Twenty Years of Congress, Volume 2 (of 2)

J >> James Gillespie Blaine >> Twenty Years of Congress, Volume 2 (of 2)

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It was expected that Judge Jeremiah S. Black would add his learning and
ability to the President's counsel, but at the last moment before the
trial began he withdrew, and his place was filled by William S.
Groesbeck of Cincinnati. Mr. Groesbeck was favorably known to the
country by his service as a Democratic representative in the
Thirty-sixth Congress, but little had been heard of his legal learning
outside of Ohio. He took no part in the conduct of the Impeachment
case, but his final argument was a surprise to the Senate and to his
professional brethren, and did much to give him a high reputation as a
lawyer.--The counsel for the President was completed by the addition of
a confidential friend from his own State, Hon. T. A. R. Nelson. Mr.
Nelson had been closely associated with Mr. Johnson in the Tennessee
struggles for the Union, had gained reputation as a representative in
the Thirty-sixth Congress, and had acquired a good standing at the bar
of his State.

The answer of the President to the Articles of Impeachment having been
presented on the 23d, the replication of the House duly made, and all
other preliminary and introductory steps completed, the actual trial
began on Monday, the thirtieth day of March (1868), when General
Butler, one of the Managers on behalf of the House of Representatives,
made the opening argument. It was very voluminous, prepared with great
care in writing, and read to the Senate from printed slips. It was
accompanied by a brief of authorities upon the law of impeachable
crimes and misdemeanors, prepared by Hon. William Lawrence of Ohio
with characteristic industry and learning. While every point in the
charges preferred by the House was presented by General Butler with
elaboration, the weight of his argument against the President lay
in the fact that the removal of Mr. Stanton from the office of
Secretary of War was, as he averred, an intentional violation of the
Tenure-of-office Act, an intentional violation of the Constitution of
the United States. This was set forth in every possible form, and
argued in every possible phase, with the well-known ability of General
Butler; and though other charges were presented against the President,
the House of Representatives relied mainly upon this alleged offense
for his conviction.

General Butler in his argument was evidently troubled by the proviso
in the Tenure-of-office Act, that members of the Cabinet should hold
their offices "during the term of the President by whom they were
appointed, and for one month longer." He sought to anticipate his
opponents' argument on this point. "By whom was Mr. Stanton
appointed?" asked General Butler. "By Mr. Lincoln. Whose Presidential
term was he holding under when the bullet of Booth became the proximate
cause of this trial? Was not his appointment in full force at that
hour? Had any act of President Johnson up to the twelfth day of August
last vitiated or interfered with that appointment? Whose Presidential
term is Mr. Johnson now serving out? His own or Mr. Lincoln's? If
his own, he is entitled to four years up to the anniversary of the
murder, because each Presidential term is four years by the
Constitution, and the regular recurrence of those terms is fixed by the
Act of May 8, 1792. If he is serving out the remainder of Mr.
Lincoln's term, then his term of office expires on the 4th of March,
1868, if it does not before."

At the conclusion of General Butler's argument, the Managers submitted
their testimony in support of the charges brought by the House. Some
twenty-five witnesses in all were introduced by the prosecution. Many
of them were merely for the verification of official papers which were
submitted in evidence. The President's speeches defaming Congress were
produced and sworn to by the reporters who took the notes when the
President delivered them. The Managers concluded their testimony on
the fourth day of April and the Senate took a recess for five days.

On the 9th of April Judge Curtis of the President's counsel opened for
the defense. He had no labored introduction, but went directly to his
argument. He struck his first blow at the weak point in General
Butler's strong speech. Judge Curtis said: "There is a question
involved which enters deeply into the first eight Articles of
Impeachment and materially touches two of the others; and to that
question I desire in the first place to invite the attention of the
court, namely, _whether Mr. Stanton's case comes under the
Tenure-of-office Act?_ . . . I must ask your attention therefore to
the construction and application of the first section of that Act, as
follows: 'that every person holding an official position to which he
has been appointed by and with the advice and consent of the Senate,
and every person who shall hereafter be appointed to any such office
and shall become duly qualified to act therein, is and shall be
entitled to hold such office until a successor shall have been in
like manner appointed and duly qualified, except as herein _otherwise
provided_.' Then comes what is 'otherwise provided.' '_Provided_
however that the Secretaries of the State, Treasury, War, Navy, and
Interior Departments, the Postmaster-General and Attorney-General,
shall hold their offices respectively _for and during the term of the
President by whom they may have been appointed and for one month
thereafter, subject to removal by and with the advice and consent of
the Senate_.'

