But when its measures and
legislation were brought to the test of judicial judgment there
was but one course to pursue, and that was to apply the law and
the Constitution as strictly as though no war had ever existed. The
Constitution was not one thing in war, and another in peace. It always
spoke the same language, and was intended as a rule for all times
and occasions. It recognized, indeed, the possibility of war, and, of
course, that the rules of war had to be applied in its conduct in the
field of military operations. The Court never presumed to interfere
there, but outside of that field, and with respect to persons not in
the military service within States which adhered to the Union, and
after the war in all the States, the Court could not hesitate to say
that the Constitution, with all its limitations upon the exercise of
executive and legislative authority, was, what it declares on its face
to be, the supreme law of the land, by which all legislation, State
and federal, must be measured.
The first case growing out of the acts of military officers during
the war, which attracted general attention and created throughout the
North an uneasy feeling, was the Milligan case, which was before the
Court on habeas corpus. In October, 1864, Milligan, a citizen of the
United States and a resident of Indiana, had been arrested by order
of the military commander of the district and confined in a military
prison near the capital of the State.
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