not succumb to his usurpation, how he thwarted and villified 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, though not the long list of transgressions, how he conspired against the patriot Secretary of War, because he fouud 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.

THE MOOT-COURT APOLOGY.

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 II, Roger North said good lawyers must be, a 'put case." Even assuming against the evidence that such was his purpose, it is hard to treat it without reprobation. The Supreme Court is not the 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 Justitia of Arragon, which could set aside laws as unconstitutional. Our 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 the 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 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, this incidental reason cannot bind Congress.

the

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 the lawyers could not make a case," he said in reply that "it was found impossible, or that 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 proper process, he tells General Thomas to " 'go on and take possession of the office;" and then, putting an end to this whole pretension of a case for the court, he proceeds to treat the latter in every respect, whether of law or fact, as Secretary, welcomes him to his cabinet, invites him to present the business of his department, and, so far from taking advantage of the opportunity he had professed to desire, denies its existence. How could he inquire by what authority Mr. Stanton assumed to hold the office of Secretary of War, when he denied, in fact, that he was holding it?

Look a little further and you cannot fail to see the reason of this indifference. The old writ of quo warranto was the only process by which a case could be made; and this could be issued only at the suit of the Attorney General. Had the President made an order of removal, the Secretary would have been com

4

pelled 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 no other process by which he could raise the question. The decision of the Supreme Court in Wallace vs. Anderson would prevent a resort to a quo warranto on his part, while the earlier case of Marbury vs. Madison would shut him out from a mandamus. The apologists have not suggested any other remedy. It is clear, therefore, that Mr. Stanton's possession of the office was a sine qua non to a case in the Supreme Court; and that this could be only by quo warranto. The local attorney employed by the President testifies that a judgment in such a case could not be reached within a year. This was enough to make it impracticable; for, if commenced, it would leave the hated Secretary at his post for the remainder of the presidential term. During the pendency of the proceeding Mr. Stanton would continue the legitimate possessor of the office. Therefore the commencement of a case would defeat the presidential passion for his instant removal. True to his passion, he removed the Secretary, well knowing that in this way he prevented a case for the court..

Against this conclusion, where all the testimony is harmonized, we have certain fruitless conversations with his cabinet, and an attempt to raise the question on a habeas corpus after the arrest of General Thomas. The conversations, whose exclusion has given a handle to the apologists, which they do not fail to use, only show that the President had made this question a subject of talk, and that, in the end, it was apparent that he could not make a case for the court so as to remove Mr. Stanton during his term, and as this was his darling object the whole idea was abandoned. The arrest of 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 the 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 after-thought. 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.

THE APOLOGY OF PREROGATIVE.

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 this 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 which 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 that 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 is the require ment of the Constitution that "the President shall take care that the laws be faithfully executed." Vain is 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 which it cannot burry into that maelstrom engulfing 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 a mistake in judgment but for usurpation in undertaking to exercise his judgment at all on such a question that he is impeached; in other words, he is impeached for undertaking to set aside a statute. Whether the statute is constitutional or not is immaterial in this view. The President, after the statute has become a law, is not the person to decide.

For

Ingenuity seeks to perplex the question by putting impossible cases. 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 the positive text of the Constitution, 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 the President, as well as the courts, must disregard as if it were plain nonsense. Its unconstitutionality would be like an axiom, not to be questioned. No argument or authority would be needed. It proves itself. Nor would the duty of disobedience be less obligatory, even if the enactment had been 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 must be disobeyed as much as if one of the ten commandments were reversed, so that it should read, "Thou shalt kill." Such extreme cases serve no good purpose. The 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 unconstitutionality of the enactment is axiomatic, excluding opinion or argument. It is a matter of fact and not a 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 a matter of fact but a matter of opinion. When submitted to the Supreme Court it is for their "opinion." Without occupying time with refinements on this head, I content myself with asserting that the judgment of the court must be a matter of opinion. One of the apologists has asserted that such a judgment is a matter of fact, and, generally, that the constitutionality of a statute is a 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 cannot be denied, that the constitutionality of a statute is a 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 preşumuntur. A statute must be presumed constitutional, unless on its face the contrary; and no decision of any court is required in its favor. It is the law of the land, and must be obeyed as such. The maxim which presumes constitutionality is just as binding as the analogous maxim of the criminal law, which presumes innocence. The President reversing all this has presumed the statute unconstitutional, and acted accordingly. In the name of prerogative he has set it aside.

The apologists have been driven to invoke the authority of President Jack18 I P-Vol. iii

son, 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 Constitution. He was courageous, but there was no such unconstitutional audacity in his life.

The apologists have also summoned 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 which he has sworn 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 Icannot 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 which he sets up. Under such a claim 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.

