exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a State in rebellion, nor a prisoner of war, nor a person in the military or naval service; and that Congress could not invest them with any such power; and that in States where the courts were thus open and undisturbed the guaranty of trial by jury contained in the Constitution was intended for a state of war as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

This decision was concurred in by Justices Nelson, Grier, Clifford, and myself, then constituting, with Justice Davis, a majority of the Court.  At this day it seems strange that its soundness should have been doubted by any one, yet it was received by a large class—­perhaps a majority of the Northern people—­with disfavor, and was denounced in unmeasured terms by many influential journals.  It was cited as conclusive evidence of the hostility of the Court to the acts of the government for the suppression of the rebellion.  The following, taken from the Daily Chronicle of January 14th, 1867, a journal of Washington, edited by Mr. Forney, then Secretary of the Senate, is a fair sample of the language applied to the decision: 

“The opinion of the Supreme Court on one of the most momentous questions ever submitted to a judicial tribunal, has not startled the country more by its far-reaching and calamitous results, than it has amazed jurists and statesmen by the poverty of its learning and the feebleness of its logic.  It has surprised all, too, by its total want of sympathy with the spirit in which the war for the Union was prosecuted, and, necessarily, with those great issues growing out of it, which concern not only the life of the Republic, but the very progress of the race, and which, having been decided on the battle-field, are now sought to be reversed by the very theory of construction which led to rebellion.”

At the same term with the Milligan case the test-oath case from Missouri was brought before the Court and argued.  In January, 1865, a convention had assembled in that State to amend its constitution.  Its members had been elected in November previous.  In April, 1865, the constitution, as revised and amended, was adopted by the convention, and in June following by the people.  Elected, as the members were, in the midst of the war, it exhibited throughout traces of the animosities which the war had engendered.  By its provisions the most stringent and searching oath as to past conduct known in history was required, not only of officers under it, but of parties holding trusts and pursuing avocations in no way connected with the administration of the government.  The oath, divided into its separates parts, contained more than thirty distinct affirmations touching past conduct, and even embraced the expression of sympathies and desires.  Every person unable to take the