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 t............