Volume 16 — EXPULSION OF THE PRESIDENT.

Opinion in the Case of the Impeachment of Andrew Johnson, President of the United States, May 26, 1868.

I voted against the rule of the Senate allowing opinions to be filed in this proceeding, and regretted its adoption. With some hesitation I now take advantage of the opportunity, if not the invitation, it affords. Voting “Guilty” on all the articles, I feel that there is little need of explanation or apology. Such a vote is its own best defender. But I follow the example of others.

BATTLE WITH SLAVERY.

This is one of the last great battles with Slavery. Driven from these legislative chambers, driven from the field of war, this monstrous power has found refuge in the Executive Mansion, where, in utter disregard of Constitution and law, it seeks to exercise its ancient domineering sway. All this is very plain. Nobody can question it. Andrew Johnson is the impersonation of the tyrannical Slave Power. In him it lives again. He is lineal successor of John C. Calhoun and Jefferson Davis, and he gathers about him the same supporters. Original partisans of Slavery, North and South, habitual compromisers of great principles, maligners of the Declaration of Independence, politicians without heart, lawyers for whom a technicality is everything, and a promiscuous company who at every stage of the battle have set their faces against Equal Rights,—these are his allies. It is the old troop of Slavery, with a few recruits, ready as of old for violence, cunning in device, and heartless in quibble. With the President at their head, they are now intrenched in the Executive Mansion.

Not to dislodge them is to leave the country a prey to a most hateful tyranny. Especially is it to surrender the Unionists of the Rebel States to violence and bloodshed. Not a month, not a week, not a day should be lost. The safety of the Republic requires action at once. Innocent men must be rescued from sacrifice.

I would not in this judgment depart from the moderation proper to the occasion; but God forbid, that, when called to deal with so great an offender, I should affect a coldness I cannot feel! Slavery has been our worst enemy, assailing all, murdering our children, filling our homes with mourning, darkening the land with tragedy; and now it rears its crest anew, with Andrew Johnson as its representative. Through him it assumes once more to rule and impose its cruel law. The enormity of his conduct is aggravated by his barefaced treachery. He once declared himself the Moses of the colored race. Behold him now the Pharaoh! With such treachery in such a cause there can be no parley. Every sentiment, every conviction, every vow against Slavery must be directed against him. Pharaoh is at the bar of the Senate for judgment.

The formal accusation is founded on recent transgressions, enumerated in articles of impeachment; but it is wrong to suppose that this is the whole case. It is very wrong to try this impeachment merely on these articles. It is unpardonable to higgle over words and phrases, when, for more than two years, the tyrannical pretensions in evidence before the Senate have been manifest, as I shall show, in terrible, heart-rending consequences.

IMPEACHMENT A POLITICAL PROCEEDING.

Before entering upon the formal accusation instituted by the House of Representatives of the United States in their own name and in the name of all the people thereof, it is important to understand the nature of the proceeding. And here on the threshold we encounter the effort of the apologists seeking in every way to confound this great constitutional trial with an ordinary case at Nisi Prius, and to win for the criminal President an Old Bailey acquittal, where on some quibble the prisoner is allowed to go without day. From beginning to end this has been painfully apparent, thus degrading the trial and baffling justice. Point by point has been pressed, sometimes by counsel and sometimes even by Senators, leaving the substantial merits untouched, as if, on a solemn occasion involving the safety of the Republic, there could be any other question.

The first effort was to call the Senate, sitting for the trial of impeachment, a Court, and not a Senate. Ordinarily, names are of little consequence; but it cannot be doubted that this appellation has been made the starting-point for technicalities proverbial in courts. Constantly we have been reminded of what is called our judicial character, and of the supplementary oath we have taken, as if a Senator were not always under oath, and as if other things within the sphere of his duties were not equally judicial in character. Out of this plausible assumption has come that fine-spun thread which lawyers know so well how to weave.

The whole mystification disappears, when we look at the National Constitution, which in no way speaks of impeachment as judicial, and in no way speaks of the Senate as a court. On the contrary, it uses positive language inconsistent with this assumption and all its pretended consequences. On this head there can be no doubt.

By the National Constitution it is expressly provided that “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,”—thus positively excluding the Senate from any exercise of “the judicial power.” And yet this same Constitution provides that “the Senate shall have the sole power to try all impeachments.” In the face of these plain texts it is impossible not to conclude, that, in trying impeachments, Senators exercise a function which is not regarded by the National Constitution as “judicial,” or, in other words, as subject to the ordinary conditions of judicial power. Call it senatorial or political, it is a power by itself, and subject to its own conditions.

Nor can any adverse conclusion be drawn from the unauthorized designation of “court” which has been foisted into our proceedings. This term is very expansive, and sometimes very insignificant. In Europe it means the household of a prince. In Massachusetts it is still applied to the Legislature of the State, which is known as the General Court. If applied to the Senate, it must be interpreted by the National Constitution, and cannot be made in any respect a source of power or a constraint.

It is difficult to understand how this term, which plays such a part in present pretensions, obtained its vogue. It does not appear in English impeachments, although there is reason for it there which is not found here. From ancient times, Parliament, including both Houses, has been called a court, and the House of Lords is known as a court of appeal. The judgment on English impeachments embraces not merely removal from office, as under the National Constitution, but also punishment; and yet it does not appear that the Lords sitting on impeachments are called a court. They are not so called in any of the cases, from the first, in 1330, entitled simply, “Impeachment of Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806, entitled, “Trial of the Right Honorable Henry Lord Viscount Melville, before the Lords’ House of Parliament in Westminster Hall, for High Crimes and Misdemeanors whereof he was accused in certain Articles of Impeachment.” In the historic case of Lord Bacon, we find, at the first stage, this title, “Proceedings in Parliament against Francis Bacon Lord Verulam,” and, after the impeachment was presented, the simple title, “Proceedings in the House of Lords.” Had this simplicity been followed among us, there would have been one source of misunderstanding the less.

