there is
no law on the subject.

The power exercised through these military commissions is not only unregulated by law
but it is incapable of being so regulated. It asserts the right of the executive government,
without the intervention of the judiciary, to capture, imprison, and kill any person to
whom that government or its paid dependents may choose to impute an offence. This, in
its very essence, is despotic and lawless. It is never claimed or tolerated except by those
governments which deny the restraints of all law. It operates in different ways; the
instruments which it uses are not always the same; it hides its hideous features under
many disguises; it assumes every variety of form. But in all its mutations of outward
appearance it is still identical in principle, object, and origin. It is always the same great
engine of despotism which Hamilton described it to be.

We cannot help but see that military commissions, if  suffered to go on, will be used for
pernicious purposes. I have made no allusion to their history in the last five years. But
what can be the meaning of an effort to maintain them among us? Certainly not to punish
actual guilt. All the ends of true justice are attained by the prompt, speedy, impartial trial
which the courts are bound to give. Is there any danger that crime will be winked upon by
the judges? Does anybody pretend that courts and juries have less ability to decide upon
facts and law than the men who sit in military tribunals? What just purpose, then, can
they serve? None.

But while they are powerless to do good, they may become omnipotent to trample upon
innocence, to gag the truth, to silence patriotism, and crush the liberties of the country.
They would be organized to convict, and the conviction would follow the accusation as
surely as night follows the day. A government, of course, will accuse none before such a
commission except those whom it predetermines to destroy. The accuser can choose the
judges, and will select those who are known to be ignorant, unprincipled, and the most
ready to do whatever may please the power which gives them pay and promotion. The
willing witness could be found as easily as the superserviceable judge. The treacherous
spy and the base informer would stock such a market with abundant perjury; for the
authorities that employ them will be bound to protect as well as reward them. A corrupt
and tyrannical government, with such an engine at its command, would shock the world
with the enormity of its crimes.

ON THE SIDE OF THE UNITED STATES. REPLY.

Mr. Butler:

What are the exact facts set forth in the record, and what the exact question raised by it?

The facts of the case are all in the relator's petition and the exhibits thereto attached, and
must, for the purposes of this hearing, be taken to be indisputably true; at least as against
him. He is estopped to deny his own showing. Now, every specification upon which the
petitioner was tried  by the military commission concludes with this averment: "This, on
or about," c., — the different time and place as applied to the different parties — "at or
near Indianapolis, Indiana," or wherever else it may be, "a State within the military lines
of the army of the United States, and the theatre of military operations, and which had
been and was constantly threatened to be invaded by the enemy."

It may be said that these specifications are only the averments of the government against
the relator. But they, in fact, are a part of the exhibits of the relator, upon which he seeks
relief; are an integral part of the case presented by him, and cannot be controlled by the
pretence set up on the other side, that the court should take judicial notice of the contrary.
Judicial cognizance of a fact, by the court, as a matter of public notoriety, or of history, is
only a mode of proof of the fact; but no proof can be heard, in behalf of the relator, in
contradiction of the record.

Therefore, what we at the bar must discuss, and what the court must decide, is, what law
is applicable to a theatre of military operations, within the lines of an army, in a State
which has been and constantly is threatened with invasion.

Yet a large portion of the argument on the other side has proceeded on an assumption
which is itself a denial of the facts stated upon the record. The fact that military
operations were being carried on in Indiana, at the places where these occurrences are
said to have taken place, is a question that opposite counsel desire to argue, and desire
farther that the court should take judicial notice that the fact was not as stated by the
record.

Is the question, then, before this court, one of law or of fact? The matter becomes
exceedingly important. We do freely agree, that if at the time of these occurrences there
were no military operations in Indiana, if there was no army there, if there was no
necessity of armed forces there, if there was no need of a military commission there, if
there was nothing there on which the war power of the United States could attach itself,
then this commission had no jurisdiction to deal with the relator, and the question
proposed  may as well at once be answered in the negative. What, then, is the state of
facts brought here by the record? For, whatever question may have divided the learned
judges in the court below, we here at the bar are divided toto cœlo upon a vital question
of fact. If the facts are to be assumed as the record presents them, then much of the
argument of the other side has been misapplied.

The facts of record should have been questioned, if at all, in the court below. If the fact,
stated in the record, of war on the theatre of these events — which in our judgment is a
fact conclusive upon the jurisdiction of the military commission — is not admitted, then
it is of the greatest importance to the cause that it be ascertained. If that fact was
questioned below, some measures should have been taken to ascertain it, before the
certificate of division of opinion was sent up. Otherwise the Circuit Court, in defiance of
settled practice, and also of the act of 1802, has sent up a case in which material facts are
not stated, and there is no jurisdiction under the act to hear. Certainly we at the bar seem
to be arguing upon different cases; the one side on the assumption that the acts of
Milligan and his trial took place in the midst of a community whose social and legal
organization had never been disturbed by any war at all, the other on the assumption that
they took place in a theatre of military operations, within the lines of the army, in a State
which had been and then was threatened with invasion.

See remarks of Mr. Stanbery, supra, p. 12.

But the very form of question submitted, "whether upon the facts stated in the petition
and exhibits, the military commission had jurisdiction to try the several relators in
manner and form as set forth;" — not upon any other facts of which the court or anybody
else will take notice, or which can be brought to the court in any other way than upon the
petition and exhibits, — is conclusive as to the facts or case upon which the argument
arises. The question, we therefore repeat — and we pray the court to keep it always in
mind — is whether upon the facts stated in the petition and exhibit, the  commission had
jurisdiction; and the great and determining fact stated, and without which we have no
standing in court, is that these acts of Milligan and his felonious associates, took place in
the theatre of military operations, within the lines of the army, in a State which had been
and then was constantly threatened with invasion. Certainly the learned judges in the
court below, being on the ground, were bound to take notice of the facts which then
existed in Indiana, and if they were not as alleged in the petition and exhibits, ought to
have spread them as they truly were upon the record. Then they would have certified the
question to be, whether under that state of facts so known by them, and spread upon the
record, the military commission had jurisdiction, and not as they have certified, that the
question was whether they had jurisdiction on the state of facts set forth in the relator's
petition and exhibits.

The strength of the opposing argument is, that this court is bound to know that the courts
of justice in Indiana were open at the time when these occurrences are alleged to have
happened. Where is the proper allegation to this effect upon the record, upon which this
court is to judge? If the court takes judicial notice that the courts were open, must it not
also take judicial notice how, and by whose protection, and by whose permission they
were so open? that they were open because the strong arm of the military upheld them;
because by that power these Sons of Liberty and Knights of the American Circle, who
would have driven them away, were arrested, staid, and punished. If judicial notice is to
be taken of the one fact, judicial notice must be taken of the other also; — of the fact,
namely, that if the soldiers of the United States, by their arms, had not held the State from
intestine domestic foes within, and the attacks of traitors leagued with such without; had
not kept the ten thousand rebel prisoners of war confined in the neighborhood from being
released by these knights and men of the Order of the Sons of Liberty; there would have
been no courts in Indiana, no place in which the Circuit Judge of the United States could
sit in peace to administer the law. 

If, however, this court will take notice that justice could only be administered in Indiana
because of the immediate protection of the bayonet, and therefore by the permission of
the commander of her armed forces, to which the safety of the State, its citizens, courts,
and homes were committed, then the court will have taken notice of the precise state of
facts as to the existence of warlike operations in Indiana, which is spread upon the record,
and we are content with the necessary inferences.

As respects precedents. I admit that there is a dearth of precedents bearing on the exact
point raised here. Why is this? It is because the facts are unprecedented; because the war
out of which they grew is unprecedented also; because the clemency that did not at once
strike down armed traitors, who in peaceful communities were seeking to overturn all
authority, is equally unprecedented; because the necessity which called forth this exertion
of the reserved powers of the government is unprecedented, as well as all the rest. Let
opposing counsel show the instance in an enlightened age, in a civilized and Christian
country, where almost one-half its citizens undertook, without cause, to overthrow the
government, and where coward sympathizers, not daring to join them, plotted in the
security given by the protecting arms of the other half to aid such rebellion and treason,
and we will perhaps show a precedent for hanging such traitors by military commissions.

This is the value of this case: whenever we are thrown into a war again; whenever,
hereafter, we have to defend the life of the nation from dangers which invade it, we shall
have set precedents how a nation may preserve itself from self-destruction. In the conduct
of the war, and in dealing with the troubles which preceded it, we have been obliged to
learn up to these questions; to approach the result step by step.

Opposite counsel (Mr. Black) has admitted that there were dangers which might threaten
the life of the nation, and in that case it would be the duty of the nation, and it  would be
its right, to defend itself. He classed those dangers thus: first, foreign invasion; second,
domestic insurrection; third, mutiny in the army and navy; fourth, corruption in civil
administration; and last, crimes committed by individuals; and he says further, there were
within the Constitution powers sufficient to enable the country to defend itself from each
and all these dangers. But there is yet another, a more perilous danger, one from which
this country came nearer ruin than it ever came by any or by all others. That danger is
imbecility of administration; such an administration as should say that there is no
constitutional right in a State to go out of the Union, but that there is no power in the
Constitution to coerce a State or her people, if she choose to go out. It is in getting rid of
that danger, unenumerated, that we have had to use military power, military orders,
martial law, and military commissions.

The same counsel was pleased to put certain questions, difficult as he thinks to be
answered, as to the method of proceeding before military commissions; but no suggestion
is made upon the record or upon the briefs, that all the proceedings were not regular
according to the custom and usages of war. They have all the indicia of regularity. There
being then nothing alleged why the proceedings are not regular, we are brought back to
the main question.

A portion of the argument on the other side has proceeded upon the mistake, that a
military commission is a court, either under, by virtue of, or without the Constitution. It
is not a court, and that question was decided not long ago. A military commission,
whatever it may be, derives its power and authority wholly from martial law, and by that
law, and by military authority only, are its proceedings to be adjudged and reviewed.
In Dynes v. Hoover, this was decided by this tribunal in regard to a court-martial. The
conclusion was sustained in Ex parte Vallandigham.

Page 89 20 Howard, 781.

Page 89 1 Wallace, 243.
The last quoted case is like the present. Vallandigham was tried by a military
commission, and he invoked the aid  of the court to get away from it. Why did not this
court then decide, as opposing counsel assert the law to be, that under no possible
circumstances can a military commission have any right, power, authority, or
jurisdiction? No such decision was made. It was decided that a military commission "is
not a court within the meaning of the 14th section of the act of 1789:" that this court has
no power to issue a writ of certiorari, or to review or pronounce any opinion upon the
proceedings of a military commission; that affirmative words in the Constitution, giving
this court original jurisdiction in certain cases must be construed negatively as to all
others. Mr. Justice Wayne, in delivering the opinion of the court, says:

In Ex parte Metzger  it was "determined that a writ of certiorari could not be allowed to
examine a commitment by a district judge, under the treaty between the United States and
France, for the reason that the judge exercised a special authority, and that no provision
had been made for the revision of his judgment. So does a court of military commission
exercise a special authority. In the case before us, it was urged that the decision in
Metzger's case had been made upon the ground that the proceeding of the district judge
was not judicial in its character, but that the proceedings of the military commission were
so; and further, it was said that the ruling in that case had been overruled by a majority of
the judges in Raine's case. There is a misapprehension of the report of the latter case, and
as to the judicial character of the proceedings of the military commission, we cite what
was said by this court in the case of The United States v. Ferreira.

Page 90 5 Howard, 176.

Page 90 13 Id. 48.
"The powers conferred by Congress upon the district judge and the secretary are judicial
in their nature, for judgment and discretion must be exercised by both of them; but it is
not judicial in either case, in the sense in which judicial power is granted to the courts of
the United States. Nor can it be said that the authority to be exercised by a military
commission is judicial in that sense. It involves discretion to examine, to decide, and
sentence, but there is no original jurisdiction in the Supreme  Court to issue a writ
of habeas corpus ad subjiciendum, to review or reverse its proceedings, or the writ of
certiorari to revise the proceedings of a military commission."

Under such language there is an end of this case.

We have already stated that military commissions obtain their jurisdiction from martial
law. What, then, is martial law? We have also already defined it. But our definition has
not been observed. Counsel treat it as if we would set up the absolutely unregulated,
arbitrary, and unjust caprice of a commanding and despotic officer. Let us restate and
analyze it. "Martial law is the will of the commanding officer of an armed force or of a
geographical military department, expressed in time of war, within the limits of his
military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged
by the orders of his military or supreme executive chief." This definition is substantially
taken from the despatches of the Duke of Wellington. When he was called upon to
answer a complaint in Parliament for this exercise of military jurisdiction and martial law
in Spain, he thus defined it. On another occasion, when speaking of Viscount
Torrington's administration as military governor of Ceylon, he said thus:

Supra, p. 14.
Hansard's Parliamentary Debates, 3d Series, vol. 14, p. 879;
and see, also, Opinions of the Attorneys-General, vol. 8, p.
366.
"The general who declared martial law, and commanded that it should be carried into
execution, was bound to lay down distinctly the rules, and regulations,
and limits according to which his will was to be carried out. Now he had, in another
country, carried on martial law; that was to say, he had governed a large proportion of the
population of a country, by his own will. But, then, what did he do? He declared that the
country should be governed according to its own national laws, and he carried into
execution that will. He governed the country strictly by the laws of the country; and he
governed it with such moderation, he must say, that political servants and judges, who at
first had fled or had been expelled, afterwards consented to act under his  direction. The
judges sat in the courts of law, conducting their judicial business and administering the
law under his direction." It is the will of the commanding officer. Being to be exercised
upon the instant, it can have no other source. The commanding officer of an armed force,
is another element of the definition.

Martial law must have another distinguishing quality. It must be the will of the
commander, exercised under the limitations mentioned in time of war, and that is a
portion of the definition which is fatal to the authorities read by my brother Garfield, as I
shall show.

When is it to be exercised? "When necessity demands and prudence dictates." That is to

say, in carrying on war, when in the judgment of him to whom the country has intrusted
its welfare — whose single word, as commander of the army, can devote to death
thousands of its bravest and best sons — we give to him, when necessity demands, the
discretion to govern, outside of the ordinary forms and constitutional limits of law, the
wicked and disloyal within the military lines.

In time of war, to save the country's life, you send forth your brothers, your sons, and put
them under the command, under the arbitrary will of a general to dispose of their persons
and lives as he pleases; but if, for the same purpose, he touches a Milligan, a Son of
Liberty, the Constitution is invoked in his behalf — and we are told that the fabric of civil
government is about to fall! We submit that if he is intrusted with the power, the will, the
authority to act in the one case, he ought to have sufficient discretion to deal with the
other; and that the country will not be so much endangered from the use of both, as it
would be if he used the first and not the last.
Martial law is known to our laws; it is constitutional, and was derived from our mother
country. De Lolme says:

De Lolme, Stephens' ed. of 1838, p. 972.

"In general, it may be laid down as a maxim, that, where the sovereign looks to his army
for the security of his person and  authority, the same military laws by which this army is
kept together, must be extended over the whole nation; not in regard to military duties
and exercises, but certainly in regard to all that relates to the respect due to the sovereign
and to his orders."

"The martial law, concerning these tender points, must be universal. The jealous
regulations, concerning mutiny and contempt of orders, cannot be severely enforced on
that part of the nation which secures the subjection of the rest, and enforced, too, through
the whole scale of military subordination, from the soldier to the officer, up to the very
head of the military system, while the more numerous and inferior part of the people are
left to enjoy an unrestrained freedom; — that secret disposition which prompts mankind
to resist and counteract their superiors, cannot be surrounded by such formidable checks
on one side, and be left to be indulged to a degree of licentiousness and wantonness on
the other."

Passing from one of the most learned commentators upon England's Constitution, to one
who may be said to have lived our Constitution; who came into life almost as the
Constitution came into life; whose father was the second chief executive officer of the
nation; conversant with public affairs and executing constitutional law in every
department of the government from earliest youth, wielding himself chief executive
power, and admitted to be one of the ablest constitutional lawyers of his time — what
principles do we find asserted?

Mr. John Quincy Adams, speaking of the effect of war upon the municipal institutions of
a country, said:

Page 93 A.D. 1842. Records and Speeches, p. 84.

"Slavery was abolished in Columbia, first, by the Spanish General Morillo, and,
secondly, by the American General Bolivar. It was abolished by virtue of a military
command given at the head of the army, and the abolition continues to be law to this day.
It was abolished by the laws of war, and not by municipal enactments; the power was
exercised by military commanders, under instructions, of course, from their
respective  governments. And here I recur again to the examples of General Jackson.
What are you now about in Congress? You are about passing a grant to refund to General
Jackson the amount of a certain fine imposed upon him by a judge, under the laws of the
State of Louisiana. You are going to refund him the money, with interest; and this you are
going to do because the imposition of the fine was unjust. Because General Jackson was
acting under the laws of war, and because the moment you place a military
commander in a district which is the theatre of war, the laws of war apply to that
district."

