EXPULSION OF THE PRESIDENT.

“Sir Peter, not being a peer, of course had no deliberative voice, but, during the trial, as the organ of the House of Peers, he regulated the procedure without any special vote, intimating to the managers and to the counsel for the defendant when they were to speak and to adduce their evidence. After the verdict ofGuilty, he ordered the Black Rod to produce his prisoner at the bar; and the Speaker of the House of Commons having demanded judgment, he, in good taste, abstaining from making any comment, dryly, but solemnly and impressively, pronounced the sentence which the House had agreed upon.”[132]

This proceeding was in 1725. At this time, Benjamin Franklin, the printer-boy, was actually in London. It is difficult to imagine that this precocious character, whose observation in public affairs was as remarkable as in philosophy, should have passed eighteenmonths in London at this very period without noting this remarkable trial and the manner in which it was conducted. Thus, early in life, he saw that a Chief Justice might preside at an impeachment without being a member of the House of Lords or exercising any of the powers which belong to membership.

Besides his eminence as Chief Justice, King was the nephew of the great thinker who has exercised such influence on English and American opinion, John Locke. Shortly after presiding at the impeachment as Chief Justice, he became Chancellor with a peerage.

He was followed in his high post by Talbot and Hardwicke, each with a peerage. Jumping the long period of their successful administrations, when the presiding officer was also a member of the upper House, I come to another instance where the position of the presiding officer was peculiarly apparent,—and this, too, when Benjamin Franklin was in London, as agent for Pennsylvania. I refer to Sir Robert Henley, who became Lord Keeper in 1757, without a peerage. The King, George the Second, did not like him, and therefore, while consenting to place him at the head of the law, declined to make him a member of the House over which he was to preside. At last, in 1760, the necessities of the public service constrained his elevation to the peerage, and soon afterward George the Third, who succeeded to the throne without the animosities of his grandfather, created him Chancellor and Earl of Northington.

For nearly three years, Henley, while still a commoner, was presiding officer. During this considerable period he was without voice or vote. The historian remarks, that, “if there had been any debates,he was precluded from taking part in them.”[133]In another place he pictures the defenceless condition of the unhappy magistrate with regard to his own decisions in the court below, when heard on appeal:—

“Lord Keeper Henley, till raised to the peerage, used to complain bitterly of being obliged to put the question for the reversal of his own decrees, without being permitted to say a word in support of them.”[134]

Lord Eldon, in his Anecdote Book, furnishes another statement of this case:—

“When Sir Robert Henley was Keeper of the Great Seal, and presided in the House of Lords as Lord Keeper, he could not enter into debate as a Chancellor being a peer does; and therefore, when there was an appeal from his judgments in the Court of Chancery, and the law Lords then in the House moved to reverse his judgments, … the Lord Keeper could not state the grounds of his opinions given in judgment, and support his decisions.”[135]

And thus for nearly three years this commoner presided.

A few weeks after Henley first took his place as presiding officer, Franklin arrived in London for the second time, and continued there, a busy observer, until after the Judge was created a peer. Even if he had been ignorant of parliamentary usage, or had forgotten what passed at the trial of Lord Macclesfield, he could not have failed to note that the House of Lords had for its presiding officer an eminent judge, who, not being a member, could take no part in its proceedings beyondputting the question.

Afterward, in 1770, there was a different arrangement. Owing to difficulty in finding a proper person as Chancellor, the Great Seal was put in commission, and Lord Mansfield, Chief Justice of England, was persuaded to act as presiding officer. Curiously enough, Franklin was again in England, on his third visit, and remained through the service of Lord Mansfield in this capacity. Thus this illustrious American, afterward a member of the Convention that framed the National Constitution, had at two different times seen the House of Lords with a presiding officer who, not being a member of the body, could only put the question, and then again with another presiding officer who, being a member of the body, could vote and speak, as well as put the question.

