Ex Parte Milligan Defense?

Question

For AP US History, we're doing a mock trial of the 1866 Supreme Court Case of Ex Parte Milligan. I'm supposed to be defending Milligan. Can anyone think of some defenses I could use?

So far, my biggest point I've been able to think of is whether he deserves due process or not (need to back this up) and whether he deserves a civilian trial versus a military one.

Thank you SO much, guys! Your arguments are very informative, and now I'm no longer struggling to understand the case or defense. This trial will be fun!

(And I think our side deserves a break - we lost our Dred Scott case miserably yesterday, mainly because the "judge" silenced us every other word as we "legally couldn't be there" - and no chance to even prove that wrong!)

Answer 1

Sounds like a fun and timely exercise.

Key to Milligan is the issue of jurisdiction.

In Milligan, The Supreme court framed this question as such:

"III. Whether, upon the facts stated in the petition and exhibits, the military commission had jurisdiction legally to try and sentence said Milligan in manner and form, as in said petition and exhibit is stated?"

The Chief provisions in the Constitution supporting your position for the defense were Articles 4, 5, and 6:

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

5. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of 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 shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

6. 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, . . . 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.



In Milligan, it was pointed out:

"In considering the first question, that of the competency of the military tribunal for the trial of the petitioners upon those charges, let me first call attention to the dates of the transactions.

Let it be observed next, that for the same offences as those set forth in the charges and specifications, the petitioners could have been tried and punished by the ordinary civil tribunals.

Let it also be remembered, that Indiana, at the time of this trial, was a peaceful State; the courts were all open; their processes had not been interrupted; the laws had their full sway.

Then let it be remembered that the petitioners were simple citizens, not belonging to the army or navy; not in any official position; not connected in any manner with the public service.

**************

Bearing in mind, therefore, the nature of the charges, and the time of the trial and sentence; bearing in mind, also, the presence and undisputed authority of the civil tribunals and the civil condition of the petitioners, we ask by what authority they were withdrawn from their natural judges?"

Those points were ultimately what swayed the Supreme Ct. to decide that a military was not competent to try a citizen not connected with military service and who lived in Indiana, was arrested there, and had not been a resident of any of the states in the rebellion or a prisoner of war. The petitioner had not been captured while participating in hostile activities against the government, for an offense against the United States. Thus, the Court held that the petitioner could not properly be tried on a criminal offense by a military commission, appointed by the military commander, in a state where the courts were open and unobstructed.


Have fun!!!!!

Answer 2

ex parte Milligan?

Terrorists? Civilians arrested by the military? Suspension of Habeus Corpus? Death sentences imposed by Military Tribunals without the right to face ones accuser and without due process?

What *possible* relevance could that case have in todays world ? :-)

You're lucky - you're arguing the easy side. After all, in the real trial, the Supreme Court agreed with the defense. The best advice I can give is to read the transcript of the real trial.

The primary argument was that the Constitution allows for the suspension of Habeus Corpus, and trials by Military commissions, when the civilian courts are 'forced closed' by an emergency - such as the civil war. By Executive Order, Lincoln also ordered the writ suspended in States that were in 'open rebellion'.

Milligan, though, was in Indiana - a Union State that never rebelled, where the courts never closed, and where a proper Grand Jury was in session at the time that Milligan was arrested. On what basis, then, was he denied his right to a civilian trial?

He was not 'taken under arms', which would have made him a POW, but was plotting to commit treason, a crime that the civilian law has all the nnecessary procedures to try him - and execute him - for.

Richard

Answer 3

Bush can absolutely declare a state of emergency, and in turn marital law, and the 08' election would be postponed .. but doubt that he will.. martial law means a body of law imposed by the military over civil law..\ independent voting RP