Teacher Resources: Lesson Plan

Lambdin Milligan and the Writ of Habeas Corpus

Overview

During times of war, individual liberties and the needs of the United States government can come into conflict. Americans faced many of the same issues during the Civil War when Abraham Lincoln suspended the writ of habeas corpus as we face today with the war on terror and the Patriot Act. In this lesson, students will examine the case of Ex parte Milligan, when Lambdin P. Milligan, a Confederate sympathizer of Indiana, was sentenced to die. They will read a plea from Milligan, extracts from Justice David Davis' opinion and complete a worksheet guiding them through the issues. For a culminating activity, they will conduct research to see how individual's legal rights during time of war have been treated by the courts in other cases from the nearly contemporary Ex parte Merryman, to World War II cases involving Nazi spies or Japanese-American internment, to the present American Taliban case of John Walker Lindh. This lesson is designed for high school students in U.S. History or Government/Civics, grades 9-12.

National Curriculum Standards met by this lesson

For a list of standards that this unit addresses, click here.

Ties to your Curriculum

This lesson ties into United States History when studying:

This lesson ties into United States Government/Civics when studying:

Time required

The lesson will take one class period if reading and written work is done outside of class.

Materials

The Lesson

Anticipatory Set

  1. Provide students with a photocopy of the letter of Lambdin Milligan to read and retrieve the following information:
  • Ask students what questions this letter raises that remain unanswered. Ask them to hypothesize about what action Stanton took. What action the president took?
  • On October 21, 1864 pro-Confederate attorney Lambdin Milligan was tried before a military tribunal in Indiana and found guilty of conspiring to steal weapons, free Confederate prisoners-of-war and aid them in overthrowing the governments of three states to set up a "Northwestern Confederacy." He was sentenced to hang on May 19, 1865. If what Lambdin Milligan said was true, that he'd been framed by a political opponent and had been condemned to death without evidence, what parts of the Constitution or its amendments were violated? Why do you think he asked for help from the president first rather than appeal to the Supreme Court?
  • Explain that this letter is related to a major civil liberties case, Ex parte Milligan, which arose on September 24, 1862, during the Civil War, when President Abraham Lincoln suspended the writ of habeas corpus. The writ requires that whoever has taken a citizen into custody must provide cause, explaining to a judge why the prisoner is being held and allowing the judge to rule on whether the prisoner should be held or released. It protects individuals from arbitrary imprisonment by the government. Lincoln's proclamation declared that:
    • Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission: Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.
  • Ask students to look up Article I, section 9, clause 2 of the U.S. Constitution. It says:
    • 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.
  • Discuss with students whether Lincoln's suspension of the writ of habeas corpus seems constitutional or not.

    • Courtesy National Archives and Records Administration, Washington DC Records of the Office of the Judge Advocate General (Army), RG 153, Court Martial Records; NN3409, Box 1165.

    Transcription of letter:

    Indianapolis 28 Dec. 1864
    Hon. E. M. Stanton, Sety War
    Dear Sir
    I have been condemned to die without evidence. Please examine the facts and advise the President. Do this much for an old acquaintance and friend--

    Yours very truly,
    L. A. Milligan

    Procedures

    1. Explain that Milligan had taken bar examinations with Stanton to become lawyers thirty years earlier; there is no evidence that Stanton responded. When Lincoln's successor, Andrew Johnson, reaffirmed the order for execution on May 2, 1865, Milligan's lawyers filed a petition for a writ of habeas corpus with the U.S. circuit court. They argued that a civilian could not be tried at a military court if civil courts were in operation. Supreme Court Associate Justice David Davis was sitting on the Circuit Court for Indiana and felt the case should be heard by the Supreme Court. He persuaded President Johnson to grant a stay of execution until June (which was commuted to life in prison, although this information was not shared with Milligan who continued to put his affairs in order, plan his funeral, and write remarks to be given at the gallows.) In March 1866 the Supreme Court heard the case. The court arrived at a decision on April 3 but it was not published until December because of political tensions between President Johnson and the Radical Republicans and over fear that the Radicals would retaliate against the court since its decision in the Dred Scott Case had left it weakened (in respect to the other branches of government.) Explain to students that they will read a portion of the decision by Justice Davis (below) in the case, with the Ex parte Milligan Opinion Worksheet to guide them through the argument.
    2. Discuss with students the worksheet and questions they may have about it. Let them know that Milligan was released, arrested by civil authorities, but released again without being charged. In 1871, Milligan sued the military commission for $100,000. Benjamin Harrison, later to become president, was appointed by President Ulysses Grant to defend the commission. Although the jury found the law on Milligan's side and decided in his favor, Harrison's eloquent argument that the commission had acted in good faith persuaded the jury to award Milligan damages of only $5. Milligan returned to practicing law until he 1897 and died in 1899.
    3. As a culminating activity, students will investigate one of the trials past or present related to Ex parte Milligan, identifying the key questions and findings of the court in the case and explaining how it relates to Ex parte Milligan. The results of the investigation will be reported in a paper of between 1000-1500 words. The paper's title should provide a focus for the investigation and may be framed as a question or hypothesis. Each paper should include the following:

    Possible cases for students to investigate include:

    Assessment

    The students' papers may be evaluated on a twenty-point scale (which can be multiplied by five to convert to 100-point scale or for conversion to letter grades) using the following rubric:

     

    Excellent

    Good

    Fair

    Poor

    Summary of the Background of the case (2)

    (2) Summary is appropriate and focused

    (1) Summary is generally appropriate but slightly off focus

    (0) Summary is confusing

    (0) No summary

    Identification of Key Questions (3)

