Part 12

There are other rules, which it is not too late to profit by. One relates to the burden of proof, and is calculated to have a practical bearing. Another relates to matters of which the Senate will take cognizance without any special proof, thus importing into the case unquestionable evidence explaining and aggravating the transgressions charged.

1. Look carefully at the object of the trial. Primarily it is for the expulsion of the President from office. Its motive is not punishment, not vengeance, but the public safety. Nothing less could justify the ponderous proceeding. It will be for the criminal courts to award the punishment due to his offences. The Senate considers only how the safety of the people, which is the supreme law, can be best preserved; and to this end the ordinary rule of evidence is reversed. If on any point you entertain doubts, the benefit of those doubts must be given to your country; and this is the supreme law. When tried on indictment in the criminal courts, Andrew Johnson may justly claim the benefit of your doubts; but at the bar of the Senate, on the question of expulsion from office, his vindication must be in every respect and on each charge beyond a doubt. He must show that his longer continuance in office is not inconsistent with the public safety,--

“Or at least so prove it, That the probation bear no hinge nor loop To hang a doubt on.”

Anything short of this is to trifle with the Republic and its transcendent fortunes.

It is by insisting upon doubts that the apologists of the President, at the bar and in the Senate, seek to save him. For myself, I see none such; but assuming that they exist, then should they be marshalled for our country. This is not a criminal trial, where the rule prevails. Better the escape of many guilty than that one innocent should suffer. This rule, so proper in its place, is not applicable to a proceeding for expulsion from office; and who will undertake to say that any claim of office can be set against the public safety?

In this just rule of evidence I find little more than time-honored maxims of jurisprudence, requiring interpretation always in favor of Liberty. Early in the Common Law we were told that he is to be adjudged impious and cruel who does not favor Liberty: _Impius et crudelis judicandus est qui Libertati non favet_.[190] Blackstone, whose personal sympathies were with power, is constrained to confess that “the law is always ready to catch at anything in favor of Liberty.”[191] But Liberty and all else are contained in the public safety; they depend on the rescue of the country from a Presidential usurper. Therefore should we now, in the name of the law, “catch at anything” to save the Republic.

2. There is another rule of evidence, which, though of common acceptance in the courts, has peculiar value in this case, where it must exercise a decisive influence. It is this: Courts will take judicial cognizance of certain matters without any special proof on the trial. Some of these are of general knowledge, and others are within the special knowledge of the court. Among these, according to express decision, are the frame of government, and the public officers administering it; the accession of the Chief Executive; the sitting of Congress, and its usual course of proceeding; the customary course of travel; the ebbs and flows of the tide; _also whatever ought to be generally known within the limits of the jurisdiction, including the history of the country_. Besides these matters of general knowledge, a court will take notice of its own records, the conduct of its own officers, and whatever passes in its own presence or under its own eyes. For all this I cite no authority; it is superfluous. I add a single illustration from the great English commentator: “If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination.”[192]

If this be the rule of courts, _a fortiori_ it must be the rule of the Senate on impeachments; for we have seen, that, when sitting for this purpose, the Senate enjoys a latitude of its own. Its object is the Public Safety; and therefore no aid for the arrival at truth can be rejected, no gate can be closed. But here is a gate opened by the sages of the law, and standing open always, to the end that justice may not fail.

Applying this rule, it will be seen at once how it brings before the Senate, without any further evidence, a long catalogue of crime, affecting the character of the President beyond all possibility of defence, and serving to explain the later acts on which the impeachment is founded. It was in this Chamber, in the face of the Senate and the ministers of foreign powers, and surrounded by the gaze of thronged galleries, that Andrew Johnson exhibited himself in beastly intoxication while he took his oath of office as Vice-President; and all that he has done since is of record here. Much of it appears on our Journals. The rest is in authentic documents published by the order of the Senate. Never was record more complete.

Here in the Senate we know officially how he made himself the attorney of Slavery, the usurper of legislative power, the violator of law, the patron of rebels, the helping hand of rebellion, the kicker from office of good citizens, the open bung-hole of the Treasury, the architect of the “Whiskey Ring,” the stumbling-block to all good laws by wanton vetoes and then by criminal hindrances: all these things are known here beyond question. To the apologists of the President, who set up the quibbling objection that they are not alleged in the Articles of Impeachment, I reply, that, even if excluded on this account from judgment, they may be treated as evidence. They are the reservoir from which to draw, in determining the true character of the later acts for which the President is arraigned, and especially the _intent_ by which he was animated. If these latter were alone, without connection with transgressions of the past, they would have remained unnoticed, impeachment would not have been ordered. It is because they are a prolongation of that wickedness under which the country has so long suffered, and spring from the same bloody fountain, that they are now presented for judgment. They are not alone; nor can they be faithfully considered without drawing upon the past. The story of the god Thor in Scandinavian mythology is revived, whose drinking-horn could not be drained by the strongest quaffer, for it communicated with the vast and inexhaustible ocean. Andrew Johnson is our god Thor, and these latter acts for which he stands impeached are the drinking-horn whose depths are unfathomable.

