Thus must we conclude that the offender has violated not only the Tenure-of-Office Act, but also the National Constitution; that, even assuming Mr. Stanton unprotected by the statute, the case is not ended; that this statute, if construed so as to exclude him, cannot be rejected as a Congressional construction of the National Constitution; and that, under this Congressional construction, which in value is second only to a Constitutional Amendment, the prerogative of removal without the consent of the Senate does not belong to the President. Of course the power of suspension under the National Constitution, which is only an incident of the larger pretension, must fall also. Therefore, in the defiant removal of Mr. Stanton, and also in the pretended suspension under the National Constitution with which the transaction began, the President violated the Constitution, and was guilty of an impeachable offence.
And so, too, we must conclude, that, in the substitution of Lorenzo Thomas as Secretary of War ad interim, the offender violated not only the Acts of Congress for the supply of vacancies, but also the National Constitution. Knowing that he could not obtain possession of the office with the consent of the Senate, he sought to accomplish this purpose without that consent. Thus, under color of a statute, he practically set the National Constitution at defiance. Mark here the inconsistency. He violates the Tenure-of-Office Act, alleging that it is against the National Constitution, whose champion he professes to be, and then takes advantage of the Acts of Congress for the supply of vacancies to set aside this Constitution in one of its most important requirements; for all which he is justly charged with an impeachable offence.
All this seems clear. Any other conclusion gives to the President the power under the National Constitution to vacate all national offices, and leaves the Republic the wretched victim of tyranny, with a ruler who is not even a constitutional monarch, but a king above all laws. It was solemnly alleged in the Charge against Charles the First of England, that, “being admitted King of England, and therein trusted with a limited power to govern by and according to the laws of the land, and NOT OTHERWISE,” he nevertheless undertook “to rule according to his will, and to overthrow the rights and liberties of the people.”[207] These very words now declare the crime of Andrew Johnson.
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.