. ' ~ .. . . . . . v . . ·~ .. . - . CONGRESSicJNAL RECORD; CONTAINING THE PROCEEDINGS · OF THE SENATJ£ · SITTING FOR THE TRIAL OF WILLIAM W. BELKNAJ:l, LATE SECRETARY OF 'WAR, .. ~ ' ON THE \. . ARTICLES OF I!IPEACIDfENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES. ., FORTY--FOURTH CONGRESS, FIRST SESSION. • WASHINGTON: GOVERNMEN'r PRINTING OFFICE. 1876. \ "" L~ J.../b. 7 y, 1- ((!..,. . 1 -.I) '11 PROCEEDINGS OF THE HOUSE OF REPRESENTATIVES RELATING TO THE I~IPEACH ~IE NT OF W ~f. VV. BELKNAP, L ATE SECRETA RY OF "WA R . THURSDAY, JJlat·ch 2, 1876. have done, they yet proteste-d against being examined; and that they would only consent to be so examined after an order ma(le specially :Mr. CLYMER, of Pennsylvania, ch:llrman of the Comntittcee on Ex- to t.hat entl by the court. The court was kind enough to take time for penclitures in the War Department, submitted to the House the fol- deliberation, and determined t hn.t if it needed them hereafter it would lowing report : sendforthem. He concluded by a kingthattheHoosewouldtakesuch The Committee on Expenditures in the War Dep'\rtment would respectfully re- action upon the question as it might deem nece sary, right, and just. pol't: After discos ion, the following preamble and resolutions, offered That they found at the very threshold of their investigation such unquestioned evidence of the malfeRsance in office by General William W. Belknap, then Secl'e- by Mr. LAl\IAR, of MiSflissippi, were adopted by a vote of 132 ayes ta.ry of War, that t hoy find it to be their duty t{) by. the same beforo the House. against 75 nays, 8.2 members of the House not vot.ing : They further report that this day at eleven o'clock a.m. a.letler of the President of the United States was pr<>sented to the committee accepting there i.~ation of Whereas the Speaker of this House did, on the 20th of December, 1875, appoint the Secretar.v of War, which is hereto attached, together with a. copy of htsletterof the following Committee on Expenditures in the War Department. to wit : HIE T.ER resignation, which the Pre ident informs the committee was acceptRd about ten CLYllER, WILLIAli M. ROBBIN>, JOSEPH C. S. BLACKBUR.-., LYMAN K. BASS, LORENZO o'clock and twenty minutes this morning. They therefore unanimously report and DANFORD; and whereas thereafter, on the 14th of January. 1876, this House adopted demand that the aid William W. Belknap, late Secretary of War, be dealt with the following resolution : · "&~olved, That the se>eral committ~s of this House ba.vin,:r in charge matte:rn according to the laws of the land, and to that end submit herewith the testimony in the case taken, together with tho several statement.'! and exhibits thereto attach&l, pertaining to appropriations, foreign affairs, Indian affairs, military affairs, naval and also a rescript of the proce drni!S of the committee bad during the investiga. affairs, post-office an~ been discharged out of fnncls approprin.ted therefor, and whetbel' all moneys have Mr. CLYMER read the evidence and the accompanying papers, been disbursed in conformity with appropriation laws; whether any, and what, exhibits, and statements in the case. He then demanded the previous provisions are necessal'y to be adopted to provide more perfectly for the proper question upon the adoption of the resolutions. apnlication of the public moneys and to secure the Government from demands unjust in their character or extravagant in their amount; whether any, and what~ After an hour's debate, in which Mr. ROBBINS of North Carolina, retrenchment can be made in the expenditnl'es of the several Departments, with Mr. BASS of New York, Mr. HOAR of Massachusetts, lli. BLACKBUR...~ out detriment to the public service; whether any, and what, abuses at anv time of Kentucky, Mr. DAN.I<"ORD of Ohio, and Mr. KAssoN of Iowa p3.r- exist in the failure to enforce the payment of moneys which may be duo 'to the ticipated, the resolutions were unanimously adopted. · United States from public defaulters or others, and to report from time to time such provisions and anangements as may be nece sary to add to the economy of The Speaker appointed as the committee called for in the second the several Depal'tment and the account..'