“He let me loose, and cried, Halloo!To him alone the praise is due.”[196]
“He let me loose, and cried, Halloo!To him alone the praise is due.”[196]
“He let me loose, and cried, Halloo!
To him alone the praise is due.”[196]
This is nothing but the outline, derived from historic sourceswhich the Senate on this occasion is bound to recognize. Other acts fall within the picture. The officers he appointed in defiance of law were paid also in the same defiance. Millions of property were turned over without consideration to railroad companies, whose special recommendation was participation in the Rebellion. The Freedmen’s Bureau, that sacred charity of the Republic, was despoiled of its possessions for the sake of Rebels, to whom their forfeited estates were given back after they had been vested by law in the United States. The proceeds of captured and abandoned property, lodged under law in the National Treasury, were ravished from their place of deposit and sacrificed. Rebels were allowed to fill the antechambers of the Executive Mansion and to enter into the counsels. The pardoning power was prostituted, and pardons were issued in lots to suit Rebels, thus grossly abusing that trust whose discreet exercise is so essential to the administration of justice. The powers of the Senate over appointments were trifled with and disregarded by reappointing persons already rejected, and by refusing to communicate the names of others appointed during the recess. The veto power, conferred by the National Constitution as a remedy for ill-considered legislation, was turned by him into a weapon of offence against Congress, and into an instrument to beat down the just opposition which his usurpation had aroused. The power of removal, so sparingly exercised by patriot Presidents, was seized as an engine of tyranny, and openly employed to maintain his wicked purposes, by the sacrifice of good citizens who would not be his tools. Incompetent and dishonest creatures,recommended only by their echoes to his voice, were appointed to office, especially in the collection of the internal revenue, through whom a new organization, known as the “Whiskey Ring,” has been able to prevail over the Government, and to rob the Treasury of millions, at the cost of tax-paying citizens, whose burdens are thus increased. Laws enacted by Congress for the benefit of the colored race, including that great statute for the establishment of the Freedmen’s Bureau, and that other great statute for the establishment of Civil Rights, were first attacked by Presidential veto, and, when finally passed by requisite majority over the veto, were treated by him as little better than dead letter, while he boldly attempted to arrest a Constitutional Amendment by which the rights of citizens and the national debt were placed under the guaranty of irrepealable law. During these successive assumptions, usurpations, and tyrannies, utterly without precedent in our history, this deeply guilty man ventured upon public speeches, each an offence to good morals, where, lost to all shame, he appealed in coarse words to the coarse passions of the coarsest people, scattering firebrands of sedition, inflaming anew the rebel spirit, insulting good citizens, and, with regard to office-holders, announcing, in his own characteristic phrase, that he would “kick them out,”—the whole succession of speeches being, from their brutalities and indecencies, in the nature of a “criminal exposure of his person,” indictable at Common Law, for which no judgment can be too severe. Even this revolting transgression has additional aggravation, when it is considered, that, through these utterances, the cause of justice was imperilled, and the accursed demon of civil feud lashed again into vengefulfury.
All these things, from beginning to end, are plain facts, recorded in our annals, and known to all. And it is further recorded in our annals and known to all, that, through these enormities,—any one of which is ample for condemnation, while all together present an aggregation of crime,—untold calamities have been brought upon our country, disturbing business and finance, diminishing the national revenues, postponing specie payments, dishonoring the Declaration of Independence in its grandest truths, arresting the restoration of the Rebel States, reviving the dying Rebellion, and, instead of that peace and reconciliation so much longed for, sowing strife and wrong, whose natural fruit is violence and blood.
For all these, or any one of them, Andrew Johnson should have been impeached and expelled from office. The case required a statement only, not an argument. Unhappily this was not done. As a petty substitute for the judgment which should have been pronounced, and as a bridle on Presidential tyranny in “kicking out of office,” Congress enacted a law known as the Tenure-of-Office Act, passed March 2, 1867, over his veto, by two thirds of both Houses.[197]And to prepare the way for impeachment, by removing scruples of technicality, its violation was expressly declared a high misdemeanor.
The President began at once to chafe under its restraint. Recognizing the Act, and following its terms, he first suspended Mr. Stanton from office, and then, in anticipation of his restoration by the Senate, made the attempt to win General Grant into surrender of the department, so as to oust Mr. Stanton and render restoration by the Senate ineffectual. Meanwhile Sheridan in Louisiana, Pope in Alabama, and Sickles in South Carolina, who, as military commanders, were carrying into the pacification of these States the energies so brilliantly displayed in the war, were pursued by the same vindictive spirit. They were removed by the President, and Rebellion throughout that whole region clapped its hands. This was done in the exercise of his power as Commander-in-Chief. At last, in unappeased rage, he openly violated the Tenure-of-Office Act, so as to bring himself under its judgment, by defiant attempt to remove Mr. Stanton from the War Department without the consent of the Senate, and the appointment of Lorenzo Thomas, Adjutant-General of the United States, as Secretary of Warad interim.
