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,—