4 Wall. 2, 18 L.Ed. 281 ( 1866)
In 1864, Milligan, a Southern sympathizer residing in Indiana, was seized and tried by a military commission in the military district of Indiana on various charges of disloyalty. He sought a writ of habeas corpus in the Circuit Court, after being sentenced to death by the Commission. The Circuit Court split on the issue of whether habeas corpus might issue. An Act of 1863 had authorized the suspension of the writ of habeas corpus by the President, but Milligan claimed that the Commission did not have jurisdiction of his case.
MR. JUSTICE DAVIS delivered the opinion of the court. . . .
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? . . .
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, 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 the 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