The Honorable Benjamin R. Curtis (1809-1874), former associate justice of the U.S. Supreme Court, also later served as lead counsel for President Andrew Johnson during his 1868 impeachment trial. While the focus of this article is Curtis' role in that proceeding, he is known as the only justice in American history to have stepped down from the high court on a matter of principle. Curtis resigned in 1857 after dissenting from the majority's notorious decision in the Dred Scott case, which denied the enslaved plaintiff's bid for emancipation.

Our first presidential impeachment took place in a postwar era marked by acrimonious political disagreements over Reconstruction. On Feb. 24, 1868, the House of Representatives adopted articles of impeachment charging the president with conspiring to violate certain laws, and for making speeches that disparaged Congress. The crux of the resolution, however, was a claimed violation of the Tenure of Office Act of 1867 for the removal of Secretary of War Edwin Stanton. The House majority also elected seven congressmen to serve as their legal managers for the prosecution in the Senate. Only a small portion of the official record of Curtis' opening remarks as leader of a team of five defense attorneys is reprinted here, chosen for its contemporary relevance to the same legal issues that this nation must now face anew, more than 150 years later:

Mr. Chief Justice:

I am here to speak to the Senate of the United States sitting in its judicial capacity as a court of impeachment, presided over by the Chief Justice of the United States, for the trial of the President of the United States. This statement sufficiently characterizes what I have to say. Here party spirit, political schemes, foregone conclusions, outrageous biases can have no fit operation.

The Constitution requires that here should be a "trial," and as in that trial the oath which each one of you has taken is to administer "impartial justice according to the Constitution and the laws," the only appeal which I can make on behalf of the President is an appeal to the conscience and the reason of each judge who sits before me. Upon the law and the facts, upon the judicial merits of the case, upon the duties incumbent on that high officer by virtue of his office and his honest endeavor to discharge those duties, the President rests his defense. And I pray each one of you to listen to me with that patience which belongs to a judge for his own sake, which I cannot expect to command by any efforts of mine, while I open to you what that defense is.

The Constitution requires the President to take care that the laws be faithfully executed. It also requires of him, as qualification for his office, to swear that he will faithfully execute the laws, and that, to the best of [his] ability, he will preserve, protect, and defend the Constitution of the United States. I suppose everyone will agree that, so long as the President of the United States, in good faith, is endeavoring to take care that the laws be faithfully executed, and in good faith, and to the best of his ability, is preserving, protecting and defending the Constitution of the United States, although he may be making mistakes, he is not committing high crimes or misdemeanors.

My first position is that, when the Constitution speaks of "treason, bribery, and other high crimes and misdemeanors," it refers to, and includes only, high criminal offenses against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment.

"Treason" and "bribery." Nobody will doubt that these are here designated high crimes and misdemeanors against the United States, made such by the laws of the United States, which the framers of the Constitution knew must be passed, in the nature of the Government they were about to create, because these are offenses which strike at the existence of that Government.

"Other high crimes and misdemeanors." Noscitur a sociis. High crimes and misdemeanors; so high that they belong in this company with treason and bribery. That is plain on the face of the Constitution, in the very first step it takes on the subject of impeachment. "High crimes and misdemeanors" against what law? There can be no crime, there can be no misdemeanor, without a law, written or unwritten, express or implied. There must be some law; otherwise there is no crime. My interpretation of it is that the language "high crimes and misdemeanors" means "offenses against the laws of the United States." Let us see if the Constitution has not said so.

The first clause of the second section of the second article of the Constitution reads thus: "The President of the United States shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

"Offenses against the United States" would include "cases of impeachment," and they might be pardoned by the President if they were not excepted. Then cases of impeachment are, according to the express declaration of the Constitution itself, cases of offenses against the United States… I desire to refer to the sixty-fourth number of the Federalist…: "The remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the Executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the Executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will therefore conclude this head with a view of the judicial character of the Senate."

"Known from its associates"; i.e., ascertaining the meaning of words in a statute by reference to the meaning of words associated with them. And then it is discussed. The next position to which I desire the attention of the Senate is that there is enough written in the Constitution to prove that this is a court in which a judicial trial is now being carried on. "The Senate of the United States shall have the sole power to try all impeachments." "When the President is tried, the Chief Justice shall preside." "The trial of all crimes, except in case of impeachment, shall be by jury." This, then, is the trial of a crime. You are triers, presided over by the Chief Justice of the United States in this particular case, and that on the express words of the Constitution. There is also, according to its express words, to be an acquittal or a conviction on this trial for a crime. "No person shall be convicted without the concurrence of two-thirds of the members present." There is also to be a judgment in case there shall be a conviction:

"Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office of honor, trust, or profit under the United States." Here, then, there is the trial of a crime, a trial by a tribunal designated by the Constitution in place of court and jury; a conviction if guilt is proved; a judgment on that conviction; a punishment inflicted by the judgment for a crime, and this on the express terms of the Constitution itself.… I say, then, that it is impossible not to come to the conclusion that the Constitution of the United States has designated impeachable offenses as offenses against the United States; that it has provided for the trial of those offenses; that it has established a tribunal for the purpose of trying them; that it has directed the tribunal, in case of conviction, to pronounce a judgment upon the conviction, and inflict a punishment.… But the argument does not rest mainly, I think, upon he provisions of the Constitution concerning impeachment. It is, at any rate, vastly strengthened by the direct prohibition of the Constitution.