OUTLINE OF TRANSGRESSIONS.

From this review, showing how this proceeding is political in character, before a political body, and with a political judgment, being expulsion from office and nothing more,--then how the transgressions of the President, in protracted line, are embraced under “impeachable offences,”--then how the form of procedure is liberated from ordinary technicalities of law,--and, lastly, how unquestionable rules of evidence open the gates to overwhelming testimony,--I pass to the consideration of the testimony, and how the present impeachment became a necessity. I have already called it one of the last great battles with Slavery. See now how the battle began.

Slavery in all its pretensions is a defiance of law; for it can have no law in its support. Whoso becomes its representative must act accordingly; and this is the transcendent crime of Andrew Johnson. For the sake of Slavery, and to uphold its original supporters in their endeavors to continue this wrong under another name, he has set at defiance the National Constitution and the laws of the land; and he has accompanied this unquestionable usurpation by brutalities and indecencies in office without precedent, unless we go back to the Roman emperor fiddling or the French monarch dancing among his minions. This usurpation, with its brutalities and indecencies, became manifest as long ago as the winter of 1866, when, being President, and bound by oath of office to preserve, protect, and defend the Constitution, and to take care that the laws are faithfully executed, he assumed legislative powers in the reconstruction of the Rebel States, and, in carrying forward this usurpation, nullified an Act of Congress, intended as the corner-stone of Reconstruction, by virtue of which Rebels are excluded from office under the National Government, and thereafter, in vindication of this misconduct, uttered a scandalous speech, in which he openly charged members of Congress with being assassins, and mentioned some by name. Plainly he should have been impeached and expelled at that early day. The case against him was complete. That great patriot of English history, Lord Somers, has likened impeachment to Goliath’s sword hanging in the Temple, to be taken down only when occasion required;[193] but if ever there was occasion for its promptest vengeance, it was then. Had there been no failure at that time, we should be now by two years nearer to restoration of all kinds, whether political or financial. So strong is my conviction of the fatal remissness of the impeaching body, that I think the Senate would do a duty in strict harmony with its constitutional place in the Government, and the analogies of judicial tribunals so often adduced, if it reprimanded the House of Representatives for this delay. Of course the Senate could not originate impeachment. It could not take down the sword of Goliath. It must wait on the House, as the court waits on the grand jury. But this waiting has cost the country more than can be told.

Meanwhile the President proceeded in transgression. There is nothing of usurpation he has not attempted. Beginning with assumption of all power in the Rebel States, he has shrunk from nothing in maintenance of this unparalleled assumption. This is a plain statement of fact. Timid at first, he grew bolder and bolder. He saw too well that his attempt to substitute himself for Congress in the work of Reconstruction was sheer usurpation, and therefore, by his Secretary of State, did not hesitate to announce that “it must be distinctly understood that the restoration will be _subject to the decision of Congress_.”[194] On two separate occasions, in July and September, 1865, he confessed the power of Congress over the subject; but when Congress came together in December, the confessor of Congressional power found that he alone had this great prerogative. According to his new-fangled theory, Congress had nothing to do but admit the States with governments instituted through his will alone. It is difficult to measure the vastness of this usurpation, involving as it did a general nullification. Strafford was not bolder, when, speaking for Charles the First, he boasted that “the King’s little finger was heavier than the loins of the Law”;[195] but these words helped the proud minister to the scaffold. No monarch, no despot, no sultan, could claim more than an American President; for he claimed all. By his edict alone governments were organized, taxes levied, and even the franchises of the citizen determined.

Had this assumption of power been incidental, for the exigency of the moment, as under pressure of war, and especially to serve human rights, to which before his elevation the President had professed such vociferous devotion, it might have been pardoned. It would have passed into the chapter of unauthorized acts which a patriot people had condoned. But it was the opposite in every particular. Beginning and continuing in usurpation, it was hateful beyond pardon, because it sacrificed Unionists, white and black, and was in the interest of the Rebellion, and of Rebels who had been in arms against their country.

