Part 16

Then come what are called the Conspiracy Articles. Here also I am clear. Plainly there was an agreement between the President and Adjutant-General Thomas to obtain possession of the War Department, and prevent Mr. Stanton from continuing in office, and this embraced control of the mails and property belonging to the Department, all of which was contrary to the Tenure-of-Office Act. Intimidation and threats were certainly used by one of the conspirators, and in the case of conspiracy the acts of one are the acts of all. The evidence that force was intended is considerable, and all this must be interpreted by the general character of the offender, his menacing speeches, and the long series of transgressions preceding the conspiracy. I cannot doubt that the conspiracy was to obtain possession of the War Department, peaceably, if possible, forcibly, if necessary. As such it was violation of law, demanding the judgment of the Senate. This disposes of the fourth, fifth, sixth, and seventh Articles.

The eighth Article charges that Adjutant-General Thomas was appointed to obtain the control of moneys appropriated for the military service and the Department of War. All this would be incident to the control of the War Department. Controlling the latter, he would be able to wield the former. The evidence applicable to the one is also applicable to the other.

The ninth Article opens a different question. This charges a wicked purpose to corrupt General Emory and draw him from his military duty. Not much passed between the President and the General; but it was enough to show the President playing the part of Iago. There was hypocritical profession of regard for the Constitution, while betraying it. Here again his past character explains his purpose beyond reasonable doubt.

Then come the scandalous speeches, proved as set forth in the Articles, so that even the Senator from West Virginia [Mr. VAN WINKLE] must admit that evidence and pleading concur. Here is no question of form. To my mind this is one of the strongest Articles. On this alone, without anything else, I should deem it my duty to vote for expulsion from office. A young lieutenant, at the bottom of the ladder, if guilty of such things, would be cashiered promptly. A President, at the top of the ladder, with less excuse from the inexperience of early life, and with greater responsibility from the elevation he had reached, should be cashiered promptly also; and this is the object of impeachment. No person capable of such speeches should be allowed to govern this country. It is absurd to tolerate the idea. Besides being degraded, the country cannot be safe in such hands. The speeches are a revelation of himself, not materially different from well-known incidents; but they serve to exhibit him in his true character. They show him unfit for official trust. They were the utterances of a drunken man; and yet it does not appear that he was drunk. Now it is according to precedents of our history that a person disqualified by drunkenness shall be removed from office. This was the case of Pickering in 1804. But a sober man, whose conduct suggests drunkenness, is as bad at least as if he were drunk. Is he not worse? If without the explanation of drunkenness he makes such harangues, I cannot doubt that his unfitness for office becomes more evident, inasmuch as his deplorable condition is natural, and not abnormal. The drunken man has lucid intervals; but where is the assurance of a lucid interval for this perpetual offender? Derangement is with him the normal condition.

It is astonishing to find that these infamous utterances, where ribaldry vies with blasphemy, have received a coat of varnish from the Senator from Maine [Mr. FESSENDEN], who pleads that they were not “official,” nor did they “violate the Constitution, or any provision of the Statute or Common Law, either in letter or spirit.” In presence of such apologies for revolting indecencies it is hard to preserve proper calmness. Were they not uttered? This is enough. The drunkenness of Andrew Johnson, when he took his oath as Vice-President, was not “official”; but who will say that it was not an impeachable offence? And who will say that these expectorations differ in vileness from that drunkenness? If they did not violate the National Constitution, or any provision of law, common or statute, as is apologetically alleged, I cannot doubt that they violated the spirit of all laws. And then we are further reminded by the apologist of that “freedom of speech” which is a constitutional right; and thus, in the name of a great right, we are to license utterances that shock the moral sense, and are a scandal to human nature. Spirit of John Milton! who pleaded so grandly for this great liberty, but would not allow it to be confounded with license, speak now to save this Republic from the shame of surrender to an insufferable pretension!

The eleventh Article is the most comprehensive. In some respects it is an _omnium gatherum_. In one mass is the substance of other Articles, and something else beside. Here is an allegation of a speech by the President in which he denied that Congress was a Congress, and then, in pursuance of this denial, attempted to prevent the execution of the Tenure-of-Office Act, also of an important clause in the Army Appropriation Act, and also of the Reconstruction Act. Evidence followed, sustaining completely the compound allegation. The speech was made as set forth. The attempt to prevent the execution of the Tenure-of-Office Act who can question? The attempt to corrupt General Emory is in evidence. The whole history of the country shows how earnest the President has been to arrest the Reconstruction Act, and generally the Congressional scheme of Reconstruction. The removal of Mr. Stanton was to be relieved of an impediment. I accept this Article in gross and in detail. It has been proved in all its parts.

