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

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We do not deem it important to examine further the adjudged cases, and shall therefore conclude without any additional reference to authorities. And that either of the justices of the Supreme Court, as well as judges of the District Court, shall milljgan power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.

We have no apprehension that this power, under our American system of government, in which all official authority is derived from mulligan 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.

The conclusion does not follow from the premises. Any person regarded as dangerous to the public safety might be arrested and detained until after the session of a grand jury. It has been so understood and exercised from the adoption of the Constitution to the present time.

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. The decision also helped establish the tradition that presidential and military action “based on war” had limits.

The jurisdiction claimed is much more extensive. Ex Parte Milligan, case in which the U. Hovey, commanding the military district of Indiana, and has ever since been kept in close confinement. It has therefore the power to provide by law for carrying on war.

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?

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.


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 [p] in answer to a writ of habeas corpus.

It is now assailed, but if ideas can be expressed in words and language has any pqrte, 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.

Ex parte Milligan | US Law | LII / Legal Information Institute

Two millgan sections limited the authority in certain respects. Civil liberty and this kind of martial law cannot endure [p] together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish. Thus, Massachusetts proposed that “no person shall be tried for any crime by which he would incur mliligan 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.

In some parts of the country, during the war ofour officers made arbitrary arrests and, by military tribunals, tried citizens who were es in the military service.

The prayer of the petition was that, under the act of Congress approved March 3d,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 prte or discharged from custody altogether.

Department of the Army. 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?

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

Chief Justice Chase and three associate justices filed a separate opinion concurring with the majority in the judgment, but asserted that Congress had the power to authorize a military commission, although it had ,illigan done so in Milligan’s case. 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.

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. 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.

The trial and sentence of Milligan were by military commission convened in Indiana during the fall of 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 166 ages. That body did not see fit to authorize trials by military commission in Indiana, but, by the strongest implication, prohibited them.


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

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. Whether this court has jurisdiction upon the certificate of division admits of more question. 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.

Ex parte Milligan

Mikligan check official sources. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed. 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 parfe hopeless, and without remedy.

All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. 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. It is clear that Mr. Help us improve this article! The second section required that lists of parts persons, being citizens of states in which the administration of the laws had continued unimpaired in the Federal courts, who were then held or partd thereafter be held as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished pare the judges of the Circuit and District Courts.

Every state requires a code of laws and regulations for the raising, maintenance, and administration of its armed forces, all of which may be considered the field of military law.