“It almost shocks me to think that the President of the United States is to be dragged out of his office on these miserable little questions whether he could make an ad interim appointment for a single day.”
Only by excluding the whole context and all its antecedents could the question be reduced to this trivial form; and yet, even thus reduced, it involved nothing less than the supremacy of the laws.
I know not how such a question can be called “trifling.” Often a great cause is presented on a narrow issue: as when English liberty was argued on the claim of ship-money, which was a tax of a few shillings only. Behind this question, called trifling by the kingly apologists of that day, loftily stood the great cause of the People against Prerogative, being the same now pending before the Senate. That other cause, on which at a later day hung the destinies of this continent, was presented on a narrower issue still. There was a tax of threepence a pound on tea, which our fathers refused to pay. But behind this question, so trifling to the apologists of prerogative, as behind that of ship-money, stood loftily the same great cause. The first cost Charles the First his head. The second cost George the Third his colonies. If such a question can be disparaged as of small moment, then have the martyred dead in all times suffered in vain, then was the costly blood lavished for the suppression of our Rebellion an empty sacrifice.
Constantly we are admonished that we must confine ourselves to the Articles. Senators express a pious horror at looking outside the Articles, and insist upon directing attention to these only. Here the Senator from Maine is very strong. It is “the specific offences charged,” and these only, that he sees. He will not look at anything else, although spread upon the record of the Senate, and filling the land with accumulated horrors. Of course such a system of exclusion sacrifices justice, belittles this trial, and forgets that essential latitude of inquiry which belongs to a political proceeding, having for its purpose expulsion from office only, and not punishment. It is easy, by looking at an object through the wrong end of an opera-glass, to find it dwarfed, contracted, and solitary. This is not the way to look at Nature; nor is it the way to look at Andrew Johnson. The great offender should be seen in the light of day, precisely as he is, nor more nor less, with nothing dwarfed, with no limits to the vision, and with all the immense background of thronging transgressions filling the horizon as far as eye can reach. The sight may ache; but how else can justice be done? A Senator who begins by turning these Articles into an inverted opera-glass takes the first step towards judgment of acquittal. Alas that the words of Burke are not true, when, asserting the comprehensive character of impeachment, he denied, that, under it, “they who have no hope at all in the justice of their cause can have any hope that by some subtilties of form, some mode of pleading, by something, in short, different from the merits of the cause, they may prevail.”[215] The orator was right in thus indignantly dismissing all questions of pleading and all subtilties of form. This proceeding is of substance, and not of form. It is on the merits only that it can be judged. Anything short of this is the sacrifice of justice.
Such is the case of this enormous criminal. Events belonging to history, enrolled in the records of the Senate, and familiar to the country, are deliberately shut out from view, while we are treated to legal niceties without end. The lawyers have made a painful record. Nothing ever occurred so much calculated to bring the profession into disrepute; for never before has been such a theatre where lawyers were actors. Their peculiarities have been exhibited. Here was a great question of justice, appealing to the highest sentiments, and involving the best interests of the country; but lawyers, instinctive for the dialectics of the profession, forgot everlasting truth, never to be forgotten with impunity. They started at once in full cry, and the quibble became to them what Dr. Johnson says it was to the great dramatist: “He follows it at all adventures; it is sure to lead him out of his way, and sure to ingulf him in the mire. It has some malignant power over his mind, and its fascinations are irresistible.… A quibble is the golden apple for which he will always turn aside from his career, or stoop from his elevation. A quibble, poor and barren as it is, gave him such delight that he was content to purchase it by the sacrifice of reason, propriety, and truth.”[216] In this Shakespearean spirit our lawyers have acted. They have pursued quibbles with the ardor of the great dramatist, and even now are chasing them through the Senate Chamber.
Unhappily this is according to history, and our lawyers are not among the splendid exceptions. But there is reward for those who stand firm. Who does not reverence the exalted magistrate of France, the Chancellor L’Hospital, who set the great example of rectitude and perfect justice? Who does not honor those lawyers of English history through whose toils Liberty was upheld? There was Selden, so wise and learned; Pym, so grand in statesmanship; Somers, who did so much to establish the best securities of the Constitution. Nor can I forget, at a later day, that greatest advocate, Erskine, who lent to the oppressed his wonderful eloquence; nor Mackintosh and Brougham, who carried into courts that enlarged intelligence and sympathetic nature which the profession of the law could not constrain. These are among the names that have already had their reward, above the artful crowd which in all times has come to the defence of prerogative. It is no new thing that we witness now. The lawyer in other days has been, as we know him, prone to the support of power, and ready with technical reasons. Whichever side he takes, he finds reasons plenty as pins. When free to choose, and not hired, his argument is the reflection of himself. All that he says is his own image. He takes sides on a law point according to his sentiments. Cultured in law, and with aptitude sharpened by its contests, too easily he finds a legal reason for an illegal judgment. Next to an outright mercenary, give me a lawyer to betray a great cause. Forms of law lend themselves to the betrayal. It is impossible to forget that the worst pretensions of prerogative, no matter how colossal, have been shouldered by lawyers. It was they who carried ship-money against the patriot exertions of Hampden; and in our country it was they who held up Slavery in all its terrible pretensions from beginning to end. What is sometimes called “the legal mind” of Massachusetts, my own honored State, bent before the technical reasoning which justified the unutterable atrocities of the Fugitive Slave Bill, while the Supreme Court of the State adopted the crime from the bench. Alas that it should be so! When will lawyers and judges see that nothing short of justice can stand?
GUILTY ON ALL THE ARTICLES.
After this survey it is easy for me to declare how I shall vote. My duty is to vote, Guilty on all the Articles. If consistent with the rules of the Senate, I should vote, “Guilty of all, and infinitely more.”
Not doubting that Mr. Stanton was protected by the Tenure-of-Office Act, and that he was believed to be so by the President, it is clear to me that the charges in the first and second Articles are sustained. These two go together. I have said already, in the course of this Opinion, that the appointment of Adjutant-General Thomas as Secretary of War ad interim was without authority of law, and under the circumstances a violation of the National Constitution. Accordingly the third Article is sustained.