History of the Impeachment of Andrew Johnson
Chapter XIII. The Constitutional Power Of Impeachment

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The power conferred by the Constitution upon Congress to impeach and remove the President for cause, is unquestionably a wise provision. The natural tendency of the most patriotic of men, in the exercise of power in great public emergencies, is to overstep the line of absolute safety, in the conscientious conviction that a departure from strict constitutional or legal limitations is demanded by the public welfare.

The danger in such departures, even upon apparent necessity, if condoned or permitted by public judgment is in the establishment of precedents whereby greater and more dangerous infractions of organic law may be invited, tolerated, and justified, till government takes on a form of absolutism in one form or another, fatal to free institutions, fatal to a government of law, and fatal to popular liberty.

On the other hand, a too ready resort to the power of impeachment as a remedial agent--the deposition of a public officer in the absence of proof of the most positive and convincing character of the impeachability of the offense alledged, naturally tends to the other extreme, till public officers may become by common consent removable by impeachment upon insufficient though popular charges--even upon partisan differences and on sharply contested questions of public administration.

The power of impeachment and removal becomes, therefore, a two-edged sword, which must be handled with consummate judgment and skill, and resort thereto had only in the gravest emergencies and for causes so clearly manifest as to preclude the possibility of partisan divisions or partisan judgments thereon. Otherwise, too ready resort to impeachment must inevitably establish and bring into common use a new and dangerous remedy for the cure of assumed political ills which have their origin only in partisan differences as to methods of administration. It would become an engine of partisan intolerance for the punishment and ostracism of political opponents, under the operation of which the great office of Chief Magistrate must inevitably lose its dignity, and decline from its Constitutional rank as a co-ordinate department of the Government, and its occupant no longer the political head and Chief Executive of the Nation, except in name.

It was in that sense, and to a pointed degree, that in the impeachment and trial of Andrew Johnson the quality of coordination of the three great Departments of Government--the Executive, Legislative, and Judicial--was directly involved--the House of Representatives as prosecutor--the President as defendant--the Senate sitting as the trial court in which the Chief Justice represented the judicial department as presiding officer.

The anomaly of the situation was increased and its gravity intensified, by the fact that the President pro tempore of the Senate, who stood first in the line of succession to the Presidency in case of conviction, was permitted, in a measure, indeed, forced by his pro-impeachment colleagues, on a partisan division of the Senate, to sit and vote as such President pro tempore for the impeachment and removal of the President whom he was to succeed.

These facts of condition attending and characterizing the trial of President Johnson, pointedly accentuate the danger to our composite form of government which the country then faced. That danger, as it had found frequent illustration in the debates in the House of Representatives on the several propositions for the President's impeachment preceding the bringing of the indictment, lay in the claim of superiority of political function for the Legislative branch over the Executive. The quality of co-ordination of these departments was repeatedly and emphatically denied by conspicuous and influential members of that body during the initial proceedings of the impeachment movement, and even on the floor of the Senate by the managers of the impeachment. To illustrate:

Mr. Bingham, in the House, Feb. 22nd, 1868, announced the extraordinary doctrine that "there is no power to review the action of Congress." Again, speaking of the action of the Senate on the 21st of February, on the President's message announcing the removal of Mr. Stanton, he said: "Neither the Supreme Court nor any other Court can question or review this judgment of the Senate."

The declaration was made by Messrs. Stevens and Boutwell in the House, that the Senate was its own judge of the validity of its own acts.

Mr. Butler, in his opening speech to the Senate, at the beginning of the trial, used this language:

A Constitutional tribunal solely, you are bound by no law, either Statute or Common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and salus populi suprema est lex.

Feb. 24, 1868, Mr. Stevens said in the House:

Neither the Executive nor the Judiciary had any right to interfere with it (Reconstruction) except so far as was necessary to control it by military rule until the sovereign power of the Nation had provided for its civil administration. NO POWER BUT CONGRESS HAD ANY RIGHT TO SAY WHETHER EVER, OR WHEN, they (the rebel States), should be admitted to the Union as States and entitled to the privileges of the Constitution of the United States." * * * "I trust that when we come to vote upon this question we shall remember that although it is the duty of the President to see that the laws be executed, THE SOVEREIGN POWER OF THE NATION RESTS IN CONGRESS.

Mr. Butler, the leading spirit of the impeachment enterprise, went so far as to make the revolutionary suggestion of the abrogation of the Presidential office in the event of final failure to convict the President--set out in the 8th Chapter.

