ARGUMENT IN DEFENSE OF PRESIDENT JOHNSON, IN THE UNITED STATES SENATE, SITTING AS A

COURT OF IMPEACHMENT, 1868.

STATEMENT.

The impeachment trial of President Johnson is the most memorable attempt ever made by a great nation to depose a constituted ruler in accordance with the forms of law. The imposing trial of Warren Hastings, with which the occasion is often compared, has been invested with undue significance by the eloquence of Burke; it was simply the arraignment of a subordinate official upon charges of peculation and cruelty, and bore no comparison with the momentous issues involved in the arraignment of the executive of forty millions of people. There had been five impeachment trials under the provision of the federal constitution,-Senator Blount, in 1797, Mr. Justice Chase, in 1803, and District Judges Pickering, Peck, and Humphreys, in 1803, 1830, and 1862, respectively,-in only two of which the charges were sustained.

The facts leading to strife between congress and President Johnson are part of the political history of the time, and need not be repeated here. Suffice it to say that, on February 24, 1868, by the decisive vote of one hundred and twenty-six ayes to forty-seven noes, the house of representatives passed a resolution impeaching the president. On February 29th, George S. Boutwell, chairman of the committee appointed to prepare articles of impeachment, reported the articles on which the impeachment was based. There were eleven articles. The first nine charged the president with the violation of the tenure of office act of 1867 in removing Edwin M. Stanton from the office of secretary of of war, and authorizing or appointing General Lorenzo Thomas to act as secretary of war ad interim. The fourth, fifth, sixth, and seventh articles charged him, specifically, with conspiring with Gen. Thomas to violate the act. The eighth article charged him with attempting, through Gen. Emory, in charge of the department of Washington, to issue orders without the intervention of the general of the army, so that he might violate the act. The tenth charged him with speaking of congress in a manner which tended to bring a co-ordinate branch of the government into ridicule and contempt. The eleventh article was a summary charge that he had denied the validity of the legislation of the thirtyninth congress, and had attempted and contrived to prevent the execution of certain laws.

The managers elected by the house were John A. Bingham, George S. Boutwell, James F. Wilson, Benjamin F. Butler, Thomas Williams, John A. Logan, and Thaddeus Stevens. On March 5th, the managers formally presented their charges against the president at the bar of the senate, sitting as a court of impeachment, under the presidency of the chief justice of the United States. The president was represented by Benjamin R. Curtis, William M. Evarts, Henry Stanberry, William S. Groesbeck, and T. A. R. Nelson. After the reading of the articles of impeachment, the senate adjourned until March 23d, when the answer of the president was submitted. To this the house submitted a replication; and all other preliminaries having been disposed of, on March 30th the case on behalf of the house of representatives was opened by BenVeeder II-40

jamin F. Butler. The evidence in support of the charges was then presented, and, on April 9th, Benjamin R. Curtis opened for the defense in the following argument. The evidence on both sides having been concluded, on April 22d the closing arguments were begun. The first vote was taken on the eleventh article. Thirty-five senators voted "Guilty;" seventeen, "Not Guilty." As conviction required a two-thirds vote, the impeachment on the eleventh article failed; but the change of a single vote from the minority to the majority would have been fatal to the president. After this vote, the senate adjourned until May 26th, when a vote was taken on the second and third articles, with the same result as on the eleventh. The remaining articles were thereupon abandoned, and the senate, as a court of impeachment, adjourned sine die.

The real controversy turned upon the alleged violation of the tenure of office act. The other charges were, for the most part, trivial and unimportant. The examination of the tenure of office act, its alleged violation, and its constitutionality involved an inquiry into the nature of impeachable offenses, and the character of the tribunal provided by the constitution for their adjudication.

The argument of Judge Curtis was without doubt the ablest forensic effort of his career, and contributed largely to the result. As Benjamin F. Butler afterwards said: "After Judge Curtis had presented the case of his client, nothing more was added in his behalf, although in the five or six closing speeches of his other counsel much else was said.” In describing the occasion, a correspondent of one of the metropolitan journals said: "It became evident to those who were not already familiar with his style of oratory that Mr. Curtis was not, in the highest sense, an orator. He spoke from voluminous notes, and frequently consulted and read from the books of reference beside him. The clearness of his statements, the accuracy of his logic, and the precision and steadiness with which he advanced from every premise he established to conclusions, needed, in fact, no fiery oratory to enhance the effect. If his tones did not often thrill the heart, they reached the brain. They were earnest, if not eloquent, and there was a certain fascination in their monotony. They bore a heavier burden of matter than the chaff blown from the lips of many windy elocutionists, and that is one reason why their equable, repressed accents were tolerable. Two or three times Mr. Curtis indulged a fervor which gave to his aspect an inspiring majesty and glow. Then his voice had the tremor of a waterfall. Then his form shook like a pine; but as a pine recovers itself after a gust, and stands erect and stately as before, so, in an instant after these noble outbursts, the speaker of to-day was seen composed and motionless, as if every hot impulse of his nature had been thrust back,-beaten into its lair. It is generally regarded that the speech is an original and invincible effort."

ARGUMENT.

