Part 7

From time to time International Copyright has occupied attention, and Mr. Sumner has often in correspondence expressed himself with regard to it. The following letter, in answer to an inquiry, was published by a New York committee of the following gentlemen: George P. Putnam, S. Irenæus Prime, Henry Ivison, James Parton, Egbert Hasard.

SENATE CHAMBER, February 17, 1868.

MY DEAR SIR,--Pardon my delay. There are two ways of dealing with the question of International Copyright,--one by the treaty power, and the other by reciprocal legislation.

I have always thought that the former was the easier, but at the present moment the House of Representatives is not disposed to concede much to the treaty power.

Mr. Everett, while Secretary of State, negotiated a treaty on this subject with Great Britain, which was submitted to the Senate, reported by the Committee on Foreign Relations, considered in the Senate, and finally left on the table, without any definitive vote.

I shall send you a copy of this treaty, which, I believe, has never seen the light.

I have always been in favor of an International Copyright, as justice to authors and a new stage in the unity of nations. Perhaps the condition of public affairs at this time, the preoccupation of the public mind, the imminence of the Presidential election, and also the alienation from England, may present temporary obstacles. But I am sanguine that at last the victory will be won. If authors should have a copyright anywhere, they should have it everywhere within the limits of civilization.

Accept my best wishes, and believe me, dear Sir,

Faithfully yours,

CHARLES SUMNER.

JAMES PARTON, ESQ., Secretary of the Committee.

THE IMPEACHMENT OF THE PRESIDENT.

THE RIGHT OF THE PRESIDENT OF THE SENATE PRO TEM. TO VOTE.

REMARKS IN THE SENATE, ON THE QUESTION OF THE COMPETENCY OF MR. WADE, SENATOR FROM OHIO, THEN PRESIDENT OF THE SENATE PRO TEM., TO VOTE ON THE IMPEACHMENT OF PRESIDENT JOHNSON, MARCH 5, 1868.

MR. PRESIDENT,--I shall not attempt to follow learned Senators in the question whether this is a Senate or a Court. That question, to my mind, is simply one of language, and not of substance. Our powers at this moment are under the Constitution of the United States; nor can we add to them a tittle by calling ourselves a Court or calling ourselves a Senate. There they are in the Constitution. Search its text and you will find them. The Constitution has not given us a name, but it has given us powers; and those we are now to exercise. The Senate has the sole power to try impeachments. No matter for the name, Sir. I hope that I do not use an illustration too familiar, when I remind you that a rose under any other name has all those qualities which make it the first of flowers.

I should not at this time have entered into this discussion, if I had not listened to objections on the other side which seem to me founded, I will not say in error, for that would be bold when we are discussing a question of so much novelty, but I will say founded in a reading of history which I have not been able to verify. Senator after Senator on the other side, all distinguished by ability and learning, have informed us that the Constitution intended to prevent a person who might become President from presiding at the trial of the President. I would ask learned Senators who have announced this proposition, where they find it in the Constitution. The Constitution says:--

“When the President of the United States is tried, the Chief Justice shall preside.”

This is all; and yet on this simple text the superstructure of Senators has been reared.

The Constitution does not proceed to say why the Chief Justice shall preside; not at all; nothing of the kind. Senators supply the reason, and then undertake to apply it to the actual President of the Senate. Where, Sir, do they find the reason? They cannot find the reason which they now assign in any of the contemporary authorities illustrating the Constitution; they cannot find it in the debates of the National Convention reported by Madison, or in any of the debates in the States at that time; nor can they find it in the “Federalist.” When does that reason first come on the scene? Others may be more fortunate than I; but I have not been able to find it earlier than 1825, nearly forty years after the formation of the Constitution, in the Commentaries of William Rawle. We all know the character of this work,--one of great respectability, and which most of us in our early days have read and studied. How does he speak of it? As follows:--

“The Vice-President, being the President of the Senate, presides on the trial, except when the President of the United States is tried. As the Vice-President succeeds to the functions and emoluments of the President of the United States, whenever a vacancy happens in the latter office, it would be inconsistent with the implied purity of a judge that a person under a probable bias of such a nature should participate in the trial, and it would follow that he should wholly retire from the court.”[90]

Those are the words of a commentator on the Constitution. They next appear eight years later, in the Commentaries of Mr. Justice Story. After citing the provision, “When the President of the United States is tried, the Chief Justice shall preside,” the learned commentator proceeds:--

“The reason of this clause has been already adverted to. It was to preclude the Vice-President, who might be supposed to have a natural desire to succeed to the office, from being instrumental in procuring the conviction of the Chief Magistrate.”[91]

And he cites in his note “Rawle on the Constitution, ch. 22, p. 216,”[92] being the very passage that I have just read. Here is the first appearance of this reason, which is now made to play so important a part, being treated even as a text of the Constitution itself. At least I have not been able to meet it at an earlier day.