There is another provision of the National Constitution which testifies still further, and, if possible, more completely. It is the limitation of the judgment in cases of impeachment, making it political and nothing else. It is not punishment, but protection to the Republic. It is confined to removal from office and disqualification; but, as if aware that this was no punishment, the National Constitution further provides that this judgment shall be no impediment to indictment, trial, judgment, and punishment “according to law.” Thus again is the distinction declared between an impeachment and a proceeding “according to law.” The former, which is political, belongs to the Senate, which is a political body; the latter, which is judicial, belongs to the courts, which are judicial bodies. The Senate removes from office; the courts punish. I am not alone in drawing this distinction. It is well known to all who have studied the subject. Early in our history it was put forth by the distinguished Mr. Bayard, of Delaware, the father of Senators, in the case of Blount;[151] and it is adopted by no less an authority than our highest commentator, Judge Story, who was as much disposed as anybody to amplify the judicial power. In speaking of this text, he says that impeachment “is not so much designed to punish an offender as to secure the State against gross official misdemeanors; it touches neither his person nor his property, but simply divests him of his political capacity.”[152] All this seems forgotten by certain apologists on the present trial, who, assuming that impeachment was a proceeding “according to law,” have treated the Senate to the technicalities of the law, to say nothing of the law’s delay.

Discerning the true character of impeachment under the National Constitution, we are constrained to confess that it is a political proceeding before a political body with political purposes; that it is founded on political offences, proper for the consideration of a political body, and subject to a political judgment only. Even in cases of treason and bribery, the judgment is political, and nothing more. If I were to sum up in one word the object of impeachment under the National Constitution, meaning what it has especially in view, with its practical limitation, I should say expulsion from office. The present question is, Shall Andrew Johnson, on the case before the Senate, be expelled from office?

Expulsion from office is not unknown to our proceedings. By the National Constitution a Senator may be expelled with “the concurrence of two thirds,” precisely as a President may be expelled with “the concurrence of two thirds.” In each case the same exceptional vote of two thirds is required. Do not the two illustrate each other? From the nature of things, they are essentially similar in character,—except that on expulsion of the President the motion is made by the House of Representatives at the bar of the Senate, while on expulsion of a Senator the motion is made by a Senator. How can we require a technicality of proceeding in the one which is rejected in the other? If the Senate is a court, bound to judicial forms on the expulsion of the President, must it not be the same on the expulsion of a Senator? But nobody attributes to it any such strictness in the latter case. Numerous precedents attest how, in dealing with its own members, the Senate seeks substantial justice without reference to form. In the case of Blount, which is the first in our history, the expulsion was on the report of a committee, declaring him “guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator.”[153] At least one Senator has been expelled on simple motion.[154] Others have been expelled without any formal allegation or formal proof.

According to another provision of the National Constitution, overriding both cases, “each House may determine the rules of its proceedings.” The Senate, on the expulsion of its own members, has already done this, and set an example of simplicity. But it has the same power over its rules of proceeding on the expulsion of the President; and there can be no reason for simplicity in the one case not equally applicable in the other. Technicality is as little consonant with the one as with the other. Each has for its object the public safety. For this the Senator is expelled; for this, also, the President is expelled. Salus populi suprema lex. The proceedings in each case must be in subordination to this rule.

There is one formal difference, under the National Constitution, between the power to expel a Senator and the power to expel the President. The power to expel a Senator is unlimited in terms. The Senate may, “with the concurrence of two thirds, expel a member,” nothing being said of the offence; whereas the President can be expelled only for “treason, bribery, or other high crimes and misdemeanors.” A careful inquiry will show that under the latter words there is such a latitude as to leave little difference between the two cases. This brings us to the question of impeachable offences.

POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES.

So much depends on the right understanding of this proceeding, that, even at the risk of protracting the discussion, I cannot hesitate to consider this branch of the subject, although what I have already said may render it superfluous. What are impeachable offences has been much considered in this trial, and sometimes with very little appreciation of the question. Next to the mystification from calling the Senate a court has been that other mystification from not calling the transgressions of Andrew Johnson “impeachable offences.”

It is sometimes boldly argued that there can be no impeachment under the National Constitution, unless for an offence defined and made indictable by Act of Congress, and therefore Andrew Johnson must go free, unless it can be shown that he is such an offender. But this argument mistakes the Constitution, and also mistakes the whole theory of impeachment.

It mistakes the Constitution in attributing to it any such absurd limitation. The argument is this: Because in the National Constitution there are no Common-Law crimes, therefore there are no such crimes on which an impeachment can be maintained. But there are two answers: first, that the District of Columbia, where the President resides and exercises his functions, was once part of Maryland, where the Common Law prevailed; that, when it came under the national jurisdiction, it brought with it the whole body of the law of Maryland, including the Common Law; and that at this day the Common Law of crimes is still recognized here. But the second answer is stronger still. By the National Constitution, expulsion from office is “on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors”; and this, according to another clause of the Constitution, is “the supreme law of the land.” Now, when a constitutional provision can be executed without superadded legislation, it is absurd to suppose that such legislation is necessary. Here the provision executes itself without reënactment; and as for definition of “treason” and “bribery” we resort to the Common Law, so for definition of “high crimes and misdemeanors” we resort to the Parliamentary Law and the instances of impeachment by which it is illustrated. Thus clearly the whole testimony of English history enters into this case with its authoritative law. From the earliest text-writer on this subject[155] we learn the undefined and expansive character of these offences; and these instances are in point now. Thus, where a Lord Chancellor has been thought to put the great seal to an ignominious treaty, a Lord Admiral to neglect the safeguard of the seas, an Ambassador to betray his trust, a Privy Councillor to propound dishonorable measures, a confidential adviser to obtain exorbitant grants or incompatible employments, or where any magistrate has attempted to subvert the fundamental law or introduce arbitrary power,—all these are high crimes and misdemeanors, according to these precedents, by which the National Constitution must be interpreted. How completely they cover the charges against Andrew Johnson, whether in the formal accusation or in the long antecedent transgressions to which I shall call attention as an essential part of the case, nobody can question.

