Ex Parte Milligan (1866)
Ex Parte Milligan (1866)
71 U.S. (4 Wall.) 2
In 1862 President Abraham Lincoln ordered that all persons “guilty of any disloyal practice affording aid and comfort to rebels” should be subject to trial and punishment by “courts-martial or military commissions.” Two years later, a military commission acting under this authority tried and convicted Lambdin P. Milligan, a notorious Confederate sympathizer in Indiana, on charges of disloyalty. Because the civil courts were functioning and Indiana was not a battle zone, Milligan charged that the commission lacked jurisdiction over him and sought a writ of habeas corpus in circuit court. He also contended that trial before the military commission violated his constitutional right to trial by jury. After failing to reach agreement on the issues Milligan raised, the circuit court certified the questions to the Supreme Court.
Opinion of the Court: Davis, Nelson, Grier, Clifford, Field.
Concurring opinion: Chase, Wayne, Swayne, Miller.
JUSTICE DAVIS delivered the opinion of the Court.
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 people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. 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.
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. 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. 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 the 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.
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 offense whatever of a citizen in civil life, in nowise 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.
Another guarantee of freedom was broken when Milligan was denied a 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, there is no difficulty in 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.
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.
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.
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. 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.
THE CHIEF JUSTICE delivered the following opinion.
The opinion which has just been read 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. We cannot agree to this. We think that Congress had power, though not exercised, to authorize the Military Commission which was held in Indiana.
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. 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 defense as well as the regulation of internal administration? And is it impossible to imagine cases in which citizens conspiring or attempting the destruction of 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?
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 force and 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.
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 to what states or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses 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 theater 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 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.
[Although Milligan dealt with presidential actions, the opinion of the Court also stated that Congress could not have authorized the trial of civilians by military tribunals. After the Civil War, many members of Congress believed that the Milligan decision cast doubt on the constitutionality of the Reconstruction program in the Southern states. Its suspicions of the Court thus fueled, Congress responded in part by withdrawing the Court’s jurisdiction to decide Ex parte McCardle, which questioned the validity of the Reconstruction Acts.]