If you repair to the contemporary authorities, including the original debates, you will find no such reason assigned,--nothing like it,--not even any suggestion of it. On the contrary, you will find Mr. Madison, in the Virginia Convention, making a statement which explains in the most satisfactory manner the requirement of the Constitution.[93] No better authority could be cited. Any reason supplied by him anterior to the adoption of the Constitution must be of more weight than any _ex post facto_ imagination or invention of learned commentators.

If we trust to the lights of history, the reason for the introduction of this clause in the Constitution was because the framers of the Constitution contemplated the possibility of the suspension of the President from the exercise of his powers, in which event the Vice-President could not be in your chair, Sir. If the President were suspended, the Vice-President would be in his place. The reports will verify what I say. If you refer to the debates of the National Convention, under the date of Friday, September 14, 1787, you will find the following entry, which I read now by way of introduction to what follows at a later date, on the authority of Mr. Madison himself.

“Mr. Rutledge and Mr. Gouverneur Morris moved ‘that persons impeached be suspended from their offices until they be tried and acquitted.’

“MR. MADISON. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing magistrate.

“Mr. King concurred in the opposition to the amendment.”[94]

The proposition was rejected by the decisive vote of eight States in the negative to three in the affirmative. We all see, in reading it now, that it was rejected on good grounds. It would obviously be improper to confer upon the other branch of Congress the power, by its own vote, to bring about a suspension of the Chief Magistrate. But it did not follow, because the Convention rejected the proposition that a suspension could take place on a simple vote of the House of Representatives, that therefore the President could not be suspended. When the Senate was declared to have the sole power to try impeachments, it was by necessary implication invested with the power, incident to every court, and known historically to belong to the English court of impeachment, from which ours was borrowed, of suspending the party accused. All this was apparent at the time, if possible, more clearly than now. It was so clear, that it furnishes an all-sufficient reason for the provision that the Chief Justice should preside on the trial of the President, without resorting to the later reason which has been put forward in this debate.

But we are not driven to speculate on this question. While the Constitution was under discussion in the Virginia Convention, George Mason objected to some of the powers conferred upon the President, especially the pardoning power. This was on June 18, 1788, and will be found under that date in the reports of the Virginia Convention. This earnest opponent of the Constitution said that the President might “pardon crimes which were advised by himself,” and thus further his own ambitious schemes. This brought forward Mr. Madison, who had sat, as we all know, throughout the debates of the National Convention, and had recorded its proceedings, and who, of all persons, was the most competent to testify at that time as to the intention of the framers. What said this eminent authority? I give you his words:--

“There is one security in this case to which gentlemen may not have adverted. If the President be connected in any suspicious manner with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they”--

evidently referring to the Senate, or the Senate in connection with the House--

“can remove him, if found guilty; _they can suspend him, when suspected_, and the power will devolve on the Vice-President.”[95]

Mark well these words,--“they can suspend him, when suspected.” If only suspected, the President can be suspended. What next? “And his power will devolve on the Vice-President.” In which event, of course, the Vice-President would be occupied elsewhere than in this Chamber.

Those were the words of James Madison, spoken in debate in the Virginia Convention. Taken in connection with the earlier passage in the National Convention, they seem to leave little doubt with regard to the intention of the framers of the Constitution. They were unwilling to give to the other House alone the power of suspension; but they saw, that, when they authorized the Senate to try impeachments, they gave to it the power of suspension, if it should choose to exercise it; and the suspension of the President necessarily involved the withdrawal of the Vice-President from this Chamber, and the duty of supplying his place.

I submit, then, on the contemporary testimony, that the special reason why the Chief Justice is called to preside, when the President is on trial, is less what learned Senators have assigned than because the Vice-President under certain circumstances would not be able to be present. It was to provide for such a contingency, being nothing less than his necessary absence in the discharge of the high duties of Chief Magistrate, that a substitute was necessary, and he was found in the Chief Justice. All this was reasonable. It would have been unreasonable not to make such a provision.