Mr. Sumner insisted that in no judicial sense was the Senate a Court, and therefore not bound by the rules of judicial procedure:

If the Senate is a Court bound to judicial forms on the expulsion of the President, must it not be the same in the expulsion of a Senator? But nobody attributes to it any such strictures in the latter case. * * 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. At least one Senator has been expelled on simple formal motion. Others have been expelled without any formal allegations or formal proofs. * * * The Constitution provides that "Each House shall determine its rules of proceeding." The Senate on the expulsion of its own members has already done. this practically 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 a 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."

Thus, Mr. Sumner would have removed the President by an ordinary concurrent resolution of Congress.

The purpose of all this was apparent--that the President was in effect, to be tried and judged before a Court of Public Opinion, and not before the Senate sitting as a High Court of Impeachment, but BY the Senate sitting in its legislative capacity--to create the impression in the minds of Senators that in this high judicial procedure they were still acting as a legislative body--simply as Senators, and not in a judicial capacity, as judges and jurors, and therefore not bound specifically by their oaths as such, to convict only for crime denounced by the law, or for manifest high political misdemeanors, but could take cognizance of and convict on alleged partisan offenses and allegations based on differences of opinion and partisan prejudices and partisan predilections--that it was not essential that the judgment of Senators should be confined to the specific allegations of the indictment, but that the whole range of alleged political and partisan misdemeanors and delinquencies could be taken into account in seeking a pretext for Mr. Johnson's conviction.

The superiority of the Legislative branch was thus openly. advocated and insisted, and uncontroverted by any Republican supporting the impeachment. Mr. Johnson, according to these oft repeated declarations, was to be tried and convicted, not necessarily for any specific violation of law, or of the Constitution, but by prevailing public opinion--public clamor-in a word, on administrative differences subsisting between the President and the leaders of the dominant party in and out of Congress, and that public opinion, as concurrent developments fully establish, was industriously manufactured throughout the North, on the demand of leaders of the impeachment movement in the House, through the instrumentality of a partisan press and partisan public meetings, and in turn reflected back upon the Senate, in the form of resolutions denunciatory of the President and demanding his impeachment and removal.

That was in fact, and in a large sense, the incentive to the impeachment movement, and it was--not confined to a faction, but characterized the dominant portion of the political party then in the ascendancy in and out of Congress.

In this state of facts lay largely the vice of the impeachment movement, and it illustrated to a startling degree the danger in the departure from established forms of judicial procedure in such cases.

It became apparent, long before the close, that it was but little if anything more than a partisan prosecution--and that fact became more generally and firmly fixed, from day to day, as the trial approached conclusion.

In that state of facts, again, and in that sense, the impeachment of the President, was an assault upon the principle of coordination that underlies our political system and thus a menace to our established political forms, as, if successful, it would, logically, have been the practical destruction of the Executive Department--and, in view of previous legislation out of which the impeachment movement had to a degree arisen, and of declarations in the House and Senate quoted in this connection, the final and logical result of conviction would have been the absorption of the Executive functions of the Government by the Legislative Department, and the consequent declension of that Department to a mere bureau for the registration of the decrees of the Legislature.

Conscious of the natural tendency to infringement by a given Department of the Government upon the functions of its coordinates, the framers of the Constitution wisely defined the respective spheres of the several departments, and those definitions constitute unmistakable admonition to each as to trespass by either upon the political territory of its coordinates.

As John C. Calhoun wrote, in the early days of the Republic:

"The Constitution has not only made a general delegation of the legislative power to one branch of the Government, of the executive to another, and of the judicial to the third, but it has specifically defined the general powers and duties of each of those departments. This is essential to peace and safety in any Government, and especially in one clothed only with specific power for national purposes and erected in the midst of numerous State Governments retaining exclusive control of their local concerns.* * * Were there no power to interpret, pronounce and execute the law, the Government would perish through its own imbecility, as was the case with the Articles of Confederation; or other powers must be assumed by the legislative body, to the destruction of liberty." Again, as was eloquently and forcefully said by Daniel Webster in the U. S. Senate in 1834:

"The first object of a free people is the preservation of their liberty, and liberty is only to be preserved by maintaining constitutional restraints and just division of political power. Nothing is more deceptive or more dangerous than the pretense of a desire to simplify government. The simplest governments are despotisms; the next simplest, limited monarchies; but all republics, all governments of law, must impose numerous limitations and qualifications of authority and give many positive and many qualified rights. In other words, they must be subject to rule and regulation. This is the very essence of free political institutions. The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit: it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of man. It demands checks; it seeks for guards; it insists on securities; it entrenches itself behind strong defenses, and fortifies itself with all possible care against the assaults of ambition and passion. It does not trust the amiable weaknesses of human nature, and, therefore, it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it. Neither does it satisfy itself with flashy and temporary resistance to illegal authority. Far otherwise. It seeks for duration and permanence; it looks before and after; and, building on the experience of ages which are past, it labors diligently for the benefit of ages to come. This is the nature of constitutional liberty; and this is our liberty, if we will rightly understand and preserve it. Every free government is necessarily complicated, because all such governments establish restraints, as well on the power of government itself as on that of individuals. If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we will place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them, is the fundamental idea in the creation of all our constitutions; and, doubtless, the continuance of regulated liberty depends on maintaining these boundaries."

