History of Buchanan County, Iowa, with illustrations and biographical sketches, Part 136

Author: Williams bros., Cleveland, pub. [from old catalog]; Riddle, A. G. (Albert Gallatin), 1816-1902
Publication date: 1881
Publisher: Cleveland, Williams brothers
Number of Pages: 574

USA > Iowa > Buchanan County > History of Buchanan County, Iowa, with illustrations and biographical sketches > Part 136

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investigated by a committee of the two houses. They went into the question of the merits of this pavement, some claiming that it was bad, and some claiming that the government had paid too much for it. Mr. Chittenden was called as a witness. 1 ought to say here that I never saw Mr. Chittenden until about the time I made the brief; I did not and do not know De Golyer and McClelland; I would not know them on the street ; I am not aware that I ever saw Mr. Nicker- son before; and if anybody in this business had any scheme relating to me, it was never mentioned to me in the remotest way. It never was suggested to me that this matter could relate to my duties as a member of congress in any way whatever. All that I did was done openly. Everybody who called on me could have seen what I was doing, and if there was any intention or purpose on the part of anybody to connect me in any way with any ring or any dishonorable scheme, it was sedu- lously concealed from me. As I have said, three years ago a joint committee of the two houses investigated this matter thoroughly. Mr. Parsons was summoned, was examined, and cross-examined; Mr. Chit- tenden was examined; Mr. Nickerson was examined. When I heard that my name was being used in the matter, I went to the chairmen on both sides-for it was a joint committee. Senator Thurman, of my own State, was on the committee; Mr. Jewett, now president of the Erie railway, was on the committee. 1 said to the chairmen that, if there was anything in connection with the case which reflected upon me, and that they thought I ought to answer, I would be obliged to them if they would inform me. The chairman on the part of the house, Mr. Wilson, said that he had looked the matter all over, and that what I had done was perfectly proper; but, if anything should occur to make any explanation necessary, I should appear before the committee; he would send me word. He never did send for me.

I want to say this, further, that if anybody in the world bolds that my fee in connection with this pavement, even by suggestion or impli- cation, had any relation whatever to any appropriation by congress for anything connected with this District, or with anything else, it is due to me, it is due to this committee, and it is due to congress, that that per- son be summoned. If there be a man on this earth who makes such a charge, that man is the most infamous perjurer that lives, and I shall be glad to confront him anywhere in this world. 1 am quite sure this committee will not allow hearsay and contradictory testimony to raise a presumption against me. Now, I will say very frankly to the commit- tee that, if I had known or imagined that there was an intent such as this witness insinuates, on the part of anybody, that my employment by a brother lawyer to prepare a brief on a perfectly legitimate question-a question of the relative merits of certain lawful patents-had any con- nection whatever, or any supposed connection in the mind of any man, with any public duties, I certainly would have taken no such engage- ment. I would have been a weak and very foolish man to have done so, and I trust that gentlemen who know me will believe that I would at least have had too much respect for my own ambition to have done such a thing.

By the Chairman: Q. What was the amount that Mr. Parsons did pay you of his fee ?- A. Five thousand dollars. I do not think he men- tioned any sum at the time he asked me to make the argument. He said that he was to receive a large fee, and he would share it with me. I am not sure that he then mentioned the amount, or what he would pay me, but he said that the fee was a large one, and that there was a large amount involved. When I had made the argument I went home to. Ohio, and some time in the month of July, I think, or perhaps a month afterward, Mr. Parsons deposited in bank to my credit five thousand dollars.

By Mr. Culbertson: Q. Who paid those fees ?- A. } do not know. I never knew anything about that at all. Mr. Parsons engaged me. No- body else spoke to me about it, The only relation I had to it at all was

THE DE GOLYER CONTRACT.

with him. Mr. Parsons' testimony on the subject is very full, and is true, as I remember it.

A CONTINGENT FEE.