The Grand Inquest of the nation, after sleeping on so many enormities, was awakened by this open defiance. The gauntlet was flung into its very chamber, and there it lay on the floor. The President, who had already claimed everything for the Executive with impunity, now rushed into conflict with Congress on the very ground selected in advance by the latter. The field was narrow, but sufficient. There was but one thing for the House of Representatives to do. Andrew Johnson must be impeached, or the Tenure-of-Office Act would become a dead letter, while his tyranny wouldreceive a letter of license, and impeachment as a remedy for wrong-doing would be blotted from the Constitution.
Accordingly it was resolved that the offender, whose crimes had so long escaped judgment, should be impeached. Once entered upon this work, the House of Representatives, after setting forth the removal of Mr. Stanton and the appointment of General Thomas in violation of law and Constitution, proceeded further to charge him in different forms with conspiracy wrongfully to obtain possession of the War Department; also with attempt to corrupt General Emory, and induce him to violate an Act of Congress; also with scandalous speeches, such as no President could be justified in making; concluding with a general Article setting forth attempts on his part to prevent the execution of certain Acts of Congress.
Such is a simple narrative, which brings us to the Articles of Impeachment. Nothing I have said thus far is superfluous; for it shows the origin of this proceeding, and illustrates its moving cause. The Articles themselves are narrow, if not technical; but they are filled and broadened by the transgressions of the past, all of which enter into the present offences. The whole is an unbroken series, with a common life. As well separate the Siamese twins as separate the offences charged from that succession of antecedent crimes with which they are linked, any one of which is enough for judgment. The present springs from the past, and can be truly seen only in its light, which, in this case, is nothing less than “darkness visible.”
In entering upon the discussion of the Articles of Impeachment, I confess my regret that so great a cause, on which so much depends, should be presented on such narrow ground, although I cannot doubt that the whole past must be taken into consideration in determining the character of the acts alleged. If there has been a violation of law and Constitution, the apologists of the President then insist that all was done with good intentions. Here it is enough, if we point to the past, which thus becomes part of the case. But of this hereafter. It is unnecessary for me to take time in setting forth the Articles. The abstract is enough. They will naturally come under review before the close of the inquiry.
Of the transactions embraced by the Articles, the removal of Mr. Stanton has unquestionably attracted most attention, although I cannot doubt that the scandalous harangues are as justly worthy of condemnation. But the former has been made the pivot of the impeachment,—so much so that the whole case seems to revolve on this transaction. Therefore I shall not err, if, following the Articles, I put this foremost.
This transaction may be brought to the touchstone of the National Constitution, and also of the Tenure-of-Office Act. But since the allegation of violation of this Act has been so conspicuous, and this Act may be regarded as a Congressional interpretation of the power of removals under the National Constitution, I begin with the questions arising under it.
The general object of the Tenure-of-Office Act was to protect civil officers from removal without the advice and consent of the Senate; and it was made in express terms applicable to “every person holding any civil office to which he has been appointed by and with the advice and consent of the Senate.” To this provision, so broad in character, was appended a proviso:—
“Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”[198]
“Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.”[198]
As this general protection from removal without the advice and consent of the Senate might be productive of embarrassment during the recess of the Senate, it was further provided, in a second section, that, during such recess, any person, except judges of the United States courts, may be suspended from office by the President on reasons assigned, which it is made his duty to report to the Senate within twenty days after its next meeting, and if the Senate concurs, then the President may remove the officer and appoint a successor; but if the Senate does not concur, then the suspended officer shall forthwith resume his functions.
On this statute two questions arise: first, as to its constitutionality, and, secondly, as to its application to Mr. Stanton, so as to protect him from removal without the advice and consent of the Senate.
It is impossible not to confess in advance that both have been already practically settled. The statute was passed over the veto of the President by two thirds of both Houses, who thus solemnly united in declaring its constitutionality. Then came the suspension of Mr. Stanton, and his restoration to office by a triumphant vote of the Senate, being no less than thirty-five to six,—thus establishing not only the constitutionality of the statute, but also its protecting application to Mr. Stanton. And then came the resolution of the Senate, adopted, after protracted debate, on the 21st February, by a vote of twenty-eight to six, declaring, that, under the Constitution and laws of the United States, the President has no power to remove the Secretary of War and to designate any other officer to perform the duties of that officead interim; thus for the third time affirming the constitutionality of the statute, and for the second time its protecting application to Mr. Stanton. There is no instance in our history where there has been such a succession of votes, with such large majorities, declaring the conclusions of the Senate, and fixing them beyond recall. “Thrice is he armed that hath his quarrel just”; but the Tenure-of-Office Act is armedthrice, by the votes of the Senate. The apologists of the President seem to say of these solemn votes, “Thrice the brinded cat hath mewed”; but such a threefold record cannot be treated with levity.
The question of the constitutionality of this statute complicates itself with the power of removal under the National Constitution; but I shall not consider the latter question at this stage. It will naturally present itself when we consider the power of removal under the National Constitution, which has been claimed by the President. For the present I assume the constitutionality of the statute.
