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 [Hinds' Precedents, Volume 3]

[Chapter 69 - Rules of Evidence in an Impeachment Trial]
[From the U.S. Government Publishing Office, www.gpo.gov]


               RULES OF EVIDENCE IN AN IMPEACHMENT TRIAL.

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   1. Strict rules of the courts followed. Sections 2218, 2219.\1\
   2. Must be relevant to the pleadings. Sections 2220-2225.
   3. Best evidence required. Sections 2226-2229.
   4. Hearsay testimony. Sections 2230-2237.
   5. Testimony as to declarations of respondent. Sections 2238--
     2245.
   6. As to acts of the respondent after the fact. Sections 2246-
     2247.
   7. As to opinions of witnesses. Sections 2248-2257.
   8. Public, documents as evidence. Sections 2258-2274.
   9. General decisions as to evidence. Sections 2275-2293.

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  2218. After discussion of English precedents, the Senate ruled 
decisively in the Peck trial that the strict rules of evidence in force 
in the courts should be applied.
  Witnesses in an impeachment trial are required to state facts and not 
opinions.
  Decision as to the limits within which expert testimony may be 
admitted in an impeachment trial.
  On January 7, 1831,\2\ in the high court of impeachment during the 
trial of the case of The United States v. James H. Peck, a witness, 
Robert Walsh, was examined on behalf of the respondent, and Mr. William 
Wirt, counsel for the respondent, asked this question:

  When you read the strictures signed ``A Citizen,'' did they strike 
you as misrepresenting the opinion of the court in a manner calculated 
to awaken the contempt and indignation of the people of Missouri, and 
to impair the confidence of the suitors in that court in the 
intelligence and integrity of the tribunal?

  Judge Peck was impeached for punishing for contempt the author of a 
letter signed ``A Citizen'' and published in a St. Louis paper, 
criticising an opinion delivered by Judge Peck in the case of Goulard's 
heirs.
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  \1\ Under parliamentary law the Lords are governed by the legal rules 
of evidence. Section 2155 of this volume.
  Legal rules of evidence insisted on in trial of Humphreys. Section 
2395.
  As to necessity of proof of intent to secure judgment for the fact. 
Sections 2381, 2382.
  \2\ Second session Twenty-first Congress, Senate Impeachment Journal, 
p. 331; Report of the trial of James E. Peck, pp. 229-239.
                                                            Sec. 2218
  Mr. Henry R. Storrs, of New York, one of the managers for the House 
of Representatives, objected to this question, on the ground that the 
witness was asked for an opinion instead of a fact. The question for 
the court to settle in this trial was this: Did the strictures 
misrepresent the opinion? That was a question which must be decided on 
facts. The witness was now asked his conclusion, but was that an 
evidence of fact?
  Mr. Jonathan Meredith, counsel for the respondent, argued that the 
question at issue involved a knowledge of the obscure and intricate 
subject of Spanish titles and the application of Spanish laws in 
Louisiana Territory. The witness, from his familiarity with those 
subjects, was able to assist the court in forming its opinion. The 
managers had denied that professional knowledge was needed to show 
whether or not one paper misrepresented another; but Mr. Meredith held 
that in this case the court of impeachment could not be presumed to 
possess the requisite knowledge to enable it to form a correct 
judgment, unassisted by the opinions and conclusions of others. 
Therefore the proposed testimony was competent. Furthermore, the 
intention of the respondent in punishing the author of the strictures 
was a question of importance, and the proposed testimony would be 
pertinent to that branch of the discussion.
  Mr. William Wirt, also counsel for respondent, elaborated the points 
outlined by his associate, but before doing so made remarks on the law 
of evidence as applied to impeachments:

  In the well-known case of Warren Hastings, which occupied England so 
long, a most able and masterly protest was entered by Mr. Burke and the 
managers on the part of the House of Commons against the application of 
the rigid rules of evidence which governed the practice of the courts 
of law. It was contended before that tribunal that instead of the 
strict and iron rules of a law court, the field was broad and liberal, 
and to be controlled by no rule but the Lex et consuetudo Parliamenti. 
The protest is extended, very learned, and rests on numerous 
authorities; and if this court could have an opportunity to review it, 
they would not feel the least hesitation as to the fact that they are 
not to be trammeled and hemmed in by the rigid rules of evidence. I 
find that in the remarks of the Federalist respecting the high court of 
impeachment erected by the Constitution of this country, the writer 
lays it down as a conceded point that the strictness which prevails in 
the ordinary criminal courts does not apply here, nor is it required 
that the article of impeachment should be drawn up with all the rigid 
precision of an indictment. The proceedings in this highest court are 
to be more liberal and free, and nearer substantially to the course 
pursued by courts conversant with the civil than the criminal law. Mr. 
Rawle has the same idea. And the question would be, if the original 
view could now be before this court, whether this tribunal, which is 
not an appellate court on all questions of law, and is not, therefore, 
conversant with the strict rules of law, but whose whole jurisdiction 
has respect to impeachments alone, should or should not open itself to 
all lights which can be brought to bear on this decision, and whether 
more injustice would not accrue from narrowing the apertures through 
which light is to be received, than from opening them in all directions 
from whence a single ray can touch them.

  In reply, Mr. James Buchanan, of Pennsylvania, chairman of the 
managers, argued at length in support of the objection, saying in the 
course of his remarks:

  This question in four lines embraces the very essence of the 
respondent's defense--the very question to be decided by the court, and 
asks the witness to substitute his opinion for the judgment of the 
tribunal. I ask, Is there a court in the United States, however 
inferior its grade, which, on the trial of am indictment for a libel, 
would not, without an argument, overrule the opinion of a witness as to 
whether the matter charged to be libellous was or was not a libel, and 
what would be its effect on the
Sec. 2218
public mind? Does it not strike everyone at the first blush that no 
such court could be found in any portion of this country?
  The gentleman who last addressed the court has argued the question 
with very great ingenuity, and has presented a variety of topics 
introductory to the new doctrine which he has advanced concerning the 
law of evidence. He at first contended (though he afterwards waived the 
point) that the rules of evidence, by which all other courts of the 
United States are bound, ought not to be applied in their strictness to 
this high court of impeachment; and to sustain this proposition, he 
cited the celebrated protest of Mr. Burke upon the trial of Warren 
Hastings. But the gentleman seems to have forgotten that in that far-
famed trial this very question was fairly made and decided; and it was 
held that the House of Lords, when sitting as a high court of 
impeachment, was bound by the same rules of evidence which regulated 
the proceedings of the most inferior courts of the kingdom. The whole 
trial of Judge Chase proceeded upon the same principle.
  But even without such a precedent, could there be a reasonable doubt 
upon this question? What, sir? Against whom is it that this tremendous 
power of impeachment is invoked? Is it not against high state 
criminals? Men of standing and influence and character? And when the 
House of Representatives bring a culprit of this description to trial, 
are they to be told that in crimes affecting the whole nation, and 
which, in their consequences, may bring ruin upon the people, that the 
accused shall enjoy rights and privileges and immunities which are 
denied to any ordinary citizen, when arraigned before the most inferior 
court in the land? We deny the existence of any power, even in this 
high court, to dispense with the rules of evidence. When the House of 
Representatives become accusers, it is their right to have these rules 
administered here as they are administered by the Supreme Court and the 
other tribunals of the country.
  There is another point of view in which the doctrine for which we 
contend will appear peculiarly proper and necessary. Will not the 
proceedings upon this trial be regarded as a precedent? And if this 
court shall decide questions of evidence against the law of the land 
will not such decisions bring the law of evidence into doubt and 
confusion throughout the United States?
  The gentleman has also invoked the Federalist to his aid; and what 
does it say? Does it declare that on the trial of impeachments there is 
to be a departure from the established rules of proceeding, and that 
testimony is to be admitted here which ought to be rejected in a court 
of law? By no means. It merely recognizes the principle of the English 
law, that ``in the delineation of the offense'' in the form of the 
article of impeachment the same rigid exactness is not required which 
is necessary in framing an indictment. There is not the least 
intimation that this court, in the progress of the trial, ought to 
depart from the ordinary rules of evidence.

