Chapter V: Part 5

The formal accusation is founded on recent transgressions, enumerated in articles of impeachment; but it is wrong to suppose that this is the whole case. It is very wrong to try this impeachment merely on these articles. It is unpardonable to higgle over words and phrases, when, for more than two years, the tyrannical pretensions in evidence before the Senate have been manifest, as I shall show, in terrible, heart-rending consequences.

IMPEACHMENT A POLITICAL PROCEEDING.

Before entering upon the formal accusation instituted by the House of Representatives of the United States in their own name and in the name of all the people thereof, it is important to understand the nature of the proceeding. And here on the threshold we encounter the effort of the apologists seeking in every way to confound this great constitutional trial with an ordinary case at _Nisi Prius_, and to win for the criminal President an Old Bailey acquittal, where on some quibble the prisoner is allowed to go without day. From beginning to end this has been painfully apparent, thus degrading the trial and baffling justice. Point by point has been pressed, sometimes by counsel and sometimes even by Senators, leaving the substantial merits untouched, as if, on a solemn occasion involving the safety of the Republic, there could be any other question.

The first effort was to call the Senate, sitting for the trial of impeachment, a Court, and not a Senate. Ordinarily, names are of little consequence; but it cannot be doubted that this appellation has been made the starting-point for technicalities proverbial in courts. Constantly we have been reminded of what is called our judicial character, and of the supplementary oath we have taken, as if a Senator were not always under oath, and as if other things within the sphere of his duties were not equally judicial in character. Out of this plausible assumption has come that fine-spun thread which lawyers know so well how to weave.

The whole mystification disappears, when we look at the National Constitution, which in no way speaks of impeachment as judicial, and in no way speaks of the Senate as a court. On the contrary, it uses positive language inconsistent with this assumption and all its pretended consequences. On this head there can be no doubt.

By the National Constitution it is expressly provided that “_the judicial power_ of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish,”--thus positively excluding the Senate from any exercise of “the judicial power.” And yet this same Constitution provides that “the Senate shall have the sole power to try all impeachments.” In the face of these plain texts it is impossible not to conclude, that, in trying impeachments, Senators exercise a function which is not regarded by the National Constitution as “judicial,” or, in other words, as subject to the ordinary conditions of judicial power. Call it senatorial or political, it is a power by itself, and subject to its own conditions.

Nor can any adverse conclusion be drawn from the unauthorized designation of “court” which has been foisted into our proceedings. This term is very expansive, and sometimes very insignificant. In Europe it means the household of a prince. In Massachusetts it is still applied to the Legislature of the State, which is known as the General Court. If applied to the Senate, it must be interpreted by the National Constitution, and cannot be made in any respect a source of power or a constraint.

It is difficult to understand how this term, which plays such a part in present pretensions, obtained its vogue. It does not appear in English impeachments, although there is reason for it there which is not found here. From ancient times, Parliament, including both Houses, has been called a court, and the House of Lords is known as a court of appeal. The judgment on English impeachments embraces not merely removal from office, as under the National Constitution, but also punishment; and yet it does not appear that the Lords sitting on impeachments are called a court. They are not so called in any of the cases, from the first, in 1330, entitled simply, “Impeachment of Roger Mortimer, Earl of March, for Treason,” down to the last, in 1806, entitled, “Trial of the Right Honorable Henry Lord Viscount Melville, before the Lords’ House of Parliament in Westminster Hall, for High Crimes and Misdemeanors whereof he was accused in certain Articles of Impeachment.” In the historic case of Lord Bacon, we find, at the first stage, this title, “Proceedings in Parliament against Francis Bacon Lord Verulam,” and, after the impeachment was presented, the simple title, “Proceedings in the House of Lords.” Had this simplicity been followed among us, there would have been one source of misunderstanding the less.

