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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 have granted the accused a fair trial,” though it deliberately refused to hear the evidence which established a complete defense.
The case was argued thus: Mr. Butler for the managers, Mr. Curtis for the President, then Manager Logan, Manager Boutwell, Mr. Nelson for the President, Mr. Groesbeck for the President, Manager Stevens, Manager Williams, Mr. Evarts for the President, Mr. Stanbery for the President, Manager Bingham. Twenty-nine Senators filed written opinions.
On the part of the managers, every species of invective was used and every conceivable appeal to the passions of angry judges was made, with threats of vengeance against any l'ecreant Republican who should dare to vote for acquittal. The President's counsel had all they could do to avoid a general conflagration as they attempted to allay the fires of political hatred. On the whole, they kept their temper admirably, and conducted their case with calmness and wise moderation.
The President could not have been better guided in the selection of counsel, and it would be a pleasure to array against the able but intemperate speeches of the prosecution the calm and dispassionate replies for the defense. But time is wanting.
It is difficult to choose between the speeches of counsel for the President. It does not appear in all the twenty-nine opinions filed by Senators what particular matters of law were decisive, some arguing for one view and some for another; some acquitting on one or more articles and convicting on others.
Without attempting any comparison between the speeches, it is no injustice to any to say that we take especial pleasure in that delivered by Mr. Evarts. He is so well remembered by many now present and his departure so deplored that it is only a pleasant reminder to say that his forceful periods, which from their extreme length have been styled "sentences for life, make his argument worthy of notice.
The case, heavy as the record appears, was not without its humorous episodes. Manager Butler had evinced an intensity
of feeling which led him into unusual excesses of declamatory violence; in fact, he had roared so like a bull of Bashan that the very dome of the rotunda was dangerously near destruction--a style of oratory which is rapidly disappearing with the fast forming impression that courts and juries are not to be won by the exercise of the lungs alone.
Mr. Evarts, in remembrance of General Butler's powder boat at Fort Fisher, paid his respects to that gentleman's mode of warfare as follows:
“It has usually been supposed that upon actual trials involving serious consequences forensic discussion was the true method of dealing with the subject, and we lawyers appearing for the President being, as Manager Boutwell has been polite enough to say, 'attorneys whose practice of the law has sharpened, but not enlarged, their intellects,' have confined ourselves to that method of forensic discussion.
“But we have learned here that there is another method of forensic controversy, which may be called the method of 'concussion.' I understand the method of 'concussion' to be to make a violent, noisy and explosive demonstration in the vicinity of the object of attack, whereas the method of discussion is to penetrate the position and, if successful, to capture it.
"The Chinese method of warfare is the method of 'concussion, and consists of a great braying of trumpets, sounding of gongs, shouts and shrieks in the neighborhood of the opposing
rce, which rolled away, and the air clear and calm again, the effect is to be watched for. But it has been reserved for us in our modern warfare, as illustrated during the rebellion, to present a more singular and notable instance of the method of warfare by 'concussion' than has ever been known before. A fort impregnable by the method of discussion—that is, penetrating and capturing it—has been on the largest scale attempted by the method of 'concussion, and some two hundred and fifty tons of gunpowder in a hulk moored near the stone walls of the fort has been made the means and occasion of this vast experiment. Unsatisfied with that trial and its results,
the honorable manager who opened this case (Mr. Butler) seems to have repeated the experiment in the vicinity of the Senate. (Laughter.)
“The air was filled with epithets, the dome shook with invective. Wretchedness and misery and suffering and blood, not included within the record, were made the means of this explosive mixture. And here we are surviving the 'concussion,' and after all reduced to the humble and homely method of discussion which belongs to 'attorneys whose intellects have been sharpened, but not enlarged, by the practice of the law.? (Laughter.)
Mr. Boutwell, in his argument, attempting to describe the punishment which he thought most appropriate for the President, had drawn the following vivid picture:
"Travellers and astronomers inform us that in the Southern heavens, near the Southern Cross, there is a vast space, which the uneducated call the hole in the sky, where the eye of man, with the aid of the powers of the telescope, has been unable to discover nebulæ, or asteroid, or comet, or planet, or star, or
In that dreary, cold, dark region of space, which is only known to be less than infinite by the evidences of creation elsewhere, the Great Author of celestial mechanism has left the chaos which was in the beginning. If this earth were capable of the sentiments and emotions of justice and virtue, which in human mortal beings are the evidences and the pledge of our divine origin and immortal destiny, it would heave and throe, with the energy of the elemental forces of nature, and project this enemy of two races of men into that vast region, there forever to exist in a solitude eternal as life, or as the absence of life, emblematical of, if not really, that fouter darkness' of which the Saviour of man spoke in warning to those who are the enemies of themselves, of their race and of their God.”
To which Mr. Evarts made the following reply:
"I may as conveniently at this point of the argument as at any other pay some attention to the astronomical punishment which the learned and honorable manager (Mr. Boutwell) thinks should be applied to this novel case of impeachment of the President. Cicero, I think it is, who says that a lawyer should know everything, for sooner or later there is no fact in