Its point appears in a single sentence:--

“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.

Charles Sumner: his complete works, volume 16 (of 20) · 第 36 / 80 题