History of Buchanan County, Iowa, with illustrations and biographical sketches, Part 137

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 137

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All this mockery is uttered before this august court, whose every member is sworn to administer the law in accordance with the consti- tution !

Mark the strength of the last paragraphs.

In a masterly argument of simple, compact force and vigorous strength, he proceeds for the next hour and a half to the utter extinction of every shadow of law, pre- cedent and reason, supporting the proposition contended for by the government. Authorities were never more logically compacted and effectually presented, and the case at bar clearly placed within their reach, than by him. Then he opened out, explained, and enforced the reasons for the war legislation of congress, showing that military commissions found no resting place or support in them. I quote his beautiful and impressive peroration :

When Pericles had made Greece immortal in arts and arms, in liberty and law, he invoked the genius of Phidias to devise a monument which should symbolize the beauty and glory of Athens. That artist selected for his theme the tutelar divinity of Athens, the Jove-born goddess, protectress of arts and arms, of industry and law, who typified the Greek conception of composed, majestic, unrelenting force. Ile erected on the heights of the Acropolis a colossal statue of Minerva, armed with spear and helmet, which towered in awful majesty above the sur- rounding temples of the gods. Sailors on far-off ships beheld the crest and spear of the goddess and bowed with reverent awe. To every Greek she was the symbol of power and glory. But the Acropolis, with its temples and statnes is now a heap of ruins. The visible gods have vanished in the clearer light of modern civilization. We cannot restore the decayed emblems of ancient Greece, but it is in your power, O Judges, to erect in this citadel of our liberties, a monument more 1 .. st- ing than brass; invisible indeed to the eye of flesh, but visible to the eye of the spirit as the awful form and figure of Justice, crowning and adorning the republic; rising above the storms of political strife, above the din of battle, above the carthquake shock of rebellion; seen from afar and hailed as protector by the oppressed of all nations; dispens-

THE LAWYER.

ing equal blessings, and covering with the protecting shield of law the weakest, the humblest, the meanest, and, until declared by solemn law unworthy of protection, the guiltiest of its citizens.

The argument was delivered in a crowded court room, and was justly esteemed by the cool-judging, wise old heads of the bar, as one of the ablest in that forum, consecrated to weight, logic and law, with a suspicion of dullness and a flavor of the somniferous.

They congratulated him and the judges complimented him.

The court adjudged as follows:

First. That on the facts as stated in said petition and exhibits, a writ of habeas corpus ought to be issued according to the prayer of said petition.

Second. That on the facts stated in the said petition and exhibits, the said Lambdin P. Milligan ought to be discharged from custody as in said petition is prayed, and according to the act of congress, passed third of March, 1863, entitled " An act relating to habeas corpus, and regulating judicial proceedings in certain cases."

Third. That on the facts stated in said petition and exhibits, the military commission mentioned therein had no jurisdiction legally to try and sentence said Lambdin P. Milligan in the manner and form as in said petition and exhibits are stated.

And it is therefore now here ordered and adjudged by this court that it be so certified to the said circuit court.

Judge Davies pronounced the opinion which was for a time withheld, and the wise logical world, as between him and General Garfield, adjudged him the guiltier. However much it blames an advocate for appearing on the unpopular side of a case, it always visits the per- suaded and convinced judge with greater punishment than it awards to the advocate who persuaded and con- vinced him.

Mr. Garfield's argument placed him at once in the rank of the very able men who appear in the supreme court of the United States-would have conferred great distinction on almost any other man.

Some way, as his gifts are so much more abundant, greater things seem to be exacted of him than of others, for the same meed. Had he the persistent, untiring push of some others-of which no flavor exists in him-he might have ruined the possibility of going to the first place ten years ago. We think of this and are silent. It was wise to be unconscious of great deserving. He could wait.

THE ALEXANDER CAMPBELL WILL CASE.

This remarkable man who exercised so great an influ- ence over the faiths, opinions and even the fortunes and lives of so many; who had mainly built up a new church on the restored, old foundations, as was claimed, founded a college, defended revelation against infidelity, and Pro- testanism against Rome, whose opinions largely influenced the thought of his time, finally fell under the delusion

that he had himself visited Jerusalem, and it was the solace of many hours, to give glowing descriptions of the fallen city. These were due as was supposed, to the vivid pictures of the desecrated home of the old and new faith, conveyed to him in the letters of an intellectual and favorite daughter. He was a man of much wealth, and was the father of two sets of children. Those of the first wife being daughters, to whom in his life time he had apportioned what he deemed their just shares of his property. By his will he devised the residue to the chil- dren of the second wife. The elder daughters were dead, leaving children and husbands. These husbands, one the president of his college of Bethany, Virginia, re- pudiated the claimed settlement with them, and brought their suit to set aside the will for alleged, non-sound mind of the testator, and thus be let in with the younger children to an equal share of the residue of the estate. They employed eminent counsel, among whom was the late Ben. F. Stanton, formerly of Ohio. The devisees under the will, retained Judge Jerry Black and General Garfield. The case by arrangement was left to the judges, and came on for trial in the spring of 1868, in the Vir- ginia court. The case had then been pending for a year or more.

On his retainer, Garfield, overwhelmed as might be supposed, set himself about his preparation in his usual, thorough way. In the first place he broadly mas- tered the whole body of testamentary law, without refer- ence to his case. He always covers the whole ground, that no possible thing can anywhere spring up, out of unknown territory, to surprise him. He went through the Roman civil law, and then began with the older Eng- lish books; Swinburn, and the cases referred to by him, and so down to Jarman, thence to our own text writers and cases. Then he turned to the questions involved- testamentary capacity, and mastered the cases. Espe- cially he studied the leading New York case of Lispinard, where rules were recognized certainly not severe. in their limits as to capacity. Then came the Parrish case, later, in the same courts, appearing by the syllabus to overrule the former, and redefining testamentary capacity, requir- ing a higher and broader range of mind, and furnishing a new definition, in the opinion of Chief Justice Davies. This with the dissenting opinions of Gould and others, al- together cover three hundred pages or more. He made ample notes of his studies, and laid everything away. The case did not come on in 1867; he went to Europe, returned, and went through with the labor and distrac- tions of the long session, and when the senate was trying the President, accompanied by Judge Black, he went to try the will case in Virginia. The greatest interest was

LIFE OF JAMES A. GARFIELD.

manifested in the trial, and the court house was crowded the ten days it occupied. Over forty witnesses were examined. On the third day Judge Black returned home, leaving Garfield to tread the wine-press alone, save the aid of a junior who had looked up the witnesses. The case against the will was strong. Stanton, book in hand, read Judge Davies' rule to each of his witnesses, and from the most of them, received answers that Mr. Campbell did not meet its requirements.

Garfield called his own witnesses and made a fair showing, putting in some interesting evidence. Stanton arose for the closing argument, a strong-fibered, logical, masterful mind, and a clear, forcible speaker. He cleared the ground, re-read Judge Davies' definition, and at the end of his six hours' speech left not a shred of a case for the will. The devisees were dismayed. Alex- ander, jr., was in despair. It was utterly useless to con- tend further. What occurred during the night following I have from one who was there at the time. Garfield had not seen his notes or books for a year. He packed them up and carried them to Virginia. On overhauling them he found that he had not his notes. For once his marvellous memory was in half-fault. He remembered that there was somewhere a charm which rendered the Parrish case and Judge Davies harmless to his case; that the Alice Lispinard case was the rule after all. The syllabus of the Parrish case stated that the Lispinard case was overruled, and so Judge Davies declared, and then, late at night, he sat down to read the case through. Toward morning his waiting, wakeful friend, saw him throw up his hands, breathe an exclamation of relief, close the book with a resounding clap, and he went to bed. He met his clients with hopeful words in the morning, which were lost on them. The fame of the or- ator had long before reached Bethany. There was the utmost anxiety to hear him. The college had a holiday, and men from a distance were there. Mr. Garfield be- gan what was justly regarded a very powerful speech, by re-stating in the clear forceful way for which he is famous, the proposition and case of Mr. Stanton, and asked that gentleman if he had stated them fairly. Mr. Stanton arose and declared that they were stated with surpassing force and clearness, and beyond his own power of stating them himself, and he sat down with a taunting commendation of it, to the teeth of his "con- gressional friend." Garfield, resuming, said to the court: "If at the end of fifteen minutes I do not convince the court that the plaintiff's case has no resting place in the law, I will retire from it." He then turned to the lead- ing dissenting opinion of the Parrish case, and read pas- sages showing that the dissenting judges, and the whole