"Congress shall pass no bill of attainder or ex post facto law." According to that prohibition of the Constitution, if every member of this body, sitting in its legislative capacity, and every member of the other body, sitting in its legislative capacity, should unite in passing a law to punish an act after the act was done, that law would be a mere nullity. Yet what is claimed by the honorable Managers on behalf of members of this body? As a Congress, you cannot create a law to punish these acts if no law existed at the time they were done; but sitting here as judges, not only after the fact, but while the case is on trial, you may individually, each one of you, create a law by himself to govern the case. According to this assumption, the same Constitution which has made it a Bill of Rights of the American citizen, not only as against Congress, but as against the legislature of every state in the Union, that no ex post facto law shall be passed — this same Constitution has erected you into a body, and empowered every one of you to say, Aut inveniam aut faciam — "If I cannot find a law, I will make one." Nay, it has clothed every one of you with imperial power; it has enabled you to say, Sic volo, sic jubeo, slat pro ratione voluntas — "I am a law unto myself, by which law I shall govern this case." And, more than that, when each one of you, before he took his place here, called God to witness that he would administer impartial justice in this case according to the Constitution and the laws, he meant such laws as he might make as he went along. The Constitution, which had prohibited anybody from making such laws, he swore to observe; but he also swore to be governed by his own will — his own individual will was the law which he thus swore to observe; and this special provision of the Constitution, that when the Senate sits in this capacity to try an impeachment the Senators shall be on oath, means merely that they shall swear to follow their own individual wills! I respectfully submit this view cannot consistently and properly be taken of the character of this body, or of the duties and powers incumbent upon it. Look for a moment, if you please, to the other provision. The same search into the English precedents … led them to put into the Constitution a positive and absolute prohibition against any bill of attainder. What is a bill of attainder? It is a case before the Parliament where the Parliament make the law for the facts they find. Each legislator — for it is in their legislative capacity they act, not in a judicial one — is, to use the phrase of the honorable Managers, "a law unto himself," and, according to his discretion — his views of what is politic or proper under the circumstances — he frames a law to meet the case, and enacts it or votes in its enactment. According to the doctrine now advanced, bills of attainder are not prohibited by this Constitution; they are only slightly modified. It is only necessary for the House of Representatives, by a majority, to vote an impeachment, and send up certain articles, and have two-thirds of this body vote in favor of conviction, and there is an attainder.… The individual wills of the legislators, instead of the conscientious discharge of the duty of the judges, settle the result.… You must find that the law existed; you must construe it and apply it to the case; you must find his criminal intent willfully to break the law — before the articles can be supported.

But we now come to the tenth article, which depends upon no law at all, but, as I have said, is attended with some extraordinary peculiarities. The complaint is that the President made speeches against Congress.… [T]he House of Representatives has erected itself into a school of manners, selecting from its ranks those gentlemen whom it deems most competent, by precept and example, to teach decorum of speech; and they desire the judgment of this body whether the President has not been guilty of indecorum—whether he has "spoken properly," to use the phrase of the honorable manager.

Under the common law, no man was ever punished criminally for spoken words. If he slandered his neighbor and injured him, he must make good in damages to his neighbor the injury he had done; but there was no such thing, at the common law, as an indictment for spoken words.… What is the law to be? Suppose it is, as the honorable Managers seem to think it should be, the sense of propriety of each senator appealed to. What is it to be? The only rule I have heard — the only rule which can be announced — is that you may require the speaker to speak properly. Who are to be the judges whether he speaks properly? In this case the Senate of the United States, on the presentation of the House of Representatives of the United States; and that is supposed to be the freedom of speech secured by this absolute prohibition of the Constitution?

It must be unnecessary for me to say anything concerning the importance of this case, not only now, but in the future. It must be apparent to everyone in any way connected with or concerned in this trial that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of American justice or American injustice. Of that justice which Mr. Burke says is the great standing policy of all civilized states, or of that injustice which is sure to be discovered, and which makes even the wise man mad, and which, in the fixed and immutable order of God's providence, is certain to return to plague its inventors.

Epilogue History shows that the vote of the senators fell one short of the two-thirds required to remove Johnson from office, and the able trial advocacy of Curtis even earned the grudging respect of the lead House manager himself. When the verdict was rendered, he made a wry observation, one that highlighted the supremacy of "quality over quantity" known to every trial lawyer. "After Judge Curtis had presented the case of his client," he said, "nothing more was added in his behalf, although in the five or six closing speeches of his other counsel, much else was said."

John F. Blawie is a Connecticut Superior Court Judge.