I come at once to the question of the application of the statute to Mr. Stanton, so as to protect him against removal without the consent of the Senate. And here I doubt if any question would have arisen but for the hasty words of the Senator from Ohio [Mr.Sherman], so often quoted in this proceeding.
Unquestionably the Senator from Ohio, when the report of the Conference Committee of the two Houses was under discussion, stated that the statute did not protect Mr. Stanton in his office; but this was the individual opinion of this eminent Senator, and nothing more. On hearing it, I cried from my seat, “The Senator must speak for himself”; for I held the opposite opinion. It was clear to my mind that the statute was intended to protect Mr. Stanton, and that it did protect him. The Senator from Oregon [Mr.Williams], who was Chairman of the Conference Committee and conducted its deliberations, informs us that there was no suggestion in committee that the statute did not protect all of the President’s Cabinet, including, of course, Mr. Stanton. The debates in the House of Representatives are the same way. Without holding the scales to weigh any such conflicting opinions, I rest on the received rule of law, that they cannot be taken into account in determining the meaning of the statute. And here I quote the judgment of the Supreme Court of the United States, pronounced by Chief Justice Taney:—
“In expounding this law,the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both Houses, and the only mode in which that will is spoken is in the Act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject,and looking, if necessary, to the public history of the times in which it was passed.”[199]
“In expounding this law,the judgment of the Court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both Houses, and the only mode in which that will is spoken is in the Act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the laws upon the same subject,and looking, if necessary, to the public history of the times in which it was passed.”[199]
It is obvious to all acquainted with a legislative body that the rule thus authoritatively declared is the only one that could be safely applied. The Senate, in construing the present statute, must follow this rule. Therefore I repair to the statute, stopping for a moment to glance at the public history of the times, in order to understand its object.
We have seen how the President, in carrying forward his usurpation in the interest of the Rebellion, trifled with the Senate in regard to appointments, and abused the traditional power of removal, openly threatening good citizens in office that he would “kick them out,” and filling all vacancies, from high to low, with creatures whose first promise was to sustain his barbarous policy. I do not stop to portray this outrage, constituting an impeachable offence, according to the declared opinion of Mr. Madison,[200]one of the strongest advocates of the Presidential power of removal. Congress, instead of adopting the remedy suggested by this father of the Constitution, and expelling the President by process of impeachment, attempted to wrest from him the power he was abusing. For this purpose the Tenure-of-Office Act was passed. It was deemed advisable to include the Cabinet officers within its protection; but, considering the intimate relations between them and the President, a proviso was appended, securing to the latter the right of choosing them in the first instance. Its object was, where the President finds himself, on accession to office, confronted by a hostile Senate, to assure this right of choice, without obliging him to keep the Cabinet of his predecessor; and accordingly it says to him, “Choose your own Cabinet, but expect to abide by your choice, unless you can obtain the consent of the Senate to a change.”
Any other conclusion is flat absurdity. It begins by misconstruing the operative words of the proviso, that the Cabinet officers “shall hold their offices respectively for and during the term of the President by whom they may have been appointed.” On the face there is no ambiguity here. Only by going outside can any be found, and this disappears on a brief inquiry. At the date of the statute Andrew Johnson had been in office nearly two years. Some of his Cabinet were originally appointed by President Lincoln; others had been formally appointed by himself. But all were there equally by his approval and consent. One may do an act himself, or make it his own by ratifying it, when done by another. In law it is equally his act. Andrew Johnson did not originally appoint Mr. Stanton, Mr. Seward, or Mr. Welles, but he adopted their appointments; so that at the passage of the statute they stood on the same footing as if originally appointed by him. Practically, and in the sense of the statute, they were appointed by him. They were a Cabinet of his own choice, just as much as the Cabinet of his successor, duly appointed, will be of his own choice. If the statute compels the latter, as it clearly does, to abide by his choice, it is unreasonable to suppose that it is not equally obligatory on Andrew Johnson. Otherwise there is special immunity for the President whose misconduct rendered it necessary, and Congress is exhibited as legislating for some future unknown President, and not for Andrew Johnson, already too well known.
Even the Presidential apologists do not question that the members of the Cabinet commissioned by Andrew Johnson are protected by the statute. How grossly unreasonable to suppose that Congress intended to make such a distinction among his Cabinet as to protect those whose support of his usurpation had gained the seats they enjoyed, while it exposed to his caprice a great citizen whose faithful services during the war had won the gratitude of his country, whose continuance in office was regarded as an assurance of public safety, and whose attempted removal has been felt as a national calamity! Clearly, then, it was the intention of the statute to protect the whole Cabinet, whether originally appointed by Andrew Johnson, or originally appointed by his predecessor and continued by him.
