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The Defense in Ex parte Milligan Argues That Even During War the Federal Government Can’t Use Military Trials Where Civilian Courts Are Operative
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Court reporter records the impassioned defense, before the U.S. Supreme Court, by David Dudley Field of Lambdin P. Milligan and others, who were tried by military commission in Indiana during the Civil War and sentenced to death for disloyal activities. The court’s landmark decision agreed with Field’s reasoning that the federal government could not employ military tribunals where civilian courts were in operation.

[LAMBDIN P. MILLIGAN]. Printed Book. D. F. Murphy, reporter, Supreme Court of the United States. In the Matter of Lambkin [sic] P. Milligan, William A. Bowles, Stephen Horsey, Under Sentence by Military Commission. Argument of David Dudley Field, Esq. for the Petitioners. March 12 and 13, 1866. New York: Williams J. Read, 1866. 97 + 104 pp., 6⅝ x 10⅛ in.

Inventory #25148       Price: $1,250


Is it true that the moment a declaration of war is made, the executive department of this government, without an Act of Congress, becomes absolute master of our liberties and our lives? Are we then subject to martial rule, administered by the President upon his own sense of the exigency, with nobody to control him, and with every magistrate and every authority in the land subject to his will alone?” (p6)

This brings up the true question now before the Court. Has the President, in time of war, by his own mere will and judgment of the exigency, the power to bring before his military officers, any man or woman in the land, to be there subject to trial and punishment, even unto death?... If the President has this awful power, whence does he derive it? From the Constitution? He can exercise no authority whatever, but that which the Constitution of the country gives him. Beyond it, he has no more power than any other citizen. Our system knows no authority beyond or above the law.” (p35-36)

Much confusion of ideas has been produced by mistaking executive power for kingly power.” (p39)

I submit, therefore, that upon the text of the original Constitution, as it stood when it was ratified, there is no color for the assumption that the President, by his mere will, without act of Congress, could create military commissions for the trial of persons not military for any cause or under any circumstances whatever.” (p40)

After quoting the third and fifth amendments to the U.S. Constitution, Field argues: “Here is a clear, unequivocal command of all the people, in contemplation of a state of war, no less than a state of peace, and stamped, as with types of iron, into their organic law, that at no time shall any person whatever be subject to military trail, except in these specified cases.” (p41)

This completes my argument upon the text of the Constitution. The language of that instrument should set the matter at rest forever. There is no room left for interpretation. The words are direct and plain.” (p42)

These great questions, than which greater never yet came before this most august of human tribunals, are now to receive their authoritative and last solution. Your judgment will live when all of us are dead. The robes which you wear will be worn by others, who will occupy your seats, in long succession, through, I trust, innumerable ages; but it will never fall to the lot of any to pronounce a judgment of greater consequence than this.” (p96)

Historical Background

In 1864, several prominent Indiana Democrats were arrested by military authorities for disloyal activities. In September, the commander of the Military District of Indiana authorized trials by military commission. During his trial Harrison H. Dodd (1824-1906), grand commander of the Sons of Liberty in Indiana escaped and fled to Canada. He was found guilty, convicted in absentia, and sentenced to be hung. Charges against some others were dropped, and they were released, but the military trial of Lambdin P. Milligan, William A. Bowles, Stephen Horsey, and Andrew Humphreys began in October 1864.

Lambdin P. Milligan (1812-1899) was the most prominent of the three. He believed the southern states had a right to secede, and he opposed the war. He became a leader of the secret Order of American Knights (OAK) and advocated violent revolution against the U.S. government. Publication of his 1863 courtroom defense of an Indiana state senator in a trial by an Ohio military commission for criticizing the Lincoln administration’s conduct of the war increased his notoriety. In August 1864, Milligan addressed a public meeting in Fort Wayne, calling on Democrats to rise in arms to fight for “liberty, order and peace.” When evidence of a plot to release Confederate prisoners held in Indianapolis was discovered a few days later, authorities began arresting those they believed were involved, including Milligan.