By the Chairman: Q. Did Mr. Parsons say to you that his fee or yours would be contingent on the award of a contract for two hundred thousand square yards of pavement ?- A. Oh, no, sir. I do not think he said that. He said: "I am in danger of losing an important fee unless I make this argument, and I cannot do it; I must go away, and I will pay you a share of what I get if you will make the brief." I don't remember that he said whether it was contingent or absolute. 1 simply acted upon his request.

Q. Your brief was made and filed ?- A. Certainly. I labored over the case a good many days. I remember among other papers which I examined were some pamphlets giving an account of the working of this pavement in California, and I think, in Chicago. There were two or three chemical analyses of the materials used. I had to examine, I think, nearly forty of the different patents. The understanding was that the merits of the different competing pavements were to be laid before the board, in order that they might determine their relative merits. I do not think I knew anything about the price that was to be paid per square yard; certainly it was none of my affair; I had nothing to do with it or to say about it.

By Mr. Pratt: Q. It was not involved in the question submitted to you ?- A. It was not involved in the question at all, because, as I un- derstood, the board of engineers had beforehand determined that for wood pavements they would pay so much, for concrete so much, and for other kinds so much. The property-holders on a street made a re- quest for whichever pavement they preferred-concrete, Belgian, or wooden-and when the petitions of the property-holders were filed with the board they gave the different streets the kinds of pavement asked for by the people.

By the Chairman: Q. Had you any knowledge at the time that the advisory board had passed a condemnatory judgment upon this very pavement upon which the award was made ?- A. I had not, nor have I now. I only knew that there was a considerable amount of wooden pavement to be laid, because the citizens had asked for it. I had no knowledge of the matter except what I got from the papers before me. I recollect, among other things, that it was certified from the board of public works of Chicago that this pavement had stood there better than any other wooden pavement they had ever had, and I believe there was similar testimony from the city authorities of San Francisco.

Q. Had you any previous knowledge as an expert in the qualities of different pavements ?- A. I had had considerable experience in pat- ents and patent law generally. I had been engaged in the Goodyear rubber case, in the supreme court, and I was familiar with patent law. I have been practicing in the supreme court here since 1866; I do prac- tice constantly, as much as my public duties allow.

Mr. Garfield refuted the idea that he was sought for any purpose connected with any possible appropriation by congress.

The Chairman-I don't think, Mr. Garfield, that it has been testified here, directly, that any proposition in so many words, was made to you in relation to any appropriation made by congress, but there have been put in evidence here extracts from letters, which were written by Chit- tenden from this city to DeGolyer & McClelland, after interviews with you.

Mr. Garfield-Of course, Mr. Chairman, you will see the utter impos- sibility of one man being made responsible for what another man writes about him. I can not, of course, say what has been written about me. If I had it all before me, it would be a very mixed chapter, I have no doubt, as it would be in the case of any of us.

The Chairman-There has been no direct testimony that any such proposition was ever made to you.

Mr. Garfield-If there is any testimony of that sort it is false, and I shall be obliged if you will let me know.

Though no one can care what Nickerson may have said, on any subject, I cut this further from him, after Mr. Garfield's statement. The very last paragraph of this singular record :

Mr. Pratt-Didn't I understand you to say just now, Mr. Nickerson, that at the time Mr. Garfield was employed, and at the time he was giv- ing the board the result of his examination of the matter, you were aware of it, and were anxious for his success ?

Mr. Nickerson-I say I was interested and anxious for the success of the matter, and spent a good deal of time and money in connection with it, but I did not know that Mr. Garfield was in at all, at that time.

The only other witness, and the first called, was Gov. Shepherd whose evidence strongly contradicted that the contract was received by influence.

As nobody before that committee, or elsewhere, has in any form contradicted Gen. Garfield's statement, it is to be taken as entirely true. The busy years had inter- vened between the events recited and their narration, he had not been permitted to forget them, and he gave the same account of them, as in his Warren speech of September 19, 1874.

The case is this : He had no knowledge of or confer- ence with the principals. He did not know that there were persons between them and Mr. Parsons. He was employed by Mr. Parsons, esteemed as a high-minded and honorable man, to take his place in an important case, prepare and make a purely legal and scientific argument in it, before a regular official body, having jurisdiction of it. We know that the task was ably and conscientiously performed. There is not a shadow of proof that he was even unconsciously used, or sought to be used for any other purpose however indirectly. Beyond his able presentation of the merits of the De Golyer pavement, he had nothing to do with procuring the contract, nor does it appear that that was fraudulent, unfair, or to the harm of the District.