But this is not all. There is an incident, immediately after the adoption of the Constitution, which is in harmony with this authentic history. The House of Representatives at an early day acted on the interpretation of the Constitution given by Mr. Madison. The first impeachment, as we all know, was of William Blount, a Senator, and in impeaching him the House of Representatives demanded that he should “be sequestered from his seat in the Senate.” This was in 1797. The Senate did not comply with this demand; but the demand nevertheless exists in the history of your Government, and it illustrates the interpretation which was given at that time to the powers of the Senate. The language employed, that the person impeached should be “sequestered,” is the traditional language of the British Constitution, constantly used, and familiar to our fathers. In employing it, the House of Representatives gave their early testimony that the Senate could suspend from his functions any person impeached before them; and thus the House of Representatives unite with Madison in supplying a sufficient reason for the provision that on the trial of the President the Chief Justice shall preside.

In abandoning the reason which I have thus traced to contemporary authority, you launch upon an uncertain sea. You may think the reason assigned by the commentators to be satisfactory. It may please your taste; but it cannot be accepted as an authentic statement. If the original propositions were before me, I should listen to any such suggestion with the greatest respect. I do not mean to say now, that, as a general rule, it has not much in its favor; but I insist, that, so far as we are informed, the reason of the commentators was an afterthought, and that there was another reason which sufficiently explains the rule now under consideration.

I respectfully submit, Sir, that you cannot proceed in the interpretation of this text upon the theory adopted by the learned Senators over the way. You must take the text as it is. You cannot go behind it; you cannot extend it. Here it is: “When the President of the United States is tried, the Chief Justice shall preside.” That is the whole, Sir. “The Chief Justice shall preside.” No reason is assigned. Can you assign a reason? Can you supply a reason? Especially can you supply one which is not sustained by the authentic contemporary history of the Constitution, and particularly when you have authentic contemporary history which supplies another reason? Unless I am much mistaken, this disposes of the objection, proceeding from so many Senators, that the Senator from Ohio cannot take the oath because he may possibly succeed to the President now impeached at your bar. He may vote or not, as he pleases; and there is no authority in the Constitution, or any of its contemporary expounders, to criticize him.

* * * * *

This is all, Sir, I have to say at this time on this head. There were other remarks made by Senators over the way to which I might reply. There was one that fell from my learned friend, the Senator from Maryland, [Mr. JOHNSON,] in which he alluded to myself. He represented me as having cited many authorities from the House of Lords, tending to show, in the case of Mr. Stockton, that this person at the time was not entitled to vote on the question of his seat. The Senator does not remember that debate, I think, as well as I do. The point which I tried to present to the Senate, and which, I believe, was affirmed by a vote of the body, was simply this: that a man cannot sit as a judge in his own case. That was all,--at least so far as I recollect; and I submitted that Mr. Stockton at that time was a judge undertaking to sit in his own case.[96] Pray, Sir, what is the pertinency of this citation? Is it applicable at all to the Senator from Ohio? Is his case under consideration? Is he impeached at the bar of the Senate? Is he in any way called in question? Is he to answer for himself? Not at all. How, then, does the principle of law, that no man shall sit as a judge in his own case, apply to him? How does the action of the Senate in the case of Mr. Stockton apply to him? Not at all. The two cases are as wide as the poles asunder. One has nothing to do with the other.

Something has been said of the “interest” of the Senator from Ohio on the present occasion. “Interest”! This is the word used. We are reminded that in a certain event the Senator may become President, and that on this account he is under peculiar temptations, which may swerve him from justice. The Senator from Maryland went so far as to remind us of the large salary to which he might succeed,--not less than twenty-five thousand dollars a year,--and thus added a pecuniary temptation to the other disturbing forces. Is not all this very technical? Does it not forget the character of this great proceeding? Sir, we are a Senate, and not a Court of _Nisi Prius_. This is not a case of assault and battery, but a trial involving the destinies of this Republic. I doubt if the question of “interest” is properly raised. I speak with all respect for others, but I submit that it is inapplicable. It does not belong here. Every Senator has his vote, to be given on his conscience. If there be any “interest” to sway him, it must be that of justice, and the safety of the country. Against these all else is nothing. The Senator from Ohio, whose vote is now in question, can see nothing but those transcendent interests by the side of which office, power, and money are of small account. Put in one scale these interests, so dear to the heart of the patriot, and in the other all the personal temptations which have been imagined, and I cannot doubt, that, if the Senator from Ohio holds these scales, the latter will kick the beam.