. . . . "I might furnish a thousand proofs to show that the pretensions of gentlemen to the
sanctity of their municipal institutions under a state of actual invasion and of actual war,
whether servile, civil, or foreign, is wholly unfounded, and that the laws of war do, in all
such cases, take the precedence."

"I lay this down as the law of nations. I say that the military authority takes for the time
the place of all municipal institutions, and slavery among the rest; and that, under that
state of things, so far from its being true that the States where slavery exists have the
exclusive management of the subject, not only the President of the United States, but the
commander of the army has power to order the universal emancipation of the slaves. I
have given here more in detail a principle, which I have asserted on this floor before now,
and of which I have no more doubt, than that you, sir, occupy that chair. I give it in its
development, in order that any gentleman, from any part of the Union, may, if he thinks
proper, deny the truth of the position, and may maintain his denial; not by indignation,
not by passion and fury, but by sound and sober reasoning from the laws of nations and
laws of war. And if my position can be answered and refuted, I shall receive the
refutation with pleasure; I shall be glad to listen to reason, aside, as I say, from
indignation and passion. And if, by force of reasoning, my understanding can be
convinced, I here pledge myself to recant what I have asserted."

The case of General Jackson's fine was the test case of martial law in this country. What
were the facts? On the 15th of December, 1814, General Jackson declared martial law
within his camp, extending four miles above and four  miles below the city. The press
murmured, but did not speak out until after there came unofficial news of peace. Then it
was said that the declaration of peace, ipso facto, dissolved martial law; that the General
had no right to maintain martial law any longer; and murmurs loudly increased. But, the
General said, that he had not received any official news of the establishment of peace;
and, until it came officially, he should not cease his military operations for safety of the
city. Thereupon what happened? One Louallier was arrested by the military, for alleged
seditious language, and Judge Hall interposed with his writ of habeas corpus. This was
on the 5th of March, 1815. The battle of New Orleans, which substantially removed all
danger, was fought on the 8th of January. General Jackson sent his aide-de-camp and
arrested Judge Hall. The cry then as now was that the necessity for martial law had
ceased; why hold Judge Hall, after the news of peace had come? Why not turn him over
to the civil authorities? What next took place? Peace was declared in an official manner;
the proclamation of martial law was withdrawn; Judge Hall took his seat on the bench,
and his first act was to issue an attachment of contempt for General Jackson, who was
accordingly brought before him. When General Jackson offered an explanation of his
conduct, the Judge refused to receive it, and fined him $1000. The fine was paid in
submission to the law. Years afterwards, Congress proceeded not to excuse, not to
explain away that act of General Jackson, declaring martial law, but to justify it. I am
surprised to hear it said that nobody justified General Jackson. Whether General Jackson
was to be excused or to be justified was the whole question at issue between the parties in
Congress. A bill was brought in "to indemnify Major-General Andrew Jackson for
damages sustained in the discharge of his official duty." Some who were in the Senate of
that day, said: "We will not justify, we will excuse, this action in General Jackson; we
move, therefore, to change the title of the bill into a `bill for the relief of General
Jackson.'" But Mr. R.J. Walker, speaking for General Jackson, made a minority report,
in  which he put the whole question upon the ground of justification.

Benton's Condensed Debates, vol. 14, p. 641.

He said:

"That General Jackson, and those united with him in the defence of New Orleans, fully
believed this emergency to exist, is beyond all doubt or controversy. If, then, this was the
state of the case, it was the duty of General Jackson to have made the arrest; and the act
was not merely excusable but justifiable. It was demanded by a great and overruling
necessity. . . . . This great law of necessity — of defence of self, of home, and of country
— never was designed to be abrogated by any statute, or by any constitution. This was
the law which justified the arrest and detention of the prisoner; and, however the act may
now be assailed, it has long since received the cordial approbation of the American
people. That General Jackson never desired to elevate the military above the civil
authority is proved by his conduct during the trial, and after the imposition of this fine."

"The title of the bill is in strict conformity with the facts of the case, and, in the opinion
of the undersigned, should be retained. The country demands that his money shall be
returned as an act of justice. It was a penalty incurred for saving the country, and the
country requires that it shall be restored."

The fine was returned with interest.

The case of Johnson v. Duncan, in the Supreme Court of Louisiana, and cited on the
other side, was decided by judges sitting under the excitement of the collision between
the military and the judges. As an authority it is of no value. The case
of Luther v. Borden, in which Mr. Justice Woodbury's dissenting opinion, strange to say,
has been cited by my brother Garfield against the opinion of the court, decides that
martial law did obtain in Rhode Island, and sustains General Jackson.

The court say:

"If the government of Rhode Island deemed the armed opposition  so formidable, and so
ramified throughout the State, as to require the use of its military force and the
declaration of martial law, we see no ground upon which this court can question its
authority. It was a state of war; and the established government resorted to the rights and
usages of war to maintain itself, and to overcome the unlawful opposition. And in that
state of things the officers engaged in its military service might lawfully arrest any one,
who from the information before them, they had reasonable grounds to believe was
engaged in the insurrection, and might order a house to be forcibly entered and searched,
when there were reasonable grounds for supposing he might be there concealed."

We have put in our definition of martial law the words, "in time of war," tempore belli.
That portion of the definition answers every question, as to when this law may obtain.

Now what was the Earl of Lancaster's case, quoted and so much relied on by the other
side? The earl raised a rebellion; and was condemned and executed by sentence of a
court-martial, after the rebellion had been subdued. Thereupon his brother brought a writ
of error, by leave of the king, before the king himself in Parliament, for the purpose of
reversing the judgment and obtaining his lands, and among the errors assigned, was this:

"Yet the said Earl Thomas, c., was taken in time of peace, and brought before the king
himself; and the said our lord and father the king, c., remembered that the same Thomas
was guilty of the seditions and other felonies in the aforesaid contained; without this, that
he arraigned him therefor, or put him to answer as is the custom according to the law, c.,
and thus, without arraignment and answer, the same Thomas, of error and contrary to the
law of the land, was in time of peace adjudged to death, notwithstanding that it is
notorious and manifest that the whole time in which the said misdeeds and crimes
contained in the said record and proceedings were charged against the said earl, and also
the time in which he was taken, and in which our said lord and father the king
remembered him to be guilty, c., and in which he was adjudged to death, was a time of
peace, and the more especially as throughout the whole time, aforesaid,  the Chancery
and other courts of pleas of our lord the king were open, and in which right was done to
every man, as it used to be; nor did the same lord the king in that time ever side with
standard unfurled; the said lord and father the king, c., in such time of peace ought not
against the same earl, thus to have remembered nor to have adjudged him to death,
without arraignment and answer."

So that the whole record turned upon the question whether the rebellion being ended,
peace having come, the Earl of Lancaster was liable to be adjudged by military
commission in time of peace, and it was held that that was against common right.

The Petition of Right is referred to; but it was not, as is supposed, because of the ship-
money and the trial of Hampden and others, that this great petition was passed. It was
because King Charles had quartered in the town of Plymouth, and in the County of
Devon, certain soldiers in time of peace, upon the inhabitants thereof; and had issued his
commission that those counties should be governed by "martial law," while the soldiers,
in time of peace, were quartered there, and therefore came the Petition cited; and it was
adjudged that military commissions, issued in time of peace, should never have place in
the law of England; and all the people to that, even to this day, heartily agree.

Hale's Pleas of the Crown, 42.

Governor Wall's case shows truly that martial law did not protect him for his action under
it; but if there ever was a judicial murder, a case where a man, without cause and without
right, was put to death, this was the case. Lord Chief Justice Campbell, speaking of it,
says:

Lives of the Chief Justices; Life of Ellenborough.

"The prosecution brought great popularity to the Attorney-General and the government of
which he was the organ, upon the supposition that it presented a striking display of the
stern impartiality of British jurisprudence; but after a calm review of the evidence, I fear
it will rather be considered by posterity  as an instance of the triumph of vulgar prejudice
over humanity and justice."

Another case cited is that of the Rev. John Smith, of Demerara, who was tried and
convicted by a court-martial, for inciting negroes to mutiny in Demerara, six weeks after
a rebellion was wholly quelled, and when there seems to have been no necessity for such
proceedings, nor any reason that they should be carried on. The excuse of the governor
was, that the planters were so infuriated against Mr. Smith that he thought that trying him
by court-martial would secure him better justice. I agree that this was no excuse, that no
necessity here existed. Brougham and Mackintosh brought all their eloquence to overturn
martial law. Their words have been cited; but the other side forgot to state that upon a
division of the House of Commons, Brougham and Mackintosh were in a minority of
forty-six. So that after a deliberate argument of many days, the great final tribunal of
English justice decided that Mr. John Smith's case was rightly tried under martial law.
The case is an authority not for, but against, the side which it is cited to support.

It is said that in 1865, Congress refused to pass an act which would throw any discredit
on military commissions, or limit their action wherever a rebel or a traitor, secret or open,
was to be found upon whom their jurisdiction should operate. If such tribunals for certain
purposes were not lawful in the judgment of the House of Representatives; if military
commissions had no place in the laws of the land, why the necessity of action by
Congress to repeal them?

Reference has been made by opposing counsel to what they consider the views of
General Washington; and an argument has been attempted to be drawn from this. Now,
the first military commission upon this continent of which there is any record sat by
command of Washington himself. Its proceedings were published by order of Congress,
and are well known. I refer to André's case. That was not a "court-martial;" there was no
order to adjudicate; no finding;  no sentence; only a report of facts to General
Washington, and then Washington issued the order, in virtue of his authority as
commander-in-chief, which condemned André to death.

But we do not stop there. This may be said to have been the exceptional case of a spy. To
give, then, another illustration of what Washington thought of the rights of military
commanders in the field, attention may be directed to the trial of Joshua Hett Smith.
Smith was the man at whose house Arnold and Andre met. He was taken and tried by a
military court for treasonable practices. The civil courts were open at Tarrytown, at that
time; the British Constitution as adopted by our colonial fathers extended over him, but
still Washington tried Smith by a military court. In Chandler's Criminal Trials, Smith
gives an account of his interview, when he was first brought before Washington, which I
cite in order that the court may understand how the Father of his Country regarded the
extent of his powers as military commander. Smith says:

Vol. 2, p. 248.
"After as much time had elapsed as I supposed was thought necessary to give me rest
from my march, I was conducted into a room, where were standing General Washington
in the centre, and on each side General Knox and the Marquis de La Fayette, with
Washington's two aides-de-camp, Colonels Harrison and Hamilton. Provoked at the
usage I received, I addressed General Washington, and demanded to know for what cause
I was brought before him in so ignominious a manner? The General answered, sternly,
that I stood before him charged with the blackest treason against the citizens of the
United States; that he was authorized, from the evidence in his possession, and from the
authority vested in him by Congress, to hang me immediately as a traitor, and that
nothing could save me but a candid confession who in the army, or among the citizens at
large, were my accomplices in the horrid and nefarious designs I had meditated for the
last ten days past."

What now, may I ask, is to be thought of the argument  of my opposing brethren, who
assert that in civil courts the Constitution does not allow any pressure to be brought upon
a man to make him confess, at the same time that they eulogize the military conduct of
Washington?

But what redress, it is asked, shall any citizen have if this power — so great, so terrible,
and so quick in its effects — is abused? The same and only remedy that he can have
whenever power is abused. If that power, under martial law, is used for personal objects
of aggrandizement, or revenge; of imprisoning, one hour, any citizen, except when
necessity under fair judgment demands, he ought to have an appeal to the courts of the
country after peace, for redress of grievance.

It has been said that martial law, and its execution by trials by military commission, is
fatal to liberty and the pursuit of happiness; but we are only asking for the exercise of
military power, when necessity demands and prudence dictates. If the civil law fails to
preserve rights, and to insure safety and tranquillity to the country; if there is no
intervention of military power to right wrongs and punish crime, an outraged community
will improvise some tribunal for themselves, whose execution shall be as swift and whose
punishments shall be as terrible as any exhibition of military power; some tribunal wholly
unregulated and which is responsible to no one. We are not without such examples on
this continent.

The proclamation of 24th September, 1862, by which the President suspended the
privilege of the writ of habeas corpus, and which proclamation was in full force during
these proceedings, was within the power of the President, independently of the
subsequent act of Congress, to make. Brown v. The United States  seems full on this
point. It says:

See supra, pp. 15-16.

Page 101 8 Cranch, 153.
"When the legislative authority, to whom the right to declare war is confined, has
declared war in its most unlimited manner, the executive authority, to whom the
execution of the war is confided, is bound to carry it into effect. He has a
discretion  vested in him, as to the manner and extent, but he cannot lawfully transcend
the rules of warfare established among civilized nations. He cannot lawfully exercise
powers or authorize proceedings which the civilized world repudiates and disclaims. The
sovereignty, as to declaring war and limiting its effects, rests with the legislature. The
sovereignty as to its execution rests with the President."

However, the subsequent act of Congress did ratify what the President did; so that every
way the view taken of his powers in the case just quoted stands firm.

See supra, p. 4.
And the wisdom of this view appears nowhere more than in the present case. The court,
of course, can have no knowledge how extensive was this "Order of Sons of Liberty;"
how extensive was the organization of these American Knights in Indiana. It was a secret
Order. Its vast extent was not known generally. But the Executive might have known; and
if I might step out of the record, I could say that I am aware that he did know, that this
Order professed to have one hundred thousand men enrolled in it in the States of Indiana,
Ohio, and Illinois, so that no jury could be found to pass upon any case, and that any
court-house wherein it had been attempted to try any of the conspirators, would have
been destroyed. The President has judged that in this exigency a military tribunal alone
could safely act.

We have thus far grounded our case on the great law of nations and of war. Has the
Constitution any restraining clause on the power thus derived?

It is argued that the fourth, fifth, and sixth articles to the amendments to the Constitution
are limitations of the war-making power; that they were made for a state of war as well as
a state of peace, and aimed at the military authority as well as the civil. We have
anticipated and partially answered this argument. As we observed, by the Constitution, as
originally adopted, there was no limitation put upon  the war-making powers. It only
undertook to limit one incident of the war-making power, — the habeas corpus; and if
limit it can be called, observe the way in which that writ is guarded. It is provided that the
writ of habeas corpus, in time of peace, shall not be suspended; it shall only be suspended
when, "in case of rebellion or invasion, the public safety requires;" that is, in time of war.
It seems to have been taken for granted by the Constitution that the writ is to be
suspended in time of war because very different rules must then govern. The language of
the Constitution is, that it "shall not be suspended except," — showing that it was
supposed that the war-making power would find it necessary to suspend the habeas
corpus; and yet no other guard was thrown around it.

See supra, pp. 20-21.

By the subsequent amendments there was, as we conceive, but one limitation put upon
the war-making power, and that was in regard to the quartering of soldiers in private
houses.

In no discussion upon these articles of amendment was there, in any State of the Union, a
discussion upon the question, what should be their effect in time of war? Yet every one
knew, and must have known, that each article would be inoperative in some cases in time
of war. If in some cases, why not in all cases where necessity demands it, and where
prudence dictates?

There is, in truth, no other way of construing constitutional provisions, than by the
maxim, Singula singulis reddenda. Each provision of the Constitution must be taken to
refer to the proper time, as to peace or war, in which it operates, as well as to the proper
subject of its provisions.

For instance, the Constitution provides that "no person" shall be deprived of liberty
without due process of law. And yet, as we know, whole generations of people in this
land — as many as four millions of them at one time — people described in the
Constitution by this same word, "persons," have been till lately deprived of liberty ever
since the adoption of the Constitution, without any process of law whatever.

The Constitution provides, also, that no "person's" right to bear arms shall be infringed;
yet these same people,  described elsewhere in the Constitution as "persons," have been
deprived of their arms whenever they had them.

If you are going to stand on that letter of the Constitution which is set up by the opposite
side in the matter before us, how are we to explain such features in the Constitution, in
various provisions in which slaves are called persons, with nothing in the language used
to distinguish them from persons who were free.

Mr. Black has said, that the very time when a constitutional provision is wanted, is the
time of war, and that in time of war, of civil war especially, and the commotions just
before and just after it, the constitutional provisions should be most rigidly enforced. We
agree to that; but we assert that, in peace, when there is no commotion, the constitutional
provisions should be most rigidly enforced as well. Constitutional provisions, within their
application, should be always most rigidly enforced. We do not ask anything outside of or
beyond the Constitution. We insist only that the Constitution be interpreted so as to save
the nation, and not to let it perish.
We quote again the solemnly expressed opinion of Mr. Adams, in 1836, in another of his
speeches:

"In the authority given to Congress by the Constitution of the United States to declare
war, all the powers, incident to war, are by necessary implication conferred upon the
government of the United States. Now, the powers incidental to war are derived, not from
any internal, municipal source, but from the laws and usages of nations. There are, then,
in the authority of Congress and the Executive, two classes of powers, altogether
different in their nature, and often incompatible with each other, — the war power and
the peace power. The peace power is limited by regulation and restraints, by provisions
prescribed within the Constitution itself. The war power is limited only by the law and
usages of nations. The power is tremendous. It is strictly constitutional, but it breaks
down every barrier so anxiously erected for the protection of liberty, property, and life."

