Constitutional Issues Through Documents:
Ex Parte Milligan

One of the challenges we face in teaching the U.S. Constitution is in helping our students understand how Supreme Court decisions have come to further shape and define the Constitution. This document concerns an extremely important civil liberties case—Ex parte Milligan—in which the Supreme Court decided whether the President has the right, in regions where the civil courts are in operation, to suspend the writ of habeas corpus and to substitute trial by the military. The document is a simple but powerful plea from a man who has been condemned to die. Despite its brevity and simplicity, it raises numerous questions. What crime is Milligan guilty of? Was he really sentenced without evidence, or is this just his opinion? Why does he refer to the Secretary of War as "an old acquaintance and friend?" In short, what is the story behind this piece of history?

Article I, section 9, clause 2 of the Constitution states, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety might require it." A writ of habeas corpus is one of the oldest civil liberties in the English-speaking world. Addressed to the jailer of a prisoner by a judge, its literal translation is "Thou (shalt) have the body (in court)"; that is, the jailer must produce the prisoner and explain to the judge why the prisoner is being held. If the judge finds that the prisoner is being unlawfully detained, the judge may order the prisoner’s release. Habeas corpus has served over the centuries as a protection for citizens against arbitrary detainment and has allowed the judiciary to intervene to protect individuals from arbitrary use of legislative and executive power.

During the Civil War President Lincoln found it necessary to proclaim, in September of 1862, that "all persons...guilty of any disloyal practise...shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commissions." In October 1864, Lambdin P. Milligan and two others were tried in a military court in Indiana and found guilty of conspiring with the Confederate States of America to set up a "Northwestern Confederacy." The military court sentenced all three to hang the following May.

Milligan maintained that he was innocent of the charges and that he had been framed by a political opponent in Indiana. Because he had been tried in a military court where the rules of evidence, procedure, and appeal are different, Milligan’s only recourse was to appeal for a Presidential pardon. Two weeks after he was sentenced, Milligan wrote to his old friend Edwin Stanton, who was now Lincoln’s Secretary of War, creating the document shown here. In an irony reminiscent of an Ambrose Bierce short story, these two had taken their bar examinations together some thirty years before but were now as much enemies as any two soldiers on the field of battle. As far as we now know, Stanton never replied to this letter.

The war ended in April 1865, bringing an end to the suspension of the writ of habeascorpus. In early May, shortly before Milligan’s scheduled execution, his lawyers filed a petition for a writ of habeas corpus at the U.S. circuit court in Indianapolis. The lawyers argued that a military court has no right try a citizen if a civil court is in operation. Supreme Court Justice Davis, sitting as a member of the circuit court, felt the lawyers’ request to be an issue requiring a decision by the Supreme Court. But Milligan and his fellow conspirators were sentenced to hang before any of this could come to pass. Justice Davis wrote a moving letter to President Andrew Johnson asking him to stay the execution until the Supreme Court could hear the case.

President Johnson complied, reluctantly, to Justice Davis’s request, first by staying the execution until June and later by commuting the sentence to life in prison. The order to commute the sentence was delivered to Edwin Stanton with instructions not to tell the prisoners until just before their scheduled execution that they were to live. Believing that even the Constitution could not save him, Milligan spent what he thought were his last days arranging his own funeral and writing an address, which he expected to deliver before he was hanged.

In due course the Supreme Court considered the case and ruled in favor of Milligan’s contention that a citizen’s right to a trial in a civil court could not be revoked even if war produced situations in which the privilege of the writ of habeas corpus might be revoked. Justice Davis, writing for the majority., argued that the case went to the very heart of what it meant to be a free people. He wrote into his decision a reminder that one of the grievances against King George III in the Declaration of Independence was that he had "’rendered the military power independent of and superior to the civil power.’" He went on to say, "No graver question was ever considered by this court, nor one which more clearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with a crime, to be tried and punished according to the law." On April 12, 1866, Milligan and his fellow prisoners were released from custody by order of the U.S. Supreme Court.

The Civil War was a crisis that stretched the Constitution, but this Supreme Court decision defined just how far it could be stretched by drawing a clear line between the government’s need for security and the rights of individual citizens. As Professor Allan Nevins observed, "The heart of this decision is the heart of the difference between the United States of America and Nazi Germany or Communist Russia."

This document is taken from the Records of the Office of the Judge Advocate General (Army), Record Group 153; Court Martial Records; NN3409, Box 1165.

Teaching Suggestions

Distinguishing Fact from Opinion

1. With students in groups of five, distribute a copy of the document to each student and have them read it carefully. A recorder for the group should make a list of questions that the group members raise after reading the document.

2. Instruct the group members to decide if the questions on their list can be answered with a fact (+) or by a supporting opinion (*). Have them place an appropriate mark next to each question.

3. Instruct the groups to choose their two best fact questions and their two best supporting opinion questions.

4. As the groups report, record their questions on the board in a chart like the one below.

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Moral Dilemma

Although we know little about the extent of the friendship between Milligan and Stanton, the dilemma of a public official’s response to a former friend is an interesting one.

1. Have students read the story below and discuss it with their groups.

The country is involved in a civil war. You are the Secretary of Defense, and the President has had to arrest many people who disagree with him in order to protect the country. There is some question as to whether the President has acted within the Constitution, but you agree that these steps are necessary to protect the government. Much to your surprise, a letter comes across your desk one day from your old friend _____________, who has been sentenced to die by a military court. What do you do? Why do you do it?

2. After they have listed and discussed their decision and the reasons for their decision, have them draft a letter to their friend explaining their decision.

For Further Research

1. Possible topics for further research could focus on

a. Treason trials in Cincinnati and Indianapolis

b. Secret societies such as The Sons of Liberty, The Knights of the Golden Circle, and The Union League

c. Supreme Court cases related to Ex parte Milligan such as Ex parte Merryman, Ex parte McCardle, Ex parte Quirin, and Duncan v. Kahanamoku.

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