The monstrousness of this law-despising contention will be even more apparent if we substitute in the clause just quoted the apter word "partisan" for "political." The clause would then exactly characterize this particular impeachment: "It is a partisan proceeding, before a partisan body, with partisan purposes; it is founded on partisan offences, proper for the consideration of a partisan body, and subject to a partisan judgment only!"

Such a definition of "impeachment," as authorized by the Constitution, borders upon sacrilege.

The "opinion" filed by Senator Reverdy Johnson is luminous with the spirit of law and justice, and shines in superb contrast with the diatribe of Senator Sumner.

Senator Johnson used these words: "It has also been said by some inconsiderate persons that our judgment should be influenced by party considerations. We have been told in substance that party necessity requires a conviction; and the same is invoked to avoid what it is madly said will be the result of acquittal -civil commotion and bloodshed. Miserable insanity; a degrading dereliction of patriotism! These appeals are made evidently from the apprehension that senators may conscientiously be convinced that the president is innocent of each of the crimes and misdemeanors alleged in the several articles, and are intended to force them to a judgment of guilt. No more dishonoring efforts were ever made to corrupt a judicial tribunal. They are disgraceful to the parties resorting to them, and should they be successful, as I am sure they will not, they would forever destroy the heretofore unblemished honor of this body, and inflict a wound upon the Constitution itself which, perhaps, no time could heal.”

Nearly thirty years have passed since that great trial. Many of the actors have departed; but those of us who shared in the excitement of that time can all now say (whatever our opinion then): We rejoice at the failure to convict; for nothing but the very extremity of partisan hatred could have brought about the Impeachment Trial; and because a partisan conviction of a President of the United States, on partisan grounds, would have been a national calamity and a shock to mankind.*

All students of public affairs may learn grave lessons from that trial, solemn warnings against the crime of sacrificing "right" to "party," and may there see a portrait of political unscrupulousness-the most hideous conceivable. They will also see some of the greatest constitutional arguments ever made; and, best of all, they will see that even in that fierce time of hatefulness the party that was overwhelmingly dominant still had seven senators who could not and did not bow "the knee to Baal," but stood up, like men (against party and party-threats), for the rights of Johnson the President, notwithstanding their profound disapproval of Johnson the man. From what depth of shame their manliness saved the nation can never he imagined.

Are we so far removed from the madness that ruled our public men in 1867-1868 as to be able to make a calm and just estimate of their conduct?

* See Trial of Andrew Johnson, President, 3 vols., 1868. Government Printing Office. The honor-list of Republican senators: FESSENDEN, FOWLER, GRIMES, HENDERSON, TRUMBULL, ROSS, VAN WINKLE.

Perhaps-perhaps not.

But to this writer it seems that the sober judgment of dispassionate and thoughtful students of constitutional law and history will credit President Andrew Johnson with having successfully made the bravest and noblest struggle ever made to sustain the constitutional rights of the executive against the usurpation of the legislative department. No more savage blow has ever been aimed at the vital constitutional provision that the government shall be vested in three distinct sets of powers-executive, legislative, and judicial. The Tenure of Office Act seriously abridged the constitutional power of the executive department, and for his desperate resistance to that encroachment President Johnson deserves the profoundest gratitude of all who revere the Constitution. For that great service we can gladly condone whatever errors of judgment, of temper, or of taste have been charged against him. Upon the very "hazard of a die" he bravely risked everything; his success, so hardly won, is a stauding rebuke to all attempts on the part of one department to encroach upon another; it is a re-ratification of the chief feature of the Constitution-the division of executive, legislative, and judicial powers.

NOTE TO CHAPTERS XVI. AND XVII.

MR. CURTIS announced these chapters as being in contemplation when his prospectus was issued. In the former he intended to consider the constitutional aspect of the Proclamation of Emancipation; in the latter, to question the authority of the President to suspend the writ of habeas corpus.

Neither of these chapters was written. But we find the views of Mr. Curtis expressed with singular vigor upon both of those great questions in a pamphlet* written in 1862 by his brother Benjamin Robbins Curtis under the title "Executive Power."

In a memoir of that eminent judge and advocate,† Mr. Curtis said: "The tone of this pamphlet, calm, serious, unimpassioned, but firm and unshrinking, and the personal authority of its author, made it exceedingly obnoxious to the excited partisans of the administration. If an attack had been made upon the proclamations in any incendiary spirit, or by one who had less weight of character to support and less of logical power to enforce the objections to them, there would have been far less of violent denunciation of the writer. But this compact, perspicuous, and reasoned exhibition of the lawlessness of the executive acts, in which there was no superfluous word and no word that could justly irritate-pointing as it plainly did to the character of the revolution which those acts were likely to precipitate-was met in some quarters by cries of 'treason' and the like objurgations.

"Yet it would have been well if those who had only opprobrious epithets to

*See, in Appendix, "EXECUTIVE POWER."

