THE APOLOGIES.
Here I might close; but the offender has found apologists, who plead his cause at the bar and in the Senate. The apologies are a strange compound, enlarging rather than diminishing the offences proved. There is, first, the Apology of Good Intentions; next, the Apology of making a case for the Supreme Court, being the Moot-Court Apology; and then, the Apology that the President may sit in judgment on the laws, and determine whether they shall be executed, which I call the Apology of Prerogative. Following these is a swarm of technicalities, devices, and quibbles, utterly unworthy of the Senate, and to be reprobated by all who love justice.
THE APOLOGY OF GOOD INTENTIONS.
I begin with the Apology of Good Intentions. In the light of all that has occurred, with the volume of history open before us, with the records of the Senate in our hands, and with the evidence at the bar not utterly forgotten, it is inconceivable that such an apology can be put forward. While making it, the apologists should be veiled, so that the derisive smile on their faces may not be observed by the Senate, to whose simplicity it is addressed. It is hard to treat this apology; but it belongs to the case, and therefore I deal with it.
A mere technical violation of law, with no evil consequences, and without any claim of title, is followed by nominal damages only. If a person, without permission, steps on a field of grass belonging to another, he is a trespasser, and the law furnishes a familiar proceeding against him; but if he has done this accidentally, and without any real damage, it would be hard to pursue him, unless assertion of the title were thought important. But if the trespasser is an old offender, who from the beginning has broken fences, ruined trees, and trampled down the garden, and now defiantly comes upon the field of grass, insisting upon absolute ownership, then it is vain to set up the apology that very little damage is done. The antecedent transgressions, ending in claim of title, enter into the present trespass, and make it a question whether the rightful owner or the trespasser shall hold possession. Here the rightful owner is the people of the United States, and the trespasser is Andrew Johnson. Therefore in the name of the people is he impeached.
This simple illustration opens the whole case. Mere technical violation of statute or of Constitution, without antecedents and without consequents, would not justify impeachment. All of us can recall such, even in the administration of Abraham Lincoln; and I cannot doubt, that, since this proceeding began, the Chief Justice violated the National Constitution when he undertook to give a casting vote, not being a member of the Senate. These were accidents, besides being innocuous. From violation of statute or of Constitution the law ordinarily infers evil intent, and, where such a case is submitted to judgment, it throws upon the violator the burden of exculpation. He must show that his conduct was innocent,—in other words, that it was without evil intent, or claim of title. In the present cause we have the denial of evil intent, with a claim of title.
The question of intent raised by the offender cannot be considered narrowly. This is a trial of impeachment, and not a criminal case in a county court. It is a proceeding for expulsion from office on account of political offences, and not a suit at law. When the offender sets up good intentions, he challenges inquisition, according to the latitude of such proceeding. The whole past is unrolled by himself, and he cannot prevent the Senate from seeing it. By a commanding rule of evidence it is all before us without further proof. You cannot shut it out; you cannot refuse to look at it. And yet we have been seriously told that we must shut out from sight everything but the technical trespass. It only remains, that, imitating the ostrich, we should thrust our heads into the sand, and, not seeing danger, foolishly imagine it does not exist. This may do at Nisi Prius; it will not do in the Senate.
To such extent has this ostrich pretension been carried, that we were solemnly admonished at the bar, and the paradox has found voice in the Senate, that we must judge the acts of Andrew Johnson “as if committed by George Washington.” Here is the paradox in length and breadth. I deny it. I scout it. On the contrary, I say that we must judge all these acts as if committed by Andrew Johnson, and nobody else. In other words, we must see things as they are. As well insist that an act of guilt should be judged as the mistake of innocence. As well argue that the stab of the assassin should be treated as the cut of the surgeon.
