Ex parte Milligan (1863)
[The decision opens with a summary of the key facts of the case, which is
worth reading if you're not familiar with the case--and there's no reason you should be!
Following that, use the "click here" notes to guide you through the two
decisions. This case was decided 9-0. But, as you'll see the majority decision
of five Justices offered fundamentally different reasoning than did the four Justices in
the concurring opinion. In effect, this was a 5-4 decision.]
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 [p*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. [p*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.
[Thus concludes the summary of the basic findings. Click here to move on to the first key element of the
majority's decision.]
An act of Congress -- the Judiciary Act of 1789, [n1] 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,
Another act -- that of March 3d, 1863, [n2] "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. [p*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, [n3] dated the 15th September following, [p*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."
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 Court decision begins with a recapitulation of the facts. Click here to move to the first key discussion of constitutional principles.]
The decision:
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 [p*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?" [p*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.
[The Court then proceeds with a detailed and technical discussion of its authority
over the case. Click here to move on to what
the majority viewed as the central question the opinion addressed.]
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 [p*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, [n5] 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, [n6] turned was [p*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, [n7] the court,
in holding that a division [p*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, [n8] was whether a writ of prohibition was a suit, and Chief Justice Marshall
says:
The [p*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, [n9] 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., [n10] 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 [p*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. [p*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 [p*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 [p*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 [p*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 [p*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 [p*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:
[The Court then goes into a detailed celebration of the Bill of Rights, listing
out specifically those of Milligan which were violated. Click here to move on to the next key
aspect of the decision, where the Court discusses the importance of the case.]
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 [p*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 [p*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 [p*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, [p*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 [p*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 [p*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.
[The Court then disparages the threat to the peace in wartime Indiana, and cites
lessons from history showing the dangers of martial law. Click here to move on to the concurring opinion, which, again, reads
very much like a dissent--and should be viewed as such.]
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 [p*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." [p*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 [p*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 [n11] ) 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 [p*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 [p*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?
CHASE, C.J., Separate Opinion
The CHIEF JUSTICE delivered the following opinion.
[Salmon Chase, the Chief Justice, offered . To
get to the meat of his opinion, click here.]
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. [p*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 [p*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. [p*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.
[p*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 [p*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. [Chase then moves on to specific examples;
click here for the next key point.]
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 [p*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
[p*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,
[p*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. [And click here
for Chase's important conclusion.]
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 [p*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 [p*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.