Charles Sumner: his complete works, volume 16 (of 20)

by Charles Sumner

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.