To the Apology of Good Intentions I oppose all that long unbroken series of transgressions, each with a voice to drown every pretext of innocence. I would not repeat what I have already said, but, in presence of this apology, it is my duty to remind the Senate how the career of this offender is compounded of falsehood and usurpation; how, beginning with promises to make treason odious, he soon installed it in authority; how, from declared sympathy with Unionists, white and black, he changed to be their persecutor; how in him are continued the worst elements of Slavery, an insensibility to right and a passion for power; how, in this spirit, he usurped great prerogatives not belonging to him; how, in the maintenance of this usurpation, he stuck at nothing; how he violated law; how he abused the pardoning power; how he prostituted the appointing power; how he wielded the power of removal to maintain his tyranny; how he sacrificed the Freedmen’s Bureau, and lifted up the Whiskey Ring; how he patronized massacre and bloodshed, and gave a license to the Ku-Klux-Klan; how, in madness, he entered into conflict with Congress, contesting its rightful power over the reconstruction of the Rebel States, and, when Congress would not succumb to his usurpation, how he thwarted and vilified it, expectorating foul-mouthed utterances which are a disgrace to human nature; how he so far triumphed in his wickedness that in nine States no Union man is safe and no murderer of a Union man can be punished; and, lastly,—for time fails, though not the long list of transgressions,—how he conspired against the patriot Secretary of War, because he found in that adamantine character an obstacle to his revolutionary career. And now, in the face of this terrible and indisputable record, entering into and filling this impeachment, I hear a voice saying that we must judge the acts in question “as if committed by George Washington.” The statement of this pretension is enough. I hand it over to the contempt it deserves.
THE MOOT-COURT APOLOGY.
Kindred to the Apology of Good Intentions, or, perhaps, a rib out of its side, is the Moot-Court Apology, which pretends that the President, in removing Mr. Stanton, only wished to make a case for the Supreme Court, and thus submit to this tribunal the constitutionality of the Tenure-of-Office Act.
By this pretension the Supreme Court is converted into a moot-court to sit in judgment on Acts of Congress, and the President becomes what, in the time of Charles the Second, Lord Keeper Guilford said a good lawyer must be, “a put-case.”[208] Even assuming, against evidence, that such was his purpose, it is hard to treat it without reprobation. The Supreme Court is not arbiter of Acts of Congress. If this pretension ever found favor, it was from the partisans of Slavery and State Rights, who, assured of the sympathy of the Court, sought in this way to complete an unjust triumph. The power claimed is tribunitial in character, being nothing less than a veto. Its nearest parallel in history is in the ancient Justicia of Aragon, who could set aside even royal ordinances as unconstitutional. The National Constitution leaves no doubt as to the proper functions of the Supreme Court. It may hear and determine “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority”; but this is all. Its business is to decide “cases,”—not to sit in judgment on Acts of Congress and issue its tribunitial veto. If a “case” arises where a statute is said to clash with the National Constitution, it must be decided as any other case of conflict of laws. But nothing within the just powers of the Court can touch an Act of Congress, except incidentally, and then its judgment is binding only on the parties. The incidental reason assigned—as, for instance, that a statute is unconstitutional—does not bind anybody, not even the parties or the Court itself. Of course such incidental reason cannot bind Congress.
On the evidence it is clear enough that the President had no honest purpose to make a case for the Supreme Court. He may have talked about it, but he was never in earnest. When asked by General Sherman “why lawyers could not make a case,” he said, in reply, “that it was found impossible, or a case could not be made up.” And so at each stage we find him practically discarding the idea. He issues the order of removal. Mr. Stanton disobeys. Here was exactly his opportunity. Instead of making the case by commencing the proper process, he tells Adjutant-General Thomas to “go on and take possession of the office”; and then, putting an end to this whole pretension of a case for the Court, he proceeds to treat the latter in every respect, whether of law or fact, as Secretary, welcomes him to his Cabinet, invites him to present the business of his Department, and, so far from taking advantage of the opportunity he had professed to desire, denies its existence. How could he inquire by what authority Mr. Stanton assumed to hold the office of Secretary of War, when he denied, in fact, that he was holding it?