\bility of their officers; whether any resolution, ~Ir. CLTI1ER, 1\Ir. RoBBINS of North Carolina., Mr. BLACK- office belonging to the branches or Departments, respectively, concernina- who e BUR...~, lli. BASS, and Mr. DA..WORD. expenditures it is their dut.v to inquire, have become useless or unneces. ar.v; and to report fro~ ti!lle to time on the expediency of modifying or abolishing tho same; '------------=-4 813 6 -=---= 9 also to examme mto the pay and emoluments of all officers under the laws of the United States and to report from time to time such a. rerluction or increa e thereof as a just economy and the public service may require. And for the purpo e of en- ablin& the several committee. to fully comprehend the working of the Yarious T UESDAY, Ma.rch 7, 1876. brancnes or Department of Government, respectively, tho in>o tigations of said committees may cover such period in the past as each of said committees may deem necessary for its own jrllidance or information or for the protection of the· public . Mr. CLYMER rose to a qu~stion of privilege. The evening pre- interests, in the exposing of frauds or abuses of any hind that may t>xist in aid VlOus, he stated, a subprena, ISsued by the supreme court of the Dis- Department.~; and said committees are authorized to send for persons and papers trict of Columbia holding a criminal court for this District, was served and may report by bill Ol' otherwise. ' upon him, and he believed upon the other gentlemen who are mem- "Resolved furth!'?', That the Committee on Public Expenditures be instructed to investigate and inquire into all matters set forth in the foregoing resolution:'! in bers of the Comntittee on Expenditures in the War Department. The the le~slati,·o departments of the Govel'DIDent, except in so far as the Sen a to is ex- one served upon him was a duces temun, commandin(J· him to brin(T clusively concerned, particularly .in refer~nce to the public printing and binding, with him certain papers and tote tify with relation tg cha.r(J'es 0 pend~ and shall havo the same authonty that ts confened upon the other committees aforesaid." ing in that court again!:lt the late Secretary of War. And whereas in the discharge of the duties imposed by said order the said Com- Mr. CLTIIER proceeded to state that that morning, accompanied mittee on Expenditures in the War Department· did enter upon an examination by the gentleman from North Caro1inn. [~Ir. ROBBIXS] and the gen- into the said accounts of . aid Department a.nd into the administration thereof, and tleman from Kentucky, [Mr. BLACKBURN,] he appeared br.fore that did send for persons and papers to investigate certain acts of William W . Belknap, court, an~, by the permission o~ the president judge, he made, on be- late Secretary of War, on which being reported to this House by said committee it ha~ taken action to impeach the said William W. Belknap of high crime and mi de- half of h1mself and the comm1ttee, a. statement. He said that in mea.J?Ors; and whereas the supreme court of the District of Columbia, by proc ss obedien~e to the law they appeared at the bar to obey any order the bearillg date March 6, 1876, has commanded HIEsTER CLYMER to "bring all papers, court nnght make; that as a member of the committee of the House document.". record , checks, anrl contracts in your posse sion, or in the pos e siou of he felt that it would be prejudicial to the best interests of the coun- theCommit-teeof the House of Representative on Expenditures in the War Depart. me~t, in relation to the char~e39:ainst saitl defendant of acceptin~ a bribe or bribes try to.compel the.m to state what ha.d transpired in the room of the wh1le ecretary of War of the United tates, and to attend the said court immedi· comm1ttee of whiCh t hey were members; that he believed that it ately to testify on behalf of the United State , and notclepart from the court with would n.ot only close the mouths of a.ll witnesses, but would in many out leave of the court or district attorneys:" and whereas the m.mdateof said court en es tinve them from the land. He sa.idfnrthermore tha.t, while not is o. breach of the "[lrivill'ge.