Article 3 alleges the same act as done without authority of law, and alleges an intent to violate the Const.i.tution.

Article 4 charges that the President conspired with Lorenzo Thomas and divers other persons, with intent, by INTIMIDATION AND THREATS, to prevent Mr. Stanton from holding the office of Secretary of War, in violation of the Const.i.tution and of the act of July 31, 1861.

Article 5 charges the same conspiracy with Thomas to prevent Mr.

Stanton's holding his office, and thereby to prevent the execution of the civil tenure act.

Article 6 charges that the President conspired with Thomas to seize and possess the property under the control of the War Department by FORCE, in contravention of the act of July 31, 1861, and with intent to disregard the civil tenure-of-office act.

Article 7 charges the same conspiracy, with intent only to violate the civil tenure-of-office act.

Articles 3d, 4th, 5th, 6th and 7th may all be considered together, as to to the proof to support them.

It will be shown that having removed Stanton and appointed Thomas, the President sent Thomas to the War Office to obtain possession; that having been met by Stanton with a denial of his rights, Thomas retired, and after consultation with the President, Thomas a.s.serted his purpose to take possession of the War Office by force, making his boast in several public places of his intentions so to do, but was prevented by being promptly arrested by process from the court.

This will be shown by the evidence of Hon. Mr. Van Horn, a member of the House, who was present when the demand for possession of the War office was made by General Thomas, already made public.

By the testimony of the Hon. Mr. Burleigh, who, after that, in the evening of the twenty-first of February, was told by Thomas that he intended to take possession of the War Office by force the following morning, and invited him up to see the performance. Mr. Burleigh attended, but the act did not come off, for Thomas had been arrested and held to bail.

By Thomas boasting at Willard's hotel on the same evening that he should call on General Grant for military force to put him in possession of the office, and he did not see how Grant could refuse it. Article 8 charges that the appointment of Thomas was made for the purpose of getting control of the disburs.e.m.e.nt of the moneys appropriated for the military service and Department of War.

In addition to the proof already adduced, it will be shown that, after the appointment of Thomas, which must have been known to the members of his cabinet, the President caused a formal notice to be served on the Secretary of the Treasury, to the end that the Secretary might answer the requisitions for money of Thomas, and this was only prevented by the firmness with which Stanton retained possession of the books and papers of the War office. It will be seen that every fact charged in Article 1 is admitted by the answer of the respondent; the intent also admitted as charged; that is to say, to set aside the civil tenure-of-office act, and to remove Mr. Stanton from the office of the Secretary for the Department of War without the advice and consent of the Senate, and, if not justified, contrary to the provisions of the Const.i.tution itself.

The only question remaining is, does the respondent justify himself by the Const.i.tution and laws?

On this he avers, that by the Const.i.tution, there is "conferred on the President as a part of the executive power, the power at any and all times of removing from office all executive officers for cause, to be judged of by the President alone, and that he verily believes that the executive power of removal from office, confided to him by the Const.i.tution, as aforesaid, includes the power of suspension from office indefinitely."

Now, these offices, so vacated, must be filled, temporarily at least, by his appointment, because government must go on; there can be no interregnum in the execution of the laws in an organized government; he claims, therefore, of necessity, the right to fill their places with appointments of his choice, and that this power can not be restrained or limited in any degree by any law of Congress, because, he avers, "that the power was conferred, and the duty of exercising it in fit cases was imposed on the President by the Const.i.tution of the United States, and that the President could not be deprived of this power, or relieved of this duty, nor could the same be vested by law in the President and the Senate jointly, either in part or whole."

This, then, is the plain and inevitable issue before the Senate and the American people:

Has the President, under the Const.i.tution, the more than kingly prerogative at will to remove from office and suspend from office indefinitely, all executive officers of the United States, either civil, military or naval, at any and all times, and fill the vacancies with creatures of his own appointment, for his own purposes, without any restraint whatever, or possibility of restraint by the Senate or by Congress through laws duly enacted?

The House of Representatives, in behalf of the people join this issue by affirming that the exercise of such powers is a high misdemeanor in office.

If the affirmative is maintained by the respondent, then, so far as the first eight articles are concerned--unless such corrupt purposes are shown as will of themselves make the exercise of a legal power a crime--the respondent must go, and ought to go quit and free.

Therefore, by these articles and the answers thereto, the momentous question, here and now, is raised whether the PRESIDENTIAL OFFICE ITSELF (IF IT HAS THE PREROGATIVES AND POWER CLAIMED FOR IT) OUGHT, IN FACT, TO EXIST AS APART OF THE CONSt.i.tUTIONAL GOVERNMENT OF A FREE PEOPLE, while by the last three articles the simpler and less important inquiry is to be determined, whether Andrew Johnson has so conducted himself that he ought longer to held any const.i.tutional office whatever. The latter sinks to merited insignificance compared with the grandeur of the former.

