71 U.S. 2 (1866)
In October 1864 Lambdin P. Milligan, a citizen of Indiana who had lived in the state for twenty years and had never been in the military or naval service of the United States, was arrested at his home by order of General Alvin P. Hovey, commanding the military district of Indiana.1
He was charged with conspiracy against the United States, affording aid and comfort to rebels, inciting insurrection, disloyal practices, and violation of the laws of war.2
On October 21, 1864, Milligan was brought before a military commission convened at Indianapolis pursuant to orders from the President and the War Department; the commission found him guilty on all charges and sentenced him to death, a sentence approved by the President with execution first set for May 19, 1865, and later postponed.3
After the military proceedings ended, Milligan petitioned the Circuit Court of the United States for the District of Indiana for a writ of habeas corpus, asserting that the military commission lacked jurisdiction because he was a civilian citizen of a loyal state where the civil courts remained open and functioning.4
The petition stated that a grand jury had convened in the Circuit Court in January 1865, had been charged to inquire into violations of United States law, and had adjourned without indicting or presenting him; no indictment or presentment was ever returned against him.
The petition was presented in open court on May 10, 1865, and the United States attorney appeared and submitted the application by agreement.5
The Circuit Court judges divided on three questions and certified them to the Supreme Court: whether a writ of habeas corpus ought to issue on the facts stated in the petition and exhibits, whether Milligan ought to be discharged from custody, and whether the military commission had jurisdiction to try and sentence him.
The record filed with the certificate included the order convening the commission, the charges and specifications, the commission's findings and sentence, and the War Department order reciting presidential approval and directing execution.6
The Supreme Court heard argument from counsel for Milligan and for the United States on the certified questions.
Whether the Supreme Court has jurisdiction to decide the questions certified by the Circuit Court of Indiana?7
Under the Act of April 29, 1802, a Circuit Court may certify questions to the Supreme Court when the judges divide in opinion on a point arising in a cause pending before it, and the Supreme Court must decide those questions finally. A proceeding on a petition for habeas corpus constitutes a suit or cause within the meaning of the statute once the petition is filed and submitted to the court, even if ex parte, because the petitioner pursues the remedy the law affords to test the lawfulness of detention.
Yes. The petition for the writ of habeas corpus was presented in open court on May 10, 1865, the United States attorney appeared and submitted the application by agreement, and the judges divided on the three questions certified. These steps made the matter a cause before the Circuit Court within the statute, and the certified questions arose directly from it.8
The Supreme Court has jurisdiction to decide the certified questions.9
Whether, on the facts stated in the petition and exhibits, a writ of habeas corpus ought to be issued?10
The Habeas Corpus Act of March 3, 1863, requires that when a citizen is held by presidential order other than as a prisoner of war, a list of such prisoners is furnished to the judges, and a grand jury adjourns without indictment or presentment, the court must issue the writ and order the prisoner brought before it for discharge upon recognizance.
Yes. The petition and exhibits stated that Milligan was a citizen of Indiana for twenty years, had never been in the military or naval service, was arrested at his home by order of General Hovey pursuant to presidential authority, and that a grand jury convened in the Circuit Court in January 1865, was charged to inquire into violations of United States law, and adjourned without indicting or presenting him. These facts placed the case squarely within the statutory conditions that trigger the duty to issue the writ.11
A writ of habeas corpus ought to be issued.12
Whether, on the facts stated in the petition and exhibits, Milligan ought to be discharged from custody?13
Under the Habeas Corpus Act of March 3, 1863, once the statutory conditions are met and no indictment or presentment has been returned, the court must discharge the prisoner upon taking the required oaths and entering into recognizance for good behavior and future appearance.
Yes. The petition and exhibits established that Milligan met every statutory prerequisite: he was a civilian citizen of a loyal state, held by presidential order and not as a prisoner of war, and the grand jury had adjourned without any proceeding against him.14 The Act therefore commanded his discharge from military custody upon compliance with its recognizance provisions.15
Milligan ought to be discharged from custody.16
Whether, on the facts stated in the petition and exhibits, the military commission had jurisdiction legally to try and sentence Milligan in the manner and form stated?17
The Constitution vests the judicial power in one Supreme Court and such inferior courts as Congress may ordain and establish, guarantees trial by jury in all criminal prosecutions, and limits exceptions to cases arising in the land or naval forces. A military commission convened by presidential order in a loyal state where the civil courts remain open and functioning lacks jurisdiction to try a civilian citizen not in military service.
No. The petition and exhibits showed that Milligan was a civilian citizen of Indiana, a state where the civil courts were open and unobstructed, and that he had never been in the military or naval service.18 The military commission was established by executive order alone, not by any act of Congress, and therefore could not exercise the judicial power the Constitution reserves to Article III courts and juries.19
The military commission lacked jurisdiction to try and sentence Milligan.20
Related opinions on this issue
Joined by Justices Wayne, Swayne, And Miller
Chief Justice Chase, joined by Justices Wayne, Swayne, and Miller, concurred in the judgment discharging Milligan but disagreed with some of the broader reasoning of the majority.21 The concurrence agreed that Milligan should be released because Congress had not authorized the trial of civilians by military commission in states where civil courts were open.22 However, the Chief Justice believed that Congress did possess the power, under the Constitution, to authorize such military tribunals in times of war or insurrection, even in loyal states.23
He viewed the majority opinion as going too far in suggesting that no such power could ever exist under the Constitution.24 Chase wrote that the Act of March 3, 1863, had set forth specific procedures that were not followed in Milligan's case, requiring his release.25 But he cautioned against a holding that would limit congressional authority to provide for military justice in appropriate circumstances during rebellion or invasion.26