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

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Harper's Weekly, May 16, 1868, page 306

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The speech of Mr. Evarts in the Impeachment trial was very long, and very ingeniously set forth his views upon the nature of the Government, and upon the rhetoric and manners of the Managers, both in the debates of the House of Representatives and in the conduct of the Impeachment. It was a very characteristic speech, and showed the intellectual acuteness, the grave, polished, and sarcastic humor, and the ample and rather diffuse rhetoric of the distinguished lawyer. But as any attempt to prove that the chief executive magistrate of the United States may deliberately violate the laws under the plea that he wishes to test their constitutionality, it was as hopelessly futile as every such attempt must be. The checks and balances of our constitutional system are undoubtedly very shrewdly designed—the independence of each branch of the Government within certain limits is unquestionably necessary—the disadvantage of concentrating the legislative and executive powers in one assembly is undeniable. But all these considerations are not clearer nor more conclusive than the fact that the claim of the President to impose his veto upon a law after his veto has been constitutionally set aside is a concentration of power in the Executive that deranges all the checks and balances, destroys the independence of the other chief branches of the Government, and subordinates Congress to the will of one man. A more intolerable doctrine could not be urged. We are quite willing to omit all the other late charges but this one for the purpose of the argument merely. For if the position that Mr. Evarts assumed be correct, the Government is not the Government which the people believe to be.

It is, however, unnecessary now to pursue that inquiry. We differ, and we have no doubt that the most thoughtful people in the country differ, from what may be called the theory of the Government necessarily resulting from the argument of Mr. Evarts. The special occasion of his argument has passed. But it has not passed without some very severe strictures upon the course of Mr. Evarts from his party friends. His consent to serve as one of the President’s counsel has been apparently regarded by some critics of warm imagination as a virtual renunciation of the Republican Party. Why, it has been asked, should a man oppose the President’s political policy in October and then defend him from a charge of impeachment in the next April? But, we ask in turn, why shouldn’t he? It is one of the most precious principles of enlightened civilization that no man shall be condemned without a fair hearing and trial. Let us look at this case. The President, a renegade to his party, is impeached. His counsel are all politically his friends. His judges are the Senate, politically his enemies. He asks one of the most distinguished lawyers in the country, politically opposed to him, to help his defense; and three considerations probably decided that lawyer to accept.

In the first place, as a lawyer he would not decline a call to secure a legitimate defense to a political foe charged with the gravest political offense any more than he would refuse to defend him from a charge of murder. His professional honor binds him. Not, indeed, to strain the law, nor to distort the fact, nor to special pleading, nor to any thing abnormal or unfair, but to a plain defense upon such grounds as the case may afford, in order that the forms of law, which are the safeguard of every citizen, be observed. If he goes beyond—if he commits himself to the political theories upon which the action has proceeded—he then, of course, becomes so far politically, and not only professionally, identified with his client. We say, so far as the special question is concerned. But it by no means follows that he has relinquished his political sympathies as to the proper general policy of the Government, which is the point of party separation. Very possibly Mr. Evarts is of the opinion that impeachment was not tenable upon the grounds alleged. But that does not show that he approves of the President’s theory of reconstruction, nor that he is opposed to the Congressional policy of equal rights as the basis of reconstruction. It merely shows, that in his judgment the President’s removal of Mr. Stanton, although it may have been a foolish act, was not in law properly an impeachable offense. Such an opinion seems to us most erroneous and perilous in its tendency. But certainly a man may hold it and be just as good a Republican as General Butler.

In the second place, it is very conceivable that Mr. Evarts thought it to be desirable, even in a party view, that not the most unimportant of the President’s advisers, under the circumstances, should be of the Republican Party. It preserved at least the air of impartiality. The Senate might well be supposed willing to hear with candor from a political friend the argument which it might naturally distrust in a political opponent. And in the third place, the very imaginable desire of an able lawyer, who felt his adequacy to the occasion, to be conspicuously associated with a most memorable and historic trial, may have had some influence in persuading Mr. Evarts to appear for the President.

There is certainly nothing in the fact that a great lawyer consents to appear upon either side of a great case, always supposing a simple desire that there may be a fair hearing, and that justice may be done, which should subject him to censure. Further, in this particular instance a man may, upon the point in question, hold that the President’s position is justifiable. Does he thereby show himself recreant to his political principles or to the party with which he acts? Not at all. Impeachment upon the grounds alleged has been indeed generally sustained by the sympathy and by the profound conviction of the dominant party, but it is not rightfully a party test. Sincerely as we have believed in its propriety and necessity, it is plainly not of a nature to be made a party test. Even if the constitutional removal of the President should have been made such, the particular occasion and the policy of any particular effort must necessarily be left open to individual judgment

Nothing can be more fatal and sophistical and inconsistent that the tone of the New York Tribune upon this subject. During the delivery of the speech of Mr. Evarts the Tribune argued with unusual heat and bitterness that the question was whether Mr. Johnson should not be removed for usurping the authority of Congress on reconstruction, and declared that any Senator who should vote for his acquittal would look for his future outside of the Republican party. Now, Mr. Johnson’s usurpations have been flagrant for two years and more; yet, down to the 22d of February, the Tribune was opposed to impeachment. The President’s usurpation was no more evident in the violation of the Tenure-of-Office Act than it had been for a long time before; and whether that offense offered the occasion which should be improved for his constitutional removal was a question of expediency solely. Congress had no doubt of it. Most Republican journals had no doubt of it. We certainly had no doubt of it. But the Tribune had no more right to excommunicate Mr. Evarts because he did not think impeachment expedient when the Tribune did, than General Butler and Mr. Boutwell had to excommunicate the Tribune because it did not think impeachment expedient when they did. Perhaps, however, the Tribune may see some reason for moderating its censure of Mr. Evarts as a renegade Republican when it remembers that he at least appears for the Government against Jefferson Davis, and not as his counsel or bail.

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