I have no hesitation in saying that no other conclusion is possible without violence to the statute. I cannot forget, that, while we are permitted “to open the law upon doubts,” we are solemnly warned “not to open doubts upon the law.”[201]It is Lord Bacon who gives us this rule, whose obvious meaning is, that, where doubts do not exist, they should not be invented. Itis only by this forbidden course that any question can be raised. If we look at the statute in its simplicity, its twofold object is apparent,—first, to prohibit removals, and, secondly, to limit certain terms of service. The prohibition to remove plainly applies to all; the limitation of service applies only to members of the Cabinet. I agree with the excellent Senator from Iowa [Mr.Harlan], that this analysis removes all ambiguity. The pretension that any one of the Cabinet was left to the unchecked power of the President is irreconcilable with the concluding words of the proviso, which declare that they shall be “subject to removal by and with the advice and consent of the Senate,”—thus expressly excluding the prerogative of the President.
Let us push this inquiry still further, by looking more particularly at the statute reduced to a skeleton, so that we may see its bones.
1.Every person holding any civil office, by and with the advice and consent of the Senate, is entitled to hold such office until a successor is appointed.
2. If members of the Cabinet,then during the term of the President by whom they have been appointed, and one month thereafter, unless sooner removed by consent of the Senate.
Mr. Stanton obviously falls within the general class, “every person holding any civil office”; and he is entitled to the full benefit of the provision for their benefit.
As obviously he falls within the sub-class, members of the Cabinet.
Here his rightsare equally clear. It is in the discussions under this head that the ingenuity of lawyers has found amplest play, mainly turning upon what is meant by “term” in the statute. I glance for a moment at some of these theories.
1. One pretension is, that, the “term” having expired with the life of President Lincoln, Mr. Stanton is retroactively legislated out of office on the 15th May, 1865. As this is a penal statute, this construction makes itex post facto, and therefore unconstitutional. It also makes Congress enact the absurdity that Mr. Stanton had for two years been holding office illegally; whereas he had been holding under the clearest legal title, which could no more be altered by legislation than black could be made white. A construction rendering the statute at once unconstitutional and absurd must be rejected.
2. The quibble that would exclude Mr. Stanton from the protection of the statute, because he was appointed during the first “term” of President Lincoln, and the statute does not speak of “terms,” is hardly worthy of notice. It leads to the same absurd results as follow from the first supposition, enhanced by increasing the retroactive effect.
3. Assuming that the statute does not terminate Mr. Stanton’s right a month after President Lincoln’s death, it is insisted that it must take effect at the earliest possible moment, and therefore on its passage. From this it follows that Mr. Stanton has been illegally in office since the 2d of March, 1867, and that both he and the President have been guilty of a violation of law, the former in exercising the duties of an office to which he had no right, and the latter for appointing him, or continuing him in office, without consent of the Senate, in violation of the Constitution and the statute inquestion. This is another absurdity to be rejected.
Assuming, as is easy, that it is President Lincoln’s “term,” we have the better theory, that it did not expire with his life, but continues until the 4th of March, 1869, in which event Mr. Stanton is clearly entitled to hold until a month thereafter. This construction is entirely reasonable, and in harmony with the Constitution, and the legislation under it. I confess that it is one to which I have often inclined.
This brings me back to the construction with which I began, and I find Andrew Johnson the President who appointed Mr. Stanton. To make this simple, it is only necessary to read “chosen” for “appointed” in the statute,—or, if you please, consider the continuance of Mr. Stanton in office, with the concurrence of the President, as a practical appointment, or equivalent thereto. Clearly Mr. Stanton was in office, when the statute passed, from the “choice” of the President. Otherwise he would have been removed. His continuance was like another commission. This carries out the intention of the framers of the statute, violates no sound canon of construction, and is entirely reasonable in every respect. Or, if preferred, we may consider the “term” that of President Lincoln, and then Mr. Stanton would be protected in office until one month after the 4th of March next. But whether the “term” be of Andrew Johnson or President Lincoln, he is equally protected.
Great efforts have been made to show that Mr. Stanton does not come within the special protection of the proviso, without considering the irresistible consequence that he is then within the general protection of the statute, being “a person holding a civil office.” Turn him out of the proviso and he falls into the statute, unlessyou are as imaginative as one of the apologists, who placed him in a sort of intermediate limbo, like a lost spirit floating in space, as in one of Flaxman’s Illustrations of Dante. But the imagination of this conception cannot make us insensible to its surpassing absurdity. It is utterly unreasonable, and every construction must be rejected which is inconsistent with common sense.