It is much insisted on, that the determining question as to the exercise of martial law, is
whether the civil courts  are in session; but civil courts were in session in this city during
the whole of the Rebellion, and yet this city has been nearly the whole time under the
martial law. There was martial law in this city, when, in 1864, the rebel chief, Jubal
Early, was assaulting it, and when, if this court had been sitting here, it would have been
disturbed by the enemy's cannon. Yet courts — ordinary courts — were in session. It
does not follow, because the ordinary police machinery is in motion for the repression
of ordinary crimes, because the rights between party and party are determined without
the active interference of the military in cases where their safety and rights are not
involved, that, therefore, martial law must have lost its power.

This exercise of civil power is, however, wholly permissive, and is subordinated to the
military power. And whether it is to be exercised or not, is a matter within the discretion
of the commander. That is laid down by Wellington, and the same thing is to be found in
nearly every instance of the exercise of martial law. The commanders of armies, in such
exercise, have been glad, if by possibility they could do so, to have the courts carry on the
ordinary operations of justice. But they rarely permit to them jurisdiction over crimes
affecting the well-being of the army or the safety of the state.

See supra, p. 91-2.
The determining test is, in the phrase of the old law-books, that "the King's courts are
open." But the King's Court, using that phrase for the highest court in the land, should not
be open under the permission of martial law. In a constitutional government like ours, the
Supreme Court should sit within its own jurisdiction, as one of the three great co-ordinate
powers of the government, supreme, untrammelled, uncontrolled, unawed, unswayed,
and its decrees should be executed by its own high fiat. The Supreme Court has no
superior, and, therefore, it is beneath the office of a judge of that court, inconsistent with
the dignity of the tribunal whose robes he wears, that he should sit in any district
of  country where martial law is the supreme law of the state, and where armed guards
protect public tranquillity; where the bayonet has the place of the constable's baton;
where the press is restrained by military power, and where a general order construes a
statute. On the contrary, we submit that all crimes and misdemeanors, of however high a
character, which have occurred during the progress and as a part of the war, however
great the criminals, either civil or military, should be tried upon the scene of the offence,
and within the theatre of military operations; that justice should be meted out in such
cases, by military commissions, through the strong arm of the military law which the
offenders have invoked, and to which they have appealed to settle their rights.

We do not desire to exalt the martial above the civil law, or to substitute the necessarily
despotic rule of the one, for the mild and healthy restraints of the other. Far otherwise.
We demand only, that when the law is silent; when justice is overthrown; when the life of
the nation is threatened by foreign foes that league, and wait, and watch without, to unite
with domestic foes within, who had seized almost half the territory, and more than half
the resources of the government, at the beginning; when the capital is imperilled; when
the traitor within plots to bring into its peaceful communities the braver rebel who fights
without; when the judge is deposed; when the juries are dispersed; when the sheriff, the
executive officer of law, is powerless; when the bayonet is called in as the final arbiter;
when on its armed forces the government must rely for all it has of power, authority, and
dignity; when the citizen has to look to the same source for everything he has of right in
the present, or hope in the future, — then we ask that martial law may prevail, so that the
civil law may again live, to the end that this may be a "government of laws and not of
men."

At the close of the last term the CHIEF JUSTICE announced the order of the court in this
and in two other similar cases (those of Bowles and Horsey) as follows: 

1. That on the facts stated in said petition and exhibits a writ of habeas corpus ought to
be issued, according to the prayer of the said petitioner.

2. That on the facts stated in the said petition and exhibits the said Milligan ought to be
discharged from custody as in said petition is prayed, according to the act of Congress
passed March 3d 1863, entitled, "An act relating to habeas corpus and regulating judicial
proceedings in certain cases."

3. That on the facts stated in said petition and exhibits, the military commission
mentioned therein had no jurisdiction legally to try and sentence said Milligan in the
manner and form as in said petition and exhibits are stated.

At the opening of the present term, opinions were delivered.

The CHIEF JUSTICE delivered the following opinion.

Four members of the court, concurring with their brethren in the order heretofore made in
this cause, but unable to concur in some important particulars with the opinion which has
just been read, think it their duty to make a separate statement of their views of the whole
case.
We do not doubt that the Circuit Court for the District of Indiana had jurisdiction of the
petition of Milligan for the writ of habeas corpus.

Whether this court has jurisdiction upon the certificate of division admits of more
question. The construction of the act authorizing such certificates, which has hitherto
prevailed here, denies jurisdiction in cases where the certificate brings up the whole cause
before the court. But none of the adjudicated cases are 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. We agree, therefore, that this court may properly
answer questions certified in such a case as that before us.

The crimes with which Milligan was charged were of the gravest character, and the
petition and exhibits in the record, which must here be taken as true, admit his guilt. But
whatever his desert of punishment may be, it is more important to the country and to
every citizen that he should not be punished under an illegal sentence, sanctioned by this
court of last resort, than that he should be punished at all. The laws which protect the
liberties of the whole people must not be violated or set aside in order to inflict, even
upon the guilty, unauthorized though merited justice.

The trial and sentence of Milligan were by military commission convened in Indiana
during the fall of 1864. The action of the commission had been under consideration by
President Lincoln for some time, when he himself became the victim of an abhorred
conspiracy. It was approved by his successor in May, 1865, and the sentence was ordered
to be carried into execution. The proceedings, therefore, had the fullest sanction of the
executive department of the government. 

This sanction requires the most respectful and the most careful consideration of this
court. The sentence which it supports must not be set aside except upon the clearest
conviction that it cannot be reconciled with the Constitution and the constitutional
legislation of Congress.

We must inquire, then, what constitutional or statutory provisions have relation to this
military proceeding.

The act of Congress of March 3d 1863, comprises all the legislation which seems to
require consideration in this connection. The constitutionality of this act has not been
questioned and is not doubted.

The first section authorized the suspension, during the Rebellion, of the writ of habeas
corpus throughout the United States by the President. The two next sections limited this
authority in important respects.

The second section required that lists of all persons, being citizens of states in which the
administration of the laws had continued unimpaired in the Federal courts, who were then
held or might thereafter be held as prisoners of the United States, under the authority of
the President, otherwise than as prisoners of war, should be furnished to the judges of the
Circuit and District Courts. The lists transmitted to the judges were to contain the names
of all persons, residing within their respective jurisdictions, charged with violation of
national law. And it was required, in cases where the grand jury in attendance upon any
of these courts should terminate its session without proceeding by indictment or
otherwise against any prisoner named in the list, that the judge of the court should
forthwith make an order that such prisoner desiring a discharge, should be brought before
him or the court to be discharged, on entering into recognizance, if required, to keep the
peace and for good behavior, or to appear, as the court might direct, to be further dealt
with according to law. Every officer of the United States having custody of such
prisoners was required to obey and execute the judge's order, under penalty, for refusal or
delay, of fine and imprisonment.

The third section provided, in case lists of persons other  than prisoners of war then held
in confinement, or thereafter arrested, should not be furnished within twenty days after
the passage of the act, or, in cases of subsequent arrest, within twenty days after the time
of arrest, that any citizen, after the termination of a session of the grand jury without
indictment or presentment, might, by petition alleging the facts and verified by oath,
obtain the judge's order of discharge in favor of any person so imprisoned, on the terms
and conditions prescribed in the second section.

It was made the duty of the District Attorney of the United States to attend examinations
on petitions for discharge.

It was under this act that Milligan petitioned the Circuit Court for the District of Indiana
for discharge from imprisonment.

The holding of the Circuit and District Courts of the United States in Indiana had been
uninterrupted. The administration of the laws in the Federal courts had remained
unimpaired. Milligan was imprisoned under the authority of the President, and was not a
prisoner of war. No list of prisoners had been furnished to the judges, either of the
District or Circuit Courts, as required by the law. A grand jury had attended the Circuit
Courts of the Indiana district, while Milligan was there imprisoned, and had closed its
session without finding any indictment or presentment or otherwise proceeding against
the prisoner.

His case was thus brought within the precise letter and intent of the act of Congress,
unless it can be said that Milligan was not imprisoned by authority of the President; and
nothing of this sort was claimed in argument on the part of the government.

It is clear upon this statement that the Circuit Court was bound to hear Milligan's petition
for the writ of habeas corpus, called in the act an order to bring the prisoner before the
judge or the court, and to issue the writ, or, in the language of the act, to make the order.

The first question, therefore — Ought the writ to issue? — must be answered in the
affirmative. 
And it is equally clear that he was entitled to the discharge prayed for.

It must be borne in mind that the prayer of the petition was not for an absolute discharge,
but to be delivered from military custody and imprisonment, and if found probably guilty
of any offence, to be turned over to the proper tribunal for inquiry and punishment; or, if
not found thus probably guilty, to be discharged altogether.

And the express terms of the act of Congress required this action of the court. The
prisoner must be discharged on giving such recognizance as the court should require, not
only for good behavior, but for appearance, as directed by the court, to answer and be
further dealt with according to law.

The first section of the act authorized the suspension of the writ of habeas
corpus generally throughout the United States. The second and third sections limited this
suspension, in certain cases, within states where the administration of justice by the
Federal courts remained unimpaired. 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. No other judge or court could make an
order of discharge under the writ. Except under the circumstances pointed out by the act,
neither circuit nor district judge or court could make such an order. But under those
circumstances the writ must be issued, and the relief from imprisonment directed by the
act must be afforded. The commands of the act were positive, and left no discretion to
court or judge.

An affirmative answer must, therefore, be given to the second question, namely: Ought
Milligan to be discharged according to the prayer of the petition?

That the third question, namely: Had the military commission in Indiana, under the facts
stated, jurisdiction to try and sentence Milligan? must be answered negatively is an
unavoidable inference from affirmative answers to the other two. 

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.

Indeed, the act seems to have been framed on purpose to secure the trial of all offences of
citizens by civil tribunals, in states where these tribunals were not interrupted in the
regular exercise of their functions.

Under it, in such states, the privilege of the writ might be suspended. Any person
regarded as dangerous to the public safety might be arrested and detained until after the
session of a grand jury. Until after such session no person arrested could have the benefit
of the writ; and even then no such person could be discharged except on such terms, as to
future appearance, as the court might impose. These provisions obviously contemplate no
other trial or sentence than that of a civil court, and we could not assert the legality of a
trial and sentence by a military commission, under the circumstances specified in the act
and described in the petition, without disregarding the plain directions of Congress.

We agree, therefore, that the first two questions certified must receive affirmative
answers, and the last a negative. We do not doubt that the positive provisions of the act of
Congress require such answers. We do not think it necessary to look beyond these
provisions. In them we find sufficient and controlling reasons for our conclusions.

But the opinion which has just been read goes further; and as we understand it, asserts not
only that the military commission held in Indiana was not authorized by Congress, but
that it was not in the power of Congress to authorize it; from which it may be thought to
follow, that Congress has no power to indemnify the officers who composed the
commission against liability in civil courts for acting as members of it.

We cannot agree to this.

We agree in the proposition that no department of the  government of the United States

— neither President, nor Congress, nor the Courts — possesses any power not given by
the Constitution.

We assent, fully, to all that is said, in the opinion, of the inestimable value of the trial by
jury, and of the other constitutional safeguards of civil liberty. And we concur, also, in
what is said of the writ of habeas corpus, and of its suspension, with two reservations:
(1.) That, in our judgment, when the writ is suspended, the Executive is authorized to
arrest as well as to detain; and (2.) that there are cases in which, the privilege of the writ
being suspended, trial and punishment by military commission, in states where civil
courts are open, may be authorized by Congress, as well as arrest and detention.

We think that Congress had power, though not exercised, to authorize the military
commission which was held in Indiana.

We do not think it necessary to discuss at large the grounds of our conclusions. We will
briefly indicate some of them.

The Constitution itself provides for military government as well as for civil government.
And we do not understand it to be claimed that the civil safeguards of the Constitution
have application in cases within the proper sphere of the former.

What, then, is that proper sphere? Congress has power to raise and support armies; to
provide and maintain a navy; to make rules for the government and regulation of the land
and naval forces; and to provide for governing such part of the militia as may be in the
service of the United States.

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. It has been so
understood and exercised from the adoption of the Constitution to the present time.
Nor, in our judgment, does the fifth, or any other amendment, abridge that power. "Cases
arising in the land and naval forces, or in the militia in actual service in time of war  or
public danger," are expressly excepted from the fifth amendment, "that no person shall be
held to answer for a capital or otherwise infamous crime, unless on a presentment or
indictment of a grand jury," and it is admitted that the exception applies to the other
amendments as well as to the fifth.

Now, we understand this exception to have the same import and effect as if the powers of
Congress in relation to the government of the army and navy and the militia had been
recited in the amendment, and cases within those powers had been expressly excepted
from its operation. The states, most jealous of encroachments upon the liberties of the
citizen, when proposing additional safeguards in the form of amendments, excluded
specifically from their effect cases arising in the government of the land and naval forces.
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 indicted by a grand
jury, except in such cases as may arise in the government and regulation of the land
forces." The exception in similar amendments, proposed by New York, Maryland, and
Virginia, was in the same or equivalent terms. 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. Among those thus proposed, and
subsequently ratified, was that which now stands as the fifth amendment of the
Constitution. We cannot doubt that this amendment was intended to have the same force
and effect as the amendment proposed by the states. We cannot agree to a construction
which will impose on the exception in the fifth amendment a sense other than that
obviously indicated by action of the state conventions.

We think, therefore, that the power of Congress, in the government of the land and naval
forces and of the militia, is not at all affected by the fifth or any other amendment. It is
not necessary to attempt any precise definition of the boundaries of this power. But may
it not be said that government  includes protection and defence as well as the regulation
of internal administration? And is it impossible to imagine cases in which citizens
conspiring or attempting the destruction or great injury of the national forces may be
subjected by Congress to military trial and punishment in the just exercise of this
undoubted constitutional power? Congress is but the agent of the nation, and does not the
security of individuals against the abuse of this, as of every other power, depend on the
intelligence and virtue of the people, on their zeal for public and private liberty, upon
official responsibility secured by law, and upon the frequency of elections, rather than
upon doubtful constructions of legislative powers?

But we do not put our opinion, that Congress might authorize such a military commission
as was held in Indiana, upon the power to provide for the government of the national
forces.

Congress has the power not only to raise and support and govern armies but to declare
war. It has, therefore, the power to provide by law for carrying on war. This power
necessarily extends to all legislation essential to the prosecution of war with vigor and
success, except such as interferes with the command of the forces and the conduct of
campaigns. That power and duty belong to the President as commander-in-chief. Both
these powers are derived from the Constitution, but neither is defined by that instrument.
Their extent must be determined by their nature, and by the principles of our institutions.

The power to make the necessary laws is in Congress; the power to execute in the
President. Both powers imply many subordinate and auxiliary powers. Each includes all
authorities essential to its due exercise. But neither can the President, in war more than in
peace, intrude upon the proper authority of Congress, nor Congress upon the proper
authority of the President. Both are servants of the people, whose will is expressed in the
fundamental law. Congress cannot direct the conduct of campaigns, nor can the
President,  or any commander under him, without the sanction of Congress, institute
tribunals for the trial and punishment of offences, either of soldiers or civilians, unless in
cases of a controlling necessity, which justifies what it compels, or at least insures acts of
indemnity from the justice of the legislature.

We by no means assert that Congress can establish and apply the laws of war where no
war has been declared or exists.

Where peace exists the laws of peace must prevail. What we do maintain is, that when the
nation is involved in war, and some portions of the country are invaded, and all are
exposed to invasion, it is within the power of Congress to determine in what states or
districts such great and imminent public danger exists as justifies the authorization of
military tribunals for the trial of crimes and offences against the discipline or security of
the army or against the public safety.

In Indiana, for example, at the time of the arrest of Milligan and his co-conspirators, it is
established by the papers in the record, that the state was a military district, was the
theatre of military operations, had been actually invaded, and was constantly threatened
with invasion. It appears, also, that a powerful secret association, composed of citizens
and others, existed within the state, under military organization, conspiring against the
draft, and plotting insurrection, the liberation of the prisoners of war at various depots,
the seizure of the state and national arsenals, armed co-operation with the enemy, and war
against the national government.

We cannot doubt that, in such a time of public danger, Congress had power, under the
Constitution, to provide for the organization of a military commission, and for trial by
that commission of persons engaged in this conspiracy. The fact that the Federal courts
were open was regarded by Congress as a sufficient reason for not exercising the power;
but that fact could not deprive Congress of the right to exercise it. Those courts might be
open and undisturbed in the execution  of their functions, and yet wholly incompetent to
avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty
conspirators.

In Indiana, the judges and officers of the courts were loyal to the government. But it
might have been otherwise. In times of rebellion and civil war it may often happen,
indeed, that judges and marshals will be in active sympathy with the rebels, and courts
their most efficient allies.