~ of this House: ~solved, Th~t the sa.ill com!Dittee and the members the-reof are hereby directed pleading their privileges as members of this House, as they might to clisl'egard salll mandate until the further order of this House. IV TRIAL OF WILLIAM W. BELKNAP. WEDNESDAY, Mwrch 8, 1876. MONDAY, April 3, 1876. Mr. KNorr, of Kentucky, chairman of the Comnilttee on the Ju- Mr. KNorr called up the resolutions which he had reported on the diciary, to whom was refered the resolution of the House directing 30th ultimo from the Committee on the Judiciary, and the first one, them to prepare suitable articles of impeachment against William W. with the accompanying articles and specifications, W:tS adopted with- Belknap, late Secretary of War, submitted the following report, ac- out debate and without a division. The second resolution was companied by a resolution, which was adopted without a division: amended as follows, and adopted: Resolved, That Messrs . .T. PHOCTOR KNorr, of Kentucky; SCO'IT LORD, of New The Collliilittee on the .Judiciary .would respectfully report that, in pursuance of York; WILUAll P. LnmE, of Wisconsin; .TOBN A. MclliiloN, of Ohio; GEORGE th e instmcions of the House, they have prepared articles of impeachment ag-ainst A . .JENKS, of Pennsylmnia; WILLLUI .A. WHEELER, of New York; and GEORGE William W. Belknap, late Secretary of War, for high crimes and misdem eanors in F. HOAR, of Massacb.usetts, be, and they are hereby, appomted managers on the otlice, but that, since preparing the same, they have been informed and believe that part of this Rouse to condnct the impeachment exhibited against William W. Bel- Caleb P. Marsh, upon whose testimony before the Committee on Expenditures in knap, late Secr·etn.ry of War of the United States. the War Department, and referred to them by the House, sairl articles were framed, ha-s gone beyond the jurisdiction of the Government of the United State . and that Mr. ·WHEELER asked to be excused from service as a manager. probably his attendance as a witness before the Senate sittin~ as a court of impeach- His request W38 granted, anfl on his motion the vacancy occasioned mont cannot be procured; and that they are also informed ana belie' e that other evi- by his resignn,tion was filled with the name of his colleague, Mr. clonce may be procured sufficient to convict saicl ·w illiam W. Belknap of high crimes and misdemeanors in otlice as Secretary of W :tr. They therefore recommend LAPII AM. the adoption of the followmg r esolution: At the request of Mr. KNorr the name of :Mr. LoRD, of New York, Resolved, That the resolution instructincr the Committee on the .Judiciary to pre- was placed at the head of t.he list of managers. pare articles of impeachment against wilfiam W. Belknap, late Secrotar.v of War, 1\lr. CLYl\IER offered the foUowing resolutions; which were modi- for high crimes and misdemeanors in office, be recommitted to said committee with power t() take furthe.I proof, to send for persons and papers, to sit during the ses- fied and adopted: sions of the House, and to report at any time. R esolved, That the articles agreed to by this House to be exhibited in the name Your committee, impre sed with theimportanceof securing the fullest indemnity of them elves and of all the people of the United ·States against William W. Bel- to such witnesses as may be required to testify in behalf of the Governm ent before knap, late Secretary, of War, in maintenance of their impeachment a)!ainst him of either House of Co~ess, or any collliilittee of either House, or before the Senate high crimes and misdemeanors in office be carried to the Senate by the managers sitting as a court of rmpeachment, would also recommend the imm e\lia.te ras age appointed t~ conduct sairl impeachment. of the accompanying bill, entitled "A bill to protect witnes es who shal be re- Re:sol>:cd, Thai a message be sent to the Sen'lte to inform them that this Honse quired to testi!.y m certain cases." They would further recommend that the ac- have appointed Mr. SCOTT LORD, of New York; Mr. .T. PROCTOR "K.