CONCLUSION.

In the judgment which I now deliver I cannot hesitate. To my vision the path is clear as day. Never in history was there a great case more free from all just doubt. If Andrew Johnson is not guilty, then never was a political offender guilty; and if his acquittal is taken as a precedent, never can a political offender be found guilty. The proofs are mountainous. Therefore you are now determining whether impeachment shall continue a beneficent remedy in the National Constitution, or be blotted out forever, and the country handed over to the terrible process of revolution as its sole protection. If the milder process cannot be made effective now, when will it ever be? Under what influences? On what proofs? You wait for something. What? Is it usurpation? You have it before you, open, plain, insolent. Is it abuse of delegated power? That, too, you have in this offender, hardly less broad than the powers he has exercised. Is it violation of law? For more than two years he has set your laws at defiance; and when Congress, by special enactment, strove to constrain him, he broke forth in rebellion against the constitutional authority. Perhaps you ask still for something more. Is it a long catalogue of crime, where violence and corruption alternate, while loyal men are sacrificed and the Rebellion is lifted to its feet? That also is here.

The apologists are prone to remind the Senate that they are acting under the obligation of an oath. So are the rest of us, even if we do not ostentatiously declare it. By this oath, which is the same for all, we are sworn to do “impartial justice.” It is justice, and this justice must be impartial. There must be no false weights, and no exclusion of proper weights. Therefore I cannot allow the jargon of lawyers on mere questions of form to sway the judgment against justice. Nor can I consent to shut out from view the long list of transgressions explaining and coloring the final act of defiance. To do so is not to render impartial justice, but to depart from this prescribed rule. The oath we have taken is poorly kept, if we forget the Public Safety in devices for the criminal. Above all else, now and forever, is that justice which “holds the scales of right with even hand.” In this sacred name, and in the name also of country, that great charity embracing so many other charities, I make this final protest against all questions of form at the expense of the Republic.

Something also is said of the people, now watching our proceedings with patriotic solicitude, and it has been proclaimed that they are wrong to intrude their judgment. I do not think so. This is a political proceeding, which the people are as competent to decide as the Senate. They are the multitudinous jury, coming from no small vicinage, but from the whole country: for on this impeachment, involving the Public Safety, the vicinage is the whole country. It is they who have sent us here, as their representatives, and in their name, to consult for the common weal. In nothing can we escape their judgment, least of all on a question like that before us. It is a mistake to suppose that the Senate only has heard the evidence. The people have heard it also, day by day, as it was delivered, and have carefully considered the case on its merits, properly dismissing all apologetic subtilties. It is for them to review what has been done. They are above the Senate, and will “rejudge its justice.” Thus it has been in other cases. The popular superstition which long surrounded the Supreme Court could not save that eminent tribunal from condemnation, amounting sometimes to execration, when, by an odious judgment, it undertook to uphold Slavery; and down to this day Congress has justly refused to place the bust of the Chief Justice pronouncing this judgment in the hall of the tribunal where he presided so long. His predecessors are all there in marble; no marble of Taney is there. The present trial, like that in the Supreme Court, is a battle with Slavery. Acquittal is another Dred Scott decision, and another chapter in the Barbarism of Slavery. How can Senators, discharging a political function only, expect that the voice of the people will be more tender for them than for a Chief Justice pronouncing judgment from the bench of the Supreme Court, in the exercise of judicial power? His fate we know. Nor learning, nor private virtues, nor venerable years could save him from justice. In the great pillory of history he stands, and there he must stand forever.

The people cannot witness with indifference the abandonment of the great Secretary, who organized their armies against the Rebellion, and then organized victory. Following him gratefully through the trials of the war, they found new occasion for gratitude when he stood out alone against that wickedness which was lifted to power on the pistol of an assassin. During these latter days, while tyrannical prerogative invaded all, he has kept the bridge. When, at a similar crisis of English history, Hampden stood out against the power of the Crown, it is recorded by the contemporary historian, Clarendon, that “he grew the argument of all tongues; every man inquiring who and what he was, that durst at his own charge support the liberty and property of the kingdom, and rescue his country, as he thought, from being made a prey to the Court.”[217] Such things are also said with equal force of our Secretary. Nor is it forgotten that the Senate, by two solemn votes of more than two thirds, has twice instructed him to stay at the War Department, the President to the contrary notwithstanding. The people will not easily understand on what principle of Constitution, law, or morals, the Senate can twice instruct the Secretary to stay, and then, by another vote, deliberately surrender him a prey to Presidential tyranny. Talk of a somersault; talk of self-stultification: are not both here? God save me from participation in this disastrous wrong, and may He temper it kindly to our afflicted country!

