The Impeachment of Andrew Johnson
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Harper's Weekly,
March 7, 1868, page 146

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Before this paper is issued the question of impeachment will probably be decided. The offense of the President is plain. He assumes to put himself above the law, upon the ground that in his judgment the law is unconstitutional. A plea more preposterous can hardly be conceived, for if he be the judge of one law he is the judge of all, and no law will be executed until he approves it. Mr. James Brooks, in the very unwise and braggadocio speech which he made in the House upon the presentation of the resolution of impeachment, said that the President had as much right to judge of the constitutionality of the Tenure-of-Office Act as the Senate or the House. Undoubtedly he has; but the Constitution expressly declares that if the President objects to an act upon the ground of want of constitutionality, or upon any other ground, if he can not persuade Congress to agree with him, and the act is again passed by a two-thirds vote, it becomes the law of the land, notwithstanding the judgment of the President.

The New York Times echoes the remark of Mr. Brooks in saying of the President: "But it can scarcely be unlawful for him to perform an act in violation of an unconstitutional law, which is simply no law at all; and until the validity of this law shall have been decided by the Supreme Court the question of the President’s guilt or innocence can scarcely be entertained." That is to say, if the President vetoes a bill, and it becomes a law despite the veto, the President may set it aside until the Supreme Court declares it to be valid. Now if the President is not bound by the law, nobody else is; and the Times declares that no law is binding, even if passed by a two-thirds vote of Congress, until the Supreme Court has approved it. Such a theory reduces the function of the representatives of the people to the mere initiation of laws, and vests the real power of the Government exclusively in the Executive and Judiciary.

The Tenure-of-Office Act was passed by Congress, vetoed by the President, passed over his veto by the constitutional majority, and became the law. The President acknowledged it to be a law by conforming to its requirements, and explaining to the Senate why he had suspended the Secretary of War. The Senate did not approve the suspension, and there the matter should have ended. But by subsequently assuming to remove the Secretary the President deliberately and distinctly violates the law which forbids the removal of any civil officer appointed with the consent of the Senate without its concurrence if it be in session. There could not be a more flagrant defiance of law or usurpation of authority. If the President, as we have said, may do it in the case of one law, however constitutionally enacted, until the Supreme Court had passed upon it, and the consequent confusion and uncertainty would be intolerable. The assumption of Mr. Brooks and of the New York Times that a law may be held unconstitutional until pronounced otherwise by the court is subversive of the government and of civil order; and the question ought, therefore, to be distinctly settled whether the President has the power of dispensing with the laws? a power which the English two hundred years ago dethroned King James II for claiming.

The debate in the House need not have been so bitter. It was useless to answer the taunts and threats of Mr. James Brooks. It was foolish in Mr. Ingersoll to predict that Mr. Wade would be in the White House within ten days, and equally foolish in Mr. Pruyn to deny it. Mr. Farnsworth’s tirade against the Democratic Party was elicited by Mr. Brooks’s claim that the brute force was upon his side. The truth is, that Mr. James Brooks, who vainly aspires to some kind of leadership in the last party to which he has joined himself, very feebly initiated in the debate the part which Davis, Benjamin, and the other conspirators played in the session of 1860-61. His speech required no answer, and the orators of the majority should have confined themselves to the simple point at issue. Moreover, there should have been no attempt to restrict debate. There is no occasion for excessive haste. The constitution provides every method of proceeding. The President will not resist impeachment, and upon this simple point of deliberate violation of the law, the only point which should be raised, his trial, if ordered, need not last long.

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