Here I might close this part of the case; but there is another illustration. In suspending Mr. Stanton from office, as long ago as August, the President himself recognized that he was protected by the statute. The facts are familiar. The President, in formal words, undertook to say that the suspension was by virtue of the Constitution; but this was a dishonest pretext, in harmony with so much in his career. Whatever he may say, his acts speak louder than his words. In notice of the suspension to the Secretary of the Treasury, and then again in a message to the Senate assigning his reasons for the suspension, both being according to requirements of the statute, he testified, that, in his judgment at that time, Mr. Stanton came within its protection. If not, why thus elaborately comply with its requirements? Why the notice to the Secretary of the Treasury? Why the message to the Senate? All this was novel and without example. Why write to General Grant of “being sustained” by the Senate? Approval or disapproval of the Senate could make no difference in the exercise of the power he now sets up. Approval could not confirmthe suspension; disapproval could not restore the suspended Secretary of War. In fine, why suspend at all? Why exercise the power of suspension, when the President sets up the power of removal? If Mr. Stanton was unfit for office and a thorn in his side, why not remove him at once? Why resort to this long and untried experiment merely to remove at last? There is but one answer. Beyond all question the President thought Mr. Stanton protected by the statute, and sought to remove him according to its provisions, beginning, therefore, with his suspension. Failing in this, he undertook to remove him in contravention of the statute, relying in justification on his pretension to judge of its constitutionality, or the pusillanimity of Congress, or something else “to turn up,” which should render justification unnecessary.
Clearly the suspension was made under the Tenure-of-Office Act, and can be justified in no other way. From this conclusion the following dilemma results: If Mr. Stanton was within the statute, by what right was he removed? If he was not, by what right was he suspended? The President may choose his horn. Either will be sufficient to convict.
I should not proceed further under this head but for the new device which makes its appearance under the auspices of the Senator from Maine [Mr.Fessenden], who tells us, that, “whether Mr. Stanton came under the first section of the statute or not, the President had a clear right to suspend him under the second.” Thus a statute intended as a bridle on the President gives the power to suspend Mr. Stanton, but fails to give him any protection. This statement would seem enough. The invention of the Senator is not less fallacious than the pretext of the President. It is a device well calculated to help the President and to hurt Mr. Stanton, with those who regard devices more than the reason of the statute and its spirit.
Study the statute in its reason and its spirit, and you cannot fail to see that the second section was intended merely as a pendant to the first, and was meant to apply to the cases included in the first, and none other. It was a sort of safety-valve, or contrivance to guard against possible evils from bad men who could not be removed during the recess of the Senate. There was no reason to suspend a person who could be removed. It is absurd to suppose that a President would resort to a dilatory and roundabout suspension, when the short cut of removal was open to him. Construing the statute by this plain reason, its second section must have precisely the same sphere of operation as the first. By the letter, Mr. Stanton falls within both; by the intention, it is the same. It is only by applying to the first section his own idea of the intention, and by availing himself of the letter of the second, that the Senator is able to limit the one and to enlarge the other, so as to exclude Mr. Stanton from the protection of the statute, and to include him in the part allowing suspensions. Applying either letter or spirit consistently, the case is plain.
I turn for the present from the Tenure-of-Office Act, insisting that Mr. Stanton is within its protection, and, being so, that his removal was, under the circumstances, a high misdemeanor, aggravated by its defiant purpose and the long series of transgressions which preceded it, all showing a criminal intent. The apologies of the President will be considered hereafter.
The case of Mr. Stanton has two branches: first, his removal, and, secondly, the substitution of Adjutant-General Thomas as Secretary of Warad interim. As the former was contrary to positive statute, so also was the latter without support in any Act of Congress. For the present I content myself with the latter proposition, without opening the question of Presidential powers under the National Constitution.
The offender rests his case on the Act of Congress of February 13, 1795, which empowers the President, “in case ofvacancyin the office of Secretary of State, Secretary of the Treasury, or of the Secretary of the Department of War, … whereby they cannot perform the duties of their said respective offices, … to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed, or such vacancy be filled”; and the supply of the vacancy is limited to six months.[202]Under this early statute the President defends himself by insisting that there was a “vacancy,” when, in fact, there was none. All this is in that unfailing spirit of prerogative which is his guide. Here is assumption of power. In fact, Mr. Stanton was at his office, quietly discharging its duties, when the President assumed that there was a “vacancy,” and forthwith sent the valiant Adjutant-General to enter upon possession. Assumption and commission were on a par. There is nothing in any law of the land to sanction either. Eachtestifies against the offender.
The hardihood of this proceeding becomes more apparent, when it is understood that this very statute of 1795, on which the offender relies, was repealed by the statute of February 20, 1863,[203]passed in our own day, and freshly remembered. The latter statute, by necessary implication, obliterated the former. Such is the obvious intention, and I do not hesitate to say that any other construction leads into those absurdities which constitute the staple of the Presidential apologists. The object of Congress was to provide a substitute for previous statutes, restricting the number of vacancies which might be filled and the persons who might fill them. And this was done.
As by the National Constitution all appointments must be with the advice and consent of the Senate, therefore any legislation in derogation thereof must be construed strictly; but the President insists that it shall be extended, even in face of the constitutional requirement. To such pretensions is he driven! The exception recognized by the National Constitution is only where a vacancy occurs during the recess of the Senate, when the President is authorized to appoint until he can obtain the consent of the Senate, and no longer. Obviously, cases may arise where sudden accident vacates the office, or where the incumbent is temporarily disabled. Here was the occasion for anad interimappointment, and the repealing statute, embodying the whole law of the subject, was intended for such cases,—securing to the President time to select a successor, and also power to provide for a temporary disability. Such is the underlying principle,which it is for us to apply. The expiration of a commission, which ordinary care can foresee, is not one of the sudden emergencies for which provision must be made; and assuming that vacancies by removal were contemplated, which must be denied, it is plain that the delay required for the examination of the case would give time to select a successor, while removal without cause would never be made until a successor was ready.