But Franklin was not the only member of the National Convention to whom these precedents were known. One or more had been educated at the Temple; others were accomplished lawyers, familiar with the courts of the mother country. I have already mentioned that Blackstone’s Commentaries, where the general rule is clearly stated, was as well known in the Colonies as in the mother country. Besides, our fathers were not ignorant of the history of England, which, down to the Declaration of Independence, had been their history. The English law was also theirs. Not a case in its books which did not belong to them as well as to the frequenters of Westminster Hall. The State Trials, involving principles of Constitutional Law, and embodying these very precedents, were all known. At least four editions had appeared several years before the adoption of the National Constitution. I cannoterr in supposing that all these were authoritative guides at the time, and that the National Constitution was fashioned in all the various lights, historical and judicial, which they furnished.

The conclusion is irresistible, that the National Constitution, when providing a presiding officer for the trial of the President of the United States, used the termpresidein the sense already acquired in Parliamentary Law, and did not intend any different signification; that our fathers knew perfectly well the parliamentary distinction between a presiding officer a member of the House and a presiding officer not a member; that, in constituting the Chief Justice presiding officer for a special temporary purpose, they had in view similar instances in the mother country, when the Lord Keeper, Chief Justice, or other judicial personage, had been appointed to preside over the House of Lords, of which he was not a member, as our Chief Justice is appointed to preside over the Senate, of which he is not a member; that they found in this constantly recurring example an apt precedent for their guidance; that they followed this precedent to all intents and purposes, using received parliamentary language, “the Chief Justice shall preside,” and nothing more; that, according to this precedent, they never intended to invest the Chief Justice, Presidentpro temporeof the Senate, with any other powers than those of a presiding officer not a member of the body; and that these powers, exemplified in an unbroken series of instances extending over centuries, under different kings and through various administrations, were simply to put the question and to direct generally the conduct of business, without undertaking in any way, by voice or vote, todetermine any question, preliminary, interlocutory, or final.

In stating this conclusion I present simply the result of the authorities. It is not I who speak; it is the authorities. My own judgment may be imperfect; but here is a mass of testimony, concurring and cumulative, without a single exception, which cannot err.

Plainly and unmistakably, the provision in our Constitution authorizing the Chief Justice topresidein the Senate, of which he is not a member, was modelled on the English original. This, according to the language of Mr. Wirt, was the “archetype” our fathers followed. As such it was embodied in the National Constitution, as if the text expressly declared that the Chief Justice, when presiding in the Senate, had all the powers accorded by parliamentary usage to such a functionary when presiding in the upper House of Parliament without being a member thereof. In saying that he shall “preside” the Constitution confers no powers of membership, and by the well-defined term employed limits him to those precise functions sanctioned at the time by immemorial usage.

Thus far I have considered this provision in the light of authorities already known and recognized at the adoption of the National Constitution. This is enough; for it is by these authorities that its meaning must be determined. You cannot reject these without setting at defiance a fixed rule of interpretation, and resorting instead to vague inference or mere imagination, quickened, perhaps, by your desires. Mere imagination and vague inference, quickened, perhaps, by your desires, are out of place when Parliamentary Law is beyond all question.

Pardon me, if I protract this argument by an additional illustration, derived from our own Congressional history. This is found under the parallel provision of the National Constitution relating to the Vice-President, which, after much debate in another generation, received authoritative interpretation: “The Vice-President of the United States shall bePresident of the Senate, but shall have no vote, unless they be equally divided.” In other words, the Vice-President, like the Chief Justice, shallpresidein the Senate, but, unlike the Chief Justice, with a casting vote. His general powers are all implied in the provision that he shall preside.

No question has occurred with regard to the vote of the Vice-President, for this is expressly regulated by the National Constitution. But the other powers of the Vice-President, when presiding in the Senate, are left to Parliamentary Law and express rules. Some of the latter were settled at an early day. From the rules of the Senate at the beginning it appears, that, independent of his casting vote, nothing was originally recognized as belonging to apresidingVice-President beyond his power to occupy the chair. All else was determined by the rules. For instance, Senators, when speaking, are to address the Chair. This rule, which seems to us so superfluous, was adopted 16th April, 1789, early in the session of the first Congress, in order to change the existing Parliamentary Law, under which a member of the upper House of Parliament habitually addresses his associates, and never the Chair. Down to this day, in England, a peer rising to speak says, “My Lords,” and never “My Lord Chancellor,” although the latterpresides. Another rule, adopted at the same date, has a similar origin. By Parliamentary Law, in the upper House of Parliament, when two members rise at the same time, the House, by their cry, indicate who shall speak. This was set aside by a positive rule of the Senate that in such a case “the President shall name the person to speak.” The Parliamentary Law, that the presiding officer, whether a member or not a member, shall put the question, was reinforced by an express rule that “all questions shall be put by the President of the Senate.”