"The first inquiry which arises on this language," said Judge Curtis,
"is to the meaning of the words 'for and during the term of the
President.' Mr. Stanton, as appears by the commission which has been
put into the case by the honorable Managers, was appointed in January,
1862, during the first term of President Lincoln. Are these words,
'during the term of the President,' applicable to Mr. Stanton's case?
That depends upon whether an expounder of this law judicially, who
finds set down in it as a part of the descriptive words, '_during the
term of the President_,' has any right to add '_and during any other
term for which he may be afterwards elected_.' I respectfully submit
no such judicial interpretation can be put on the words. Then if you
please, take the next step. 'During the term of the President by whom
he was appointed.' At the time when this order was issued for the
removal of Mr. Stanton, was he holding during the term of the President
by whom he was appointed? The honorable Managers say, Yes; because,
as they say, Mr. Johnson is merely serving out the residue of Mr.
Lincoln's term. But is that so under the provisions of the
Constitution of the United States? . . . Although the President, like
the Vice-President, is elected for a term of four years, and each is
elected for the same term, the President is not to hold his office
absolutely during four years. The limit of four years is not an
absolute limit. Death is a limit. A 'conditional limitation,' as the
lawyers call it, is imposed on his tenure of office. And when the
President dies his term of four years, for which he was elected and
during which he was to hold provided he should so long live, terminates
and the office devolves upon the Vice-President. For what period of
time? _For the remainder of the term for which the Vice-President was
elected_. And there is no more propriety, under those provisions of
the Constitution of the United States, in calling the time during which
Mr. Johnson holds the office of President, after it was devolved upon
him, a part of Mr. Lincoln's term than there would be propriety in
saying that one sovereign who succeeded another sovereign by death
holds part of his predecessor's term."

Judge Curtis consumed two days in the delivery of his argument. He
made a deep impression, not only on the members of the Senate but on
all who had the privilege of listening to him. His manner was quiet
and undemonstrative, with no gestures, and with no attempt at loud
talk. His language expressed his meaning with precision. There was
no deficiency and no redundancy. He seldom used a word more or a word
less than was needed to give elegance to his diction, explicitness to
his meaning, completeness to his logic. He analyzed every argument
of the Impeachment with consummate skill. Those who dissented from
his conclusions united with those who assented to them in praise of
his masterly presentment of the President's defense.

After Judge Curtis had concluded, witnesses were called on behalf of
the President. The struggle that followed for the admission or
exclusion of testimony obviously strengthened the President's case in
popular opinion, which is always influenced by considerations of what
is deemed fair play. Exclusion of testimony by an arbitrary vote on
mere technical objections, especially where men equally learned in the
law differ as to its competency and relevancy, is not wise in a
political case that depends for its ultimate judgment upon the sober
thought of the people. Judge Curtis had maintained with cogent
argument that the President was entitled to a judicial interpretation
of the Tenure-of-office Law, and his associate counsel, Mr. Evarts, in
the progress of the case made this proposition:--

"We offer to prove that the President at a meeting of the Cabinet while
the bill was before him for his approval, laid the Tenure-of-office
Bill before the Cabinet for their consideration and advice respecting
his approval of the bill, and thereupon the members of the Cabinet
then present gave their advice to the President that the bill was
unconstitutional and should be returned to Congress with his
objections, _and that the duty or preparing the message setting forth
the objections to the constitutionality of the bill was devolved upon
Mr. Seward and Mr. Stanton_." The Managers of the House objected to
the admission of the testimony and the question of its admissibility
was argued at length by General Butler, by Judge Curtis, and by Mr.
Evarts. Chief Justice Chase decided "that the testimony is admissible
for the purpose of showing the intent with which the President has
acted in this transaction." Mr. Howard of Michigan thereupon demanded
that the question be submitted to the Senate, and by a vote of 29 to
20 the decision of the Chief Justice was overruled and the testimony
excluded. This exclusion impressed the public most unfavorably.