Look now at the actual facts, and you will see how little they come within the reason of anad interimappointment. Evidently the President had resolved to remove Mr. Stanton last summer. Months elapsed, leaving his purpose without consummation till February. All the intervening time was his to select a successor, being a period longer than the longest fixed for the duration of anad interimappointment by the very statutes under which he professed to act. In conversation with General Sherman, a month before the removal, he showed that he was then looking for a successorad interim. Why not a permanent successor? It took him only a day to find Mr. Ewing. If, as there is reason to suppose, Mr. Ewing was already selected when Adjutant-General Thomas was pushed forward, why appoint the latter at all? Why not, in the usual way, transmit Mr. Ewing’s name as the successor? For the excellent reason, that the offender knew the Senate would not confirm him, and that therefore Mr. Stanton would remain in office; whereas through anad interimappointment he might obtain possession of the War Department, which was his end and aim. Thead interimappointment of General Thomas was, therefore, an attempt to obtain possession of an office without the consent of the Senate, precisely because the offender knew that he could not obtain that consent. And all this was under pretext of an Act of Congress alike in letter and spirit inapplicable to the case.
Thus does it appear, that, while Mr. Stanton was removed in violation of the Tenure-of-Office Act, Adjutant-General Thomas was appointed Secretary of Warad interimin equal derogation of the Acts of Congress regulating the subject.
It remains to consider if the removal and substitution were not each in violation of the National Constitution. The case is new, for never until now could it arise. Assuming that the Tenure-of-Office Act does not protect Mr. Stanton, who is thus left afloat in the limbo between the body of the Act and the proviso, then the President is remitted to his prerogative under the National Constitution, and he must be judged accordingly, independently of statute. Finding the power of removal there, he may be justified; but not finding it there, he must bear the consequences. And here the Tenure-of-Office Act furnishes a living and practical construction of the National Constitution from which there is no appeal.
From the Constitution it appears that the power of appointment is vested in the President and Senate conjointly, and that nothing is said of the power of removal, except in case of impeachment, when it is made by the Senate. Therefore the power of removal isnot express, but implied only, and must exist, if at all, as a necessary consequence of the power to appoint. But in whom? According to a familiar rule, the power which makes can unmake. Unless this rule be rejected, the power of removal must exist in the President and Senate conjointly; nor is there anything unreasonable in this conclusion. Removal can always be effected during the session of the Senate by the nomination and confirmation of a successor, while provision can be made for the recess by an Act of Congress. This conclusion would be irresistible, were the Senate always in session; but since it is not, and since cases may arise during the recess requiring the immediate exercise of this power, it has been argued that at least during the recess it must be in the President alone. From this position there has been a jump to the next, and it has been insisted, that, since, for the sake of public convenience, the power of removal exists in the President, he is at liberty to exercise it either during the recess or the session itself. Here is an obvious extension of the conclusion, which the premises do not warrant. The reason failing, the conclusion must fail.Cessante ratione legis, cessat ipsa lex.Especially must this be the case under the National Constitution. A power founded on implied necessity must fail when the necessity does not exist. The implication cannot be carried beyond the reason. Therefore the power of removal during the recess, doubtful at best, unless sanctioned by Act of Congress, cannot be extended to justify the exercise of that power while the Senate is in session, ready to act conjointly with the President.
Against this natural conclusion, we have the assumption that a contrary construction of the National Constitution was established after debate in 1789. I avoid all details with regard to this debate, cited and considered so often. I content myself by asking if at best it was anything but a Congressional construction of the National Constitution, and, as such, subject to be set aside by another voice from the same quarter. It was, moreover, a Congressional construction adopted during the administration of Washington, whose personal character must have influenced opinion largely; and it prevailed in the House of Representatives only after earnest debate by a majority of twelve, and in the Senate only by the casting vote of the Vice-President, John Adams, who, from position as well as principle, was not inclined to shear the President of any prerogative. Once adopted, and no strong necessity for a change occurring, it was allowed to go unaltered, but not unquestioned. Jurists like Kent and Story, statesmen like Webster, Clay, Calhoun, and Benton, recorded themselves adversely, and it was twice reversed by vote of the Senate. This was in 1835 and again in 1836, when a bill passed the Senate, introduced by Mr. Calhoun and sustained by the ablest statesmen of the time, practically denying the power of the President.[204]The Tenure-of-Office Act was heralded in 1863 by a statute making the Comptroller of the Currency removable “by and with the advice and consent of the Senate,”[205]—thus, in this individual case, asserting for the Senate a check on the President; and then in 1866, by a more importantmeasure, being the provision in the Army Appropriation Act,[206]that “no officer in the military or naval service shall in time of peace be dismissed from service, except upon and in pursuance of the sentence of a court-martial,”—thus putting another check on the President. Finally, this Congressional construction, born of a casting vote, and questioned ever since, has been overruled by another Congressional construction, twice adopted in both Houses, first by large majorities on the original passage of the Tenure-of-Office Act, and then by a vote of two thirds on the final passage of the same Act over the veto of the President,—and then again adopted by more than two thirds of the Senate, when the latter condemned the removal of Mr. Stanton: and all this in the light of experience, after ample debate, and with all the consequences before them. Such a Congressional construction must have a controlling influence, and the fact that it reversed the practice of eighty years and overcame the disposition to stand on the ancient ways would seem to increase rather than diminish its weight.
