It is never too early or too late to start doing pro bono.

October is “Celebrate Pro Bono Month.” There are many ways to do pro bono: advice clinics, document preparation, incorporation of new non-profits, service through TnFreeLegalAnswers.org (formerly OnlineTNJustice.org), community legal education and full-scale litigation. As for case work, it ranges from preparing a power of attorney to handling an appeal. And it is never too early or too late to start doing pro bono.

James A. Garfield (1831-1881).

New lawyers can gain invaluable experience and mentoring through pro bono, and retired lawyers can return to the bar under Tennessee Supreme Court Rule 50A, the “Pro Bono Emeritus Attorneys Rule,” without having to pay the normal fees and taxes. Local legal aid offices can help any lawyer find their place doing pro bono.

James A. Garfield swiftly found his place as a pro bono lawyer. His very first case at the bar was pro bono and it was before the United States Supreme Court. Let us look at this remarkable lawyer and his first case, one that resulted in a landmark decision.

From Poverty to Lawyer

James Abrams Garfield, the last president born in a log cabin, was raised in abject poverty by his mother on the Ohio frontier. His father died of fever when James was only two. After working as a farmer and carpenter’s apprentice, at the age of 16 he got a job driving mules on the tow-path of the Erie Canal and eventually became a bargeman. He saved enough money to go to Western Reserve Eclectic Institute (later Hiram College) in Ohio, at the same time working as a janitor and school teacher, and transferred as a junior to Williams College in Massachusetts. At Williams, he became a debating champion, a lay Disciples of Christ minister (later ordained) and graduated with high honors in 1856. At this time he became active in the Republican Party and a vocal opponent of slavery.[1]

Garfield returned to Hiram to teach classics and within a year was made president of the college. In 1859 he was elected to the Ohio senate and vigorously campaigned for Abraham Lincoln in 1860. He also found the time to study law. Garfield later recalled: “I made my study of the law as complete as any one I know of, but I did it in my own room at Hiram.”[2] He was admitted to the Ohio bar as a self-taught lawyer in 1861, but did not go into practice then, because of the Civil War.[3]

Civil War and National Fame

Garfield opposed negotiation with the Southern states and called for military action. He next joined the army as a colonel with many of his former students following him into the ranks. At the battles of Sandy Hill, Shiloh, Corinth and Chickamauga, he demonstrated courage, a cool head and strategic ability. His brave actions at Chickamauga were particularly praised by superiors.[4] At 31 he was promoted to major general. While still fighting in the war, Garfield was elected to the U.S. House of Representatives in 1862, but did not leave the field until persuaded to do so in 1863 by President Lincoln. Lincoln argued that it is “easier to find major generals than effective Republicans for Congress.”[5]

Garfield was in New York City on congressional business the day Lincoln was murdered. Panic and chaos descended upon the city, and angry mobs, one with as many as 50,000 people, moved through the streets screaming “Vengeance!” Mobs killed one man and injured many more. Then the six-foot tall Congressman James Garfield stepped in front of a surging sea of thousands heading toward The World newspaper building, a Democratic paper known for its anti-Lincoln editorials.[6] He raised his hand signaling them to stop and in his commanding voice spoke:

Follow-citizens! Clouds and darkness are round about Him! His pavilion is dark waters and thick clouds of the skies! Justice and judgment are the establishment of His throne! Mercy and truth shall go before His face! Fellow-citizens! God reigns and the Government at Washington still lives![7]

The crowd dispersed in peace. Garfield was a national hero.

Garfield’s First Case

During the war, Lambdin P. Milligan, an Indiana lawyer and Southern sympathizer, was tried before a military commission for conspiring to overthrow the United States government. Milligan had collaborated with other supporters of the South to seize Federal weapons for the Confederacy, free prisoners of war and commit other acts of terror. Milligan was tried by the Union army, even though civil courts were operating in Indiana, and sentenced to death. There was probably too little evidence to convict before a civil jury.[8]

James Garfield’s first client, Lambdin P. Milligan

President Lincoln, in keeping with his prior practices, planned to grant clemency, but was assassinated before doing so. President Andrew Johnson postponed execution to permit an appeal to the U.S. Supreme Court. It did not look good for Milligan, however. During the war, the court had held in Ex Parte Vallandigham (1864)[9] that it did not have jurisdiction to review proceedings of military tribunals, even when trying civilians. Powerful political forces were also arrayed against Milligan. Radical Republicans in Congress feared that a reversal would upend their plans to use military tribunals in the South as part of their Reconstruction program.[10]

