The Impeachment of Andrew Johnson
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Harper's Weekly, April 18, 1868, page 242

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The proceedings in the Senate sitting as a Court of Impeachment are of such a character as to inspire the greatest confidence in the final judgment. The opening speech for the Managers by General Butler was a very able presentation of the case, and his conduct as Manager has shown all the skill, fertility, and equipoise for which he has always been noted in the courts. It is observable that partisan action seems to be thus far confined to the Democratic Senators. They usually vote through thick and thin against any proposition which is favored by the Managers, and opposed by the President’s counsel. The Republican Senators evidently regard reason and argument as well as party feeling. We have no doubt that the same disposition will continue to the end, and the result will be a universal conviction that the trial has been in every respect patient and fair.

The action of the Chief Justice raised a question which we think was wisely determined by the Senate. As President of the Court of Impeachment Judge Chase made a ruling which was questioned by Senator Drake, of Missouri, upon the ground that as President he had no right to decide any but ceremonial questions, and that every thing affecting the trial must be referred to the decision of the Senate. The Chief Justice was sustained, and when the question was again raised by Senator Sumner it was again settled in the same manner. The conclusion was that the Chief Justice may decide any preliminary point subject, of course, to revision by the Senate upon the appeal of any Senator.

The case against the position of the Chief Justice was stated very forcibly by Mr. Boutwell, of the Managers. He urged that the Constitution makes the Senate the sole Court of Impeachment, and that the Chief Justice, not being a Senator, could have no voice. If he could, he might by a casting vote decide adversely to the judgment of the Senate by voting affirmatively upon a tie. The Constitution, in making him President of the Court, did not make him a member of it. Mr. Boutwell, with all the Senators who differed from the Chief Justice, was very careful to express his perfect confidence in that high officer. But he said that the Senate was now making precedents, and must regard every question with strict impersonality.

But the conclusive consideration seems to us to be, that in making the Chief Justice President of the Senate for a particular purpose, the Constitution did not mean that he should be a mere figure-head, but that, at least, he should have the ordinary powers of a presiding officer. It is not conceivable that the Constitution would bring one of the most dignified officers in the Government, the head of one of its three great departments, into the Senate of the United States upon so imposing and solemn an occasion as the impeachment, and possible removal, of the Executive head of the Government, as a mere cipher, a ceremony, a pageant. The Constitution, which makes the Senate the sole Court to try impeachment, also appoints the Chief Justice for that occasion its President—for that august occasion it were, an ex-officio member. His presence and participation secure the attendance of two of the departments of the Government at the trial of the third; and he alone is selected from the Bench, as its chief, as a matter of convenience, and in recognition of the manifest propriety that the Judiciary should be represented.

It is very desirable that this interpretation should now be settled, that there may be no doubt hereafter. Undoubtedly it is a debatable question. The Constitution does not expressly define the duties of the Chief Justice as President. The Senate should therefore give to the intention of the Constitution the most generous construction. Is it desirable for any reason whatever that the Chief Justice presiding should be merely a cipher? Is any peril reasonably to be feared from the vote of the Chief Justice of the United States upon such an occasion? And if so, does not that fact morally incapacitate him for the proper discharge of his customary duties? In the very case supposed by Mr. Boutwell of a tie upon a serious point, is it not more satisfactory that there should be a casting-vote intrusted to an officer who is beyond suspicion of fear or favor, as in the view of the Constitution the Chief Justice is? Moreover, if with the view of his position and of his relation to the Senate as a Court of Impeachment of the President, which any Chief Justice must be supposed to hold, he should decline to be a mere figure-head, his retirement dissolves the Court, and there is no remedy but his own impeachment. Yet is it desirable to impeach upon such grounds? Is it not wiser to allow that as the Constitution brings the Chief Justice into the Court as President, it brings him with the usual presidential powers?

This was the opinion of the Senate, and the precedent established will probably remain. But, whether it does or not, we protest against a kind of hostility toward the Chief Justice which arises from the fact that his opinion upon this subject differs from that of some of the Senators. Mr. Chase has been a Senator and is now Chief Justice, and has studied the Constitution as diligently as any member of the Court of Impeachment. His opinion upon this point is a priori peculiarly valuable, because he is peculiarly interested in it, and has undoubtedly very thoroughly examined it. It may be supposed, also, that he has the advantage of the opinion of his brethren upon the Bench. But there is certainly no reason to suppose that he wishes for any unworthy purpose to perplex or prolong the proceedings; or that any view which he may hold of the political expediency of impeachment will more injuriously affect his conduct than it does that of any of the President’s counsel. Indeed, we are very confident that the Chief Justice is not likely, by his part in this trial, to lose any of that high and honorable consideration which he now enjoys.

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