Now mark the consequences. Originally, in 1789, there was a Congressional construction which in effect made the National Constitution read,—
“The Presidentshall havethe power of removal.”
“The Presidentshall havethe power of removal.”
For the next eighty years all removals were made under this construction. The Tenure-of-Office Act was a new Congressional construction, overruling the first, and entitled to equal, if not superior weight. By virtue of this Congressional construction the National Constitution now reads,—
“The Presidentshall not havethe power of removal.”
“The Presidentshall not havethe power of removal.”
It follows, then, that in removing Mr. Stanton the President violated the National Constitution as now construed.
The dilemma is this: If the President can remove Mr. Stanton during the session of the Senate, without any power by statute, it is only by virtue of a prerogative vested in him by the National Constitution, which must necessarily override the Tenure-of-Office Act, as an unconstitutional effort to abridge it. If, on the other hand, this Act is constitutional, the prerogative of removal is not in the President, and he violated the National Constitution when he assumed to exercise it.
The Tenure-of-Office Act cannot be treated otherwise than as constitutional,—certainly not in the Senate, where some among the apologists of the President voted for it. Therefore the prerogative of removal is not in the President. The long practice which grew up under a mere reading of the National Constitution has been declared erroneous. To this extent the National Constitution has been amended, and it is as absurd to plead the practice under the first reading, in order to justify an offence under the second, as to plead the existence of Slavery before the Constitutional Amendment, in order to justify this monstrosity now.
Thus must we conclude that the offender has violated not only the Tenure-of-Office Act, but also the National Constitution; that, even assuming Mr. Stanton unprotected by the statute, the case is not ended; that this statute, if construed so as to exclude him, cannot be rejected as a Congressional construction of the National Constitution; and that, under this Congressional construction, which in value is second only to a Constitutional Amendment, the prerogative of removal without the consent of the Senate does not belong to the President. Of course the power of suspension under the National Constitution, which is only an incident of the larger pretension, must fall also. Therefore, in the defiant removal of Mr. Stanton, and also in the pretended suspension under the National Constitution with which the transaction began, the President violated the Constitution, and was guilty of an impeachable offence.
And so, too, we must conclude, that, in the substitution of Lorenzo Thomas as Secretary of Warad interim, the offender violated not only the Acts of Congress for the supply of vacancies, but also the National Constitution. Knowing that he could not obtain possession of the office with the consent of the Senate, he sought to accomplish this purpose without that consent. Thus, under color of a statute, he practically set the National Constitution at defiance. Mark here the inconsistency. He violates the Tenure-of-Office Act, alleging that it is against the National Constitution, whose champion he professes to be, and then takes advantage of the Acts of Congress for the supply of vacancies to set aside this Constitution in one of its most important requirements; for all which he is justly charged with an impeachable offence.
All this seems clear. Any other conclusion gives to the President the power under the National Constitution to vacate all national offices, and leaves the Republic the wretched victim of tyranny, with a ruler who is not even a constitutional monarch, but a king above all laws. It was solemnly alleged in the Chargeagainst Charles the First of England, that, “being admitted King of England, and therein trusted with a limited powerto govern by and according to the laws of the land, andNOT OTHERWISE,” he nevertheless undertook “to rule according to his will, and to overthrow the rights and liberties of the people.”[207]These very words now declare the crime of Andrew Johnson.
Here I might close; but the offender has found apologists, who plead his cause at the bar and in the Senate. The apologies are a strange compound, enlarging rather than diminishing the offences proved. There is, first, the Apology of Good Intentions; next, the Apology of making a case for the Supreme Court, being the Moot-Court Apology; and then, the Apology that the President may sit in judgment on the laws, and determine whether they shall be executed, which I call the Apology of Prerogative. Following these is a swarm of technicalities, devices, and quibbles, utterly unworthy of the Senate, and to be reprobated by all who love justice.
I begin with the Apology of Good Intentions. In the light of all that has occurred, with the volume of history open before us, with the records of the Senate in our hands, and with the evidence at the bar not utterly forgotten, it is inconceivable that such an apology can be put forward. While making it, the apologists should be veiled, so that the derisive smile on their faces may not be observed by the Senate, to whose simplicity it is addressed. It is hard to treat this apology; but it belongs to the case, and therefore I deal with it.
