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Ex Parte Milligan | 71 U.S. 2 (1866)

In April of 1861, following the attack on Fort Sumter that signaled the beginning of the Civil War, President Lincoln issued an executive order authorizing military commanders to suspend the writ of habeas corpus as they saw fit. And in 1863, Congress passed the Habeas Corpus Suspension Act, ratifying Lincoln’s suspensions up to then, and authorizing the president to order such additional suspensions as necessary. After the war ended, the United States Supreme Court considered the constitutionality of these suspensions, in the 1866 case of Ex parte Milligan.

Lambdin Milligan, an Indiana lawyer who actively opposed the Union war effort, was arrested by military officials in October of 1864. Two weeks later, a military tribunal tried and convicted Milligan of conspiracy, offering aid and comfort to the enemy, inciting insurrection, disloyalty, and violations of the laws of war. Milligan was sentenced to be hanged.

Pursuant to the 1863 statute, the Circuit Court of the United States for the District of Indiana, as the federal trial court was then called, empaneled a grand jury to consider the charges against Milligan. The grand jury declined to indict him. Milligan then petitioned the court to issue a writ of habeas corpus, declare the military commission proceedings invalid, and release him from custody.

The circuit court judges were divided on the issue, so they referred the case to the United States Supreme Court.

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