The weakest point in the entire record of the Prosecution of President
Johnson, from the indictment by the House of Representatives to the
finish in the Senate, except the Bill of Impeachment itself, was the
refusal of the more than three-fourths Republican majority of the
Senate to permit the reception of testimony in his behalf. That majority
naturally gave them absolute control of the proceedings, and they should
have realized from the outset that they could not afford to give it the
least tinge of partisan bias.
It is therefore not material to discuss in detail the instances of the
two interrogatories put by counsel for the Prosecution and rejected,
Nos. 4 and 28, because it was shown that their answer would prove
nothing against the President, but rather to his vindication, and their
rejection could not have occurred but for the intervention of many more
nay Republican than Democratic votes--but will pass to the analyzation
of the votes on the twelve interrogatories propounded by counsel for
Defense and rejected, which rejections could not have occurred but by
the intervention of a large preponderance, in every instance, of
the Republican votes cast thereon, and many of them by a unanimous
Republican vote.
Without doubt, many of these votes on the admissibility of testimony
were governed by, the usual rules prevailing in the courts, but it was
deemed by others that every question not manifestly frivolous, or not
pertinent, should be permitted answer without objection, regardless of
such rules--that the Senate sitting for the trial of an Impeachment
of the President of the United States--the occasion a great State
Trial--should not be trammeled or belittled by the technicalities common
to ordinary court practice--that the Senate was composed supposedly of
gentlemen and lawyers of high standing in their profession and familiar
with public affairs and public law--that they were sitting in a
semi-judicial capacity--not merely as Senators or jurors, but, judges
also--judges of fact as well as of law--and constituted the highest
trial body known to our laws--a tribunal from which there was no
appeal--that each of its members had taken a solemn oath to "do
impartial justice" in this cause, absolutely unswerved by partisan or
personal considerations, and that as such each member had not only
the right, but it was his duty under his oath, as well, to hermit no
obstacle or condition to unnecessarily keep from him a knowledge of all
available facts pertinent to the cause, no matter on which side they
might weigh--to help or to hurt. That the body, each member for himself,
was the proper party to determine the admissibility of testimony, as
Mr. Manager Boutwell had declared in his opening argument, "AFTER HE HAD
HEARD IT," and knew its trend an purport. Every member of that body had
the right to know all the witness knew about the case, and, moreover,
the witnesses were brought for the purpose, and for the sole purpose, of
telling what they knew.
The same assurance of absolute fairness as that of Mr. Boutwell, was
also given by Mr. Bingham, another of the Managers of the Prosecution on
the part of the House, in his opening plea before the Senate: "It is,"
said he, "certainly very competent for the Senate, as it is competent
for any court of justice in the trial of cases where questions of doubt
arise, to HEAR THE EVIDENCE, and, where they themselves are the judges
of both the law and the fact, to DISMISS SO MUCH OF IT AS THEY MAY FIND
INCOMPETENT, if any of it be incompetent. * * * Under the Plea of Not
Guilty, as provided in the rules, every conceivable defense that
the accused party could make to the Articles here preferred, can be
admitted."
Mr. Manager Butler also said, on the same occasion: "Upon this so great
trial, I pray let us not belittle ourselves with the analyses of
the common law courts, or the criminal courts, because nothing is so
dangerous to mislead us."
These and other like assurances were given of the widest reasonable
latitude in the reception of testimony in the trial then opening. There
was thus every reason to expect that Mr. Johnson would have a fair
trial. But no sooner had the Prosecution completed its examination of
witnesses, in which but seven interrogatories had been objected to of
the long list proffered by the Prosecution, than a different rule seemed
to have been established for the treatment of proffered testimony, and a
large mass of relevant and valuable testimony in behalf of the President
was ruled out on objection of the Prosecution, as inadmissible, and,
as a rule that, had very few exceptions, on partisan divisions of the
Senate.
Of course it will not be admitted, nor is it here charged, that these
refusals to hear testimony were because of any fear that the answers
would have any improper force or effect upon the Senate. Nor will it
signify to say that the President's attorneys could not have proved
what they offered to prove. They hail the right to an opportunity to
so prove, and the denial of that right and opportunity was not only
a denial of a manifest right of the attorneys, but especially in this
case, a more flagrant denial of the rights of the accused, and not
only that, but they amounted to an impugnment of the discretion of the
Senate.
