“To refuse evidence is to refuse to hear the cause.”[185]
In striking harmony with this most reasonable conclusion is the
well-known postulate of Jeremy Bentham, who gave so much thought to the
Law of Evidence: “Evidence is the basis of justice: to exclude evidence
is to exclude justice.”[186]
The precedents of impeachment, including the trials of Strafford,
Sacheverell, Macclesfield, and the Rebel Lords in 1715, and again in
1745, all illustrate the liberality of the proceedings, while the
judgment of Lord Hardwicke, in concurrence with the rest of the judges,
and with the support of the bar, announced, that “the judges and sages
of the law have laid it down that there is but _one_ general rule of
evidence,--the best that the nature of the case will admit.”[187] And
this is the master rule governing all subordinate rules. In harmony
with it is another announced by Lord Mansfield: “All evidence is
according to the subject-matter to which it is applied.”[188] These two
rules are expansive, and not narrow,--liberal, and not exclusive. They
teach us to regard “the nature of the case” and “the subject-matter.”
But the case is an impeachment, and the subject-matter is misbehavior
in high office. Before us is no common delinquent, whose offence is
against a neighbor, but the Chief Magistrate, who has done wrong to his
country. One has injured an individual, the other has injured all. Here
again I quote the Report:--
“The abuses stated in our impeachment are not those of mere
individual, natural faculties, but the abuses of civil and
political authority. The offence is that of one who has carried
with him, in the perpetration of his crimes, whether of
violence or of fraud, the whole force of the State.”[189]
In such a case there must be a latitude of evidence commensurate with
the arraignment. And thus we are brought to the principle with which I
began.
There are other rules, which it is not too late to profit by. One
relates to the burden of proof, and is calculated to have a practical
bearing. Another relates to matters of which the Senate will take
cognizance without any special proof, thus importing into the case
unquestionable evidence explaining and aggravating the transgressions
charged.
1. Look carefully at the object of the trial. Primarily it is for the
expulsion of the President from office. Its motive is not punishment,
not vengeance, but the public safety. Nothing less could justify the
ponderous proceeding. It will be for the criminal courts to award the
punishment due to his offences. The Senate considers only how the
safety of the people, which is the supreme law, can be best preserved;
and to this end the ordinary rule of evidence is reversed. If on any
point you entertain doubts, the benefit of those doubts must be given
to your country; and this is the supreme law. When tried on indictment
in the criminal courts, Andrew Johnson may justly claim the benefit
of your doubts; but at the bar of the Senate, on the question of
expulsion from office, his vindication must be in every respect and on
each charge beyond a doubt. He must show that his longer continuance in
office is not inconsistent with the public safety,--
“Or at least so prove it,
That the probation bear no hinge nor loop
To hang a doubt on.”
Anything short of this is to trifle with the Republic and its
transcendent fortunes.
It is by insisting upon doubts that the apologists of the President,
at the bar and in the Senate, seek to save him. For myself, I see none
such; but assuming that they exist, then should they be marshalled for
our country. This is not a criminal trial, where the rule prevails.
Better the escape of many guilty than that one innocent should suffer.
This rule, so proper in its place, is not applicable to a proceeding
for expulsion from office; and who will undertake to say that any claim
of office can be set against the public safety?
In this just rule of evidence I find little more than time-honored
maxims of jurisprudence, requiring interpretation always in favor
of Liberty. Early in the Common Law we were told that he is to be
adjudged impious and cruel who does not favor Liberty: _Impius et
crudelis judicandus est qui Libertati non favet_.[190] Blackstone,
whose personal sympathies were with power, is constrained to confess
that “the law is always ready to catch at anything in favor of
Liberty.”[191] But Liberty and all else are contained in the public
safety; they depend on the rescue of the country from a Presidential
usurper. Therefore should we now, in the name of the law, “catch at
anything” to save the Republic.
2. There is another rule of evidence, which, though of common
acceptance in the courts, has peculiar value in this case, where it
must exercise a decisive influence. It is this: Courts will take
judicial cognizance of certain matters without any special proof on
the trial. Some of these are of general knowledge, and others are
within the special knowledge of the court. Among these, according to
express decision, are the frame of government, and the public officers
administering it; the accession of the Chief Executive; the sitting
of Congress, and its usual course of proceeding; the customary course
of travel; the ebbs and flows of the tide; _also whatever ought to be
generally known within the limits of the jurisdiction, including the
history of the country_. Besides these matters of general knowledge,
a court will take notice of its own records, the conduct of its own
officers, and whatever passes in its own presence or under its own
eyes. For all this I cite no authority; it is superfluous. I add
a single illustration from the great English commentator: “If the
contempt be committed in the face of the court, the offender may be
instantly apprehended and imprisoned, at the discretion of the judges,
without any further proof or examination.”[192]
If this be the rule of courts, _a fortiori_ it must be the rule of the
Senate on impeachments; for we have seen, that, when sitting for this
purpose, the Senate enjoys a latitude of its own. Its object is the
Public Safety; and therefore no aid for the arrival at truth can be
rejected, no gate can be closed. But here is a gate opened by the sages
of the law, and standing open always, to the end that justice may not
fail.
Applying this rule, it will be seen at once how it brings before the
Senate, without any further evidence, a long catalogue of crime,
affecting the character of the President beyond all possibility of
defence, and serving to explain the later acts on which the impeachment
is founded. It was in this Chamber, in the face of the Senate and
the ministers of foreign powers, and surrounded by the gaze of
thronged galleries, that Andrew Johnson exhibited himself in beastly
intoxication while he took his oath of office as Vice-President; and
all that he has done since is of record here. Much of it appears on our
Journals. The rest is in authentic documents published by the order of
the Senate. Never was record more complete.
Here in the Senate we know officially how he made himself the attorney
of Slavery, the usurper of legislative power, the violator of law, the
patron of rebels, the helping hand of rebellion, the kicker from office
of good citizens, the open bung-hole of the Treasury, the architect
of the “Whiskey Ring,” the stumbling-block to all good laws by wanton
vetoes and then by criminal hindrances: all these things are known
here beyond question. To the apologists of the President, who set up
the quibbling objection that they are not alleged in the Articles of
Impeachment, I reply, that, even if excluded on this account from
judgment, they may be treated as evidence. They are the reservoir from
which to draw, in determining the true character of the later acts
for which the President is arraigned, and especially the _intent_ by
which he was animated. If these latter were alone, without connection
with transgressions of the past, they would have remained unnoticed,
impeachment would not have been ordered. It is because they are a
prolongation of that wickedness under which the country has so long
suffered, and spring from the same bloody fountain, that they are now
presented for judgment. They are not alone; nor can they be faithfully
considered without drawing upon the past. The story of the god Thor in
Scandinavian mythology is revived, whose drinking-horn could not be
drained by the strongest quaffer, for it communicated with the vast and
inexhaustible ocean. Andrew Johnson is our god Thor, and these latter
acts for which he stands impeached are the drinking-horn whose depths
are unfathomable.