There is another provision of the National Constitution which testifies still further, and, if possible, more completely. It is the limitation of the judgment in cases of impeachment, making it political and nothing else. It is not punishment, but protection to the Republic. It is confined to removal from office and disqualification; but, as if aware that this was no punishment, the National Constitution further provides that this judgment shall be no impediment to indictment, trial, judgment, and punishment “according to law.” Thus again is the distinction declared between an impeachment and a proceeding “according to law.” The former, which is political, belongs to the Senate, which is a political body; the latter, which is judicial, belongs to the courts, which are judicial bodies. The Senate removes from office; the courts punish. I am not alone in drawing this distinction. It is well known to all who have studied the subject. Early in our history it was put forth by the distinguished Mr. Bayard, of Delaware, the father of Senators, in the case of Blount;[151] and it is adopted by no less an authority than our highest commentator, Judge Story, who was as much disposed as anybody to amplify the judicial power. In speaking of this text, he says that impeachment “is not so much designed to punish an offender as _to secure the State against gross official misdemeanors_; it touches neither his person nor his property, _but simply divests him of his political capacity_.”[152] All this seems forgotten by certain apologists on the present trial, who, assuming that impeachment was a proceeding “according to law,” have treated the Senate to the technicalities of the law, to say nothing of the law’s delay.

Discerning the true character of impeachment under the National Constitution, we are constrained to confess that it is a political proceeding before a political body with political purposes; that it is founded on political offences, proper for the consideration of a political body, and subject to a political judgment only. Even in cases of treason and bribery, the judgment is political, and nothing more. If I were to sum up in one word the object of impeachment under the National Constitution, meaning what it has especially in view, with its practical limitation, I should say _expulsion from office_. The present question is, Shall Andrew Johnson, on the case before the Senate, be expelled from office?

Expulsion from office is not unknown to our proceedings. By the National Constitution a Senator may be expelled with “the concurrence of two thirds,” precisely as a President may be expelled with “the concurrence of two thirds.” In each case the same exceptional vote of two thirds is required. Do not the two illustrate each other? From the nature of things, they are essentially similar in character,--except that on expulsion of the President the motion is made by the House of Representatives at the bar of the Senate, while on expulsion of a Senator the motion is made by a Senator. How can we require a technicality of proceeding in the one which is rejected in the other? If the Senate is a court, bound to judicial forms on the expulsion of the President, must it not be the same on the expulsion of a Senator? But nobody attributes to it any such strictness in the latter case. Numerous precedents attest how, in dealing with its own members, the Senate seeks substantial justice without reference to form. In the case of Blount, which is the first in our history, the expulsion was on the report of a committee, declaring him “guilty of a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator.”[153] At least one Senator has been expelled on simple motion.[154] Others have been expelled without any formal allegation or formal proof.

According to another provision of the National Constitution, overriding both cases, “each House may determine the rules of its proceedings.” The Senate, on the expulsion of its own members, has already done this, and set an example of simplicity. But it has the same power over its rules of proceeding on the expulsion of the President; and there can be no reason for simplicity in the one case not equally applicable in the other. Technicality is as little consonant with the one as with the other. Each has for its object the public safety. For this the Senator is expelled; for this, also, the President is expelled. _Salus populi suprema lex._ The proceedings in each case must be in subordination to this rule.

There is one formal difference, under the National Constitution, between the power to expel a Senator and the power to expel the President. The power to expel a Senator is unlimited in terms. The Senate may, “with the concurrence of two thirds, expel a member,” nothing being said of the offence; whereas the President can be expelled only for “treason, bribery, or _other high crimes and misdemeanors_.” A careful inquiry will show that under the latter words there is such a latitude as to leave little difference between the two cases. This brings us to the question of impeachable offences.

POLITICAL OFFENCES ARE IMPEACHABLE OFFENCES.

So much depends on the right understanding of this proceeding, that, even at the risk of protracting the discussion, I cannot hesitate to consider this branch of the subject, although what I have already said may render it superfluous. What are impeachable offences has been much considered in this trial, and sometimes with very little appreciation of the question. Next to the mystification from calling the Senate a court has been that other mystification from not calling the transgressions of Andrew Johnson “impeachable offences.”

It is sometimes boldly argued that there can be no impeachment under the National Constitution, unless for an offence defined and made indictable by Act of Congress, and therefore Andrew Johnson must go free, unless it can be shown that he is such an offender. But this argument mistakes the Constitution, and also mistakes the whole theory of impeachment.