If that is sustained, then a right and power hitherto unclaimed and unknown to the people of the country is engrafted on the Const.i.tution most alarming in its extent, most corrupting in its influence, most dangerous in its tendencies, and most tyrannical in its exercise.

Whoever, therefore, votes "not guilty" on these articles votes to enchain our free inst.i.tutions, and to prostrate them at the feet of any man who, being President, may choose to control them.

A few days after this, Judge Curtis, of the President's counsel, spoke on behalf of the President. The first and princ.i.p.al Government of the Articles of Impeachment against Mr. Johnson was violation of the Office-Tenure Act, which had been pa.s.sed the year before for the undisguised purpose of restricting the President's power to remove his Cabinet officers, particularly, his War Minister, Mr. Stanton. It was apparent that Mr. Butler had been embara.s.sed in his plea by the proviso of that Act, that members of the Cabinet should hold "during the term of the President by WHOM THEY MAY HAVE BEEN APPOINTED and for one month longer."

Mr. Butler had asked--By whom was Mr. Stanton appointed? By Mr. Lincoln.

Whose presidential term was he holding tinder when the bullet of Booth became a proximate cause of this trial? Was not this appointment in full force at that hour. Had any act of the respondent up to the 12th day of August last vitiated or interfered with that appointment? Whose Presidential term is the respondent now serving out? His own, or Mr. Lincoln's. If his own, he is ent.i.tled to four years up to the anniversary of the murder, because each presidential term is four years by the Const.i.tution, and the regular recurrence of those terms is fixed by the Act of May 8, 1792. If he is serving out the remainder of Mr.

Lincoln's term, then his term of office expires on the 4th of March, 1869, if it does not before.

Judge Curtis struck his first blow at the weak point of General Butler's speech. He said:

There is a question involved which enters deeply into the first eight Articles of Impeachment and materially touches two of the others; and to that question I desire in the first place to invite the attention of the court, namely--whether MR. STANTON'S CASE COMES UNDER THE TENURE-OF-OFFICE ACTS? * * * I must ask your attention therefore to the construction and application of the first section of that act, as follows: "that every person holding an official position to which he has been appointed by and with the advice and consent of the Senate, and every person who shall hereafter be appointed to any such office and shall become duly qualified to act therein, is and shall be ent.i.tled to hold such office until a successor shall have been in like manner appointed and duly qualified, except as herein OTHERWISE PROVIDED."

Then comes what is otherwise provided. "PROVIDED, HOWEVER, That the Secretaries of State, Treasury, War, Navy, and Interior Departments, the Postmaster General and Attorney General, shall hold their offices respectively for AND DURING THE TERM OF THE PRESIDENT BY WHOM THEY MAY HAVE BEEN APPOINTED."

The first inquiry which arises on this language, is as to the meaning of the words "for and during the term of the President." Mr. Stanton, as appears by the commission which has been put in the case by the Honorable Managers, was appointed in January, 1862, during the first term of President Lincoln. Are the words "during the term of the President," applicable to Mr. Stanton's case? That depends upon whether an expounder of this law, judicially, who finds set down in it as a part of the descriptive words, "DURING THE TERMS OF THE PRESIDENT," HAS ANY RIGHT TO ADD, "AND DURING ANY OTHER TERM FOR WHICH HE MAY BE AFTERWARDS ELECTED."

I respectfully submit no such judicial interpretation can be put on the words. Then, if you please, take the next step: "During the term of the President by whom he was appointed." At the time when this order was issued for the removal of Mr. Stanton, was he holding the term of the President by whom he was appointed? The Honorable Managers say yes; because, as they, say, Mr. Johnson is merely serving out the residue of Mr. Lincoln's term. But is that so under the provisions of the Const.i.tution of the United States? * * Although the President, like the Vice President, is elected for a term of four years, and each is elected for the same term, the President is not to hold the office absolutely during four years. The limit of four years is not an absolute limit.