He had nothing to do with determining the sum to be paid Mr. Parsons, nor was there any stipulation between Parsons and himself, as to the amount to be received by him. Mr. Parsons, a just and generous man, decided what he ought to pay, and unasked, paid it.

In this transaction what nice rule of official conduct, what strict law of personal integrity, what severe canon of propriety was violated or invaded by Mr. Garfield? No public money went for his fee. The District did not pay it. No possible action of congress was involved in it. Shall it be said that he ought to have suspected something? Who, or what ? What was there to put him

LIFE OF JAMES A. GARFIELD.

on his guard? Was he a great man, and should he have known that something more than his mere argument was employed? That he should have known that the weight and presence of his influence as a public man were what were retained? So a lawyer, an advocate and a civilian shall see to it, lest he grows too large, and dwarfs the courts, and his very presence amounts to that undue in- fluence which works a denial of justice, although in this instance, no one has claimed that it did.

If still it is said that Garfield had no such position as a lawyer as would warrant the payment to him of five thousand dollars, even in a matter of this moment, and he ought to have known that himself, it is still to be re- membered that he did not bargain for or name the sum, nor was he consulted about it. If such are the reader's im- pressions of him he is respectfully referred to chapter first, Part Third of this work.

It might be well to ask the reader to remember that while Garfield was chief. of staff of the army of the Cum- berland with power to give passes, and do all that the general could do, nothing would have been casier in those unscrupulous times, than for a man with a turn for thrift to have realized unnumbered thousands in cotton and other speculations. So on the ways and means, and appropriation committees-what would not men have given to increase or reduce a tax, or import, or to secure an appropriation? One scorns a reference to the small savings of such a man to negative a charge of ve- nality; and yet that he has but scant resources after all these years of great and splendid services, and has met with no pecuniary losses is satisfactory evidence that his hand has never touched venal money.

PART FOURTH.

CHAPTER I.

THE LAWYER.

Reasons for not Entering the Ministry .- Studies Law .- Admission. - The Milligan His First Case .- The Court, its Judges and Lawyers. -The Case .- No Law Authorizing Milligan's Prosecution .- Con- dition of the Country .- The Advocate .- His Opponent's argument. -Result .- Campbell Will Case .- Preparation .- Trial. - Leading Cases .- Gains the Cause .- Cases in the Supreme Court and Else- where .- Earnings at the Bar.

It will be remembered that coincident with his profes- sor days Mr. Garfield was a lay preacher among his peo- ple of the Disciple church, to which he remains at- tached. As time bore him forward he queried with him- self as to the regular ministry. The wishes and influence of his mother were strong, and these were greatly strength- ened by the universal desire of the churches. It was a perplexing matter, one which he must decide for himself. He was conscious that while his people had no written creed yet there were certain limitations of doctrine in their construction of the New Testament which he might find narrow. In a smaller way came in his want of means, and it was rather the theory of the Disciples that the ministry of the word was quite consistent with poverty. There was a winsome maiden whose eyes had awakened a wish for that dual life, which for her sake he . resolved should not be lost in the narrow cheerlessness of poverty, to which he was born, and which had walked with him some thing more than a phantom through life. He would not be a minister. He would find an early occasion to announce his purpose to the Disciples and to the world. He even mentally sketched the outline of his address. He would study law, be a lawyer. Then came his election to the senate. If he then should announce his purpose he would be subject to the impu- tation of being allured from the high, serene path of the ministry, for the charm of politics, place-seeking and affairs.' He would not make the announcement till he left the senate. Then came the war and swept him off in a whirlwind of fire, and he never did make it. Things- events took him as they always did and set him his task.