    (3) Key questions identified thoroughly and with clarity

    (2) Key questions are identified adequately

    (1) Key questions are incompletely identified or explained in a confusing manner

    (0) Key questions are not identified

    Explanation of how the Supreme Court ruled on key questions (5)

    (5) Explanation is thorough and clear

    (4-3) Explanation is generally adequate on all or most points

    (2-1) Some attempt is made to explain how the Supreme Court ruled but the explanation is incomplete or unclear

    (0) Explanation is not attempted

    Analysis of the relationship of the case to Ex parte Milligan (5)

    (5) Critical analysis of evidence

    Different interpretations analyzed, when appropriate

    (4-3) Evidence is analyzed adequately

    Different interpretations analyzed, when appropriate

    (2-1) Some attempt made to analyze evidence

    Some attempt made to show relationship of the cases

    (0) There is no analysis

    Evaluation of impact of case (3)

    (3) Importance of case is put into historical context in a manner clear and consistent with evidence

    (2) Importance of case is put into historical context, but not fully consistent with evidence

    (1) Some attempt is made to set case's importance in historical context but it is not entirely coherent

    (0) There is no evaluation

    Sources and Word Limit

    (2)

    (2) List of sources is comprehensive

    Citations conform to a single standard method

    Paper is within word limit

    (1) List of sources is incomplete

    Citations are not consistent to a single standard method

    Paper is within word limit

    (0) Paper is not within the word limit

    (0) List of sources not included

    Paper is not within the word limit

    Related Works

    FindLaw for Legal Professionals includes not only the entire text of Justice David Davis' opinion, but the concurring opinion of the chief justice and also a summation of the arguments presented before the court on behalf of Milligan and the government.
    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=71&invol=2

    "Civil Liberty and the Civil War: The Indianapolis Treason Trials," remarks by Chief Justice William Rehnquist delivered October 28, 1996
    http://www.law.indiana.edu/ilj/v72/no4/rehnquis.html

    The Supreme Court Historical Society: The Chase Court 1864-1873
    http://www.supremecourthistory.org/02_history/subs_history/02_c06.html

    Lincoln's Suspension of the Writ of Habeas Corpus in Baltimore and Missouri (1861) in the Official Records of the War of the Rebellion:
    http://www.civilwarhome.com/Writ.htm

    Proclamation Suspending the Writ of Habeas Corpus by Abraham Lincoln, September 24, 1862:
    http://teachingamericanhistory.org/library/index.asp?document=425

    The U.S. Constitution Online, "Constitutional Topic: Martial Law"
    http://www.usconstitution.net/consttop_mlaw.html

    University of Missouri-Kansas City Law School, Exploring Constitution Conflicts: War and Treaty Powers of the U.S. Constitution
    http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm

    Huntington County, Notable Natives: Lambdin Milligan (brief biography with photograph)
    http://www.huntingtoncounty.org/history/famous.htm

    Interdisciplinary Links

    Drama: The case of Lambdin Milligan lends itself to recreation on the stage. In March 2005 the Indiana Courts made available on their website a case script and teaching materials for Ex parte Milligan at:
    http://www.in.gov/judiciary/citc/lessons/harrison-day-2005/

    Students may re-enact the trial as a drama or write a script of their own based on the case (as Arthur Miller did for the Salem Witch Trials in The Crucible or Jerome Lawrence and Robert E. Lee did for the Scopes Monkey Trial in Inherit the Wind.)

    Language Arts: There are a number of opportunities for short, creative writing assignments based on Ex parte Milligan. Students might chose to:

    The extracted opinion follows:

    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?

    No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole [71 U.S. 2, 119] people; for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law... 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 [71 U.S. 2, 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.

    ...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, [71 U.S. 2, 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.

    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 not 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.' ...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 [71 U.S. 2, 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? ...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.

    ...Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country [71 U.S. 2, 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 every one accused of crime who is not attached to the army, or navy, or militia in actual service.

    ...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 [71 U.S. 2, 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... If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them... 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.

    ...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 [71 U.S. 2, 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...

    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...in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law...

    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.

    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...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 [71 U.S. 2, 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...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. [71 U.S. 2, 132]

    Ex parte Milligan Opinion Worksheet

    Name ________________________________

    1. According to Justice Davis, what is the controlling question in this case?


    2. Justice Davis cites a passage from the Constitution and passages from several Amendments which apply to the case. Provide the quotation Davis cites as relevant for

      3. The original Constitution:

      Fourth Amendment:

      Fifth Amendment:

      Sixth Amendment:

    3. Did the military commission which tried Milligan derive authority from the Constitution?

      4. from the Congress?

      from the President?

    4. Was federal authority opposed in Indiana?

      5. Were its courts open to hear criminal accusations and to redress grievances?

    5. According to Justice Davis, was Milligan's right, guaranteed by the Constitution, violated when he was tried by a court not ordained and established by Congress?


    6. According to Justice Davis, was Milligan's guarantee of freedom broken when he was denied trial by jury?


    7. If martial law in time of war allows a military commander to suspend all civil rights of soldiers and citizens, and substitute military force for laws, does Justice Davis think civil liberty can survive?


    8. What safeguard of liberty can the President, Congress or the Judiciary disturb during time of war?


    9. Does the Constitution allow the government to deny citizens any other guarantee of law other than the writ of habeas corpus?


    10. Under what circumstances does Justice Davis see martial rule as proper?


    11. Can martial rule exist where the courts are open?


    12. Does Justice Davis think that conspirators such as Milligan, if guilty, deserve severe punishment?


    13. Why did Milligan not qualify as a prisoner of war?


    14. According to the court's opinion, should Milligan have been held in custody by the military?


    15. Was Milligan's trial and conviction by a military commission legal or illegal?