It mistakes the Constitution in attributing to it any such absurd limitation. The argument is this: Because in the National Constitution there are no Common-Law crimes, therefore there are no such crimes on which an impeachment can be maintained. But there are two answers: first, that the District of Columbia, where the President resides and exercises his functions, was once part of Maryland, where the Common Law prevailed; that, when it came under the national jurisdiction, it brought with it the whole body of the law of Maryland, including the Common Law; and that at this day the Common Law of crimes is still recognized here. But the second answer is stronger still. By the National Constitution, _expulsion from office_ is “on impeachment for and conviction of treason, bribery, _or other high crimes and misdemeanors_”; and this, according to another clause of the Constitution, is “the supreme law of the land.” Now, when a constitutional provision can be executed without superadded legislation, it is absurd to suppose that such legislation is necessary. Here the provision executes itself without reënactment; and as for definition of “treason” and “bribery” we resort to the Common Law, so for definition of “high crimes and misdemeanors” we resort to the Parliamentary Law and the instances of impeachment by which it is illustrated. Thus clearly the whole testimony of English history enters into this case with its authoritative law. From the earliest text-writer on this subject[155] we learn the undefined and expansive character of these offences; and these instances are in point now. Thus, where a Lord Chancellor has been thought to put the great seal to an ignominious treaty, a Lord Admiral to neglect the safeguard of the seas, an Ambassador to betray his trust, a Privy Councillor to propound dishonorable measures, a confidential adviser to obtain exorbitant grants or incompatible employments, or _where any magistrate has attempted to subvert the fundamental law or introduce arbitrary power_,--all these are high crimes and misdemeanors, according to these precedents, by which the National Constitution must be interpreted. How completely they cover the charges against Andrew Johnson, whether in the formal accusation or in the long antecedent transgressions to which I shall call attention as an essential part of the case, nobody can question.

Broad as this definition may seem, it is in harmony with the declared opinions of the best minds that have been turned in this direction. Of these none so great as Edmund Burke, who, as manager on the impeachment of Warren Hastings, excited the admiration of all by varied stores of knowledge and philosophy, illumined by the rarest eloquence, marking an epoch of British history. Thus spoke the greatest genius that has ever explained the character of impeachment:--

“It is by this tribunal that statesmen who abuse their power
are tried before statesmen and by statesmen, upon solid
principles of State morality. _It is here that those who by an
abuse of power have polluted the spirit of all laws can never
hope for the least protection from any of its forms._ It is
here that those who have refused to conform themselves to the
protection of law can never hope to escape through any of its
defects.”[156]

The value of this testimony is not diminished because the orator spoke as manager. By professional license an advocate may state opinions not his own, but a manager cannot. Appearing for the House of Representatives and all the people, he speaks with the responsibility of a judge, so that his words may be cited hereafter. Here I but follow the claim of Mr. Fox.[157] Therefore the words of Burke are as authoritative as beautiful.

In different, but most sententious terms, Mr. Hallam, who is so great a light in constitutional history, thus exhibits the latitude of impeachment and its comprehensive grasp:--

“A minister is answerable for _the justice, the honesty, the
utility of all measures_ emanating from the Crown, _as well as
for their legality_; and thus the executive administration is,
or ought to be, subordinate, in all great matters of policy, to
the superintendence and virtual control of the two Houses of
Parliament.”[158]

Thus, according to this excellent witness, even failure in justice, honesty, and utility, as well as in legality, may be the ground of impeachment; and the Administration should in all great matters of policy be subject to the two Houses of Parliament,--the House of Commons to impeach, and the House of Lords to try. Here again the case of Andrew Johnson is provided for.