Look a little further, and the reason of this indifference becomes apparent. The old writ of Quo Warranto was the only process by which a case could be made, and this only at the suit of the Attorney-General. Had the President made an order of removal, the Secretary would have been compelled to hold only by virtue of the law and the Constitution. In answer to the writ he would have pleaded this protection, and the Court must have decided the validity of the plea. Meanwhile he would have remained in office. Had he left, the process would have failed, and there was none other by which he could raise the question. The decision of the Supreme Court in Wallace v. Anderson[209] would prevent resort to a Quo Warranto on his part, while the earlier case of Marbury v. Madison[210] would shut him out from a Mandamus. The apologists have not suggested any other remedy. It is clear, therefore, that Mr. Stanton’s possession of the office was a sine qua non to a case in the Supreme Court, and that this could be only by Quo Warranto. The local attorney employed by the President testifies that in such a case judgment could not be reached within a year. This was enough to render it impracticable; for, if commenced, it would leave the hated Secretary at his post for the remainder of the Presidential term. During the pendency of the proceeding Mr. Stanton would continue legitimate possessor of the office. Therefore the commencement of a case would defeat the Presidential passion for instant removal. True to his passion, he removed the Secretary, well knowing that in this way he prevented a case for the Court.
Against this conclusion, where all the testimony is harmonized, we have certain fruitless conversations with his Cabinet, and an attempt to raise the question on Habeas Corpus after the arrest of Adjutant-General Thomas. Conversations, whose exclusion has given a handle to the apologists, which they do not fail to use, only show that the President made this question a subject of talk, and that, in the end, it became apparent that he could not make a case so as to remove Mr. Stanton during his term, and as this was his darling object, the whole idea was abandoned. The arrest of Adjutant-General Thomas seemed for a moment to furnish another chance; but it is enough to say of the futile attempt at that time, that it was not only after the removal of Mr. Stanton, but after impeachment had been voted by the House.
Had the President been in earnest, it was very easy for him to make a case by proceeding against a simple postmaster; but this did not suit him. He was in earnest only to remove Mr. Stanton.
Nothing is clearer than that this Moot-Court Apology is a wretched pretension and afterthought. It is the subterfuge of a criminal to cover up his crime,—as if a surgeon had committed murder, and then set up the apology that it was an experiment in science.
THE APOLOGY OF PREROGATIVE.
Then comes the Apology of Prerogative, being nothing less than the intolerable pretension that the President can sit in judgment on Acts of Congress, and, in his discretion, refuse to execute them. This apology is in the nature of a claim of right. Let it be established, and, instead of a government of laws, which is the glory of a republic, we have only the government of a single man. Here is the one-man power with a vengeance.
Of course, if the President can sit in judgment on the Tenure-of-Office Act, and set it aside as unconstitutional, there is no Act of Congress he may not treat in the same way. He may set aside the whole succession of statutes for the government of the army; and his interview with General Emory attests his willingness to venture in that direction. In the spirit of oppression which seems to govern him, he may set aside the great statute for the establishment of civil rights without distinction of color. But why confine myself to instances? The whole statute-book will be subject to his prerogative. Vain the requirement of the National Constitution, that the President “shall take care that the laws be faithfully executed.” Vain that other requirement, that a bill approved by two thirds of both Houses over his veto “shall become a law.” His veto is perpetual; nor is it limited to any special enactment. It is as broad as the whole recorded legislation of the Republic. There is nothing it cannot hurry into that maelstrom ingulfing all.
The President considers the statute unconstitutional, say the apologists. A mistake in judgment on such a question is not an impeachable offence, add the apologists. To which I reply, that it is not for mistake in judgment, but for usurpation in undertaking to exercise his judgment at all on such a question, that he is impeached; in other words, he is impeached for undertaking to set aside a statute. Whether the statute is constitutional or not is immaterial. The President, after the statute has become a law, is not the person to decide.