court united with Davies in the judgment, pronounced, not because the court adopted his new rule, but because the facts under the rule of the Lispinard case showed that Parrish was incompetent to make a will. This was a reaffirmance of the Lispinard case, a repudiation of Judge Davies' new rule, and the destruction of the legal ground on which Mr. Stanton had rested his case. He had not read the whole case, evidently, and the re- porter had not, but made up the syllabus from the opin- ion of the chief justice. The production of the ruling of the court thus brought out, was a shock from which Stanton and his friends did not recover. The court ex- amined the book, as did opposing counsel, when Mr. Garfield was directed to proceed with his argument. Of course he had now to show that, under the rule of the Lispinard case, Mr. Campbell was competent to make a will. The instrument was in Mr. Campbell's own hand. It recited the alleged settlement with the elder children, which the husbands denied. Other curious testimony came in to sustain the will, all of which was used with ingenious effect. The speech placed the case beyond reply, which a Wheeling lawyer attempted. The court sustained the will, and the case was ended.

Mr. Garfield received nothing for his great work in the Milligan case; not even the thanks of the liberated men ever reached him. For the Campbell case he re- ceived a fee of three thousand five hundred dollars.

The three cases of the New York Life Insurance com- pany with Taite and others, the same with Steatham and others, and the same with Dudley et al., all tried in the supreme court of the United States, in which General Garfield appeared for the company, were of the first im- portance, as they settled very grave principles. In the first case he was associated with Judge Curtiss, one of the most eminent men of the American bar, and by many ranked as the first lawyer. The insured were residents of the rebel States, war intervened, all com- munication was cut off, the annual premiums for re- newals were not paid. Suits were brought, after the war, and after the death of the parties, to enforce the policies against the company.

What was the effect of the war on the contract of insurance? The question was new and difficult. Its discussion would find precedents and analogies going a good way, and then the advocate and court were remitted to the reasonableness and rightfulness of the case under the circumstances. Other contracts and marine insur- ance were the helps and guides, but they stopped short. So the decisions of the supreme court, settling the pow- ers of agents, under appointments before the war, came in, also cotton cases decided in the same court.

THE LAWYER.

On the first trial of the first case, the court were equally divided. Before the second, and trial of the other cases, Judge Curtiss died, and other counsel were employed in the other cases, to aid Garfield. The prep- aration of the briefs was his entire work, and my reader now knows how he performed the labor. He also made the principal arguments. His examination of authorities was discriminating and accurate. No case escaped him. His argument upon general principles was cogent and convincing. Chief Justice Waite complimented him upon the principal one, and the court accepted and followed him in the decision, to the extent, that the contract of in- surance was inoperative from the date of the war. His grasp and handling of the cases and principles involved were able and lawyer-like, which is about the highest praise lawyers ever award each other. He was paid five thousand dollars for these trials.

I have thus called attention to three or four cases of exceptional importance, to show something of Mr. Gar- field's ability and learning as a lawyer, and his method of dealing with great and important issues. The subject has little interest for the average reader.

In running my eye over the calendar of the supreme court I observe that he tried the case of the United States vs. Henderson in 1872 ; a Montana case in 1873 ; an important railroad case also the same year, and that the number of his cases have increased since. He has in that court tried more than twenty cases of greater or less importance, which under the circumstances of his immense labors in the house, in the great canvasses of which scarce a word has been said, and the fact that he had no connection with lawyers anywhere by which cases have been placed in his hands, and that through the country he is not known as a lawyer, is really a very remarkable practice. It may be said also that of the many lawyers distinguished at their home bars very few who become members of congress are ever admit- ted to the supreme court, and the appearance of any of them there is phenomenal. Edmunds is occa- sionally there, Carpenter very often ; Freelinghuysen and Bayard, I have seen there; Conkling, rarely. The nu- merous and important cases from New York are tried by the lawyers who managed them in the State courts. But- ler is there a good deal ; Hoar, rarely. Garfield at one time had seven cases on the calendar, among them the famous Goodyear patent case. I remember that he went to Mobile and tried an important case and was paid five thousand dollars for it. He has appeared in the supreme court of Pennsylvania and several times in the supreme court of the District of Columbia. He must have de- rived from his law practice in these later years over

twenty-five thousand dollars. He would be a power be- fore juries. In most all lines of law he has been thor- oughly tested, in none has he fallen below the first class.

