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Law School Case Brief

Ex parte Milligan - 71 U.S. (4 Wall.) 2 (1866)


The Constitution expressly vests judicial power in one supreme court and such inferior courts as the Congress may from time to time ordain and establish. The President is controlled by law, and has his appropriate sphere of duty 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.


Petitioner prisoner was arrested and confined in a military prison. At trial, the prisoner objected to the authority of the military commission to try him, but he was sentenced to death. He filed a petition for discharge from unlawful imprisonment in the Circuit Court of the United States for the District of Indiana. The prisoner argued that the military commission did not have jurisdiction to try him.


Did the military commission have jurisdiction to try the petitioner?




After reviewing the Constitution, the Court determined that the commission was not a court vested with judicial power by Congress, and therefore the prisoner's rights were infringed upon when he was tried by the commission. The prisoner's rights were further infringed upon when he was denied a trial by jury. Thus, the Court held that the appropriate remedy was to issue the writ of habeas corpus. Moreover, because the military trial of the prisoner was contrary to law, on the facts stated in his petition, the prisoner should have been released from custody.

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