~O'IT, of Ken- companying bill, entitled "A bill in relation to witnesses," be introduced, printed, tucky; .Mr. WILLIAll P. LYNDE, of Wisconsin; Mr. JoiiN A. McMAHo~. of Ohio; ana referred to the Collliilittee on the J umoiary, with leave to report thereon at Mr. GEORGE .A . .JENKS, of Pennsylvania; Mr. ELBRIDGF. G. LAPHAM, of NewYotk; anytime. and Mr.GEOROR F. llo.A.R, of Massachusetts, managers to conduct tho impeachment against William W. Belknap, late Secretary of War, and have directed the said . :Mr. KNorr also reported from the Committee on the Judiciary the managers to carry to the Senate the articles agreed upon by this Honse t() ue ex- following bill; which was discu ed and passed by a vote of 206 yeas hibit-ed in maintenance of their impeachment again:;t said William W. Belknap, against 80 nays, 8'~ members of the House not voting : an~by guilty, while he was Secretary of War, of a high Secretsry of War. ID.lsdemeanor m his said otlice. Mr. Manager LORD rose and read the articles of impeachment, as ARTICLE Ill. follows: Th3;t said William W: Belknap was Secretary of War of the Unitefl States of .Articles exhibited by the House of Representatives of the United States of Am-erica in Amenca b fore and durmg the month of October 1870 and continued in office as tM. n!lmes of them~elves and of aU the people of 0-t V'fl:ited States of America, against such Secr~tary_of War until tho 2d flay of March: 1876; that as Secretary of War Wil~tam W. Bellmap, late Secretary of War, tn matntenance and support of their as ~oresru.d smtl Bolk~utp p.ad aut~ority, un~er tho laws of the United tates, to impeachm-ent against him for high crimes and misdemeanors while in said ojftce. a1;1pomt n. person t<> mru.ntrun a. tradmg establishment at Fort Sill a military post of the Unit~d State~, not in the vicinity of any city or town; that' on tho lOth day ARTICLE I. of Oc~{)ber, 1~70, srud ;Bel!map, as Secr·~tary of War as afore aid, ditl, at th'3 city of That WilliamW. Belkna.p, while he was in office as Secretary of War of the United Waahmg-ton, m the D1stnct of Columbia, appoint one JohnS. Evans to maintain States of America., to wit, on the 8th day of October, 1870, had tho power and au- s~id traflillg_ estab~shment at said military po t; nnd that said JohnS. Evans, by thority, under the laws of the United State.~. as Secretary of War as aforesaid, to VITtne of said appomtment, has sin co, till the 2d llay of March 1876 maintained a. appoint a P.erson t<> maintain !I' trading establishment at Fort Sill, a. military po t trailing establishment at aiel military post, anu that said Evru:i.s. on 'the 8th day of of the Uruted States;, that s~d Belknap, a:s Secretary of War as aforesaiu, on the Oct<>lJer, 1_870, bef.ore he was so appom~cu t<> J?aintain said trading establishment day and year aforesrud, proiDlSed to appomt one Caleb P. Marsh to ma-intain said as afores:~ul, and m order to procure saul appomtmentaod t{) be con tinned therein tradinf£ esta.~lishment !l't said military post; that thereafter~.-.to wit, on the day ancl n.gre~d w1_tb one Cnlell P. Marsh that in consideration that said Belknap would year atoresru.d, the Sa.ld Caleb P. Marsh and one John S. l!ivans entered into au appomt h1ru, the .said Evans. to mnintain sai1l trading establishment at said mili- agreement in writing substantially as follows, to wit.: t.ary post., at the lllstnnce anu request of ·aid Marsh, he, the said Evans, would pay Articles of agreement made n,ud ent ered into this 8th day of October, A. D. 1870• to _him a Jar e s~m of money, quarterly, in advance, from tho date of hi. said ~ap­ pomtmeut by saHl l3elkn~r. to wit., 1.2,000 during the year immetliatcly following by an~ between JohnS. Evans, of Fort Sill, Indian Territory, United States of the lOth flay of October, 11::70, and other large um~ of mone.v. quarterly, during each A.menca. of ~e first part, and Caleb