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:—