Our best American lights are similar, beginning with the “Federalist” itself, which teaches that impeachment is for “those offences which proceed from _the misconduct of public men_, or, in other words, from the abuse or violation of some public trust: they are of a nature which may with peculiar propriety be denominated _political_, as they relate chiefly to injuries done immediately to the society itself.”[159] If ever injuries were done immediately to society itself, if ever there was an abuse or violation of public trust, if ever there was misconduct of a public man, all these are now before us in the case of Andrew Johnson. The “Federalist” has been echoed ever since by all who have spoken with knowledge and without prejudice. First came the respected commentator, William Rawle, who specifies among causes of impeachment “the fondness for the inordinate extension of power,” “the influence of party and of prejudice,” “the seductions of foreign states,” “the baser appetite for illegitimate emolument,” and “the involutions and varieties of vice, too many and too artful to be anticipated by positive law,” all resulting in what the commentator says are “not unaptly termed _political offences_.”[160] And thus Rawle unites with the “Federalist” in stamping upon impeachable offences the epithet “political.” If in the present case there has been on the part of Andrew Johnson no base appetite for illegitimate emolument and no yielding to foreign seductions, there has been most notoriously the influence of party and prejudice, also to an unprecedented degree an individual extension of power, and an involution and variety of vice impossible to be anticipated by positive law,--all of which, in gross or in detail, is impeachable. Here it is in gross. Then comes Story, who, writing with the combined testimony of English and American history before him, and moved only by a desire of truth, records his opinion with all the original emphasis of the “Federalist.” His words are like a judgment. The process of impeachment, according to him, is intended to reach “personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of _political office_”; and the commentator adds, that it “is to be exercised over offences which are committed by public men in violation of their public trust and duties,” that “the offences to which it is ordinarily applied are of a _political_ character,” and that, strictly speaking, “the power partakes of a _political_ character.”[161] Every word here is like an ægis for the present case. The later commentator, Curtis, is, if possible, more explicit even than Story. According to him, an impeachment “is not necessarily a trial for crime”; its purposes “lie wholly beyond the penalties of the statute or the customary law”; and this commentator does not hesitate to say that it is a proceeding “to ascertain _whether cause exists for removing a public officer from office_”; and he adds, that such cause of removal “may exist where no offence against positive law has been committed,--as where the individual has, from immorality, or imbecility, _or maladministration, become unfit to exercise the office_.”[162] Here again the power of the Senate over Andrew Johnson is vindicated so as to make all doubt or question absurd.

I close this question of impeachable offences by asking you to consider that all the cases which have occurred in our history are in conformity with the rule which so many commentators have announced. The several trials of Pickering, Chase, Peck, and Humphreys exhibit its latitude in different forms. Official misconduct, including in the cases of Chase and Humphreys offensive utterances, constituted the high crimes and misdemeanors for which they were respectively arraigned. These are precedents. Add still further, that Madison, in debate on the power of removal, at the very beginning of our Government, said: “I contend that _the wanton removal of meritorious officers_ would subject the President to impeachment and removal from his own high trust.”[163] But Andrew Johnson, standing before a crowd, said of meritorious officers that he would “kick them out,”[164] and forthwith proceeded to execute his foul-mouthed menace. How small was all that Madison imagined, how small was all that was spread out in the successive impeachments of our history, if gathered into one case, compared with the terrible mass now before us!

From all these concurring authorities, English and American, it is plain that impeachment is a power broad as the National Constitution itself, and applicable to the President, Vice-President, and all civil officers through whom the Republic suffers or is in any way imperilled. Show me an act of evil example or influence committed by a President, and I show you an impeachable offence, great in proportion to the scale on which it is done, and the consequences menaced. The Republic must receive no detriment; and impeachment is a power by which this sovereign rule is maintained.

UNTECHNICAL FORM OF PROCEDURE.

The form of procedure has been noticed in considering the political character of impeachment; but it deserves further treatment by itself. Here we meet the same latitude. It is natural that the trial of political offences, before a political body, with a political judgment only, should have less of form than a trial at Common Law; and yet this obvious distinction is constantly disregarded. The authorities, whether English or American, do not leave the question open to doubt.

An impeachment is not a technical proceeding, as at _Nisi Prius_ or in a county court, where the rigid rules of the Common Law prevail. On the contrary, it is a proceeding according to Parliamentary Law, with rules of its own, unknown in ordinary courts. The formal statement and reduplication of words, constituting the stock-in-trade of so many lawyers, are exchanged for a broader manner, more consistent with the transactions of actual life. The precision of history and of common sense is enough, without the technical precision of an indictment.

From time immemorial there has been a just distinction between proceedings in Parliament and proceedings in the ordinary courts of justice, which I insist shall not be abandoned. The distant reign of Richard the Second, beyond the misfortunes touching us so much in Shakespeare, supplies a presiding rule which has been a pole-star of Constitutional Law; nor is this in any vague, uncertain language, but in the most clear and explicit terms, illumined since by great lights of law.

On what was called an appeal in Parliament, or impeachment, it has solemnly declared that the Lords were not of right obliged to proceed according to the course or rules of the Roman law or according to the law or usage of any of the inferior courts of Westminster Hall, but by the law and usage of Parliament, which was itself a court.