Although the rules originally provided, that, when a member is called to order, “the President shall determine whether he is in order or not,” they failed to declare by whom the call to order should be made. There was nothing conferring this power upon the presiding officer, while by Parliamentary Law in the upper House of Parliament no presiding officer,as such, could call to order, whatever he might do as member. The powers of the presiding officer in the Senate were left in this uncertainty, but the small number of Senators and the prevailing courtesy prevented trouble. At last, in the lapse of time, the number increased, and debates assumed a more animated character. Meanwhile, in 1825, Mr. Calhoun became Vice-President. This ingenious person, severely logical, and enjoying at the time the confidence of the country to a rare degree, insisted, that, as presiding officer, he had no power but to carry into effect the rules adopted by the body, and that therefore, in the absence of any rule on the subject, he was not empowered to call a Senator to order for words spoken in debate. His conclusion was given as follows:—

“The Chair had no power beyond the rules of the Senate. It would stand in the light of a usurper, were it to attempt to exercise such a power. It was too high a power for the Chair.… The Chair would never assume any power not vested in it, but would ever show firmness in exercising those powers that were vested in the Chair.”[136]

The question with regard to the powers of the Chair was transferred from the Senate Chamber to the public press, where it was discussed with memorable ability. An article in the “National Journal,”[137]under the signature of “Patrick Henry,” attributed to John Quincy Adams, at the time President, assumed that the powers of the Vice-President, in calling to order, were not derived from the Senate, but that they came strictly from the National Constitution itself, which authorizes him to preside, and that in their exercise the Vice-President was wholly independent of the Senate. To this assumption Mr. Calhoun replied in the “National Intelligencer,” in two articles,[138]under the signature of “Onslow,” where he shows an ability not unworthy of the eminent parliamentarian whose name he for the time adopted. The point in issue was not unlike that now before us. It was insisted, on the one side, that certain powers were inherent in the Vice-President as presiding officer, precisely as it is now insisted that certain powers are inherent in the Chief-Justice when he becomes presiding officer. Mr. Calhoun replied in words applicable to the present occasion:—

“I affirm, that, as a presiding officer, the Vice-President has no inherent power whatever, unless that of doing what the Senate may prescribe by its rules be such a power. There are, indeed, inherent powers; but they are in thebody, and not in theofficer. He is a mere agent to execute the will of the former. He can exercise no power which he does not hold by delegation, either express or implied.”[139]

Then again, in reply to an illustration that had been employed, he says:—

“There is not the least analogy between the rights and duties of a judge and those of a presiding officer in a deliberative assembly. The analogy is altogether the other way. It is between the Court and the House.”[140]

It would be difficult to answer this reasoning. Unless all the precedents, in unbroken series, are set aside, a presiding officer not a member of the Senate has no inherent power except to occupy the Chair and to put the question. All else must be derived from grant in the Constitution or in the rules of the body. In the absence of any such grant, we must be contented to observe the mandates of theLex Parliamentaria. The objections of Mr. Calhoun brought to light the feeble powers of our presiding officer, and a remedy was forthwith applied by amendment of the rules, making it his duty to call to order. To his general power as presiding officer was superadded, by express rule, a further power not existing by Parliamentary Law; and such is the rule of the Senate at this day.

I turn away from this Vice-Presidential episode, contenting myself with reminding you how clearly it shows, that, independently of the rules of the Senate, the presiding officeras suchhad small powers; that he could do very little more than put the question and directthe Secretary; and, in short, that our fathers, in the interpretation of his powers, had tacitly recognized the time-honored and prevailing usage of Parliament, which in itself is a commanding law. But a Chief Justice, when presiding in the Senate, is not less under this commanding law than the Vice-President.