For myself, I cannot despair of the Republic. It is a life-boat, which wind and wave cannot sink; but it may suffer much and be beaten by storm. All this I clearly see before us, if you fail to displace an unfit commander, whose power is a peril and a shame.

Alas for all the evil that must break upon the country, especially in the suffering South, as it goes forth that this bad man is confirmed in the prerogatives he has usurped!

Alas for that peace and reconciliation, the longing of good men, now postponed!

Alas for that security, so important to all, as the only foundation on which to build, politically or financially! This, too, is postponed. How can people found a government, or plant or buy, unless first secure?

Alas for the Republic, degraded as never before, while the Whiskey Ring holds its orgy of corruption, and the Ku-Klux-Klan holds its orgy of blood!

Alas for the hearts of the people, bruised to unutterable sadness, as they witness a cruel tyranny installed once more!

Alas for that race so long oppressed, but at last redeemed from bondage, now plunged back into another hell of torment!

Alas for the fresh graves already beginning to yawn, while violence, armed with your verdict, goes forth, like another Fury, and murder is quickened anew!

Alas for the Unionists, white and black alike, who have trusted to our flag! You offer them a sacrifice to persecutors whose representative is before you for judgment. They are the last in my thoughts, as I pronounce that vote which is too feeble to save them from intolerable wrong and outrage. They are fellow-citizens of a common country, brethren of a common humanity, two commanding titles, both strong against the deed. I send them at this terrible moment the sympathy and fellowship of a heart that suffers with them. So just a cause cannot be lost. Meanwhile, may they find in themselves, and in the goodness of an overruling Providence, that refuge and protection which the Senate refuses to give!

CONSTITUTIONAL RESPONSIBILITY OF SENATORS FOR THEIR VOTES IN CASES OF IMPEACHMENT.

RESOLUTIONS IN THE SENATE, JUNE 3, 1868.

June 3d, Mr. Sumner submitted the following Resolutions, which were read and ordered to be printed.

Whereas a pretension has been put forth to the effect that the vote of a Senator on an impeachment is so far different in character from his vote on any other question that the people have no right to criticize or consider it; and whereas such pretension, if not discountenanced, is calculated to impair that freedom of judgment which belongs to the people on all that is done by their representatives: Therefore, in order to remove all doubts on this question, and to declare the constitutional right of the people in cases of impeachment,--

1. _Resolved_, That, even assuming that the Senate is a Court in the exercise of judicial power, Senators cannot claim that their votes are exempt from the judgment of the people; that the Supreme Court, when it has undertaken to act on questions essentially political in character, has not escaped this judgment; that the decisions of this high tribunal in support of Slavery have been openly condemned; that the memorable utterance known as the Dred Scott decision was indignantly denounced and repudiated, while the Chief Justice who pronounced it became a mark for censure and rebuke; and that plainly the votes of Senators on an impeachment cannot enjoy an immunity from popular judgment which has been denied to the Supreme Court, with Taney as Chief Justice.

2. _Resolved_, That the Senate is not at any time a Court invested with judicial power, but that it is always a Senate with specific functions declared by the Constitution; that, according to express words, “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,” while it is further provided that “the Senate shall have the sole power to try all impeachments,” thus positively making a distinction between the judicial power and the power to try impeachments; that the Senate, on an impeachment, does not exercise any portion of the judicial power, but another and different power, exclusively delegated to the Senate, having for its sole object removal from office and disqualification therefor; that, by the terms of the Constitution, there may be, after conviction on impeachment, a further trial and punishment “according to law,” thus making a discrimination between a proceeding by impeachment and a proceeding “according to law”; that the proceeding by impeachment is not “according to law,” and is not attended by legal punishment, but is of an opposite character, and from beginning to end political, being instituted by a political body on account of political offences, being conducted before another political body having political power only, and ending in a judgment which is political only; and therefore the vote of a Senator on impeachment, though different in form, is not different in responsibility, from his vote on any other political question; nor can any Senator, on such an occasion, claim immunity from that just accountability which the representative at all times owes to his constituents.