THE CHIEF JUSTICE, PRESIDING IN THE SENATE, CANNOT RULE OR VOTE.

OPINION IN THE CASE OF THE IMPEACHMENT OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, MARCH 31, 1868.

In the course of this trial there was an important claim of power by the Chief Justice, as presiding officer of the Senate, on which at the time Mr. Sumner expressed his opinion to the Senate, when it withdrew for consultation. As this claim was calculated in certain contingencies to affect the course of proceedings, possibly the final judgment, and as it might hereafter be drawn into a precedent, Mr. Sumner was unwilling to lose this opportunity of recording his reasons against it.

In determining the relations of the Chief Justice to the trial of the President, we must look, first, to the National Constitution; for it is solely by virtue of the National Constitution that this eminent magistrate is transported from his own natural field to another, where he is for the time an exotic. The Chief Justice in his own court is at home; but it is equally clear, that, when he comes into the Senate, he is a stranger. Though justly received with welcome and honor, he cannot expect membership, or anything beyond the powers derived directly from the National Constitution, by virtue of which he temporarily occupies the Chair.

Repairing to our authoritative text, we find the only applicable words:--

“The Senate shall have the sole power to try all impeachments.… When the President of the United States is tried, the Chief Justice shall _preside_: and no person shall be convicted without the concurrence of two thirds of the members present.”

This is all. The Chief Justice shall _preside_, but subject to two limitations specifically declared. First, the trial is to be by the Senate _solely_, and nobody else,--thus carefully excluding the presiding officer from all participation, except so far as is implied in the power to preside; and, secondly, judgment of conviction can be only by a vote of “two thirds of _the members present_,”--thus again excluding the presiding officer, unless it is assumed that he is a member of the Senate.

On the face of this text it is difficult to find ambiguity. Nobody questions that the Chief Justice must preside. Can anybody question that the trial must be by the Senate solely, and nobody else? To change this requirement is to fly in the face of the National Constitution. Can anybody question that the judgment of conviction must be by votes of “members present,” and nobody else? Now, since the Chief Justice is not a “member” of the Senate, it is plain that he is positively excluded from vote on the final question. It only remains that he should “preside.” And here the question recurs as to the meaning of this familiar term.

The person who presides is simply, according to the language of our Rules, “presiding officer,” and this designation is the equivalent or synonym of speaker, and also of prolocutor, each of which signifies somebody who speaks for the house. It is not implied that he votes with the house, much less that he decides for the house, but only that he is the voice of the house,--its speaker. What the house has to say it says through him; but, except as organ of the house, he is silent, unless also a member, when to his powers as presiding officer he superadds the powers of a member also. From this brief statement it appears at once how limited his functions must be.

Here I might stop; but, since this question has assumed unexpected importance, I am induced to go further. It is easy to show that the language of the National Constitution, if seen in the light of English parliamentary history, must have an interpretation identical with its natural import.

Nothing is clearer than this. If language employed in the National Constitution had already, at the time of its formation, received a definite meaning, it must be interpreted accordingly. Thus, when the Constitution secures “trial by jury,” it secures that institution as defined by antecedent English law. So, also, when it declares that the judicial power shall extend to “all cases in law and equity” arising under the National Constitution, it recognizes the distinction between law and equity peculiar to English law. Courts of Common Law and Courts of Equity are all implied in this language; and since there is no further definition of their powers, we must ascertain them in England. Cushing, in determining the rules of proceeding in our American Legislatures, says:--

“Such was the practice of the two Houses of the British Parliament when our ancestors emigrated; … and such has continued to be, and now is, the practice in that body.”[97]

This resource has been most persuasively presented by Mr. Wirt, in his remarkable argument on the impeachment of Judge Peck, where he vindicates and expounds the true rule of interpretation.

According to this eminent authority, what he calls “the English archetypes” were the models for the framers of the National Constitution. The courts were fashioned after these “archetypes.” They were instituted according to “the English _originals_, to which they were manifestly referred by the Constitution itself.”[98] Here again I quote the words of Mr. Wirt.

All this is precisely applicable to that part of the National Constitution under consideration. In essential features it was borrowed from England. There is its original, its model, its archetype. Therefore to England we go.