Thus far I have confined myself to the Parliamentary Law governing the upper House of Parliament and of Congress. Further illustration is found in the position of the Speaker, whether in the House of Commons or the House of Representatives. One cardinal distinction is to be noted at the outset, by which, in both countries, he is distinguished from the presiding officer of the upper House: the Speaker is always a member of the House. As a member he has a constituency which is represented through him; and here is another difference. The presiding officer of the upper House has no constituency; therefore his only duty isto preside, unless some other function be superadded by the National Constitution or the rules of the body.

All the authorities make the Speaker merely the organ of the House, except so far as his representative capacity is recognized. In the Commons he can vote only when the House is equally divided; in our House of Representatives his name is sometimes called, although there is no tie; but in each case he votes in his representative capacity, and not as Speaker. In the time of Queen Elizabeth it was insisted, that, because he was “one out of our own number, andnot a stranger, therefore he hath a voice.” But Sir Walter Raleigh replied, that the Speaker “was foreclosed of his voiceby taking that place.”[141]The latter opinion, which hasbeen since overruled, attests the disposition at that early day to limit his powers.

Cushing, in his elaborate work, brings together numerous illustrations, and gives the essence:—

“The presiding officer, though entitled on all occasions to be treated with the greatest attention and respect by the individual members, because the power and dignity and honor of the assembly are officially embodied in his person, is yet but the servant of the House to declare its will and to obey implicitly all its commands.”[142]“The duties of a presiding officer are of such a nature, and require him to possess so entirely and exclusively the confidence of the assembly, that, with certain exceptions, which will presently be mentioned, he is not allowed to exercise any other functions than those which properly belong to his office;that is to say, he is excluded from submitting propositions to the assembly, from participating in its deliberations, and from voting.”[143]

“The duties of a presiding officer are of such a nature, and require him to possess so entirely and exclusively the confidence of the assembly, that, with certain exceptions, which will presently be mentioned, he is not allowed to exercise any other functions than those which properly belong to his office;that is to say, he is excluded from submitting propositions to the assembly, from participating in its deliberations, and from voting.”[143]

At an early day an English Speaker vividly characterized his relations to the House, when he describes himself as “one of themselves to be the mouth, indeed the servant, of all the rest.”[144]This character appears in the memorable incident, when King Charles in his madness entered the Commons, and, going directly to the Speaker, asked for the five members he wished to arrest. Speaker Lenthall answered in ready words, revealing the function of the presiding officer: “May it please your Majesty, I have neither eyes to see nor tongue to speak,in this place, but as the House is pleased to direct me, whose servant I amhere.”[145]This reply was as good in law as in patriotism. Different words were employed by Sir William Scott, afterward Lord Stowell, when, in 1802, on moving the election of Mr. Speaker Abbot, he declared that a Speaker must add “to a jealous affection for the privileges of the House an awful sense of its duties.”[146]But the early Speaker and the great Judge did not differ. Both attest that the Speaker, when in the Chair, is only the organ of the House, and nothing more.

Passing from the Speaker to the Clerk, we find still another illustration, showing that the wordpreside, under which the Chief Justice derives all his powers, has received an authoritative interpretation in the rules of the House of Representatives, and the commentaries thereon. I cite from Barclay’s Digest.

“Under the authority contained in the Manual, and the usage of the House, the Clerkpresidedover its deliberations while there was no Speaker, but simply put questions, and, where specially authorized, preserved order, not, however, undertaking to decide questions of order.”[147]

In another place, after stating that in several Congresses there was a failure to elect a Speaker for several days, that in the twenty-sixth Congress there was a failure for eleven days, that in the thirty-first Congress there was a failure for nearly a month, that in the thirty-fourth and thirty-sixth Congresses respectively there was a failure for not less than two months, the author says:—

“During the three last-named periods, while the House was without a Speaker, the Clerkpresidedover its deliberations; not, however, exercising the functions of Speaker to the extent of deciding questions of order, but, as in the case of other questions, putting them to the House for its decision.”[148]

