第90章 THE CONSTITUTIONAL POWER OF IMPEACHMENT.(2)

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: