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.
TECHNICALITIES AND QUIBBLES.
I now come upon that swarm of technicalities, devices, quirks, and quibbles, which from the beginning have infested this proceeding. It is hard to speak of such things without showing a contempt not entirely parliamentary. To say that they are petty and miserable is not enough. To say that they are utterly unworthy of this historic occasion is to treat them politely. They are nothing but parasitic insects, “vermin gendered in a lion’s mane,”—so nimble and numerous, that, to deal with them as they skip about, one must have the patience of the Italian peasant, who catches and kills, one by one, the diminutive animals that infest his person. The public has not forgotten the exhibition of “industrious fleas.” The Senate has witnessed the kindred exhibition of “industrious quibbles.”
I can give specimens only, and out of many I take one which can never be forgotten. It is found in the Opinion of the Senator from West Virginia [Mr. Van Winkle], which, from beginning to end, treats this impeachment as if it were a prosecution for sheep-stealing in the police-court of Wheeling, and brings to the defence the unhesitating resources of a well-trained criminal lawyer. This famous Opinion, which is without parallel in the annals of jurisprudence, must always be admired as the marvel of technicality in a proceeding where technicality should not intrude. It stands by itself, solitary in originality. Others have been technical also, but the Senator from West Virginia is nothing else. Travelling from point to point, or rather seeing point after point skip before him, at last he lights upon one of the largest dimensions, which he boldly seizes and presents to the Senate.
According to him, there is no allegation in the Articles that the order for the removal of Mr. Stanton was actually delivered to him, and, this being so, the Senator declares, that, “if there is evidence of a delivery to be found in the proceedings, it cannot be applicable to this Article, in which there is no charge or averment.” And this is gravely uttered on this transcendent occasion, when an indignant people has risen to demand judgment of a criminal ruler. The Article alleges that the order was “unlawfully issued,” and nobody doubts that its delivery was proved; but this is not enough, according to the Senator. I challenge history for another instance of equal absurdity in legal pretension. The case approaching it the closest is the famous extravagance of the Crown lawyer in the British Parliament, who, in reply to the argument of our fathers that they could not be taxed without representation, bravely insisted that they were represented, and sustained himself by declaring, that, under the Colonial charters, the lands were held in common socage as “of the manor of Greenwich in Kent,” and, as Greenwich was represented in Parliament, therefore the Colonies were represented there.[211] The pretension was perfect in form, but essentially absurd. The Senator from West Virginia outdoes even this climax of technicality. Other generations, as they read this great trial, with its accumulation of transgressions ending in the removal of Mr. Stanton, will note with wonder that a principal reason assigned for the verdict of Not Guilty was the failure of the Articles to allege that the order for removal was actually received, although there was a distinct allegation that it was “unlawfully issued,” with evidence that it was received, and no human being, not even the technical Senator, imagined that it was not. But how inconsistent with the Law of Impeachment already set forth,[212] which seeks substantial justice, and will not be arrested by any nice requirements! Lord Mansfield did not hesitate to condemn certain objections as “disgraceful subtilties.” What would he have said to the Senator from West Virginia?
There is another invention, which has in its support some of the ablest of the apologists, like the Senator from Iowa [Mr. Grimes], the Senator from Maine [Mr. Fessenden], and the Senator from Illinois [Mr. Trumbull]. It is said, that, as Mr. Stanton did not go out, therefore there was no removal, and therefore Andrew Johnson is not guilty. If the authority of names could change the unreal into the real, then this pretension might have weight. It is impossible that anything so essentially frivolous should be recognized in this proceeding. Such are the shifts of a cause to be defended only by shifts! Clearly the offence of the President was in the order “unlawfully issued,” and this was complete at the moment of its delivery. So far as depended upon him, Mr. Stanton was removed. This is the way in which the country saw the transaction, and the way also in which it will be recorded by history.
But these same apologists, with curious inconsistency, when they come to consider the appointment of Adjutant-General Thomas, insist that there was vacancy in law, called by the Senator from Maine legal vacancy. But such vacancy could be only because there had been removal in law. There is no escape from this consequence. If there was removal in law, and there was no right to make it, the President was guilty of misdemeanor in law, and must take the consequences.
It would be unprofitable to follow these inventions further. From these know all. In the face of Presidential pretensions inconsistent with constitutional liberty, the apologists have contributed their efforts to save the criminal by subtilties which can secure his acquittal in form only, as by a flaw in an indictment; and they have done this, knowing that he will be left in power to assert his prerogative, and that his acquittal will be a new letter of license. Nothing the skill of the lawyer could supply has been wanting. This learned profession lends to the criminal all the arts in which it excels, giving all to him and forgetting the Republic. Every doubt, every scruple, every technicality, every subtilty, every quibble, is arrayed on his side, when, by every rule of reason and patriotism, all should be arrayed on the side of our country. The Public Safety, which is the supreme law, is now imperilled. Are we not told by Blackstone that “the law is always ready to catch at anything in favor of Liberty”?[213] But these apologists catch at anything to save a usurper. In the early days of the Common Law there were technicalities in abundance, but they were for the maintenance of justice. On such was founded that extensive ac etiam jurisdiction of the King’s Bench, which gives occasion for the elegant Commentator to remark, that, however startling these may be at first to the student, “he will find them, upon further consideration, to be highly beneficial and useful.”[214] These generous fictions for the sake of justice must not be confounded with the devices by which justice is defeated.
The trick of the apologists has been, by stringent application of technical rules, to shut out all except offences charged, and then, when stress was laid upon these offences, to cry out that at most they were only technical, and too trifling for impeachment. To satisfy lawyers, the House weakly declined to act on the bloody transgressions of two years, but sought to provide against the future. Like the Roman ambassadors, they traced a line about the offender, which he was not to pass except at peril. This was the line of law. At last he passed the line, openly, knowingly, defiantly; and now that he is arraigned, we are told that this plain offence is nothing, only a little technicality. One of the counsel at the bar, [Mr. Groesbeck,] in a speech which showed how much feeling and talent could be given to a wrong side, exclaimed:—