Each department is supreme within its own constitutionally prescribed limits, and the Supreme Court is made the umpire for the definition of the limits and the protection of the rights of all. Neither Congress, nor the Executive, are authorized to determine the constitutionality and therefore the validity of their acts, or the limits of their jurisdiction under the Constitution, but the Supreme Court is so authorized, and it is the umpire before which all differences in that regard must be determined. It is the tribunal of last resort, save the people themselves, before whom both Senate and House, and the Executive, must bow, and its decision is final in the interpretation of the Constitution.

A due regard, therefore, for the interpretation of law and the division of powers thus established, constitutes the great safeguard upon which the harmonious and successful operation of our political system depends. On its religious observance rests, primarily, the preservation of our free institutions and the perpetuation of our peculiar system of popular government. That quality of co-ordination--of the equality of the several Departments as adjusted by the Organic Act--constitutes the balance wheel of our political system.

The logical effect of the doctrines promulgated by the House of Representatives in that regard, and re-echoed on the floor of the Senate, in the press and on the stump throughout the North, were therefore not only revolutionary, but destructive. To have removed the President upon accusations in reality based upon partisan and personal--not amounting even to substantial political differences--would have been the establishment of a precedent of the most dangerous character.

In a large sense, the American system of politics and of government was on trial, quite as much as was Andrew Johnson. The extreme element of American politics was in absolute control in the House of Representatives, and practically so, in the Senate. The impeachment and removal of the President on unsubstantiated, or even remotely doubtful charges, simply: because of a disagreement between himself and Congress as to the method of treating a great public emergency, would have introduced a new and destructive practice into our political system.

Logically, the introduction of such a practice on that occasion would have been construed as a precedent for the treatment of future public emergencies. Thus, it would have tended to disturb the now perfect adjustment of the balance of powers between the co-ordinate branches. That quality of absolute supremacy of the several departments in their respective spheres, or functions, and of co-ordination or equality in their relations to each other, established by the Constitution as a guarantee of the perpetuity of our political system, would have been endangered, and the result could not have been otherwise than disaster in the future.

Logically, the Presidency would in time have been. degraded to the position of a mere department for the execution of the decrees of the legislative branch. Not illogically, the Supreme Court would have been the next object of attack, and the legislature have become, by this unconstitutional absorption of the powers of Government, the sole, controlling force--in short the Government.

That would, in time, by equally logical sequence, have been the natural, inevitable result--and the end. The wreckage of the Great Republic of the age would have been strown upon the sands of the political seashore--relics of the disregard of the checks and balances established by the wisdom of its framers, in the fundamental law--and all for the satisfaction of personal ambitions and the hates of factional animosities.

History affords too many illustrations of that tendency to decadence and disruption from disregard of the proper and necessary checks and balances in the distribution and equalization of the powers of government, to permit us to doubt what the final end would have been had the President been removed on the unsubstantiated accusation preferred by the House of Representatives, Our peculiar system of political government--a Democratic Republic--passed the danger point of its history in that hour.

It was indeed a narrow escape. The history of civilization records no precisely similar condition. The country then passed the most threatening period of its history--but passed it safely. The result was the highest possible testimonial to the strength and endurance of properly adjusted Democratic institutions that history records.

It emphasized not only the capacity of the American people for intelligent and orderly self-government, but also the strength and endurance of our popular forms. It was a profound surprise to those habituated to different political conditions. They had witnessed with astonishment the quiet disbandment of millions of men but as yesterday engaged in mortal strife--the vast armies as peacefully returning to former vocations as though from a great parade--and now, from a state of civil convulsion that in many another nation would have produced armed collision and public disorder, they saw an entire people quietly accepting the verdict of the highest authoritive body of the land, and practically dismissing the subject from thought. It was a splendid world-wide tribute to the strength and endurance of our system of popular government.

Yet the conclusion must not be deduced that the power of impeachment is not a wise provision of our Constitution, nor in any sense inconsistent with our popular forms. Conditions may, and are not unlikely to arise, some day, when the exercise of the power to impeach and remove the President may be quite as essential to the preservation of our political system as it threatened to become in this instance destructive of that system. Should that day ever come, it is to be hoped that the remedy of impeachment, as established by the Constitution, may be as patriotically, as fearlessly, and as unselfishly applied as it was on this occasion rejected.

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