We have confined ourselves to the question of power. It was for Congress to determine
the question of expediency. And Congress did determine it. That body did not see fit to
authorize trials by military commission in Indiana, but by the strongest implication
prohibited them. With that prohibition we are satisfied, and should have remained silent
if the answers to the questions certified had been put on that ground, without denial of the
existence of a power which we believe to be constitutional and important to the public
safety, — a denial which, as we have already suggested, seems to draw in question the
power of Congress to protect from prosecution the members of military commissions
who acted in obedience to their superior officers, and whose action, whether warranted
by law or not, was approved by that upright and patriotic President under whose
administration the Republic was rescued from threatened destruction.

We have thus far said little of martial law, nor do we propose to say much. What we have
already said sufficiently indicates our opinion that there is no law for the government of
the citizens, the armies or the navy of the United States, within American jurisdiction,
which is not contained in or derived from the Constitution. 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.

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  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.

We think that the power of Congress, in such times and in such localities, to authorize
trials for crimes against the security and safety of the national forces, may be derived
from its constitutional authority to raise and support armies and to declare war, if not
from its constitutional authority to provide for governing the national forces.
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 to regulate
commerce, or the power to borrow money. And we are unwilling to give our assent by
silence to expressions of opinion which seem to us calculated, though not intended, to
cripple the constitutional powers of the government, and to augment the public dangers in
times of invasion and rebellion.

Mr. Justice WAYNE, Mr. Justice SWAYNE, and Mr. Justice MILLER concur with me in
these views. 

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Ex Parte Milligan

96 Citing cases

1. Hamdi v. Rumsfeld
542 U.S. 507 (2004)   Cited 506 times   6 Legal Analyses

o Motion to dismiss
o Con. Law - Due Process
o Criminal - False Arrest

2 more...

Holding that Hamdi cannot be deemed to have conceded that he was

captured in a combat zone because he was not "permitted to speak for
himself or even through counsel as to those circumstances"
If the record establishes that United States troops are still involved in active
combat in Afghanistan, those detentions are part of the exercise of "necessary and
appropriate force," and therefore are authorized by the AUMF. Ex parte Milligan,
4 Wall. 2, 125 (1866), does not undermine our holding about the Government's
authority to seize enemy combatants, as we define that term today. In that case,
the Court made repeated reference to the fact that its inquiry into whether the
military tribunal had jurisdiction to try and punish Milligan turned in large part on
the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested
while at home there. Id., at 118, 131. That fact was central to its conclusion.

2. Ex Parte Duncan
146 F.2d 576 (9th Cir. 1945)   Cited 4 times
 o Criminal - False Arrest
o Criminal - Other

1 more...

Cf. Charles Fairman, The Law of Martial Rule and the National Emergency,
published in Harvard Law Review, June 1942; Archibald King, The Legality of
Martial Law in Hawaii, Vol. XXX California Law Review, Number 6, September
1942. Consult generally, Wiener, A Practical Manual of Martial Law (1940).
Consult, for example, the discussion of Chief Justice Chase in his concurring
opinion in Ex parte Milligan, 71 U.S. 2, at page 141, 4 Wall. 2, at page 141, 18
L.Ed. 281. In important respects his definition of the term is unsatisfying.

3. Ex Parte White
66 F. Supp. 982 (D. Haw. 1944)   Cited 2 times

o Criminal - False Arrest

o Criminal - Other

3 more...

War does not suspend the Constitution, or any part of it. It is the supreme law of
the land at all times. Neither generals, governors, nor courts are exempt from its
provisions at any time. The Federal Government's power to wage war and to wage
it successfully involves to be sure the rule that in wartime individual rights must
yield in the face of necessity — and to the extent necessary — to the nation's
innate and paramount power of self preservation. Ex parte Milligan, 4 Wall. 2, 71
U.S. 2, 120, 18 L.Ed. 281. War Powers Under the Constitution, Charles Evans
Hughes, 42 A.B.A. Rep. 232, 238.

4. Hamdan v. Rumsfeld
548 U.S. 557 (2006)   Cited 202 times   3 Legal Analyses

o Motion to dismiss
o Regulatory - Federal
o Criminal - Other

3 more...

Holding the military commission procedures established by an executive

order invalid
Exigency alone, of course, will not justify the establishment and use of penal
tribunals not contemplated by Article I, § 8, and Article III, § 1, of the
Constitution unless some other part of that document authorizes a response to the
felt need. See Ex parte Milligan, 4 Wall. 2, 121 (1866) ("Certainly no part of the
 judicial power of the country was conferred on [military commissions]"); Ex parte
Vallandigham, 1 Wall. 243, 251 (1864); see also Quirin, 317 U. S., at 25
("Congress and the President, like the courts, possess no power not derived from
the Constitution"). And that authority, if it exists, can derive only from the powers
granted jointly to the President and Congress in time of war.

5. Rostker v. Goldberg
453 U.S. 57 (1981)   Cited 323 times   1 Legal Analyses

o Motion to dismiss
o Con. Law - Due Process
o Con. Law - Equal Protection

2 more...

Holding that Congress acted within its constitutional authority in

authorizing the military registration of men but not women
None of this is to say that Congress is free to disregard the Constitution when it
acts in the area of military affairs. In that area, as any other, Congress remains
subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4
Wall. 2 (1866); Hamilton v. Kentucky Distilleries Warehouse Co., 251 U.S. 146,
156 (1919), but the tests and limitations to be applied may differ because of the
military context. We of course do not abdicate our ultimate responsibility to
decide the constitutional question, but simply recognize that the Constitution itself
requires such deference to congressional choice.

6. Gosa v. Mayden
413 U.S. 665 (1973)   Cited 131 times

o Motion to dismiss
o Criminal - False Arrest
o Criminal - Other

1 more...

Holding that "[t]he Court long and consistently had recognized that
military status in itself was sufficient for the exercise of court-martial
jurisdiction," a view that was later disavowed by the Court
The Court long and consistently had recognized that military status in itself was
sufficient for the exercise of court-martial jurisdiction. Kinsella v. Singleton, 361
U.S. 234, 240-241, 243 (1960); Reid v. Covert, 354 U.S. 1, 22-23 (1957); Grafton
v. United States, 206 U.S. 333, 348 (1907); Johnson v. Sayre, 158 U.S. 109, 114
(1895); Smith v. Whitney, 116 U.S. 167, 184-185 (1886); Coleman v. Tennessee,
97 U.S. 509 (1879); Ex parte Milligan, 4 Wall. 2, 123 (1866). Indeed, in Grafton,
 206 U.S., at 348, the Court observed, "While . . . the jurisdiction of general
courts-martial extends to all crimes, not capital, committed against public law by
an officer or soldier of the Army within the limits of the territory in which he is
serving, this jurisdiction is not exclusive, but only concurrent with that of the civil
courts."

7. Al Bahlul v. United States

792 F.3d 1 (D.C. Cir. 2015)   Cited 3 times

o Motion to dismiss
o Regulatory - Federal
o Enforcement - Civil Forfeiture

4 more...

Explaining how the Schor line of cases may be read to prohibit waiver or
forfeiture of structural Article III claims
Its citations refer to military commissions exercising jurisdiction far beyond the
law of war. Thus, in Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281 (1866),
the four Justices cited by the dissent, see Dis. Op. 56, were discussing courts
martial and military commissions whose jurisdiction was based on military
government and martial law. See Milligan, 71 U.S. at 141–42 (Chase, C.J.,
concurring in the result); see generally Hamdan, 548 U.S. at 595–98, 126 S.Ct.
2749 (plurality op.), 683, 126 S.Ct. 2749 (Thomas, J., dissenting); Bahlul, 767
F.3d at 7. The constitutional authority for those commissions, whose jurisdiction
may include domestic crimes, see Hamdan, 548 U.S. at 595–96, 126 S.Ct. 2749
(plurality op.); Bahlul, 767 F.3d at 7, does not extend to law of war commissions.

8. El-Shifa Pharmaceutical Ind. v. U.S.

607 F.3d 836 (D.C. Cir. 2010)   Cited 47 times   1 Legal Analyses

o Motion to dismiss
o Tort - Defamation
o Tort - Other
o Energy and Environmental
o Recycling Services

8 more...

Holding non-justiciable a claim under the law of nations requiring the

court to determine whether a U.S. military attack was “mistaken and not
justified”
urt has decided many sensitive and controversial cases that had enormous national
security or foreign policy ramifications. See, e.g., Boumediene v. Bush, 553 U.S.
 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Medellín v. Texas, 552 U.S. 491,
128 S.Ct. 1346, 170 L.Ed.2d 190 (2008); Hamdan v. Rumsfeld, 548 U.S. 557, 126
S.Ct. 2749, 165 L.Ed.2d 723 (2006); Sosa v. Alvarez-Machain, 542 U.S. 692, 124
S.Ct. 2739, 159 L.Ed.2d 718 (2004); American Ins. Ass'n v. Garamendi, 539 U.S.
396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003); Dames Moore v. Regan, 453 U.S.
654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981); Kent v. Dulles, 357 U.S. 116, 78
S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Youngstown Sheet Tube Co. v. Sawyer, 343
U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Johnson v. Eisentrager, 339 U.S.
763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950); Korematsu v. United States, 323 U.S.
214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936); Ex parte Milligan, 4
Wall. 2, 71 U.S. 2, 18 L.Ed. 281 (1866); Prize Cases, 67 U.S. 635, 2 Black 635,
17 L.Ed. 459 (1863); Little v. Barreme, 2 Cranch 170, 6 U.S. 170, 2 L.Ed. 243
(1804); see also David J. Barron Martin S. Lederman, The Commander in Chief at
the Lowest Ebb — Framing the Problem, Doctrine, and Original Understanding,
121 HARV. L. REV. 689, 723 (2008) ("the Supreme Court's jurisprudence,
stretching from early in our history through Youngstown to numerous
contemporary war powers cases, is rife with instances of the Court's resolving
questions of the Executive's war powers, just as it has adjudicated other separation
of powers disputes between the political departments"). Importantly, the Supreme
Court has invoked the political question doctrine only in cases alleging violations
of the Constitution.

9. United States v. Al Bahlul

820 F. Supp. 2d 1141 (D. Haw. 2011)   Cited 3 times

o Criminal - Other
o Con. Law - Other

6 more...

Listing factors to consider in "determining whether an arm conflict

existed"
More specifically, we will focus on the charged conduct in each specification and
“inquire whether any of the acts charged is an offense against the law of war
cognizable before a military tribunal, and if so whether the Constitution prohibits
the trial.” Id.;see also Ex Parte Milligan, 71 U.S. 2, 45, 4 Wall. 2, 18 L.Ed. 281
(1866). We will discuss the issues of law common to the offenses of which
appellant stands convicted and address whether each individual offense describes
conduct punishable by military commission.

10. U.S. v. Reid

214 F. Supp. 2d 84 (D. Mass. 2002)   Cited 8 times
 o Motion to dismiss
o Con. Law - Due Process
o Con. Law - Other

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against

Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001) [hereinafter Executive Order]. Of
note here, such military tribunals are not limited to the theaters of active combat
operations, but are authorized to sit within the United States itself, see id. §§ 3(a),
4(c)(1), where the federal district courts have exclusive jurisdiction over the trial
of federal crimes. Compare Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3
(1942) (holding that an unlawful enemy belligerent may be tried by secret military
tribunal within the territorial jurisdiction of United States District Court), with Ex
Parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281 (1866) (holding that, absent
proper declaration of martial law, a secessionist saboteur who is not himself an
enemy belligerent may not be tried by military tribunal within the territorial
jurisdiction of United States District Court). One of America's leading legal
scholars in the study of civil liberties in wartime is the Chief Justice of the United
States. See William Rehnquist, Civil Liberty and the Civil War: The Indianapolis
Treason Trials, 72 Ind. L.J. 927 (1997).

1. MUDD v. CALDERA
No. CIV.A. 97-2946(PLF) (D.D.C. Mar. 14, 2001)   Cited 9 times

o Motion for summary judgment

o Motion to dismiss

Emphasizing court's "limited role" and the "deference it owed" when

reviewing similar decision by Secretary of Army under the APA
This Court sees no need to revisit that issue either. Assistant Secretary Henry then
turned to two decisions of the United States Supreme Court, Ex parte Milligan, 71
U.S. 2 (1866), the case primarily relied upon by the ABCMR, and the later
decision of the Court inEx parte Quirin, 317 U.S. 1 (1942). He found that Quirin,
a decision that dealt with "law of war" jurisdiction, was more relevant
thanMilligan, which he concluded dealt primarily with "martial law" jurisdiction.

2. Barn Ballroom Co. v. Ainsworth

67 F. Supp. 299 (E.D. Va. 1946)   Cited 1 times

o Motion to dismiss
o Con. Law - Due Process
o Tort - Other

1 more...
 In addition to that case, I have examined a number of other cases, which I shall
not take the time to cite at this phrase of the case. I do call attention particularly,
however, to Sterling v. Constantin, and to the case of Ex Parte Milligan, 71 U.S.
2, 18 L.Ed. 281, both of which contain comprehensive and enlightening
discussions of the limits beyond which the military may not go in dealing with the
persons and rights of civilians. A detailed discussion and historical review at this
time of the basic principles involved, I do not consider necessary.

3. State ex rel. McManamon v. Blackford Circuit Court

95 N.E.2d 556 (Ind. 1950)   Cited 25 times

o Process Causes - Judicial Review

o Con. Law - Other

4 more...

Bradley and Taylor v. State (1949), 227 Ind. 131, 136, 84 N.E.2d 580. Art. 1, § 1
of the Indiana Constitution is but declaratory of the superlative quality of this and
other unalienable rights. Scott v. McNeal (1894), 154 U.S. 34, 45, 38 L.Ed. 896,
901; Ex Parte Milligan (1866), 4 Wall. 71 U.S. 2, 119, 121, 18 L.Ed. 281, 295.
Among other things our State Constitution provides:

4. Ortiz v. United States

138 S. Ct. 2165 (2018)   Cited 4 times

o Motion to dismiss
o Process Causes - Judicial Review

Contrast Vallandigham with a pair of decisions we issued shortly thereafter. In Ex

parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866), and Ex parte Yerger, 8 Wall. 85,
19 L.Ed. 332 (1869), we again were asked to grant relief to petitioners who, just
like Vallandigham (and just like Ortiz), were in custody under orders of a non-
Article III military tribunal. But unlike Vallandigham and Ortiz, Milligan and
Yerger first sought relief in a lower federal court. Milligan, supra, at 107–108;
Yerger, 8 Wall., at 102–103.

5. Ziglar v. Abbasi
137 S. Ct. 1843 (2017)   Cited 1,001 times   2 Legal Analyses

o Motion to dismiss
o Con. Law - Other
o Criminal - Other

11 more...
 Holding that "even a modest extension [of Bivens] is still an extension."
History tells us of far too many instances where the Executive or Legislative
Branch took actions during time of war that, on later examination, turned out
unnecessarily and unreasonably to have deprived American citizens of basic
constitutional rights. We have read about the Alien and Sedition Acts, the
thousands of civilians imprisoned during the Civil War, and the suppression of
civil liberties during World War I. See W. Rehnquist, All the Laws but One: Civil
Liberties in Wartime 209–210, 49–50, 173–180, 183 (1998); see also Ex parte
Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866) (decided after the Civil War was over).
The pages of the U.S. Reports themselves recite this Court's refusal to set aside
the Government's World War II action removing more than 70,000 American
citizens of Japanese origin from their west coast homes and interning them in
camps, see Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194
(1944) —an action that at least some officials knew at the time was unnecessary,
see id., at 233–242, 65 S.Ct. 193 (Murphy, J., dissenting); P. Irons, Justice at War
202–204, 288 (1983).

6. Boumediene v. Bush
553 U.S. 723 (2008)   Cited 685 times   5 Legal Analyses

o Motion to dismiss
o Criminal - False Arrest
o Criminal - Other

4 more...

Holding that Constitution applies at Guantanamo Bay and noting, in

context of rejecting Government argument that such holding would be
unprecedented, conflict resulting in Guantanamo Bay detention "is
already among the longest wars in American history"
Yet civilian courts and the Armed Forces have functioned along side each other at
various points in our history. See, e.g., Duncan v. Kahanamoku, 327 U. S. 304
(1946); Ex parte Milligan, 4 Wall. 2 (1866). The Government presents no credible
arguments that the military mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detainees' claims.

7. MedellÍn v. Texas
552 U.S. 491 (2008)   Cited 375 times   3 Legal Analyses

o Motion to dismiss
o Process Causes - Other
o Enforcement - Judgment

3 more...
 Holding that a later-in-time self-executing treaty supersedes a federal
statute and that a later-in-time federal statute supersedes a treaty
Art. II, § 2. If the Executive determines that a treaty should have domestic effect
of its own force, that determination may be implemented “in mak[ing]” the treaty,
by ensuring that it contains language plainly providing for domestic
enforceability. If the treaty is to be self-executing in this respect, the Senate must
consent to the treaty by the requisite two-thirds vote, ibid., consistent with all
other constitutional restraints. Once a treaty is ratified without provisions clearly
according it domestic effect, however, whether the treaty will ever have such
effect is governed by the fundamental constitutional principle that “ ‘[t]he power
to make the necessary laws is in Congress; the power to execute in the President.’
” Hamdan v. Rumsfeld, 548 U.S. 557, 591, 126 S.Ct. 2749, 165 L.Ed.2d 723
(2006) (quoting Ex parte Milligan, 4 Wall. 2, 139, 18 L.Ed. 281 (1866) (opinion
of Chase, C. J.)); see U.S. Const., Art. I, § 1 (“All legislative Powers herein
granted shall be vested in a Congress of the United States”). As already noted, the
terms of a non-self-executing treaty can become domestic law only in the same
way as any other law—through passage of legislation by both Houses of
Congress, combined with either the President's signature or a congressional
override of a Presidential veto. See Art. I, § 7. Indeed, “the President's power to
see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker.”

