Volume 16 — EXPULSION OF THE PRESIDENT. (continued 2)

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.

Nothing is clearer than that this Moot-Court Apology is a wretched pretension and afterthought. It is the subterfuge of a criminal to cover up his crime,—as if a surgeon had committed murder, and then set up the apology that it was an experiment in science.

THE APOLOGY OF PREROGATIVE.

Then comes the Apology of Prerogative, being nothing less than the intolerable pretension that the President can sit in judgment on Acts of Congress, and, in his discretion, refuse to execute them. This apology is in the nature of a claim of right. Let it be established, and, instead of a government of laws, which is the glory of a republic, we have only the government of a single man. Here is the one-man power with a vengeance.

Of course, if the President can sit in judgment on the Tenure-of-Office Act, and set it aside as unconstitutional, there is no Act of Congress he may not treat in the same way. He may set aside the whole succession of statutes for the government of the army; and his interview with General Emory attests his willingness to venture in that direction. In the spirit of oppression which seems to govern him, he may set aside the great statute for the establishment of civil rights without distinction of color. But why confine myself to instances? The whole statute-book will be subject to his prerogative. Vain the requirement of the National Constitution, that the President “shall take care that the laws be faithfully executed.” Vain that other requirement, that a bill approved by two thirds of both Houses over his veto “shall become a law.” His veto is perpetual; nor is it limited to any special enactment. It is as broad as the whole recorded legislation of the Republic. There is nothing it cannot hurry into that maelstrom ingulfing all.

The President considers the statute unconstitutional, say the apologists. A mistake in judgment on such a question is not an impeachable offence, add the apologists. To which I reply, that it is not for mistake in judgment, but for usurpation in undertaking to exercise his judgment at all on such a question, that he is impeached; in other words, he is impeached for undertaking to set aside a statute. Whether the statute is constitutional or not is immaterial. The President, after the statute has become a law, is not the person to decide.

Ingenuity seeks to perplex the question by putting impossible cases. For instance, suppose Congress should have lost its wits so far as to enact, in direct terms, that the President should not be commander-in-chief of the army and navy, or that he should not have the power to grant pardons; and suppose, still further, that Congress, in defiance of positive inhibition, should undertake to create “titles of nobility”; must not the President treat such enactments as unconstitutional? Of course he must; but such instances do not help the prerogative now claimed. Every such enactment would be on its face unconstitutional. It would be an act of unreasoning madness, which President as well as Court must disregard as if plain nonsense. Its unconstitutionality would be like an axiom, not to be questioned. No argument or authority is needed. It proves itself. Nor would the duty of disobedience be less obligatory, even if the enactment were sanctioned by the Supreme Court: and it is not more violent for me to suppose it sanctioned by the Supreme Court than for the apologists to suppose it sanctioned by Congress. The enactment would be a self-evident monstrosity, and therefore to be disobeyed, as if one of the Ten Commandments were reversed so as to read, “Thou shalt kill.” Such extreme cases serve no purpose. The National Constitution is the supreme law of the land, and the people will not allow its axiomatic requirements to be set aside. An illustration outside the limits of reason is of no value.

In the cases supposed, the unconstitutionally of the enactment is axiomatic, excluding opinion or argument. It is matter of fact, and not matter of opinion. When the case is one on which there are two sides or two different views, it is then within the domain of argument. It is in no sense axiomatic. It is no longer matter of fact, but matter of opinion. When submitted to the Supreme Court, it is for their “opinion.” Without occupying time with refinements, I content myself with asserting that the judgment of the Court must be matter of opinion. One of the apologists has asserted that such a judgment is matter of fact, and, generally, that the constitutionality of a statute is matter of fact. I assert the contrary. When a bench of judges stands five to four, shall we say that the majority declare a “fact,” and the minority declare an “opinion”?

Assuming, then, what I think will not be denied, that the constitutionality of a statute is matter of opinion, the question occurs, What opinion shall be regarded for the time as decisive? Clearly the opinion of Congress must control all executive officers, from the lowest to the President. According to a venerable maxim of jurisprudence, all public acts are presumed to be correct,—Omnia rite acta præsumuntur. A statute must be presumed constitutional, unless on its face the contrary; and no decision of any court is required in its favor. It is the law of the land, and must be obeyed as such. The maxim which presumes constitutionality is just as binding as the analogous maxim of the Criminal Law which presumes innocence. The President, reversing all this, presumes the statute unconstitutional, and acts accordingly. In the name of Prerogative he sets it aside.