Broad as this definition may seem, it is in harmony with the declared opinions of the best minds that have been turned in this direction. Of these none so great as Edmund Burke, who, as manager on the impeachment of Warren Hastings, excited the admiration of all by varied stores of knowledge and philosophy, illumined by the rarest eloquence, marking an epoch of British history. Thus spoke the greatest genius that has ever explained the character of impeachment:—

“It is by this tribunal that statesmen who abuse their power are tried before statesmen and by statesmen, upon solid principles of State morality. It is here that those who by an abuse of power have polluted the spirit of all laws can never hope for the least protection from any of its forms. It is here that those who have refused to conform themselves to the protection of law can never hope to escape through any of its defects.”[156]

The value of this testimony is not diminished because the orator spoke as manager. By professional license an advocate may state opinions not his own, but a manager cannot. Appearing for the House of Representatives and all the people, he speaks with the responsibility of a judge, so that his words may be cited hereafter. Here I but follow the claim of Mr. Fox.[157] Therefore the words of Burke are as authoritative as beautiful.

In different, but most sententious terms, Mr. Hallam, who is so great a light in constitutional history, thus exhibits the latitude of impeachment and its comprehensive grasp:—

“A minister is answerable for the justice, the honesty, the utility of all measures emanating from the Crown, as well as for their legality; and thus the executive administration is, or ought to be, subordinate, in all great matters of policy, to the superintendence and virtual control of the two Houses of Parliament.”[158]

Thus, according to this excellent witness, even failure in justice, honesty, and utility, as well as in legality, may be the ground of impeachment; and the Administration should in all great matters of policy be subject to the two Houses of Parliament,—the House of Commons to impeach, and the House of Lords to try. Here again the case of Andrew Johnson is provided for.

Our best American lights are similar, beginning with the “Federalist” itself, which teaches that impeachment is for “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust: they are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”[159] If ever injuries were done immediately to society itself, if ever there was an abuse or violation of public trust, if ever there was misconduct of a public man, all these are now before us in the case of Andrew Johnson. The “Federalist” has been echoed ever since by all who have spoken with knowledge and without prejudice. First came the respected commentator, William Rawle, who specifies among causes of impeachment “the fondness for the inordinate extension of power,” “the influence of party and of prejudice,” “the seductions of foreign states,” “the baser appetite for illegitimate emolument,” and “the involutions and varieties of vice, too many and too artful to be anticipated by positive law,” all resulting in what the commentator says are “not unaptly termed political offences.”[160] And thus Rawle unites with the “Federalist” in stamping upon impeachable offences the epithet “political.” If in the present case there has been on the part of Andrew Johnson no base appetite for illegitimate emolument and no yielding to foreign seductions, there has been most notoriously the influence of party and prejudice, also to an unprecedented degree an individual extension of power, and an involution and variety of vice impossible to be anticipated by positive law,—all of which, in gross or in detail, is impeachable. Here it is in gross. Then comes Story, who, writing with the combined testimony of English and American history before him, and moved only by a desire of truth, records his opinion with all the original emphasis of the “Federalist.” His words are like a judgment. The process of impeachment, according to him, is intended to reach “personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office”; and the commentator adds, that it “is to be exercised over offences which are committed by public men in violation of their public trust and duties,” that “the offences to which it is ordinarily applied are of a political character,” and that, strictly speaking, “the power partakes of a political character.”[161] Every word here is like an ægis for the present case. The later commentator, Curtis, is, if possible, more explicit even than Story. According to him, an impeachment “is not necessarily a trial for crime”; its purposes “lie wholly beyond the penalties of the statute or the customary law”; and this commentator does not hesitate to say that it is a proceeding “to ascertain whether cause exists for removing a public officer from office”; and he adds, that such cause of removal “may exist where no offence against positive law has been committed,—as where the individual has, from immorality, or imbecility, or maladministration, become unfit to exercise the office.”[162] Here again the power of the Senate over Andrew Johnson is vindicated so as to make all doubt or question absurd.

I close this question of impeachable offences by asking you to consider that all the cases which have occurred in our history are in conformity with the rule which so many commentators have announced. The several trials of Pickering, Chase, Peck, and Humphreys exhibit its latitude in different forms. Official misconduct, including in the cases of Chase and Humphreys offensive utterances, constituted the high crimes and misdemeanors for which they were respectively arraigned. These are precedents. Add still further, that Madison, in debate on the power of removal, at the very beginning of our Government, said: “I contend that the wanton removal of meritorious officers would subject the President to impeachment and removal from his own high trust.”[163] But Andrew Johnson, standing before a crowd, said of meritorious officers that he would “kick them out,”[164] and forthwith proceeded to execute his foul-mouthed menace. How small was all that Madison imagined, how small was all that was spread out in the successive impeachments of our history, if gathered into one case, compared with the terrible mass now before us!

From all these concurring authorities, English and American, it is plain that impeachment is a power broad as the National Constitution itself, and applicable to the President, Vice-President, and all civil officers through whom the Republic suffers or is in any way imperilled. Show me an act of evil example or influence committed by a President, and I show you an impeachable offence, great in proportion to the scale on which it is done, and the consequences menaced. The Republic must receive no detriment; and impeachment is a power by which this sovereign rule is maintained.

UNTECHNICAL FORM OF PROCEDURE.

The form of procedure has been noticed in considering the political character of impeachment; but it deserves further treatment by itself. Here we meet the same latitude. It is natural that the trial of political offences, before a political body, with a political judgment only, should have less of form than a trial at Common Law; and yet this obvious distinction is constantly disregarded. The authorities, whether English or American, do not leave the question open to doubt.

An impeachment is not a technical proceeding, as at Nisi Prius or in a county court, where the rigid rules of the Common Law prevail. On the contrary, it is a proceeding according to Parliamentary Law, with rules of its own, unknown in ordinary courts. The formal statement and reduplication of words, constituting the stock-in-trade of so many lawyers, are exchanged for a broader manner, more consistent with the transactions of actual life. The precision of history and of common sense is enough, without the technical precision of an indictment.

From time immemorial there has been a just distinction between proceedings in Parliament and proceedings in the ordinary courts of justice, which I insist shall not be abandoned. The distant reign of Richard the Second, beyond the misfortunes touching us so much in Shakespeare, supplies a presiding rule which has been a pole-star of Constitutional Law; nor is this in any vague, uncertain language, but in the most clear and explicit terms, illumined since by great lights of law.