Mr. Chief Justice, I am here to speak to the senate of the United States sitting in its judicial capacity as a court of impeachment, presided over by the chief justice of the United States, for the trial of the president of the United States. This statement sufficiently characterizes what I have to say. Here party spirit, political schemes, foregone conclusions, outrageous biases can have no fit operation. The constitution requires that here should

be a "trial," and as in that trial the oath which each one of you has taken is to administer "impartial justice according to the constitution and the laws," the only appeal which I can make in behalf of the president is an appeal to the conscience and the reason of each judge who sits before me. Upon the law and the facts, upon the judicial merits of the case, upon the duties incumbent on that high officer by virtue of his office, and his honest endeavor to discharge those duties, the president rests his defense. And I pray each one of you to listen to me with that patience which belongs to a judge for his own sake, which I cannot expect to command by any efforts of mine, while I open to you what that defense is.

The honorable managers, through their associate who has addressed you [Mr. Butler], has informed you that this is not a court, and that, whatever may be the character of this body, it is bound by no law. Upon those subjects I shall have something hereafter to say. The honorable manager did not tell you, in terms at least, that here are no articles before you, because a statement of that fact would be in substance to say that here are no honorable managers before you; inasmuch as the only authority with which the honorable managers are clothed by the house of representatives is an authority to present here at your bar certain articles, and, within their limits, conduct this prosecution; and therefore I shall make no apology, senators, for asking your close attention to these articles, one after the other, in manner and form as they are here presented, to ascertain, in the first place, what are the substantial allegations in each of them, what is the legal operation and effect of those allegations, and what proof is necessary to be adduced in order to sustain them. And I shall begin with the first, not merely because the house of representatives, in arranging these articles, have placed that first in order, but because the subject-matter of that article is of such a character that it forms the foundation of the first eight articles in the series, and enters materially into two of the remaining three.

What, then, is the substance of this first article? What, as the lawyers say, are the gravamina contained in it? There is a great deal of verbiage-I do not mean by that, unnecessary verbiage-in the description of the substantive matters set down in this article. Stripped of that verbiage, it amounts exactly to these. things: First, that the order set out in the article for the removal of Mr. Stanton, if executed, would be a violation of the tenure-ofoffice act; second, that it was a violation of the tenure-of-office act; third, that it was an intentional violation of the tenure-of-office

act; fourth, that it was a violation of the constitution of the United States; and, fifth, was by the president intended to be so. Or, to draw all this into one sentence which yet may be intelligible and clear enough, I suppose the substance of this first article is that the order for the removal of Mr. Stanton was, and was intended to be, a violation of the tenure-of-office act, and was intended to be a violation of the constitution of the United States. These are the allegations which it is necessary for the honorable managers to make out in proof to support that article. Now, there is a question involved here which enters deeply, as I have already intimated, into the first eight articles in this series, and materially touches two of the others; and to that question I desire in the first place to invite the attention of the court. That question is whether Mr. Stanton's case comes under the tenure-of-office act. If it does not,-if the true construction and effect of the tenure-of-office act, when applied to the facts of his case, exclude it, then it will be found by honorable senators, when they come to examine this and the other articles, that a mortal wound has been inflicted upon them by that decision. I must therefore ask your attention to the construction and application of the first section of the tenureof-office act. It is, as senators know, but dry work. It requires close, careful attention and reflection; no doubt it will receive. them. Allow me, in the first place, to read that section:

"That every person holding any civil office 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 a like manner appointed and duly qualified, except as herein otherwise provided."

Then comes what is "otherwise provided":

"Provided, that the secretaries of state, of the treasury, of war, of the navy, and of the interior, the postmaster general, and the 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."

Here is a section, then, the body of which applies to all civil officers, as well to those then in office as to those who should thereafter be appointed. The body of that section contains a declaration that every such officer "is"—that is, if he is now in office "and shall be"-that is, if he shall hereafter be appointed to office-entitled to hold until a successor is appointed and qualified in his place. That is the body of the section. But out of this body of the section it is explicitly declared that there is to be ex

cepted a particular class of officers,-"except as herein otherwise provided." There is to be excepted out of this general description of all civil officers a particular class of officers as to whom something is "otherwise provided,”—that is, a different rule is to be announced for them. The senate will perceive that, in the body of the section, all officers, as well those then holding office as those thereafter to be appointed, are included. The language is:

“Every person holding any civil office to which he has been appointed, and every person who shall hereafter be appointed,

is and shall be entitled," etc.

It affects the present; it sweeps over all who are in office, and come within the body of the section; it includes by its terms as well all those now in office as those who may be hereafter appointed. But when you come to the proviso, the first noticeable thing is that this language is changed. It is not that "every secretary who now is, and hereafter may be, in office shall be entitled to hold that office" by a certain rule which is here prescribed; but the proviso, while it fixes a rule for the future only, makes no declaration of the present right of one of this class of officers, and the question whether any particular secretary comes within that rule depends on another question,-whether his case comes within the description contained in the proviso. There is no language which expressly brings him within the proviso; there is no express declaration, as in the body of the section, that "he is, and hereafter shall be, entitled" merely because he holds the office of secretary at the time of the passage of the law. There is nothing to bring him within the proviso, I repeat, unless the description which the proviso contains applies to and includes his case. Now, let us see if it does:

"That the secretaries of state, etc., shall hold their offices respectively for and during the term of the president by whom they may have been appointed."

The first inquiry which arises on this language is as 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 any other term for which he may afterwards be elected." By what authority short of legislative power can those words be put