Mr. Evarts offered further on behalf of the President, "to prove that
at the meeting of the Cabinet, at which Mr. Stanton was present, held
while the Tenure-of-office Bill was before the President for his
approval, the advice of the Cabinet in regard to the same was asked
by the President and given by the Cabinet, and thereupon the question
whether Mr. Stanton and the other Secretaries who had received their
appointment from Mr. Lincoln were within the restriction upon the
President's power of removal from office created by said Act, was
considered, and the opinion was expressed that the Secretaries
appointed by Mr. Lincoln were not within such restrictions." The Chief
Justice decided "that this testimony is proper to be taken into
consideration by the Senate sitting as a Court of Impeachment,"
whereupon Senator Drake of Missouri demanded that the question be
submitted to the Senate, and by a vote of 26 to 22 the Chief Justice
was again overruled and the testimony declared to be inadmissible.

On behalf of the President, Mr. Evarts then offered "to prove that at
the Cabinet meetings between the passage of the Tenure-of-office Act
and the order of the 21st of February, 1868, for the removal of Mr.
Stanton, upon occasions when the condition of the public service was
affected by the operation of that bill and it came up for consideration
and advice by the Cabinet, it was considered by the President and
the Cabinet that a proper regard for the public service made it desirable
that upon some proper case a judicial determination of the
constitutionality of the law should be obtained." The Managers
objected to the admission of the testimony, and the Chief Justice,
apparently tired of having his decisions overruled, submitted the
question at once to the Senate. By a vote of 30 to 19 the testimony
was declared to be inadmissible. All the proffered testimony on
these several points was excluded while the Hon. Gideon Welles,
Secretary of the Navy, was on the stand. He was to be the first
witness to substantiate the offer of proof which the President's
counsel had made; to be corroborated, if need by, by other members
of the Cabinet--possibly by Mr. Stanton himself.

The testimony on both sides having been concluded, on the 22d of April
General John A. Logan, one of the Managers on the part of the House
of Representatives, filed his argument in the case. It was carefully
prepared, well written, and throughout logical in its analysis. It
was uncompromisingly pungent in tone and severe in its method of
dealing with President Johnson. "The world," said General Logan, "in
after times will read the history of the depth to which political and
official perfidy can descend. His great aim and purpose has been to
subvert law, usurp authority, insult and outrage Congress, reconstruct
the rebel States in the interest of treason, and insult the memories
and resting-places of our heroic dead."

Mr. Boutwell on the two succeeding days made a strong arraignment of
the President. Indeed he made all that well could be made out of
the charges preferred by the House. He exhibited throughout his
address the earnestness and the eloquence which come from intense
conviction. He believed that the President had committed high crimes
and misdemeanors, and he believed that the safety of the Republic
required his removal from office. With this belief his argument was
of course impressive. "The House of Representatives," said he in
closing, "have presented this criminal at your bar with equal
confidence in his guilt and in your disposition to administer exact
justice between him and the people of the United States. I do not
contemplate his acquittal: it is impossible. Therefore I do not
look beyond; but, senators, the people of the United States of America
will never permit an usurping Executive to break down the securities
for liberty provided in the Constitution. The cause of the Republic
is in your hands. Your verdict of _Guilty_ is PEACE to our beloved
country." Mr. Nelson of Tennessee followed Mr. Boutwell with a long
and earnest plea in behalf of the President, somewhat effusive in its
character but distinguished for the enthusiasm with which he defended
his personal friend.