+ Life and Writings of Benjamin R. Curtis, Vol. I., p. 351. Boston: Little, Brown & Co. 2 vols., 1879.

oppose to such a production had paused upon a single passage, in which the author said:

"The war in which we are now engaged is a just and necessary war. It must be prosecuted with the whole force of this government till the military power of the South is broken and they submit themselves to their duty to obey, and our right to have obeyed, the Constitution of the United States as the 'supreme law of the land.' But with what sense of right can we subdue them by arms to obey the Constitution as the supreme law of their part of the land if we have ceased to obey it or failed to preserve it as the supreme law of our part of the land? I am a member of no political party. Duties inconsistent, in my opinion, with the preservation of any attachment to a political party caused me to withdraw from all such associations many years ago, and they have never been resumed. I have no occasion to listen to the exhortations now so frequent to divest myself of party ties, and disregard party objects and act for my country. I have nothing but my country for which to act in any public affair; and solely because I have that yet remaining, and know not but it may be possible from my studies and reflections to say something to my countrymen which may aid them to form right conclusions in these dark and dangerous times, I now reluctantly address them.'

"If one who dealt with momentous public questions in this spirit was to be regarded as a 'disloyal citizen,' then the free discussion of public measures was at an end, and the time for an irresponsible despotism, having no basis save in the passions of the multitude and the caprices of rulers, had arrived. But the violence and in some good degree the prejudices of that period have passed away.

"It is now apparent that it was to courage such as his, to the refusal of men like him to be silenced by the frowns of power, and to their adhesion to sound principle in times that tried the souls as those who are to come after us may haply never be tried, that we owe that we still have the Constitution of the United States, with its guaranties of social order and personal freedom.

"Certainly it will not be denied that Judge Curtis contributed his part to prevent 'the loss of ideas,' the preservation of which was essential to our welfare, in the manner and spirit that become him."

LIST OF BOOKS CONSULTED IN PREPARING

OR EDITING THIS VOLUME.

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History and Formation of the Constitution of the United States. Richard Hildreth, History of the United States to the end of the 16th Congress. George Tucker, History of the United States to the end of the 26th Congress. James Schouler, History of the United States under the Constitution.

Horace Greeley, The American Conflict.

Abiel Holmes, Annals of America to 1823.

William Jay, Causes, etc., of Mexican War.

R. S. Ripley, The War with Mexico.

Henry Adams, Documents relating to New England Federalism. (J. Wilson's Works Thomas H. Benton, Thirty Years' View.

O. A. Brownson, The American Republic.

J. B. McMaster, A History of the People of the United States.

Richard Frothingham, Rise of the Republic of the United States.

William Goodell, Slavery and Antislavery.

Herman von Holst, Constitutional and Political History of the United States.
Constitutional Law of the United States.

66

Timothy Pitkin, Political and Civil History of the United States to close of Washington's Administration.

Paul Leicester Ford, "Pamphlets" relating to the adoption of the Constitution.

Bibliography of the Constitution. See post. Jefferson Davis, Rise and Fall of the Confederate Government.

Alexander H. Stephens, A Constitutional View of the War between the States. Alexis de Tocqueville, Democracy in America.

Henry Wilson, History of the Rise and Fall of the Slave Power in America.
Henry Adams, Life of Albert Gallatin.

James T. Austin, Life of Elbridge Gerry.

John Bigelow, Life of Benjamin Franklin.

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66

Writings and Speeches of Samuel J. Tilden.

George Ticknor Curtis, History of the Origin, Formation, and Adoption of the Constitution of the United States.

George Ticknor Curtis, Life of Daniel Webster.

Oliver Johnson, William Lloyd Garrison and his Times.

James Parton, Life of Andrew Jackson.

Edmund Quincy, Life of Josiah Quincy.

Henry S. Randall, Life of Thomas Jefferson.

William C. Rives, Life and Times of James Madison.

Jared Sparks, American Biography.

Samuel Tyler, Memoir of Roger B. Taney.

William V. Wells, Life of Samuel Adams.

William Wirt, Life of Patrick Henry.

William Wirt Henry, Life, Correspondence, and Speeches of Patrick Henry.
Moses Coit Tyler, Life of Patrick Henry.

John Adams, Works and Life of.

John Quincy Adams, Memoirs of.

John C. Calhoun, Works of (Cralle, editor).

Henry Clay, Works of (Colton, editor).

Alexander Hamilton, Works of.

John Jay, Works of.

Thomas Jefferson, Works of (Ford, editor).

George Washington, Works of (Ford, editor).

James Madison, Works of (Government edition).

William H. Seward, Works of.

Charles Summer, Works of.

Daniel Webster, Works of.

Justin Winsor, Narrative and Critical History of America.

Peter Force, American Archives.

American State-Papers (Government publication).

Diplomatic Correspondence of the Revolution (Government publication).

The Journals of Congress, 1774-1788.

Annals of Congress down to May, 1824.

Register of Debates, December, 1824, to October, 1837.

Congressional Globe, October, 1837 to 1872.

Congressional Record from 1872 to date.

Benjamin Perley Poore, Federal and State Constitutions.