Editing Ex parte Milligan (section)

==Background==
===Suppression of dissenters===
During the [[American Civil War]], the administration of [[President of the United States|President]] [[Abraham Lincoln]] dealt with [[Union (American Civil War)|Union]] dissenters by declaring [[martial law]]; sanctioning [[arbitrary arrest and detention]]; suspending the writ of ''[[habeas corpus]]'', which requires justification of any detention; and initiating trials by military commission rather than in conventional civil courts. The rationale for these actions was that [[Article One of the United States Constitution#Section 9: Limits on Congress|Article 1, Section 9 of the U.S. Constitution]] authorizes the suspension of the writ of ''habeas corpus'' "when in Cases of Rebellion or Invasion the public Safety may require it".<ref>[[Alan T. Nolan]], "Ex Parte Milligan: A Curb of Executive and Military Power". In {{cite book| title =We The People: Indiana and the United States Constitution: Lectures in Observance of the Bicentennial of the Constitution | publisher =Indiana Historical Society | year =1987 | location =Indianapolis | pages =28–29| isbn =0871950073}}</ref><ref>{{cite web | title =CRS Annotated Constitution | publisher =Cornell University Law School, Legal Information Institute  | url = https://www.law.cornell.edu/anncon/html/art1frag8_user.html#art1_sec9 | access-date =2015-12-03}}</ref> Lincoln theorized that the civil courts in the United States were established to try individuals and small groups "on charges of crimes well defined in the law" and not to deal with large groups of dissenters, whose actions, though damaging to the war effort, did not constitute a "defined crime" in states loyal to the government.<ref>Nolan, p. 20.</ref> Lincoln believed his administration's plan would suppress anti-government agitators, but he was also optimistic that it would be rescinded after the war ended.<ref>Nolan, p. 30.</ref>

The first test of Lincoln's thesis for silencing dissenters occurred in the spring of 1863. [[Clement Vallandigham]], an [[Ohio]] politician and [[Opposition to the American Civil War|anti-war]] [[Democratic Party (United States)|Democrat]], was placed under arrest on May 5, 1863, taken to [[Cincinnati]] for a trial before a military commission, and jailed. Vallandigham was found guilty and sentenced to prison for the remainder of the war, but Lincoln commuted the sentence and ordered him exiled to the Confederacy.<ref>[[David Herbert Donald|Donald, David Herbert]], ''Lincoln'', Simon & Schuster (1995), p.&nbsp;421.</ref> Vallandigham's petition to the [[Supreme Court of the United States|U.S. Supreme Court]], known as ''[[Ex parte Vallandigham]]'', was denied.<ref>Nolan, pp. 32–33.</ref>

===Trial by military commission===
The next test began with trials by a military commission that led to the U.S. Supreme Court case of ''Ex parte Milligan''. On September 17, 1864, [[General officer|General]] [[Alvin Peterson Hovey]], commander of the Military District of Indiana, authorized a military commission to meet on September 19 at [[Indianapolis]], Indiana, to begin trials of [[Harrison H. Dodd]], "grand commander" of the [[Sons of Liberty#Later societies|Sons of Liberty]] in Indiana, and others placed under military arrest.<ref>{{cite book | author =Frank L. Klement | title =Dark Lanterns: Secret Political Societies, Conspiracies, and Treason Trials in the Civil War | publisher =Louisiana State University Press | year =1984 | location =Baton Rouge | pages =[https://archive.org/details/darklanternssecr0000klem/page/108 108–09] | url =https://archive.org/details/darklanternssecr0000klem/page/108 | isbn =0-8071-1174-0 }}</ref> These prisoners included Democrats [[Lambdin P. Milligan]], a lawyer living in [[Huntington, Indiana]], and an outspoken critic of President Lincoln and Indiana's Republican [[Governor of Indiana|governor]] [[Oliver P. Morton]]; Joseph J. Bingham, editor of the ''Indianapolis Daily Sentinel'' and chairman of Indiana's Democratic State Central Committee; [[William A. Bowles]] of [[French Lick, Indiana]]; William M. Harrison, secretary of the Democratic Club of [[Marion County, Indiana]]; Horace Heffren, editor of the ''Washington (Indiana) Democrat''; Stephen Horsey of [[Martin County, Indiana]]; and [[Andrew Humphreys]] of [[Bloomfield, Indiana]].<ref>Nolan, pp. 37–38, Klement, ''Dark Lanterns'', p. 130, and {{cite journal| author=Sharp, Allen | title =An Echo of the War: The Aftermath of the ''Ex Parte Milligan'' Case | journal =Traces of Indiana and Midwestern History | volume =15 | issue =3 | pages =42–44 | publisher =Indiana Historical Society | location =Indianapolis | date =Summer 2003  }}</ref><ref>Harrison was arrested on August 20, 1864; Dodd, on September 3; Bowles, around September 17; and Milligan, Bingham, Heffren, Horsey and Humphreys, between October 5 and October 7. See Klement, ''Dark Lanterns'', p. 176.</ref> Two other men, James B. Wilson and David T. Yeakel, were also seized.<ref>{{cite book| author= Gilbert R. Tredway | title =Democratic Opposition to the Lincoln Administration in Indiana | publisher = Indiana Historical Bureau | volume = 48| year =1973 | location =Indianapolis | pages =218–19 }}</ref> Dodd, who was the first to be tried, escaped from jail before his trial was completed and fled to [[Canada]]. On October 10, 1864, he was found guilty, convicted ''in absentia'', and sentenced to hang. Charges against Bingham, Harrison, Yeakel, and Wilson were dismissed. Heffren was released before the proceedings against Milligan began.<ref>Nolan, pp. 38–39.</ref>