This limited power of the Clerk is described in a marginal note of the author,—“Clerkpresides.” The author then proceeds:—

“To relieve future Houses of some of the difficulties which grew out of the very limited power of the Clerk asa presiding officer, the House of the thirty-sixth Congress adopted the present 146th and 147th rules, which provide, that, ‘pending the election of a Speaker, the Clerk shall preserve order and decorum, and shall decide all questions of order that may arise, subject to appeal to the House.’”[149]

From this impartial statement we have a practical definition of the wordpreside. It is difficult to see how it can have a different signification in the National Constitution. The word is the same in the two cases, and it must have substantially the same meaning, whether it concern a Clerk or a Chief Justice. Nobody ever supposed that apresidingClerk could rule or vote. Can apresidingChief Justice?

The claim of a presiding Chief Justice becomes still more questionable when it is considered how positively the Constitution declares that “the Senate shall have thesolepower to try all impeachments,” and, still further, that conviction can be only by “the concurrence of two thirds ofthe members present.” These two provisions accord powers tothe Senate solely. If a presiding Chief Justice can rule or vote, the Senate has not “the sole power to try”; for ruling and voting, even on interlocutory questions, may determine the trial. A vote to postpone, to withdraw, even to adjourn, might, under peculiar circumstances, exercise a decisive influence. A vote for a protracted adjournment might defeat the trial. Notoriously such votes are among the devices of parliamentary opposition. In doing anything like this, a presiding Chief Justice makes himselfa trier, and, if he votes on the final judgment, he makes himselfa member of the Senate. But he cannot be either.

It is only a casting vote that thus far the presiding Chief Justice has assumed to give. But he has the same power to vote always as to vote when the Senate is equally divided. No such power in either case is found in the National Constitution or in Parliamentary Law. By the National Constitution he presides, and nothing more, while by Parliamentary Law there is no casting vote where the presiding officer is not a member of the body. Nor does there seem to be any difference between a casting vote on an interlocutory question and a casting vote on the final question. The former is determined by a majority, and the latter by two thirds; but it has been decided in our country, that, “if the assembly, on a division, stands exactly one third to two thirds, there is then occasion for the giving of a casting vote, because the presiding officer can then, by giving his vote, decide the question either way.”[150]This statement reveals still further how inconsistent is the claim of the presiding Chief Justice with the positive requirement of the National Constitution.

I would not keep out of sight any considerationwhich seems in any quarter to throw light on this claim; and therefore I take time to mention an analogy which has been invoked. The exceptional provision in the Constitution, under which the Vice-President has a casting vote on ordinary occasions, is taken from its place in another clause and applied to the Chief Justice. It is gravely argued that the Chief Justice is a substitute for the Vice-President, and, as the latter, by express grant, has a casting vote on ordinary occasions, therefore the Chief Justice has such when presiding on an impeachment. To this argument there are two obvious objections: first, there is no language giving a casting vote to the Chief Justice, and, in the absence of express grant, it is impossible to imply it in opposition to the prevailing rule of Parliamentary Law; and, secondly, it is by no means clear that the Vice-President has a casting vote, when called to preside on an impeachment. On ordinary occasions, in the business of the Senate, the grant is explicit; but it does not follow that this grant can be extended to embrace an impeachment, in face of positive provisions by which the power totryandvoteis confined toSenators. According to the undoubted rule of interpretation,Ut res magis valeat quam pereat, the casting vote of the Vice-President must be subject to this curtailment. Therefore, if the Chief Justice is regarded as a substitute for the Vice-President, it will be only to find himself again within the same limitations.

I cannot bring this survey to an end without an expression of deep regret that I find myself constrained to differ from the Chief Justice. In faithful fellowship for long years, we have striven together for the establishment of Liberty and Equality as the fundamentallaw of this Republic. I know his fidelity, and revere his services; but not on this account can I hesitate the less, when I find him claiming in this Chamber an important power which, in my judgment, is three times denied in the National Constitution: first, when it is declared that the Senate alone shalltryimpeachments; secondly, when it is declared that onlymembersshall convict; and, thirdly, when it is declared that the Chief Justice shallpreside, and nothing more,—thus conferring upon him those powers only which by Parliamentary Law belong to a presiding officer not a member of the body. In the face of such a claim, so entirely without example, and of such possible consequences, I cannot be silent. Reluctantly and painfully I offer this respectful protest.

