CHAPTER XI.

A CHAPTER THROWN IN.

In one of the most brilliant of Mr. Garfield's stump. speeches, delivered in Cleveland, October 11, 1879, he uses these words: "I will pick up a few straws, here and there, over the broad field, and will ask you a few moments to look at them."

There are some things in a life such as we are describing that hardly belong to the average of any life, and appear to better advantage by themselves. The ordinary in nature is not the thunder storm, the tornado, or the comet, and when these appear they merit a special description.

The beginning of public life is not necessarily the beginning of public service. So far as the public are concerned, they had better not be served at all than to receive much of what is called public service. A great deal of so-called service is only experimentation. to serve the people until he has which fits him for the particular calling he may choose to follow.

No man is competent served an apprenticeship

Garfield's real public service did not begin until he had passed the two first periods of his eventful life. He was now thirty-two years of age. The previous years had been full of the elements which were essential to the training of his great body, mind and heart, and in no sense were

commanding the military district of Indiana, and were tried by a military commission at Indianapolis. "The charges against them were:

"1. Conspiracy against the Government of the United. States.

"2. Affording aid and comfort to rebels against the Government of the United States.

3. Inciting insurrection.

"4. Disloyal practices.

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5. Violations against the laws of war."

The accused pleaded in defence that the military commission had no jurisdiction over them; but the Court overruled their plea and tried them, found them guilty, and they were condemned to death by hanging. This sentence was commuted by the President to imprisonment for life. The prisoners now filed a petition in the Circuit Court of the United States for Indiana, praying for release at the hands of the Court. The opinions of the judges were divided, and the case was certified to the Supreme Court at Washington. The questions so certified were the following:

"1. On the facts stated in said petition and exhibits, ought a writ of habeas corpus to be issued according to the prayer of said petition?

2. On the facts stated in said petition and exhibits, ought the petitioners to be discharged from custody, as in said petition prayed?

"3. Whether, upon the facts stated in said petition and exhibits, the military commission mentioned therein had jurisdiction legally to try and sentence said petitioners in manner and form as in said petition and exhibits is stated?"

The case was argued in March, 1866, by very able counsel, viz., J. S. Black, J. E. McDonald, D. D. Field, and J. A. Garfield, for the petitioners, and Benjamin F. Butter, James Speed, and Henry Stanberry, for the United States.

Garfield's position on the case was brought about through the invitation and the influence of his friend, Judge J. S. -Black, one of the counsel for the petitioners. The principles involved in the case were such as Mr. Garfield had considered two years before, when, with Henry Winter Davis, he resisted in the House of Representatives "an attempt to extend the power of military commissions over civilians interfering in any way with the war. He resisted the attempt as un-American and contrary to the old English spirit of liberty."

On the 6th of March Garfield made his argument before the august tribunal, following Judge McDonald, who opened the case for the petitioners. It was a splendid sight. The young lawyer, not ten days admitted, making the first legal plea of his life before the most august tribunal of justice in the nation, and upon a question involving the civil rights and liberties of men for whom he had no personal regard, and whom he had never seen; men, too, the like of whom, so far as their political sentiments were concerned, he had fought with a soldier's bravery from Middle Creek to Chickamauga.

"It was before the Supreme Court of the United States, the old Court of Marshall, Chief Justice by Washington's appointment, where Jay and Ellsworth had presided, and where another Washington, and Story, Thompson and Baldwin once sat. Where Emmet and Du Ponceau, Webster and Pinckney, and Wirt, and Johnson, and Black, and Evarts, and half a hundred other great advocates, had been heard, and had left the traditions of their fame. This was the Court, sitting in the old Senate chamber of Webster, Clay, Calhoun, Ewing, Seward, Chase and Sumner, in which he first appeared." It was a great case. Misguided men, caught in the great whirlpool of the rebellion, which drew in a hemisphere, were in the grasp of

relentless power, which had itself in a way become revolutionary, in its war to save from greater revolution. To defend such men, at such a time, and under such circumstances, required more courage than to charge with pointed steel upon the field of battle. His act never was paralleled in the history of American jurisprudence, unless by John Adams, in his defense of the British soldiers for the Boston massacre, in the old revolutionary time.

In the opening of his speech Mr. Garfield presented the facts in regard to the arrest of Lambdin P. Milligan, Wm. A. Bowles and Stephen Horsey; the charges made against them; and the result of their trial before a military commission. The death penalty had been pronounced upon them; but the President of the United States had commuted their sentence to imprisonment for life.

He stated the ground on which the case had been certified to the Supreme Court of the United States. He then said: "I desire to say, at the outset, that the questions now before this Court have relation only to constitutional law, and neither involve the guilt or innocence of the relators, nor the motives and patriotism of the officers who tried and sentenced them. I trust I need not say, in this presence, that, in my estimation, nothing in the calendar of infamy can be more abhorrent than the crimes with which these relators were charged; nothing that more fully deserves the swift vengeance of the law, and the execration of mankind. But the questions before your Honors are not personal. They reach those deep foundations of law on which the Republic is built; and in their proper settlement are involved the highest interests of every citi

Upon the determination of the question, "HAD THE

MILITARY COMMISSION JURISDICTION LEGALLY TO TRY

AND SENTENCE THE PETITIONERS ?" the whole cause rest

ed. If the commission had such jurisdiction, the petitioners are legally imprisoned, and should not be discharged from custody; nor should a writ of habeas corpus be issued in answer to their prayer. If the military commission had not jurisdiction, the trial was void, the sentence illegal, and should not be further executed."

Mr. Garfield then said: "I affirm that every citizen of the United States is under the dominion of law; that whether he be a civilian, a soldier, or a sailor, the Constitution provides for him a tribunal before which he may be protected if innocent, and punished if guilty of crime."

This proposition he defended and enforced by an appeal to the Constitution of the United States; by a clear statement of the boundaries of the military department; and illustrated his position by reference to "precedents from English and American practice."

Concluding on this point, Mr. Garfield said:

"I hold it, therefore, established, that the Supreme Court of the United States may inquire into the question of jurisdiction of a military court; may take cognizance of extraordinary punishment inflicted by such a court, not warranted by law, and may issue writs of prohibition, or give such other redress as the case may require. It is also clear that the Constitution and laws of the United States have carefully provided for the protection of individual liberty, and the right of accused persons to a speedy trial before a tribunal established and regulated by law.

"The petitioners must, as I have already shown, be placed in one of four categories: First, they were either in the naval service; or, second, in the military service; or, third, belonged to the militia, and were called out to serve, by order of the President, in the National militia; or, if neither of these three, nor so connected with them as to be placed by law under the naval or military jurisdiction, then they were simply civilians, and subject exclusively to the jurisdiction of the civil courts. It is set forth in the petition, and not denied by the opposing counsel, that they were