Part 14

Look now at the actual facts, and you will see how little they come within the reason of an _ad interim_ appointment. Evidently the President had resolved to remove Mr. Stanton last summer. Months elapsed, leaving his purpose without consummation till February. All the intervening time was his to select a successor, being a period longer than the longest fixed for the duration of an _ad interim_ appointment by the very statutes under which he professed to act. In conversation with General Sherman, a month before the removal, he showed that he was then looking for a successor _ad interim_. Why not a permanent successor? It took him only a day to find Mr. Ewing. If, as there is reason to suppose, Mr. Ewing was already selected when Adjutant-General Thomas was pushed forward, why appoint the latter at all? Why not, in the usual way, transmit Mr. Ewing’s name as the successor? For the excellent reason, that the offender knew the Senate would not confirm him, and that therefore Mr. Stanton would remain in office; whereas through an _ad interim_ appointment he might obtain possession of the War Department, which was his end and aim. The _ad interim_ appointment of General Thomas was, therefore, an attempt to obtain possession of an office without the consent of the Senate, precisely because the offender knew that he could not obtain that consent. And all this was under pretext of an Act of Congress alike in letter and spirit inapplicable to the case.

Thus does it appear, that, while Mr. Stanton was removed in violation of the Tenure-of-Office Act, Adjutant-General Thomas was appointed Secretary of War _ad interim_ in equal derogation of the Acts of Congress regulating the subject.

REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION OF THE CONSTITUTION.

It remains to consider if the removal and substitution were not each in violation of the National Constitution. The case is new, for never until now could it arise. Assuming that the Tenure-of-Office Act does not protect Mr. Stanton, who is thus left afloat in the limbo between the body of the Act and the proviso, then the President is remitted to his prerogative under the National Constitution, and he must be judged accordingly, independently of statute. Finding the power of removal there, he may be justified; but not finding it there, he must bear the consequences. And here the Tenure-of-Office Act furnishes a living and practical construction of the National Constitution from which there is no appeal.

From the Constitution it appears that the power of appointment is vested in the President and Senate conjointly, and that nothing is said of the power of removal, except in case of impeachment, when it is made by the Senate. Therefore the power of removal is not express, but implied only, and must exist, if at all, as a necessary consequence of the power to appoint. But in whom? According to a familiar rule, the power which makes can unmake. Unless this rule be rejected, the power of removal must exist in the President and Senate conjointly; nor is there anything unreasonable in this conclusion. Removal can always be effected during the session of the Senate by the nomination and confirmation of a successor, while provision can be made for the recess by an Act of Congress. This conclusion would be irresistible, were the Senate always in session; but since it is not, and since cases may arise during the recess requiring the immediate exercise of this power, it has been argued that at least during the recess it must be in the President alone. From this position there has been a jump to the next, and it has been insisted, that, since, for the sake of public convenience, the power of removal exists in the President, he is at liberty to exercise it either during the recess or the session itself. Here is an obvious extension of the conclusion, which the premises do not warrant. The reason failing, the conclusion must fail. _Cessante ratione legis, cessat ipsa lex._ Especially must this be the case under the National Constitution. A power founded on implied necessity must fail when the necessity does not exist. The implication cannot be carried beyond the reason. Therefore the power of removal during the recess, doubtful at best, unless sanctioned by Act of Congress, cannot be extended to justify the exercise of that power while the Senate is in session, ready to act conjointly with the President.

Against this natural conclusion, we have the assumption that a contrary construction of the National Constitution was established after debate in 1789. I avoid all details with regard to this debate, cited and considered so often. I content myself by asking if at best it was anything but a Congressional construction of the National Constitution, and, as such, subject to be set aside by another voice from the same quarter. It was, moreover, a Congressional construction adopted during the administration of Washington, whose personal character must have influenced opinion largely; and it prevailed in the House of Representatives only after earnest debate by a majority of twelve, and in the Senate only by the casting vote of the Vice-President, John Adams, who, from position as well as principle, was not inclined to shear the President of any prerogative. Once adopted, and no strong necessity for a change occurring, it was allowed to go unaltered, but not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, Calhoun, and Benton, recorded themselves adversely, and it was twice reversed by vote of the Senate. This was in 1835 and again in 1836, when a bill passed the Senate, introduced by Mr. Calhoun and sustained by the ablest statesmen of the time, practically denying the power of the President.[204] The Tenure-of-Office Act was heralded in 1863 by a statute making the Comptroller of the Currency removable “by and with the advice and consent of the Senate,”[205]--thus, in this individual case, asserting for the Senate a check on the President; and then in 1866, by a more important measure, being the provision in the Army Appropriation Act,[206] that “no officer in the military or naval service shall in time of peace be dismissed from service, except upon and in pursuance of the sentence of a court-martial,”--thus putting another check on the President. Finally, this Congressional construction, born of a casting vote, and questioned ever since, has been overruled by another Congressional construction, twice adopted in both Houses, first by large majorities on the original passage of the Tenure-of-Office Act, and then by a vote of two thirds on the final passage of the same Act over the veto of the President,--and then again adopted by more than two thirds of the Senate, when the latter condemned the removal of Mr. Stanton: and all this in the light of experience, after ample debate, and with all the consequences before them. Such a Congressional construction must have a controlling influence, and the fact that it reversed the practice of eighty years and overcame the disposition to stand on the ancient ways would seem to increase rather than diminish its weight.