On what was called an appeal in Parliament, or impeachment, it has solemnly declared that the Lords were not of right obliged to proceed according to the course or rules of the Roman law or according to the law or usage of any of the inferior courts of Westminster Hall, but by the law and usage of Parliament, which was itself a court.

“In this Parliament [in the 11th year of King Richard the Second, A. D. 1387-88] all the Lords then present, spiritual as well as temporal, claimed as their franchise that the weighty matters moved in this Parliament, and which shall be moved in other Parliaments in future times, touching the peers of the land, shall be managed, adjudged, and discussed by the course of Parliament, and in no sort by the Law Civil, or by the common law of the land, used in the other lower courts of the kingdom.”[165]

The Commons approved the proceedings, and it has been remarked, in an important official report, that “neither then nor ever since have they made any objection or protestation that the rule laid down by the Lords … ought not to be applied to the impeachments of commoners as well as peers.”[166] Accordingly Lord Coke declares, that “all weighty matters in any Parliament moved concerning the peers of the realm, or commoners in Parliament assembled, ought to be determined, and adjudged, and discussed by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts.” Then, founding on the precedent of 11th Richard the Second, he announces, that “judges ought not to give any opinion of a matter of Parliament, because it is not to be decided by the common laws, but secundum legem et consuetudinem Parliamenti”; and he adds, “So the judges in divers Parliaments have confessed.”[167]

But impeachment is “a matter of Parliament,” whether in England or in the United States. It was so at the beginning, and has been ever since.

Even anterior to Richard the Second the same conclusion was recognized, with illustrative particularity, as appears by the trial of those who murdered King Edward the Second, thus commented by an eminent writer on Criminal Law, who was also an experienced judge, Foster:—

“It is well known, that, in parliamentary proceedings of this kind, it is and ever was sufficient that matters appear with proper light and certainty to a common understanding, without that minute exactness which is required in criminal proceedings in Westminster Hall.”[168]

Thus early was the “minute exactness” of a criminal court discarded, while the proceedings were adapted to “a common understanding.” This becomes important, not only as a true rule of procedure, but as an answer to some of the apologists, especially the Senator from West Virginia [Mr. Van Winkle], who makes technicality a rule and essential condition.

Accordingly by law and custom of Parliament we are to move; and here we meet rules of pleading and principles of evidence entirely different from those of the Common Law, but established and fortified by a long line of precedents. This stands forth in the famous “Report from the Committee of the House of Commons appointed to inspect the Lords’ Journals in relation to their Proceedings on the Trial of Warren Hastings,” which, beyond its official character, is enhanced as the production of Edmund Burke.

“Your Committee do not find that any rules of pleading, as observed in the inferior courts, have ever obtained in the proceedings of the High Court of Parliament, in a cause or matter in which the whole procedure has been within their original jurisdiction. Nor does your Committee find that any demurrer or exception, as of false or erroneous pleading, hath been ever admitted to any impeachment in Parliament, as not coming within the form of the pleading.”[169]

This principle appears in the great trial of Strafford, 16th Charles the First, 1640-41, stated by no less a person than Pym, on delivering a message of the Commons reducing the charges to more particularity: “Not that they are bound by this way of special charge; and therefore, as they have taken care in their House, upon protestation, that this shall be no prejudice to bind them from proceeding upon generals in other cases, and that they are not to be ruled by proceedings in other courts, which protestation they have made for preservation of power of Parliaments, so they desire that the like care may be had in your Lordships’ House.”[170] In this broad language is a just rule applicable to the present case.

The question came to formal judgment on the memorable trial of the Tory preacher, Sacheverell, March 10, 1709-10, impeached for high crimes and misdemeanors, on account of two sermons in which he put forth the doctrines of Non-Resistance and denounced the Revolution of 1688, by which English liberty was saved. After argument on both sides, and questions propounded by the Lords, the judges delivered their opinion seriatim, that, by the law of England and the constant practice of Westminster Hall, “the particular words supposed to be criminal ought to be specified in indictments or informations.” And yet, in face of this familiar and indisputable rule of the Common Law, thus pointedly declared, the Lords solemnly resolved:—

“That, by the law and usage of Parliament, in prosecutions by impeachments for high crimes and misdemeanors, by writing or speaking, the particular words supposed to be criminal are not necessary to be expressly specified in such impeachments.”[171]

The respondent, being found guilty, moved in arrest of judgment:—

“That no entire clause, sentence, or expression, contained in either of his sermons or dedications, is particularly set forth in his impeachment, which he has already heard the judges declare to be necessary in all cases of indictments or informations.”[172]

The Lord Chancellor, denying the motion, communicated to the respondent the resolution already adopted after full debate and consideration, and added:—

“So that, in their Lordships’ opinion, the law and usage of the High Court of Parliament being a part of the law of the land, and that usage not requiring the words should be expressly specified in impeachments, the answer of the judges, which related only to the course used in indictments and informations, does not in the least affect your case.”[173]

And so the judgment was allowed to stand.

The substantial justice of this proceeding is seen, when it is considered that the whole of the libel had been read at length, so that the respondent had the benefit of anything which could be alleged in extenuation or exculpation, as if the libellous sermons had been entered verbatim. The Report already cited presents the practical conclusion:—

“It was adjudged sufficient to state the crime generally in the impeachment. The libels were given in evidence; and it was not then thought of, that nothing should be given in evidence which was not specially charged in the impeachment.”[174]

The principle thus solemnly adjudged was ever afterwards asserted by the managers for the House of Commons in all its latitude, and with an energy, zeal, and earnestness proportioned to the magnitude of the interests involved,—as appeared conspicuously on the impeachment for high treason of the Lords who had taken part in the Rebellion of 1715 to bring back the Stuarts. Lord Wintoun, after conviction, moved in arrest of judgment, and excepted against the impeachment for error, on account of the treason not being described with sufficient certainty,—the day on which the treason was committed not having been alleged. The learned counsel, arguing that Parliamentary Law was part of Common Law, submitted “whether there is not the same certainty required in one method of proceeding at the Common Law as in another.”[175] To this ingenious presentment, by which proceedings in Parliament were brought within the grasp of the Common Law, the able and distinguished managers replied with resolution, asserting the supremacy of Parliamentary Law. Walpole, afterwards the famous Prime Minister, began:—

