“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.