The high-powered legal team representing Milligan pro bono asked Garfield to join them, perhaps finding it useful to have a leading Republican congressman on their side. In any event, Garfield had already agreed to join the firm of one of Milligan’s lawyers and his speaking ability was well known. Before the court, Garfield argued the central point: Military tribunals had no jurisdiction to try civilians while civil courts were functioning.[11] He told the justices “that a Republic can wield the vast enginery of war without breaking down the safeguards of liberty; can suppress insurrection and put down rebellion, however formidable, without destroying the bulwarks of law.”[12]

The Supreme Court agreed that the military proceedings were unconstitutional. In response to the decision in Ex Parte Milligan (1866),[13] a whirlwind of criticism fell on the court and Garfield, but Garfield responded, “I would rather believe something and suffer for it, than to slide along into success without opinions.”[14] He also said that “justice and goodwill will outlast passion.”[15] Once free, Milligan, with different lawyers, sued the army for false imprisonment. The jury awarded him five dollars.[16]

Garfield would go on to argue 11 more cases before the Supreme Court, establishing himself, according to Justice Stanley Matthews, “as one of the very best lawyers at the bar in the whole country.” As for the law, Garfield wrote in his diary:

I have always found a keen intellectual pleasure in the law. It reaches out into what is impersonal, it is unpartisan, and may be so studied as to enlarge the spirit. I am conscious of not being fitted for the partisan work of politics, although I believe in partisanship, within reasonable limits.[18]

Garfield’s Presidency and Destiny

Garfield was fitted for politics and eventually became Republican leader in the House and a leading advocate for the civil rights of newly freed black Americans and civil service reform. During the early stages of Reconstruction, he supported harsh measures against the South, but his views became more conciliatory with time. His legislative interest became fighting corruption in government, as best symbolized by the Grant administration.

After 18 years in Congress and with five young children, Garfield was planning to leave politics and join a Cleveland law firm where he could earn more money.[19] He, nevertheless, went to the 1880 Republican National Convention to support fellow Ohioan John Sherman for the GOP presidential nomination in opposition to the re-nomination of former President Grant. But the convention deadlocked and, to the surprise of the country, on the 36th ballot the delegates nominated Garfield. In the general election he went on to win the popular vote by 9,464 votes out of more than 9 million cast.[20]

Once in the White House, the energetic Garfield showed every sign of becoming a truly great president as he took steps to strengthen and modernize the executive branch and gave orders to root out rampant corruption in the postal department. He quickly took control of his party and the Federal bureaucracy and began laying the foundation for a vigorous and enlightened foreign policy, especially in the Western Hemisphere.[21] There were even indications that he was marshaling resources to come to the defense of the civil rights of black Americans. He observed: “It is alleged that in many communities Negro citizens are practically denied the freedom of the ballot. It is a crime which, if persisted in, will destroy the government itself.”[22]

President Garfield’s biggest challenge came from the New York Republican political boss, Senator Roscoe Conkling. The titanic battle ensued over control of patronage in New York, especially at the custom house, long a political plumb. Garfield proclaimed that the struggle would “settle the question whether the President is the registering clerk of the Senate or the Executive of the United States.”[23] After much maneuvering, Garfield was victorious and Conkling’s corrupt machine was destroyed. One historian wrote that “he struck the first shrewd blows against a dangerous system of boss rule which seemed for a time about to engulf the politics of the nation.”[24]

A disappointed and deranged office seeker and failed lawyer, Charles J. Guiteau, shot President Garfield in the back. Garfield died 79 days later.

