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Check the Source "More Sinned Against Than Sinning": The Closing Argument of Hon. Henry Stanbery in the Andrew Johnson Impeachment Trial May 16, 1868 r. Chief Justice and Senators, it may seem an act of indiscretion almost amounting to temerity that in my present state of health I should attempt the great labor of this case. I feel that in Mmy best estate I could hardly attain to the height of the great argument. Careful friends have advise me against it. My watchful physician has yielded a half reluctant consent to my request, accompanied with many a caution that I fear I shall not observe. But, Senators, an irresistible impulse hurries me forward. The flesh indeed is weak; the spirit is willing. Unseen and friendly hands seem to support me. Voices inaudible to all others, I hear, or seem to hear. They whisper words of consolation, of hope, of confidence. They say, or seem to say to me, "Feeble champion of the right, hold not back; remember that the race is not always to the swift nor the battle to the strong; remember in a just cause a single pebble from the brook was enough in the sling of the young shepherd." Senators, in all our history as a people, never before have the three great departments of the Government been brought on the scene together for such an occasion as this. We have had party strifes in our history before. Many a time the executive and legislative departments have been in fierce and bitter antagonism. Many a time before extreme party men have advised a resort to impeachment. Even as far back as the time of Washington his grand and tranquil soul was disturbed in that noted year, 1795, when he stood in antagonism with a majority in the House of Representatives upon that famous British treaty, when, upon their demand, he refused to surrender the correspondence, impeachment by the bad men of the party was then threatened. So, too, in many a subsequent day of our party contests. Oftentimes in the remembrance of men not older than myself, oftentimes when to accomplish the purposes of the party there seemed to be this way and no other way have we heard this same advice given, "This is the remedy to follow;" but, happily for us, such bad counsels never heretofore have prevailed. This undoubtedly is a remedy within the contemplation of the Constitution, a remedy for a great mischief. Our wise forefathers saw that a time might come, an emergency might happen when nothing but the removal of the Chief Magistrate could save the nation; but they never made it to be used for party purposes. Has the time come now? Has, after the lapse of eighty years, the time at last come when this extreme remedy of the Constitution must be applied? If so, all just men will say, amen. But if, on the contrary, bad advice has at last prevailed, if this is a step at last in the interests of party, carried by the bad advice of the worst men of the party, if at last this great and august tribunal is to be degraded to carry out a party purpose, Oh, then, there remains a day of retribution fro every man that participates in this great wrong, sure to come, nor long to be delayed…. What new and unheard of conduct by a President has at last made a resort to this extreme remedy unavoidable? What presidential acts have happened so flagrant that all just men of all parties are ready to say "the time has come when the mischief has been committed; the evil is at work so enormous and so pressing that in the last year of his term of office it is not safe to await the coming action of the people?… Now, first of all, it must not escape notice that these articles are founded upon the express averment that from the moment of his reinstatement on the non-concurrence of the Senate Mr. Stanton became the lawful Secretary for that Department; that, upon such order of the Senate, he at once entered into possession of the War Department and into the lawful exercise of its duties as Secretary and that up to the date of the articles of impeachment that lawful right and actual possession had remained undisturbed; that all the acts charged in these eight articles were committed during that time; that , not withstanding these acts, Stanton remains lawfully and actually in possession; and that the office has been at no time vacant. We see, them that, according to the case made in these eight articles, the President did not succeed in getting Mr. Stanton our of office or of putting General Thomas in, either in law or in fact. We see, according to these articles, that the President did not succeed, either by force or otherwise, in preventing Mr. Stanton from holding his office or in getting possession of the public property in that Department. There has been, according to the very case made in these articles, no public mischief. The lawful officer has not been disturbed; the lawful custody of the public property and public money of the Department has not been changed. No injury has been done either to the public service or the public officer. There has been no removal of Mr. Stanton—only an abortive attempt at removal. There has been no acting Secretary put in an office vacant by death resignation, or disability—put there during the time of such actual vacancy or temporary absence. All the time of such actual vacant or temporary absence. All the time the Secretary himself has been there in the actual performance of his duties. No ad interim officer has, in law or fact, been constituted, for in law or fact there has been no interim as to the Secretary himself. There has been no moment of time in which there could be an acting Secretary or an ad interim Secretary, either in law or in fact, for it is impossible to conceive of an ad interim Secretary of War when there is no interim, that is, when the lawful Secretary is in his place and in the actual discharge of his duties. Mark it, then, Senators, that the acts charged are high crimes and misdemeanors in these eight articles, in respect to putting Mr. Stanton out and General Thomas in, are things attempted and not things accomplished. It is in the attempt, and the unlawful interest with which it was formed, that the president is to be held responsible for. So that it comes to be a question of vital consequence in 2 reference to this part of the case whether the high crimes and misdemeanors provided for in the tenure- of-office act and in the second section of the military appropriation act purport to punish not only the commission of the acts, but to punish as well the abortive attempt to commit them…. And here, Senators, before I proceed to consider these articles in detail, seems to me the proper time to bring your attention to another consideration, which I deem of very great moment. What is the subject- matter which constitutes these high crimes and misdemeanors? Under what legislation does it happen that the President of the United States is brought under all this penal liability? What are these high crimes and misdemeanors? Has he committed treason or bribery? Has he appropriated the public funds or the public property unlawfully to his own use? Has he committed any crime of violence against any person, public officer or private individual? Is he charged with any act which amounts to the crimen falsi or was done causa lucri? Nothing of the sort. These alleged high crimes and misdemeanors are all founded upon mere forms of executive administration. For the violation, they say, of the rules laid down by the legislative department to regulate the conduct of the executive department in the manner of administration of executive functions belonging to that department…. Now, when President Johnson was invested with his office, he found Mr. Stanton holding the office of Secretary of War. He had been appointed by Mr. Lincoln during his first term, and was holding in the second month of Mr. Lincoln's second term under the old appointment. Mr. Stanton was neither appointed by Mr. Lincoln or Mr. Johnson for that second term; so that we are relieved from all question whether the fractional term, counting from the accession of Mr. Johnson, is to be called the unexpired term of Mr. Lincoln, or the proper term of Mr. Johnson, and whether, if he had been appointed or reappointed by Mr. Lincoln during his second term, he might not have claimed that he was entitled, as against Mr. Johnson, to hold onto its end. Mr. Stanton never had any tenure of office under the tenure-of-office act for the current presidential term, never having been appointed for that term by either Mr. Lincoln or Mr. Johnson. He, therefore, does not come within the category of those members of Mr. Johnson's Cabinet who have been appointed by Mr. Johnson…. But, Senators, if you should be of the opinion that the tenure-of-office act protected Mr. Stanton, and that the attempt to remove him was equivalent to a removal, we next maintain— First, That the President had a right to construe the law for himself, and if, in the exercise of that right, he committed an error of construction, and acted under that error, he is not to be held responsible.
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