With his instinctive idea of beginning with the root- lets of things, and his conscientious thoroughness, at his time of life, with his mental training, he was admirably prepared to master the law. He applied to a lawyer in A somewhat remote town, to whom he felt himself drawn,

THE LAWYER.

and in consultation marked out a course of study. He was then at the head of the college at Hiram, which numbered three or four hundred students, with many outside demands upon his time. He began with Black- stone, read a chapter, made from memory a rapid ab- stract of it, and later, re-read the chapter, and then re- vised his notes of it. This was his method. Among the books of his course was "Gould's Pleading," in many respects the most scientific and complete treatise of com- mon law-pleading ever written. The master of it is a good lawyer. Garfield mastered it. At the end of the required two years he was attending his duties as a senator at Columbus, and applied for admission to the supreme court of the State, then sitting as a court of errors. His application was referred to Thomas Key and Richard Harrison, both members of the senate, the first a Democrat, and Mr. Harrison a Republican of de- cided conservative tendencies. Both were able lawyers, and with both he had interchanged blows in the senate. Neither had any idea of his real acquisitions, nor more than a courteous disposition to treat him fairly. They subjected Mr. Garfield to a thorough and searching exam- ination, but they did him ample justice. In their report they spoke of his mastery of the law as unusual, phe- nomenal, as of course it was. James Mason, esq., em- inent at the Ohio bar, which suffers nothing by compar- ison with any other, a relative of Mr. Garfield's young wife, was ready to form a partnership with him, but the inexorable war, which carried off the young preacher, bore away the young lawyer in the same fiery chariot.

Not wholly to the bar was he lost, as we shall see. The Milligan case will be remembered. That was his first case. It was before the supreme court of the United States-the old court of Marsl all, chief justice by Wash- ington's appointment, where Jay and Ellsworth had pre- sided, and where another Washington, and Story, Thomp- son and Baldwin once sat. Where Emmet and Du Pon- ceau, 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 the capitol, fanned by the two flags over the two houses, in which he first appeared. It was a great case, a causa celebra. 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.

It had become unscrupulous, relentless, inexorable -had substituted its hasty, unlawful ordinances for the

irrepealable law of the land, unmindful that if it stripped the awful form of Justice of the consecrating robes of the law, and sent it forth to take its penalties in men's forfeited lives, that in this guise its judgment was vengeance, and it became a murderer and not justice; that this was a violation of the inner essence of law and justice, which alone authorized the very war which the Nation was then waging; that there was no more consti- tutional right to put Milligan to death, as he had been adjudged, or send him to the penitentiary for life, to which the President commuted his punishment, than there was for the revolt of the States. And this was the awful paradox the Nation was enacting. It was seeking to preserve its life by violating the principle which gave it a right to live. It was waging war on exactly the same absence of right and law, as that on which alone the re- bellion rested. Who was to come forward and make all this clear, and save the lives and liberties of Milligan and his band, and save the Nation from the suicide involved in their punishment? A man of courage as well as of rare ability. For precisely the same spirit which had en- meshed Milligan in the fatal snair of lawless doom would concentrate its wrath on his advocate. It required more courage than to rally the fleeing soldiers from Chicka- mauga. A man who could scornfully confront an enraged convention; stand alone against the house of represent- atives and denounce it; a man who went and searched out the cause he knew not in the old capitol prison, and turned upon the great secretary of war, girt with his armies, and a more powerful and subservient public opinion ; and this blond - faced, blue-eyed saxon young man went for- ward to this duty. And this was the young lawyer's first case, paralleled in the history of our jurisprudence by the defense of the British soldiers for the Boston massacre, by John Adams, in the old revolutionary time. That the peril to himself was not imaginary, the young man soon felt, in the condemnation expressed of him in the jour- nals of his own State, and the momentary denunciation of his constituents. The case was tried in March, 1866, and deemed of the utmost importance to the National cause.