A biographer has written: “Americans came to revere this president, whose rise from poverty to the highest office seemed to embody America at its best.”[25] And it appeared that America might have found another leader as wise and strong as Lincoln, but Garfield’s presidency would become one of the great might-have-beens of history. On July 2, 1881, less than four months after taking office, the President was at a Washington train station about to depart on a trip to Williams College to give a commencement address when a disappointed and deranged office seeker and failed lawyer, Charles J. Guiteau, shot him in the back.[26]

For 79 days Garfield suffered, enduring repeated surgeries in unsuccessful attempts to find the bullet, as the nation awaited every bulletin on his condition and churches filled with those praying for his recovery. On Sept. 6, his request to be near the ocean and away from the Washington heat was granted and a railroad track was hurriedly laid from the main line to a seaside cottage at Elberon, N.J. As he was carried on a stretcher from the White House, he struggled to raise his left hand to bid farewell to the staff. Hundreds of thousands lined the tracks in silence from Washington all the way to the New Jersey coast.[27]

Two hundred railroad workers silently pushed and pulled a specially cushioned train car uphill along the new spur of track and his stretcher was carefully carried from the car into the cottage’s bedroom by soldiers. There the exhausted President died of infection and hemorrhaging at the age of 49 on Sept. 19 (the 18th anniversary of the Battle of Chickamauga) at about 10:30 at night.[28] Church bells soon began ringing in New Jersey, “then across the nation, then around the world.”[29]

Although Garfield’s six-month presidency had come to an end, major civil service reform, designed to remove politics from the Federal hiring process, was enacted in his memory. His own words on the Civil War dead aptly apply to himself: “If silence is ever golden, it must be beside the graves of men, whose lives were more significant than speech, and whose death was a poem, the music of which can never be sung.”[30]

Celebrate Pro Bono Month October is “Celebrate Pro Bono Month,” and Tennessee lawyers are joining their colleagues across the country to provide free legal services to those in need and honor the good work performed by lawyers every day as part of the annual National Pro Bono Celebration. Now in its eighth year, the TBA’s statewide Celebrate Pro Bono initiative brings together legal services providers with local bar associations, law schools, law firms and individual lawyers to offer free services to those unable to afford a lawyer. This year hundreds of volunteers will participate in dozens of events and activities across the state that will offer assistance to Tennesseans in need. Activities include legal advice clinics, education programs, public presentations and other events. Every year, Tennessee lawyers help thousands of clients by providing free legal assistance. The month of October is an opportunity to focus attention on the significant need for pro bono services as well as a celebration of the outstanding work of those in the legal community who volunteer their services throughout the year. Events, including opportunities to volunteer, will be promoted in TBA Today and on the TBA website throughout October. The full list of Celebrate Pro Bono Month activities is available at https://www.tba.org/info/celebrate-pro-bono-month-2016

Notes

1. See Neil A. Hamilton, Presidents: A Biographical Dictionary 166 (2001).
2. Allan Peskin, “James A. Garfield: Supreme Court Counsel,” in America’s Lawyer-Presidents 166 (ed. Norman Gross 2004).
3. See id. at 167.
4. See William A. Degregorio, The Complete Book of U.S. Presidents 297-98 (1991).
5. Frank Freidel, The Presidents of the United States of America 46 (1995).
6. Barbara Barclay, Our Presidents 216-18 (1976).
7. Joseph Nathan Kane, Facts About the Presidents 227 (1976).
8. Peskin at 167; see Robert Bruce Murray, Legal Cases of the Civil War 75-76 (2003).
9. 68 U.S. 243.
10. Peskin at 168.
11. See id. at 168-69.
12. Id. at 169.
13. 71 U.S. 2.
14. Joslyn Pine, Presidential Wit & Wisdom 133 (2009).
15. Id. at 141.
16. Mary Ann Harrell, Equal Justice Under Law 52 (1975).
17. Peskin at 170.
18. Margaret Leech and Harry Brown, The Garfield Orbit 185 (1978).
19. See Peskin at 173.
20. Cornel Adam Lengyel, Presidents of the United States 64 (1971).
21. See Hamilton at 179.
22. Pine at 140.
23. Stefan Lorant, The Glorious Burden 363 (1976).
24. The American Heritage Pictorial History of the Presidents of the United States 522 (1968).
25. Philip B. Kunhardt Jr., et al., The American President 61 (1999).
26. See Kenneth D. Ackerman, Dark Horse 377 (2003).
27. See id. at 424-25.
28. See id. at 425-27.
29. Id. at 427.
30. Michigan School Moderator Vol. XX, No. 1 (Lansing, Mich.) Sept. 7, 1899 at 493.
     

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RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including many in this Journal.