Ex Parte Milligan 71 U.S. 2 (4 Wall.) (1866)
Commentary by Jon Roland
The decision in this case is usually hailed as a landmark for liberty,
but while the decision is correct, there are some problems with the opinion
that leaves open the door to abuses that have recently become topical.
The main problem is that it seems to accept the authority of military
tribunals to try persons is a state of actual war or in an area where "the
courts are closed". It is one thing to detain persons until civilian courts can
try a case, and quite another to try and punish them. It is also a problem when
the courts are closed as the result of action by the military forces that
detain and try, and it is also a problem when there is not an actual
declaration of war (since letters of marque and reprisal only apply to
expeditions outside national territory), even if the situation might be
described as an "insurrection". It might be argued that indefinite detention
might be authorized in the situation that Congress is unable to meet to declare
war, but that was not the situation in this case, even if withdrawal of some of
the states raised a question of existence of a quorum. It also seems to accept
that the U.S. Congress might have the authority to enact criminal penalties
against individuals engaged in rebellion, when the Constitution confers no such
authority outside territories ceded to the exclusive jurisdiction of a state
under Art. I Sec. 8 Cl. 17 or
territories under Art. IV Sec. 3 Cl. 2 .
The lack of provisions for doing all of these things may be considered a defect
in the U.S. Constitution that might require amendments, but unless or until
such amendments are adoped, the authority does not exist. The only
constitutional way to detain and punish persons in any such situation is under
state statutes and in state courts.
The opinion neglects to emphasize the important principle that
jurisdiction in all matters of criminal law is primarily territorial, not
personal, except for military personnel or militia personnel in actual federal
service, in accordance with Art. I Sec. 8
Cl. 14 and 16. This means there is
no criminal authority for acts committed outside U.S. territory, except for
military personnel (since militia personnel may not be used outside U.S.
territory), regardless of where the effects of the acts might occur. The word
in the Constitution is "committed" not "occurred",
Art. III Sec. 2 Cl. 3, which means the
location of a crime is that of the offender at the moment actus reus is
united with mens rea.
 Introduction to Conflict of
Criminal Laws, Edward S. Stimson (1936).
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