“Those learned gentlemen seem to forget in what court they are. They have taken up so much of your Lordships’ time in quoting of authorities and using arguments to show your Lordships what would quash an indictment in the courts below, that they seem to forget they are now in a court of Parliament and on an impeachment of the Commons of Great Britain.… I hope it will never be allowed here as a reason, that what quashes an indictment in the courts below will make insufficient an impeachment brought by the Commons of Great Britain.”[176]

The Attorney-General supported Walpole:—

“I would take notice that we are upon an impeachment, and not upon an indictment. The courts below have set forms to themselves, which have prevailed for a long course of time, and thereby are become the forms by which those courts are to govern themselves; but it never was thought that the forms of those courts had any influence on the proceedings of Parliament.”[177]

Cowper, a brother of the Lord Chancellor of that name, said:—

“If the Commons, in preparing articles of impeachment, should govern themselves by precedents of indictments, in my humble opinion they would depart from the ancient, nay, the constant, usage and practice of Parliament.”[178]

Sir William Thomson followed:—

“The precedents in impeachments are not so nice and precise in form as in the inferior courts.”[179]

The judges, in answer to questions propounded, declared the necessity in indictments of mentioning “a certain day.” But the Lords, in conformity with ancient usage, set aside this technical objection, and announced:—

“That the impeachment is sufficiently certain in point of time, according to the forms of impeachments in Parliament.”[180]

Thus do authoritative precedents exhibit a usage of Parliament, or Parliamentary Law, unlike that of the Common Law, which on trials of impeachment seeks substantial justice, but is not “nice and precise in form.” If the proceedings are not absolutely according to the rule of reason, plainly the technicalities of the Common Law are out of place. It is enough, if they are clear to “a common understanding,” without the “minute exactness” of a criminal court. But this is according to reason. A mere technicality, much more a quibble, often efficacious on a demurrer, is a wretched anachronism, when we are considering a question of political duty. Especially must this be so under the genius of republican institutions. The latitude established in England cannot be curtailed in the United States, and it becomes more essential in proportion to the elevation of the proceedings. Ascending into the region of history, the laws of history cannot be neglected.

Even if the narrow rules and exclusions of the Common Law could be tolerated on the impeachment of an inferior functionary, they must be disclaimed on the trial of a chief magistrate, involving the public safety. The technicalities of law were invented for protection against power, not for the immunity of a usurper or tyrant. When set up for the safeguard of the weak, they are respectable, but on impeachments they are intolerable. Here again I cite Edmund Burke:—

“God forbid that those who cannot defend themselves upon their merits and their actions may defend themselves behind those fences and intrenchments that are made to secure the liberty of the people, that power and the abusers of power should cover themselves by those things which were made to secure liberty!”[181]

Never was there a case where this principle was more applicable than now.

The origin of impeachment in the National Constitution and contemporary authority vindicate this very latitude. In this light the proceeding was explained by the “Federalist,” in words which should be a guide now:—

“This can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.”[182]

This article was by Alexander Hamilton, writing in concert with James Madison and John Jay. Thus, by the highest authority, at the adoption of the National Constitution, it is declared that impeachment “can never be tied down by strict rules,” and that this latitude is applicable to “the delineation of the offence,” meaning thereby the procedure or pleading, and also to “the construction of the offence,” in both of which cases the “discretion” of the Senate is enlarged beyond that of ordinary courts, and so the ancient Parliamentary Law is vindicated, and the Senate is recognized within its sphere.

RULES OF EVIDENCE.

From form of procedure I pass to rules of evidence; and here again the Senate must avoid technicalities, and not allow any artificial rule to shut out the truth. It would allow no such thing on the expulsion of a Senator. How allow it on the expulsion of a President? On this account I voted to admit all evidence offered during the trial,—believing, in the first place, that it ought to be heard and considered, and, in the second place, that, even if shut out from this Chamber, it could not be shut out from the public, or be shut out from history, both of which must be the ultimate judges. On the impeachment of Prince Polignac and his colleagues of the French Cabinet, in 1830, for signing the ordinances which cost Charles the Tenth his throne, some forty witnesses were sworn, without objection, in a brief space of time, and no testimony was excluded. An examination of the two volumes entitled “Procès des Derniers Ministres de Charles X.” confirms what I say. This example, which commends itself to the enlightened reason, seems in harmony with declared principles of Parliamentary Law.

As in pleadings, so in evidence, the Law of Parliament, and not the Common Law, is the guide of the Senate. In other courts the rules vary, as on trial by jury in the King’s Bench depositions are not received, while in Chancery just the reverse is the case. The Court of Parliament has its own rules. Here again I quote the famous Report:—

“No doctrine or rule of law, much less the practice of any court, ought to have weight or authority in Parliament further than as such doctrine, rule, or practice is agreeable to the proceedings in Parliament, or hath received the sanction of approved precedent there, or is founded on the immutable principles of substantial justice, without which, your Committee readily agrees, no practice in any court, high or low, is proper or fit to be maintained.”[183]

The true rule was enunciated:—

“The Court of Parliament ought to be open with great facility to the production of all evidence, except that which the precedents of Parliament teach them authoritatively to reject, or which hath no sort of natural aptitude directly or circumstantially to prove the case.… The Lords ought to enlarge, and not to contract, the rules of evidence, according to the nature and difficulties of the case.”[184]

Its point appears in a single sentence:—

“To refuse evidence is to refuse to hear the cause.”[185]

In striking harmony with this most reasonable conclusion is the well-known postulate of Jeremy Bentham, who gave so much thought to the Law of Evidence: “Evidence is the basis of justice: to exclude evidence is to exclude justice.”[186]

The precedents of impeachment, including the trials of Strafford, Sacheverell, Macclesfield, and the Rebel Lords in 1715, and again in 1745, all illustrate the liberality of the proceedings, while the judgment of Lord Hardwicke, in concurrence with the rest of the judges, and with the support of the bar, announced, that “the judges and sages of the law have laid it down that there is but one general rule of evidence,—the best that the nature of the case will admit.”[187] And this is the master rule governing all subordinate rules. In harmony with it is another announced by Lord Mansfield: “All evidence is according to the subject-matter to which it is applied.”[188] These two rules are expansive, and not narrow,—liberal, and not exclusive. They teach us to regard “the nature of the case” and “the subject-matter.” But the case is an impeachment, and the subject-matter is misbehavior in high office. Before us is no common delinquent, whose offence is against a neighbor, but the Chief Magistrate, who has done wrong to his country. One has injured an individual, the other has injured all. Here again I quote the Report:—

“The abuses stated in our impeachment are not those of mere individual, natural faculties, but the abuses of civil and political authority. The offence is that of one who has carried with him, in the perpetration of his crimes, whether of violence or of fraud, the whole force of the State.”[189]

In such a case there must be a latitude of evidence commensurate with the arraignment. And thus we are brought to the principle with which I began.

