“I do not deny, but I affirm, the right of Congress to authorize the suspension of the privileges of the writ of habeas corpus whenever, in cases of rebellion or invasion, the public safety may require it. Such action has been, and may again be, necessary to the safety of the Republic; but I call the attention of the House to the fact that never but once in the history of this Government has Congress suspended the great privileges of this writ, and then it was not done until after two years of war had closed all the ordinary tribunals of justice in the rebellious districts, and the great armies of the Union, extending from Maryland to the Mexican line, were engaged in a death-struggle with the armies of the rebellion. It was not until the third day of March, 1863, that the Congress of the United States found the situation so full of peril as to make it their duty to suspend this greatest privilege enjoyed by Anglo-Saxon people. Are we ready to say that an equal peril confronts us to-day?
“My objections to authorizing this suspension implies no distrust of the wisdom or patriotism of the President. I do not believe he would employ this power were we to confer it upon him; and if he did employ it, I do not doubt he would use it with justice and wisdom. But what we do on this occasion will be quoted as a precedent hereafter, when other men with other purposes may desire to confer this power on another President for purposes that may not aid in securing public liberty and public peace.
“But this section provides no safeguard for citizens who may be arrested during the suspension of the writ. There is no limit to the time during which men may be held as prisoners. Nothing in the section requires them to be delivered over to the courts. Nothing in it gives them any other protection than the will of the commander who orders their arrest.”
“But, sir, this fourth section goes a hundred bow-shots farther than any similar legislation of Congress during the wildest day of the rebellion. It authorizes the declaration of martial law. We are called upon to provide by law for the suspension of all law! Do gentlemen remember what martial law is? Refer to the digest of opinions of the Judge Advocate-General of the United States, and you will find a terse definition which gleams like a flash of a sword-blade. The Judge Advocate says: ‘Martial law is the will of the general who commands the army.’ And Congress is here asked to declare martial law. Why, sir, it is the pride and boast of England that martial law has not existed in that country since the Petition of Right in the thirty-first year of Charles II. Three years ago the Lord Chief-Justice of England came down from the high court over which he was presiding to review the charge of another judge to the grand jury, and he there announced that the power to declare martial law no longer existed in England. In 1867, the same judge, in the case of the Queen vs Nelson, uttered this sentence:
“‘There is no such law in existence as martial law, and no power in the Crown to proclaim it.’
“In a recent treatise, entitled The Nation, a work of great power and research, the author, Mr. Mulford, says: ‘The declaration of martial law, or the suspension of habeas corpus, is the intermission of the ordinary course of law, and of the tribunals to which an appeal may be made. It places the locality included in its operations no longer under the government of law. It interrupts the process of rights and the procedure of courts and restricts the independence of civil administration. There is substituted for these the intention of the individual. To this there is in the civil order no formal limitation. In its immediate action it allows beyond itself no obligation and acknowledges no responsibility. Its command or its decree is the only law; its movement may be secret, and its decisions are opened to the inquiry of no judge and the investigation of no tribunal. There is no positive power which may act, or be called upon to act, to stay its caprice or to check its arbitrary career since judgment and execution are in its own command, and the normal action and administration is suspended and the organized force of the whole is subordinate to it.’
“Sir, this provision means war, or it means nothing; and I ask this House whether we are now ready to take this step? Shall we ‘cry havoc and let slip the dogs of war?’
“I have taken a humble part in one war, and I hope I shall always be ready to do any duty that the necessities of the country may require of me; but I am not willing to talk war or to declare war in advance of the terrible necessity. Are there no measures within our reach which may aid in preventing war? When a savage war lately threatened our Western frontiers we sent our Commissioners of Peace in the hope of avoiding war. Have we done all in our power to avoid that which this section contemplates? I hope the committee will bring a companion measure that looks toward peace and enable us to send the olive branch with the sword.”
This speech marked the separation of General Garfield from the Stalwart wing of the Republican party. It was never forgiven nor forgotten. It showed his balance of mind, his avoidance of extremes. The time when he delivered it was one of extremes. It was an epoch of reaction. It was verging toward the period when Sumner and Adams and Greeley were to forsake the party they had helped to create. It was a time when the fierce passions of war were beginning to find an opponent in the struggling instinct of reunion and peace. It was a time when the great radicals, who had fought slavery to its death, were to swing to the other extreme of loving gush and apologetic forgiveness toward a South which sat crouching in the Temple of Liberty, still maddened with the wild insanity of war. It was a time, on the other hand, when the great war leaders, gorged with the bloody spoils of victory, were to know no forgiveness, no forgetfulness, but to plant the iron heel of despotism upon the prostrate and bleeding foe. In this time of extremes General Garfield took the middle course. He remained a true Republican, but he recoiled from brutalism toward the South. Now that the passions of the hour have passed away, we believe that his speech on the enforcement of the Fourteenth Amendment will stand as the wisest utterance of the times. It rises above the level of partisanship to that of statesmanship. In the midst of the tempest of popular excitement over Southern outrages he was calm. As he afterwards said in his nominating speech at Chicago: