Part 10

I would not keep out of sight any consideration which seems in any quarter to throw light on this claim; and therefore I take time to mention an analogy which has been invoked. The exceptional provision in the Constitution, under which the Vice-President has a casting vote on ordinary occasions, is taken from its place in another clause and applied to the Chief Justice. It is gravely argued that the Chief Justice is a substitute for the Vice-President, and, as the latter, by express grant, has a casting vote on ordinary occasions, therefore the Chief Justice has such when presiding on an impeachment. To this argument there are two obvious objections: first, there is no language giving a casting vote to the Chief Justice, and, in the absence of express grant, it is impossible to imply it in opposition to the prevailing rule of Parliamentary Law; and, secondly, it is by no means clear that the Vice-President has a casting vote, when called to preside on an impeachment. On ordinary occasions, in the business of the Senate, the grant is explicit; but it does not follow that this grant can be extended to embrace an impeachment, in face of positive provisions by which the power to _try_ and _vote_ is confined to _Senators_. According to the undoubted rule of interpretation, _Ut res magis valeat quam pereat_, the casting vote of the Vice-President must be subject to this curtailment. Therefore, if the Chief Justice is regarded as a substitute for the Vice-President, it will be only to find himself again within the same limitations.

* * * * *

I cannot bring this survey to an end without an expression of deep regret that I find myself constrained to differ from the Chief Justice. In faithful fellowship for long years, we have striven together for the establishment of Liberty and Equality as the fundamental law of this Republic. I know his fidelity, and revere his services; but not on this account can I hesitate the less, when I find him claiming in this Chamber an important power which, in my judgment, is three times denied in the National Constitution: first, when it is declared that the Senate alone shall _try_ impeachments; secondly, when it is declared that only _members_ shall convict; and, thirdly, when it is declared that the Chief Justice shall _preside_, and nothing more,--thus conferring upon him those powers only which by Parliamentary Law belong to a presiding officer not a member of the body. In the face of such a claim, so entirely without example, and of such possible consequences, I cannot be silent. Reluctantly and painfully I offer this respectful protest.

There is a familiar saying of jurisprudence, that it is the part of a good judge to amplify his jurisdiction: _Boni judicis est ampliare jurisdictionem_. This maxim, borrowed from the horn-books, was originally established for the sake of justice and humanity, that they might not fail; but it has never been extended to other exercises of authority. On the contrary, all accepted maxims are against such assumption in other cases. Never has it been said that it is the part of a good presiding officer to amplify his power; and there is at least one obvious reason: a presiding officer is only an _agent_, acting always in presence of his _principal_. Whatever the promptings of the present moment, such an amplification can find no sanction in the National Constitution, or in that Parliamentary Law from which there is no appeal.

Thus, which way soever we turn,--whether to the National Constitution, or to Parliamentary Law, as illustrated in England or the United States,--we are brought to conclude that the Chief Justice in the Senate Chamber is not in any respect Chief Justice, but only presiding officer; that he has no judicial powers, or, in other words, powers _to try_, but only the powers of a presiding officer not a member of the body. According to the injunction of the Constitution, he can _preside_, but this is all, unless other powers are superadded by concession of the Senate, subject always to the constitutional limitation that the Senate alone can _try_, and, therefore, alone can rule or vote on questions which enter into the trial. The function of a presiding officer may be narrow, but it must not be disparaged. For a succession of generations, great men in the law, Chancellors and Chief Justices, have not disdained to discharge it. Out of the long and famous list I mention one name of surpassing authority: Somers, the illustrious defender of constitutional liberty, unequalled in debate as in judgment, exercised this function without claiming other power. He was satisfied to preside. Such an example is not unworthy of us. If the present question could be determined by sentiments of personal regard, I should gladly say that our Chief Justice is needed to the Senate more than the Senate is needed to him. But the National Constitution, which has regulated the duties of all, leaves us no alternative. We are the Senate; he is the presiding officer,--although, whether in the Court Room or the Senate Chamber, he is always the most exalted servant of the law. This character he cannot lose by change of seat. As such he lends to this historic occasion the dignity of his presence and the authority of his example. Sitting in that Chair, he can do much to smooth the course of business, and to fill the Chamber with the spirit of justice. Under the rules of the Senate, he can become its organ,--but nothing more.

EXPULSION OF THE PRESIDENT.

OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, MAY 26, 1868.

I voted against the rule of the Senate allowing opinions to be filed in this proceeding, and regretted its adoption. With some hesitation I now take advantage of the opportunity, if not the invitation, it affords. Voting “Guilty” on all the articles, I feel that there is little need of explanation or apology. Such a vote is its own best defender. But I follow the example of others.

BATTLE WITH SLAVERY.

This is one of the last great battles with Slavery. Driven from these legislative chambers, driven from the field of war, this monstrous power has found refuge in the Executive Mansion, where, in utter disregard of Constitution and law, it seeks to exercise its ancient domineering sway. All this is very plain. Nobody can question it. Andrew Johnson is the impersonation of the tyrannical Slave Power. In him it lives again. He is lineal successor of John C. Calhoun and Jefferson Davis, and he gathers about him the same supporters. Original partisans of Slavery, North and South, habitual compromisers of great principles, maligners of the Declaration of Independence, politicians without heart, lawyers for whom a technicality is everything, and a promiscuous company who at every stage of the battle have set their faces against Equal Rights,--these are his allies. It is the old troop of Slavery, with a few recruits, ready as of old for violence, cunning in device, and heartless in quibble. With the President at their head, they are now intrenched in the Executive Mansion.

Not to dislodge them is to leave the country a prey to a most hateful tyranny. Especially is it to surrender the Unionists of the Rebel States to violence and bloodshed. Not a month, not a week, not a day should be lost. The safety of the Republic requires action at once. Innocent men must be rescued from sacrifice.

I would not in this judgment depart from the moderation proper to the occasion; but God forbid, that, when called to deal with so great an offender, I should affect a coldness I cannot feel! Slavery has been our worst enemy, assailing all, murdering our children, filling our homes with mourning, darkening the land with tragedy; and now it rears its crest anew, with Andrew Johnson as its representative. Through him it assumes once more to rule and impose its cruel law. The enormity of his conduct is aggravated by his barefaced treachery. He once declared himself the Moses of the colored race. Behold him now the Pharaoh! With such treachery in such a cause there can be no parley. Every sentiment, every conviction, every vow against Slavery must be directed against him. Pharaoh is at the bar of the Senate for judgment.

The formal accusation is founded on recent transgressions, enumerated in articles of impeachment; but it is wrong to suppose that this is the whole case. It is very wrong to try this impeachment merely on these articles. It is unpardonable to higgle over words and phrases, when, for more than two years, the tyrannical pretensions in evidence before the Senate have been manifest, as I shall show, in terrible, heart-rending consequences.

IMPEACHMENT A POLITICAL PROCEEDING.

Before entering upon the formal accusation instituted by the House of Representatives of the United States in their own name and in the name of all the people thereof, it is important to understand the nature of the proceeding. And here on the threshold we encounter the effort of the apologists seeking in every way to confound this great constitutional trial with an ordinary case at _Nisi Prius_, and to win for the criminal President an Old Bailey acquittal, where on some quibble the prisoner is allowed to go without day. From beginning to end this has been painfully apparent, thus degrading the trial and baffling justice. Point by point has been pressed, sometimes by counsel and sometimes even by Senators, leaving the substantial merits untouched, as if, on a solemn occasion involving the safety of the Republic, there could be any other question.

The first effort was to call the Senate, sitting for the trial of impeachment, a Court, and not a Senate. Ordinarily, names are of little consequence; but it cannot be doubted that this appellation has been made the starting-point for technicalities proverbial in courts. Constantly we have been reminded of what is called our judicial character, and of the supplementary oath we have taken, as if a Senator were not always under oath, and as if other things within the sphere of his duties were not equally judicial in character. Out of this plausible assumption has come that fine-spun thread which lawyers know so well how to weave.

The whole mystification disappears, when we look at the National Constitution, which in no way speaks of impeachment as judicial, and in no way speaks of the Senate as a court. On the contrary, it uses positive language inconsistent with this assumption and all its pretended consequences. On this head there can be no doubt.

By the National Constitution it is expressly provided that “_the judicial power_ of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish,”--thus positively excluding the Senate from any exercise of “the judicial power.” And yet this same Constitution provides that “the Senate shall have the sole power to try all impeachments.” In the face of these plain texts it is impossible not to conclude, that, in trying impeachments, Senators exercise a function which is not regarded by the National Constitution as “judicial,” or, in other words, as subject to the ordinary conditions of judicial power. Call it senatorial or political, it is a power by itself, and subject to its own conditions.

Nor can any adverse conclusion be drawn from the unauthorized designation of “court” which has been foisted into our proceedings. This term is very expansive, and sometimes very insignificant. In Europe it means the household of a prince. In Massachusetts it is still applied to the Legislature of the State, which is known as the General Court. If applied to the Senate, it must be interpreted by the National Constitution, and cannot be made in any respect a source of power or a constraint.

It is difficult to understand how this term, which plays such a part in present pretensions, obtained its vogue. It does not appear in English impeachments, although there is reason for it there which is not found here. From ancient times, Parliament, including both Houses, has been called a court, and the House of Lords is known as a court of appeal. The judgment on English impeachments embraces not merely removal from office, as under the National Constitution, but also punishment; and yet it does not appear that the Lords sitting on impeachments are called a court. They are not so called in any of the cases, from the first, in 1330, entitled simply, “Impeachment of Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806, entitled, “Trial of the Right Honorable Henry Lord Viscount Melville, before the Lords’ House of Parliament in Westminster Hall, for High Crimes and Misdemeanors whereof he was accused in certain Articles of Impeachment.” In the historic case of Lord Bacon, we find, at the first stage, this title, “Proceedings in Parliament against Francis Bacon Lord Verulam,” and, after the impeachment was presented, the simple title, “Proceedings in the House of Lords.” Had this simplicity been followed among us, there would have been one source of misunderstanding the less.

There is another provision of the National Constitution which testifies still further, and, if possible, more completely. It is the limitation of the judgment in cases of impeachment, making it political and nothing else. It is not punishment, but protection to the Republic. It is confined to removal from office and disqualification; but, as if aware that this was no punishment, the National Constitution further provides that this judgment shall be no impediment to indictment, trial, judgment, and punishment “according to law.” Thus again is the distinction declared between an impeachment and a proceeding “according to law.” The former, which is political, belongs to the Senate, which is a political body; the latter, which is judicial, belongs to the courts, which are judicial bodies. The Senate removes from office; the courts punish. I am not alone in drawing this distinction. It is well known to all who have studied the subject. Early in our history it was put forth by the distinguished Mr. Bayard, of Delaware, the father of Senators, in the case of Blount;[151] and it is adopted by no less an authority than our highest commentator, Judge Story, who was as much disposed as anybody to amplify the judicial power. In speaking of this text, he says that impeachment “is not so much designed to punish an offender as _to secure the State against gross official misdemeanors_; it touches neither his person nor his property, _but simply divests him of his political capacity_.”[152] All this seems forgotten by certain apologists on the present trial, who, assuming that impeachment was a proceeding “according to law,” have treated the Senate to the technicalities of the law, to say nothing of the law’s delay.

Discerning the true character of impeachment under the National Constitution, we are constrained to confess that it is a political proceeding before a political body with political purposes; that it is founded on political offences, proper for the consideration of a political body, and subject to a political judgment only. Even in cases of treason and bribery, the judgment is political, and nothing more. If I were to sum up in one word the object of impeachment under the National Constitution, meaning what it has especially in view, with its practical limitation, I should say _expulsion from office_. The present question is, Shall Andrew Johnson, on the case before the Senate, be expelled from office?

Expulsion from office is not unknown to our proceedings. By the National Constitution a Senator may be expelled with “the concurrence of two thirds,” precisely as a President may be expelled with “the concurrence of two thirds.” In each case the same exceptional vote of two thirds is required. Do not the two illustrate each other? From the nature of things, they are essentially similar in character,--except that on expulsion of the President the motion is made by the House of Representatives at the bar of the Senate, while on expulsion of a Senator the motion is made by a Senator. How can we require a technicality of proceeding in the one which is rejected in the other? If the Senate is a court, bound to judicial forms on the expulsion of the President, must it not be the same on the expulsion of a Senator? But nobody attributes to it any such strictness in the latter case. Numerous precedents attest how, in dealing with its own members, the Senate seeks substantial justice without reference to form. In the case of Blount, which is the first in our history, the expulsion was on the report of a committee, declaring him “guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator.”[153] At least one Senator has been expelled on simple motion.[154] Others have been expelled without any formal allegation or formal proof.

According to another provision of the National Constitution, overriding both cases, “each House may determine the rules of its proceedings.” The Senate, on the expulsion of its own members, has already done this, and set an example of simplicity. But it has the same power over its rules of proceeding on the expulsion of the President; and there can be no reason for simplicity in the one case not equally applicable in the other. Technicality is as little consonant with the one as with the other. Each has for its object the public safety. For this the Senator is expelled; for this, also, the President is expelled. _Salus populi suprema lex._ The proceedings in each case must be in subordination to this rule.

There is one formal difference, under the National Constitution, between the power to expel a Senator and the power to expel the President. The power to expel a Senator is unlimited in terms. The Senate may, “with the concurrence of two thirds, expel a member,” nothing being said of the offence; whereas the President can be expelled only for “treason, bribery, or _other high crimes and misdemeanors_.” A careful inquiry will show that under the latter words there is such a latitude as to leave little difference between the two cases. This brings us to the question of impeachable offences.

POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES.

So much depends on the right understanding of this proceeding, that, even at the risk of protracting the discussion, I cannot hesitate to consider this branch of the subject, although what I have already said may render it superfluous. What are impeachable offences has been much considered in this trial, and sometimes with very little appreciation of the question. Next to the mystification from calling the Senate a court has been that other mystification from not calling the transgressions of Andrew Johnson “impeachable offences.”

It is sometimes boldly argued that there can be no impeachment under the National Constitution, unless for an offence defined and made indictable by Act of Congress, and therefore Andrew Johnson must go free, unless it can be shown that he is such an offender. But this argument mistakes the Constitution, and also mistakes the whole theory of impeachment.

It mistakes the Constitution in attributing to it any such absurd limitation. The argument is this: Because in the National Constitution there are no Common-Law crimes, therefore there are no such crimes on which an impeachment can be maintained. But there are two answers: first, that the District of Columbia, where the President resides and exercises his functions, was once part of Maryland, where the Common Law prevailed; that, when it came under the national jurisdiction, it brought with it the whole body of the law of Maryland, including the Common Law; and that at this day the Common Law of crimes is still recognized here. But the second answer is stronger still. By the National Constitution, _expulsion from office_ is “on impeachment for and conviction of treason, bribery, _or other high crimes and misdemeanors_”; and this, according to another clause of the Constitution, is “the supreme law of the land.” Now, when a constitutional provision can be executed without superadded legislation, it is absurd to suppose that such legislation is necessary. Here the provision executes itself without reënactment; and as for definition of “treason” and “bribery” we resort to the Common Law, so for definition of “high crimes and misdemeanors” we resort to the Parliamentary Law and the instances of impeachment by which it is illustrated. Thus clearly the whole testimony of English history enters into this case with its authoritative law. From the earliest text-writer on this subject[155] we learn the undefined and expansive character of these offences; and these instances are in point now. Thus, where a Lord Chancellor has been thought to put the great seal to an ignominious treaty, a Lord Admiral to neglect the safeguard of the seas, an Ambassador to betray his trust, a Privy Councillor to propound dishonorable measures, a confidential adviser to obtain exorbitant grants or incompatible employments, or _where any magistrate has attempted to subvert the fundamental law or introduce arbitrary power_,--all these are high crimes and misdemeanors, according to these precedents, by which the National Constitution must be interpreted. How completely they cover the charges against Andrew Johnson, whether in the formal accusation or in the long antecedent transgressions to which I shall call attention as an essential part of the case, nobody can question.

Broad as this definition may seem, it is in harmony with the declared opinions of the best minds that have been turned in this direction. Of these none so great as Edmund Burke, who, as manager on the impeachment of Warren Hastings, excited the admiration of all by varied stores of knowledge and philosophy, illumined by the rarest eloquence, marking an epoch of British history. Thus spoke the greatest genius that has ever explained the character of impeachment:--

“It is by this tribunal that statesmen who abuse their power are tried before statesmen and by statesmen, upon solid principles of State morality. _It is here that those who by an abuse of power have polluted the spirit of all laws can never hope for the least protection from any of its forms._ It is here that those who have refused to conform themselves to the protection of law can never hope to escape through any of its defects.”[156]

The value of this testimony is not diminished because the orator spoke as manager. By professional license an advocate may state opinions not his own, but a manager cannot. Appearing for the House of Representatives and all the people, he speaks with the responsibility of a judge, so that his words may be cited hereafter. Here I but follow the claim of Mr. Fox.[157] Therefore the words of Burke are as authoritative as beautiful.

In different, but most sententious terms, Mr. Hallam, who is so great a light in constitutional history, thus exhibits the latitude of impeachment and its comprehensive grasp:--

“A minister is answerable for _the justice, the honesty, the utility of all measures_ emanating from the Crown, _as well as for their legality_; and thus the executive administration is, or ought to be, subordinate, in all great matters of policy, to the superintendence and virtual control of the two Houses of Parliament.”[158]

Thus, according to this excellent witness, even failure in justice, honesty, and utility, as well as in legality, may be the ground of impeachment; and the Administration should in all great matters of policy be subject to the two Houses of Parliament,--the House of Commons to impeach, and the House of Lords to try. Here again the case of Andrew Johnson is provided for.