It is conspicuous, too, that while the defense objected to but seven of
the interrogatories submitted by the Prosecution, and five of them were
permitted answer by the vote of the Senate; twenty-one of the proffers
of testimony by the defense were objected to by the prosecution and but
nine of them permitted answer: and that condition was aggravated by the
fact that the numerical strength of the majority party in the Senate was
sufficient to determine absolutely the disposition of every question,
and they could therefore afford to be strictly fair to the accused, and
by the further fact that the objections to testimony offered in behalf
of the defense were as three to one of the objections to testimony
offered in behalf of the prosecution.
These denials of testimony in behalf of the defense were unfortunate.
That practice lowered the dignity of the occasion and of the proceeding,
as they could but have given ground for criticism of partisan bias and a
vindictive judgment in case of successful impeachment. Most, if not
all these rejected interrogatories implied important information in
possession of the witnesses which the Senate had a right to, and which
the party offering had the right to have produced. Moreover, it was the
right and the duty of the Senate to know what the witness was presumed
to know, and then to judge, each Senator for himself, of the relevancy
of the testimony.
As stated, the principal averment against the President, was his alleged
violation of the Tenure-of-Office Act in the removal of Mr. Stanton from
the office of Secretary of War, presented in various phases throughout
the Articles of Impeachment.
In illustration of the treatment of testimony offered in the President's
behalf by a majority of the Republican Senators, the record shows that
on the eighth disputed interrogatory, the second put by the defense,
General Sherman being on the witness stand:--Defense asked as to a
certain conversation relating to that removal, had between the General
and the President at an interview specified. The prosecution objected to
the question being answered, and a vote of the Senate was demanded. The
vote was--for receiving the testimony, 23; against receiving it, 28. Of
the latter number, twenty-seven, all Republicans, voted at the close
of the trial to convict the President of violating the Tenure-of-Office
Act, in the removal of Mr. Stanton, after refusing to hear testimony in
his behalf on that charge.
The next interrogatory, No. 9, was "when the President asked the witness
(Gen. Sherman,) to accept the War Office, was anything further said in
reference to it?" This was objected to by the prosecution, and the vote
thereon was 23 to 29. Twenty-eight of the twenty-nine gentlemen thus
refusing answer to this question, afterwards voting to convict the
President, after refusing to bear the testimony of a very important
witness in his behalf, which his counsel proposed to produce and tried
in vain to get before the Senate.
On the tenth interrogatory, by Defense, "whether the President had
stated to the witness, (General Sherman), his object in asking him to
accept the War Office," the vote was 7 to 44 against receiving it, and
thirty-one of the gentlemen voting not to hear this testimony, at the
close of the hearing voted to convict Mr. Johnson of a high misdemeanor
in office in the removal of Mr. Stanton, after refusing to hear his
defense.
The next, No. 11, was as to the President's attempt to get a case before
the Supreme Court for a judicial determination of Mr. Stanton's right to
retain the War Office against the President's wish. This testimony
was refused by a vote of 25 to 27--every nay vote being cast by a
Republican, every one of whom at the close of the trial, voting in
effect to convict Mr. Johnson of a high misdemeanor in office in seeking
resort to the courts to test the legality of an act of Congress passed
for the practically sole purpose of restricting an executive function
never before questioned.
The next interrogatory, No. 12, was whether the witness, (General
Sherman), had formed an opinion whether the good of the service required
a Secretary of War other than Mr. Stanton. It was well understood that
General Sherman believed that for the good of the service Mr. Stanton
ought to retire, and as the Chief Officer of the Army his opinion was
certainly entitled to weight, and the President had a right to the
benefit of his judgment. This interrogatory was objected to by the
Prosecution, and was rejected by a vote of 18 to 35--thirty-one of the
thirty-five being Republicans, who at the close of the trial voted to
convict Mr. Johnson of a high misdemeanor in the removal of Mr. Stanton,
after refusing him the benefit of the opinion of the Chief Officer of
the Army on a question affecting the military service, and to which he
was in all fairness clearly entitled.
No. 13, General Sherman was asked whether he had advised, the President
to appoint a successor to Mr. Stanton. (It was well understood that he
had.) Answer to this was refused, 18 to 32--thirty of the latter, all
Republicans, voting at the close of the trial to convict Mr. Johnson,
after refusing to hear this important testimony in his behalf. No.
16. The answer to the last interrogatory, ("if he did, state what his
purpose was,") was received by a majority of one, 26 to 25--every nay
vote being a Republican, and constituting a majority of the Republicans
of the Senate.