“In this Parliament [in the 11th year of King Richard the
Second, A. D. 1387-88] all the Lords then present, spiritual as
well as temporal, claimed as their franchise that the weighty
matters moved in this Parliament, and which shall be moved in
other Parliaments in future times, touching the peers of the
land, shall be managed, adjudged, and discussed by the course
of Parliament, and in no sort by the Law Civil, or by the
common law of the land, used in the other lower courts of the
kingdom.”[165]

The Commons approved the proceedings, and it has been remarked, in an important official report, that “neither then nor ever since have they made any objection or protestation that the rule laid down by the Lords … ought not to be applied to the impeachments of commoners as well as peers.”[166] Accordingly Lord Coke declares, that “all weighty matters in any Parliament moved concerning the peers of the realm, or commoners in Parliament assembled, ought to be determined, and adjudged, and discussed by the course of the Parliament, and not by the Civil Law, nor yet by the common laws of this realm used in more inferior courts.” Then, founding on the precedent of 11th Richard the Second, he announces, that “judges ought not to give any opinion of _a matter of Parliament_, because it is not to be decided by the common laws, but _secundum legem et consuetudinem Parliamenti_”; and he adds, “So the judges in divers Parliaments have confessed.”[167]

But impeachment is “a matter of Parliament,” whether in England or in the United States. It was so at the beginning, and has been ever since.

Even anterior to Richard the Second the same conclusion was recognized, with illustrative particularity, as appears by the trial of those who murdered King Edward the Second, thus commented by an eminent writer on Criminal Law, who was also an experienced judge, Foster:--

“It is well known, that, in parliamentary proceedings of
this kind, it is and ever was sufficient that matters appear
with proper light and certainty to a common understanding,
without that _minute exactness_ which is required in criminal
proceedings in Westminster Hall.”[168]

Thus early was the “minute exactness” of a criminal court discarded, while the proceedings were adapted to “a common understanding.” This becomes important, not only as a true rule of procedure, but as an answer to some of the apologists, especially the Senator from West Virginia [Mr. VAN WINKLE], who makes technicality a rule and essential condition.

Accordingly by law and custom of Parliament we are to move; and here we meet rules of pleading and principles of evidence entirely different from those of the Common Law, but established and fortified by a long line of precedents. This stands forth in the famous “Report from the Committee of the House of Commons appointed to inspect the Lords’ Journals in relation to their Proceedings on the Trial of Warren Hastings,” which, beyond its official character, is enhanced as the production of Edmund Burke.

“Your Committee do not find that any rules of pleading, as
observed in the inferior courts, have ever obtained in the
proceedings of the High Court of Parliament, in a cause or
matter in which the whole procedure has been within their
original jurisdiction. Nor does your Committee find that any
demurrer or exception, as of false or erroneous pleading, hath
been ever admitted to any impeachment in Parliament, as not
coming within the form of the pleading.”[169]

This principle appears in the great trial of Strafford, 16th Charles the First, 1640-41, stated by no less a person than Pym, on delivering a message of the Commons reducing the charges to more particularity: “Not that they are bound by this way of _special_ charge; and therefore, as they have taken care in their House, upon protestation, that this shall be no prejudice to bind them from proceeding _upon generals_ in other cases, and that they are not to be ruled by proceedings in other courts, which protestation they have made for preservation of power of Parliaments, so they desire that the like care may be had in your Lordships’ House.”[170] In this broad language is a just rule applicable to the present case.

The question came to formal judgment on the memorable trial of the Tory preacher, Sacheverell, March 10, 1709-10, impeached for high crimes and misdemeanors, on account of two sermons in which he put forth the doctrines of Non-Resistance and denounced the Revolution of 1688, by which English liberty was saved. After argument on both sides, and questions propounded by the Lords, the judges delivered their opinion _seriatim_, that, by the law of England and the constant practice of Westminster Hall, “the particular words supposed to be criminal ought to be specified in indictments or informations.” And yet, in face of this familiar and indisputable rule of the Common Law, thus pointedly declared, the Lords solemnly resolved:--

“That, by the law and usage of Parliament, in prosecutions by
impeachments for high crimes and misdemeanors, by writing or
speaking, the particular words supposed to be criminal are not
necessary to be expressly specified in such impeachments.”[171]

The respondent, being found guilty, moved in arrest of judgment:--

“That no entire clause, sentence, or expression, contained in
either of his sermons or dedications, is particularly set
forth in his impeachment, which he has already heard the
judges declare to be necessary in all cases of indictments or
informations.”[172]

The Lord Chancellor, denying the motion, communicated to the respondent the resolution already adopted after full debate and consideration, and added:--

“So that, in their Lordships’ opinion, the law and usage
of the High Court of Parliament being a part of the law of
the land, and that usage not requiring the words should be
_expressly specified_ in impeachments, the answer of the
judges, which related only to the course used in indictments
and informations, does not in the least affect your case.”[173]

And so the judgment was allowed to stand.

