The Impeachment of Andrew Johnson
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Harper's Weekly, June 20, 1868, page 386

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Mr. Sumner’s resolutions upon the subject of impeachment and the public judgment upon it will probably pass, if pressed to a vote. The Senators who voted to convict will probably support them, and the others will not agree to them. Those who called the Republican Senators who voted for acquittal "infamous" will still think them so; and those who differed will remain of the same opinion. We can not see that anything will be gained by the passage of the resolutions; except possibly the clearer perception that when there is so vital a difference of opinion as to the nature of impeachment, the process is not likely to be very beneficial to the country. The point of Mr. Sumner’s resolutions is, that "Senators can not claim that their votes are exempt from the judgment of the people." This is the declaration made also by many newspapers, some in a reasonable tone, and some in a very different one. But what Senator has claimed such immunity, and what sensible man has demanded it for him?

If the character of a public man is so profligate, and his conduct so generally corrupt as to authorize the suspicion that his vote has been bought or improperly influenced, it is perfectly fair to say so, provided that the charge be supported by a reference to notorious precedents and to universal reputation. But to assume that a man’s conduct is corrupt because motives may be imagined that might possibly make it so is an unspeakable wrong. Criticism of public men is desirable and inevitable. But what is criticism? If a man thinks that an oath to decide in a specific case according to the evidence is an oath to be bound, despite his conviction, by party dictation—very well. That is his opinion. We will not quarrel, but we will, I hope, argue. But for such a man to say that another who believes that his oath means exactly what it says, and who acts accordingly, is "infamous," and a Judas, a Benedict Arnold, and a Jefferson Davis because he declines to yield to the party dictation, seems to us a blow at freedom itself. It is an effort to check liberty of thought, and destroy liberty of speech by terrorism.

Surely it is not a fair criticism of the motives of a public man who casts a vote differently from the wishes of many of his party friends to allege that he is governed by nothing but passion and chagrin, and to denounce him as a renegade. The St. Louis Democrat says that "If Senator Fessenden was under obligation to vote as his conscience dictated, so every honest and patriotic man in the land is under obligation to approve or disapprove as his conscience may dictate." Undoubtedly. The honest and patriotic man may indeed differ with the judgment of his Senator, and say so; but can an honest conscience possibly disapprove the Senator’s voting according to his conviction? The case stated by the Democrat can not exist. No honest man will disapprove an honest vote, whether he agrees with it or not. The Democrat further says that a Senator is as much a public servant when sitting in a trial for impeachment as when deliberating and voting upon a bill. But in the case of impeachment he is a public servant only as a judge is. Like the judge he is sworn to see that justice is done according to the law and evidence, not that what he conceives to be the public opinion upon the case is ratified. The very sanctity of the bench is that it is a refuge against a possible unjust public opinion; that it is the tribunal of reason and facts, not of passion and ignorance. When Mr. Hoar went to Charleston to test the legal validity of certain acts in the courts, the public opinion of slavery would not permit him to tarry. But if he had been suffered to remain, and the same opinion, however universal, had overpowered the court, no other proof would have been needed of the sheer barbarism of that society. So when a certain verdict was demanded of the Senate sitting as a court sworn to decide by the evidence, and demanded not by argument and reason, but by threats and epithets and abuse, those who demanded the verdict did what James did when he required that judgment should be given according to his will. Coke made his memorable reply that he should do that which should be fit for a judge to do. It seems to us that every Senator sworn to decide according to the evidence was as solemnly bound not to be influenced by party opinion as Coke was to be independent of the King’s will.

If, however, the trial was not a judicial proceeding; if the Senators represented merely the wishes of a party, their path was plain, and the process of impeachment is ridiculous. But this theory is utterly untenable. The President is impeachable for high crimes and misdemeanors. His offenses are specifically alleged. The proof of them, with the rebutting evidence, is presented. The arguments upon both sides are made. The Senators are shown to decide according to the evidence whether he has committed the offenses charged. If this is not a court, there is no such thing as a court. If impeachment be, as the resolutions of Mr. Sumner assert, purely a political proceeding, can there be any good reason given why the Constitution did not provide that when two-thirds of the Senate think that the public welfare requires the removal of the President, he may be removed? If he is to be removed for violating a law, or his oath, or for any misconduct, certainly he ought not to be so until the offense has been plainly proved. If he is to be removed because he is politically obnoxious, it is surely absurd to arraign him upon charges of specific offenses, and to swear the Senators to decide according to the evidence when their duty is to remove him, not after proof of charges, but whenever they think he ought to be set aside. If he may be removed for what Mr. Sumner calls a political offense, then his theory is, that the President may be removed because he differs with the Senate.

This is an intolerable doctrine. Undoubtedly the Executive authority is, under certain circumstances, subordinated to the Legislative. But the chief magistrate is to be set aside only upon proved specific charges, not for a difference of opinion. Therefore we have always insisted that obstructive as President Johnson unquestionably was, he should not be impeached until he had violated a law, or committed some offense other than pursuing his hostile course within the limits of the Constitution. In removing Mr. Stanton it seemed to us, and still seems, that he violated the law, and we think he should have been removed. But when those who agreed with us attempted to intimidate his judges we felt, and still feel, that their offense was infinitely greater than any charged upon him. We do not agree that that intimidation was honorable argument. It was the ferocity of party-spirit, and the subsequent criticism, as it is called, of the Republican Senators who differed, which consisted in asserting or insinuating that their verdict did not express their real conviction but was the result of personal jealousy, or bribery, seems to us to spring from the same party-spirit. If the motives of those who are elected to the bench, as Senators are in an impeachment trial, are to be venomously assailed if they do not judge politically instead of judicially, then one of the most vital safeguards of society, the independence of the Judiciary, is in immediate danger. The resolutions speak of the Dred Scott decision. But the objection to that decision was its obiter dictum; its declaration beyond the issue, and beyond the truth of history; and the palpable monstrous effort to strain the law and the fact against humanity and justice. To show this was fairly to criticize the decision. Any one who can show a similar attempt upon the part of any Republican Senator in the late trial, or can prove it to be probable from his antecedents and reputation is bound to do it. But a bald aspersion of motives, a screaming vituperation, is not criticism.

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