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
constitutionality 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 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 nebulae, or asteroid, or comet, or planet, or star, or
sun. In that dreary, cold, dark region of space, 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 God.
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 untenated 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 Constitution has limited
the punishment, but on reflection I saw that he was as legal and
logical as he was ambitious and astronomical; for the
Constitution 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 Constitution 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 space; 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, nobody knows where that space 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 assayed 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 passes 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 space 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 passage 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 passage 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
Constitution 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 analyzed 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 anticipate. He knew before he attempted its violation that
more than three-fourths of the Representatives of the people in
Congress assembled had set their seal of disapprobation upon the
reasons given in the Veto Message and had enacted the law by more
than the constitutional 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 constitutionally 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 constitutional 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. Holt, where the Senate in its legislative
capacity examined it, weighed it, decided upon it, heard the
report of the President and received it as satisfactory. That is,
for the purpose of this trial, before the same tribunal, res
adjudicate, I think, and it will be so regarded.
What else did he do? He talked with an officer about the law.
That is the Emory Article. He made intemperate speeches, though
full of honest, patriotic sentiments; when reviled, he should not
revile again; when smitten upon one cheek he should turn the
other.
"But," the gentleman who spoke last on the part of the managers,
"he tried to defeat pacification and restoration." I deny it in
the sense in which he presented it - that is, as a criminal act.
Here, too, he followed precedent and trod the path in which were
the footsteps of Lincoln, and which was bright with the radiance
of his divine utterance, "charity for all, malice toward none."
He was eager for pacification. He thought that the war was ended.
The drums were all silent - the arsenals were all shut; the roar
of the canon had died away to the last reverberation; the armies
were disbanded; not a single army confronted us in the field. Ah,
he was too eager, too forgiving, too kind. The hand of
conciliation was stretched out to him and he took it? It may be
he should have put it away; but was it a crime to take it?
Kindness, forgiveness a crime! Kindness a crime! Kindness is
omnipotent for good, more powerful than gunpowder or canon.
Kindness is statesmanship. Kindness is the highest statesmanship
of heaven itself. The thunders of Sinai do but terrify and
distract; alone they accomplish little; it is the kindness of
Calvary that subdues and pacifies.
What shall I say of this man? He is no theoriest; he is no
reformer; I have looked over his life. He has ever walked in
beaten paths, and by the light of, the Constitution. The mariner,
tempest-tossed in mid-sea, does not more certainly turn to his
star for guidance than does this man in trial and difficulty to
the star of the Constitution. He loves the Constitution. It has
been the study of his life. He is not learned and scholarly like
many of you; he is not a man of many ideas or of much speculation
but by a law of the mind he is only the truer to that he does
know. He is a patriot, second to no one of you in the measure of
his patriotism. He loves his country; he may be full of error; I
will not canvass now his views; but he loves his country; he has
the courage to defend it, and I believe to die for it if need be.
His courage and patriotism are not without illustration. My
colleague (Mr. Nelson) referred the other day to the scenes which
occurred in this Chamber when he alone of twenty-two Senators
remained; even his State seceded, but he remained. That was a
trial of his patriotism, of which many of you, by reason of your
locality and of your life-long associations, know nothing. How
his voice rang out in this hall in the hour of alarm for the good
cause, and in denunciation of the rebellion! But he did not
remain here; it was a pleasant, honorable, safe, and easy
position; but he was wanted for a more difficult and arduous and
perilous service. He faltered not, but entered upon it. That was
a trial of his courage and patriotism of which some of you who
now sit in judgment on more than his life, know nothing. I have,
often thought that those who, dwelt at the North, safely distant
from the collisions and strifes of the war, knew little of its
actual, trying dangers. We who lived on the border know more. Our
horizon was always red with flame; and it sometimes burned so
near us that we could feel its heat upon the outstretched hand.
But he was wanted for a greater peril, and went into the very
furnace of the war, and there served his country long and well.
Who of you have done more? Not one. * * * It seems cruel,
Senators, that he should be dragged here as a criminal, or that
any one who served his country and bore himself well and bravely
through that trying ordeal, should be condemned upon miserable
technicalities.
If he has committed any gross crime, shocking alike and
indiscriminately the entire public mind, then condemn him; but he
has rendered services to the country that entitle him to kind and
respectful consideration. He has precedents for everything he has
done, and what excellent precedents! The voices of the great dead
come to us from the grave sanctioning his course. All our past
history approves it. How can you single out this man, now in this
condition of things, and brand him before the world, put your
brand of infamy upon him because he made an ad interim
appointment for a day, and possible may have made a mistake in
attempting to remove Stanton? I can at a glance put my eye on
Senators here who would not endure the position he occupied. You
do not think it is right yourselves. You framed this civil tenure
law to give each President his own Cabinet, and yet his whole
crime is that he wants harmony and peace in his.
Senators, I will not go on. There is a great deal that is
crowding on my tongue for utterance, but it is not from my head;
it is rather from my heart; and it would be but a repetition of
the vain things 1 have been saying the past half hour But I do
hope you will not drive the President out and take possession of
his office. I hope this, not merely as counsel for Andrew
Johnson, for Andrew Johnson's administration is to me but as a
moment, and himself as nothing in comparison with the possible
consequences of such an act. No good can come of it, Senators,
and how much will the heart of the nation be refreshed if at last
the Senate of the United States can, in its judgment upon this
case, maintain its ancient dignity and high character in the
midst of storms, and passion, and strife.