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

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

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

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

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

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

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

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

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

OUTLINE OF TRANSGRESSIONS.

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

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

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

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

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

ACCUMULATION OF IMPEACHABLE OFFENCES.

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

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

OPEN DEFIANCE OF CONGRESS.

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

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

IMPEACHMENT AT LAST.

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

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

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

ARTICLES OF IMPEACHMENT.

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

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

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

TENURE-OF-OFFICE ACT.

The general object of the Tenure-of-Office Act was to protect civil officers from removal without the advice and consent of the Senate; and it was made in express terms applicable to “every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate.” To this provision, so broad in character, was appended a proviso:—

“Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”[198]

As this general protection from removal without the advice and consent of the Senate might be productive of embarrassment during the recess of the Senate, it was further provided, in a second section, that, during such recess, any person, except judges of the United States courts, may be suspended from office by the President on reasons assigned, which it is made his duty to report to the Senate within twenty days after its next meeting, and if the Senate concurs, then the President may remove the officer and appoint a successor; but if the Senate does not concur, then the suspended officer shall forthwith resume his functions.

On this statute two questions arise: first, as to its constitutionality, and, secondly, as to its application to Mr. Stanton, so as to protect him from removal without the advice and consent of the Senate.

It is impossible not to confess in advance that both have been already practically settled. The statute was passed over the veto of the President by two thirds of both Houses, who thus solemnly united in declaring its constitutionality. Then came the suspension of Mr. Stanton, and his restoration to office by a triumphant vote of the Senate, being no less than thirty-five to six,—thus establishing not only the constitutionality of the statute, but also its protecting application to Mr. Stanton. And then came the resolution of the Senate, adopted, after protracted debate, on the 21st February, by a vote of twenty-eight to six, declaring, that, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that office ad interim; thus for the third time affirming the constitutionality of the statute, and for the second time its protecting application to Mr. Stanton. There is no instance in our history where there has been such a succession of votes, with such large majorities, declaring the conclusions of the Senate, and fixing them beyond recall. “Thrice is he armed that hath his quarrel just”; but the Tenure-of-Office Act is armed thrice, by the votes of the Senate. The apologists of the President seem to say of these solemn votes, “Thrice the brinded cat hath mewed”; but such a threefold record cannot be treated with levity.

The question of the constitutionality of this statute complicates itself with the power of removal under the National Constitution; but I shall not consider the latter question at this stage. It will naturally present itself when we consider the power of removal under the National Constitution, which has been claimed by the President. For the present I assume the constitutionality of the statute.

ITS APPLICATION TO MR. STANTON.

I come at once to the question of the application of the statute to Mr. Stanton, so as to protect him against removal without the consent of the Senate. And here I doubt if any question would have arisen but for the hasty words of the Senator from Ohio [Mr. Sherman], so often quoted in this proceeding.

Unquestionably the Senator from Ohio, when the report of the Conference Committee of the two Houses was under discussion, stated that the statute did not protect Mr. Stanton in his office; but this was the individual opinion of this eminent Senator, and nothing more. On hearing it, I cried from my seat, “The Senator must speak for himself”; for I held the opposite opinion. It was clear to my mind that the statute was intended to protect Mr. Stanton, and that it did protect him. The Senator from Oregon [Mr. Williams], who was Chairman of the Conference Committee and conducted its deliberations, informs us that there was no suggestion in committee that the statute did not protect all of the President’s Cabinet, including, of course, Mr. Stanton. The debates in the House of Representatives are the same way. Without holding the scales to weigh any such conflicting opinions, I rest on the received rule of law, that they cannot be taken into account in determining the meaning of the statute. And here I quote the judgment of the Supreme Court of the United States, pronounced by Chief Justice Taney:—

“In expounding this law, the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both Houses, and the only mode in which that will is spoken is in the Act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed.”[199]

It is obvious to all acquainted with a legislative body that the rule thus authoritatively declared is the only one that could be safely applied. The Senate, in construing the present statute, must follow this rule. Therefore I repair to the statute, stopping for a moment to glance at the public history of the times, in order to understand its object.

We have seen how the President, in carrying forward his usurpation in the interest of the Rebellion, trifled with the Senate in regard to appointments, and abused the traditional power of removal, openly threatening good citizens in office that he would “kick them out,” and filling all vacancies, from high to low, with creatures whose first promise was to sustain his barbarous policy. I do not stop to portray this outrage, constituting an impeachable offence, according to the declared opinion of Mr. Madison,[200] one of the strongest advocates of the Presidential power of removal. Congress, instead of adopting the remedy suggested by this father of the Constitution, and expelling the President by process of impeachment, attempted to wrest from him the power he was abusing. For this purpose the Tenure-of-Office Act was passed. It was deemed advisable to include the Cabinet officers within its protection; but, considering the intimate relations between them and the President, a proviso was appended, securing to the latter the right of choosing them in the first instance. Its object was, where the President finds himself, on accession to office, confronted by a hostile Senate, to assure this right of choice, without obliging him to keep the Cabinet of his predecessor; and accordingly it says to him, “Choose your own Cabinet, but expect to abide by your choice, unless you can obtain the consent of the Senate to a change.”