A mere technical violation of law, with no evil consequences, and without any claim of title, is followed by nominal damages only. If a person, without permission, steps on a field of grass belonging to another, he is a trespasser, and the law furnishes a familiar proceeding against him; but if he has done this accidentally, and without any real damage, it would be hard to pursue him, unless assertion of the title were thought important. But if the trespasser is an old offender, who from the beginning has broken fences, ruined trees, and trampled down the garden, and now defiantly comes upon the field of grass, insisting upon absolute ownership, then it is vain to set up the apology that very little damage is done. The antecedent transgressions, ending in claim of title, enter into the present trespass, and make it a question whether the rightful owner or the trespasser shall hold possession. Here the rightful owner is the people of the United States, and the trespasser is Andrew Johnson. Therefore in the name of the people is he impeached.
This simple illustration opens the whole case. Mere technical violation of statute or of Constitution, without antecedents and without consequents, would not justify impeachment. All of us can recall such, even in the administration of Abraham Lincoln; and I cannot doubt, that, since this proceeding began, the Chief Justice violated the National Constitution when he undertook to give a casting vote, not being a member of the Senate.These were accidents, besides being innocuous. From violation of statute or of Constitution the law ordinarily infers evil intent, and, where such a case is submitted to judgment, it throws upon the violator the burden of exculpation. He must show that his conduct was innocent,—in other words, that it was without evil intent, or claim of title. In the present cause we have the denial of evil intent, with a claim of title.
The question of intent raised by the offender cannot be considered narrowly. This is a trial of impeachment, and not a criminal case in a county court. It is a proceeding for expulsion from office on account of political offences, and not a suit at law. When the offender sets up good intentions, he challenges inquisition, according to the latitude of such proceeding. The whole past is unrolled by himself, and he cannot prevent the Senate from seeing it. By a commanding rule of evidence it is all before us without further proof. You cannot shut it out; you cannot refuse to look at it. And yet we have been seriously told that we must shut out from sight everything but the technical trespass. It only remains, that, imitating the ostrich, we should thrust our heads into the sand, and, not seeing danger, foolishly imagine it does not exist. This may do atNisi Prius; it will not do in the Senate.
To such extent has this ostrich pretension been carried, that we were solemnly admonished at the bar, and the paradox has found voice in the Senate, that we must judge the acts of Andrew Johnson “as if committed by George Washington.” Here is the paradox in length and breadth. I deny it. I scout it. On the contrary, I say that we must judge all these acts as if committed by Andrew Johnson, and nobody else. In other words,we must see things as they are. As well insist that an act of guilt should be judged as the mistake of innocence. As well argue that the stab of the assassin should be treated as the cut of the surgeon.
To the Apology of Good Intentions I oppose all that long unbroken series of transgressions, each with a voice to drown every pretext of innocence. I would not repeat what I have already said, but, in presence of this apology, it is my duty to remind the Senate how the career of this offender is compounded of falsehood and usurpation; how, beginning with promises to make treason odious, he soon installed it in authority; how, from declared sympathy with Unionists, white and black, he changed to be their persecutor; how in him are continued the worst elements of Slavery, an insensibility to right and a passion for power; how, in this spirit, he usurped great prerogatives not belonging to him; how, in the maintenance of this usurpation, he stuck at nothing; how he violated law; how he abused the pardoning power; how he prostituted the appointing power; how he wielded the power of removal to maintain his tyranny; how he sacrificed the Freedmen’s Bureau, and lifted up the Whiskey Ring; how he patronized massacre and bloodshed, and gave a license to the Ku-Klux-Klan; how, in madness, he entered into conflict with Congress, contesting its rightful power over the reconstruction of the Rebel States, and, when Congress would not succumb to his usurpation, how he thwarted and vilified it, expectorating foul-mouthed utterances which are a disgrace to human nature; how he so far triumphed in his wickedness that in nine States no Union man is safe and no murderer of a Union man can be punished; and, lastly,—for time fails, thoughnot the long list of transgressions,—how he conspired against the patriot Secretary of War, because he found in that adamantine character an obstacle to his revolutionary career. And now, in the face of this terrible and indisputable record, entering into and filling this impeachment, I hear a voice saying that we must judge the acts in question “as if committed by George Washington.” The statement of this pretension is enough. I hand it over to the contempt it deserves.
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 asideeven 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 himto 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 ofQuo Warrantowas 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 inWallacev.Anderson[209]would prevent resort to aQuo Warrantoon his part, while the earlier case ofMarburyv.Madison[210]would shut him out from aMandamus. The apologists have not suggested any other remedy. It is clear, therefore, that Mr. Stanton’s possession of the office was asine qua nonto a case in the Supreme Court, and that this could be only byQuo 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 Presidentialterm. 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 onHabeas Corpusafter 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.
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 mistakein 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 theCriminal 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.