A somewhat startling incident, which for the moment threatened
unpleasant results, occurred in the course of the trial. In his
opening speech for the prosecution, Mr. Manager Boutwell used
this language, speaking of the President:
The President is a man of strong will, of violent passions, of
unlimited ambition, with capacity to employ and use timid men,
adhesive, subservient men, and corrupt men, as the instruments of
his designs. It is the truth of history that he has injured every
person with whom he has had confidential relations, and many have
escaped ruin only by withdrawing from his society altogether. He
has one rule of his life: he attempts to use every man of power,
capacity, or influence within his reach. Succeeding in his
attempts, they are in time, and usually in a short time, utterly
ruined. If the considerate flee from him, if the brave and
patriotic resist his schemes or expose his plans, he attacks
them with all the energy and patronage of his office, and
pursues them with all the violence of his personal hatred. He
attacks to destroy all who will not become his instruments, and
all who become his instruments are destroyed in the use. He
spares no one. * * * Already this purpose of his life is
illustrated in the treatment of a gentleman who was of counsel
for the respondent, but who has never appeared in his behalf.
The last paragraph of the above quotation manifestly referred to
a disagrement between the President and Judge Black, which led to
the retirement of that gentleman from the Management of the
Defense of the President, a few days prior to the beginning of
the trial.
To this criticism of the President, Judge Nelson, of Counsel for
Defense, responded a few days later, with the following
statement:
It is to me, Senators, a source of much embarassment how to speak
in reply to the accusation which has thus been preferred against
the President of the United States. * * *
In order that you may understand what I have to say about it I
desire to refer the Senate to a brief statement which I have
prepared on account of the delicacy of the subject; and, although
I have not had time to write it out as I would have desired to
do, it will be sufficient to enable you to comprehend the facts
which I am about to state. You will understand, Senators, that I
do not purport to give a full history of what I may call the Alta
Vela case, as to which a report was made to the Senate by the
Secretary of State upon your call. A mere outline of the case
will be sufficient to explain what I have to say in reference to
Judge Black:
Under the guano act of 1856, William T. Kendal on the one side,
and Patterson and Marguiendo on the other, filed claims in the
Secretary of State's office to the island which is claimed by the
government of St. Domingo.
On the 17th of June, 1867, the examiner of claims submitted a
report adverse to the claim for damages against the Dominican
government. On the 22d of July, 1867, Mr. Black addressed a
letter to the President, (page 10) and another on the 7th of
August, 1867. On page 13 it is said that Patterson and Marguiendo
acquiesce in the decision. On page 13 it is shown that other
parties are in averse possession. On page 15 it is asserted that
the contest is between citizens of the United States, and can be
settled in the courts of the United States. The contest now seems
to be between Patterson and Marguiendo and Thomas B. Webster &
Co.
On the 14th of December, 1859, Judge Black, as Attorney General,
rejected the claim of W. J. Kendall to an island in the Carribean
Sea, called Cayo Verde, and Mr. Seward seems to regard the two
cases as resting on the same principle in his report of 17th of
January, 1867.
On the 22d of July, 1867, Judge Black addressed a letter to the
President enclosing a brief. On the 7th of August, 1867, he
addressed another communication to the President. On the 7th of
February, 1868, an elaborate an able communication was sent to
the President, signed by W. J. Shaffer, attorney for Patterson
and Marguiendo, and Black, Lamon &, Co., counsel, in which they
criticised with severity the report of Mr. Seward and asked the
President to review his decision.
According to the best information I can obtain, I state that ON
THE 9TH OF MARCH, 1868, General Benjamin F. Butler addressed a
letter to J. W. Shaffer, in which he stated that he was "clearly
of the opinion that, under the claim of the United States its
citizens have the exclusive right to take guano there," and that
he had never been able to understand why the executive did not
long since assert the rights of the government, and sustain the
rightful claims of its citizens to the possession of the island
IN THE MOST FORCIBLE MANNER consistent with the dignity and honor
of the Nation.
The letter was concurred in and approved of by John A. Logan, J.
A. Garfield, W. H. Koontz, J. K. Moorhead and John A. Bingham, on
the same day, 9th of March, 1868.
This letter expressing the opinion of Generals Butler, Logan and
Garfield was placed in the hands of the President by Chauncey F.
Black, who, on the 16th of March, 1868, addressed a letter to him
in which he enclosed a copy of the same with the concurrence of
Thaddeus Stevens, John A. Bingham, J. G. Blaine, J. K. Moorhead
and William H. Koontz.
After the date of this letter, and while Judge Black was the
counsel of the respondent in this cause, he had an interview with
the President, in which he urged immediate action on his part and
the sending an armed vessel to take possession of the island; and
because the President refused to do so, Judge Black, on the 19th
of March, 1868, declined to appear further as his counsel in this
case.
Such are the facts in regard to the withdrawal of Judge Black,
according to the. best information I can obtain.
The island of Alta Vela, or the claim for damages, is said to
amount in value to more than a million dollars, and it is quite
likely that an extensive speculation is on foot. I have no
reason to charge that any of the managers are engaged in it,
and presume that the letters were signed, as such communications
are often signed, by members of Congress, through the importunity
of friends.
Judge Black no doubt thought it was his duty to other clients to
press this claims but how did the President view it?
Senators, I ask you for a moment to put yourself in the place of
the President of the United States, and as this is made a matter
of railing accusation against him, to consider how the President