  In further argument Mr. Storrs said:

  I confess I feel alarmed to hear it gravely urged here that an 
impeachment is to be governed by other rules than the well-known and 
long-established rules of evidence. Rules of evidence are as much a 
part of the law of the land as any other part of it, and they 
constitute the security of every man. A more dangerous principle could 
not be broached, or a more alarming principle established than that, in 
the trial of an impeachment, the ordinary rules of evidence are to be 
relaxed; and I was, I confess, surprised that the respondent should 
seek to unsettle a principle the overturning of which might easily lead 
to the most unjust and oppressive proceedings. If this is to be done in 
favor of the respondent, will it be done in favor of him alone, or may 
not State favorites be shielded or State victims be destroyed by the 
same process?

  On the question, ``Shall this interrogatory be put to the witness?'' 
there appeared yeas 7, nays 35.
  Again, on January 10,\1\ the same witness being under examination, 
Mr. Meredith asked this question, which on objection was excluded by a 
vote of yeas 1, nays 39:

  Do you think that the publication signed ``A Citizen'' was calculated 
to incense the claimants against the court, and to impair, in their 
minds, their confidence and respect for the court?
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  \1\ Journal, p. 332; Report of trial, p. 239.
                                                            Sec. 2219
  2219. In the Johnson trial the Senate declined to agree to a 
declaration modifying the strictness of the ordinary rules of 
evidence.--On April 16, 1868,\1\ in the Senate sitting for the 
impeachment trial of Andrew Johnson, President of the United States, 
Mr. Charles Sumner, of Massachusetts, proposed the following as a 
declaration of opinion to be adopted as an answer to the constantly 
recurring questions on the admissibility of testimony:

  Considering the character of this proceeding, that it is a trial of 
impeachment before the Senate of the United States, and not a 
proceeding by indictment in an inferior court;
  Considering that Senators are, from beginning to end, judges of law 
as well as fact, and that they are judges from whom there is no appeal;
  Considering that the reasons for the exclusion of evidence on an 
ordinary trial where the judge responds to the law and the jury to the 
fact are not applicable to such a proceeding;
  Considering that, according to parliamentary usage, which is the 
guide in all such cases, there is on trials of impeachment a certain 
latitude of inquiry and a freedom from technicality;
  And considering, finally, that already in the course of this trial 
there have been differences of opinion as to the admissibility of 
evidence;
  Therefore, in order to remove all such differences and to hasten the 
dispatch of business, it is deemed advisable that all evidence offered 
on either side not trivial or obviously irrelevant in nature shall be 
received without objection, it being understood that the same when 
admitted shall be open to question and comparison at the bar in order 
to determine its competency and value, and shall be carefully sifted 
and weighted by Senators in the final judgment.

  Mr. John Conness, of California, moved that the paper lie on the 
table, and the question being taken, there appeared yeas 33, nays 11. 
So the paper was laid on the table.
  2220. In an impeachment trial testimony that can be construed as 
fairly within the purport of the articles is admitted.--On April 2, 
1868 ,\2\ in the Senate sitting for the impeachment trial of Andrew 
Johnson, President of the United States, Charles A. Tinker was called 
and sworn as a witness on behalf of the managers, to prove the 
following dispatches:
                                        Montgomery, Ala.,         
                                             January 17, 1867.    
  Legislature in session. Efforts making to reconsider vote on 
constitutional amendment. Report from Washington says it is probable an 
enabling act will pass. We do not know what to believe. I find nothing 
here.
                                         Lewis E. Parsons,        
                                               Exchange Hotel.    
  His Excellency Andrew Johnson, President.
                     United States Military Telegraph,            
                      Executive Office, Washington, D. C.,        
                                               January 17, 1867.  
  What possible good can be obtained by reconsidering the 
constitutional amendment? I know of none in the present posture of 
affairs; and I do not believe the people of the whole country will 
sustain any set of individuals in attempts to change the whole 
character of our Government by enabling acts or otherwise. I believe, 
on the contrary, that they will eventually uphold all who have 
patriotism and courage to stand by the Constitution and who place their 
confidence in the people. There should be no faltering on the part of 
those who are honest in their determination to sustain the several 
coordinate departments of the Government in accordance with its 
original design.
                                               Andrew Johnson.    
  Hon. Lewis E. Parsons, Montgomery, Ala.
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  \1\ Second session Fortieth Congress, Senate Journal, p. 902; Globe 
Supplement, p. 195.
  \2\ Second session Fortieth Congress, Senate Journal p. 877; Globe 
supplement, pp. 90-92.
Sec. 2220
  Mr. Butler stated that he introduced this evidence under the tenth 
and eleventh articles of impeachment to show how President Johnson had 
endeavored to oppose the reconstruction legislation of Congress, of 
which the defeated amendment referred to in the dispatches was a part. 
Lewis E. Parsons was provisional governor of Alabama, and a man of 
influence.
  The counsel for the President objected to the evidence because it did 
not refer to acts charged in the articles of impeachment. The tenth 
article referred to the President's speeches, and not to telegrams; and 
the eleventh charged him with trying to remove Secretary of War 
Stanton, and with trying to prevent the execution of the reconstruction 
laws. Mr. William M. Evarts, of counsel for the President, said:

  ``Designing and intending to set aside the rightful authority and 
powers of Congress, did attempt to bring into disgrace, ridicule, 
hatred, contempt, and reproach the Congress of the United States and 
the several branches thereof, to impair and destroy the regard and 
respect of all the good people of the United States for the Congress 
and legislative power thereof (which all officers of the Government 
ought inviolably to preserve and maintain), and to excite the odium and 
resentment of all the good people of the United States against Congress 
and the laws by it duly and constitutionally enacted.''
  That is the entire purview of the intent. Now, the only acts charged 
as done with this intent are the delivery of a speech at the Executive 
Mansion in August, 1866, and two speeches, one at St. Louis and the 
other at Cleveland, in September, 1866. The article concludes that by 
means of these utterances--
  ``Said Andrew Johnson has brought the high office of the President of 
the United States into contempt, ridicule, and disgrace, to the great 
scandal of all good citizens, whereby said Andrew Johnson, President of 
the United States, did commit and was then and there guilty of a high 
misdemeanor in office.''
  That is the gravamen of the crime; that he brought the presidential 
office into scandal by these speeches made with this intent. Senators 
will judge from the reading of this telegram, dated in January, 1867, 
whether that supports the principal charge or intent of his derogating 
from the credit of Congress or bringing the presidential office into 
discredit.
  The eleventh article has for its substantive charge nothing but the 
making of the speech of the 18th of August, 1866, saying that by that 
speech he declared and affirmed--
  ``In substance, that the Thirty-ninth Congress of the United States 
was not a Congress of the United States authorized by the Constitution 
to exercise legislative power under the same, but, on the contrary, was 
a Congress of only part of the States, thereby denying, and intending 
to deny, that the legislation of said Congress was valid or obligatory 
upon him, the said Andrew Johnson, except in so far as he saw fit to 
approve the same, and, also, thereby denying, and intending to deny, 
the power of the said Thirty-ninth Congress to propose amendments to 
the Constitution of the United States; and in pursuance of said 
declaration''--
  That is, in pursuance of the speech made at the Executive Mansion on 
the 18th of August, 1866--
  ``The said Andrew Johnson, President of the United States, 
afterwards, to wit, on the 21st day of February, A. D. 1868, at the 
city of Washington, in the District of Columbia, did, unlawfully, and 
in disregard of the requirement of the Constitution that he should take 
care that the laws be faithfully executed, attempt to prevent the 
execution of an act entitled, ``An act regulating the tenure of certain 
civil offices,' passed March 2, 1867''--
  Which was after the date of this dispatch--
  ``By unlawfully devising and contriving, and attempting to devise and 
contrive, means by which he should prevent Edwin M. Stanton from 
forthwith resuming the functions of the office of Secretary for the 
Department of War.''
  The court will consider whether this dispatch touches that subject.
  ``And also by further unlawfully devising and contriving, and 
attempting to devise and contrive, means, then and there, to prevent 
the execution of an act entitled `An act making appropriations for the 
support of the Army for the fiscal year ending June 30, 1868, and for 
other purposes,' approved March
                                                            Sec. 2221
2, 1867; and also to prevent the execution of an act entitled `An act 
to provide for the more efficient government of the rebel States,' 
passed March 2, 1867.''
  Also, after the date of this dispatch. It is under one or the other 
of these two articles that this dispatch is, in its date and in its 
substance, supposed to be relevant.

