Salmon P. Chase to Gerrit Smith, April 19, 1868

[page one-document]

    Washington, April 19, 1868

My dear friend,

    Many thanks for your two kind notes

& for the article on the casting vote in which you

so admirably stated the true doctrine.1 Nettie

also desires to thank you in her own behalf

for your remembrance of her & I enclose her


    The trial of the President draws towards

its end. The evidence will doubtless be closed

tomorrow & it is not improbable that the

first speech on the part of the Managers

will be made. If the Senate adheres to

its resolution to allow only two arguments

on each side I do not see how the discussion

can be protracted beyond the week, unless

the Senate retire for consultation among themselves

    To me the whole business seems wrong:

and if I had any option under the Constitution I

would not take part in it. But the President

is on trial & the Constitution is express that

"when the President is tried the Chief Justice

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shall preside."2

    Nothing is clearer to my mind than that acts

of Congress not warranted by the Constitution are not

laws. In case a law, believed by the President to

be unconstitutional, is passed, notwithstanding his veto,

by the requisite two thirds majority, it seems to me

that it is duty to execute it precisely as if he

held it to be constitutional, except in the case where

it directly attacks & impairs the Executive power con

fided to him by the Constitution. In that case it seems

to me to be the clear duty of the President to dis

egard the law, so far at least as may be necessary

in order to bring the question of its constitutionality before

the Judicial Tribunals.

    Until the late rebellion a broad distinction

was always made between the oath of office required

of the President & the oath required of other officers.

That of the President is prescribed by the Constitution

itself: "I do solemnly swear that I will faithfully

execute the office of President of the United States & will

to the best of my ability preserve, protect and defend the

Constitution of the United States. That of other officers

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was prescribed by law--the first ever enacted under the Con-

stitution--& follows almost literally its direction "I do

solemnly swear that that I will support the Consti-

tution of the United States.3

    The Test oath Act of 1862 introduced for the

first time into the oath to be administered to other

officers than the President the word "defend" in addi-

tion to the word "support."4

    How can the President fulfil his oath to preserve,

protect & defend the Constitution, if he has no right

to defend it against an act of Congress sincerely

believed by him to have been passed in violation of it?

    To me therefore it seems perfectly clear

that the President had a perfect right & indeed

was under the highest obligation to remove Mr. Stanton,

if he made the removal, not in wanton disregard of

of a Constitutional law, but with a sincere belief

that the Tenure of Office Act was unconstitutional

& for the purpose of bringing the question of its

Constitutionality before the Supreme Court. Plainly

it was a proper & peaceful, if not the only

proper & peaceful mode of protecting & defending the

[page four-document]

the Constitution.

 I was greatly disappointed & grieved, therefore,

when the Senate, yesterday, excluded the evidence of the

Members of the Cabinet as to their consultations & decisions,

(in some of which Mr. Stanton took a concurring part,)

and the advice given by them to the President in pursuance

thereof.5 I could not conceive of evidence more proper

to be received or more appropriate to enlighten a

Court as to the intent with which the act was

done: and accordingly ruled that it was admissible.

 The vote, I fear, indicated a purpose which,

if carried into effect, will not satisfy the American

People, unless they are prepared to admit that Congress

is above the Constitution

    Have you looked at the questions, whether in the

event of conviction the President pro tempore of the Senate

is an "officer" who under the Constitution can "act as

President?" & whether if such an "officer" he must remain

such while acting as President? My own mind answers the

last question in the affirmative & inclines to a negative answer

to the first--

    It seems to me that you ought to give the public the

American view of these questions, if you can find time

to consider them.

                    Faithfully & affectionately your friend

                                      S P Chase

P.S. I suppose you have seen Mr. Tilton's "folded banner.6 He came to Washington

some ten days or two weeks ago & sought a conversation with me and

I talked freely with him. I dare say he thought that what I said warranted

the opinions he expressed. I do not: but if it did it was certainly an abuse

of hospitality to build & publish such conclusions on the basis of a private conversation.7<ed>

Source: Chase Papers, Library of Congress

1. Smith's recent publication, Has the Chief Justice a Casting Vote? (Peterboro, N.Y., 1868), cited evidence from the Constitution to answer its leading question in the affirmative.

2. Art. 1, sec. 3.

3. The president's oath is included in art. 2, sec. 1, of the U.S. Constitution. Congress mandated the oath for other officers in legislation of June 1, 1789. Statutes at Large, 1:23
4. The bill became law on July 2, 1862. Ibid., 12:502.

5. Chase elaborated on this point in correspondence of the same date to Alexander Long.

6. In "A Folded Banner," an editorial that appeared in the Independent of April 16, Theodore Tilton renounced his support for Chase as a presidential candidate. "We now have reason to believe that Mr. Chase would not accept the Republication nomination, even if it were tendered," wrote Tilton; "We have equal reason to believe, also, that he would accept the Democratic nomination, if it could be tendered on a platform not inconsistent with his well-known views of Negro suffrage." In Tilton's view, the Independent had "no right any longer to solicit the Republican party to unfurl at their head the banner of his name."

7. Chase explained himself at greater length in a letter to Tilton written on the same date.


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