SWARM OF TECHNICALITIES AND QUIBBLES

I now come upon that swarm of technicalities, devices, quirks, and quibbles, which, from the beginning, have infested this great proceeding. It is hard to speak of such things without giving utterance to a contempt not entirely par liamentary. To say that they are petty and miserable is not enough. To say that they are utterly unworthy of this historic occasion is to treat them politely. They are nothing but parasitic insects, like "vermin gendered in a lion's mane;" and they are so nimble and numerous that to deal with them as they skip about. one must have the patience of the Italian peasant, who catches and kills, one by one, the diminutive animals that infest his person. The public has not forgotten the exhibition of industrious fleas." The Senate has witnessed the kindred exhibition of "industrious quibbles."

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I can give specimens only, and out of many I take one which can never be for gotten. It will be found in the Opinion of the senator from West Virginia, (Mr. Van Winkle,) which, from beginning to end, treats this impeachment as if it were a prosecution for sheep-stealing in the police court of Wheeling, and brings to the defence all the unhesitating resources of a well-trained criminal lawyer. This famous Opinion, which is without a parallel in the annals of jurisprudence, must always be admired as the marvel of technicality in a proceeding where techni cality should not intrude. It stands by itself, solitary in its originality. Others have been technical also, but the senator from West Virginia is nothing else. Travelling from law point to law point, or rather seeing law point after law point skip before him, at last he lights upon one of the largest dimensions, and this he boldly seizes and presents to the Senate.

According to him there is no allegation in the articles, that the order for the removal of Mr. Stanton was actually delivered to him, and, this being so, the senator declares that "if there is evidence of a delivery to be found in the proceedings it cannot be applied to this article, in which there is no charge or aver

ment."

And this is gravely uttered on this transcendent occasion, when an

indignant people has risen to demand judgment of a criminal ruler. The article alleges that the order was "unlawfully issued," and nobody doubts that its delivery was proved; but this is not enough, according to this senator. I challenge history for another instance of equal absurdity in legal pretension. The case which approaches it the closest is the famous extravagance of the Crown lawyer in the British Parliament, who, in reply to the argument of our fathers, that they could not be taxed without representation, bravely insisted that they were represented, and sustained himself by saying that, under the colonial charters, the lands were held "in common socage as of the borough of Greenwich in Kent," and, as Greenwich was represented in Parliament, therefore the colonies were represented there. The pretension was perfect in form, but essentially absurd. The senator from West Virginia has outdone even this climax of technicality. Other generations, as they read this great trial, with its accumulation of transgressions ending in the removal of Mr. Stanton, will note with wonder that a principal reason assigned for the verdict of not guilty was that there was no allegation in the articles, that the order for the removal was actually received by Mr. Stanton, although there was a distinct allegation that it was "unlawfully issued," and, in point of fact, it was in evidence that the order was received by him, and no human being, not even the technical senator, imagined that it was

not.

There is another invention, which has in its support some of the ablest of the apologists, like the senator from Iowa, (Mr. Grimes,) the senator from Maine, (Mr. Fessenden,) and the senator from Illinois, (Mr. Trumbull.) It is said that 'as Mr. Stanton did not go out, therefore there was no removal;" and therefore Andrew Johnson is not guilty. If, on an occasion like the present, the authority of names could change the unreal into the real, then this pretension might have weight. But it is impossible that anything so essentially frivolous should be recognized in this proceeding. Such are the shifts of a cause to be defended only by shifts. Clearly the offence of the President was in the order "unlawfully issued," and this was complete the moment it was delivered. So far as depended upon him, Mr. Stanton was removed. This was the way in which the country saw the transaction; and this is the way in which it will be recorded by history.

But these same apologists, with curious inconsistency, when they come to consider the appointment of General Thomas, insist that there was a vacancy in point of law, called by the senator from Maine a legal vacancy. If there was such a vacancy, it was because there had been a removal in point of law. There is no escape from this consequence. If there was a removal in point of law, and there was no right to make it, the President was guilty of a misdemeanor in point of law and must take the consequences.

It would be unprofitable to follow these inventions further. From these know all. In the face of presidential pretensions, inconsistent with constitutional liberty, the apologists have contributed their efforts to save the criminal by subtleties, which can secure his acquittal in form only, as by a flaw in an indictment, and they have done this, knowing that he will be left in power to assert his prerogative, and that his acquittal will be a new letter of license. Nothing which the skill of the lawyer could supply has been wanting. This learned profession has lent to the criminal all the arts in which it excels, giving all to him and forgetting the Republic. Every doubt, every scruple, every technicality, every subtlety, every quibble has been arrayed on his side, when, by every rule of reason and patriotism, all should have been arrayed on the side of our country. The Public Safety, which is the supreme law, is now imperilled. Are we not told by Blackstone that the law is always ready to catch at anything in favor of liberty? But these apologists "catch at anything" to save a usurper. In the early days of the common law there were technicalities in abundance, but these were for the maintenance of justice. On such was founded that extensive