The apologists have been driven to invoke the authority of President Jackson, who asserted for himself the power to judge the constitutionality of an Act of Congress which in the course of legislation required his approval, although the question involved had been already adjudged by the Supreme Court. And he was clearly right. The Court itself would not be bound by its adjudication. How could it constrain another branch of the Government? But Andrew Jackson never put forth the pretension that it was within his prerogative to nullify a statute which had been passed over his veto in the way prescribed by the National Constitution. He was courageous, but there was no such unconstitutional audacity in his life.

The apologists also summon to their aid those great instances where conscientious citizens have refused obedience to unjust laws. Such was the case of Hampden, who set an example for all time in refusing to pay ship-money. Such also was the case of many in our own country, who spurned the Fugitive Slave Bill. These exalted characters, on their conscience, refused to obey the law, and suffered accordingly. The early Christians were required by imperial mandate to strew grain on the altar of Jove. Though good citizens, they preferred to be martyrs. Such a refusal can be no apology for a President, who, in the name of prerogative, breaks the great oath to see that the laws are faithfully executed. Rather do these instances, in their moral grandeur, rebuke the offender.

Here I turn from this Apology of Prerogative, regretting that I cannot say more to unfold its destructive character. If anything could aggravate the transgressions of Andrew Johnson, stretching in long line from the beginning of his administration, it would be the claim of right he sets up, under which the slenderest violation of law becomes a high crime and misdemeanor, to be pursued and judged by an indignant people. The supremacy of the laws must be preserved, or the liberties of all will suffer.

TECHNICALITIES AND QUIBBLES.

I now come upon that swarm of technicalities, devices, quirks, and quibbles, which from the beginning have infested this proceeding. It is hard to speak of such things without showing a contempt not entirely parliamentary. To say that they are petty and miserable is not enough. To say that they are utterly unworthy of this historic occasion is to treat them politely. They are nothing but parasitic insects, “vermin gendered in a lion’s mane,”—so nimble and numerous, that, to deal with them as they skip about, one must have the patience of the Italian peasant, who catches and kills, one by one, the diminutive animals that infest his person. The public has not forgotten the exhibition of “industrious fleas.” The Senate has witnessed the kindred exhibition of “industrious quibbles.”

I can give specimens only, and out of many I take one which can never be forgotten. It is found in the Opinion of the Senator from West Virginia [Mr. Van Winkle], which, from beginning to end, treats this impeachment as if it were a prosecution for sheep-stealing in the police-court of Wheeling, and brings to the defence the unhesitating resources of a well-trained criminal lawyer. This famous Opinion, which is without parallel in the annals of jurisprudence, must always be admired as the marvel of technicality in a proceeding where technicality should not intrude. It stands by itself, solitary in originality. Others have been technical also, but the Senator from West Virginia is nothing else. Travelling from point to point, or rather seeing point after point skip before him, at last he lights upon one of the largest dimensions, which he boldly seizes and presents to the Senate.

According to him, there is no allegation in the Articles that the order for the removal of Mr. Stanton was actually delivered to him, and, this being so, the Senator declares, that, “if there is evidence of a delivery to be found in the proceedings, it cannot be applicable to this Article, in which there is no charge or averment.” And this is gravely uttered on this transcendent occasion, when an indignant people has risen to demand judgment of a criminal ruler. The Article alleges that the order was “unlawfully issued,” and nobody doubts that its delivery was proved; but this is not enough, according to the Senator. I challenge history for another instance of equal absurdity in legal pretension. The case approaching it the closest is the famous extravagance of the Crown lawyer in the British Parliament, who, in reply to the argument of our fathers that they could not be taxed without representation, bravely insisted that they were represented, and sustained himself by declaring, that, under the Colonial charters, the lands were held in common socage as “of the manor of Greenwich in Kent,” and, as Greenwich was represented in Parliament, therefore the Colonies were represented there.[211] The pretension was perfect in form, but essentially absurd. The Senator from West Virginia outdoes even this climax of technicality. Other generations, as they read this great trial, with its accumulation of transgressions ending in the removal of Mr. Stanton, will note with wonder that a principal reason assigned for the verdict of Not Guilty was the failure of the Articles to allege that the order for removal was actually received, although there was a distinct allegation that it was “unlawfully issued,” with evidence that it was received, and no human being, not even the technical Senator, imagined that it was not. But how inconsistent with the Law of Impeachment already set forth,[212] which seeks substantial justice, and will not be arrested by any nice requirements! Lord Mansfield did not hesitate to condemn certain objections as “disgraceful subtilties.” What would he have said to the Senator from West Virginia?

