Kindred to the Apology of Good Intentions, or, perhaps, a rib out of
its side, is the Moot-Court Apology, which pretends that the President,
in removing Mr. Stanton, only wished to make a case for the Supreme
Court, and thus submit to this tribunal the constitutionality of the
Tenure-of-Office Act.
By this pretension the Supreme Court is converted into a moot-court to
sit in judgment on Acts of Congress, and the President becomes what, in
the time of Charles the Second, Lord Keeper Guilford said a good lawyer
must be, “a put-case.”[208] Even assuming, against evidence, that
such was his purpose, it is hard to treat it without reprobation. The
Supreme Court is not arbiter of Acts of Congress. If this pretension
ever found favor, it was from the partisans of Slavery and State
Rights, who, assured of the sympathy of the Court, sought in this
way to complete an unjust triumph. The power claimed is tribunitial
in character, being nothing less than a veto. Its nearest parallel
in history is in the ancient Justicia of Aragon, who could set aside
even royal ordinances as unconstitutional. The National Constitution
leaves no doubt as to the proper functions of the Supreme Court. It
may hear and determine “all cases in law and equity arising under
the Constitution, the laws of the United States, and treaties made
under their authority”; but this is all. Its business is to decide
“cases,”--not to sit in judgment on Acts of Congress and issue its
tribunitial veto. If a “case” arises where a statute is said to clash
with the National Constitution, it must be decided as any other case of
conflict of laws. But nothing within the just powers of the Court can
touch an Act of Congress, except incidentally, and then its judgment is
binding only on the parties. The incidental reason assigned--as, for
instance, that a statute is unconstitutional--does not bind anybody,
not even the parties or the Court itself. Of course such incidental
reason cannot bind Congress.
On the evidence it is clear enough that the President had no honest
purpose to make a case for the Supreme Court. He may have talked
about it, but he was never in earnest. When asked by General Sherman
“why lawyers could not make a case,” he said, in reply, “that it was
found impossible, or a case could not be made up.” And so at each
stage we find him practically discarding the idea. He issues the order
of removal. Mr. Stanton disobeys. Here was exactly his opportunity.
Instead of making the case by commencing the proper process, he tells
Adjutant-General Thomas to “go on and take possession of the office”;
and then, putting an end to this whole pretension of a case for the
Court, he proceeds to treat the latter in every respect, whether of
law or fact, as Secretary, welcomes him to his Cabinet, invites him
to present the business of his Department, and, so far from taking
advantage of the opportunity he had professed to desire, denies its
existence. How could he inquire by what authority Mr. Stanton assumed
to hold the office of Secretary of War, when he denied, in fact, that
he was holding it?
Look a little further, and the reason of this indifference becomes
apparent. The old writ of _Quo Warranto_ was the only process
by which a case could be made, and this only at the suit of the
Attorney-General. Had the President made an order of removal, the
Secretary would have been compelled to hold only by virtue of the law
and the Constitution. In answer to the writ he would have pleaded
this protection, and the Court must have decided the validity of the
plea. Meanwhile he would have remained in office. Had he left, the
process would have failed, and there was none other by which he could
raise the question. The decision of the Supreme Court in _Wallace_ v.
_Anderson_[209] would prevent resort to a _Quo Warranto_ on his part,
while the earlier case of _Marbury_ v. _Madison_[210] would shut him
out from a _Mandamus_. The apologists have not suggested any other
remedy. It is clear, therefore, that Mr. Stanton’s possession of the
office was a _sine qua non_ to a case in the Supreme Court, and that
this could be only by _Quo Warranto_. The local attorney employed by
the President testifies that in such a case judgment could not be
reached within a year. This was enough to render it impracticable;
for, if commenced, it would leave the hated Secretary at his post
for the remainder of the Presidential term. During the pendency of
the proceeding Mr. Stanton would continue legitimate possessor of
the office. Therefore the commencement of a case would defeat the
Presidential passion for instant removal. True to his passion, he
removed the Secretary, well knowing that in this way he prevented a
case for the Court.
Against this conclusion, where all the testimony is harmonized,
we have certain fruitless conversations with his Cabinet, and an
attempt to raise the question on _Habeas Corpus_ after the arrest of
Adjutant-General Thomas. Conversations, whose exclusion has given a
handle to the apologists, which they do not fail to use, only show that
the President made this question a subject of talk, and that, in the
end, it became apparent that he could not make a case so as to remove
Mr. Stanton during his term, and as this was his darling object, the
whole idea was abandoned. The arrest of Adjutant-General Thomas seemed
for a moment to furnish another chance; but it is enough to say of the
futile attempt at that time, that it was not only after the removal of
Mr. Stanton, but after impeachment had been voted by the House.
Had the President been in earnest, it was very easy for him to make a
case by proceeding against a simple postmaster; but this did not suit
him. He was in earnest only to remove Mr. Stanton.
Nothing is clearer than that this Moot-Court Apology is a wretched
pretension and afterthought. It is the subterfuge of a criminal to
cover up his crime,--as if a surgeon had committed murder, and then set
up the apology that it was an experiment in science.