8. Rasul v. Bush
542 U.S. 466 (2004)   Cited 351 times   3 Legal Analyses

o Motion to dismiss
o Criminal - False Arrest
o Criminal - Other

3 more...

Holding that § 2241 extends to Guantanamo detainees

A necessary corollary of Eisentrager is that there are circumstances in which the
courts maintain the power and the responsibility to protect persons from unlawful
detention even where military affairs are implicated. See also Ex parte Milligan, 4
Wall. 2 (1866). The facts here are distinguishable from those in Eisentrager in two
critical ways, leading to the conclusion that a federal court may entertain the
petitions.

9. Hohn v. United States

524 U.S. 236 (1998)   Cited 345 times   5 Legal Analyses

o Motion to dismiss
o Criminal - False Arrest
 o Process Causes - Judicial Review

1 more...

Holding that a COA application "was as much a case in the Court of

Appeals as are the other matters decided by it"
Quirin held that a petition for habeas corpus constituted the institution of a suit,
and that it was not necessary for the writ to issue for the matter to be considered a
case or controversy. 317 U.S., at 24. Quirin relied upon our decision in Ex parte
Milligan, 4 Wall. 2, 110-113 (1866), which reasoned that a petition for habeas
corpus is a suit because the petitioner seeks "`that remedy which the law affords
him'" to recover his liberty. Id., at 113 (quoting Weston v. City Council of
Charleston, 2 Pet. 449, 464 (1829)).

10. Holland v. Illinois

493 U.S. 474 (1990)   Cited 392 times   2 Legal Analyses

o Con. Law - Due Process

o Con. Law - Equal Protection

2 more...

Holding that a defendant of one race has standing to raise a Sixth

Amendment challenge to the exclusion of individuals of another race
from his jury, and noting that this rule aligns with the goal of Batson v.
Kentucky, 476 U.S. 79 in "assuring the selection of a qualified and
unbiased jury"
Batson v. Kentucky, 476 U.S. 79, 85 (1986). Our efforts have been guided by our
recognition that `the inestimable privilege of trial by jury . . . is a vital principle,
underlying the whole administration of criminal justice,' Ex parte Milligan, 4
Wall. 2, 123 (1866). Thus, it is the jury that is a criminal defendant's fundamental
`protection of life and liberty against race or color prejudice.' Strauder v. West
Virginia, 100 U.S. 303, 309 (1880)").

1. Solorio v. United States

483 U.S. 435 (1987)   Cited 67 times

o Motion to dismiss
o Criminal - Other
o Con. Law - Due Process
 1 more...

Holding that courts-martial may try service members even for crimes
unrelated to their military service
In an unbroken line of decisions from 1866 to 1960, this Court interpreted the
Constitution as conditioning the proper exercise of court-martial jurisdiction over
an offense on one factor: the military status of the accused. Gosa v. Mayden, 413
U.S. 665, 673 (1973) (plurality opinion); see Kinsella v. United States ex rel.
Singleton, 361 U.S. 234, 240-241, 243 (1960); Reid v. Covert, 354 U.S. 1, 22-23
(1957) (plurality opinion); Grafton v. United States, 206 U.S. 333, 348 (1907);
Johnson v. Sayre, 158 U.S. 109, 114 (1895); Smith v. Whitney, 116 U.S. 167,
183-185 (1886); Coleman v. Tennessee, 97 U.S. 509, 513-514 (1879); Ex parte
Milligan, 4 Wall. 2, 123 (1866); cf. United States ex rel. Toth v. Quarles, 350 U.S.
11, 15 (1955); Kahn v. Anderson, 255 U.S. 1, 6-9 (1921); Givens v. Zerbst, 255
U.S. 11, 20-21 (1921). This view was premised on what the Court described as
the "natural meaning" of Art. I, § 8, cl. 14, as well as the Fifth Amendment's
exception for "cases arising in the land or naval forces."

2. McCleskey v. Kemp
481 U.S. 279 (1987)   Cited 1,739 times   6 Legal Analyses

o Con. Law - Other

o Con. Law - Equal Protection

6 more...

Holding that a study indicating that black defendants and defendants

charged with killing white people are more likely to receive the death
penalty was insufficient to support an inference that the decisionmakers
in petitioner's case acted with discriminatory purpose
Batson v. Kentucky, 476 U.S. 79, 85 (1986). Our efforts have been guided by our
recognition that "the inestimable privilege of trial by jury . . . is a vital principle,
underlying the whole administration of criminal justice," Ex parte Milligan, 4
Wall. 2, 123 (1866). See Duncan v. Louisiana, 391 U.S. 145, 155 (1968).

3. Middendorf v. Henry
425 U.S. 25 (1976)   Cited 115 times

o Con. Law - Due Process

o Criminal - Other

1 more...
 Holding that "the summary court-martial provided for in these cases was
not a ‘criminal prosecution’ within the meaning of" the Sixth
Amendment
See Reid v. Covert, 354 U.S. 1, 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2,
123 (1866), said that "the framers of the Constitution, doubtless, meant to limit
the right of trial by jury, in the sixth amendment, to those persons who were
subject to indictment or presentment in the fifth." In Ex parte Quirin, 317 U.S. 1,
40 (1942), it was said that "`cases arising in the land or naval forces' . . . are
expressly excepted from the Fifth Amendment, and are deemed excepted by
implication from the Sixth.

4. Preiser v. Rodriguez
411 U.S. 475 (1973)   Cited 13,220 times   11 Legal Analyses

o Criminal - False Arrest

o Con. Law - Other

5 more...

Holding that "when a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to the immediate release or a speedier
release from that imprisonment, his sole remedy is a writ of habeas
corpus"
See, e. g., Darnel's Case, 3 How. St. Tr. 1-59 (K. B. 1627); Petition of Right, 3
Car. 1, c. 1 (1627); Habeas Corpus Act, 16 Car. 1, c. 10, §§ 3. 8 (1640). See also
Ex parte Wells, 18 How. 307 (1856); Ex parte Milligan, 4 Wall. 2 (1866); Parisi
v. Davidson, 405 U.S. 34 (1972).See, e. g., Bushell's Case, Vaughan 135, 124
Eng. Rep. 1006 (1670); Fay v. Noia, supra.

5. O'Callahan v. Parker
395 U.S. 258 (1969)   Cited 177 times

o Criminal - Other
o Con. Law - Other

2 more...

Holding that when a serviceman is charged with a crime that is not

"service connected" he is entitled to indictment by a grand jury and trial
by jury in a civilian court
Id., at 241. In these cases and many others, Ex parte Milligan, 4 Wall. 2, 123
(1866); Coleman v. Tennessee, 97 U.S. 509 (1879); Smith v. Whitney, 116 U.S.
 167, 184-185 (1886); Johnson v. Sayre, 158 U.S. 109, 114 (1895); Grafton v.
United States, 206 U.S. 333, 348 (1907), this Court has consistently asserted that
military "status" is a necessary and sufficient condition for the exercise of court-
martial jurisdiction. The Court has never previously questioned what the language
of Clause 14 would seem to make plain — that, given the requisite military status,
it is for Congress and not the Judiciary to determine the appropriate subject-matter
jurisdiction of courts-martial.

6. Duncan v. Louisiana
391 U.S. 145 (1968)   Cited 2,778 times   7 Legal Analyses

o Con. Law - Due Process

o Con. Law - Other

2 more...

Holding that the Fourteenth Amendment affords defendants the right to

a jury trial in state prosecutions to the same extent the Sixth Amendment
affords this right in federal prosecutions
Thompson v. Utah, 170 U.S. 343, 349-350 (1898), quoting 2 J. Story,
Commentaries on the Constitution of the United States § 1779. See also Irvin v.
Dowd, 366 U.S. 717, 721-722 (1961); United States ex rel. Toth v. Quarles, 350
U.S. 11, 16 (1955); Ex parte Milligan, 4 Wall. 2, 122-123 (1866): People v.
Garbutt, 17 Mich. 9, 27 (1868). Jury trial continues to receive strong support.

7. Peyton v. Rowe
391 U.S. 54 (1968)   Cited 708 times

o Criminal - False Arrest

o Criminal - Other

2 more...

Holding that "a prisoner serving consecutive sentences is `in custody'

under any one of them"
3 Blackstone, Commentaries *131-138; see Ex parte Bollman, 4 Cranch 75
(1807); Ex parte Lange, 18 Wall. 163 (1874); Moore v. Dempsey, 261 U.S. 86
(1923); Johnson v. Zerbst, 304 U.S. 458 (1938); Brown v. Allen, 344 U.S. 443
(1953); Fay v. Noia, 372 U.S. 391 (1963). E.g., Darnel's Case ["Five Knights'
Case"] 3 How. St. Tr. 1-59 (K. B. 1627); Ex parte Milligan, 4 Wall. 2 (1866). The
proceedings in Darnel's Case are summarized in D. Meador, Habeas Corpus and
Magna Carta 13-16 (1966).

8. Times Film Corp. v. Chicago

 365 U.S. 43 (1961)   Cited 169 times

o Motion to dismiss
o Con. Law - Other
o Consumer - Lanham Act

Upholding ordinance requiring licensing of films prior to public

exhibition
Thus, the Court has suggested that, in times of national emergency, the
Government might impose a prior restraint upon "the publication of the sailing
dates of transports or the number and location of troops." Near v. Minnesota,
supra, p. 716; cf. Ex parte Milligan, 71 U.S. 2. But, surely this is not to suggest
that the Government might require that all newspapers be submitted to a censor in
order to assist it in preventing such information from reaching print.

9. Kinsella v. Singleton
361 U.S. 234 (1960)   Cited 189 times   1 Legal Analyses

o Con. Law - Due Process

o Con. Law - Other

2 more...

Finding the decision "regrettable because [it is] bound to disturb delicate
arrangements with many foreign countries, and may result in our having
to relinquish to other nations . . . a substantial part of the jurisdiction
now retained over American personnel under the Status of Forces
Agreements"
Id., at 15. See also Dynes v. Hoover, 20 How. 65 (1857); Ex parte Milligan, 4
Wall. 2 (1866); Duncan v. Kahanamoku, 327 U.S. 304 (1946); and Winthrop,
Military Law and Precedents (2d ed. 1896), 144 et seq. and Reprint (1920) 105-
107. It was with this gloss on Clause 14 that the Court reached the second Covert
case, supra.

10. McElroy v. Guagliardo

361 U.S. 281 (1960)   Cited 58 times

In McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282

(1960), the question was whether a civilian employee of the military may
be court martialed.
Winthrop, Military Law and Precedents (2d ed. 1896), 143. See also, Ex parte
Milligan, 4 Wall. 2, 121, 123 (1866); Maltby, Courts Martial and Military Law,
37; Rawle, Constitution (2d ed. 1829), 220; 3 Op. Atty. Gen. 690; 5 id., at 736; 13
id., at 63. The only other authorities cited in support of court-martial jurisdiction
 over civilians appear to be opinions by the Attorney General and the Judge
Advocate General of the Army.

1. Nebbia v. New York

291 U.S. 502 (1934)   Cited 1,420 times

o Con. Law - Due Process

o Con. Law - Other

2 more...

Holding that due process is not violated if the challenged law has "a
reasonable relation to a proper legislative purpose" and is "neither
arbitrary nor discriminatory"
Such a doctrine leads directly to anarchy or despotism." Ex parte Milligan (1866),
4 Wall. 2, 120. The XIV Amendment wholly disempowered the several States to
"deprive any person of life, liberty, or property, without due process of law."

2. Adams & Boyle, P.C. v. Slatery

No. 20-5408 (6th Cir. Apr. 24, 2020)   Cited 2 times

o Con. Law - Other

o Con. Law - Due Process

Applying the foregoing factors to the Governor of Tennessee's directive

to "postpone surgical and invasive procedures that are elective and non-
urgent" including abortions
Such a notion is incompatible not only with Jacobson, but also with American
constitutional law writ large. See generally, e.g., Ex Parte Milligan, 71 U.S. 2, 76
(1866) ("The Constitution of the United States is a law for rulers and people,
equally in war and peace, and covers with the shield of its protection all classes of
men, at all times, and under all circumstances."). We conclude by acknowledging
that orders analogous to EO-25 have generated a flood of litigation the past few
weeks, and that judges across the country have reached differing conclusions as to
the orders' legality.

3. Hedges v. Obama
724 F.3d 170 (2d Cir. 2013)   Cited 70 times

o Con. Law - Other

 o Criminal - Other

1 more...

Holding that to have standing, a plaintiff must show, inter alia, an injury
in fact
Id. at 547–51, 124 S.Ct. 2633 (Souter, J., concurring in part, dissenting in part,
and concurring in the judgment) (reasoning further that while AUMF might
provide clear authority to detain Hamdi in accordance with laws of war,
government was not doing so); id. at 574, 124 S.Ct. 2633 (Scalia, J.,
dissenting).Id. at 571–75, 124 S.Ct. 2633 (Scalia, J., dissenting) (citing Ex parte
Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281 (1866)).2. Padilla

4. Al-Marri v. Pucciarelli
534 F.3d 213 (4th Cir. 2008)   Cited 13 times

o Motion for summary judgment

o Motion to dismiss
o Con. Law - Due Process
o Criminal - False Arrest

4 more...

Affirming al-Marri v. Wright, 487 F.3d 160 (4th Cir.2007)

Id. at 521, 124 S.Ct. 2633. As the Court explained, detention of an enemy
combatant fell within the range of "necessary and appropriate force" granted by
the AUMF because "detention to prevent a combatant's return to the battlefield is
a fundamental incident of waging war."Id. at 519, 124 S.Ct. 2633; see also In re
Territo, 156 F.2d 142, 145 (9th Cir. 1946) (noting military detention serves "to
prevent the captured individual from serving the enemy.") Of equal import,
however, is the Supreme Court's holding that civilians may not be subject to
military detention. Ex Parte Milligan, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281 (1866).
Thus, in my view, if al-Marri is an "enemy combatant" who falls within the scope
of the AUMF, he may be detained; if, however, he is not an enemy combatant,
and therefore a mere civilian, the Constitution forbids such detention.

5. Al-Marri v. Wright
487 F.3d 160 (4th Cir. 2007)   Cited 5 times   1 Legal Analyses

o Motion to dismiss
o Con. Law - Due Process
o Criminal - False Arrest

1 more...
 " Id. at 38, 63 S.Ct. 2. Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281
(1866), does not undermine the district court's decision. Milligan did not associate
himself with a rebellious State with which the United States was at war.

6. Bissonette v. Haig
776 F.2d 1384 (8th Cir. 1985)   Cited 19 times

o Motion to dismiss
o Con. Law - Other
o Con. Law - Due Process

2 more...

Holding that the use of military personnel to enforce civilian law is

limited and any search or seizure under circumstances exceeding those
limitations is unreasonable under the Fourth Amendment
The Supreme Court has also recognized the constitutional limitations placed on
military involvement in civilian affairs. A leading case is Ex parte Milligan, 4
Wall. 2, 124, 71 U.S. 2, 124, 18 L.Ed. 281 (1866), a Civil War case where the
Court held that military commissions had no authority to try civilians in States not
engaged in rebellion, in which the civil courts were open. More recently, in Laird
v. Tatum, 408 U.S. 1, 15-16, 92 S.Ct. 2318, 2326-27, 33 L.Ed.2d 154 (1972),
statements the Court made in dicta reaffirm these limitations: The concerns of the
Executive and Legislative Branches . . . reflect a traditional and strong resistance
of Americans to any military intrusion into civilian affairs.

7. Wickham v. Hall
706 F.2d 713 (5th Cir. 1983)   Cited 4 times

o Motion for summary judgment

o Motion to dismiss
o Fraud - Other
o Con. Law - Other

In Wickham, the U.S. Court of Appeals for the Fifth Circuit affirmed the
district court's grant of summary judgment in favor of the Army when an
enlisted soldier attempted to enjoin the Army from prosecuting her at a
court-martial for obtaining a fraudulent separation. 706 F.2d at 714.
Colonel Winthrop's treatise on military law is, as the majority notes, the leading
authority on the area. In Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866), a
landmark decision, the Supreme Court held that military authorities were without
power to try civilians, relying primarily on the fact that courts-martial dispense
with the right of trial by jury guaranteed by Article 3, section 2, clause 3 of the
Constitution. The great minds of the country have differed on the correct
 interpretation to be given to various provisions of the Federal Constitution; and
judicial decision has often been invoked to settle their true meaning; but until
recently no one ever doubted that the right of trial by jury was fortified in the
organic law against the power of attack. It is now assailed; but if ideas can be
expressed in words, and language has any meaning, this right — one of the most
valuable in a free country — is preserved to everyone accused of crime who is not
attached to the Army, or Navy, or Militia in actual service.

