Ex Parte Milligan (1866)


Lambdin. P Milligan was a lawyer residing in Indiana, a member of the Democratic Party, was known for his belief in states’ rights, and openly gave speeches about his support for the Confederacy. He was known to persuade people not to join the Union Army and was suspected of joining efforts to release Confederate prisoners of war in Ohio, Indiana, and Illinois.  In late 1864, Milligan was arrested at his home, which was under General Hovey’s military district; four of his fellow Copperheads were also arrested. Milligan and the other detainees were arrested for conspiring against the United States and giving aid and comfort to the Confederacy. Milligan was tried in a military court sixteen days later under Lincoln’s orders and was sentenced to hang in May 1865. A few weeks before the hanging and after the war had ended, Milligan’s attorney filed for a writ of habeas corpus at a federal court claiming that Milligan should not have been denied his right to a trial by a jury. The lawyer argued that the military courts were unconstitutional and that the president could not suspend the writ of habeas corpus. The Supreme Court agreed in a 9-0 decision and released him from custody.

Timeline 1


Before the Civil War, the country was torn between the idea of national supremacy and states’ rights. This dilemma was somewhat answered during and after the Civil War – and after 600,000 American lives were lost. Throughout the war, the country was divided by these conflicting ideologies. Citizens and businesses had ties with their counterparts in the South. Citizens residing close to the so-called Confederate border were particularly divided in how they perceived the war. Confederate sympathizers and Southern loyalists, who were sometimes referred to as ‘Copperheads,’ were particularly of concern to President Lincoln. They were quite active in southern parts of Ohio, Illinois and Indiana. Maryland almost slipped into the Confederacy throughout the conflict and key battles took place in Kentucky and Missouri, which were slave-owning states.

To combat fears of disloyalty within the Union, President Lincoln issued a state of emergency in the border states between the Union and the Confederacy. This created military districts with military courts to hear any cases related to espionage, rebellious action, or giving aid and comfort to the Confederacy. This enabled the military to try and convict anyone suspected of disloyalty. This also undermined the powers of the still-functioning state and federal courts. The guarantee of due process was also denied as a result of the suspension of the writ of habeas corpus.This writ required detainees to appear before a court to hear why they were arrested. In a Supreme Court case, Ex Parte Merrymen (1861), however, Chief Justice Roger B. Taney’s court overturned the suspension along with President Lincoln’s emergency powers, stating that the executive branch may not solely have this power – if habeas corpus were to be suspended, Congress would have to be in agreement. In 1863 Congress passed the Habeas Corpus Act, which gave President Lincoln broad powers, including suspending the writ of habeas corpus.

“Findlaw’s United States Supreme Court Case And Opinions.”. Findlaw. N.p., 2016. Web. 1 May 2016.

Procedural History

Timeline for Procedural History of Ex Parte Milligan

  • September 19, 1864: Milligan is arrested.
  • October 2, 1864: Milligan is convicted by a military tribunal and sentenced to hang.
  • May 10, 1865: Milligan’s legal council filed a petition to the Circuit Court of the United States for the District of Indiana at Indianapolis.
  • February, 1865: Circuit Court cannot reach a decision and passes the case along to the Supreme Court.
  • May 3, 1865: Supreme Court hears arguments for the case.
  • April 3, 1865: Supreme Court rules 9-0 in favor of Milligan and he is released from custody.

“The Supreme Court . The First Hundred Years . Landmark Cases . Ex Parte Milligan (1866) | PBS”. Pbs.org. N.p., 2016. Web. 1 May 2016.


The main issues that Milligan and his legal counsel brought to the Supreme Court were:

  • Should Milligan be released from custody?
  • Was it constitutional for the military tribunal to arrest and charge Milligan?
  • Should Milligan be granted the right for a writ of habeas corpus?

The issues the court exclusively considered was whether Milligan’s trial by the military tribunal was constitutional and whether or not Milligan should be released.

Arguments by Petitioner

For the petitioner, Milligan:

  • Milligan’s counsel argued that the framers of the Constitution intended to keep executive power in check to prevent tyranny. They argued that since Congress has the power to raise and support armies, it would not make sense for the president to have absolute power over the military.
  • The power to suspend the writ of habeas corpus lies with Congress and not the president – Article 1 of the Constitution grants Congress this power. They cited the debates held between the framers and the relationship to the English laws the Constitution was based on.
  • Only military personnel and spies in times of war or rebellion have historically been subject to military tribunals. Lambdin Milligan was a free citizen, and the regular state and federal courts were still active and should take precedence over military tribunals.
  • The Fifth Amendment of the Constitution states that only military personnel are subject to military tribunals in times of both war and peace.