P. Marsh, of No. 51 West Thirty-fifth year.tllllt he. t?e said EYa.n~, should be permittetl lJy saiu llelknap to maintain said street, of the mty, county, and State of New York, of the second part, witnesseth, tmdmg cstabhsbmcnt a_t saHl post; tb~t sai~ Ev~s did pay to said Marsh said sum namely: of money quarterly durmg each year after b1s satd a.ppOlntment, until tho month of "Whereas the said Caleb P. Marsh baa received from General William W. Bel- lmap, Secretary of War of the United States, tho appointment of post-trader at Deoomb~r, 1875, when t~o last of said P!l'yments was maue ; that saitl Mal'!lb, upon recm p~ of each of sal(l faym~ts, pa1tl one-half thereof ~o him, the said Belk.Lap. Fo1·t Sill aforesaid; and whereas the name of said JohnS. Evans is to be filled into the Y ?t the . a1d Bellrn~p, w~ :tmowmg these facts, and havmg the power to remove the commission of appointment of said post-trader at Fort Sill aforesaid by per- sru. pay to said Caleb P . .Marsh of the Unit~ Stat.es, against public policy, au'a to the great disdrace ru1d detriment the su~ of 1~,000 annually, payable quax:terly in advn.nce, in the city of New York of the public scr·VIce. aforesaid; smd sum t<> be so payable durmg the first year of this a!!l'eemrnt abso- Whereby the said William W. Belknap was, as Sccretnry of War as afore aid to l11tely and under all circumstances, anythin"' hereinafter contained the contrarv guilty of high crimes and misdemeanors in office. ' notwiths.tandiDg; and thereafter said sum s~ll be so payable, unle~ increased or reduced m amount, in accordance with the subsequont provisions of this a!!Teemcnt. ARTICLE IV. "In con ideration of the premises, it is mutually agreed between the parties That said William W. Belknap, while he wa.s in office and actinu a."! Secretary of aforesaid a~ follows, namely: War ~f the Unit~J States of Am~rict~., did, _on the lOth ua.y of October, 1870, in' the ".First. This agreement is made on the basis of seven cavalry companies of the oxerm e of t~e power and anthonty vested m him as Secretary of War as afore. aitl Umte!l States Army, which are now stationed at Fort Sill aforesaill. by law, appomt one .JohnS. Evnns to u·aintnina tradinu establishment at Fort ill "Second. If at ~e end of the first year of thls agreement the forces of the United a D1ilitary po t of the United States, aml he, t.be said Bellrnap, ilid recei•e, from on~ States Army statiOned at Fort Sill aforesaid shall be increasad or diminished not C~oll P. ~arsh, largo sums of money for anti in consideration of his havinu so ap· to exceed one hundrocl men, then this agreement shall remain in full force ~ml un- pomted said John. S. ;Evan~ to ma.in.tain said tradin~ establishment at 8:tid Iiiilit.a.ry ~hanged for the next ye:~.r. If, however, the said forces shall be increased or ilimiu- post, aml for continrun:z hilll tberem, whereby be nas been r!Uilty of hi,.h crimes Is~ed beyoml the nu!llber, of one hundred ~?en, then the amount to be paid under anu misdcmeanora in Ills aid office. " ""' this agreement by s:ud Jonn S. Evans to Sa.ld Caleb P. Marsh shall be increased or Speci.fic17tion 1.-0n or about the 2d day of ~ovember, 1870, said William W. Bel- reduced in accorda-nce t.h erewith a::Jd in proper proportion thereto. The above rule knap . while Secretary of War as afore aid, tlid receive from Caleb P. Marsh $1 500 laid down for the continuation of this agreement at the close of the first year thereof in consitlcration of bi8 having appointed said JohnS. Evans to maintain a tradin~ shall.be.applied at the close of each succeeding yearS<> long as this agreementshall establishment at Fort Sill afore.·aill, and for continuin"' him therein. "' remam m force and effect. . Specification 2.-0n or about the 17th day of January 1871 the said William W "Third. This agreement shall remain in force and effect so long as said Caleb P. Belknap, while Secretary of War as aforesaid. ilidrecel~efro~saiuCa.lobP. .Marsh Marl'!h shall hold or control, directly or indirectly, tho appointment n.nd position of 1,5~0, in cons~ueration of his having appointed said John S. Evans to maintain a post-trader at Fort Sill aforesaid. trading,; establi. bment at Fort Sill afore&'tid, and for continnin~ him therein. "Fourth. ';~-'his agr~ent shall t~k~ effect from the date and day the Secretary of HpeclfiM.tion 3.