8. Anderson v. Laird
466 F.2d 283 (D.C. Cir. 1972)   Cited 18 times

o Con. Law - Other

o Tort - Privacy

In Anderson v. Laird, 466 F.2d 283, 284, 291 (D.C. Cir. 1972) (per
curiam), the D.C. Circuit addressed a federal regulation that required
cadets and midshipmen at military academies to attend religious services
on Sundays unless they objected based on conscientious beliefs.
It has been indicated in a number of cases that the power of Congress in the
government of the land and naval forces of the United States are not affected by
any of the constitutional amendments. Hiatt v. Brown, supra, [ 339 U.S. 103, 70
S.Ct. 495, 94 L.Ed. 691]; Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94
L.Ed. 1255; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; Ex parte
Milligan, 4 Wall. 2, 71 U.S. 2, 138, 18 L.Ed. 281. (Emphasis added.) This may be
an overstatement of the law.

9. Morgan v. Rhodes
456 F.2d 608 (6th Cir. 1972)   Cited 5 times

o Motion to dismiss
o Con. Law - Other
o Con. Law - Due Process

In Morgan, plaintiffs argued that their right to due process was violated
by training programs of the Ohio National Guard which allegedly made
inevitable the unnecessary use of deadly force.
Executive decisions to call out military force have been litigated a number of
times in the history of the Republic. Duncan v. Kahanamoku, 327 U.S. 304, 66
S.Ct. 606, 90 L.Ed. 688 (1946); Sterling v. Constantin, 287 U.S. 378, 53 S.Ct.
190, 77 L.Ed. 375 (1932); Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed.
410 (1909); Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281 (1866); Luther
v. Borden, 7 How. 1, 48 U.S. 1, 12 L.Ed. 581 (1849); Martin v. Mott, 12 Wheat.
19, 25 U.S. 19, 6 L.Ed. 537 (1827). But we find no instance where the courts have
 sought to substitute judicial judgment for the constitutionally empowered
judgment of the executive.

10. Baines v. City of Danville, Virginia

357 F.2d 756 (4th Cir. 1966)   Cited 26 times

o Con. Law - Other

o Con. Law - Equal Protection

3 more...

In Baines, the defendants alleged they were criminally prosecuted for

demonstrating in protest against customs and practices perpetuating
racial segregation.
Senator Trumbull was the chairman of the Senate Committee on the Judiciary and
one of the principal architects of the congressional plan, hotly debated with
Lincoln and Johnson, for reconstruction of the seceding states. Later, after the
Reconstruction Acts' transfer of all judicial authority in the seceding states to
military tribunals was threatened by the Supreme Court's decision in Ex Parte
Milligan, 71 U.S. 2, 18 L.Ed. 281, it was he who undertook the representation of
the United States in McCardle's case. McCardle, a newspaperman, had been
convicted in a military tribunal of sedition because of articles he had published in
his newspaper. Attorney General Stanberry declined to appear for the United
States because of his announced opinions that the Reconstruction Acts were
unconstitutional. Senator Trumbull was called upon to fill the breach.

1. Olvera v. United States

223 F.2d 880 (5th Cir. 1955)   Cited 50 times

o Con. Law - Due Process

Those applicable to this case are found in that clause of the original Constitution
which says, `That the trial of all crime, except in case of impeachment, shall be by
jury;' and in the fourth and sixth articles of the amendments. * * *" Ex parte
Milligan, 4 Wall. 2, 71 U.S. 2, at page 119, 18 L.Ed. 281. "Time has proven the
discernment of our ancestors; for even these provisions, expressed in such plain
English words, that it would seem the ingenuity of man could not evade them, are
now, after the lapse of more than seventy years, sought to be avoided.

2. Easley v. Hunter
 209 F.2d 483 (10th Cir. 1953)   Cited 24 times

o Criminal - False Arrest

o Con. Law - Other

In Easley v. Hunter, 10 Cir., 209 F.2d 483, 487, we said that under the
Burns decision, a military court must give full and fair consideration to
questions relating to the guarantees afforded an accused by the
Constitution, and when this is done, the civil courts will not review its
action.
Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; In re Yamashita, 327
U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499; United States v. Grimley, 137 U.S. 147, 11
S.Ct. 54, 34 L.Ed. 636. It has been indicated in a number of cases that the power
of Congress in the government of the land and naval forces of the United States
are not affected by any of the constitutional amendments. Hiatt v. Brown, supra;
Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255; Ex parte
Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3; Ex parte Milligan, 4 Wall. 2, 71 U.S. 2,
138, 18 L.Ed. 281. The Articles of War and the Uniform Code of Military Justice
both provide that the decisions of the appellate military tribunals shall be final and
binding upon the courts. 10 U.S.C.A. § 1521(h); 50 U.S.C.A. § 663.

3. Burns v. Lovett
202 F.2d 335 (D.C. Cir. 1952)   Cited 15 times

o Motion to dismiss
o Con. Law - Due Process
o Criminal - False Arrest

2 more...

Whelchel v. McDonald, 1950, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141; Hiatt v.
Brown, 1950, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; Dynes v. Hoover, 1858,
20 How. 65, 61 U.S. 65, 15 L.Ed. 838; Johnson v. Sayre, 1895, 158 U.S. 109, 15
S.Ct. 773, 39 L.Ed. 914; Mullan v. United States, 1909, 212 U.S. 516, 29 S.Ct.
330, 53 L.Ed. 632; United States v. Grimley, 1890, 137 U.S. 147, 11 S.Ct. 54, 34
L.Ed. 636; McClaughry v. Deming, 1902, 186 U.S. 49, 69, 22 S.Ct. 786, 46 L.Ed.
1049, 1057-1058; Ex parte Reed, 1879, 100 U.S. 13, 23, 25 L.Ed. 538, 539;
Carter v. McClaughry, 1902, 183 U.S. 365, 392-401, 22 S.Ct. 181, 46 L.Ed. 236,
250-253; Swaim v. United States, 1897, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed.
823; Note, 20 L.R.A., N.S., 413. See also Ex parte Milligan, 1866, 4 Wall. 2, 71
U.S. 2, 18 L. Ed. 281. In re Yamashita, 1946, 327 U.S. 1, 8, 66 S.Ct. 340, 90
L.Ed. 499.

4. Wrublewski v. McInerney
 166 F.2d 243 (9th Cir. 1948)   Cited 1 times

o Criminal - Other
o Criminal - False Arrest
o Department Stores
o Retail

The judgment was subsequently confirmed by the Judge Advocate General. The
district court thought it unnecessary to decide the issue of double jeopardy since it
was of opinion that the specific guaranties of the Fifth Amendment may not be
invoked in cases arising in the land or naval forces of the United States, citing Ex
parte Quirin, 317 U.S. 1, 43, 63 S.Ct. 2, 87 L.Ed. 3; Ex parte Milligan, 4 Wall. 2,
123, 71 U.S. 2, 123, 18 L.Ed. 281, and a few other cases. Contrariwise, we
assume for the purpose of decision that the petitioner is entitled to the protection
of the Amendment's guaranty against being twice put in jeopardy for the same
offense. On that assumption we consider whether he has in truth been exposed to
double jeopardy.

5. Ex Parte Duncan
153 F.2d 943 (9th Cir. 1946)

o Criminal - False Arrest

o Criminal - Other

1 more...

As to this case wherein the ordinary affairs of society are progressing according to
normal pattern, but with pressures here and there, with business and 95% of
government being handled by normal civil agencies, and all courts open, able to
and actually functioning, there is no color of authority for the military to arrest a
civilian, try and convict him, and send him to jail by order of a provost court, and
that without the right of a jury. The landmark case, Ex parte Milligan, 71 U.S. 2,
18 L.Ed. 281 as it seems to me, rests upon sound reasoning in its essence. The
liberal excerpts in the report of this case from the arguments constitute on the part
of the petitioner's counsel admirable essays on the struggle for liberty with long
and able reaches into history by great and honorable men. For the most part this
cannot be said for the respondent's side.

6. Toyosaburo Korematsu v. United States

140 F.2d 289 (9th Cir. 1944)   Cited 8 times

o Immigration
o Con. Law - Other

2 more...
 This argument is answered in the detailed consideration of the social and legal
relationships of the people of Mongolian blood to the surrounding Caucasian
population in the Pacific Coast states in my dissent in the Hirabayashi case. It is
finally decided against him in the appeal in that case. Korematsu contends that the
principle established in Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281,
applies a fortiori where no hearing of any kind was provided to establish the
disloyalty or military menace of any of the citizens on the way to imprisonment,
much less of Korematsu. It is contended that the prospective hanging of Milligan
presents no difference in principle from the gross cruelty of the military mass
imprisonment and deportation of these citizens. In both cases the civil courts were
functioning.

7. Ex Parte Zimmerman
132 F.2d 442 (9th Cir. 1942)   Cited 12 times

o Criminal - False Arrest

o Criminal - Other

1 more...

In Ex parte Zimmerman, 132 F.2d 442, we held that the privilege of the
writ of habeas corpus was lawfully suspended in the Territory by the
Governor's proclamation of December 7, 1941, issued with approval of
the President. It was thought by the trial court that the suspension was
subsequently terminated by a proclamation of the Governor issued with
Presidential approval on February 8, 1943.
Once the situation returns to normalcy to the extent that civil government can
function, military rule or government vanishes and ceases to exist. Ex parte
Milligan, 4 Wall. 2, 71 U.S. 2, 121, 18 L.Ed. 281. Davis, supra, 305; Winthrop,
supra, 1280. The argument that what was said in that case is dicta, is wholly
unsound, because the government expressly argued that Milligan could be
detained regardless of whether an act of Congress authorized it or not. (pp. 21,
92).

8. Bennett v. Stirling
170 F. Supp. 3d 851 (D.S.C. 2016)   Cited 7 times

o Motion for summary judgment

o Con. Law - Due Process
o Criminal - False Arrest

2 more...
 This vigor in eradicating racial discrimination from the criminal justice system is
grounded on the premise that “the inestimable privilege of trial by jury ... is a vital
principle, underlying the whole administration of criminal justice.” Ex parte
Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866). “The risk of racial prejudice
infecting a capital sentencing proceeding is especially serious in light of the
complete finality of the death sentence.”

9. Al Warafi v. Obama
Civil Action No. 09-2368 (RCL) (D.D.C. Jul. 30, 2015)   Cited 1 times

o Criminal - False Arrest

o Criminal - Other

as critical as the Government's interest may be in detaining those who actually

pose an immediate threat to the national security of the United States during
ongoing international conflict, history and common sense teach us that an
unchecked system of detention carries the potential to become a means for
oppression and abuse of others who do not present that sort of threat. 542 U.S.
507, 530 (citing Ex parte Milligan, 4 Wall. 2, 125 (1866)). Perhaps with that risk
in mind, Hamdi held that the AUMF's detention authorization turns partly on
whether "the record establishes that United States troops are still involved in
active combat in Afghanistan."

10. United States v. Hamdan

801 F. Supp. 2d 1247 (D. Haw. 2011)   Cited 3 times

o Motion to dismiss
o Con. Law - Equal Protection
o Criminal - Other

4 more...

In Hamdan, noncompliance with the requirement that “judgment [be]

pronounced by a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable by civilized peoples,”
id. at 630, 632, 126 S.Ct. 2749 (citing GCIII, art. 3, ¶ 1(d), 6 U.S.T. at
3320), provided one of the two primary bases for the Supreme Court's
conclusion that the military commission convened under Military
Commission Order No. 1, lacked the authority to try Hamdan.
But neither can the President, in war more than in peace, intrude upon the proper
authority of Congress, nor Congress upon the proper authority of the President....
Congress cannot direct the conduct of campaigns, nor can the President, or any
commander under him, without the sanction of Congress, institute tribunals for
the trial and punishment of offences, either of soldiers or civilians, unless in cases
 of a controlling necessity, which justifies what it compels, or at least insures acts
of indemnity from the justice of the legislature. Id. at 591–92, 126 S.Ct. 2749
(quoting Ex parte Milligan, 71 U.S. 2, 139–40, 4 Wall. 2, 18 L.Ed. 281 (1866);
citation omitted). The Court found appellant's initial military commission
substantially deviated from regular court-martial practice, and the record lacked
an adequate demonstration that procedures more similar to courts-martial were
not practicable.

1. Gherebi v. Obama
609 F. Supp. 2d 43 (D.D.C. 2009)   Cited 28 times

o Motion to dismiss
o Con. Law - Other

Accepting both “part of” and “substantial support” but imposing

significant limits on what “substantial support” may encompass
See id. at 9 (citing Rona, supra, at 240-41, and Brief for Amici Curiae Experts in
the Law of War, al-Marri v. Spagone, No. 08-368, at 22 (Jan. 28, 2009) (the "Law
of War Experts' Br.")). Khan also cites Ex parte Milligan, 71 U.S. 2 (1866), as a
case that "squarely addresses the authority of the Executive to detain civilians
under law of war principles applicable to non-international armed conflict[s]."
Khan Mem. at 15 (emphasis removed).

2. Doe v. Gonzales
500 F. Supp. 2d 379 (S.D.N.Y. 2007)   Cited 10 times

o Motion for summary judgment

o Motion to dismiss
o Con. Law - Other
o Process Causes - Judicial Review
o Public Policy Research and Advocacy
o Civic, Non-Profit and Membership Groups

6 more...

Holding that non-disclosure restrictions upon national security letter

recipients are content-based
The interpretation of the laws is a proper and peculiar province of the
courts."Marbury, 5 U.S. at 178; see also Hamdi v. Rumsfeld, 542 U.S. 507, 536,
124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) ("We have long since made clear that a
state of war is not a blank check for the President when it comes to the rights of
the Nation's citizens."); Home Bldg. Loan Ass'n v. Blaesdell, 290 U.S. 398, 426
 (1934) ("[E]ven the war power does not remove constitutional limitations
safeguarding essential liberties."); Ex parte Milligan, 71 U.S. 2, 120-21 (1866). b.
Application of the Principles Separation of Powers

3. U.S. v. Eppolito
436 F. Supp. 2d 532 (E.D.N.Y. 2006)   Cited 12 times

o Motion to dismiss
o Racketeering - Common Law Conspiracy
o Criminal - Other

2 more...

Even during the great emergency of the Civil War, the courts rejected the theory
that the rule of law could be twisted to meet the exigencies of the moment. In Ex
Parte Milligan, 71 U.S. 2, 120-121, 4 Wall. 2 (1866), the Court wrote: "The
Constitution of the United States is a law for rulers and people, equally in war and
in peace, and covers with the shield of its protection all classes of men, at all
times, and under all circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of government.

4. U.S. ex Rel. New v. Rumsfeld

350 F. Supp. 2d 80 (D.D.C. 2004)   Cited 10 times

o Motion to dismiss
o Criminal - False Arrest
o Con. Law - Due Process

2 more...

Finding full and fair consideration of an issue where it had been "fully
litigated at trial and considered carefully by the military court of appeals"
"[M]ilitary tribunals have not been and probably never can be constituted in such
way that they can have the same kind of qualifications that the Constitution has
deemed essential to fair trials of civilians in federal courts." Toth v. Quarles, 350
U.S. 11, 17-18, 76 S.Ct. 1, 100 L.Ed. 8 (1955); see also Whelchel v. McDonald,
340 U.S. 122, 127, 71 S.Ct. 146, 95 L.Ed.141 (1950) (right to trial by jury
guaranteed by Sixth Amendment not applicable to trials by courts-martial or
military commissions); Ex Parte Quirin, 317 U.S. 1, 40-41 (1942) ( Sixth
Amendment right to jury trial does not extend to trial by military commission); Ex
Parte Milligan, 71 U.S. 2, 123 (1866) ( Sixth Amendment right to jury trial
limited to persons subject to indictment or presentment in civilian courts under
Fifth Amendment). To the extent that a right to jury trial exists in this context, it is
a creation of the Uniform Code of Military Justice, not the United States
 Constitution. Perhaps recognizing the inapplicability of the Sixth Amendment in
this context, plaintiff attempts to frame theGaudin question as one of simple due
process.

5. U.S. v. Angleton
221 F. Supp. 2d 696 (S.D. Tex. 2002)   Cited 10 times

o Motion to dismiss
o Criminal - Other
o Equitable Contract - Equitable Estoppel

3 more...