Any other conclusion is flat absurdity. It begins by misconstruing the operative words of the proviso, that the Cabinet officers “shall hold their offices respectively for and during the term of the President by whom they may have been appointed.” On the face there is no ambiguity here. Only by going outside can any be found, and this disappears on a brief inquiry. At the date of the statute Andrew Johnson had been in office nearly two years. Some of his Cabinet were originally appointed by President Lincoln; others had been formally appointed by himself. But all were there equally by his approval and consent. One may do an act himself, or make it his own by ratifying it, when done by another. In law it is equally his act. Andrew Johnson did not originally appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their appointments; so that at the passage of the statute they stood on the same footing as if originally appointed by him. Practically, and in the sense of the statute, they were appointed by him. They were a Cabinet of his own choice, just as much as the Cabinet of his successor, duly appointed, will be of his own choice. If the statute compels the latter, as it clearly does, to abide by his choice, it is unreasonable to suppose that it is not equally obligatory on Andrew Johnson. Otherwise there is special immunity for the President whose misconduct rendered it necessary, and Congress is exhibited as legislating for some future unknown President, and not for Andrew Johnson, already too well known.

Even the Presidential apologists do not question that the members of the Cabinet commissioned by Andrew Johnson are protected by the statute. How grossly unreasonable to suppose that Congress intended to make such a distinction among his Cabinet as to protect those whose support of his usurpation had gained the seats they enjoyed, while it exposed to his caprice a great citizen whose faithful services during the war had won the gratitude of his country, whose continuance in office was regarded as an assurance of public safety, and whose attempted removal has been felt as a national calamity! Clearly, then, it was the intention of the statute to protect the whole Cabinet, whether originally appointed by Andrew Johnson, or originally appointed by his predecessor and continued by him.

I have no hesitation in saying that no other conclusion is possible without violence to the statute. I cannot forget, that, while we are permitted “to open the law upon doubts,” we are solemnly warned “not to open doubts upon the law.”[201] It is Lord Bacon who gives us this rule, whose obvious meaning is, that, where doubts do not exist, they should not be invented. It is only by this forbidden course that any question can be raised. If we look at the statute in its simplicity, its twofold object is apparent,—first, to prohibit removals, and, secondly, to limit certain terms of service. The prohibition to remove plainly applies to all; the limitation of service applies only to members of the Cabinet. I agree with the excellent Senator from Iowa [Mr. Harlan], that this analysis removes all ambiguity. The pretension that any one of the Cabinet was left to the unchecked power of the President is irreconcilable with the concluding words of the proviso, which declare that they shall be “subject to removal by and with the advice and consent of the Senate,”—thus expressly excluding the prerogative of the President.

Let us push this inquiry still further, by looking more particularly at the statute reduced to a skeleton, so that we may see its bones.

1. Every person holding any civil office, by and with the advice and consent of the Senate, is entitled to hold such office until a successor is appointed.

2. If members of the Cabinet, then during the term of the President by whom they have been appointed, and one month thereafter, unless sooner removed by consent of the Senate.

Mr. Stanton obviously falls within the general class, “every person holding any civil office”; and he is entitled to the full benefit of the provision for their benefit.

As obviously he falls within the sub-class, members of the Cabinet.

Here his rights are equally clear. It is in the discussions under this head that the ingenuity of lawyers has found amplest play, mainly turning upon what is meant by “term” in the statute. I glance for a moment at some of these theories.

1. One pretension is, that, the “term” having expired with the life of President Lincoln, Mr. Stanton is retroactively legislated out of office on the 15th May, 1865. As this is a penal statute, this construction makes it ex post facto, and therefore unconstitutional. It also makes Congress enact the absurdity that Mr. Stanton had for two years been holding office illegally; whereas he had been holding under the clearest legal title, which could no more be altered by legislation than black could be made white. A construction rendering the statute at once unconstitutional and absurd must be rejected.

2. The quibble that would exclude Mr. Stanton from the protection of the statute, because he was appointed during the first “term” of President Lincoln, and the statute does not speak of “terms,” is hardly worthy of notice. It leads to the same absurd results as follow from the first supposition, enhanced by increasing the retroactive effect.

3. Assuming that the statute does not terminate Mr. Stanton’s right a month after President Lincoln’s death, it is insisted that it must take effect at the earliest possible moment, and therefore on its passage. From this it follows that Mr. Stanton has been illegally in office since the 2d of March, 1867, and that both he and the President have been guilty of a violation of law, the former in exercising the duties of an office to which he had no right, and the latter for appointing him, or continuing him in office, without consent of the Senate, in violation of the Constitution and the statute in question. This is another absurdity to be rejected.

Assuming, as is easy, that it is President Lincoln’s “term,” we have the better theory, that it did not expire with his life, but continues until the 4th of March, 1869, in which event Mr. Stanton is clearly entitled to hold until a month thereafter. This construction is entirely reasonable, and in harmony with the Constitution, and the legislation under it. I confess that it is one to which I have often inclined.

This brings me back to the construction with which I began, and I find Andrew Johnson the President who appointed Mr. Stanton. To make this simple, it is only necessary to read “chosen” for “appointed” in the statute,—or, if you please, consider the continuance of Mr. Stanton in office, with the concurrence of the President, as a practical appointment, or equivalent thereto. Clearly Mr. Stanton was in office, when the statute passed, from the “choice” of the President. Otherwise he would have been removed. His continuance was like another commission. This carries out the intention of the framers of the statute, violates no sound canon of construction, and is entirely reasonable in every respect. Or, if preferred, we may consider the “term” that of President Lincoln, and then Mr. Stanton would be protected in office until one month after the 4th of March next. But whether the “term” be of Andrew Johnson or President Lincoln, he is equally protected.

Great efforts have been made to show that Mr. Stanton does not come within the special protection of the proviso, without considering the irresistible consequence that he is then within the general protection of the statute, being “a person holding a civil office.” Turn him out of the proviso and he falls into the statute, unless you are as imaginative as one of the apologists, who placed him in a sort of intermediate limbo, like a lost spirit floating in space, as in one of Flaxman’s Illustrations of Dante. But the imagination of this conception cannot make us insensible to its surpassing absurdity. It is utterly unreasonable, and every construction must be rejected which is inconsistent with common sense.

SUSPENSION OF MR. STANTON RECOGNIZED HIM AS PROTECTED BY THE STATUTE.