More than one person was appointed provisional governor who could not take the oath of office required by Act of Congress. Other persons in the same predicament were appointed in the revenue service. The effect of these appointments was disastrous. They were in the nature of notice to Rebels everywhere, that participation in the Rebellion was no bar to office. If one of their number could be appointed governor, if another could be appointed to a confidential position in the Treasury Department, there was nobody on the long list of blood who might not look for preferment. And thus all offices, from governor to constable, were handed over to disloyal scramble. Rebels crawled forth from their retreats. Men who had hardly ventured to expect life were candidates for office, and the Rebellion became strong again. The change was felt in all gradations of government, in States, counties, towns, and villages. Rebels found themselves in places of trust, while true-hearted Unionists, who had watched the coming of our flag and should have enjoyed its protecting power, were driven into hiding-places. All this was under the auspices of Andrew Johnson. It was he who animated the wicked crew. He was at the head of the work. Loyalty was persecuted. White and black, whose only offence was that they had been true to country, were insulted, abused, murdered. There was no safety for the loyal man except within the flash of our bayonets. The story is as authentic as hideous. More than two thousand murders have been reported in Texas alone since the surrender of Kirby Smith. In other States there was like carnival. Property, person, life, were all in jeopardy. Acts were done to “make a holiday in Hell.” At New Orleans was a fearful massacre, worse, considering the age and place, than that of St. Bartholomew, which darkens a century of France, or that of Glencoe, which has printed an ineffaceable stain upon one of the greatest reigns of English history. All this is directly traced to Andrew Johnson. The words of bitterness uttered at another time are justified, while Fire, Famine, and Slaughter shriek forth,--

“He let me loose, and cried, Halloo! To him alone the praise is due.”[196]

ACCUMULATION OF IMPEACHABLE OFFENCES.

This is nothing but the outline, derived from historic sources _which the Senate on this occasion is bound to recognize_. Other acts fall within the picture. The officers he appointed in defiance of law were paid also in the same defiance. Millions of property were turned over without consideration to railroad companies, whose special recommendation was participation in the Rebellion. The Freedmen’s Bureau, that sacred charity of the Republic, was despoiled of its possessions for the sake of Rebels, to whom their forfeited estates were given back after they had been vested by law in the United States. The proceeds of captured and abandoned property, lodged under law in the National Treasury, were ravished from their place of deposit and sacrificed. Rebels were allowed to fill the antechambers of the Executive Mansion and to enter into the counsels. The pardoning power was prostituted, and pardons were issued in lots to suit Rebels, thus grossly abusing that trust whose discreet exercise is so essential to the administration of justice. The powers of the Senate over appointments were trifled with and disregarded by reappointing persons already rejected, and by refusing to communicate the names of others appointed during the recess. The veto power, conferred by the National Constitution as a remedy for ill-considered legislation, was turned by him into a weapon of offence against Congress, and into an instrument to beat down the just opposition which his usurpation had aroused. The power of removal, so sparingly exercised by patriot Presidents, was seized as an engine of tyranny, and openly employed to maintain his wicked purposes, by the sacrifice of good citizens who would not be his tools. Incompetent and dishonest creatures, recommended only by their echoes to his voice, were appointed to office, especially in the collection of the internal revenue, through whom a new organization, known as the “Whiskey Ring,” has been able to prevail over the Government, and to rob the Treasury of millions, at the cost of tax-paying citizens, whose burdens are thus increased. Laws enacted by Congress for the benefit of the colored race, including that great statute for the establishment of the Freedmen’s Bureau, and that other great statute for the establishment of Civil Rights, were first attacked by Presidential veto, and, when finally passed by requisite majority over the veto, were treated by him as little better than dead letter, while he boldly attempted to arrest a Constitutional Amendment by which the rights of citizens and the national debt were placed under the guaranty of irrepealable law. During these successive assumptions, usurpations, and tyrannies, utterly without precedent in our history, this deeply guilty man ventured upon public speeches, each an offence to good morals, where, lost to all shame, he appealed in coarse words to the coarse passions of the coarsest people, scattering firebrands of sedition, inflaming anew the rebel spirit, insulting good citizens, and, with regard to office-holders, announcing, in his own characteristic phrase, that he would “kick them out,”--the whole succession of speeches being, from their brutalities and indecencies, in the nature of a “criminal exposure of his person,” indictable at Common Law, for which no judgment can be too severe. Even this revolting transgression has additional aggravation, when it is considered, that, through these utterances, the cause of justice was imperilled, and the accursed demon of civil feud lashed again into vengeful fury.

All these things, from beginning to end, are plain facts, recorded in our annals, and known to all. And it is further recorded in our annals and known to all, that, through these enormities,--any one of which is ample for condemnation, while all together present an aggregation of crime,--untold calamities have been brought upon our country, disturbing business and finance, diminishing the national revenues, postponing specie payments, dishonoring the Declaration of Independence in its grandest truths, arresting the restoration of the Rebel States, reviving the dying Rebellion, and, instead of that peace and reconciliation so much longed for, sowing strife and wrong, whose natural fruit is violence and blood.