No. 21. Mr. O. E. Perrin on the stand, was asked as to the President's
statement that Mr. Stanton would relinquish the office at once to
General Thomas--"that it was only a temporary arrangement"--that he
would "send to the Senate at once the name of a good man," (which he
did). This testimony was rejected by a vote of 9 to 37--thirty of the
latter number being Republicans who at the close of the trial voted to
convict Mr. Johnson of a high misdemeanor in sending to the Senate the
name of Thomas Ewing, Senior, for appointment as Secretary of War, vice
Stanton removed in assumed violation of the Tenure-of-Office Act.
The next offer of testimony to be rejected was No. 23--Mr. Gideon
Welles, Secretary of the Navy, on the stand, to prove that the
Cabinet had advised the President to veto the Tenure-of-Office Bill as
unconstitutional. The Chief Justice ruled the testimony admissible for
the purpose of showing the intent with which the President had acted in
the transaction. Prosecution objected, and by a vote of 20 to 29,
the decision of the Chief Justice was overruled. No answer to this
interrogatory was permitted, every vote to refuse this testimony being
cast by a Republican, every one of whom, at the close of the trial,
voting to convict and remove Mr. Johnson for alleged violation of a law
which he believed to be unconstitutional--which he was advised by the
head of the Law Department of the Government was unconstitutional
and therefore not a law which he had sworn to execute, and the
constitutionality of which he had endeavored to get before the courts
for adjudication--those 29 Republicans so voting after having refused to
hear testimony in his defense on these identical points.
The next disputed interrogatory was No. 24--that Mr. Johnson's Cabinet
had advised him that the Secretaries who had been appointed by Mr.
Lincoln and still holding, (Mr. Stanton, Mr. Seward, and Mr. Welles,)
were removable by the President, notwithstanding the assumed restriction
of the Tenure-of-Office Act. The Chief Justice ruled this testimony to
be admissible. Objection was made by the Prosecution, and a vote taken,
and the interrogatory was rejected--22 to 26--every nay vote being
a Republican, every one of whom at the close of the trial, voting to
convict and remove Mr. Johnson from office, after having refused to hear
this very important testimony in his behalf.
Defense next offered to prove (No. 25) that it was determined by the
President, with the concurrence of the Cabinet, that an agreed case for
the determination of the constitutionality of the Tenure-of-Office Act
should be made. This testimony was objected to, and a vote taken,
which was 19 to 30. Every one of the gentlemen voting to reject this
testimony, Mr. Johnson's right to which cannot with any possible showing
of fairness be successfully disputed, were Republicans, and after so
voting, at the close of the trial, declared by their several verdicts
that he had been fairly proven guilty of a high misdemeanor in
office, by violation of the Tenure-of-Office Act in seeking a judicial
determination of the validity of a disputed Act of Congress, and should
be expelled from office.
No. 26, was as to any suggestion by the President of the employment of
force for the vacation of any office, (relating of course, to the War
Office.) Mr. Johnson had been charged with seeking the removal of Mr.
Stanton by force, should he resist. Knowing perfectly that the answer
would be in the negative, the Senate refused to permit answer to this
interrogatory, by a vote of 18 to 26, every one of the twenty-six
gentlemen at the close of the trial in effect voting that the President
was guilty as charged, of seeking to remove Mr. Stanton by violence,
after refusing to hear either his denial or witnesses in his behalf on
that point.
No. 27. Defense proposed to prove that the Cabinet had advised the
President that the Tenure-of-Office Act did not prevent the removal of
those members who had been originally appointed by Mr. Lincoln.
This testimony, which, if permitted answer, would, in the minds of
unprejudiced people, have at once set aside the entire impeachment
scheme, was not permitted answer. The vote was 20 to 26--every one of
the twenty-six gentlemen who voted to reject that most important and
conclusive testimony in Mr. Johnson's behalf, at the close of the
examination voting to convict him of a high misdemeanor in office by
violating the Tenure-of-Office Act in removing Mr. Stanton from the
office of Secretary of War--after refusing this offer to prove by his
Cabinet advisers; the witness himself, (Mr. Welles, and his testimony,
if received, was to be followed by that of Mr. Seward and Mr. Stanton,
all of whom had been appointed by Mr. Lincoln and not re-appointed by
Mr. Johnson,) that that act did not apply to or protect them against
removal at the pleasure of the President. So that on eighteen of these
twenty-one disputed interrogatories put in behalf of the Defense, a
majority of the Republicans of the Senate refused in every instance
to hear testimony, after having sworn to give Mr. Johnson a fair and
impartial trial.
But the most flagrant case of unfairness to the defendant in this
examination of witnesses occurred in the treatment of interrogatory No.