There is another invention, which has in its support some of the ablest of the apologists, like the Senator from Iowa [Mr. Grimes], the Senator from Maine [Mr. Fessenden], and the Senator from Illinois [Mr. Trumbull]. It is said, that, as Mr. Stanton did not go out, therefore there was no removal, and therefore Andrew Johnson is not guilty. If the authority of names could change the unreal into the real, then this pretension might have weight. It is impossible that anything so essentially frivolous should be recognized in this proceeding. Such are the shifts of a cause to be defended only by shifts! Clearly the offence of the President was in the order “unlawfully issued,” and this was complete at the moment of its delivery. So far as depended upon him, Mr. Stanton was removed. This is the way in which the country saw the transaction, and the way also in which it will be recorded by history.

But these same apologists, with curious inconsistency, when they come to consider the appointment of Adjutant-General Thomas, insist that there was vacancy in law, called by the Senator from Maine legal vacancy. But such vacancy could be only because there had been removal in law. There is no escape from this consequence. If there was removal in law, and there was no right to make it, the President was guilty of misdemeanor in law, and must take the consequences.

It would be unprofitable to follow these inventions further. From these know all. In the face of Presidential pretensions inconsistent with constitutional liberty, the apologists have contributed their efforts to save the criminal by subtilties which can secure his acquittal in form only, as by a flaw in an indictment; and they have done this, knowing that he will be left in power to assert his prerogative, and that his acquittal will be a new letter of license. Nothing the skill of the lawyer could supply has been wanting. This learned profession lends to the criminal all the arts in which it excels, giving all to him and forgetting the Republic. Every doubt, every scruple, every technicality, every subtilty, every quibble, is arrayed on his side, when, by every rule of reason and patriotism, all should be arrayed on the side of our country. The Public Safety, which is the supreme law, is now imperilled. Are we not told by Blackstone that “the law is always ready to catch at anything in favor of Liberty”?[213] But these apologists catch at anything to save a usurper. In the early days of the Common Law there were technicalities in abundance, but they were for the maintenance of justice. On such was founded that extensive ac etiam jurisdiction of the King’s Bench, which gives occasion for the elegant Commentator to remark, that, however startling these may be at first to the student, “he will find them, upon further consideration, to be highly beneficial and useful.”[214] These generous fictions for the sake of justice must not be confounded with the devices by which justice is defeated.

The trick of the apologists has been, by stringent application of technical rules, to shut out all except offences charged, and then, when stress was laid upon these offences, to cry out that at most they were only technical, and too trifling for impeachment. To satisfy lawyers, the House weakly declined to act on the bloody transgressions of two years, but sought to provide against the future. Like the Roman ambassadors, they traced a line about the offender, which he was not to pass except at peril. This was the line of law. At last he passed the line, openly, knowingly, defiantly; and now that he is arraigned, we are told that this plain offence is nothing, only a little technicality. One of the counsel at the bar, [Mr. Groesbeck,] in a speech which showed how much feeling and talent could be given to a wrong side, exclaimed:—

“It almost shocks me to think that the President of the United States is to be dragged out of his office on these miserable little questions whether he could make an ad interim appointment for a single day.”

Only by excluding the whole context and all its antecedents could the question be reduced to this trivial form; and yet, even thus reduced, it involved nothing less than the supremacy of the laws.

I know not how such a question can be called “trifling.” Often a great cause is presented on a narrow issue: as when English liberty was argued on the claim of ship-money, which was a tax of a few shillings only. Behind this question, called trifling by the kingly apologists of that day, loftily stood the great cause of the People against Prerogative, being the same now pending before the Senate. That other cause, on which at a later day hung the destinies of this continent, was presented on a narrower issue still. There was a tax of threepence a pound on tea, which our fathers refused to pay. But behind this question, so trifling to the apologists of prerogative, as behind that of ship-money, stood loftily the same great cause. The first cost Charles the First his head. The second cost George the Third his colonies. If such a question can be disparaged as of small moment, then have the martyred dead in all times suffered in vain, then was the costly blood lavished for the suppression of our Rebellion an empty sacrifice.

