POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES.

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.

Charles Sumner: his complete works, volume 16 (of 20) · 第 28 / 80 题