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Tenure-of-Office Act, and asserts the President's innocence in every view of it, no matter whether the case of Stanton fell within or without the act.
In answer to the charge that he had abused and vilified Congress in his public speeches, and had asserted that they were “a Congress of only a part of the States,” the explanation is clearly worse than the offense, and this part of the answer was calculated to incense the Senate to the verge of madness. It came near defeating the case, but it is the most admirable part of the defense. It admitted the allegation that the Congress was only of part of the States, but insisted that he had said this repeatedly in his several messages, and he again, as he had always done, "protested against the unauthorized exclusion therefrom of the eleven States of the South." And in forcible style, the answer declares not only his constitutional right as President of the United States to communicate his views and opinions in regard to the legislation of Congress, as he had frequently done, but he refused to waive or disparage his right to the exercise of that freedom of speech which belonged to him as a citizen of the United States.
The Managers filed their replication on the next day, and, notwithstanding the motion of the President's counsel for thirty days to prepare their defense, the Senate denied the motion and ruled them into trial on the 30th of March.
An important preliminary question arose while the Senate was being organized as a court to try the impeachment. When the name of Senator Wade was reached on the call of the Senate to take the oath, it was objected by Senator Hendricks that Mr. Wade should not be allowed to sit on the trial, for the reason that he would thus be made a judge in his own case, the succession to the Presidency being in him, and his single vote, if cast for himself, might make him President of the United States. It was ably debated, but the motion was withdrawn by Senator Hendricks and no vote was taken thereon, and notwithstanding the evident impropriety, Senator Wade insisted on being sworn to try a case the result of which would be to place him in the President's seat. The thickness of his skin was only equalled by the obliquity of his conscience, neither of which could be penetrated by the ringing rebuke of Senator Bayard, who concluded his argument against him thus :
"He must, of course, decide that question for himself in the first instance; but for my own part, I can only say that if I stood in the same position the wealth of worlds could not tempt me for an instant to think of sitting as a judge in a case where my interest were so directly personally involved.”
With the court thus organized for conviction, the result did not appear in doubt, and the opening speech for the Managers was made by Benjamin F. Butler with an easy confidence. It has been aptly characterized by a Northern critic as “a fierce, not to say brutal, attack of Mr. Butler on the President;" to which we may add that it was in keeping with the personal peculiarities which had gained for him kinship with the beasts that perish.
It is difficult to imagine that doughty warrior as ever having experienced the feeling of modest diffidence, but he confesses to nothing short of stage-fright as he opened the case. In that gossip's manual called "Butler's Book,” he says:
“When I entered the Senate chamber from the Vice-President's room, the scene was almost appalling to one who had to address such an audience. The floor of the Senate chamber was filled, because the House attended in Committee of the Whole; the galleries were also crowded with those interested in the case, and the ladies' gallery shone resplendently with bright, beautiful women in the most gorgeous apparel."
And he adds:
“I came as near running away then as I ever did on any occasion of my life.”
(He forgot for the moment his experiences at Drewry's Bluff, Deep Bottom and City Point.)
He soon recovered his composure, and then he says he handed to one of his colleagues a written paper, asking him to offer it in evidence, but observing that he was trembling violently, he came to his relief, and adds: “I determined to try this case as I would a horse case, and I knew I could do that.” “And thus,” says General Butler, “I became the leading figure of the impeachment, for better or for worse.'
Then followed the testimony of more than forty witnesses, with vast volumes of documentary evidence, making up a record, with the argument of counsel, in size and extent equivalent to five full volumes of Virginia Reports. The trial consumed eighty-two days, and the statement of Mr. Blaine, first above quoted, "that it may be recalled with pride by every American citizen," is best answered by that statesman's own comment. "No impartial reader," he says, “can examine the record of the pleadings and argument of the managers who appeared on behalf of the House without feeling that the President was impeached for one series of misdemeanors and tried for another series."
After the testimony was all in, and the argument of counsel on either side had fairly commenced, it was soon perceived that the managers were forced to rely for conviction on the single charge that the President had violated the Tenure-of-Office Act, passed March 2, 1867, the first section whereof reads as follows:
“Be it enacted, &c., 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
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. "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 consent of the Senate.”
The charge was that the President had violated this act by the removal of the Secretary of War on the 21st of February, 1868, after the refusal of the Senate to concur in his previous suspension. Congress declared further that this removal was not within the power of the Executive.
Upon this crucial question arose the grave differences of opinion, not only between the great lawyers on both sides of the case, but also among the very able Senators who sat in judgment upon it. Mr. Fessenden, who has been styled “the very ablest lawyer sitting in the Senate since Mr. Webster," believed and declared "upon his oath and his honor-an oath that was sacred and an honor that was stainless—that the President had a lawful and constitutional right to remove Mr. Stanton at the time and in the manner he did.” With this judgment Senators Grimes and Trumbull fully concurred. And the reasons upon which they based it were either that the prohibition of the Tenure-of-Office Act did not apply to Mr. Stanton's case, or that the act itself was clearly unconstitutional.
But to proceed with the trial, and especially with our inquiry: Did Andrew Johnson have a fair trial ? Bear in mind that it was a purely political trial, and the Senate was composed of eight Democrats to forty-six Republicans.
Judge Curtis, who opened the case for the President, in a masterly defense, maintained that the accused was entitled to a judicial interpretation of the Tenure-of-Office Act, and the following offer was made in that behalf:
“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 Act 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 he returned to Congress with his objections, and that the duty of preparing the message setting forth the objections to the constitutionality of the bill was devolved upon Mr. Seward and Mr. Stanton."
The managers objected to the admission of this evidence, and upon full argument the Chief Justice decided : “That the testimony is admissible for the purpose of showing the intent with which the President has acted in this transaction.” But upon the call for a yea and nay vote, “the decision of the Chief Justice was overruled, 29 to 20, and the testimony excluded."
Again the President's counsel offered to prove:
“That at the meeting of the Cabinet at which Mr. Stanton was present, held while the Tenure-of-Office Act 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 restrictions 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 the testimony is proper, but upon a yea and nay vote, 26 to 22, the Chief Justice was again
a overruled and the testimony rejected.
And again it was "offered to prove that the President and Cabinet had deemed it advisable that upon some proper case a judicial determination of the constitutionality of the act should be obtained.” The Chief Justice, apparently tired of his decisions being overruled, submitted the question at once to the Senate. By a vote of 30 to 19 the testimony was declared to be inadmissible.
Could any further proof be needed that the majority of the "high court of impeachment” had determined to deny justice, ignore authority and despise law ?
Stanton had approved the veto message declaring the Tenureof-Office Act unconstitutional. He had advised the President that it did not prevent his own removal, and finally he had assented to the wish of the President and other Secretaries to have a judicial interpretation of the act. The Chief Justice had declared proof of the facts to be material and relevant to the President's, case. And yet the Senate "must be presumed to