Under the vague, shadowy war power, never defined even by those who exercised it, these men were seized in 1864, in the State of Indiana, then not invaded; they were not in the military service, and were charged with conspiracy against the United States, inciting insurrection, disloyal practices, violations of the laws of war, commit- ted in Indiana, tried by a military commission unknown to any law, and sentenced to death by hanging. The sentence was approved by President Lincoln, who com-

LIFE OF JAMES A. GARFIELD.

muted death to imprisonment for life. The prisoners applied for a habeas corpus, under the act of congress of March 3, 1863. The United States circuit court were divided in opinion, and the case came before the supreme court to settle the questions thus raised. Others appeared with Mr. Garfield, but he from his position and surround- ings was mainly relied on. For the United States ap- peared Attorney-General Speed, Henry Stanberry, his successor, and General Butler. My quotation from Mr. Garfield's argument must be brief. After a happy state- ment of the case-that the question was, whether the commission had a legal existence, he said:

As a first step toward reaching an answer to this question, I affirm that every citizen of the United States is under the diminion of law; that whether he be a civilian, a soldier, or a sailor, the constitution pro- vides for him a tribunal before which he may be protected if innocent, and punished if guilty of crime.

He then quoted the fifth amendment to the constitu- tion, and traced out the power for the creation of courts under that instrument. From that he diverged to the military department, and stated with exactitude its limits of authority, and traced down the current of enactment and usage, and the jurisdiction of military courts. He then drew the line which divided the citizen from the soldier. One side of it he was a citizen, and amenable to the civil courts; the other he was a soldier, under the jurisdiction of military courts. The line had been marked all the way. A man does not pass that line from citizen to soldier, till mustered into the military service, With his usual perspicnous care, he then clearly opened out the cases on these points, showing that the supreme court had jurisdiction to inquire into and review the case before it.

The prisoners were not in the naval service, nor in the military, nor militia ; and called into service, were mere civilians.

He then examined the authority for military commis- sions.

Thus he states the position of the attorney-general and his associates.

The honorable attorney-general and his distinguished colleague (General Butler) declare that-

I. A military commission derives its power and authority wholly from martial law; and by that law, and by military authority only are its proceedings to be judged or reviewed; that ---

1I. "Martial law is the will of the commanding officer of an armed force, or of a geographical military department expressed in time of war, within the limits of his military jurisdiction, as necessity demands and prudence dictates, restrained or enlarged by the orders of his mili- tary chief or supreme executive ruler," and that "the officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive."

To give any color of plausibility to this novel proposition, they were compelled not only to ignore the constitution, but to declare it sus-

pended; its voice drowned in the thunders of war. Accordingly, with consistent boldness, they declare that the third, fourth and fifth articles of amendments "are all peace provisions of the constitution, and, like all other conventional and legislative laws and enactments are silent 'inter arma,' when 'salus populi suprema est lex.'" Applying these doctrines to this cause, they hold that from the fifth of October, 1864, to the ninth of May, 1865, martial law alone existed in Indiana; that it silenced not only the civil courts, but all the laws of the land, and even the constitution itself; and during that silence the executor of martial law could lay his hand upon every citizen, could not only suspend the writ of habeas corpus, but could create a court which should have the exclusive jurisdiction over the citizen to try him, sentence him, and put him to death.

We have already seen that the congress of the United States raises and supports armies, provides and maintains navies, and makes the rules and regulations for the government of both; but it would appear from the teachings of the learned counsel on the other side, that when congress has done all these things-when, in the name of the Republic, and in order to put down rebellion and restore the supremacy of law, it has created the grandest army that ever fought-the power thus created rises above its source and destroys both creator and law.

They would have us believe that the government of the United States has evoked a spirit which it cannot lay -has called into being a power which at once destroyed and superseded its author, and rode, in uncontrolled triumph, over citizen and court, congress and constitution.

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History of Buchanan County, Iowa, with illustrations and biographical sketches, Part 136

Author: Williams bros., Cleveland, pub. [from old catalog]; Riddle, A. G. (Albert Gallatin), 1816-1902 Publication date: 1881 Publisher: Cleveland, Williams brothers Number of Pages: 574

Author: Williams bros., Cleveland, pub. [from old catalog]; Riddle, A. G. (Albert Gallatin), 1816-1902
Publication date: 1881
Publisher: Cleveland, Williams brothers
Number of Pages: 574