Observing that "most of the courts that have considered collateral

estoppel in successive prosecutions by separate sovereigns have applied
the standards of the dual sovereignty doctrine and its exception"
" Id. Angleton contends that this is that rare case. See, e.g., Ex Parte Milligan, 71
U.S. 2, 44 n. 31 (1866) (citing Houston v. Moore as supporting the position that a
person is not subject to a United States Court Martial until he has gone to the
place of rendezvous and been enrolled and mustered into the national militia);
State of California v. Zook, 336 U.S. 725, 750 n. 13 (1949) (citing Houston v.
Moore as holding that where Congress has exercised its power, the states may not
add to the provisions of Congress); United States v. Wheeler, 435 U.S. 313, 317
n. 7 (1978) (citing Houston v. Moore as having noted "the problems arising from
concurrent federal and state criminal jurisdiction"); United States v. Emerson, 270
F.3d 203, 249 n. 57 (5th Cir. 2001) (citing Houston v. Moore as holding that the
states retain the power to organize, train, and regulate militia consistent with
federal law). Angleton's argument is that section 1958 incorporates in haec verba
the Texas capital murder statute under which he was previously acquitted.

6. U.S. v. Rahmani
209 F. Supp. 2d 1045 (C.D. Cal. 2002)   Cited 8 times   1 Legal Analyses

o Motion to dismiss
o Con. Law - Due Process
o Process Causes - Judicial Review

1 more...

Finding individual defendant had standing to challenge an

organization's designation and that § 1189 is unconstitutional
'" Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-65, 83 S.Ct. 554, 9 L.Ed.2d
644 (1963) quoting Ex Parte Milligan, 4 Wall. 2, 71 U.S. 2, 123, 18 L.Ed. 281
(1866). The government also cites, in footnote 4 of its supplemental brief,
 numerous cases where the Supreme Court found statutes unconstitutional but,
nevertheless, upheld actions that occurred under the unconstitutional scheme.

7. Thompson v. Parker
308 F. Supp. 904 (M.D. Pa. 1970)   Cited 9 times

o Motion to dismiss
o Criminal - Other
o Criminal - False Arrest

1 more...

In Thompson v. Parker, 308 F. Supp. 904 (M.D.Pa. 1970), the Court

denied retroactive effect to O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct.
1683, 23 L.Ed.2d 291 (1969), emphasizing the effect on the
administration of justice.
' Id., at 240-241, 80 S.Ct. at 301. In these cases and many others, Ex parte
Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866); Coleman v. Tennessee, 97 U.S.
509, 24 L.Ed. 1118 (1879); Smith v. Whitney, 116 U.S. 167, 184-185, 6 S.Ct.
570, 29 L.Ed. 601 (1886); Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 39
L.Ed. 914 (1895); Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 51
L.Ed. 1084 (1907), this Court has consistently asserted that military `status' is a
necessary and sufficient condition for the exercise of court-martial jurisdiction.
The Court has never previously questioned what the language of Clause 14 would
seem to make plain — that, given the requisite military status, it is for Congress
and not the Judiciary to determine the appropriate subject-matter jurisdiction of
courts-martial.

8. Dash v. Commanding General

307 F. Supp. 849 (D.S.C. 1969)   Cited 22 times

o Motion for summary judgment

o Con. Law - Other

" Chief Justice Warren in The Bill of Rights and the Military, 37 N.Y.
Univ.L.Rev. 181, 186-7 (1962) has stated the proper judicial role in this
connection thus: Ex Parte Milligan (1866), 4 Wall. 2, 71 U.S. 2, 138, 18 L.Ed.
281; Reaves v. Ainsworth (1911) 219 U.S. 296, 304, 31 S.Ct. 230, 55 L.Ed. 225;
Miller, A Long Look at Article 15, 28 Mil.L.R. 37, 47. Miller, A Long Look at
Article 15, 28 Mil.L.R. 37, 48-9; United States v. Voorhees (1954) 4 U.S.C.M.A.
509; United States v. Jacoby (1960) 11 U.S.C.M.A. 428.

9. In re Faiola's Petition
 185 F. Supp. 564 (D.N.J. 1960)

o Criminal - False Arrest

o Criminal - Other

3 more...

I am therefore called upon to review the prior record of proceedings in the

petitioner's case in order to determine whether I should entertain the petition,
assign counsel to petitioner's representation, and hold a hearing. 28 U.S.C. §
2243; Howard v. United States, 8 Cir., 1960, 274 F.2d 100; Ex parte Milligan,
1866, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281. The first asserted violation of his
constitutional rights is to be found in petitioner's contention that the trial court
before which he was convicted, improperly limited petitioner's cross-examination
of a "self-confessed accomplice" called as a witness by the State. Petitioner
contends that such limitation of cross-examination amounted to a deprivation of
due process of law in violation of the Fourteenth Amendment, and a denial of
petitioner's right to be confronted with witnesses as guaranteed by the Sixth
Amendment to the Constitution. He does not, however, argue this contention in
his accompanying brief. It is, of course, elementary that a trial judge is under a
duty to impose reasonable limitations upon the scope of the cross-examination of
a witness and the propriety of such limitations as he may impose thereon is within
his sound discretion.

10. United States v. Bohlander

167 F. Supp. 791 (D. Colo. 1958)   Cited 5 times

o Criminal - False Arrest

On the other hand, a few cases have refused court martial jurisdiction when it was
clear that the person attempted to be court martialed was a civilian with no
relationship to the armed forces. The first of these cases was Ex parte Milligan,
1866, 4 Wall. 2, 107, 71 U.S. 2, 107, 18 L.Ed. 281, where a civilian was arrested
in Indiana and tried by a military commission for offenses against the United
States committed during wartime. The Court held that there was no jurisdiction on
the ground that military tribunals could not constitutionally be substituted for civil
courts that were open and operating in the proper and unobstructed exercise of
their jurisdiction.

1. United States v. Best

76 F. Supp. 857 (D. Mass. 1948)   Cited 8 times
 o Con. Law - Other
o Criminal - Search and Seizure

It must include the power to consolidate the gains so made by a military

occupation or a military government. Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 141,
18 L.Ed. 281. Under the circumstances pertaining in Austria during March, 1946,
described above, the overwhelming necessity of summary type action is apparent.

2. United States v. Fenno

76 F. Supp. 203 (D. Conn. 1947)   Cited 5 times

o Criminal - Other
o Criminal - False Arrest

United States v. Tyler, 1881, 105 U.S. 244, 26 L.Ed. 985. Ex parte Milligan,
1866, 71 U.S. 2, 123, 4 Wall. 2, 123, 18 L.Ed. 281. In the history of our military
and Naval establishments can be found a long series of expedients adopted to
provide for the national defense without depending solely upon large professional
military and Naval forces.

3. Wade v. Hunter
72 F. Supp. 755 (D. Kan. 1947)   Cited 7 times

o Criminal - Other
o Criminal - False Arrest

" This language is characterized by counsel for respondent as obiter dictum,

inasmuch as the discussion in which it is contained seems to be broader than the
issue under consideration; but while the question now raised is not precisely the
same as the one before the court in the cited case, this court is constrained to
accept the quoted statement as a correct exposition of the principle of law to be
applied. Ex parte Milligan, 4 Wall. 2, 123, 71 U.S. 2, 123, 18 L.Ed. 281. Grafton
v. United States, 206 U.S. 333, 27 S.Ct. 749, 754, 51 L.Ed. 1084, 11 Ann.Cas.
640.

4. In re Wrublewski
71 F. Supp. 143 (S.D. Cal. 1947)   Cited 4 times

o Motion to dismiss
o Con. Law - Due Process
o Criminal - False Arrest

1 more...
 To resolve the jurisdictional issue, it is not necessary to decide whether a court
martial conviction of the crime of manslaughter, where there has been a previous
trial of the crime of assault with intent to commit murder, amounts to double
jeopardy. This is for the reason that the specific guaranties of the 5th amendment
to the Constitution relating to criminal prosecutions may not be invoked in "cases
arising in the land or naval forces" of the United States. Ex parte Quirin, 317 U.S.
1, 43, 63 S.Ct. 2, 87 L.Ed. 3; Ex parte Milligan, 71 U.S. 2, 123, 18 L.Ed. 281;
United States ex rel. Innes v. Crystal, 2 Cir., 131 F.2d 576; Ex parte Benton, D.C.,
63 F. Supp. 808. The naval court's decision denying the plea of double jeopardy
may have been erroneous. But such errors of law by courts martial are not of
themselves reviewable or correctible in the civil courts.

5. United States v. Pownall

65 F. Supp. 147 (S.D. Cal. 1946)   Cited 13 times

o Motion for summary judgment

This cannot be done. It is quite true, as a general proposition, that the Constitution
governs in time of crisis or war, as well as in time of peace. Ex parte Milligan,
1866, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281; Home Building Loan Association v.
Blaisdell, 1934, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481.
However, restrictions on personal and property rights are sustained in time of war
which would not be given judicial sanction in peace time.

6. Ex Parte Benton
63 F. Supp. 808 (N.D. Cal. 1945)   Cited 6 times

o Motion to dismiss
o Con. Law - Due Process
o Criminal - False Arrest

But petitioner claims that the military court which tried and sentenced him lacked
jurisdiction because he did not have the effective assistance of counsel for his
defense as guaranteed by the Constitution (Amdt. VI), citing the well-known
cases of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R.
527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R.
357; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Glasser v.
United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. This contention of
petitioner is legally unsound because the constitutional guarantees of the 5th and
6th amendments relating to criminal prosecutions may not be invoked in "cases
arising in the land or naval forces" of the United States. Ex parte Quirin, 317 U.S.
1, 43, 63 S.Ct. 1, 2, 18, 87 L.Ed. 3; Ex parte Milligan, 71 U.S. 2, 123, 4 Wall. 2,
123, 18 L.Ed. 281; United States ex rel. Innes v. Crystal, 2 Cir., 131 F.2d 576. As
stated by Chief Justice Stone in Ex parte Quirin, supra, in "cases arising in the
land or naval forces" presentments or indictments by a Grand Jury are not
 required nor is public trial by jury guaranteed. The specific guarantees of the 5th
and 6th amendments relating to criminal prosecutions do not apply to petitioner.

7. Rosborough v. Rossell
56 F. Supp. 347 (D. Me. 1944)   Cited 2 times

The offense specified in Article 6 is undoubtedly murder, but murder is not

necessarily the offense specified in Article 6. The right of the Army and Navy to
punish the personnel of their own forces for breaches of discipline and for crimes
cannot be doubted. Ex parte Milligan, 71 U.S. 2, 123, 18 L.Ed. 281. Some
incidental questions are raised, including the right to convict of manslaughter on a
charge of murder.

8. Ex Parte Spurlock
66 F. Supp. 997 (D. Haw. 1944)   Cited 1 times

Respondent's Exhibits Nos. 2, 7. Ex parte Milligan, 1866, 71 U.S. 2, 4 Wall. 2, 18

L.Ed. 281. This all sounds very nice until you examine it and realize that the civil
courts can be open and functioning — as they were here December 8 until they
were closed by military order — and martial law can still be valid.

9. United States v. Maviglia

52 F. Supp. 946 (D.N.J. 1943)   Cited 1 times

o Criminal - Other
o Fraud - Other

1 more...

In its zeal to protect semblances of them the nation should not leave itself
vulnerable to their loss entirely. The language cited by defendant from the case
of Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L. Ed. 281, brooks no argument. It
was used in connection with the protection of a citizen by the court in his right to
be tried by a civil tribunal for offenses alleged to have been committed by him
while he was not engaged in any military service and for which he had been
sentenced to death by a military commission. That there was a question of the
invasion of his "essential liberty" cannot be doubted.

10. Hammond v. Squier

51 F. Supp. 227 (W.D. Wash. 1943)   Cited 3 times

o Criminal - False Arrest

 The matter is one of great moment in a period such as we are now experiencing,
because no one can justify any interference with the successful conduct and
prosecution of the war against our enemies, and equally important is the fact that
constitutional rights and privileges of the citizen must not be usurped, disregarded
or destroyed at any time. The celebrated case of Ex parte Milligan, 4 Wall 2, 71
U.S. 2, 141, 18 L.Ed. 281, has been the beacon light and guide of the courts in
passing upon a matter such as is presented in the instant case. A statement in the
concurring opinion written by the distinguished Chief Justice of the Supreme
Court at that time, Samuel P. Chase, is directly in point in a consideration of the
principles of law applicable to this case: "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 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.

1. United States v. Minoru Yasui

48 F. Supp. 40 (D. Or. 1942)   Cited 6 times

o Criminal - False Arrest

o Con. Law - Other

1 more...

Grave danger exists that otherwise the findings might be used as a basis for
unwarrantable action in other times. Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 18
L.Ed. 281. The fact that the problem of the Japanese citizen and alien, resident in
the states bordering the Pacific, has been solved by the army officers in charge,
aided by the acquiescence of the vast majority of the American citizens of that
race, does not relieve the court from the responsibility of determining the case as
here presented.

2. Terry v. United States

2 F. Supp. 962 (W.D. Wash. 1933)   Cited 6 times

o Fraud - Other
o Criminal - Other

Do the words refer to the time the offense is alleged to have been committed or
the time steps are taken looking to a trial for the offense. The Supreme Court, in
discussing the 5th Amendment, said, in Ex parte Milligan, 71 U.S. 2 at page 123,
 18 L. Ed. 281: "The discipline necessary to the efficiency of the army and navy,
required other and swifter modes of trial than are furnished by the common law
courts; and, in pursuance of the power conferred by the Constitution, Congress
has declared the kinds of trial, and the manner in which they shall be conducted,
for offences committed while the party is in the military or naval service." (Italics
now supplied.)

3. Wisconsin Legislature v. Palm

2020 AP 42 (Wis. 2020)

o Con. Law - Other

o Criminal - Other
o Hospitals and Healthcare
o Healthcare Districts

8 more...

Such a doctrine leads directly to anarchy or despotism, but the theory of necessity
on which it is based is false; for the government, within the Constitution, has all
the powers granted to it, which are necessary to preserve its existence; as has been
happily proved by the result of the great effort to throw off its just authority." Ex
parte Milligan, 71 U.S. 2, 120-21 (1866) (emphasis added). It is especially in
times of emergency that we must protect the rights of the people, lest we establish
a dangerous precedent empowering less benevolent government officials in the
future to oppress the people in the name of exigency.

4. McGinnes Indus. Maint. Corp. v. Phx. Ins. Co.

58 Tex. Sup. Ct. J. 1439 (Tex. 2015)   Cited 8 times   3 Legal Analyses

o Regulatory - HAZMAT
o Contract - Insurance

5 more...

Responding to fifth circuit certified question

So has the United States Supreme Court, from which we first quoted our
definition. See Weston, 27 U.S. at 454; Fed. Hous. Admin., Region No. 4 v. Burr,
309 U.S. 242, 247 n. 8, 60 S.Ct. 488, 84 L.Ed. 724 (1940); Upshur Cnty. v. Rich,
135 U.S. 467, 474, 10 S.Ct. 651, 34 L.Ed. 196 (1890); Kohl v. United States, 91
U.S. 367, 375–76, 23 L.Ed. 449 (1875); Case of Sewing Mach. Cos., 85 U.S. 553,
585, 18 Wall. 553, 21 L.Ed. 914 (1873); Ex parte Milligan, 71 U.S. 2, 112–13, 4
Wall. 2, 18 L.Ed. 281 (1866).10 Faced with this clear precedent, the Court agrees
today that the common, ordinary meaning of “suit” is “a proceeding in court.”

5. Heaton v. Quinn
 2015 IL 118585 (Ill. 2015)   Cited 32 times   4 Legal Analyses

o Motion for summary judgment

o Labor & Employ. - Other
o Con. Law - Equal Protection
o State, Provincial or Regional Government
o Government

Stating that “[n]either the legislature nor any executive or judicial officer
may disregard the provisions of the constitution even in case of a great
emergency”
Such a doctrine leads directly to anarchy or despotism * * *.” (Emphasis in
original.) Ex parte Milligan , 71 U.S. 2, 120–21, 4 Wall. 2, 18 L.Ed. 281 (1866).¶
87 The financial challenges facing state and local governments in Illinois are well
known and significant.

6. Songer v. Civitas Bank

771 N.E.2d 61 (Ind. 2002)   Cited 26 times

o Contract - Other
o Fraud - Other
o Banks

3 more...

Holding where the essential features of a suit sound in equity, the entire
controversy is drawn into equity, including incidental questions of a legal
nature
We disagree. As the U.S. Supreme Court said in Ex parte Milligan, 71 U.S. 2, 112
(1866), the terms "cause" and "suit" are interchangeable. The same is not
necessarily true for "cause" and "cause of action."

7. Ex Parte Banks
769 S.W.2d 539 (Tex. Crim. App. 1989)   Cited 109 times

o Motion to dismiss
o Criminal - False Arrest
o Criminal - Other

3 more...

Holding "the Great Writ should not be used to litigate matters which
should have been raised on appeal"
 This kind of thinking is not new, however. During the Civil War, efforts were
made to suspend the Great Writ. See Ex parte Milligan, 71 U.S. 2, 4 Wall. 2, 18
L.Ed. 281 (1866). Interestingly, there is no provision in the Federal Bill of Rights
that pertains to the Great Writ.