Now mark the consequences. Originally, in 1789, there was a Congressional construction which in effect made the National Constitution read,--

“The President _shall have_ the power of removal.”

For the next eighty years all removals were made under this construction. The Tenure-of-Office Act was a new Congressional construction, overruling the first, and entitled to equal, if not superior weight. By virtue of this Congressional construction the National Constitution now reads,--

“The President _shall not have_ the power of removal.”

It follows, then, that in removing Mr. Stanton the President violated the National Constitution as now construed.

The dilemma is this: If the President can remove Mr. Stanton during the session of the Senate, without any power by statute, it is only by virtue of a prerogative vested in him by the National Constitution, which must necessarily override the Tenure-of-Office Act, as an unconstitutional effort to abridge it. If, on the other hand, this Act is constitutional, the prerogative of removal is not in the President, and he violated the National Constitution when he assumed to exercise it.

The Tenure-of-Office Act cannot be treated otherwise than as constitutional,--certainly not in the Senate, where some among the apologists of the President voted for it. Therefore the prerogative of removal is not in the President. The long practice which grew up under a mere reading of the National Constitution has been declared erroneous. To this extent the National Constitution has been amended, and it is as absurd to plead the practice under the first reading, in order to justify an offence under the second, as to plead the existence of Slavery before the Constitutional Amendment, in order to justify this monstrosity now.

Thus must we conclude that the offender has violated not only the Tenure-of-Office Act, but also the National Constitution; that, even assuming Mr. Stanton unprotected by the statute, the case is not ended; that this statute, if construed so as to exclude him, cannot be rejected as a Congressional construction of the National Constitution; and that, under this Congressional construction, which in value is second only to a Constitutional Amendment, the prerogative of removal without the consent of the Senate does not belong to the President. Of course the power of suspension under the National Constitution, which is only an incident of the larger pretension, must fall also. Therefore, in the defiant removal of Mr. Stanton, and also in the pretended suspension under the National Constitution with which the transaction began, the President violated the Constitution, and was guilty of an impeachable offence.

And so, too, we must conclude, that, in the substitution of Lorenzo Thomas as Secretary of War _ad interim_, the offender violated not only the Acts of Congress for the supply of vacancies, but also the National Constitution. Knowing that he could not obtain possession of the office with the consent of the Senate, he sought to accomplish this purpose without that consent. Thus, under color of a statute, he practically set the National Constitution at defiance. Mark here the inconsistency. He violates the Tenure-of-Office Act, alleging that it is against the National Constitution, whose champion he professes to be, and then takes advantage of the Acts of Congress for the supply of vacancies to set aside this Constitution in one of its most important requirements; for all which he is justly charged with an impeachable offence.

All this seems clear. Any other conclusion gives to the President the power under the National Constitution to vacate all national offices, and leaves the Republic the wretched victim of tyranny, with a ruler who is not even a constitutional monarch, but a king above all laws. It was solemnly alleged in the Charge against Charles the First of England, that, “being admitted King of England, and therein trusted with a limited power _to govern by and according to the laws of the land, and_ NOT OTHERWISE,” he nevertheless undertook “_to rule according to his will_, and to overthrow the rights and liberties of the people.”[207] These very words now declare the crime of Andrew Johnson.

THE APOLOGIES.

Here I might close; but the offender has found apologists, who plead his cause at the bar and in the Senate. The apologies are a strange compound, enlarging rather than diminishing the offences proved. There is, first, the Apology of Good Intentions; next, the Apology of making a case for the Supreme Court, being the Moot-Court Apology; and then, the Apology that the President may sit in judgment on the laws, and determine whether they shall be executed, which I call the Apology of Prerogative. Following these is a swarm of technicalities, devices, and quibbles, utterly unworthy of the Senate, and to be reprobated by all who love justice.

THE APOLOGY OF GOOD INTENTIONS.