The substantial justice of this proceeding is seen, when it is considered that the whole of the libel had been read at length, so that the respondent had the benefit of anything which could be alleged in extenuation or exculpation, as if the libellous sermons had been entered _verbatim_. The Report already cited presents the practical conclusion:--

“It was adjudged sufficient to state the crime generally in the
impeachment. The libels were given in evidence; and it was not
then thought of, that nothing should be given in evidence which
was not specially charged in the impeachment.”[174]

The principle thus solemnly adjudged was ever afterwards asserted by the managers for the House of Commons in all its latitude, and with an energy, zeal, and earnestness proportioned to the magnitude of the interests involved,--as appeared conspicuously on the impeachment for high treason of the Lords who had taken part in the Rebellion of 1715 to bring back the Stuarts. Lord Wintoun, after conviction, moved in arrest of judgment, and excepted against the impeachment for error, on account of the treason not being described with sufficient certainty,--the day on which the treason was committed not having been alleged. The learned counsel, arguing that Parliamentary Law was part of Common Law, submitted “whether there is not the same certainty required in one method of proceeding at the Common Law as in another.”[175] To this ingenious presentment, by which proceedings in Parliament were brought within the grasp of the Common Law, the able and distinguished managers replied with resolution, asserting the supremacy of Parliamentary Law. Walpole, afterwards the famous Prime Minister, began:--

“Those learned gentlemen seem to forget _in what court they
are_. They have taken up so much of your Lordships’ time
in quoting of authorities and using arguments to show your
Lordships what would quash an indictment in the courts below,
that they seem to forget they are now in a court of Parliament
and on an impeachment of the Commons of Great Britain.… I hope
it will never be allowed here as a reason, that what quashes
an indictment in the courts below will make insufficient an
impeachment brought by the Commons of Great Britain.”[176]

The Attorney-General supported Walpole:--

“I would take notice that we are upon an impeachment, and
not upon an indictment. The courts below have set forms to
themselves, which have prevailed for a long course of time,
and thereby are become the forms by which those courts are to
govern themselves; but it never was thought that the forms
of those courts had any influence on the proceedings of
Parliament.”[177]

Cowper, a brother of the Lord Chancellor of that name, said:--

“If the Commons, in preparing articles of impeachment, should
govern themselves by precedents of indictments, in my humble
opinion they would depart from the ancient, nay, the constant,
usage and practice of Parliament.”[178]

Sir William Thomson followed:--

“The precedents in impeachments are not so _nice and precise in
form_ as in the inferior courts.”[179]

The judges, in answer to questions propounded, declared the necessity in indictments of mentioning “a certain day.” But the Lords, in conformity with ancient usage, set aside this technical objection, and announced:--

“That the impeachment is sufficiently certain in point of time,
according to the forms of impeachments in Parliament.”[180]

Thus do authoritative precedents exhibit a usage of Parliament, or Parliamentary Law, unlike that of the Common Law, which on trials of impeachment seeks substantial justice, but is not “nice and precise in form.” If the proceedings are not absolutely according to the rule of reason, plainly the technicalities of the Common Law are out of place. It is enough, if they are clear to “a common understanding,” without the “minute exactness” of a criminal court. But this is according to reason. A mere technicality, much more a quibble, often efficacious on a demurrer, is a wretched anachronism, when we are considering a question of political duty. Especially must this be so under the genius of republican institutions. The latitude established in England cannot be curtailed in the United States, and it becomes more essential in proportion to the elevation of the proceedings. Ascending into the region of history, the laws of history cannot be neglected.

Even if the narrow rules and exclusions of the Common Law could be tolerated on the impeachment of an inferior functionary, they must be disclaimed on the trial of a chief magistrate, involving the public safety. The technicalities of law were invented for protection against power, not for the immunity of a usurper or tyrant. When set up for the safeguard of the weak, they are respectable, but on impeachments they are intolerable. Here again I cite Edmund Burke:--

“God forbid that those who cannot defend themselves upon their
merits and their actions may defend themselves behind those
fences and intrenchments that are made to secure the liberty
of the people, that power and the abusers of power should
cover themselves by those things which were made to secure
liberty!”[181]

Never was there a case where this principle was more applicable than now.