The military commission weighed charges of conspiracy against the U.S. government, aiding the Confederates, inciting insurrection, disloyal practices, and violation of the laws of war. On December 10, 1864, it found Milligan, Bowles, and Horsey guilty and sentenced them to hang on May 19, 1865. They found Humphreys guilty of lesser charges, sentencing him to hard labor for the remainder of the war, but the commander modified that sentence and released him.

On May 10, 1865, just days before the scheduled executions, attorneys filed petitions for writs of habeas corpus in the U.S. Circuit Court in Indianapolis for all three prisoners. President Andrew Johnson approved commutation of the death sentences to life in prison. Meanwhile, U.S. Supreme Court Associate Justice David Davis and Circuit Judge Thomas Drummond agreed to differ on whether the Constitution prohibited military commissions from trying civilians, thereby forcing the case to the full U.S. Supreme Court.

In the trial from March 5 to 13, 1866, the government was represented by U.S. Attorney General James Speed, Henry Stanbery, and former Civil War General and future Massachusetts governor Benjamin F. Butler. Milligan’s defence team included New York attorney David Dudley Field, prominent Indiana attorney and Democrat Joseph E. McDonald, Civil War General and future President James A. Garfield, and former U.S. Attorney General and former U.S. Secretary of State Jeremiah Black. In two days of closing arguments, Field gave an impassioned defense of individual liberty during wartime. This printing includes the Appendix he submitted citing legal precedents.

On April 3, 1866, Chief Justice Salmon P. Chase handed down the court’s decision. Milligan was eligible for release based on the Act of March 3, 1863; the military commission did not have jurisdiction. Milligan, Bowles and Horsey were discharged from prison on April 12, 1866.

During the next session of the Supreme Court, in December 1866, Associate Justice David Davis of Illinois, an old friend of Abraham Lincoln, delivered the majority opinion for the Court. In its landmark decision, agreeing with Field, the majority declared that “martial rule can never exist when the courts are open” and confined martial law to areas of “military operations, where war really prevails.” Those requirements did not exist in Indiana, where the civilian courts were operating when authorities arrested, tried, and imprisoned Milligan. The majority accepted that during the suspension of the writ of habeas corpus, citizens could be detained without charges, but they could not be tried or executed by military tribunals.

Chief Justice Chase, formerly Lincoln’s Secretary of the Treasury, joined by three other justices, delivered a concurring opinion. Chase agreed with the judgment in this case and asserted that “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.” However, he and the other concurring justices disagreed with the majority about Congress’ power to authorize military commissions in Indiana; they insisted that Congress did have that power but had not exercised it in Milligan’s case.

David Dudley Field II (1805-1894) was born in Connecticut, the oldest child of Congregational minister David Dudley Field and his wife. David graduated from Williams College in 1825, studied law in Albany, and settled in New York City. He was admitted to the bar in 1828. After the 1846 New York State Constitutional Convention agreed with his arguments for simplification and codification of common law, he drafted the new laws. By 1850, the state legislature enacted the complete Code of Civil Procedure, also known as the Field Code, which became influential in many other states. Originally an anti-slavery Democrat, Field joined the Republican Party and supported the Lincoln administration. Even so, he became famous for his 1866 defense of Lambdin P. Milligan and others tried by military commission during the Civil War. He also defended William M. Tweed in 1873. Field returned to the Democratic Party in 1876 and from January to March 1877 filled out the unexpired term in the U.S. Congressman Smith Ely, who had been elected mayor of New York City.


Original printed front wrapper (rough along blank inner margin, and shallow blank edge chipping). Disbound, rubberstamp of City of New York Bar Association on title page. Clean text. Good+.

OCLC records only a few locations, some of which may be Kirtas Technologies reprints. Not in Marke or Harvard Law Cat.

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