Army Court or Jury? Two Arguments in Ex parte Milligan

A Civilian Before an Army Court

1The Bill of Rights, ratified in 1791, protects people accused of crimes. The Fifth Amendment says no person shall be held to answer for a serious crime without an indictment by 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.” The Sixth Amendment promises “a speedy and public trial, by an impartial jury of the State and district” where the crime was committed.

2During the Civil War, the Union army set up military commissions, courts made up of army officers, to try some civilians accused of helping the Confederacy, even in states far from the main fighting.

3Lambdin P. Milligan was a lawyer in Indiana, a state that stayed in the Union, and he was not a soldier. In October 1864 army officers arrested him, charging that he had plotted with a secret group to free Confederate prisoners and seize weapons. A military commission in Indianapolis found him guilty and sentenced him to death. Throughout this time, the regular federal court in Indianapolis was open and hearing cases.

4Milligan’s lawyers asked the Supreme Court to free him. In 1866, about a year after the war ended, all nine justices agreed that the military commission had no power to try him, and Milligan was released. By deciding whether the government’s actions followed the Constitution, the Court was using judicial review.

Account A: Adapted summary of the argument by lawyers for the United States, 1866

Source note: These lawyers were defending the army’s actions before the Supreme Court.

The nation was fighting for its life. Indiana lies just across the Ohio River from Kentucky, and in 1863 Confederate raiders crossed the river into Indiana itself. Secret societies in the state plotted to free thousands of Confederate prisoners. Milligan was not a soldier, but in such a war the President, as commander in chief, must be able to act quickly to stop plots behind the lines. Ordinary juries in a divided state might be afraid, or might side with the plotters. The Fifth Amendment itself shows that the usual rules for trials give way in time of war. A military commission was the surest way to protect the Union.

Account B: Adapted from Justice David Davis’s opinion for the Court, 1866

Source note: Davis wrote for the majority after the war had ended.

The country was at war when Milligan was arrested, but “the Constitution of the United States is a law for rulers and people, equally in war and in peace.” Milligan was not a soldier. He lived in Indiana, where the federal courts were open and able to try him. The Fifth Amendment’s exception covers people serving in the army, navy or militia, not other citizens. Military rule cannot exist where the courts are open. If leaders could set aside trial by jury whenever they judged the danger great enough, the rights of every citizen would depend on the will of whoever held power.