  Mr. Evarts concluded by contending that there was nothing in the 
telegram that showed the President guilty of crime or misdemeanor in 
opposing legislation of Congress or in doing anything mentioned in the 
articles.
  Mr. Manager George S. Boutwell specifically cited the concluding 
words of the eleventh article, wherein the President was charged with 
``attempting to devise and contrive, means then and there * * * to 
prevent the execution of an act'' known as the reconstruction act. The 
adoption of the constitutional amendment was part of the reconstruction 
system, and the telegram to Governor Parsons was an act hostile to 
reconstruction.
  The question being taken, the Senate decided, yeas 27, nays 17, that 
the evidence should be admitted.
  2221. In the Johnson trial the Senate held inadmissible as evidence 
of an intent specified in the articles an act not specified in the 
articles.--On April 2, 1868,\1\ in the Senate sitting for the 
impeachment trial of Andrew Johnson, President of the United States, 
William E. Chandler, formerly Assistant Secretary of the Treasury, was 
called by the managers and sworn. The question ``Do you know Edmund 
Cooper?'', asked by Mr. Manager Benjamin F. Butler, caused Mr. Henry 
Stanbery, of counsel for the President, to ask what was the object of 
eliciting testimony concerning Mr. Cooper. After discussion, Mr. Butler 
offered the following in writing:

  We offer to prove that after the President had determined on the 
removal of Mr. Stanton, Secretary of War, in spite of the action of the 
Senate, there being no vacancy in the office of Assistant Secretary of 
the Treasury, the President unlawfully appointed his friend and 
theretofore private secretary, Edmund Cooper, to that position as one 
of the means by which he intended to defeat the tenure-of-civil-office 
act and other laws of Congress.

  Mr. Manager Butler further stated that the proof was offered under 
the eighth and eleventh articles of impeachment.
  Objecting to the testimony offered, Mr. William M. Evarts, of counsel 
for the President, quoted the eighth article's charge against the 
President:

  ``With intent unlawfully to control the disbursement of the moneys 
appropriated for the military service and for the Department of War, on 
the 21st day of February, in the year of our Lord 1868, did unlawfully 
and contrary to the provisions of an act entitled `An act regulating 
the tenure of certain civil offices,' passed March 2, 1868, and in 
violation of the Constitution of the United States, there being no 
vacancy in the office of Secretary for the Department of War, and with 
intent to violate and disregard the act aforesaid, then and there issue 
and deliver to one Lorenzo Thomas a letter of authority in writing, in 
substance as follows; that is to say:''

  Having quoted the article, Mr. Evarts continued:

  Now, you propose to prove under that, that there being no vacancy in 
the office of Assistant Secretary of the Treasury, he proposed to 
appoint his private secretary, Edmund Cooper, Assistant Secretary of 
the Treasury. That is the idea, is it, under the eighth article? We 
object to this as not admissible under the eighth article. As by 
reference it will be perceived it charges nothing but an
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  \1\ Second session Fortieth Congress, Senate Journal, pp. 875, 876; 
Globe Supplement, pp. 86-89.
Sec. 2221
intent to violate the civil-tenure act, and no mode of violating that 
except, in the want of a vacancy in the War Department, the appointment 
of General Thomas contrary to that act.
  As for the eleventh article, the honorable court will remember that 
in our answer we stated that there was in that article no such 
description, designation of ways or means, or attempt at ways and 
means, whereby we could answer definitely; and the only allegations 
there are, that in pursuance of a speech that the President made on the 
18th of August, 1866, he--
  ``Afterwards, to wit, on the 21st day of February, A. D. 1868, at the 
city of Washington, in the District of Columbia, did unlawfully, and in 
disregard of the requirement of the Constitution that he should take 
care that the laws be faithfully executed, attempt to prevent the 
execution of an act entitled `An act regulating the tenure of certain 
civil offices,' passed March 2, 1867, by unlawfully devising and 
contriving and attempting to devise and contrive means by which he 
should prevent Edwin M. Stanton from forthwith resuming the functions 
of the office of Secretary for the Department of War, notwithstanding 
the refusal of the Senate to concur in the suspension theretofore made 
by said Andrew Johnson of said Edwin M. Stanton from said office of 
Secretary for the Department of War; and also by further unlawfully 
devising and contriving and attempting to devise and contrive means, 
then and there, to prevent the execution of an act entitled `An act 
making appropriations for the support of the Army for the fiscal year 
ending June 30, 1868, and for other purposes,' approved March 2, 1867; 
and also to prevent the execution of an act entitled `An act to provide 
for the more efficient government of the rebel States,' passed March 2, 
1867, whereby,'' etc.
  The only allegation here as to time and principal action, in 
reference to which all these unnamed and undescribed ways and means 
were used, is that on the 21st of February, 1868, at the city of 
Washington, he did unlawfully and in disregard of the Constitution 
attempt to prevent the execution of the civil tenure-of-office act by 
unlawfully devising and contriving and attempting to devise and 
contrive means by which he should prevent Edwin M. Stanton from 
resuming his place in the War Department. And now proof is offered 
here, substantively, of efforts in November, 1867, to appoint, in the 
want of a vacancy in the office of Assistant Secretary of the Treasury, 
Mr. Edmund Cooper. We object to that evidence.

