Editing Ex parte Milligan (section)

==Decision==
[[Image:Lambdin P. Milligan.jpg|left|thumb|[[Lambdin P. Milligan]]]]

On April 3, 1866, [[Chief Justice of the United States|Chief Justice]] [[Salmon P. Chase]] handed down the Court's decision, which decreed that the writ of [[habeas corpus]] could be issued based on the congressional act of March 3, 1863; the military commission did not have the jurisdiction to try and sentence Milligan; and he was entitled to a discharge. Milligan, Bowles, and Horsey were discharged from prison on April 12, 1866.<ref name=Klement227-28>Klement, ''Dark Lanterns'', pp. 227–28.</ref> The Court's opinion was read during the next Court session.

On December 17, 1866, Justice Davis delivered the majority opinion explaining that Milligan, who was a civilian not in military service and resident of a state in which civilian courts were still functioning, had a right, when charged with a crime, to be tried and punished according to the law.<ref name=Nolan43/><ref name=Klement227-28/> Under the U.S. Constitution this included security against unreasonable search and seizure, a warrant for probable cause before arrest, and if indicted, a speedy trial by jury. Justice Davis disagreed with the federal government's argument regarding the propriety of the military commission, stating that "martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails," and when it became a necessity to provide a substitute for a civil authority that had been overthrown. This was not the situation in Indiana, where the civilian courts were still operating at the time of Milligan's arrest, trial, and incarceration.<ref>Nolan, p. 44.</ref> The majority opinion further observed that during the suspension of the writ of ''habeas corpus'', citizens may only be detained without charges, not "tried" or executed under the jurisdictions of military tribunals. The writ is not the right itself, but merely the ability to issue orders demanding the right's "enforcement."<ref name=EPM-Findlaw/>

In ''Ex parte Milligan'', which was a case about governmental power and personal liberty, the Court's decision stood "on the side of personal liberty."<ref name=Nolan49>Nolan, p. 49.</ref> In the case, the Court was unwilling to give President Lincoln's administration the power of military commission jurisdiction. The Court's decision avoided the risk of its abuse by future administrations in other situations.<ref name=Nolan49/> It is also important to note the political environment of the decision. Under a [[Republican Party (United States)|Republican]] [[United States Congress|Congress]] immediately after the Civil War, the Court was reluctant to hand down any decision that questioned the legitimacy of military courts, especially in the occupied [[Southern United States|South]]. The president's ability to suspend the writ of ''habeas corpus'' without congressional approval was not addressed in this case, most likely because it was a [[mootness|moot]] issue with respect to the case at hand.  President Lincoln had suspended the writ nationwide on September 24, 1862,<ref>[[s:Amnesty to Political or State Prisoners|Amnesty to Political or State Prisoners]].</ref> and Congress had ratified this action on March 3, 1863, with the [[Habeas Corpus Suspension Act 1863|Habeas Corpus Suspension Act]].  Milligan was detained in October 1864, more than a year after Congress formally suspended the writ.

Chief Justice Chase noted that, in the South, "courts might be open and undisturbed in the execution of their functions, and yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators". In other words, state courts in the former Confederacy would not protect the former slaves from violence.<ref name="supreme.justia.com">[https://supreme.justia.com/cases/federal/us/71/2/#tab-opinion-1965697 ''Ex parte Milligan'', 71 U.S. 2, 140-141 (1866)]</ref><ref>Haggerty, Michael, "To Leave Behind the Law of Force: Salmon Chase and the Civil War Era," in Winger, Stewart L., and White, Jonathan W., eds. (2020), Ex Parte Milligan ''Reconsidered: Race and Civil Liberties From the Lincoln Administration to the War on Terror'', p. 237. Lawrence, Kansas: University of Kansas Press.</ref>

===Three types of military jurisdiction===
This case was also important in clarifying the scope of military jurisdiction under the U.S. Constitution. The Supreme Court held:
<blockquote>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 [71 U.S. 2, 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.<ref name=EPM-Findlaw/></blockquote>

This distinction between martial law and military government was not commonly made before 1866. However, after the Supreme Court's clarification in this landmark case, it has continued to be referenced. Birkhimer describes the difference on page 1 of his opus ''Military Government and Martial Law'' (3rd edition, 1914): "Military jurisdiction is treated in the following pages in its two branches of Military Government and Martial Law. The former is exercised over enemy territory; the latter over loyal territory of the State enforcing it."<ref>{{cite web | author =William E. Birkhimer| title = Military Government and Martial Law| publisher = Franklin Hudson Publishing Co.|location=Kansas City, MO| url =http://www.taiwanbasic.com/military/birkhimer01w.htm| year = 1914| access-date = 2012-04-08| quote = The distinction is important. Military government is thus placed within the domain of international law, its rules the laws of war, while martial law is within the cognizance of municipal law.}}</ref> According to the U.S. Army Field Manual FM 27-10, ''The Law of Land Warfare'', paragraph 362: "Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation, or the undesirability of allowing it to do so."<ref>{{cite web| title = FM 27-10 The Law of Land Warfare| publisher = Department of the Army| url = http://ac-support.europe.umuc.edu/~nstanton/Ch6.htm#p362| page = 362| date = 1976-07-15| access-date = 2012-04-08| archive-url = https://web.archive.org/web/20120425040803/http://ac-support.europe.umuc.edu/~nstanton/Ch6.htm#p362| archive-date = 2012-04-25| url-status = dead}}</ref><ref>{{cite web| title = FM 27-10 The Law of Land Warfare| publisher = Department of the Army| url = http://ac-support.europe.umuc.edu/~nstanton/Ch1.htm#p12| page = 12| date = 1976-07-15| access-date = 2012-04-08| quote = The most prominent distinction between military government, as that term is used herein, and martial law is that the former is generally exercised in the territory of, or territory formerly occupied by, a hostile belligerent and is subject to restraints imposed by the international law of belligerent occupation, while the latter is invoked only in domestic territory, the local government and inhabitants of which are not treated or recognized as belligerents, and is governed solely by the domestic law of the United States.| archive-url = https://web.archive.org/web/20120301152127/http://ac-support.europe.umuc.edu/~nstanton/Ch1.htm#p12| archive-date = 2012-03-01| url-status = dead}}</ref>