So much depends on the right understanding of this proceeding, that,
even at the risk of protracting the discussion, I cannot hesitate
to consider this branch of the subject, although what I have already
said may render it superfluous. What are impeachable offences has
been much considered in this trial, and sometimes with very little
appreciation of the question. Next to the mystification from calling
the Senate a court has been that other mystification from not calling
the transgressions of Andrew Johnson “impeachable offences.”
It is sometimes boldly argued that there can be no impeachment under
the National Constitution, unless for an offence defined and made
indictable by Act of Congress, and therefore Andrew Johnson must go
free, unless it can be shown that he is such an offender. But this
argument mistakes the Constitution, and also mistakes the whole theory
of impeachment.
It mistakes the Constitution in attributing to it any such absurd
limitation. The argument is this: Because in the National Constitution
there are no Common-Law crimes, therefore there are no such crimes on
which an impeachment can be maintained. But there are two answers:
first, that the District of Columbia, where the President resides and
exercises his functions, was once part of Maryland, where the Common
Law prevailed; that, when it came under the national jurisdiction,
it brought with it the whole body of the law of Maryland, including
the Common Law; and that at this day the Common Law of crimes is
still recognized here. But the second answer is stronger still.
By the National Constitution, _expulsion from office_ is “on
impeachment for and conviction of treason, bribery, _or other high
crimes and misdemeanors_”; and this, according to another clause
of the Constitution, is “the supreme law of the land.” Now, when
a constitutional provision can be executed without superadded
legislation, it is absurd to suppose that such legislation is
necessary. Here the provision executes itself without reënactment; and
as for definition of “treason” and “bribery” we resort to the Common
Law, so for definition of “high crimes and misdemeanors” we resort to
the Parliamentary Law and the instances of impeachment by which it
is illustrated. Thus clearly the whole testimony of English history
enters into this case with its authoritative law. From the earliest
text-writer on this subject[155] we learn the undefined and expansive
character of these offences; and these instances are in point now.
Thus, where a Lord Chancellor has been thought to put the great seal
to an ignominious treaty, a Lord Admiral to neglect the safeguard
of the seas, an Ambassador to betray his trust, a Privy Councillor
to propound dishonorable measures, a confidential adviser to obtain
exorbitant grants or incompatible employments, or _where any magistrate
has attempted to subvert the fundamental law or introduce arbitrary
power_,--all these are high crimes and misdemeanors, according to these
precedents, by which the National Constitution must be interpreted. How
completely they cover the charges against Andrew Johnson, whether in
the formal accusation or in the long antecedent transgressions to which
I shall call attention as an essential part of the case, nobody can
question.
Broad as this definition may seem, it is in harmony with the declared
opinions of the best minds that have been turned in this direction. Of
these none so great as Edmund Burke, who, as manager on the impeachment
of Warren Hastings, excited the admiration of all by varied stores of
knowledge and philosophy, illumined by the rarest eloquence, marking
an epoch of British history. Thus spoke the greatest genius that has
ever explained the character of impeachment:--
“It is by this tribunal that statesmen who abuse their power
are tried before statesmen and by statesmen, upon solid
principles of State morality. _It is here that those who by an
abuse of power have polluted the spirit of all laws can never
hope for the least protection from any of its forms._ It is
here that those who have refused to conform themselves to the
protection of law can never hope to escape through any of its
defects.”[156]
The value of this testimony is not diminished because the orator
spoke as manager. By professional license an advocate may state
opinions not his own, but a manager cannot. Appearing for the House of
Representatives and all the people, he speaks with the responsibility
of a judge, so that his words may be cited hereafter. Here I but
follow the claim of Mr. Fox.[157] Therefore the words of Burke are as
authoritative as beautiful.
In different, but most sententious terms, Mr. Hallam, who is so great
a light in constitutional history, thus exhibits the latitude of
impeachment and its comprehensive grasp:--
“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.