# Ex parte Milligan **Status: stub — expand.** **71 U.S. (4 Wall.) 2 (1866). Discharge ordered April 3, 1866; opinions filed December 17, 1866. Davis, J.; unanimous in judgment, 5–4 on the reasoning.** Lambdin Milligan, an Indiana civilian, was tried and sentenced to death by a military commission. The Court held a military commission may not try a civilian where **the civil courts are open and functioning** and the area is not a theater of active operations. Threatened invasion alone does not create [[Martial Law]]; the necessity must be "actual and present." Chief Justice Chase, joined by three others, concurred only in the judgment, arguing Congress could have authorized such commissions. That split is why *Milligan* is cited by both sides of every domestic-deployment argument since. ## See also - [[National Guard Federalization Flow]] · [[National Guard]] · [[Posse Comitatus Act]] · [[Insurrection Act]]