3. _Resolved_, That Senators in all that they do are under the constant obligation of an oath, binding them to the strictest rectitude; that on an impeachment they take a further oath, according to the requirement of the Constitution, which says, Senators, when sitting to try impeachment, “shall be on oath or affirmation”; that this simple requirement was never intended to change the character of the Senate as a political body, and cannot have any such operation; and therefore Senators, whether before or after the supplementary oath, are equally responsible to the people for their votes,--it being the constitutional right of the people at all times to sit in judgment on their representatives.

VALIDITY AND NECESSITY OF FUNDAMENTAL CONDITIONS ON STATES.

SPEECH IN THE SENATE, JUNE 10, 1868.

The Senate having under consideration the bill to admit the States of North Carolina, South Carolina, Louisiana, Georgia, and Alabama to representation in Congress, Mr. Sumner said:--

MR. PRESIDENT,--What I have to say to-day will be confined to a single topic. I shall speak of _the validity and necessity of fundamental conditions on the admission of States into the body of the Nation_,--passing in review objections founded on the asserted equality of States, and also on a misinterpretation of the power to determine the “qualifications” of electors, and that other power to make “regulations” for the election of certain officers. Here I shall encounter the familiar pretensions of another time, no longer put forth by defiant Slave-Masters, but retailed by conscientious Senators, who think they are supporting the Constitution, when they are only echoing the voice of Slavery.

Fundamental conditions on the admission of States are older than our Constitution; for they appear in the Ordinance for the vast Territory of the Northwest, adopted anterior to the Constitution itself. In that Ordinance there are various conditions, of perpetual obligation, as articles of compact. Among these is the famous prohibition of Slavery. In the early days of our Nation nobody thought of questioning the validity of these conditions. Scattered efforts were made to carry Slavery into some portions of this region, and unquestionably there were sporadic cases, as in Massachusetts itself; but the Ordinance stood firm and unimpeached.

One assurance of its authority will be found in the historic fact, that in 1820, on the admission of Missouri as a State of the Union, there was a further provision that in all territory of the United States north of 36° 30´ north latitude, “Slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be and is hereby FOREVER _prohibited_.”[218] This was the famous Missouri Compromise. Missouri was admitted as a State without any restriction of Slavery, but all the outlying territory west and north was subjected to this condition _forever_. It will be observed that the condition was in no respect temporary, but that it was “forever,”--thus outlasting any territorial government, and constituting a fundamental law, irrepealable through all time. Surely this condition, perpetual in form, would not have been introduced, had it been supposed to be inoperative,--had it been regarded as a sham, and not a reality. This statute, therefore, testifies to the judgment of Congress at that time.

It was only at a later day, and at the demand of Slavery, that the validity of the great Ordinance of Freedom was called in question. Mr. Webster, in his memorable debate with Mr. Hayne in 1830, vindicated this measure in language worthy of the cause and of himself, giving to it a palm among the laws by which civilization has been advanced, and asserting its enduring character:--

“We are accustomed, Sir, to praise the lawgivers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787.… It fixed forever the character of the population in the vast regions northwest of the Ohio, by excluding from them involuntary servitude. It impressed on the soil itself, while it was yet a wilderness, an incapacity to sustain any other than freemen. _It laid the interdict against personal servitude in original compact, not only deeper than all local law, but deeper also than all local constitutions._”[219]

Words of greater beauty and power cannot be found anywhere in the writings or speeches of our American orator. It would be difficult to declare the perpetual character of this original interdict more completely. The language is as picturesque as truthful. Deeper than all local law, deeper than all local constitutions, is this fundamental law; and such is its essential quality, that the soil which it protects cannot sustain any other than freemen. Of such a law the orator naturally proceeded to say:--

“We see its consequences at this moment; and we shall never cease to see them, perhaps, while the Ohio shall flow. _It was a great and salutary measure of prevention._”[220]

In these last words the value of such a law is declared. It is for _prevention_, which is an essential object of all law. In this case it is the more important, as the evil to be prevented is the most comprehensive of all.

Therefore, on the authority of Mr. Webster, in harmony with reason also, do I say, that this original condition was not only perpetual in character, but beneficent also. It was beneficence in perpetuity.

Mr. Chase, in his admirable argument before the Supreme Court of the United States, in the _Vanzandt_ case, is hardly behind Mr. Webster in homage to this Ordinance, or in a sense of its binding character. In his opinion it is a compact of perpetual obligation:--