My objection 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 he 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.

The law of March 3, 1863, provided that whenever the privileges of the writ were suspended all persons arrested, other than pris oners of war, should be brought before, the grand jury of some district or circuit court of the United States, and if no indictment should be found against them they must, on the discharge of the grand jury, be immediately dis charged from arrest; and the officer who should detain any unindicted person beyond that limit was liable to fine and imprisonment.

Mr. SHELLABARGER. The bill refers it to the very law the gentleman cites; gives it to the operation of that law.

Mr. GARFIELD, of Ohio. My colleague is mistaken; the law of March 3, 1863, was a temporary act and expired with the rebellion. It is not contained in Brightly's Digest, and is no longer in force. Should the writ be suspended, I shall ask the House to reenact the second section of the law of 1863.

MARTIAL LAW.

But, sir, this fourth section goes a hundred bowshots further than any similar legislation of Congress during the wildest days 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 the flash of a sword-blade. The Judge Advocate says: 66 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 thirtyfirst 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 a 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 the habeas corpus, is the intermission of the ordinary course of law, and of the tribunals to which all 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 open 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."-Pages 185-6.

The Supreme Court, in ex parte Milligan, (4 Wallace, 124) examined the doctrine that in time of war the commander of an armed force has power within the lines of the military district to suspend all civil rights, and subject citizens as well as soldiers to the rule of his will.

Mr. Justice Davis, who delivered the opinio of the court, said:

"If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.

The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power;" the attempt to do which by the king of Great Britain was deemed by our fathers such an offense that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish." Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration."

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"Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

The court was unanimous in the decree which was made in this case, though four of the judges dissented from some of the opin

ions expressed by the court. Yet these dissenting judges united in a declaration that martial law can only be authorized in time of war, and for the purpose of punishing crimes against the security and safety of the national forces. But no member of the court gave the least support to the proposition that martial law could be declared to punish citizens of the United States where the courts of the United States were open, and where war, by its flaming presence, has not made the administration of justice difficult or impossible. The Chief Justice, who delivered the dissenting opinion, and in which all the dissenting judges concurred, said:

"Martial law proper is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities, where ordinary law no longer adequately secures public safety and private rights.

We think that the power of Congress, in such times and in such localities to authorize trial for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces."

I have quoted not only the opinion of the court, but that of the dissenting judges, for the purpose of exhibiting the unanimity of the court on the main questions relating to martial law. I cannot think that this House will, at this time, take such an extreme and unprecedented measure.

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 out commissioners of peace in the hope of avoiding war. Have we done all in our power to avoid that which this section con

templates? I hope the committee will bring in a companion measure that looks toward peace and enable us to send the olive branch with the sword.

I hope this House will grant general amnesty to all except to those who held high official trust under the United States, and then breaking their oaths went into rebellion. We should enlist both the pride and the selfishness of the people on the side of good order and peace. But I remind gentlemer. that we have not even an indication or suggestion from the President that such a remedy as martial law is needed; and yet we are called upon to authorize the suspension, not only of the great writ, but of all laws, and that, too, in advance of any actual necessity for it.

Mr. SHELLABARGER. My colleague will observe that the state of things under which alone martial law may be declared is particularly described in the bill.

Mr. GARFIELD, of Ohio. I know that the bill states the circumstances under which martial law may be declared; but why should we now alarm the country by this extreme measure?

Mr. SHELLABARGER. Because Congress may not be in session when the emergency arises.

Mr. GARFIELD, of Ohio. When neither the courts nor the President, with the Army and Navy to aid in enforcing the laws, can keep the peace, the President will be justified in calling Congress together. No stronger reason for convening Congress could arise than the necessity for martial law.

In conclusion, Mr. Speaker, I have only to say that, within the limits of our power, I will aid in doing all things that are necessary to enforce the laws of the United States, to protect and defend every officer of the Government in the free and full exercise of all his functions, and to secure to the humblest citizen the fullest enjoyment of all the privileges and immunities granted him by the Constitution, and to demand for him the equal protection of the laws.

All this can be done by this bill when amended as I have ventured to suggest.

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The House having under consideration the bill (H. R. No. 1043) to establish an educational fund, and to apply the proceeds of the public lands to the education of the people

Mr. GARFIELD, of Ohio, said:

Mr. SPEAKER: In the few minutes given me I shall address myself to two questions. The first is: what do we propose by this bill to give to the cause of education? and the second is: how do we propose to give it? Is the gift itself wise, and is the mode in which we propose to give it wise? This arrangement will include all I have to say.

And first, we propose, without any change in the present land policy, to give the net proceeds of the public lands to the cause of education. During the last fifteen years these proceeds have amounted to a little more than thirty-three million dollars, or one per cent. of the entire revenues of the United States for that period. The gift is not great, but yet in one view of the case it is princely. To dedicate for the future a fund which is now one per cent. of the revenues of the United States to the cause of education is to my mind a great thought, and I am glad to give it my indorsement. It seems to me that in this act of giving, we almost copy its prototype in what God himself has done on this great continent of ours. In the center of its greatest breadth, where otherwise there might be a desert forever, He has planted a chain of the greatest lakes on the earth, and the exhalations arising from their pure waters every

day come down in gracious showers, and make that a blooming garden which otherwise might be a desert waste. And from our great wilderness lands it is proposed that their proceeds, like the dew, shall fall forever, not upon the lands, but upon the minds of the children of the nation, giving them for all time to come all the blessing and growth and greatness that education can afford. That thought, I say it again, is a great one, worthy of a great nation, and this country will remember the man who formulated it into language, and will remember the Congress that made it law.

