The Impeachment of Andrew Johnson
»Impeachment, Trial, and Acquittal

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Harper's Weekly,
March 21, 1868 page 179

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The conduct of the Chief Justice of the United States in regard to the proceedings for impeachment has exited a great deal of comment upon the part of his friends, and it has been generally unfavorable to him. This was the natural consequence of the delay, and difference with the Senate, which the letter of the Chief Justice seemed to suggest. But it was surely not extraordinary that so dignified an officer, made by the Constitution the president of the Senate when acting as a Court of Impeachment, should be unwilling to be set aside as a mere decorative cipher, not to be consulted or considered in the organization of the Court, and to have no voice in its judgment. The case is unprecedented. There is no letter to guide to a conclusion. The presumption is, at least, not intolerable that the Senate can not organize as a court until it is a court, and that it is not a court until, according to the Constitution, the Chief Justice is seated as its presiding officer. The precedent is now making, and the Chief Justice properly desires that it shall be carefully and firmly made, and he therefore interposes a suggestion, but in the most respectful manner. "I am informed, "he says, "that the Senate has proceeded upon other views, and it is not my purpose to contest what its superior wisdom may have directed." But as the Chief Justice is made an important part of the Court of Impeachment, it seemed to him "fitting and obligatory, when he is unable to concur in the views of the Senate concerning matters essential to the trial, that his respectful dissent should appear."

There is certainly nothing unreasonable in this. For why is the Chief Justice made the President of the Court? Doubtless for two reasons: first, that the Vice-President, who is to be promoted by the removal should the trial end in conviction, should not preside over the trial; and secondly, that in so grave a matter as the summary change of the Chief Executive without a vote of the people, the two other branches of the Government should unite, the Judiciary Department being present in the person of its chief. Is he, then, to be a merely ceremonial or substantive part of the Court? Judge Chase evidently thinks that he is not wholly a ceremony; but Senator Conkling quoted various English authorities which he though proved the immemorial understanding to be that the President of such a Court has no vote or decision; he is only to keep order and dispatch business. If that be so, there would seem to be no reason for uniting the Supreme Court with the Senate in the manner indicated, and with the view which is plainly expressed by Madison in the Number of the Federalist from which the Chief Justice quotes. The Constitution could have empowered the Senate to elect a President from their own number. It can hardly be supposed that it would have taken the Chief Justice of the United States to make him a dummy in the highest tribunal for a specific purpose known to the law.

But whatever the correct view, the motives of Judge Chase, it seems to us, should be quite above harsh suspicion. We certainly do not see the force of the Chief Justice’s opinion that the Senate should be organized as a Court of Impeachment before the announcement of impeachment is made from the House. For until the impeachment is announced how can the Senate be formally notified? But that when the Senate proceeds to organize as a court it should adopt its rules under the presidency of its constitutional chief does not seem a very rash or disorganizing proposition.

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