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]