The military commission for the trial of Milligan, Horsey, Bowles, and Humphreys convened in Indianapolis on October 21, 1864. The commission considered five charges against the men: [[conspiracy (criminal)|conspiracy]] against the U.S. government, offering aid and comfort to the [[Confederate States of America|Confederates]], inciting [[rebellion|insurrections]], "disloyal practices", and "violation of the laws of war".<ref name=Nolan39>Nolan, p. 39.</ref><ref name=EPM-Findlaw>{{ussc|name=Ex parte Milligan|volume=71|page=2|pin=|year=1866|reporter=Wall.|reporter-volume=4}}.</ref> The defendants were alleged to have established a secret organization that planned to liberate Confederate soldiers from Union [[prisoner-of-war camp]]s in [[Illinois]], Indiana, and [[Ohio]],  and then seize an arsenal, provide the freed prisoners with arms, raise an armed force to incite a general insurrection, and join with the Confederates to invade Indiana, Illinois, and [[Kentucky]] and make war on the government of the [[United States of America|United States]].<ref name=Nolan39/><ref name=EPM-Findlaw/><ref>Tredway, p. 182.</ref>

The military commission's decision on December 10, 1864, found Milligan, Bowles, and Horsey guilty. The men were sentenced to be hanged on May 19, 1865. Humphreys was found guilty and sentenced to hard labor for the remainder of the war.<ref name=EPM-Findlaw/><ref name=Nolan40-41>Nolan, pp. 40–41.</ref> With President Lincoln's support, General Hovey modified the sentence for Humphreys, allowing his release, but Humphreys was required to remain within two specific townships in [[Greene County, Indiana]], and could not participate in any acts that opposed the war. Efforts were made to secure pardons for Milligan, Bowles, and Horsey, with the decision passing to President [[Andrew Johnson|Johnson]] following [[Assassination of Abraham Lincoln|Lincoln's assassination]].<ref name=Nolan40-41/><ref>Klement, ''Dark Lanterns'', pp. 184–85.</ref>

===Circuit Court petition===
On May 10, 1865, Jonathan W. Gorden, Milligan's legal counsel, filed a petition for a writ of ''habeas corpus'' in the Circuit Court of the United States for the District of Indiana in Indianapolis.<ref name=EPM-Findlaw/> A similar petition was filed on behalf of Bowles and Horsey. The petitions were based on an act of the [[United States Congress|Congress]] titled "[[Habeas Corpus Suspension Act 1863|An Act Relating to Habeas Corpus and Regulation Judicial Proceedings in Certain Cases]]" that went into effect on March 3, 1863. The act was intended to resolve the question of whether Lincoln had the constitutional authority to suspend the writ of ''habeas corpus'' as authorized under Article 1, section 9, of the U.S. Constitution.<ref name=Nolan40-41/> Milligan's petition alleged that a federal grand jury had met in Indianapolis during January 1865, which it did, and it had not indicted him, which is also true, making him eligible for a release from prison under the congressional act.<ref name=Nolan40-41/><ref>On January 2, 1865, the Circuit Court of the United States for Indiana met at Indianapolis, empanelled a grand jury, and adjourned on January 27, 1865, without indicting or charging Milligan with any offenses. See {{Caselaw source |case=''Ex parte Milligan'', 71 U.S. 2 (1866) |findlaw = {{cite web|url=http://laws.findlaw.com/us/71/2.html |title=Archived copy |access-date=2015-08-13 |url-status=dead |archive-url=https://web.archive.org/web/20080725084836/http://laws.findlaw.com/us/71/2.html |archive-date=2008-07-25 }} |accessdate=2015-12-03}}</ref>

On May 16, three days before their scheduled execution, Horsey's sentence was commuted to life imprisonment and the executions of Milligan and Bowles were postponed to June 2. President Johnson approved commutation of the sentences for Milligan and Bowles to life imprisonment on May 30, 1865.<ref name=Klement226-27>Klement, ''Dark Lanterns'', pp. 226–27.</ref> In the interim, Justice [[David Davis (Supreme Court justice)|David Davis]], an [[Associate Justice of the Supreme Court of the United States|associate justice of the U.S. Supreme Court]] and a judge of the federal circuit that included Indiana, and Judge Thomas Drummond, another federal circuit court judge, reviewed Milligan's circuit court petition. The two judges disagreed about whether the U.S. Constitution prohibited civilians from being tried by a military commission and passed the case to the U.S. Supreme Court.<ref name=Klement226-27/><ref name=Nolan41-42>Nolan, pp. 41–42.</ref>