Mr. Groesbeck next addressed the Senate on behalf of the President. He
made a clear, forcible presentation of the grounds of defense. Mr.
Boutwell had asserted "that the President cannot prove or plead the
motive by which he professes to have been governed in his violation of
the laws of the country. . . . The necessary, the inevitable
presumption in law is that he acted under the influence of bad motives
in so doing, and no evidence can be introduced controlling or coloring
in any degree this necessary presumption of the law." In reviewing
this position, Mr. Groesbeck reminded the Senate that President Lincoln
had "claimed and exercised the power of organizing military commissions
under which he arrested and imprisoned citizens within the loyal
States. He had no Act of Congress warranting it, and the Supreme Court
has decided that the act was against the express provisions of the
Constitution. According to the gentleman on the other side, then, Mr.
Lincoln must be convicted. . . . The gentleman seems to acknowledge
that there must have been a motive. There can be no crime without
motive; but when the party comes forward and offers to prove his
motive, the answer is, 'You shall not prove it.' When he comes forward
and offers to prove it from his warm, living heart, the answer is, 'We
will make up your motive out of the presumptions of law and conclude
you upon that subject. We will not hear you.'"

Mr. Boutwell renewed with vigor the argument that the exception made
in the Tenure-of-office Act, in regard to members of the Cabinet, did
not give the President power to remove Mr. Stanton. "We maintain,"
said Mr. Boutwell, "that Mr. Stanton was holding the office of
Secretary of War for and in the term of President Lincoln, by whom he
had been appointed. . . . It was not a new office; it was not a new
term. Mr. Johnson succeeded to Mr. Lincoln's office and for the
remainder of Mr. Lincoln's term of office. He is serving out Mr.
Lincoln's term as President."

Mr. Groesbeck's reply on this point was effective: "The gentleman has
said this is Mr. Lincoln's term. The dead have no ownership in offices
or estate of any kind. Mr. Johnson is President of the United States
with a term, and this is his term. _But it would make no difference if
Mr. Lincoln were living to-day. If Mr. Lincoln were the President to-day
he could remove Mr. Stanton. Mr. Lincoln would not have appointed
him during this term. It was during Mr. Lincoln's first term that Mr.
Stanton received his appointment, and not this term; and an appointment
by a President during one term, by the operation of this law, will not
extend the appointee during another term because that same party may
happen to be re-elected to the Presidency. Mr. Stanton therefore
holds under his commission and not under the law_."

Mr. Thaddeus Stevens attempted to address the Senate, but found himself
too much exhausted and handed his manuscript to General Butler, who
read it to the Senate. The argument had many of the significant
features of Mr. Stevens's style, but lacked the vigor which in the day
of his strength he had always shown. He was rapidly failing in health
and was then within a few weeks of his death. Hon. Thomas Williams of
Pennsylvania followed Mr. Stevens with a written argument, rhetorically
finished and read with great emphasis. It presented in new and
attractive form the arguments already submitted, but towards the close
contained the imprudent expression that "the eyes of an expectant
people are upon the Senate."

Mr. Evarts followed with an argument of great length, reviewing every
phase and feature of the case and making a remarkably effective plea
on behalf of his eminent client. It was as strong in its logic as it
was faultless in its style. The concluding portion of the address was
especially eloquent and convincing. "We never dreamed," said he, "that
an instructed and equal people, with a government yielding so readily
to the touch of popular will, would have come to the trial of force
against it. We never thought that the remedy to get rid of a ruler
would bring assassination into our political experience. We never
thought that political differences under an elective Presidency would
bring in array the departments of the Government against one another
to anticipate by ten months the operation of the regular election. And
yet we take them all, one after another, and we take them because we
have grown to the full vigor of manhood. But we have met by the powers
of the Constitution these great dangers--prophesied when they would
arise as likely to be our doom--the distractions of civil strife, the
exhaustions of powerful war, the intervention of the regularity of
power through the violence of assassination. We could summon from the
people a million of men and inexhaustible treasure to help the
Constitution in its time of need. Can we summon now resources enough
of civil prudence and of restraint of passion to carry us through this
trial, so that whatever result may follow, in whatever form, the people
may feel that the Constitution has received no wound? To this court,
the last and best resort for its determination, it is to be left."