There is a familiar saying of jurisprudence, that it is the part of a good judge to amplify his jurisdiction:Boni judicis est ampliare jurisdictionem. This maxim, borrowed from the horn-books, was originally established for the sake of justice and humanity, that they might not fail; but it has never been extended to other exercises of authority. On the contrary, all accepted maxims are against such assumption in other cases. Never has it been said that it is the part of a good presiding officer to amplify his power; and there is at least one obvious reason: a presiding officer is only anagent, acting always in presence of hisprincipal. Whatever the promptings of the present moment, such an amplification can find no sanction in the National Constitution, or in that Parliamentary Law from which there is no appeal.

Thus, which way soever we turn,—whether to the National Constitution, or to Parliamentary Law, as illustrated in England or the United States,—we are brought to conclude that the Chief Justice in the Senate Chamber is not in any respect Chief Justice, but only presiding officer; that he has no judicial powers, or, in other words, powersto try, but only the powers of a presiding officer not a member of the body. According to the injunction of the Constitution, he canpreside, but this is all, unless other powers are superadded by concession of the Senate, subject always to the constitutional limitation that the Senate alone cantry, and, therefore, alone can rule or vote on questions which enter into the trial. The function of a presiding officer may be narrow, but it must not be disparaged. For a succession of generations, great men in the law, Chancellors and Chief Justices, have not disdained to discharge it. Out of the long and famous list I mention one name of surpassing authority: Somers, the illustrious defender of constitutional liberty, unequalled in debate as in judgment, exercised this function without claiming other power. He was satisfied to preside. Such an example is not unworthy of us. If the present question could be determined by sentiments of personal regard, I should gladly say that our Chief Justice is needed to the Senate more than the Senate is needed to him. But the National Constitution, which has regulated the duties of all, leaves us no alternative. We are the Senate; he is the presiding officer,—although, whether in the Court Room or the Senate Chamber, he is always the most exalted servant of the law. This character he cannot lose by change of seat. As such he lends to this historic occasion the dignity of his presence and the authority of his example. Sitting in that Chair, he can do much to smooth the course ofbusiness, and to fill the Chamber with the spirit of justice. Under the rules of the Senate, he can become its organ,—but nothing more.

Opinion in the Case of the Impeachment of Andrew Johnson, President of the United States, May 26, 1868.

I voted against the rule of the Senate allowing opinions to be filed in this proceeding, and regretted its adoption. With some hesitation I now take advantage of the opportunity, if not the invitation, it affords. Voting “Guilty” on all the articles, I feel that there is little need of explanation or apology. Such a vote is its own best defender. But I follow the example of others.

This is one of the last great battles with Slavery. Driven from these legislative chambers, driven from the field of war, this monstrous power has found refuge in the Executive Mansion, where, in utter disregard of Constitution and law, it seeks to exercise its ancient domineering sway. All this is very plain. Nobody can question it. Andrew Johnson is the impersonation of the tyrannical Slave Power. In him it lives again. He is lineal successor of John C. Calhoun and Jefferson Davis, and he gathers about him the same supporters. Original partisans of Slavery, North and South, habitual compromisers of great principles, maligners of the Declaration of Independence, politicians without heart, lawyers for whom a technicality is everything, and a promiscuous company who at every stage of the battle have set their faces against Equal Rights,—these are his allies. It is the old troop of Slavery, with a few recruits, ready as of old for violence, cunning in device, and heartless in quibble. With the President at their head, they are now intrenched in the Executive Mansion.

Not to dislodge them is to leave the country a prey to a most hateful tyranny. Especially is it to surrender the Unionists of the Rebel States to violence and bloodshed. Not a month, not a week, not a day should be lost. The safety of the Republic requires action at once. Innocent men must be rescued from sacrifice.

