Editing Ex parte Milligan (section)

===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>