The Impeachment of Andrew Johnson
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Harper's Weekly, April 25, 1868, page 258

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The case for the President was opened by Mr. Curtis. His great renown as an able lawyer, possibly the head of his profession in the country, and the weight of his personal character, gave peculiar interest to his plea. It was known that he would say the best that could be said for his client; that he would subject the letter of the law to the most trying ordeal of possible interpretation; and that he would ingeniously shift the lights and shadows upon the facts of the case to favor his own view, in the manner of all great advocates, and with an effect deepened by the apparent passionlessness of his manner. Indeed the advocate has no art so profoundly skillful as the air of severe judicial impartiality: the appearance of seeking the truth for the truth’s sake merely, and urging the acquittal of his client as a homage which a magnanimous jury or Senate will naturally be anxious to offer to their own high sense of justice. This quality Mr. Curtis possesses, and he has been trained in a school favorable to its development, for he has been Associate Justice of the Supreme Court of the United States.

Yet, when the best has been said for the President, how unsatisfactory it is! The first thing that impresses the reader of the argument of Mr. Curtis is that, however able, there is nothing new in it. The whole case is so simple and so open to the public appreciation that the line of defense which was indicated at the very beginning of the trial as the only possible line, is the one that has been followed. Mr. Curtis’s argument subjects the Tenure-of-Office Act to the most searching verbal analysis; but while it marshals probabilities and possibilities, and suggestions and surmises, with consummate skill, the great facts steadfastly and impregnably confront them all. Mr. Curtis contends that Mr. Stanton is not within the scope of the law; that the law is against precedent and interpretation; that, therefore, amidst the conflict of authorities and the uniformity of practice, to question the validity of the law is not necessary hostility to the Government; that Mr. Stanton has not been removed; and that Mr. Stanton having been removed the office was vacant.

These points are elaborated with great ability; but the mind remains unconvinced, because it is part of the skill of the orator to omit a whole series of facts which control the case, and which are familiar to the country. The argument of Mr. Curtis assumes that an upright magistrate, anxious to execute the laws, and theoretically preserving order and promoting concord at a time of great national disturbance, finds himself at last constrained to doubt the validity of a law, and therefore seeks a judicial interpretation of its constitutionality. Were this really the case, Mr. Curtis would perhaps not have made his ingenious plea, for the President would very possibly not have been impeached. He is impeached because the violation of a law by this particular President under the peculiar circumstances in which he stands is of itself evidence of intention. In another case it might not be. In another case, as we have formerly supposed, and as Mr. Butler stated in his opening speech, there might have been a friendly understanding between the Executive and the Legislature in order to test the law. But his is a very different case. If, under any circumstances, such conduct upon the part of the Executive ought to be tolerated, and it is certainly very doubtful, in this case it would be madness. Men must be judged by their conduct and character. If Andrew Johnson should be allowed to set aside laws because he professed to have scruples as to their constitutionality, the country would deserve the anarchy into which it would inevitably fall.

Mr. Curtis fortifies the doubts which the President professes to entertain by the opinion of many eminent men, and by what he claims to be the settled interpretation. But the question is not of opinions, but of laws. The Tenure-of-Office Bill may seem unwise to the shades of the great departed, but if laws were to be disregarded because great men had prospectively condemned them, government would be at an end. Mr. Curtis farther says, that if the President did not take the responsibility of testing the law in the Courts, it could not be tested. But if he takes the responsibility he must also take the risk. One law properly passed is as binding upon him as another. If he is to execute only the laws which he thinks constitutional, it makes no difference to an honest officer whether they immediately concern himself or others. He has no right, as Mr. Curtis suggests, to leave them in the latter case to be tested by those whom they affect. If a law be unconstitutional, the Executive ought not to connive at its execution; and if he is to be the judge in any case, he is the judge in all cases. Nothing can be plainer, and no principle more vitally important, than that the President must execute all the laws, without exception, which have not been adjudged unconstitutional, or resign. If possible inconveniences result, they are not to be compared with the certain perils of any other course.

We doubt if Mr. Stanbery or Mr. Evarts can add weight to the argument of Mr. Curtis. Even should the witnesses for the President establish what his counsel wish, we do not see how it could be sufficient. They certainly can not disprove that the Tenure-of-Office Act is a law regularly enacted; that it has not been declared unconstitutional; that it authorizes the Secretary of War, and the other Secretaries, to hold their offices "for and during the term of the President by whom they may have been appointed, and one month thereafter, subject to removal by and with the advice and consent of the Senate;" and that the President removed the Secretary of War without the advice and consent of the Senate. And if Mr. Curtis has been unable to show that Mr. Stanton does not stand within the terms of the law are his colleagues likely to do it?

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