I begin with the Apology of Good Intentions. In the light of all that has occurred, with the volume of history open before us, with the records of the Senate in our hands, and with the evidence at the bar not utterly forgotten, it is inconceivable that such an apology can be put forward. While making it, the apologists should be veiled, so that the derisive smile on their faces may not be observed by the Senate, to whose simplicity it is addressed. It is hard to treat this apology; but it belongs to the case, and therefore I deal with it.

A mere technical violation of law, with no evil consequences, and without any claim of title, is followed by nominal damages only. If a person, without permission, steps on a field of grass belonging to another, he is a trespasser, and the law furnishes a familiar proceeding against him; but if he has done this accidentally, and without any real damage, it would be hard to pursue him, unless assertion of the title were thought important. But if the trespasser is an old offender, who from the beginning has broken fences, ruined trees, and trampled down the garden, and now defiantly comes upon the field of grass, insisting upon absolute ownership, then it is vain to set up the apology that very little damage is done. The antecedent transgressions, ending in claim of title, enter into the present trespass, and make it a question whether the rightful owner or the trespasser shall hold possession. Here the rightful owner is the people of the United States, and the trespasser is Andrew Johnson. Therefore in the name of the people is he impeached.

This simple illustration opens the whole case. Mere technical violation of statute or of Constitution, without antecedents and without consequents, would not justify impeachment. All of us can recall such, even in the administration of Abraham Lincoln; and I cannot doubt, that, since this proceeding began, the Chief Justice violated the National Constitution when he undertook to give a casting vote, not being a member of the Senate. These were accidents, besides being innocuous. From violation of statute or of Constitution the law ordinarily infers evil intent, and, where such a case is submitted to judgment, it throws upon the violator the burden of exculpation. He must show that his conduct was innocent,--in other words, that it was without evil intent, or claim of title. In the present cause we have the denial of evil intent, with a claim of title.

The question of intent raised by the offender cannot be considered narrowly. This is a trial of impeachment, and not a criminal case in a county court. It is a proceeding for expulsion from office on account of political offences, and not a suit at law. When the offender sets up good intentions, he challenges inquisition, according to the latitude of such proceeding. The whole past is unrolled by himself, and he cannot prevent the Senate from seeing it. By a commanding rule of evidence it is all before us without further proof. You cannot shut it out; you cannot refuse to look at it. And yet we have been seriously told that we must shut out from sight everything but the technical trespass. It only remains, that, imitating the ostrich, we should thrust our heads into the sand, and, not seeing danger, foolishly imagine it does not exist. This may do at _Nisi Prius_; it will not do in the Senate.

To such extent has this ostrich pretension been carried, that we were solemnly admonished at the bar, and the paradox has found voice in the Senate, that we must judge the acts of Andrew Johnson “as if committed by George Washington.” Here is the paradox in length and breadth. I deny it. I scout it. On the contrary, I say that we must judge all these acts as if committed by Andrew Johnson, and nobody else. In other words, we must see things as they are. As well insist that an act of guilt should be judged as the mistake of innocence. As well argue that the stab of the assassin should be treated as the cut of the surgeon.

To the Apology of Good Intentions I oppose all that long unbroken series of transgressions, each with a voice to drown every pretext of innocence. I would not repeat what I have already said, but, in presence of this apology, it is my duty to remind the Senate how the career of this offender is compounded of falsehood and usurpation; how, beginning with promises to make treason odious, he soon installed it in authority; how, from declared sympathy with Unionists, white and black, he changed to be their persecutor; how in him are continued the worst elements of Slavery, an insensibility to right and a passion for power; how, in this spirit, he usurped great prerogatives not belonging to him; how, in the maintenance of this usurpation, he stuck at nothing; how he violated law; how he abused the pardoning power; how he prostituted the appointing power; how he wielded the power of removal to maintain his tyranny; how he sacrificed the Freedmen’s Bureau, and lifted up the Whiskey Ring; how he patronized massacre and bloodshed, and gave a license to the Ku-Klux-Klan; how, in madness, he entered into conflict with Congress, contesting its rightful power over the reconstruction of the Rebel States, and, when Congress would not succumb to his usurpation, how he thwarted and vilified it, expectorating foul-mouthed utterances which are a disgrace to human nature; how he so far triumphed in his wickedness that in nine States no Union man is safe and no murderer of a Union man can be punished; and, lastly,--for time fails, though not the long list of transgressions,--how he conspired against the patriot Secretary of War, because he found in that adamantine character an obstacle to his revolutionary career. And now, in the face of this terrible and indisputable record, entering into and filling this impeachment, I hear a voice saying that we must judge the acts in question “as if committed by George Washington.” The statement of this pretension is enough. I hand it over to the contempt it deserves.