Ingenuity seeks to perplex the question by putting impossible cases. For instance, suppose Congress should have lost its wits so far as to enact, in direct terms, that the President should not be commander-in-chief of the army and navy, or that he should not have the power to grant pardons; and suppose, still further, that Congress, in defiance of positive inhibition, should undertake to create “titles of nobility”; must not the President treat such enactments as unconstitutional? Of course he must; but such instances do not help the prerogative now claimed. Every such enactment would be on its face unconstitutional. It would be an act of unreasoning madness, which President as well as Court must disregard as if plain nonsense. Its unconstitutionality would be like an axiom, not to be questioned. No argument or authority is needed. It proves itself. Nor would the duty of disobedience be less obligatory, even if the enactment were sanctioned by the Supreme Court: and it is not more violent for me to suppose it sanctioned by the Supreme Court than for the apologists to suppose it sanctioned by Congress. The enactment would be a self-evident monstrosity, and therefore to be disobeyed, as if one of the Ten Commandments were reversed so as to read, “Thou shalt kill.” Such extreme cases serve no purpose. The National Constitution is the supreme law of the land, and the people will not allow its axiomatic requirements to be set aside. An illustration outside the limits of reason is of no value.
In the cases supposed, the unconstitutionally of the enactment is axiomatic, excluding opinion or argument. It is matter of fact, and not matter of opinion. When the case is one on which there are two sides or two different views, it is then within the domain of argument. It is in no sense axiomatic. It is no longer matter of fact, but matter of opinion. When submitted to the Supreme Court, it is for their “opinion.” Without occupying time with refinements, I content myself with asserting that the judgment of the Court must be matter of opinion. One of the apologists has asserted that such a judgment is matter of fact, and, generally, that the constitutionality of a statute is matter of fact. I assert the contrary. When a bench of judges stands five to four, shall we say that the majority declare a “fact,” and the minority declare an “opinion”?
Assuming, then, what I think will not be denied, that the constitutionality of a statute is matter of opinion, the question occurs, What opinion shall be regarded for the time as decisive? Clearly the opinion of Congress must control all executive officers, from the lowest to the President. According to a venerable maxim of jurisprudence, all public acts are presumed to be correct,—Omnia rite acta præsumuntur. A statute must be presumed constitutional, unless on its face the contrary; and no decision of any court is required in its favor. It is the law of the land, and must be obeyed as such. The maxim which presumes constitutionality is just as binding as the analogous maxim of the Criminal Law which presumes innocence. The President, reversing all this, presumes the statute unconstitutional, and acts accordingly. In the name of Prerogative he sets it aside.
The apologists have been driven to invoke the authority of President Jackson, who asserted for himself the power to judge the constitutionality of an Act of Congress which in the course of legislation required his approval, although the question involved had been already adjudged by the Supreme Court. And he was clearly right. The Court itself would not be bound by its adjudication. How could it constrain another branch of the Government? But Andrew Jackson never put forth the pretension that it was within his prerogative to nullify a statute which had been passed over his veto in the way prescribed by the National Constitution. He was courageous, but there was no such unconstitutional audacity in his life.
The apologists also summon to their aid those great instances where conscientious citizens have refused obedience to unjust laws. Such was the case of Hampden, who set an example for all time in refusing to pay ship-money. Such also was the case of many in our own country, who spurned the Fugitive Slave Bill. These exalted characters, on their conscience, refused to obey the law, and suffered accordingly. The early Christians were required by imperial mandate to strew grain on the altar of Jove. Though good citizens, they preferred to be martyrs. Such a refusal can be no apology for a President, who, in the name of prerogative, breaks the great oath to see that the laws are faithfully executed. Rather do these instances, in their moral grandeur, rebuke the offender.
Here I turn from this Apology of Prerogative, regretting that I cannot say more to unfold its destructive character. If anything could aggravate the transgressions of Andrew Johnson, stretching in long line from the beginning of his administration, it would be the claim of right he sets up, under which the slenderest violation of law becomes a high crime and misdemeanor, to be pursued and judged by an indignant people. The supremacy of the laws must be preserved, or the liberties of all will suffer.