-0n or about the 18th day of .April, 1 il, the said William W. War ~o~esrud shaP' Slg:tl the ~mmtsston of post-trader at Fort Sill aforesaid, said Belknap, while Secretary of War as aforesaitl, uidreceh·efrom sa.idCalcbP. Marsh commlt:~SIOn to be Issued t<> srud JohnS. Evans at the instance aml request of said $1,5:!0, in consideration of his ba"-in~ appointellsaiu Johu S. Evans to maint.'tin a. Caleb P. Marsh, and solely for the purpose of carrying out the provisions of this trading establi.shment at Fort Sill ntoresaitl, and contiuuinrr him therein. agreement. SpecijicatW?~ 4.-0n or about the 25th uay of July, 1871, the said William W. :· Fiftl!. Exce~tion. is hereby made in regard to the first quarterly payment under Belknap, while Sccreta.ry of War as aforesa.id, did receive from said Caleb P. Mftrsh this agreement, It berng agreed anrl understood that the same may be paid at any 1 5~0, in cons~deration of his havin.2 appoi nted said JohnS. Evans to maintain a time within the next thirty days after the said SecretAry of War shall sign th·e tm:ling establishment at Fort Sill aforcsaitl, and continnin"' him therein. aforesaid Ct'lllmission of post-trader at Fort Sill. Specificatio?l 5.-0n orabont.the10lli day of Novembt-r, 18l1, the said William W. "Sixth. Said Caleb P. Marsh is at all times, at the request of said J obn S. Evans Bel !map, whtle Secretary of War a-s aforcsnid, did receive from said Caleb P. Marsh to u~e any p_roper influence he may ha•e with said Secretary of War for the pro~ $1 ,5~0, m consideration of his havin.~ :lppoiuted said John S. Em11S to maintain a tection of saul JohnS. Evans while in the discb:nge of his legitimate duties in the trading establishment at Fort Sill afo1'Csaicl, anrl continuing him therein. conduct of the business as post-trader at Fort Sill aforesaid. Specificat·on 6.-0n or about tho 15th day of January, 1872, the 8aitl William W. "Seventh. Saiu JohnS. Evans is to conduct the said business of post-trader at Belkna,P, while s~cretary of War as aforesaid, did receive from said Caleb P. Marsh Fort t;ill aforesaid solely on his own responsibility and in his own name, it being $1,5~0, lll cons_itleration of his having appointed said JohnS. Evans to main~ain a expressly agreed and nnuerstood that said Caleb P. Marsh shall as ume no liability tradin~; establishment at Fort Sill aforesaid, an1l cuntinuinrr him therein. in the premises whatever. ·Specificc:-tion 7.-0n or about the 13:11 day of June, 1872, t~e saitl William W. Bel- "Eighth. And it is e~-pressly understood and agreed that the stipulations and 1.-nap, while Secretary of War as aforesaid, t1id receive from ait.l Caleb P. Mar h covenants aforesaid are to apply to and bind the heirs executors and administra- 1,500, in consideration of his bn.vin'.!; appointetl said JohnS. Evans to maintai!B a tors of the respective parties. ' ' tratlin:; e!ltaiJlishment at Fort Sill aforcsail, antl continuing him tborcin. "In witness whereof the parties to the8e presents ht~.ve hereunto set their hands Specification 8.-0n or about the 22d d:ty of November, 1872, the said 'Villiam W. and seals, the day and year first above written. B('lknap, while Secretary of War as aforesaicl, uiu receive from saitl Caleb P. Marsh "JOHNS. EVANS. (SEAL.] 81,~. in consi_tleration of hi havin)! appoiut~a saiu Jobn •. Evau to maintain a. "C. P. MARSH. [s.EA.L.) trachn~ establishment at Fort Sill nfore.3aiu, anu continnin,!t hiru theruiu. "Signed, sealed, and delivered in presence of- Specification 9.-0n orabont the2Sth l'l:lyof April, 1873, the. a.irsb 1,500, in consideration of his having appointed said JohnS. Evans to main- s:ud William W:· Bellrnap, ~bile still m office as Seoretatyof War as aforesaid, ditl trun a trailing establishment at Fort Sill aforesaid, and continninu him therciu. unlawfully recetve from satd Caleb P. Marsh like sums of 1500 in consideration Specifwation. 