When the war was over the Supreme Court decided, in Milligan's case, after the most solemn argument and deep consideration, that the President could not declare martial law in any district not invaded by the enemy and where the judges were on the bench and the courts of law in operation. Martial law exists where there is a battle. It exists in a community where war exists and the courts and civil authorities are overthrown. A commander at the head of his army may impose it on states in rebellion, to cripple their resources and quell the insurrection. But it never exists where the courts and civil authorities are performing their normal functions. It prevails on the actual theatre of war because it is the only law there; the other law has been destroyed. Beyond these instances it cannot be created, except perhaps by an act of Congress.
The decision in Milligan's case has played havoc with the theories that prevailed during the war. Lincoln maintained that any one who injured the efficiency of the military power could be seized by that power, tried by a military commission and, if necessary, hanged. It was quite generally believed among ardent Unionists, that martial law followed the army; that the right to carry on war being given to the government, all things necessary to make the war successful were implied. Undoubtedly when the Union armies captured a soldier of the Confederacy or an inhabitant of the Confederacy who was aiding the rebellion, such person was a prisoner of war, and could be held in confinement without a trial until the war was over, or he was exchanged. No one disputed that people who injured the governments military force in this way could be seized by the army wherever found. But suppose a man who had never been in
- Ex parte Milligan, 4 Wallace, 2.
- Ex parte Milligan, supra; In re Kemp, 16 Wisconsin, 359.
- Greeley, American Conflict, vol. ii, 493.
- William Whiting's pamphlets on War Powers, Millitary Arrests, etc. maintained these views. They passed through numerous editions and must have had a great influence. They have been called strong, but they are strong only in the sense of being dogmatic. They are now published in book form. Their author served during the war without pay as solicitor to the War department.