Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

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.