3, put by the prosecution, in their introduction of a letter from the
President to General Grant, purporting to enclose letters from different
members of the Cabinet in substantiation of the position of the
President in the controversy then pending between Gen. Grant and
himself. These letters were enclosed with, and specifically referred to
and made a part of the President's communication, and were necessary to
a correct apprehension of the controversy, from the President's or any
other standpoint.
Being so enclosed and referred to in the letter transmitting and
enclosing them, they became quite as much a part of the President's
communication as his own letter which enclosed them. Counsel for Defense
objected to the introduction of the President's letter without the
enclosures, but the objection was not sustained and the letters were not
permitted to be introduced, but the letter enclosing and referring to
them was. The vote on the production of the enclosures was, yeas 20,
nays 29--twenty-eight of the thirty-eight Republicans present, voting
to exclude this essential testimony in the President's behalf, and
twenty-seven of the number afterwards voted to convict him of a high
misdemeanor in office in removing Mr. Stanton from the War Office, after
refusing him the benefit of the testimony of his Constitutional Cabinet
advisers in this important matter.
It is possible that under other conditions this proceeding might have
been legitimate and proper; but Mr. Johnson was on trial under grave
charges, before the highest, and supposably fairest tribunal on earth,
and had a right to the benefit of the testimony of his cabinet, in full,
and more especially when that testimony was presented in a distorted and
garbled shape by his accusers. Moreover, every member of the Court
had the right to know what was in those letters, if any part of the
correspondence was to be received. But whether or not Mr. Johnson had
the right to the testimony in his behalf which it was claimed these
enclosures contained, he certainly had the right to resist the
introduction of mutilated testimony against him. The purpose of the
trial was to ascertain the facts in the case--all the facts bearing on
either side. The Court was sitting and the witnesses were called for
that purpose, and no other.
This record shows, that in but three instances out of twenty-one, did
a majority of the Republicans of the Senate vote to receive testimony
offered in the President's behalf--that on one interrogatory there was
an equal division--that on seventeen of the twenty-one interrogatories
put by the Defense, a majority of the Republicans voted to exclude
testimony, in several cases by a two-thirds vote--and that but nine of
the twenty-one interrogatories put in behalf of the President were by
Republican votes permitted to be answered--also that, as a rule
which had very rare exceptions, such interrogatories in behalf of the
President as were permitted answer, were so permitted by very close
majorities.
It is undoubted that every Republican member of the Senate entered upon
that trial in the expectation that the allegations of the Prosecution
would be sustained, but it was also expected that a fair, free, full,
open investigation of all the charges preferred would be had, and that
all the information possible to be obtained bearing upon the case, pro
and con, would be admitted to testimony--but that expectation was not
realized.
To sum up this feature of the proceeding--the Republican majority of the
Senate placed themselves and their party in the attitude of prosecutors
in the case--instead of judges sworn to give the President an impartial
trial and judgment that their course had the appearance, at least, of
a conspiracy to evict the President for purely partisan purposes,
regardless of testimony or the facts of the case-that public animosity
against Mr. Johnson had been manufactured throughout the North by wild
and vicious misrepresentations for partisan effect--that practically the
entire Republican Party machinery throughout the country was bent to
the work of prosecution. The party cry was "Crucify him!" "Convict him
anyway, and try him afterwards!" With rare exceptions, the Republican
Party of the country, press and people, were a unit in this insensate
cry.
They were ready to strike, but not to hear.
There can be but one conclusion from these premises, established by the
record of the trial--that the entire proceeding, from its inception
in the House of Representatives to its conclusion in the Senate, was
a thoroughly partisan prosecution on the part of the majority in both
Houses, and that the country was saved from the shameful spectacle, and
the dangerous consequences of such a proceeding, by the intervention and
self-sacrifice of a few gentlemen who proposed to respect the obligation
of their oath, and give Mr. Johnson, so far as in their power, a fair
trial and judgment--and not having had such a trial--to give him the
benefit of what he claimed he could prove in his own behalf and was not
permitted to--and a verdict of "Not Guilty," regardless of consequences
to themselves.
What every member of the Court had sworn to do was "impartial justice"
to Andrew Johnson, and nothing less. The Counsel on neither side had
taken that oath, but the Court had; and its performance of that oath
was impossible without possession of all the information relating to and
bearing upon the case that it was reasonably possible to obtain. That is
the essential ingredient and characteristic of a fair trial.
THAT ESSENTIAL INGREDIENT OF JUDICIAL FAIRNESS WAS NOT SHOWN TO MR.
JOHNSON IN THIS CASE BY THE REPUBLICAN MAJORITY OF THE SENATE, as
the official record of the trial clearly establishes. It was an
ill-disguised and malevolent partisan prosecution.