12.-0n or about th" 2'2d day of January, 1874, the"said William W. of the appointment of the said John S. Evans. by him, the said Belknap as Secre- Relknap, while Secretary of War a.'i aforesaid, diu recei \O from saiu Caleb P. Marsh 1,500, in considerafij.on of hls l1aving appointed saitl John S. Evans to maintain a tary of War as aforesaid, and in consideration of his permHtinu said Eva:ns to con- tinue to maintain the said trading establishment at said milita'i-y post during that trading esta.ulishment at Fort Sill afore8aid, anrl continuin~ him therein. time; whereby the said William W. Belknap, who was then Secretary of War as Src,jication 13.-0n or about the lOth day of April, 1 74, the said Willinm W. aforesaid, was guilty of high crimes and misdemeanors in office. Belknap, while ecretary of 'Var a<~ afore aid, diureceivefrom said Caleb P.llirsh 1,500. in consideration of hi havini5 appointed said John S. Evans to maintain a ARTICLE II. tradiugest~blisbmeut at Fort Sill aforcsaiu, and continuing him therein. That said William w: Belknap, while he wa.'i in office as Secretary of War of the Specificatwn 14.-0n or alJout tho 9.h day of October, ll:f14, tbo said William W. Unittld States of America, did, at the city of Washington in the District of Co- Belknap, while Secretary of \Varas a.foresaitl, ditl receive from ~aid Caleh P. Marsh lomlJia, on th.e 4th day of November, 18TJ, willfully, co~uptly, and unlawfully $L.500, m con ideration of his h:win .~ appointed said JohnS. Emns to maintain a ta.lte and rece1ve from one Caleb P. Marsh t.l1e sum of $1,500, in consideration that trading establishment :tt Fott Sill a.foresaid, and continuing him therein. TRIAL OF WILLIAM W. BELKNAP. 3 Specification 15.-0n or about the 24th day of May1 1875, the said William W. shall be suspended for this day; and if that be unanimously agreed l3elknap, while Secre~'\l'y of War as aforesaid, did receive from sers Lvge ofirnpeachLnentf sums of monPy at various times, amountinG" to about 12,000 a year from the date 1\Ir. EDMUNDS. No, sir; not to administer oaths in cases of im- of said appointment to the 25th day of March. 1872, and to about 66,01)() a year there- peachment; but there is a general authority given the judges of the after until the 2d day of March, 1~76, all which said Belknap well knew; yet said courts of the United States to administer any oath that it is lawful Belknap did, in consideration that he would permit said Evans to continue to main- tain said trading establishment and in order that said payments might continue for any person to take, to swear persons upon affidavits, or swear any and be made by said Evans to said Marsh as aforesaid, corruptly receive from said body into office, or administer any other oath in the course of proceed- Marsh, either to his, the said Belknn.p 's, own use or to be paid over to the wife of ings, af! we understand the law. said Belknap, divers large sums of money at various times, namely: the sum of Mr. HAMLIN. I desire to inquire of the Senator from Vermont if $1,500 on or au•out the 2d tlay of November, 1870; the sum of $1,500 on or about the 17th day of January, 1871; the sum of $1,500 on or about the 18th day of April, 1871; be knows certainly that it will be within the power of the Chief J n.s- th~ sum of 1,500 on or about the 25th day of J nly 1871; the sum of $1,500 on or tice to atteud, and if not, I suggest whether it would not be well to about the lOth d:ty of November, 1871; the sum of 1.500 on or about the 15th day make his resolution in the alternative, in case the Chief J n.stice should of January,1872; the sum of 1,500 on or about the 13th day of June,1872; the sum of 1.500 on or about the 2;.!d day of November, 1El72; the sum of 1,000 on or about not be able to attend, then some associate justice. • the 28th day of April, 1873; the sum of 1,700 on or about the 16th day of June, 1\Ir. EDMUNDS. I think that may be very well, and I will modify 1873; the sum of 1,500 on or about the 4th day of November, 1873; the sum of the