The other point is one of even greater practical value and significance just now than this that I have referred to. It is this: how is this great gift to be distributed? We propose to give it, Mr. Speaker, through our American system of education; and in giving it, we do not propose to mar in the least degree the harmony and beauty of that system. If we did, I should be compelled to give my voice and vote against the measure; and here and now, when we are inaugurating this policy, I desire to state for myself, and, as I believe, for many who sit around me, that we do here solemnly protest that this gift is not to destroy or disturb, but it is rather to be used through and as a part of and to be wholly subordinated to what I venture to call our great American system of education. On this question I have been compelled heretofore to differ with many friends of education here and elsewhere, many who have thought it might be wise for Congress, in certain contingencies, to take charge of the system

of education in the States. I will not now discuss the constitutional aspects of that question; but I desire to say that all the philosophy of our educational system forbids that we should take such a course. And in the few moments awarded to me I wish to make an appeal for our system as a whole as against any other known to me. We look sometimes with great admiration at a Government like Germany, that can command the light of its education to shine everywhere, that can enforce its school laws everywhere throughout the empire. Under our system we do not rejoice in that, but we rather rejoice that here two forces play with all their vast power upon our system of education. The first is that of the local, municipal power under our State governments. There is the center of responsibility. There is the chief educational power. There can be enforced Luther's great thought of placing on magistrates the duty of educating children.

Luther was the first to perceive that Christian schools were an absolute necessity. In a celebrated paper addressed to the municipal councilors of the empire in 1524, he demanded the establishment of schools in all the villages of Germany. To tolerate ignorance was, in the energetic language of the reformer, to make common cause with the devil. The father of a family who abandoned his children to ignorance was a consummate rascal. Addressing the German authorities, he said:

"Magistrates, remember that God formally commands you to instruet children. This divine commandment parents have transgressed by indolence, by lack of intelligence, and because of overwork.

"The duty devolves upon you, magistrates, to call fathers to their duty, and to prevent the return of these evils which we suffer to-day. Give attention to your children. Many parents are like ostriches, content to have laid an egg, but caring for it no longer.

Now, that which constitutes the prosperity of a city is not its treasures, its strong walls, its beautiful mansions, and its brilliant decorations. The real wealth of a city, its safety and its force is an abundance of citizens, instructed, honest, and cultivated. If in our days we rarely meet such citizens. whose fault is it, if not yours, magistrates, who have allowed our youth to grow up like neglected shrubbery in the forest?

"Ignorance is more dangerous for a people than the armies of an enemy."

After quoting this passage from Luther, Laboulaye, in his eloquent essay entitled "L'Etat et ses Limites," pages 204 and 205,

says:

'This familiar and true eloquence was not lost. There is not a Protestant country which has not placed in the front rank of its duties the establishment and maintenance of popular schools."

The duties enjoined in these great utterances of Luther are recognized to the fullest extent by the American system. But they are recog nized as belonging to the authorities of the State, the county, the township, the local communities. There, these obligations may be urged with all the strength of their high sanctions. There, may be brought to bear all the patriotism, all the morality, all the philan thropy, all the philosophy of our people, and there it is brought to bear in its noblest and best forms.

But there is another force even greater than that of the State and the local governments. It is the force of private voluntary enterprise, that force which has built up the multitude of private schools, academies, and colleges throughout the United States, not always wisely, but always with enthusiasm and wonderful energy. I say, therefore, that our local self-government, joined to and coöperating with private enterprise, have made the American system of education what it is.

In further illustration of its merits, I beg leave to allude to a few facts of great signifi cance. The Governments of Europe are now beginning to see that our system is better and more efficient than theirs. The public mind of England is now, and has been for several years, profoundly moved on the subject of education. Several commissioners have lately been sent by the British Government to examine the school systems of other countries, and lay before Parliament the results of their investigations, so as to enable that body to profit by the experience of other nations.

Rev. J. Frazier, one of the assistant commissioners appointed for this purpose, visited this country in 1865, and in the following year made his report to Parliament. While he found much to criticise in our system of education, he did not withhold his expressions of astonishment at the important part which private enterprise played in our system. In concluding his report, he speaks of the United States as "a nation of which it is no flattery or exaggeration to say that it is, if not the most highly, yet certainly the most generally educated and intelligent people on the globe."

But a more valuable report was delivered to Parliament in 1868, by Mathew Arnold, one of the most cultivated and profound thinkers of England. He was sent by Parliament to examine the schools and universities of the continent, and after visiting all the leading States of Europe, and making himself thoroughly familiar with their system of education, he delivered a most searching and able report. In the concluding chapter, he discusses the wants of England on the subject of education. No one who reads that chapter can fail to admire the boldness and power with which he points out the chief obstacles to popular education in England. He exhibits the significant fact that while during the last half century there has been a general transformation in the civil organization of European Governments, England, with all her liberty and progress, is shackled with what he calls a civil organization, which is, from the top to the bottom of it, not modern. He says:

"Transform she must unless she means to come at last to the same sentence as the church of Sardis: Thou hast a name that thou livest, and art dead.' "However, on no part of this immense task of transformation have now to touch, except on that part which relates to education, but this part, no doubt, is the most important of all, and it is the part whose happy accomplishment may render that of all the rest, instead of being troubled and difficult, gradual and easy.' * * * Obligatory instruction is talked of. But what is

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