Arguments by Respondent

The Respondent, United States, made the following arguments:

  • The president, being Commander in Chief, has the constitutional authority to suspend the writ of habeas corpus.
  • The Constitution does intend to limit the executive branch’s war powers only by granting Congress power to declare war. During a time of war, the president has the right and power to face immediate problems using speed that the legislative branch lacks.
  • The president, being Commander in Chief, has the power to set up military districts where needed.
  • The president has the power to arrest, try, or punish anyone who aids the enemy regardless of residency classification.
  • The Second, Fourth, and Fifth Amendments fall silent during times of war.



The Supreme Court ruled 9-0 in favor of Milligan in all three issues raised during the case.

  • Should Milligan be released from custody?
    • Yes, he should be released from custody.
  • Was it constitutional for the military tribunal to arrest and charge Milligan?
    • The military tribunal arrest and conviction was unconstitutional.
  • Should Milligan be granted the right for a writ of habeas corpus?
    • Yes he should be granted the right for a writ of habeas corpus.

Ex parte Milligan 71 U.S. 2 (1866). (n.d.). Retrieved May 01, 2016, from https://supreme.justia.com/cases/federal/us/71/2/case.html

Majority Opinion (author)

Justice Davis wrote the majority opinion, which was joined by Justices Clifford, Field, Grier, and Nelson. The majority opinion stated that so long as civil courts were active at home, it was unconstitutional to try American citizens by military tribunal. They also said that Congress did not have the power to authorize military commission in Indiana.

The majority also laid out the three situations where military tribunals were appropriate. They stated that Milligan must be released immediately as his rights had been violated and he had not been given due process of law.

Ex parte Milligan 71 U.S. 2 (1866). (n.d.). Retrieved May 01, 2016, from https://supreme.justia.com/cases/federal/us/71/2/case.html

Concurring Opinion (author)

Justice Salmon wrote a concurring opinion, which was joined by Justices Wayne, Swayne, and Miller. As mentioned before, they concurred with the majority in the judgment, but disagreed with the idea that Congress didn’t have the power to authorize military commissions in Indiana.

The key point was that Congress “has the power not only to raise and support and govern armies, but to declare war.” Civil courts were described as “wholly incompetent to avert threatened danger or to punish,” and that “In times of rebellion and civil war,… judges and marshals will be in active sympathy with the rebels.” This gave further reason for the Judges to rule that military commissions from the federal government could be implemented domestically.

Ex parte Milligan 71 U.S. 2 (1866). (n.d.). Retrieved May 01, 2016, from https://supreme.justia.com/cases/federal/us/71/2/case.html

Dissenting Opinion (author)

No dissenting opinions.

Full Text of Opinions


Majority Opinion

Concurring Opinion

Significance / Impact

The 9-0 decision that the Supreme Court handed down had an both an immediate and lasting impact on the US government’s power to impose martial law. Their decision put a huge limit on the government’s ability to indefinitely detain American citizens seen as a threat. It was a landmark decision that protects the rights of American citizens and their ability to speak out against the government to this day.

Perhaps the most important part of the decision and the part that had the most immediate impact was that it ruled that military tribunals did not apply to citizens in the US so long as civilian courts were still active.This meant that Milligan and anyone else that had been arrested and tried by a military tribunal were all immediately released even though the suspension of habeas corpus was deemed as a lawful action. This had an especially large impact on how the South was treated during Reconstruction. Extreme Republicans had planned on instituting military rule throughout the South and this ruling damaged their ability to detain Southerners because they were considered citizens of the United States. Because of this, extreme Republicans denounced the decision out of concern about the impact it would have on their ability to enact all of their plans for the South.

However, Ex Parte Milligan had a more lasting impact than just affecting the Reconstruction period. This case laid out the three types of military jurisdiction and when they could be applied. The three cases are:

  1. “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”
  2. “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.”
  3. “The third may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights.”

This clarification is important because before this case, the differences between martial law and military government were not often discerned. The main difference being that martial law is imposed in enemy territory, whereas military government is enforced within the United States’ borders. Military government is used when the failure of a local government prevents it from functioning due to military occupation or other reasons.

This case affected another major court case over a hundred years later. In Hamdi v. Rumsfeld an American citizen had been arrested in Afghanistan and was labeled as an “enemy combatant.” The question at hand was whether or not Hamdi, as an American citizen, was entitled to his rights under the Fifth Amendment even though the arrest had not occurred in the United States, and he was considered as an enemy combatant. Ex Parte Milligan played a very influential role in this case and heavily influenced the decision. In an 8-1 decision, the Supreme Court upheld the precedent and said that as an American citizen he was entitled to the Fifth Amendment regardless of the conditions of his arrest. Since the courts at home were functional, and he was an American citizen, he should have been given his Fifth Amendment right to a proper trial.

Ex Parte Milligan has been considered by many one of the most important cases in regards to protecting the liberties of American citizens. The decision from this case not only protected rights during the Civil War era but also has also been used to protect rights in the 21st century against government infringement.

(n.d.). Retrieved May 01, 2016, from http://www.pbs.org/wnet/supremecourt/antebellum/landmark_exparte.html

Ex Parte Milligan. (n.d.). Retrieved May 01, 2016, from https://www.oyez.org/cases/2003/03-6696

Ex Parte Milligan. (n.d.). Retrieved May 01, 2016, from http://www.britannica.com/event/Ex-Parte-Milligan

Ex parte Milligan. (n.d.). Retrieved May 01, 2016, from http://research.omicsgroup.org/index.php/Ex_parte_Milligan

Timeline 2

Constitutional Provisions

The constitutional provisions under question were the 4th, 5th, and 6th Amendments. The Supreme Court was asked to review whether or not the trial of Milligan by a military tribunal and not a jury of his peers was legal or not.

For the 4th amendment:

  •        “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.”

For the 5th amendment, the part under question was:

  • 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”

The 6th amendment reads:

  • 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 defense.”

FindLaw’s United States Supreme Court case and opinions. (n.d.). Retrieved May 01, 2016, from http://caselaw.findlaw.com/us-supreme-court/71/2.html

Sixth Amendment. (n.d.). Retrieved May 01, 2016, from https://www.law.cornell.edu/constitution/sixth_amendment

Major Statute(s) Under Review

There was only one main statute under review in Ex Parte Milligan: The Habeas Corpus Suspension Act of 1863. They were reviewing whether or not the trial of Milligan by military tribunal during the suspension of habeas corpus was legal.

Important Precedents

Ex parte Milligan was a landmark case that became the precedent for all future cases regarding limitations on the revocation of a citizen’s rights in times of war or martial law. “The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are” (Davis p. 71 U.S 119). Being that such is the case, while the precedents listed below were addressed in Ex parte Milligan, they ultimately hold little significance in regards to the final decision of the case.

o   Cohens v. Virginia, 19 U.S. 264 (1821)

o   Weston v. City Council of Charleston 27 U.S. 2 Pet. 449 (1829)

o   Ex Parte Watkins, 28 U.S. 3 Pet. 193 (1830)

o   Luther v. Borden, 48 U.S. 1 (1849)

Davis, David, Justice. “Ex Parte Milligan 71 U.S. 2 (1866).” Justia. Justia, n.d. Web. 28 Apr. 2016. Available at: https://supreme.justia.com/cases/federal/us/71/2/case.html

Important Subsequent Cases

o   Hirabayashi v. United States, 320 U.S. 81 (1943)

o   Yasui v. United States, 320 U.S. 115 (1943)

o   Korematsu v. United States, 323 U.S. 214 (1944)

o   Ex parte Endo, 323 U.S. 283 (1944)

o   Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

o   Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Web Resources

Davis, David, Justice. “Ex Parte Milligan 71 U.S. 2 (1866).” Justia. Justia, n.d. Web. 28

Apr. 2016. Available at: https://supreme.justia.com/cases/federal/us/71/2/case.html

“Ex Parte Milligan”. Encyclopædia Britannica. Encyclopædia Britannica Online.

Encyclopædia Britannica Inc., 2016. Web. 21 Apr. 2016. Available at: http://www.britannica.com/event/Ex-Parte-Milligan

“Ex Parte Milligan.” LII / Legal Information Institute. Legal Information Institute, n.d. Web. 21 Apr. 2016. Available at: https://www.law.cornell.edu/supremecourt/text/71/2

“Ex parte Milligan.” Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Apr 21, 2016. Available at: https://www.oyez.org/cases/1850-1900/71us2

“Ex Parte Milligan (1866).” PBS. PBS, Dec. 2006. Web. 21 Apr. 2016. Available at: http://www.pbs.org/wnet/supremecourt/antebellum/landmark_exparte.html

Wikipedia contributors. “Ex parte Milligan.” Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 6 Mar. 2016. Web. 21 Apr. 2016. Available at: https://en.wikipedia.org/wiki/Ex_parte_Milligan

Academic Books, Articles and Law Reviews

Barry, Peter. “Ex parte Milligan: History and Historians.” Indiana Magazine of History [Online], (2013): n. pag. Web. 21 Apr. 2016. Available at: https://scholarworks.iu.edu/journals/index.php/imh/article/view/20475/26539


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