OPEN DEFIANCE OF CONGRESS.

For all these, or any one of them, Andrew Johnson should have been impeached and expelled from office. The case required a statement only, not an argument. Unhappily this was not done. As a petty substitute for the judgment which should have been pronounced, and as a bridle on Presidential tyranny in “kicking out of office,” Congress enacted a law known as the Tenure-of-Office Act, passed March 2, 1867, over his veto, by two thirds of both Houses.[197] And to prepare the way for impeachment, by removing scruples of technicality, its violation was expressly declared a high misdemeanor.

The President began at once to chafe under its restraint. Recognizing the Act, and following its terms, he first suspended Mr. Stanton from office, and then, in anticipation of his restoration by the Senate, made the attempt to win General Grant into surrender of the department, so as to oust Mr. Stanton and render restoration by the Senate ineffectual. Meanwhile Sheridan in Louisiana, Pope in Alabama, and Sickles in South Carolina, who, as military commanders, were carrying into the pacification of these States the energies so brilliantly displayed in the war, were pursued by the same vindictive spirit. They were removed by the President, and Rebellion throughout that whole region clapped its hands. This was done in the exercise of his power as Commander-in-Chief. At last, in unappeased rage, he openly violated the Tenure-of-Office Act, so as to bring himself under its judgment, by defiant attempt to remove Mr. Stanton from the War Department without the consent of the Senate, and the appointment of Lorenzo Thomas, Adjutant-General of the United States, as Secretary of War _ad interim_.

IMPEACHMENT AT LAST.

The Grand Inquest of the nation, after sleeping on so many enormities, was awakened by this open defiance. The gauntlet was flung into its very chamber, and there it lay on the floor. The President, who had already claimed everything for the Executive with impunity, now rushed into conflict with Congress on the very ground selected in advance by the latter. The field was narrow, but sufficient. There was but one thing for the House of Representatives to do. Andrew Johnson must be impeached, or the Tenure-of-Office Act would become a dead letter, while his tyranny would receive a letter of license, and impeachment as a remedy for wrong-doing would be blotted from the Constitution.

Accordingly it was resolved that the offender, whose crimes had so long escaped judgment, should be impeached. Once entered upon this work, the House of Representatives, after setting forth the removal of Mr. Stanton and the appointment of General Thomas in violation of law and Constitution, proceeded further to charge him in different forms with conspiracy wrongfully to obtain possession of the War Department; also with attempt to corrupt General Emory, and induce him to violate an Act of Congress; also with scandalous speeches, such as no President could be justified in making; concluding with a general Article setting forth attempts on his part to prevent the execution of certain Acts of Congress.

Such is a simple narrative, which brings us to the Articles of Impeachment. Nothing I have said thus far is superfluous; for it shows the origin of this proceeding, and illustrates its moving cause. The Articles themselves are narrow, if not technical; but they are filled and broadened by the transgressions of the past, all of which enter into the present offences. The whole is an unbroken series, with a common life. As well separate the Siamese twins as separate the offences charged from that succession of antecedent crimes with which they are linked, any one of which is enough for judgment. The present springs from the past, and can be truly seen only in its light, which, in this case, is nothing less than “darkness visible.”

ARTICLES OF IMPEACHMENT.

In entering upon the discussion of the Articles of Impeachment, I confess my regret that so great a cause, on which so much depends, should be presented on such narrow ground, although I cannot doubt that the whole past must be taken into consideration in determining the character of the acts alleged. If there has been a violation of law and Constitution, the apologists of the President then insist that all was done with good intentions. Here it is enough, if we point to the past, which thus becomes part of the case. But of this hereafter. It is unnecessary for me to take time in setting forth the Articles. The abstract is enough. They will naturally come under review before the close of the inquiry.

Of the transactions embraced by the Articles, the removal of Mr. Stanton has unquestionably attracted most attention, although I cannot doubt that the scandalous harangues are as justly worthy of condemnation. But the former has been made the pivot of the impeachment,--so much so that the whole case seems to revolve on this transaction. Therefore I shall not err, if, following the Articles, I put this foremost.

This transaction may be brought to the touchstone of the National Constitution, and also of the Tenure-of-Office Act. But since the allegation of violation of this Act has been so conspicuous, and this Act may be regarded as a Congressional interpretation of the power of removals under the National Constitution, I begin with the questions arising under it.

TENURE-OF-OFFICE ACT.