The origin of impeachment in the National Constitution and contemporary authority vindicate this very latitude. In this light the proceeding was explained by the “Federalist,” in words which should be a guide now:--

“_This can never be tied down by such strict rules_, either
in the delineation of the offence by the prosecutors or in
the construction of it by the judges, as in common cases
serve to limit the discretion of courts in favor of personal
security.”[182]

This article was by Alexander Hamilton, writing in concert with James Madison and John Jay. Thus, by the highest authority, at the adoption of the National Constitution, it is declared that impeachment “can never be tied down by strict rules,” and that this latitude is applicable to “the delineation of the offence,” meaning thereby the procedure or pleading, and also to “the construction of the offence,” in both of which cases the “discretion” of the Senate is enlarged beyond that of ordinary courts, and so the ancient Parliamentary Law is vindicated, and the Senate is recognized within its sphere.

RULES OF EVIDENCE.

From form of procedure I pass to rules of evidence; and here again the Senate must avoid technicalities, and not allow any artificial rule to shut out the truth. It would allow no such thing on the expulsion of a Senator. How allow it on the expulsion of a President? On this account I voted to admit all evidence offered during the trial,--believing, in the first place, that it ought to be heard and considered, and, in the second place, that, even if shut out from this Chamber, it could not be shut out from the public, or be shut out from history, both of which must be the ultimate judges. On the impeachment of Prince Polignac and his colleagues of the French Cabinet, in 1830, for signing the ordinances which cost Charles the Tenth his throne, some forty witnesses were sworn, without objection, in a brief space of time, and no testimony was excluded. An examination of the two volumes entitled “Procès des Derniers Ministres de Charles X.” confirms what I say. This example, which commends itself to the enlightened reason, seems in harmony with declared principles of Parliamentary Law.

As in pleadings, so in evidence, the Law of Parliament, and not the Common Law, is the guide of the Senate. In other courts the rules vary, as on trial by jury in the King’s Bench depositions are not received, while in Chancery just the reverse is the case. The Court of Parliament has its own rules. Here again I quote the famous Report:--

“No doctrine or rule of law, much less the practice of any
court, ought to have weight or authority in Parliament further
than as such doctrine, rule, or practice is agreeable to the
proceedings in Parliament, or hath received the sanction of
approved precedent there, _or is founded on the immutable
principles of substantial justice_, without which, your
Committee readily agrees, no practice in any court, high or
low, is proper or fit to be maintained.”[183]

The true rule was enunciated:--

“The Court of Parliament ought to be open with great facility
to the production of all evidence, except that which the
precedents of Parliament teach them authoritatively to
reject, or which hath no sort of natural aptitude directly
or circumstantially to prove the case.… The Lords ought _to
enlarge, and not to contract, the rules of evidence_, according
to the nature and difficulties of the case.”[184]

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.

OUTLINE OF TRANSGRESSIONS.

From this review, showing how this proceeding is political in character, before a political body, and with a political judgment, being expulsion from office and nothing more,--then how the transgressions of the President, in protracted line, are embraced under “impeachable offences,”--then how the form of procedure is liberated from ordinary technicalities of law,--and, lastly, how unquestionable rules of evidence open the gates to overwhelming testimony,--I pass to the consideration of the testimony, and how the present impeachment became a necessity. I have already called it one of the last great battles with Slavery. See now how the battle began.