  Mr. Butler urged that the appointment of Cooper was one of the means 
whereby the President sought to so arrange in the Treasury Department 
that General Thomas's requisitions from the War Department should be 
honored.
  Mr. John A. Bingham, of the managers, also urged that the appointment 
of Cooper was intended as a means of illegally drawing money from the 
Treasury on requisitions of an illegal acting Secretary of War. Mr. 
Bingham further said on the question of evidence:

  We consider the law to be well settled and accepted everywhere in 
this country and England to-day that where an intent is the subject-
matter of inquiry in a criminal prosecution, other and independent acts 
on the part of the accused, looking to the same result, are admissible 
in evidence for the purpose of establishing that fact. And we go 
further than that. We undertake to say, upon very high and commanding 
authority, not to be challenged here or elsewhere, that it is settled 
that such other and independent acts showing the purpose to bring about 
the same general result, although at the time of the inquiry the 
subject-matter of a separate indictment, are nevertheless admissible. I 
doubt not that it will occur to the recollection of honorable Senators 
that among other cases illustrative of the rule which I have just cited 
it has been stated in the books--the cases have been ruled first and 
then incorporated into books of standard authorities--that where a 
party, for example, was charged with shooting with intent to kill a 
person named, it was competent, in order to show the malice, the 
malicious intent of the act, to show that at another time and place he 
laid poison. A party is charged with passing a counterfeit note; it is 
competent, in order to prove the scienter, to show that he was in 
possession of other counterfeit notes of a different denomination; and 
the rule, as stated in the books, is that what is competent to prove 
the scienter, as a general principle, is competent to prove the intent.

  Before deciding the question several Senators propounded questions 
tending to show whether or not an Assistant Secretary of the Treasury 
could, in defiance of his chief, the Secretary of the Treasury, or 
without a special designation from
                                                            Sec. 2222
him, or after his removal, honor requisitions for money from the 
Treasury. The responses of witnesses and the reading of the law did not 
make plain that the Assistant Secretary would have the power, and 
rather suggested that he would not have it.
  The question being taken as to the admissibility of the evidence, the 
yeas were 22, the nays 27. So the evidence was not admitted.
  2222. In the Johnson trial the Senate declined to admit evidence of a 
fact bearing on the question of intent, no issue having been accepted 
in the pleadings on this point.
  The Senate refused, in the Johnson trial, to admit as evidence in 
mitigation testimony held otherwise inadmissible.
  Instances in the Johnson trial wherein the decisions of the Chief 
Justice on questions of evidence were overruled.
  Instances wherein Senators propounded questions to counsel during 
arguments as to admissibility of evidence.
  On April 17, 1868,\1\ in the Senate sitting for the impeachment trial 
of Andrew Johnson, President of the United States, Gideon Welles, 
Secretary of the Navy, was sworn and examined as a witness on behalf of 
the respondent. Mr. Welles testified that he was present at a Cabinet 
meeting on Friday, February 26, 1867, and thereupon Mr. William M. 
Evarts, of counsel for the respondent, submitted the following offer of 
proof:

  We offer to prove that the President, at a meeting of the Cabinet 
while the bill was before the President for his approval, laid before 
the Cabinet the tenure-of-civil-office bill for their consideration and 
advice to the President respecting his approval of the bill; and 
thereupon the members of the Cabinet then present gave their advice to 
the President that the bill was unconstitutional and should be returned 
to Congress with his objections, and that the duty of preparing a 
message, setting forth the objection to the constitutionality of the 
bill, was devolved on Mr. Seward and Mr. Stanton; to be followed by 
proof as to what was done by the President and Cabinet up to the time  

of sending in the message.