It never has required in this country, nor in England, the greatest intellect to make the greatest lawyer in either country. Very high mental excellence in certain direc- tions is requisite, with great and steady labor. Garfield's intellect, as I believe, fairly takes place with the rare few -the very best; certainly his is one of the largest and broadest minds that have appeared among us. Could it be diminished in some directions it would be phe- nomenal. Cut away one half and he would be a genius. He could easily become a great lawyer with a supera- bundance for literature, philosophy and metaphysics, where he early excelled.

LIFE OF JAMES A. GARFIELD.

CHAPTER II. MISCELLANEOUS WORK.

Extent and Character .- American Review .- Atlantic. - A Century in Congress. -- General Thomas. - Almeda Booth .- Dr. Robison. - Eliza Mother.

There remains a mass of other labors scattered through all these years, contributions to the press in various forms, essays, addresses on various occasions, strewn over my table, enough in themselves to have made a reputation, had they not been smothered and lost sight of in the grave and great labors of their author, in the National house of representatives. Some mention must be made of these-some bits to show their flavor. They fall into three groups. or two and a miscellany. There are those connected with his thought and service in the house. His is eminently a productive mind, constantly searching out the foundation, the essential philosophy of things, and while doing hard, practical work, there came to be large outside margins, and deep lower reservoirs of knowledge, lying all about, and under the product of his labor. From these resources he has drawn, as time or call permitted or required. Of this class is his paper in the Republic, a political and party magazine, published at Washington, and edited by the late Judge Edmunds, a practical, sagacious mind. It appeared in July 1873, and is a concise re-presentation of the subject of public ex- penditure, and the underlying reasons which should con- trol them-with a subject which the reader is supposed now to have some familiarity.

Mr. Speaker Randall had engaged to furnish the North American Review a paper contrasting Republican extrav- agance and profligacy with Democratic economy and vir- tue, and Mr. Garfield was asked to furnish a Republican counterpart, after the polyglot style of the Review-to give all sides and decide nothing, in the spirit of the luminous Story in his law books. Garfield promised the paper. Mr. Randall withheld his-never furnished it, and later Garfield's appeared under the title of "Appropria- tion and Misappropriation," where the reader will find the amplest opportunity of comparing, and contrasting the merits of the great parties in this important field of ad- ministrative law and policy, as set forth by Mr. Garfield. So also in Mr. Blaine's symposium in the same journal, a concise paper upon negro suffrage, and his two remark-

able papers on the army of the United States in the Re- view in the spring of 1878.

His study of the history of our National legislation, affecting our industries and resources, the currency, tariff, and revenues, with his eager, grasping mind, which caught the spirit and life of what produced and con- trolled the vast and variegated volume of enactment, made him familiar with the men who legislated and their methods. Living, as he had for so many years, in the house, and becoming possessed of its unwritten legends and traditions, there grew up in his mind the idea of presenting a summary of the origin of congress, as an entity, and a rapid sketch of it as a thing apart, yet living and continuing, with historic incidents, and mention of prominent men, whose lives illustrated it, with some ref- erence to its customs and habits. The result thus far was his paper, "A Century in Congress," in the Atlantic for July, 1877. Something more than a translated flavor of this admirable performance is due to the reader. Here are a few paragraphs following the happy opening :

THE AMERICAN CONGRESS.

Indeed, the history of liberty and union in this country, as developed by the men of 1776 and maintained by their successors, is inseparably connected with the history of the National legislature. Nor can they be separated in the future. The Union and the congress must share the same fate. They must rise or fall together.