I would not in this judgment depart from the moderation proper to the occasion; but God forbid, that, when called to deal with so great an offender, I should affect a coldness I cannot feel! Slavery has been our worst enemy, assailing all, murdering our children, filling our homes with mourning, darkening the land with tragedy; and now it rears its crest anew, with Andrew Johnson as its representative. Through him it assumes once more to rule and impose its cruel law. The enormity of his conduct is aggravated by his barefaced treachery. He once declared himself the Moses of the colored race. Behold him now the Pharaoh! With such treachery in such a cause there can be no parley. Every sentiment, every conviction, every vow against Slavery must be directed against him. Pharaoh is at the bar of the Senate for judgment.

The formal accusation is founded on recent transgressions, enumerated in articles of impeachment; but it is wrong to suppose that this is the whole case. It is very wrong to try this impeachment merely on these articles. It is unpardonable to higgle over words andphrases, when, for more than two years, the tyrannical pretensions in evidence before the Senate have been manifest, as I shall show, in terrible, heart-rending consequences.

Before entering upon the formal accusation instituted by the House of Representatives of the United States in their own name and in the name of all the people thereof, it is important to understand the nature of the proceeding. And here on the threshold we encounter the effort of the apologists seeking in every way to confound this great constitutional trial with an ordinary case atNisi Prius, and to win for the criminal President an Old Bailey acquittal, where on some quibble the prisoner is allowed to go without day. From beginning to end this has been painfully apparent, thus degrading the trial and baffling justice. Point by point has been pressed, sometimes by counsel and sometimes even by Senators, leaving the substantial merits untouched, as if, on a solemn occasion involving the safety of the Republic, there could be any other question.

The first effort was to call the Senate, sitting for the trial of impeachment, a Court, and not a Senate. Ordinarily, names are of little consequence; but it cannot be doubted that this appellation has been made the starting-point for technicalities proverbial in courts. Constantly we have been reminded of what is called our judicial character, and of the supplementary oath we have taken, as if a Senator were not always under oath, and as if other things within the sphere of his duties were not equally judicial in character. Out of thisplausible assumption has come that fine-spun thread which lawyers know so well how to weave.

The whole mystification disappears, when we look at the National Constitution, which in no way speaks of impeachment as judicial, and in no way speaks of the Senate as a court. On the contrary, it uses positive language inconsistent with this assumption and all its pretended consequences. On this head there can be no doubt.

By the National Constitution it is expressly provided that “the judicial powerof the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish,”—thus positively excluding the Senate from any exercise of “the judicial power.” And yet this same Constitution provides that “the Senate shall have the sole power to try all impeachments.” In the face of these plain texts it is impossible not to conclude, that, in trying impeachments, Senators exercise a function which is not regarded by the National Constitution as “judicial,” or, in other words, as subject to the ordinary conditions of judicial power. Call it senatorial or political, it is a power by itself, and subject to its own conditions.

Nor can any adverse conclusion be drawn from the unauthorized designation of “court” which has been foisted into our proceedings. This term is very expansive, and sometimes very insignificant. In Europe it means the household of a prince. In Massachusetts it is still applied to the Legislature of the State, which is known as the General Court. If applied to the Senate, it must be interpreted by the National Constitution, and cannot be made in any respect a source of power or a constraint.

It is difficult to understand how this term, which plays such a part in present pretensions, obtained its vogue. It does not appear in English impeachments, although there is reason for it there which is not found here. From ancient times, Parliament, including both Houses, has been called a court, and the House of Lords is known as a court of appeal. The judgment on English impeachments embraces not merely removal from office, as under the National Constitution, but also punishment; and yet it does not appear that the Lords sitting on impeachments are called a court. They are not so called in any of the cases, from the first, in 1330, entitled simply, “Impeachment of Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806, entitled, “Trial of the Right Honorable Henry Lord Viscount Melville, before the Lords’ House of Parliament in Westminster Hall, for High Crimes and Misdemeanors whereof he was accused in certain Articles of Impeachment.” In the historic case of Lord Bacon, we find, at the first stage, this title, “Proceedings in Parliament against Francis Bacon Lord Verulam,” and, after the impeachment was presented, the simple title, “Proceedings in the House of Lords.” Had this simplicity been followed among us, there would have been one source of misunderstanding the less.