THE MOOT-COURT APOLOGY.

Kindred to the Apology of Good Intentions, or, perhaps, a rib out of its side, is the Moot-Court Apology, which pretends that the President, in removing Mr. Stanton, only wished to make a case for the Supreme Court, and thus submit to this tribunal the constitutionality of the Tenure-of-Office Act.

By this pretension the Supreme Court is converted into a moot-court to sit in judgment on Acts of Congress, and the President becomes what, in the time of Charles the Second, Lord Keeper Guilford said a good lawyer must be, “a put-case.”[208] Even assuming, against evidence, that such was his purpose, it is hard to treat it without reprobation. The Supreme Court is not arbiter of Acts of Congress. If this pretension ever found favor, it was from the partisans of Slavery and State Rights, who, assured of the sympathy of the Court, sought in this way to complete an unjust triumph. The power claimed is tribunitial in character, being nothing less than a veto. Its nearest parallel in history is in the ancient Justicia of Aragon, who could set aside even royal ordinances as unconstitutional. The National Constitution leaves no doubt as to the proper functions of the Supreme Court. It may hear and determine “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority”; but this is all. Its business is to decide “cases,”--not to sit in judgment on Acts of Congress and issue its tribunitial veto. If a “case” arises where a statute is said to clash with the National Constitution, it must be decided as any other case of conflict of laws. But nothing within the just powers of the Court can touch an Act of Congress, except incidentally, and then its judgment is binding only on the parties. The incidental reason assigned--as, for instance, that a statute is unconstitutional--does not bind anybody, not even the parties or the Court itself. Of course such incidental reason cannot bind Congress.

On the evidence it is clear enough that the President had no honest purpose to make a case for the Supreme Court. He may have talked about it, but he was never in earnest. When asked by General Sherman “why lawyers could not make a case,” he said, in reply, “that it was found impossible, or a case could not be made up.” And so at each stage we find him practically discarding the idea. He issues the order of removal. Mr. Stanton disobeys. Here was exactly his opportunity. Instead of making the case by commencing the proper process, he tells Adjutant-General Thomas to “go on and take possession of the office”; and then, putting an end to this whole pretension of a case for the Court, he proceeds to treat the latter in every respect, whether of law or fact, as Secretary, welcomes him to his Cabinet, invites him to present the business of his Department, and, so far from taking advantage of the opportunity he had professed to desire, denies its existence. How could he inquire by what authority Mr. Stanton assumed to hold the office of Secretary of War, when he denied, in fact, that he was holding it?

Look a little further, and the reason of this indifference becomes apparent. The old writ of _Quo Warranto_ was the only process by which a case could be made, and this only at the suit of the Attorney-General. Had the President made an order of removal, the Secretary would have been compelled to hold only by virtue of the law and the Constitution. In answer to the writ he would have pleaded this protection, and the Court must have decided the validity of the plea. Meanwhile he would have remained in office. Had he left, the process would have failed, and there was none other by which he could raise the question. The decision of the Supreme Court in _Wallace_ v. _Anderson_[209] would prevent resort to a _Quo Warranto_ on his part, while the earlier case of _Marbury_ v. _Madison_[210] would shut him out from a _Mandamus_. The apologists have not suggested any other remedy. It is clear, therefore, that Mr. Stanton’s possession of the office was a _sine qua non_ to a case in the Supreme Court, and that this could be only by _Quo Warranto_. The local attorney employed by the President testifies that in such a case judgment could not be reached within a year. This was enough to render it impracticable; for, if commenced, it would leave the hated Secretary at his post for the remainder of the Presidential term. During the pendency of the proceeding Mr. Stanton would continue legitimate possessor of the office. Therefore the commencement of a case would defeat the Presidential passion for instant removal. True to his passion, he removed the Secretary, well knowing that in this way he prevented a case for the Court.

Against this conclusion, where all the testimony is harmonized, we have certain fruitless conversations with his Cabinet, and an attempt to raise the question on _Habeas Corpus_ after the arrest of Adjutant-General Thomas. Conversations, whose exclusion has given a handle to the apologists, which they do not fail to use, only show that the President made this question a subject of talk, and that, in the end, it became apparent that he could not make a case so as to remove Mr. Stanton during his term, and as this was his darling object, the whole idea was abandoned. The arrest of Adjutant-General Thomas seemed for a moment to furnish another chance; but it is enough to say of the futile attempt at that time, that it was not only after the removal of Mr. Stanton, but after impeachment had been voted by the House.

Had the President been in earnest, it was very easy for him to make a case by proceeding against a simple postmaster; but this did not suit him. He was in earnest only to remove Mr. Stanton.