U.S. Supreme Court Ex parte Milligan, 71 U.S. 4 Wall. 2 2
(1866) Ex parte Milligan 71 U.S. (4 Wall.) 2 Syllabus 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 Page 71 U. S. 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. Page 71 U. S. 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.

															The case was thus:

															An act of Congress -- the Judiciary Act of 1789, [ Footnote 1 ] 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, "

															&c.

															Another act -- that of March 3d, 1863, [ Footnote 2 ] "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. Page 71 U. S. 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, [ Footnote
3 ] dated the 15th September following, Page 71 U. S. 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."

															Under each of these charges, there were various specifications.
The substance of them was joining and aiding, at different times
between October, 1863, and August, 1864, a secret society known as
the Order of American Knights or Sons of Liberty, for the purpose
of overthrowing the Government and duly constituted authorities of
the United States; holding communication with the enemy; conspiring
to seize munitions of war stored in the arsenals; to liberate Page 71 U. S. 7 prisoners of war, &c.; resisting the draft, &c.; . .
.

															"at a period of war and armed rebellion against the authority of
the United States, at or near Indianapolis [and various other
places specified] in Indiana, a State within the military lines of
the army of the United States and the theatre of military
operations, and which had been and was constantly threatened to be
invaded by the enemy."

															These were amplified and stated with various circumstances.

															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 petition set forth the additional fact that, while the
petitioner was held and detained, as already mentioned, in military
custody (and more than twenty days after his arrest), a grand jury
of the Circuit Court of the United States for the District of
Indiana was convened at Indianapolis, his said place of
confinement, and duly empaneled, charged, and sworn for said
district, held its sittings, and finally adjourned without having
found any bill of indictment, or made any presentment whatever
against him. That at no time had he been in the military service of
the United States, or in any way connected with the land or naval
force, or the militia in actual service; nor within the limits of
any State whose citizens were engaged in rebellion against the
United States, at any time during the war, but, during all the time
aforesaid, and for twenty years last past, he had been an Page 71 U. S. 8 inhabitant, resident, and citizen of Indiana. And so that it had
been

															"wholly out of his power to have acquired belligerent rights or
to have placed himself in such relation to the government as to
have enabled him to violate the laws of war."

															The record, in stating who appeared in the Circuit Court, ran
thus:

															"Be it remembered, that on the 10th day of May, A.D. 1865, in
the court aforesaid, before the judges aforesaid, comes Jonathan W.
Gorden, Esq., of counsel for said Milligan, and files here, in open
court, the petition of said Milligan, to be discharged.. . . . At
the same time comes John Hanna, Esquire, the attorney prosecuting
the pleas of the United States in this behalf. And thereupon, by
agreement, this application is submitted to the court, and day is
given, &c."

															The prayer of the petition was that, under the already mentioned
act of Congress of March 3d, 1863, the petitioner might be brought
before the court and either turned over to the proper civil
tribunal to be proceeded with according to the law of the land or
discharged from custody altogether.

															At the hearing of the petition in the Circuit Court, the
opinions of the judges were opposed upon the following
questions:

															I. On the facts stated in the petition and exhibits, ought a
writ of habeas corpus to be issued according to the prayer of said
petitioner?

															II. On the facts stated in the petition and exhibits, ought the
said Milligan to be discharged from custody as in said petition
prayed?

															III. Whether, upon the facts stated in the petition and
exhibits, the military commission had jurisdiction legally to try
and sentence said Milligan in manner and form, as in said petition
and exhibit is stated?

															And these questions were certified to this court under the
provisions of the act of Congress of April 29th, 1802, [ Footnote 4 ] an act Page 71 U. S. 9 which provides

															"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 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."

															The three several questions above mentioned were argued at the
last term. And along with them, an additional question raised in
this court, namely:

															IV. A question of jurisdiction, as -- 1. Whether the Circuit
Court had jurisdiction to hear the case there presented? -- 2.
Whether the case sent up here by certificate of division was so
sent up in conformity with the intention of the act of 1802? in
other words, whether this court had jurisdiction of the questions
raised by the certificate? Page 71 U. S. 107 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 Page 71 U. S. 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?" Page 71 U. S. 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.

															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 Page 71 U. S. 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, [ Footnote 5 ] 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, [ Footnote
6 ] turned was Page 71 U. S. 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, [ Footnote 7 ] the court, in
holding that a division Page 71 U. S. 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, [ Footnote 8 ] was whether a writ of prohibition was a suit,
and Chief Justice Marshall says:

															"The Page 71 U. S. 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, [ Footnote 9 ] 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., [ Footnote 10 ] 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 Page 71 U. S. 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. Page 71 U. S. 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 Page 71 U. S. 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 Page 71 U. S. 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 Page 71 U. S. 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 Page 71 U. S. 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 Page 71 U. S. 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:

															"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 Page 71 U. S. 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 Page 71 U. S. 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 Page 71 U. S. 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, Page 71 U. S. 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 Page 71 U. S. 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 Page 71 U. S. 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.

															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 Page 71 U. S. 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." Page 71 U. S. 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 Page 71 U. S. 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 [ Footnote 11 ]) 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 Page 71 U. S. 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 Page 71 U. S. 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?

															This case, as well as the kindred cases of Bowles and Horsey,
were disposed of at the last term, and the proper orders were
entered of record. There is therefore no additional entry
required. Page 71 U. S. 132 [ Footnote 1 ]

															1 Stat at Large 81.

															[ Footnote 2 ]

															12 id. 755.

															[ Footnote 3 ]

															13 Stat. at Large 734.

															[ Footnote 4 ]

															2 Stat. at Large 159.

															[ Footnote 5 ] 8 U. S. 4 Cranch
75.

															[ Footnote 6 ]

															Page 28 U. S. 193 .

															[ Footnote 7 ] 19 U. S. 6 Wheaton
542.

															[ Footnote 8 ] 27 U. S. 2 Peters
449.

															[ Footnote 9 ] 19 U. S. 6 Wheaton
264.

															[ Footnote 10 ] 39 U. S. 14 Peters
540.

															[ Footnote 11 ]

															Pages 257 and 234.

															The CHIEF JUSTICE delivered the following opinion.

															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. Page 71 U. S. 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 Page 71 U. S. 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. Page 71 U. S. 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. Page 71 U. S. 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 Page 71 U. S. 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.

															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 Page 71 U. S. 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 Page 71 U. S. 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, Page 71 U. S. 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.

															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 Page 71 U. S. 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 Page 71 U. S. 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.

Summary: In Ex Parte Milligan, the US Supreme Court ruled that military commissions have no jurisdiction to try civilians for crimes in areas where civilian courts are functioning properly. The Court asserted that the Constitution guarantees the right to a trial by jury during war and peace, and that military jurisdiction is only applicable in three scenarios: under military law, military government, and martial law proper. The power of Congress to authorize trials for crimes against national security stems from its authority to raise armies, declare war, and govern national forces. The Court emphasized that official authority in the American system is derived from the people and is subject to their direct responsibility.