Mr. Stanbery, unable to deliver his well-prepared argument, employed
one of the officers of the Attorney-General's department to read the
greater part of it. During his service as Attorney-General he had
become personally and deeply attached to the President, and now made
an earnest plea in his behalf. "During the eighty years of our
political existence," said Mr. Stanbery, "we have witnessed the
fiercest contests of party. . . . A favorite legislative policy has
more than once been defeated by the obstinate and determined resistance
of the President, upon some of the gravest and most important questions
we have ever had or are ever likely to have. The Presidential policy
and the legislative policy have stood in direct antagonism. During
all that time this fearful power of Impeachment was in the hands of
the legislative department, and more than once a resort to it has been
advised by extreme party men, as a sure remedy for party purposes; but
happily that evil hitherto has not come upon us."

Hon. John A. Bingham summed up the case on behalf of the House and
reviewed all the charges against the President, answering point by
point the argument of his counsel. "I ask you, senators," said Mr.
Bingham, "how long men would deliberate upon the question of whether
a private citizen, arraigned at the bar of one of your tribunals of
justice for criminal violation of law, should be permitted to interpose
a plea in justification of his criminal act that his only purpose was
to interpret the Constitution and laws for himself, that he violated
the law in the exercise of his prerogative to test its validity
hereafter, at such day as might suit his own convenience, in the courts
of justice. Surely, senators, it is as competent for the private
citizen to interpose such justification in answer to crime as it is
for the President of the United States to interpose it, and for the
simple reason that the Constitution is no respecter of persons, and
vests neither in the President nor in the private citizen judicial
power. . . . For the Senate to sustain any such plea would in my
judgment be a gross violation of the already violated Constitution and
laws of a free people."

When the counsel on both sides had finished, a certain period was
allowed for senators to prepare and file their opinions on the case.
This was done by twenty-nine senators(4) and the question was thus
re-argued with consummate ability, for the Senate contained a number
of lawyers of high rank and long experience at the bar. On the 11th of
May the Senate was ready to vote, and the interest in the result was
intense. There had been much speculation as to the position of certain
senators, but as all the members of the body had maintained discreet
silence during the trial, it was impossible to forecast the result
with any degree of certainty. The only judgment that had the least
significance was founded on the votes given to admit or to reject
certain testimony proposed by the President's counsel. This of course
gave no certain indication of the vote of senators; though the general
belief was that the Impeachment would fail. The transfer of the
entire House to the floor of the Senate, the galleries crowded with
citizens from all parts of the Republic, the presence of all the
foreign ministers in the Diplomatic Gallery eagerly watching the
possible and peaceful deposition of a sovereign ruler, the large
attendance of the representatives of the press,--all attested the
profound impression which the trial had made and the intense anxiety
with which its conclusion was awaited.

By an order of the Senate the first vote was taken on the last Article,
which was a summary of many of the charges set forth at greater length
in some of the preceding Articles of Impeachment. Upon the call of his
name each senator was required to rise and answer "Guilty" or "Not
guilty." The roll was called in breathless silence, with hundreds of
tally-papers in the hands of eager observers on the floor and in the
gallery, carefully noting each response as given. The result,
announced at once by the Chief Justice, showed that _thirty-five_
senators had declared the President "_guilty_" and _nineteen_ had
declared him "_not guilty_."(5) As conviction required two-thirds the
Impeachment on the Eleventh Article had failed. A debate then arose
on a proposition to rescind the resolution in regard to the order in
which the vote should be taken upon the other Articles of Impeachment,
but without reaching a conclusion, the Senate as a Court of Impeachment
adjourned, on motion of Mr. Cameron of Pennsylvania, until Tuesday
the 26th day of May.

During the intervening period of fifteen days the air was filled with
rumors that the result would be different when the Senate should come
to vote on the remaining Articles. A single senator changing against
the President would give _thirty-six_ for conviction, and leave only
_eighteen_ for acquittal. This would be fatal to the President, as it
would give the two-thirds necessary for conviction. But it was not so
ordained. When the Senate re-assembled on the 26th, the vote was
taken on the Second Article, and then upon the Third, with precisely
the same results as was previously reached on the Eleventh Article.
When Mr. Ross of Kansas answered "_Not guilty_," there was an audible
sensation of relief on the part of some, and of surprise on the part
of others, showing quite plainly that rumor had been busy with his
name as that of the senator who was expected to change his position.
Satisfied that further voting was useless, the Senate abandoned the
remaining Articles, and as a Court of Impeachment adjourned _sine die_.