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.