Before entering upon the formal accusation instituted by the House
of Representatives of the United States in their own name and in the
name of all the people thereof, it is important to understand the
nature of the proceeding. And here on the threshold we encounter the
effort of the apologists seeking in every way to confound this great
constitutional trial with an ordinary case at _Nisi Prius_, and to
win for the criminal President an Old Bailey acquittal, where on some
quibble the prisoner is allowed to go without day. From beginning
to end this has been painfully apparent, thus degrading the trial
and baffling justice. Point by point has been pressed, sometimes by
counsel and sometimes even by Senators, leaving the substantial merits
untouched, as if, on a solemn occasion involving the safety of the
Republic, there could be any other question.
The first effort was to call the Senate, sitting for the trial of
impeachment, a Court, and not a Senate. Ordinarily, names are of
little consequence; but it cannot be doubted that this appellation
has been made the starting-point for technicalities proverbial in
courts. Constantly we have been reminded of what is called our judicial
character, and of the supplementary oath we have taken, as if a Senator
were not always under oath, and as if other things within the sphere
of his duties were not equally judicial in character. Out of this
plausible assumption has come that fine-spun thread which lawyers know
so well how to weave.
The whole mystification disappears, when we look at the National
Constitution, which in no way speaks of impeachment as judicial,
and in no way speaks of the Senate as a court. On the contrary, it
uses positive language inconsistent with this assumption and all its
pretended consequences. On this head there can be no doubt.
By the National Constitution it is expressly provided that “_the
judicial power_ of the United States shall be vested in one Supreme
Court and in such inferior courts as the Congress may from time to
time ordain and establish,”--thus positively excluding the Senate from
any exercise of “the judicial power.” And yet this same Constitution
provides that “the Senate shall have the sole power to try all
impeachments.” In the face of these plain texts it is impossible not to
conclude, that, in trying impeachments, Senators exercise a function
which is not regarded by the National Constitution as “judicial,” or,
in other words, as subject to the ordinary conditions of judicial
power. Call it senatorial or political, it is a power by itself, and
subject to its own conditions.
Nor can any adverse conclusion be drawn from the unauthorized
designation of “court” which has been foisted into our proceedings.
This term is very expansive, and sometimes very insignificant. In
Europe it means the household of a prince. In Massachusetts it is still
applied to the Legislature of the State, which is known as the General
Court. If applied to the Senate, it must be interpreted by the National
Constitution, and cannot be made in any respect a source of power or a
constraint.
It is difficult to understand how this term, which plays such a part
in present pretensions, obtained its vogue. It does not appear in
English impeachments, although there is reason for it there which
is not found here. From ancient times, Parliament, including both
Houses, has been called a court, and the House of Lords is known as
a court of appeal. The judgment on English impeachments embraces not
merely removal from office, as under the National Constitution, but
also punishment; and yet it does not appear that the Lords sitting
on impeachments are called a court. They are not so called in any of
the cases, from the first, in 1330, entitled simply, “Impeachment of
Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806,
entitled, “Trial of the Right Honorable Henry Lord Viscount Melville,
before the Lords’ House of Parliament in Westminster Hall, for High
Crimes and Misdemeanors whereof he was accused in certain Articles of
Impeachment.” In the historic case of Lord Bacon, we find, at the first
stage, this title, “Proceedings in Parliament against Francis Bacon
Lord Verulam,” and, after the impeachment was presented, the simple
title, “Proceedings in the House of Lords.” Had this simplicity been
followed among us, there would have been one source of misunderstanding
the less.
There is another provision of the National Constitution which testifies
still further, and, if possible, more completely. It is the limitation
of the judgment in cases of impeachment, making it political and
nothing else. It is not punishment, but protection to the Republic. It
is confined to removal from office and disqualification; but, as if
aware that this was no punishment, the National Constitution further
provides that this judgment shall be no impediment to indictment,
trial, judgment, and punishment “according to law.” Thus again is the
distinction declared between an impeachment and a proceeding “according
to law.” The former, which is political, belongs to the Senate, which
is a political body; the latter, which is judicial, belongs to the
courts, which are judicial bodies. The Senate removes from office; the
courts punish. I am not alone in drawing this distinction. It is well
known to all who have studied the subject. Early in our history it was
put forth by the distinguished Mr. Bayard, of Delaware, the father of
Senators, in the case of Blount;[151] and it is adopted by no less an
authority than our highest commentator, Judge Story, who was as much
disposed as anybody to amplify the judicial power. In speaking of this
text, he says that impeachment “is not so much designed to punish an
offender as _to secure the State against gross official misdemeanors_;
it touches neither his person nor his property, _but simply divests
him of his political capacity_.”[152] All this seems forgotten by
certain apologists on the present trial, who, assuming that impeachment
was a proceeding “according to law,” have treated the Senate to the
technicalities of the law, to say nothing of the law’s delay.
Discerning the true character of impeachment under the National
Constitution, we are constrained to confess that it is a political
proceeding before a political body with political purposes; that it
is founded on political offences, proper for the consideration of a
political body, and subject to a political judgment only. Even in
cases of treason and bribery, the judgment is political, and nothing
more. If I were to sum up in one word the object of impeachment under
the National Constitution, meaning what it has especially in view,
with its practical limitation, I should say _expulsion from office_.
The present question is, Shall Andrew Johnson, on the case before the
Senate, be expelled from office?
Expulsion from office is not unknown to our proceedings. By the
National Constitution a Senator may be expelled with “the concurrence
of two thirds,” precisely as a President may be expelled with “the
concurrence of two thirds.” In each case the same exceptional vote of
two thirds is required. Do not the two illustrate each other? From the
nature of things, they are essentially similar in character,--except
that on expulsion of the President the motion is made by the House
of Representatives at the bar of the Senate, while on expulsion of
a Senator the motion is made by a Senator. How can we require a
technicality of proceeding in the one which is rejected in the other?
If the Senate is a court, bound to judicial forms on the expulsion of
the President, must it not be the same on the expulsion of a Senator?
But nobody attributes to it any such strictness in the latter case.
Numerous precedents attest how, in dealing with its own members, the
Senate seeks substantial justice without reference to form. In the
case of Blount, which is the first in our history, the expulsion
was on the report of a committee, declaring him “guilty of a high
misdemeanor, entirely inconsistent with his public trust and duty as
a Senator.”[153] At least one Senator has been expelled on simple
motion.[154] Others have been expelled without any formal allegation or
formal proof.
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.