Constantly we are admonished that we must confine ourselves to the Articles. Senators express a pious horror at looking outside the Articles, and insist upon directing attention to these only. Here the Senator from Maine is very strong. It is “the specific offences charged,” and these only, that he sees. He will not look at anything else, although spread upon the record of the Senate, and filling the land with accumulated horrors. Of course such a system of exclusion sacrifices justice, belittles this trial, and forgets that essential latitude of inquiry which belongs to a political proceeding, having for its purpose expulsion from office only, and not punishment. It is easy, by looking at an object through the wrong end of an opera-glass, to find it dwarfed, contracted, and solitary. This is not the way to look at Nature; nor is it the way to look at Andrew Johnson. The great offender should be seen in the light of day, precisely as he is, nor more nor less, with nothing dwarfed, with no limits to the vision, and with all the immense background of thronging transgressions filling the horizon as far as eye can reach. The sight may ache; but how else can justice be done? A Senator who begins by turning these Articles into an inverted opera-glass takes the first step towards judgment of acquittal. Alas that the words of Burke are not true, when, asserting the comprehensive character of impeachment, he denied, that, under it, “they who have no hope at all in the justice of their cause can have any hope that by some subtilties of form, some mode of pleading, by something, in short, different from the merits of the cause, they may prevail.”[215] The orator was right in thus indignantly dismissing all questions of pleading and all subtilties of form. This proceeding is of substance, and not of form. It is on the merits only that it can be judged. Anything short of this is the sacrifice of justice.

Such is the case of this enormous criminal. Events belonging to history, enrolled in the records of the Senate, and familiar to the country, are deliberately shut out from view, while we are treated to legal niceties without end. The lawyers have made a painful record. Nothing ever occurred so much calculated to bring the profession into disrepute; for never before has been such a theatre where lawyers were actors. Their peculiarities have been exhibited. Here was a great question of justice, appealing to the highest sentiments, and involving the best interests of the country; but lawyers, instinctive for the dialectics of the profession, forgot everlasting truth, never to be forgotten with impunity. They started at once in full cry, and the quibble became to them what Dr. Johnson says it was to the great dramatist: “He follows it at all adventures; it is sure to lead him out of his way, and sure to ingulf him in the mire. It has some malignant power over his mind, and its fascinations are irresistible.… A quibble is the golden apple for which he will always turn aside from his career, or stoop from his elevation. A quibble, poor and barren as it is, gave him such delight that he was content to purchase it by the sacrifice of reason, propriety, and truth.”[216] In this Shakespearean spirit our lawyers have acted. They have pursued quibbles with the ardor of the great dramatist, and even now are chasing them through the Senate Chamber.

Unhappily this is according to history, and our lawyers are not among the splendid exceptions. But there is reward for those who stand firm. Who does not reverence the exalted magistrate of France, the Chancellor L’Hospital, who set the great example of rectitude and perfect justice? Who does not honor those lawyers of English history through whose toils Liberty was upheld? There was Selden, so wise and learned; Pym, so grand in statesmanship; Somers, who did so much to establish the best securities of the Constitution. Nor can I forget, at a later day, that greatest advocate, Erskine, who lent to the oppressed his wonderful eloquence; nor Mackintosh and Brougham, who carried into courts that enlarged intelligence and sympathetic nature which the profession of the law could not constrain. These are among the names that have already had their reward, above the artful crowd which in all times has come to the defence of prerogative. It is no new thing that we witness now. The lawyer in other days has been, as we know him, prone to the support of power, and ready with technical reasons. Whichever side he takes, he finds reasons plenty as pins. When free to choose, and not hired, his argument is the reflection of himself. All that he says is his own image. He takes sides on a law point according to his sentiments. Cultured in law, and with aptitude sharpened by its contests, too easily he finds a legal reason for an illegal judgment. Next to an outright mercenary, give me a lawyer to betray a great cause. Forms of law lend themselves to the betrayal. It is impossible to forget that the worst pretensions of prerogative, no matter how colossal, have been shouldered by lawyers. It was they who carried ship-money against the patriot exertions of Hampden; and in our country it was they who held up Slavery in all its terrible pretensions from beginning to end. What is sometimes called “the legal mind” of Massachusetts, my own honored State, bent before the technical reasoning which justified the unutterable atrocities of the Fugitive Slave Bill, while the Supreme Court of the State adopted the crime from the bench. Alas that it should be so! When will lawyers and judges see that nothing short of justice can stand?

GUILTY ON ALL THE ARTICLES.

After this survey it is easy for me to declare how I shall vote. My duty is to vote, Guilty on all the Articles. If consistent with the rules of the Senate, I should vote, “Guilty of all, and infinitely more.”

Not doubting that Mr. Stanton was protected by the Tenure-of-Office Act, and that he was believed to be so by the President, it is clear to me that the charges in the first and second Articles are sustained. These two go together. I have said already, in the course of this Opinion, that the appointment of Adjutant-General Thomas as Secretary of War ad interim was without authority of law, and under the circumstances a violation of the National Constitution. Accordingly the third Article is sustained.

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!