Slavery in all its pretensions is a defiance of law; for it can have no law in its support. Whoso becomes its representative must act accordingly; and this is the transcendent crime of Andrew Johnson. For the sake of Slavery, and to uphold its original supporters in their endeavors to continue this wrong under another name, he has set at defiance the National Constitution and the laws of the land; and he has accompanied this unquestionable usurpation by brutalities and indecencies in office without precedent, unless we go back to the Roman emperor fiddling or the French monarch dancing among his minions. This usurpation, with its brutalities and indecencies, became manifest as long ago as the winter of 1866, when, being President, and bound by oath of office to preserve, protect, and defend the Constitution, and to take care that the laws are faithfully executed, he assumed legislative powers in the reconstruction of the Rebel States, and, in carrying forward this usurpation, nullified an Act of Congress, intended as the corner-stone of Reconstruction, by virtue of which Rebels are excluded from office under the National Government, and thereafter, in vindication of this misconduct, uttered a scandalous speech, in which he openly charged members of Congress with being assassins, and mentioned some by name. Plainly he should have been impeached and expelled at that early day. The case against him was complete. That great patriot of English history, Lord Somers, has likened impeachment to Goliath’s sword hanging in the Temple, to be taken down only when occasion required;[193] but if ever there was occasion for its promptest vengeance, it was then. Had there been no failure at that time, we should be now by two years nearer to restoration of all kinds, whether political or financial. So strong is my conviction of the fatal remissness of the impeaching body, that I think the Senate would do a duty in strict harmony with its constitutional place in the Government, and the analogies of judicial tribunals so often adduced, if it reprimanded the House of Representatives for this delay. Of course the Senate could not originate impeachment. It could not take down the sword of Goliath. It must wait on the House, as the court waits on the grand jury. But this waiting has cost the country more than can be told.

Meanwhile the President proceeded in transgression. There is nothing of usurpation he has not attempted. Beginning with assumption of all power in the Rebel States, he has shrunk from nothing in maintenance of this unparalleled assumption. This is a plain statement of fact. Timid at first, he grew bolder and bolder. He saw too well that his attempt to substitute himself for Congress in the work of Reconstruction was sheer usurpation, and therefore, by his Secretary of State, did not hesitate to announce that “it must be distinctly understood that the restoration will be _subject to the decision of Congress_.”[194] On two separate occasions, in July and September, 1865, he confessed the power of Congress over the subject; but when Congress came together in December, the confessor of Congressional power found that he alone had this great prerogative. According to his new-fangled theory, Congress had nothing to do but admit the States with governments instituted through his will alone. It is difficult to measure the vastness of this usurpation, involving as it did a general nullification. Strafford was not bolder, when, speaking for Charles the First, he boasted that “the King’s little finger was heavier than the loins of the Law”;[195] but these words helped the proud minister to the scaffold. No monarch, no despot, no sultan, could claim more than an American President; for he claimed all. By his edict alone governments were organized, taxes levied, and even the franchises of the citizen determined.

Had this assumption of power been incidental, for the exigency of the moment, as under pressure of war, and especially to serve human rights, to which before his elevation the President had professed such vociferous devotion, it might have been pardoned. It would have passed into the chapter of unauthorized acts which a patriot people had condoned. But it was the opposite in every particular. Beginning and continuing in usurpation, it was hateful beyond pardon, because it sacrificed Unionists, white and black, and was in the interest of the Rebellion, and of Rebels who had been in arms against their country.

More than one person was appointed provisional governor who could not take the oath of office required by Act of Congress. Other persons in the same predicament were appointed in the revenue service. The effect of these appointments was disastrous. They were in the nature of notice to Rebels everywhere, that participation in the Rebellion was no bar to office. If one of their number could be appointed governor, if another could be appointed to a confidential position in the Treasury Department, there was nobody on the long list of blood who might not look for preferment. And thus all offices, from governor to constable, were handed over to disloyal scramble. Rebels crawled forth from their retreats. Men who had hardly ventured to expect life were candidates for office, and the Rebellion became strong again. The change was felt in all gradations of government, in States, counties, towns, and villages. Rebels found themselves in places of trust, while true-hearted Unionists, who had watched the coming of our flag and should have enjoyed its protecting power, were driven into hiding-places. All this was under the auspices of Andrew Johnson. It was he who animated the wicked crew. He was at the head of the work. Loyalty was persecuted. White and black, whose only offence was that they had been true to country, were insulted, abused, murdered. There was no safety for the loyal man except within the flash of our bayonets. The story is as authentic as hideous. More than two thousand murders have been reported in Texas alone since the surrender of Kirby Smith. In other States there was like carnival. Property, person, life, were all in jeopardy. Acts were done to “make a holiday in Hell.” At New Orleans was a fearful massacre, worse, considering the age and place, than that of St. Bartholomew, which darkens a century of France, or that of Glencoe, which has printed an ineffaceable stain upon one of the greatest reigns of English history. All this is directly traced to Andrew Johnson. The words of bitterness uttered at another time are justified, while Fire, Famine, and Slaughter shriek forth,--

“He let me loose, and cried, Halloo!
To him alone the praise is due.”[196]

ACCUMULATION OF IMPEACHABLE OFFENCES.