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.