Death is a limit. "A conditional limitation," as the lawyers call it, is imposed on his tenure of office. And when the President dies his term of four years, for which he was elected and during which he was to hold provided he should so long live, terminates, and the office devolves upon the Vice President. For what period of time? FOR THE REMAINDER OF THE TERM FOR WHICH THE VICE PRESIDENT WAS ELECTED. And there is no more propriety, under the provisions of the Const.i.tution of the United dictates, in calling the term during which Mr. Johnson holds the office of President, after it was devolved upon him, a part of Mr. Lincoln's term, then there would be propriety in saying that one sovereign who succeeded another sovereign by death, holds his predecessor's term.**

They (the Cabinet officers) were to be the advisers of the President; they were to be the immediate confidential a.s.sistants of the President, for whom he was to be responsible, but in whom he was expected to repose a great amount of trust and confidence; and therefore it was that this Act has connected the tenure-of-office of these Secretaries to which it applies with the President by whom they were appointed. It says, in the description which the Act gives of the future tenure-of-office of Secretaries, that a controlling regard is to be had to the fact that the Secretary whose tenure is to be regulated was appointed by some particular President; and during the term of that President he shall continue to hold his office; but as for Secretaries who are in office, not appointed by the President, we have nothing to say; we leave them as they heretofore have been. I submit to Senators that this is the natural, and, having regard to the character of these officers, the necessary conclusion, that the tenure-of-office of a Secretary here described is a tenure during the term of service of the President by whom he was appointed; that it was not the intention of Congress to compel a President of the United States to continue in office a Secretary not appointed by himself. * * *

Shortly after this, occurred one of the most amusing and interesting incidents of the trial. Mr. Boutwell, who was altogether a matter-of-fact man, though at times indulging in the heroics, ventured, in the course of his argument, upon a flight of imagination in depicting the punishment that should be meted out to Mr. Johnson for venturing to differ with Congress upon the const.i.tutionality of an act of that body.

He said:

Travelers and astronomers inform us that in the Southern heavens, near the Southern cross, there is a vast s.p.a.ce 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 nebulae, or asteroid, or comet, or planet, or star, or sun. In that dreary, cold, dark region of s.p.a.ce, which is only known to be less 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 pledge of our divine origin and immortal destiny, it would heave and throb with the energy of the elemental forces of nature, and project this enemy (referring to President Johnson) 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 outer darkness of which the Savior of mankind spoke in warning to those who are enemies to themselves and of their race and of G.o.d.

Mr. Evarts followed Mr. Boutwell, and in the course of his argument referred to this paragraph in Mr. Boutwell's speech in the following humorously sarcastic vein, during the delivery of which, the Senate was repeatedly convulsed with laughter. Mr. Evarts said:

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 history, science or human knowledge that will not come into play in his arguments. Painfully sensitive of my ignorance, being devoted to a profession which "sharpens and does not enlarge the mind," I yet can admire without envy the superior knowledge evinced by the honorable manager. Indeed, upon my soul, I believe he is aware of an astronomical fact which many professors of the science are wholly ignorant of; but nevertheless, while some of his colleagues were paying attention to an unoccupied and unappropriated island on the surface of the seas, Mr.

Manager Boutwell, more ambitious, had discovered an untenanted and unappropriated region in the skies, reserved, he would have us think, in the final councils of the Almighty as the place of punishment for deposed and convicted American Presidents.

At first, I thought that his mind had become so enlarged that it was not sharp enough to observe that the Const.i.tution has limited the punishment, but on reflection I saw that he was as legal and logical as he was ambitious and astronomical; for the Const.i.tution has said "remove from office," and has put no limit to the distance of removal so that it may be without the shedding of a drop of his blood or taking a penny of his property, or confining his limbs. Instant removal from office and transportation to the skies. Truly this is a great undertaking, and if the learned manager can only get over the obstacle of the laws of nature, the Const.i.tution will, not stand in his way.

He can contrive no method but that of a convulsion of the earth that shall project the deposed President to this indefinitely distant s.p.a.ce; but a shock of nature of so vast an energy and for so great a result on him might unsettle even the footing of the firm members of Congress. We certainly need not resort to so perilous a method as that. How shall we accomplish it? Why, in the first place, n.o.body knows where that s.p.a.ce is but the learned manager himself, and he is the necessary deputy to execute the judgment of the court. Let it then be provided that, in case of your sentence of deposition and removal from office, the honorable and astronomical manager shall take into his own hands the execution of the sentence. With the President made fast to his broad and strong shoulders, and having already a.s.sayed the flight by imagination, better prepared than anybody else to execute it in form, taking the advantage of ladders as far as ladders will go to the top of this great capitol, and spurning there with his foot the crest of Liberty, let him set out upon his flight while the two houses of Congress and all the people of the United States shall shout--"Sic itur ad astra!" But here a distressing doubt strikes me. How will the manager get back. He will have got far beyond the reach of gravitation to restore him, and so ambitious a wing as his should never stoop to a downward flight. Indeed, as he pa.s.ses through the constellations, the famous question of Carlyle (by which he derides the littleness of human affairs upon the scale of the measure of the heavens,) "What thinks Bootes as he drives his hunting dogs up the zenith in their leash of sidereal fire?" will force itself on his notice. What, indeed, will Bootes think of this new constellation? Besides, reaching this s.p.a.ce beyond the power of Congress ever to send for persons and papers, how shall he return, and how decide in the contest there become personal and perpetual--the struggle of strength between him and the President? In this new revolution thus established forever, who shall decide which is the sun and which is the moon? Who determine the only scientific test, which reflects hardest upon the other?

