Then comes the Apology of Prerogative, being nothing less than the
intolerable pretension that the President can sit in judgment on Acts
of Congress, and, in his discretion, refuse to execute them. This
apology is in the nature of a claim of right. Let it be established,
and, instead of a government of laws, which is the glory of a republic,
we have only the government of a single man. Here is the one-man power
with a vengeance.
Of course, if the President can sit in judgment on the Tenure-of-Office
Act, and set it aside as unconstitutional, there is no Act of Congress
he may not treat in the same way. He may set aside the whole succession
of statutes for the government of the army; and his interview with
General Emory attests his willingness to venture in that direction.
In the spirit of oppression which seems to govern him, he may set
aside the great statute for the establishment of civil rights without
distinction of color. But why confine myself to instances? The whole
statute-book will be subject to his prerogative. Vain the requirement
of the National Constitution, that the President “shall take care
that the laws be faithfully executed.” Vain that other requirement,
that a bill approved by two thirds of both Houses over his veto
“shall become a law.” His veto is perpetual; nor is it limited to any
special enactment. It is as broad as the whole recorded legislation
of the Republic. There is nothing it cannot hurry into that maelstrom
ingulfing all.
The President considers the statute unconstitutional, say the
apologists. A mistake in judgment on such a question is not an
impeachable offence, add the apologists. To which I reply, that it
is not for mistake in judgment, but for usurpation in undertaking to
exercise his judgment at all on such a question, that he is impeached;
in other words, he is impeached for undertaking to set aside a statute.
Whether the statute is constitutional or not is immaterial. The
President, after the statute has become a law, is not the person to
decide.
Ingenuity seeks to perplex the question by putting impossible
cases. For instance, suppose Congress should have lost its wits so
far as to enact, in direct terms, that the President should not be
commander-in-chief of the army and navy, or that he should not have
the power to grant pardons; and suppose, still further, that Congress,
in defiance of positive inhibition, should undertake to create
“titles of nobility”; must not the President treat such enactments as
unconstitutional? Of course he must; but such instances do not help
the prerogative now claimed. Every such enactment would be on its face
unconstitutional. It would be an act of unreasoning madness, which
President as well as Court must disregard as if plain nonsense. Its
unconstitutionality would be like an axiom, not to be questioned.
No argument or authority is needed. It proves itself. Nor would the
duty of disobedience be less obligatory, even if the enactment were
sanctioned by the Supreme Court: and it is not more violent for me to
suppose it sanctioned by the Supreme Court than for the apologists
to suppose it sanctioned by Congress. The enactment would be a
self-evident monstrosity, and therefore to be disobeyed, as if one of
the Ten Commandments were reversed so as to read, “Thou shalt kill.”
Such extreme cases serve no purpose. The National Constitution is the
supreme law of the land, and the people will not allow its axiomatic
requirements to be set aside. An illustration outside the limits of
reason is of no value.
In the cases supposed, the unconstitutionally of the enactment is
axiomatic, excluding opinion or argument. It is matter of fact, and
not matter of opinion. When the case is one on which there are two
sides or two different views, it is then within the domain of argument.
It is in no sense axiomatic. It is no longer matter of fact, but
matter of opinion. When submitted to the Supreme Court, it is for
their “opinion.” Without occupying time with refinements, I content
myself with asserting that the judgment of the Court must be matter of
opinion. One of the apologists has asserted that such a judgment is
matter of fact, and, generally, that the constitutionality of a statute
is matter of fact. I assert the contrary. When a bench of judges stands
five to four, shall we say that the majority declare a “fact,” and the
minority declare an “opinion”?
Assuming, then, what I think will not be denied, that the
constitutionality of a statute is matter of opinion, the question
occurs, What opinion shall be regarded for the time as decisive?
Clearly the opinion of Congress must control all executive officers,
from the lowest to the President. According to a venerable maxim of
jurisprudence, all public acts are presumed to be correct,--_Omnia rite
acta præsumuntur_. A statute must be presumed constitutional, unless
on its face the contrary; and no decision of any court is required in
its favor. It is the law of the land, and must be obeyed as such.
The maxim which presumes constitutionality is just as binding as the
analogous maxim of the Criminal Law which presumes innocence. The
President, reversing all this, presumes the statute unconstitutional,
and acts accordingly. In the name of Prerogative he sets it aside.
The apologists have been driven to invoke the authority of
President Jackson, who asserted for himself the power to judge the
constitutionality of an Act of Congress which in the course of
legislation required his approval, although the question involved had
been already adjudged by the Supreme Court. And he was clearly right.
The Court itself would not be bound by its adjudication. How could it
constrain another branch of the Government? But Andrew Jackson never
put forth the pretension that it was within his prerogative to nullify
a statute which had been passed over his veto in the way prescribed by
the National Constitution. He was courageous, but there was no such
unconstitutional audacity in his life.
The apologists also summon to their aid those great instances where
conscientious citizens have refused obedience to unjust laws. Such was
the case of Hampden, who set an example for all time in refusing to
pay ship-money. Such also was the case of many in our own country, who
spurned the Fugitive Slave Bill. These exalted characters, on their
conscience, refused to obey the law, and suffered accordingly. The
early Christians were required by imperial mandate to strew grain on
the altar of Jove. Though good citizens, they preferred to be martyrs.
Such a refusal can be no apology for a President, who, in the name of
prerogative, breaks the great oath to see that the laws are faithfully
executed. Rather do these instances, in their moral grandeur, rebuke
the offender.
Here I turn from this Apology of Prerogative, regretting that I cannot
say more to unfold its destructive character. If anything could
aggravate the transgressions of Andrew Johnson, stretching in long line
from the beginning of his administration, it would be the claim of
right he sets up, under which the slenderest violation of law becomes
a high crime and misdemeanor, to be pursued and judged by an indignant
people. The supremacy of the laws must be preserved, or the liberties
of all will suffer.