Army Court or Jury? Two Arguments in Ex parte Milligan

Corroborate two accounts that disagree about a Civil War trial and the Bill of Rights.

Rights on trial

Read the background and the table. Then answer the questions.

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.

Selected rights in the Bill of Rights:

Selected Rights in the Bill of Rights
Amendment	What it protects
First	Speech, press, assembly and petition
Third	No troops lodged in homes in peacetime
Fifth	Grand jury; no second trial; due process
Sixth	Speedy, public jury trial; a lawyer
Seventh	Jury trial in many money lawsuits
Ninth	Rights not listed still belong to people

Draw a line from each situation to the amendment in the table that most directly protects the person.

In peacetime, soldiers are ordered to live in a family’s house against the family’s wishes.
A farmer sues a neighbor over a $300 debt and asks for a jury.
A man found not guilty of a theft is put on trial again for the same theft.
Townspeople gather peacefully to sign a request to Congress.
A person claims a right the Constitution does not name.

A. Seventh Amendment
B. Third Amendment
C. First Amendment
D. Fifth Amendment
E. Ninth Amendment

Which person would the Fifth Amendment’s wartime exception most clearly cover?

A. A farmer accused of stealing a horse in peacetime
B. A state judge accused of taking a bribe during a war
C. A soldier accused of deserting his post during a war
D. A newspaper editor in a Union state during a war

Why did Milligan’s trial raise a Sixth Amendment question?

A. He was tried in Kentucky instead of in Indiana.
B. He was judged by army officers, not a jury of his state.
C. His trial took place after the war had ended.
D. He was tried in a state that had left the Union.

Two accounts that disagree

Read both accounts and their source notes. Then answer the questions.

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.

Use only the two accounts. Sort each statement: does it appear in both accounts, only in Account A, or only in Account B?

Milligan was not a soldier.Confederate raiders crossed into Indiana in 1863.The federal courts in Indiana were open.Juries in a divided state might side with plotters.The country was at war when Milligan was arrested.The Fifth Amendment exception covers members of the armed forces.

Both accounts	Only Account A	Only Account B

Account A was written by lawyers defending the army. How did that purpose most likely shape it?

A. It leaves out the war because the war had already ended.
B. It stresses dangers that made quick army action seem needed.
C. It praises jury trials in order to win Milligan’s release.
D. It reports the vote of the justices who heard the case.

Account B says the courts in Indiana were open and able to try Milligan. Which detail from the background passage corroborates this claim?

A. The Court ruled about a year after the war ended.
B. Military commissions tried civilians in several states.
C. A military commission sentenced Milligan to death.
D. The federal court in Indianapolis was hearing cases.

Circle the sentence in Account B that most directly answers Account A’s claim about the Fifth Amendment.

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.

What makes Ex parte Milligan an example of judicial review?

A. The Court judged whether army actions fit the Constitution.
B. The President pardoned Milligan before his trial.
C. Congress voted to release Milligan after the war.
D. The states ratified an amendment about jury trials.

Use the background passage. Write the number of years.

The Milligan ruling came years after the Bill of Rights was ratified.

10.

Suppose that in 1898, during a short war, army officers in Ohio arrest a shopkeeper who is not a soldier, while Ohio’s courts are open. Based on the Milligan ruling, how should his case be handled?

A. In a regular court, with a jury of his state and district
B. By a military commission, since a war is going on
C. Held in jail with no trial until the war is over
D. By the President, who commands the army in wartime

11.

Which account makes the stronger argument about Milligan’s trial? Make a claim, use evidence from both accounts and the background passage, and explain your reasoning.