Gen. Logan, one of the managers, appeared for the prosecution, upon the close of the examination of witnesses. The following is a brief extract from his very long and labored argument, and relates to the Tenure-of-Office Act:

It is a new method of ascertaining the meaning of a law, plain upon its face, by resorting to legislative discussions, and giving in evidence opinions affected by the law. As a matter of fact; it is well known the act was intended to prevent the very thing Mr. Johnson attempted in the matter of Mr. Stanton's removal. I think this manner of defense will not avail before the Senate. The law must govern in its natural and plain intendment, and will not be frittered away by extraneous interpretation.

The President in his veto message admits substantially this construction.

The proviso does not change the general provisions of the Act, except by giving a more definite limit to the tenure-of-office, but the last paragraph of the Act puts the whole question back into the hands of the Senate according to the general intention of the Act, and provides that even the Secretaries are subject to removal by and with the advice and consent of the Senate.

The Act first provides that all persons holding civil offices at the date of its pa.s.sage appointed by and with the advice and consent of the Senate, shall only be removed in the same manner. This applies to the Secretary of War. This proviso merely gives a tenure running with the term of the President and one month thereafter, subject to removal by and with the advice and consent of the Senate. The law clearly gives Mr. Stanton a right to the office from the 4th of March, 1865, till one month after the 4th of March, 1869, and he can only be disturbed in that tenure by the President by and with the advice and consent of the Senate.

Yet, although Mr. Stanton was appointed by Mr. Lincoln in his first term, when there was no tenure-of-office fixed by law, and continued by Mr. Lincoln in his second term, it is argued that his term expired one month after the pa.s.sage of the Tenure-of-Office Act, March 2nd, 1867, for the reason that Mr. Lincoln's term expired at his death. This is false reasoning; the Const.i.tution fixed the term of the President at four years, and by law the commencement of his term is the 4th of March.

Will it be said that when Mr. Johnson is deposed by a verdict of the Senate, that the officer who will succeed him will serve for four years?

Certainly not. Why? Because he will have no Presidential term, and will be merely serving out a part of the unexpired term of Mr. Lincoln, and will go out of office on the 4th of March, 1869, at the time Mr. Lincoln would have retired by expiration of his term, had he lived. * * *

The only question, then, which remains, is simply this: Has the accused violated that (Tenure-of-Office) Act? No one knows better than this accused the history of, and the purpose to be secured by, that Act. It was ably and exhaustively discussed on both sides, in all aspects.

In the debates of Congress it was subsequently reviewed and closely a.n.a.lyzed in a Veto Message of the respondent. No portion of that Act escaped his remark, and no practical application which has been made of it since did he fail to antic.i.p.ate. He knew before he attempted its violation that more than three-fourths of the Representatives of the people in Congress a.s.sembled had set their seal of disapprobation upon the reasons given in the Veto Message and had enacted the law by more than the const.i.tutional number of votes required. Nay, more; he was repeatedly warned, by investigations made looking toward just such a proceeding as now being witnessed in this court, that the people had instructed their Representatives to tolerate no violation of the laws const.i.tutionally enacted.

Mr. Groesbeck, in behalf of the defense, said in closing his argument:

What is to be your judgment, Senators, in this case? Removal from office and perpetual disqualification? If the President has committed that for which he should be ejected from office it were judicial mockery to stop short of the largest disqualifications you can impose. It will be a heavy judgment. What is his crime in its moral aspects, to merit such a judgment? Let us look to it.

He tried to pluck a thorn out of his very heart, for the condition of things in the War Department, and consequently in his Cabinet, did pain him as a thorn in his heart. You fastened it there, and you are now asked to punish him for attempting to extract it. What more? He made an ad interim appointment to last for a single day. You could have terminated it whenever you saw fit. You had only to take up the nomination which he had sent to you, which was a good nomination, and act upon it and the ad interim vanished like smoke. He had no idea of fastening it upon the department. He had no intention of doing anything of that kind. He merely proposed that for the purpose, if the opportunity should occur, of subjecting this law to a const.i.tutional test. That was all the purpose it was to answer. It is all for which it was intended. The thing was in your hands from the beginning to the end.

You had only to act upon the nomination, and the matter was settled.

Surely that was no crime.

I point you to the cases that have occurred--of ad interim appointment after ad interim appointment; but I point especially to the case of Mr.