Here I might close this part of the case; but there is another illustration. In suspending Mr. Stanton from office, as long ago as August, the President himself recognized that he was protected by the statute. The facts are familiar. The President, in formal words, undertook to say that the suspension was by virtue of the Constitution; but this was a dishonest pretext, in harmony with so much in his career. Whatever he may say, his acts speak louder than his words. In notice of the suspension to the Secretary of the Treasury, and then again in a message to the Senate assigning his reasons for the suspension, both being according to requirements of the statute, he testified, that, in his judgment at that time, Mr. Stanton came within its protection. If not, why thus elaborately comply with its requirements? Why the notice to the Secretary of the Treasury? Why the message to the Senate? All this was novel and without example. Why write to General Grant of “being sustained” by the Senate? Approval or disapproval of the Senate could make no difference in the exercise of the power he now sets up. Approval could not confirm the suspension; disapproval could not restore the suspended Secretary of War. In fine, why suspend at all? Why exercise the power of suspension, when the President sets up the power of removal? If Mr. Stanton was unfit for office and a thorn in his side, why not remove him at once? Why resort to this long and untried experiment merely to remove at last? There is but one answer. Beyond all question the President thought Mr. Stanton protected by the statute, and sought to remove him according to its provisions, beginning, therefore, with his suspension. Failing in this, he undertook to remove him in contravention of the statute, relying in justification on his pretension to judge of its constitutionality, or the pusillanimity of Congress, or something else “to turn up,” which should render justification unnecessary.

Clearly the suspension was made under the Tenure-of-Office Act, and can be justified in no other way. From this conclusion the following dilemma results: If Mr. Stanton was within the statute, by what right was he removed? If he was not, by what right was he suspended? The President may choose his horn. Either will be sufficient to convict.

I should not proceed further under this head but for the new device which makes its appearance under the auspices of the Senator from Maine [Mr. Fessenden], who tells us, that, “whether Mr. Stanton came under the first section of the statute or not, the President had a clear right to suspend him under the second.” Thus a statute intended as a bridle on the President gives the power to suspend Mr. Stanton, but fails to give him any protection. This statement would seem enough. The invention of the Senator is not less fallacious than the pretext of the President. It is a device well calculated to help the President and to hurt Mr. Stanton, with those who regard devices more than the reason of the statute and its spirit.

Study the statute in its reason and its spirit, and you cannot fail to see that the second section was intended merely as a pendant to the first, and was meant to apply to the cases included in the first, and none other. It was a sort of safety-valve, or contrivance to guard against possible evils from bad men who could not be removed during the recess of the Senate. There was no reason to suspend a person who could be removed. It is absurd to suppose that a President would resort to a dilatory and roundabout suspension, when the short cut of removal was open to him. Construing the statute by this plain reason, its second section must have precisely the same sphere of operation as the first. By the letter, Mr. Stanton falls within both; by the intention, it is the same. It is only by applying to the first section his own idea of the intention, and by availing himself of the letter of the second, that the Senator is able to limit the one and to enlarge the other, so as to exclude Mr. Stanton from the protection of the statute, and to include him in the part allowing suspensions. Applying either letter or spirit consistently, the case is plain.

I turn for the present from the Tenure-of-Office Act, insisting that Mr. Stanton is within its protection, and, being so, that his removal was, under the circumstances, a high misdemeanor, aggravated by its defiant purpose and the long series of transgressions which preceded it, all showing a criminal intent. The apologies of the President will be considered hereafter.

SUBSTITUTION OF ADJUTANT-GENERAL THOMAS AD INTERIM.

The case of Mr. Stanton has two branches: first, his removal, and, secondly, the substitution of Adjutant-General Thomas as Secretary of War ad interim. As the former was contrary to positive statute, so also was the latter without support in any Act of Congress. For the present I content myself with the latter proposition, without opening the question of Presidential powers under the National Constitution.

The offender rests his case on the Act of Congress of February 13, 1795, which empowers the President, “in case of vacancy in the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, … whereby they cannot perform the duties of their said respective offices, … to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed, or such vacancy be filled”; and the supply of the vacancy is limited to six months.[202] Under this early statute the President defends himself by insisting that there was a “vacancy,” when, in fact, there was none. All this is in that unfailing spirit of prerogative which is his guide. Here is assumption of power. In fact, Mr. Stanton was at his office, quietly discharging its duties, when the President assumed that there was a “vacancy,” and forthwith sent the valiant Adjutant-General to enter upon possession. Assumption and commission were on a par. There is nothing in any law of the land to sanction either. Each testifies against the offender.

The hardihood of this proceeding becomes more apparent, when it is understood that this very statute of 1795, on which the offender relies, was repealed by the statute of February 20, 1863,[203] passed in our own day, and freshly remembered. The latter statute, by necessary implication, obliterated the former. Such is the obvious intention, and I do not hesitate to say that any other construction leads into those absurdities which constitute the staple of the Presidential apologists. The object of Congress was to provide a substitute for previous statutes, restricting the number of vacancies which might be filled and the persons who might fill them. And this was done.

As by the National Constitution all appointments must be with the advice and consent of the Senate, therefore any legislation in derogation thereof must be construed strictly; but the President insists that it shall be extended, even in face of the constitutional requirement. To such pretensions is he driven! The exception recognized by the National Constitution is only where a vacancy occurs during the recess of the Senate, when the President is authorized to appoint until he can obtain the consent of the Senate, and no longer. Obviously, cases may arise where sudden accident vacates the office, or where the incumbent is temporarily disabled. Here was the occasion for an ad interim appointment, and the repealing statute, embodying the whole law of the subject, was intended for such cases,—securing to the President time to select a successor, and also power to provide for a temporary disability. Such is the underlying principle, which it is for us to apply. The expiration of a commission, which ordinary care can foresee, is not one of the sudden emergencies for which provision must be made; and assuming that vacancies by removal were contemplated, which must be denied, it is plain that the delay required for the examination of the case would give time to select a successor, while removal without cause would never be made until a successor was ready.

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

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

REMOVAL AND SUBSTITUTION AD INTERIM A VIOLATION OF THE CONSTITUTION.

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

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

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