8. Bergfeld v. State
531 N.E.2d 486 (Ind. 1988)   Cited 31 times

o Con. Law - Other

o Criminal - Search and Seizure
o State, Provincial or Regional Government
o Government

Holding that "constructive possession" of drugs is "intent and capability

to maintain dominion and control" of the drug.
"The Constitution of the United States is a law for ruler and people, equally in
war and in peace, and covers with the shield of its protection all classes of men, at
all times and under all circumstances."Ex Parte Milligan, 4 Wall. 2, 71 U.S. 2, 18
L.Ed. 281 (1866). The majority of this court apparently disagrees. It realistically
includes an addendum to these provisions reading "except in the war on drugs". It
seems this "war" is no longer of the same class as other wars. Rather, the war on
drugs knows no constitutional limitations.

9. State v. Halczyszak
25 Ohio St. 3d 301 (Ohio 1986)   Cited 126 times

o Con. Law - Other

o Criminal - Other
o State, Provincial or Regional Government
o Government

Affirming the seizure of a VIN plate spotted lying in an open tool box
during the execution of a search warrant for a stolen vehicle but
remanding for a determination on whether other tool boxes were open or
closed with regards to the seizure of other evidence
These provisions, which are "* * * expressed in such plain English words, that it
would seem the ingenuity of man could not evade them, are now, after the lapse
of more than * * * [fifteen] years, sought to be avoided." Ex Parte Milligan
(1866), 71 U.S. (4 Wall.) 120. "[T]hese safeguards need, and should receive, the
watchful care of those intrusted with the guardianship of the Constitution and
laws. In no other way can we transmit to posterity unimpaired the blessings of
liberty, consecrated by the sacrifices of the Revolution.

10. State v. Gervasio

 94 N.J. 23 (N.J. 1983)   Cited 9 times

o Con. Law - Other

o Criminal - Other
o State, Provincial or Regional Government
o Government

In State v. Gervasio, 94 N.J. 23, 27 (1983), we relied on the "clear break"

test articulated in Johnson in holding that the Supreme Court's ruling in
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)
(random stops of vehicles on public roads violates fourth amendment)
should not be applied retroactively.
. . . The Court long and consistently had recognized that military status in itself
was sufficient for the exercise of court-martial jurisdiction. Kinsella vSingleton,
361 U.S. 234, 240-241, 243, 4 L Ed 2d 268, 80 S Ct 297 [300-01, 302] (1960);
Reid v Covert, 354 U.S. 1, 22-23, 1 L Ed 2d 1148, 77 S Ct 1222 [1233-34]
(1957); Grafton v United States, 206 U.S. 333, 348, 51 L Ed 1084, 27 S Ct 749
[752] (1907); Johnson v Sayre, 158 U.S. 109, 114, 39 L Ed 914, 15 S Ct 773
[775] (1895); Smith v. Whitney, 116 U.S. 167, 184-185, 29 L Ed 601, 6 S Ct 570
[579] (1886); Coleman v. Tennessee, 97 U.S. 509, 24 L Ed 1118 (1879); Ex parte
Milligan, 4 Wall 2, 123, 18 L Ed 281 (1866). In Adams v. Illinois, 405 U.S. 278,
283-84, 92 S.Ct. 916, 919-20, 31 L.Ed.2d 202, 208-09 (1972), the Court stated:

1. State v. Credit Bureau of Laredo Inc.

530 S.W.2d 288 (Tex. 1975)   Cited 52 times

o Consumer - Unfair and Deceptive Practices

o Consumer - Other
o State, Provincial or Regional Government
o Government

2 more...

In Credit Bureau, we concluded that a suit for civil penalties for violation
of an injunction issued pursuant to the Texas Deceptive Trade Practices
Act was analogous to the common law action for debt, tried to a jury at
the time our constitution was adopted.
The term 'cause' is defined in Black, Law Dictionary (4th ed. 1951), as 'a suit,
litigation, or action. Any question, civil or criminal, litigated or contested before a
court of justice.' The United States Supreme Court in Ex parte Milligan, 71 U.S.
2, 112, 18 L.Ed. 281 (1866), stated that in any legal sense, 'action,' 'suit' and
'cause' are convertible terms. The court then defined the terms to mean any legal
 process which a party institutes to obtain his demand or by which he seeks his
right.

2. People v. Kelley
66 Cal.2d 232 (Cal. 1967)   Cited 199 times

o Con. Law - Due Process

o Criminal - Other

In People v. Kelley (1967) 66 Cal.2d 232, 57 Cal.Rptr. 363, 424 P.2d 947,
we found the trial court erred in admitting evidence of the defendant's
unlawfully obtained confessions to uncharged sexual acts as
circumstantial proof that he committed the charged offenses.
In an early case it was stated that all of the guarantees of the Bill of Rights do not
apply to the military. ( Ex parte Milligan, 71 U.S. 2 [18 L.Ed. 281].) It has been
stated that the military law is itself due process. ( Reaves v. Ainsworth, 219 U.S.
296, 304 [55 L.Ed. 225, 31 S.Ct. 230].)

3. State v. Levitt
203 N.E.2d 821 (Ind. 1965)   Cited 5 times

o Con. Law - Other

o State, Provincial or Regional Government
o Government

In State v. Levitt (1965), 246 Ind. 275, 281, 203 N.E.2d 821, 824, our
supreme court stated that "no right, constitutional, fundamental or
otherwise, is absolute and unlimited....
During the Civil War an organization known as the Knights of the Golden Circle,
or Sons of Liberty, conspired to overthrow the state government of Indiana. The
organization was arranging an invasion of the state with the Confederate
commanders when the overthrow was thwarted by the arrest of some of the
organization's leaders and the confiscation of guns and ammunition being shipped
into the state for use of the Sons of Liberty. One of the arrested leaders applied to
the United States Supreme Court for a writ of habeas corpus in Ex Parte Milligan
(1866), 71 U.S. (4 Wall) 2, 18 L.Ed. 281. Just how the so-called doctrine of
"imminent danger" has any relevancy here is difficult to discern.

4. Randolph v. State
234 Ind. 57 (Ind. 1954)   Cited 41 times

o Motion to dismiss
o Equitable Contract - Equitable Estoppel
 o Process Causes - Other
o State, Provincial or Regional Government
o Government

In this dissent Judge Emmert also quoted with approval from Chief Justice Stone
in Exparte Quirin (1942), 317 U.S. 1, 25, 63 S.Ct. 2, 9, 87 L.Ed. 3, 11, thus:
"Constitutional safeguards for the protection of all who are charged with offenses
are not to be disregarded in order to inflict merited punishment on some who are
guilty. Ex Parte Milligan (1866), 4 Wall. 107, 18 L.Ed. 295, 299; Tumey v. Ohio,
273 U.S. 510, 535, 71 L.Ed. 749, 759, 50 A.L.R. 1243; Hill v. Texas (1942), 316
U.S. 400, 406, 86 L.Ed. 1559, 1563." I think this was good law when it was
written, that it is good law today and that it will continue to be as long as we
remain a free people.

5. Witte v. Dowd
102 N.E.2d 630 (Ind. 1951)   Cited 26 times

o Criminal - False Arrest

o Criminal - Other

1 more...

In Witte v. Dowd, Warden (1951), 230 Ind. 485, 496, 102 N.E.2d 630, we
held an accused charged with an habitual criminal offense could enter a
plea of guilty, which not only 3. admitted the crime charged but also the
prior convictions.
Greencastle Township et al. v. Black (1854), 5 Ind. 557, 564. See authorities in
State ex rel. Cline et al. v. Schricker, Governor et al. (1949), 228 Ind. 41, 70, 89
N.E.2d 547; Ellingham v. Dye (1912), 178 Ind. 336, 342, 99 N.E. 1; Ex Parte
Milligan (1866), 4 Wall. 2, 18 L.Ed. 281, 295. Prior to the enactment of this
statute this court consistently adhered to the rule:

6. State ex Rel. Cline v. Schricker

228 Ind. 41 (Ind. 1949)   Cited 21 times

o Fraud - Other

In State ex rel. Cline v. Schricker (1949), 228 Ind. 41, 47, 88 N.E.2d 746,
748 we said: "* * * This is a rule of substantive law and not of evidence,
and there is no pleading known to the law by which the existence of an
act can be put in issue and tried as a question of fact."
"The Constitution of the United States is a law for rulers and people, equally in
war and in peace, and covers with the shield of its protection all classes of men, at
 all times, and under all circumstances." Ex Parte Milligan (1866), 4 Wall. 2, 18
L.Ed. 281, 295. The Alabama Supreme Court has correctly said:

7. Meisinger v. State
155 Md. 195 (Md. 1928)   Cited 42 times

o Criminal - Search and Seizure

o Con. Law - Other
o State, Provincial or Regional Government
o Government

3 more...

In Meisinger, the first post- Weeks case in which the question of an

exclusionary rule under State law was presented to the Court of Appeals,
the Court explicitly rejected the thennascent federal exclusionary rule as
a State constitutional requirement for evidence seized in violation of State
law.
Greater efficiency in administration at the price of unlawful official methods is
not paramount to the duty of the judiciary to secure personal liberty under the law
to the citizen. Ex parte Milligan, 4 Wall. (U.S.) 2; Byars v. United States, 273
U.S. 28; Boyd v. United States, 116 U.S. 616; Marron v. United States, 275 U.S.
192; Weeks v. United States, 232 U.S. 383; Silverthorn Lumber Co. v. United
States, 251 U.S. 385; Gouled v. United States, 255 U.S. 298; Anno v. United
States, 255 U.S. 313; Carroll v. United States, 267 U.S. 132, 157; Gambino v.
United States, 275 U.S. 310; United States v. Lee, 274 U.S. 559; Agnelo v. United
States, 269 U.S. 20, 70 L.ed. 145. See cases collected in 11 A.L.R. 681; 13 A.L.R.
1, 168; 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 31, 45; 52 A.L.R. 463-489.
Wigmore (2nd Ed.), secs. 2183, 2184, gives the best exposition of the rule for
admissibility. A striking illustration of the lengths to which the doctrine of the
admissibility of this evidence carries is found in the appeal of Richardson v.
Maryland, No. 44, this term, where the evidence obtained was under an illegal
warrant against "John Doe, near Porter's Bridge of 6th District, in said Cecil
County."

8. Highland v. Russell C. S. Plow Co.

135 A. 759 (Pa. 1927)   Cited 2 times

o Criminal - Other
o Con. Law - Due Process

Just compensation is the fair market value of the property at the time and place of
delivery thereof as shown by the current market price in numerous transactions of
purchase and sale: U.S. v. Chandler-Dunbar Co., 229 U.S. 53; Boom Co. v.
 Patterson, 98 U.S. 403. The Lever Act does not pretend to provide a method of
compensation for those whose right to contract has been restricted in pursuance
thereof: Ex Parte Milligan, 71 U.S. 2; Morrisdale Coal Co. v. U.S., 259 U.S. 189;
Frisbie v. U.S., 157 U.S. 160. A. M. Liveright, for appellee, was not heard.

9. People ex Rel. Smith v. Hoffman

60 N.E. 187 (N.Y. 1901)   Cited 18 times

o Motion to dismiss
o State, Provincial or Regional Government
o Government

The subject, however, is treated with reference to a standing army rather than the
militia of the various states. ( Dynes v. Hoover, 61 U.S. 65, 81; Ex parte Milligan,
71 U.S. 2; Johnson v. Sayre, 158 U.S. 109; 1 Winthrop's Mil. Law, 55; De Hart's
Mil. Law, 226; Maltby's Treatise on Courts-Martial, 151, 158; O'Brien's
American Mil. Law, 222; Davis' Mil. Law, 6.) There is a conflict of authority
between the courts of the different states as to the right of the civil courts to
review the judgments of military tribunals. ( Durham v. U.S., 4 Hayw. [Tenn.] 54;
State v. Davis, 4 N.J.L. 311; Ex parte Dunbar, 14 Mass. 393; Re Contested
Election, 1 Strobh. [S.C.] 190; 4 Encyclo. Pl. Pr. 40.) The courts of England
review such judgments, but cautiously, as the subject requires.

10. Alvarez v. State

No. 03-02-00262-CR (Tex. App. Sep. 11, 2003)   Cited 5 times

o State, Provincial or Regional Government

o Government

Rejecting "sovereign citizen" argument

The district court had the power to hear this case. Appellant's assertion of
immunity from administrative or executive proceedings, see Ex parte Milligan, 71
U.S. 2 (1866), is unavailing because he was tried in a judicial proceeding. District
courts have jurisdiction over felony offenses.

1. Hiatt v. Yergin
152 Ind. App. 497 (Ind. Ct. App. 1972)   Cited 53 times

o Motion to dismiss
o Contract - Other
o Con. Law - Due Process
 3 more...

Rejecting Dairy Queen, Inc. v. Wood, 369 U.S. 469, andBeacon Theatres,
Inc. v. Westover, 359 U.S. 500
The terms "cause," "action," "suit," and "proceeding" have been held to be
interchangeable. Ex Parte Milligan (1866), 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281.
The term "issue," on the other hand, signifies a disputed fact or question of law
contained within a cause of action (claim).

2. Fuller v. State
115 So. 2d 110 (Ala. Crim. App. 1958)   Cited 6 times

Affirming chief deputy sheriff's judgment of conviction for bribery for

accepting periodic monetary payments to permit the operation of a
bordello
Thus, it has never been considered that an enemy soldier, by the mere act of
waging war, is a criminal. It is further argued that this view finds support in Ex
parte Milligan, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281, where the majority opinion
said, "Martial rule can never exist where the courts are open, and in the proper
and unobstructed exercise of their jurisdiction." And the argument of the
Pennsylvania court is answered somewhat by the opinion of Mr. Justice
Somerville in Betty v. State, 188 Ala. 211, 66 So. 457, 458, wherein it is said:

3. State ex Rel. v. Mills

167 P.2d 669 (Okla. Crim. App. 1946)   Cited 12 times

o Motion to dismiss
o Criminal - Other
o Criminal - False Arrest

1 more...

In Cobb, the OCCA determined the "question of double punishment"

was governed by a different statute, OKLA. STAT. tit. 21, § 25 (1941).
' " The court quotes with approval from Ex parte Milligan, 4 Wall. 2, 71 U.S. 2,
123, 18 L.Ed. 281, which is cited and quoted in the original opinion. Near the end
of the opinion, it is said:

4. Highland v. Russell Co.

87 Pa. Super. 235 (Pa. Super. Ct. 1926)   Cited 2 times

o Contract - Other
o Con. Law - Due Process
 Error assigned was the granting of defendant's motion for judgment non obstante
veredicto. Lisle D. McCall, and with him N.F. Womer, for appellant. — The
government did not have the right to fix the price of coal: United States v. Cohen
Grocery Co., 255 U.S. 88; Ex Parte Milligan, 71 U.S. 2, 120; United States v.
Lynah, 188 U.S. 445, 465; Monongahela Nav. Co. v. United States, 148 U.S. 312,
325; U.S. v. Chandler-Dunbar Co., 229 U.S. 53, 80; U.S. v. First National Bank,
et al., 250 Fed. 299, 301; Kamakanui v. United States, 244 Fed. 923, 924. A.M.
Liveright, and with him John M. Chase, 3rd, for appellee. — The fixing of the
price of coal was the proper exercise of Congressional authority: Hamilton v.
Kentucky Distilleries Warehouse Co., 251 U.S. 146; G.B. Newton Coal Co. v.
Davis, Director General, 281 Pa. 74; National City Bank v. U.S., 275 Fed. 855,
281 Fed. 754.

5. Crawford v. Warden
2007 Ct. Sup. 14080 (Conn. Super. Ct. 2007)

o Con. Law - Other

o Con. Law - Due Process

3 more...

Essentially, this means that an appellate tribunal is the state court of last resort.
While both habeas courts and appellate tribunals have been referred to as courts
of last resort, O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999), Ex parte Royall,
supra, Ex Parte Milligan, 71 U.S. 2, 132 (1866), petitioner properly should seek
relief via direct appeal prior to seeking relief via a habeas corpus petition. See
State v. Reid, supra, 277 Conn. 777-78.

6. Matter of James
54 Misc. 2d 514 (N.Y. Misc. 1967)   Cited 3 times

o Con. Law - Due Process

o Con. Law - Other

1 more...

In Matter of James (54 Misc.2d 514, 524) the learned Mr. Justice
SPIEGEL accurately put his finger upon the inevitability that once the
facts appear to have been established in pretrial proceedings, "the right
to a hearing * * * [would be] hollow, meaningless and a mere formality.
(Italics supplied.) In the case of Ex Parte Milligan ( 71 U.S. 2) the court, on page
132, said: "The laws which protect the liberties of the whole people must not be
violated or set aside in order to inflict, even upon the guilty, unauthorized though
merited justice." In Matter of Gault ( 387 U.S. 1, 19-21), Judge FORTAS,
speaking for the majority opinion, said: "Failure to observe the fundamental
requirements of due process has resulted in instances, which might have been
avoided, of unfairness to individuals and inadequate or inaccurate findings of fact
and unfortunate prescriptions of remedy.