There is another provision of the National Constitution which testifies still further, and, if possible, more completely. It is the limitation of the judgment in cases of impeachment, making it political and nothing else. It is not punishment, but protection to the Republic. It is confined to removal from office and disqualification; but, as if aware that this was no punishment, the National Constitution further provides that thisjudgment shall be no impediment to indictment, trial, judgment, and punishment “according to law.” Thus again is the distinction declared between an impeachment and a proceeding “according to law.” The former, which is political, belongs to the Senate, which is a political body; the latter, which is judicial, belongs to the courts, which are judicial bodies. The Senate removes from office; the courts punish. I am not alone in drawing this distinction. It is well known to all who have studied the subject. Early in our history it was put forth by the distinguished Mr. Bayard, of Delaware, the father of Senators, in the case of Blount;[151]and it is adopted by no less an authority than our highest commentator, Judge Story, who was as much disposed as anybody to amplify the judicial power. In speaking of this text, he says that impeachment “is not so much designed to punish an offender asto secure the State against gross official misdemeanors; it touches neither his person nor his property,but simply divests him of his political capacity.”[152]All this seems forgotten by certain apologists on the present trial, who, assuming that impeachment was a proceeding “according to law,” have treated the Senate to the technicalities of the law, to say nothing of the law’s delay.

Discerning the true character of impeachment under the National Constitution, we are constrained to confess that it is a political proceeding before a political body with political purposes; that it is founded on political offences, proper for the consideration of a political body, and subject to a political judgment only. Even in cases of treason and bribery, the judgment ispolitical, and nothing more. If I were to sum up in one word the object of impeachment under the National Constitution, meaning what it has especially in view, with its practical limitation, I should sayexpulsion from office. The present question is, Shall Andrew Johnson, on the case before the Senate, be expelled from office?

Expulsion from office is not unknown to our proceedings. By the National Constitution a Senator may be expelled with “the concurrence of two thirds,” precisely as a President may be expelled with “the concurrence of two thirds.” In each case the same exceptional vote of two thirds is required. Do not the two illustrate each other? From the nature of things, they are essentially similar in character,—except that on expulsion of the President the motion is made by the House of Representatives at the bar of the Senate, while on expulsion of a Senator the motion is made by a Senator. How can we require a technicality of proceeding in the one which is rejected in the other? If the Senate is a court, bound to judicial forms on the expulsion of the President, must it not be the same on the expulsion of a Senator? But nobody attributes to it any such strictness in the latter case. Numerous precedents attest how, in dealing with its own members, the Senate seeks substantial justice without reference to form. In the case of Blount, which is the first in our history, the expulsion was on the report of a committee, declaring him “guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator.”[153]At least one Senator has been expelled on simple motion.[154]Others have been expelled without any formal allegation or formal proof.

According to another provision of the National Constitution, overriding both cases, “each House may determine the rules of its proceedings.” The Senate, on the expulsion of its own members, has already done this, and set an example of simplicity. But it has the same power over its rules of proceeding on the expulsion of the President; and there can be no reason for simplicity in the one case not equally applicable in the other. Technicality is as little consonant with the one as with the other. Each has for its object the public safety. For this the Senator is expelled; for this, also, the President is expelled.Salus populi suprema lex.The proceedings in each case must be in subordination to this rule.

There is one formal difference, under the National Constitution, between the power to expel a Senator and the power to expel the President. The power to expel a Senator is unlimited in terms. The Senate may, “with the concurrence of two thirds, expel a member,” nothing being said of the offence; whereas the President can be expelled only for “treason, bribery, orother high crimes and misdemeanors.” A careful inquiry will show that under the latter words there is such a latitude as to leave little difference between the two cases. This brings us to the question of 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 renderit 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 officeis “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, orwhere 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 thathas ever explained the character of impeachment:—

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