The germ of our political institutions, the primary cell from which they were evolved, was the New England town; and the vital force, the informing soul of the town was the town-meeting, which, for all local concerns, was king, lords, and commons in one. It was the training- school in which our fathers learned the science and the art of self-gov- ernment, the school which has made us the most parliamentary people on the globe.

The idea of a congress on this continent, sprang from the necessity of union among the colonies for mutual protection, and the desire for union logically expressed itself in an inter-colonial representative as- sembly. Every such assembly in America has been a more or less marked symbol of union."

This seminal idea he rapidly traces to the origin and growth of the union as it takes form in action, in con- ventions. This action, as in most instances of human progress, seemed an accidental blind groping for present expediencies, rather than the result of sagacious forecast. . There is a large outlook in the paper, showing wide read- ing and a complete mastery of the causes which led to the convention of the first congress proper. There was the meeting of the governors at Albany, in 1748, fol- lowed by the congress at Albany, of 1754. This was made up of twenty-five commissioners, of whom Franklin was one. There, in some way, the great words union and congress found utterance. One would like to know who discovered them. The second convention which called itself a congress first, was held at New York, in June, 1765, to devise means of resistance to the stamp

MISCELLANEOUS WORK.

act, and we see the great names of the pre-revolutionary time. Here was the genesis of things.

There for the first time James Otis saw John Dickinson; there Gads- den and Rutledge sat beside Livingston and Dyer; there the brightest minds of America joined in the discussion of their common danger and common rights. The session lasted eighteen days. Its deliberations were most solemn and momentous. Loyalty to the crown, and a shrinking dread of opposing established authority, were met by the fiery spirit which glowed in the breasts of the boldest thinkers. Amidst the doubt and hesitation of the hour, John Adams gave voice to the logic and spirit of the crisis when he said: "You have rights ante- cedent to all earthly governments; rights that cannot be repealed or restrained by human laws; rights derived from the great Lawgiver of the universe." * * * * *

THE CONTINENTAL CONGRESS OF 1774-

Nine more years of supplication and neglect, of ministerial madness and stubborn colonial resistance, bring us to the early autumn of 1774, when the Continental congress was assembling at Philadelphia. This time the alarm had been sounded by New York, that a sister colony was being strangled by the heavy hand of a despotic ministry. The response was immediate and almost unanimous. From eleven colonies came the foremost spirits, to take counsel for the common weal. From the assaulted colony came Samuel and John Adams, Cushing and Paine. They set out from Boston in August, escorted by great num- bers as far as Watertown. Their journey was a solemn and trium- phant march. The men of Hartford met them with pledges to abide by the resolution which congress might adopt.

New Haven welcomed and Roger Sherman addressed them. Refreshed by a visit to the grave of Bidwell, one of the king-killers, they went on to their reception by the Sons of Liberty at New York. There came Jay. and Livingston, Sherman, Deane and Hopkins; from the far South, Washington, Henry, Lee, Gadsden, and Rutledge. In congress sat fifty-five men and eleven colo- nies-colonies, archaic word, about to become

" Nameless here forevermore."

Then follows an account of congress of 1775; con_ gress of revolt and independence with a resume of the congressional life of the old war, full of the old names and the mention of great events. The paper is very fascinating. Roon for the sketch of the first congress under the constitution must be had.

This brings us to the congress of the constitution, which began its first session at New York on the fourth of March, 1789.

Fears were entertained that some of the States might neglect or refuse to elect senators and representatives. Three States had hitherto refused to adopt the constitution. More than a month passed before a quorum of the senate and house appeared in New York; but on the sixth of April, 1789, a quorum of both houses met in joint session and witnessed the opening and counting of the votes for president and vice-president by John Langdon. Having dispatched the venerable Charles Thomson, late secretary of the old congress, to Mount Ver- non to inform Washington of his election, the new congress addressed itself to the great work required by the constitution. The three ses- sions of the first congress lasted in the aggregate five hundred and nineteen days, exceeding by more than fifty days the sessions of any subsequent congress. It was the high duty of this body to interpret the powers conferred upon it by the constitution, and to put in motion

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History of Buchanan County, Iowa, with illustrations and biographical sketches, Part 137

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