resolution by adding, "or, in case of his inability to attend, any $1,500on orabout.the2'1ddayof January, 1874; thesmnof $1,500onorabont the lOth one of the associate justices." day of April, 1874; the sum of 1,500 on or about the 9th day of October, 1874; the sum of t,soo on or about the 24th day of May, 1875; the sum of 1,500 on or about While that correction is being made we propose, as is snggested by the 17th aay of November,1875; the sum of 750 on or about the 15th da.yof J:mn- the Senator from Ohio, [Mr. THURMAN,] to introduce a bill presently ary, l!IT6; all of which acts and doings were while the said Belknap was Secretary to provide for cases of this character, and also to provide, as probably of War of the United States, as aforesaid, and were a high misdemeanor in said we ought, (although that would be a matter for consideration,) an office. .And the House of Representatives by protestation, sa.vin~ t~ themselves the lib- authority to the Secretary or the Chief Clerk t-o administer oaths to erty of exhibiting at any timo hereafter any further articles of accusation or im- witnesses, which by statute does not now exist, though that bas peachment against the said William W. Belknap, late Secretary of War of the usually been practiced; but it is certainly not authorized by law, so United States, and also of replying to his answers which he shall make unto the far as can be discovered. articles herein preferred a9ainst him, and of offering proof to the same and every part thereof, and t~ all ana every other article, accusation, or impeachment which Mr. BOGY. I could not very distinctly hear what the Se.Q.ator from shall bo exhibited by them, as the case shall require, dodemand that the said Will- Vermont said ; therefore I am a little at a loss, and would like 1;o iam W. Belknap may be -putt() answer the high crimes and misdemeanors in office know t4-e reason why the presiding officer cannot administer the herein charged against him, and that such proceedings, examinations, trials, and oaths required on this occasion. judgments may be thereuJIOn had and given as may be agreeable to la.w and justice. .Mr. ED~IUNDS. The reason I stated was that, as we understand The PRESIDENT pro tempore. The Chair informs the managers it, in order to make an oath a lawful oath, it must be administered that the Senate will take proper order on the subject of the impeach- by some person authorized by law to administer oaths, and there is ment, of which due notice shall be given to the House of Representa- no law that c:tu be discovered which confers that aut.h ority, the pres- tives. ent law merely conferring it upon the presiding officer in the case of The managers thereupon withdrew. the first appearance of Senators ·wh~n elected. On motion of Mr. EDMUNDS, it was 1\Ir. BOGY. The difficulty was that I had not beard the Senator Ordered, That the articles of impe:whment presented this day by the HoMe of from Vermont distinctly. Roprt:senta.tives be printed for the use of the Senate. Mr. WRIGHT. I ask to have the resolution reported as modified. The PRESIDENT p1·o tem.pore. . The resolution will be reported. The Chief Clerk read as follows : Ordered, That a committee of two Senat()rs be a:{lpointed by the Chair to wait upon the Chief J nstice of the United Stat~s and inVIt-e hini to attend in the Sonat-e Chl\mber n.t one o'clock p.m. this day, o~; in case of his inability to attend, any one of the associate justices. . yvED:t-.TESDA.Y, April 5, 1876. The PRESIDENT pro tempore. The question i on agreeing to the Mr. EDMUNDS. I wish to ask the attention of the Senate to n. resolution. matter which I, after consultation with as many Senators as I could . The resolution was agreed to. find, think it necessary to bring to the notice of the Senate respect- The PRESIDENT pro tempore. The Chair appoints the Senatot: ing the matter of the impeachment to-day. The third rule of the 'from Vermont [Mr. EDMU.NDS] and the Senator from Ohio [Mr. THuR~ Senate in regard to impeachments provides that on this day at one MAN] as the committee. · · o'clock- The presiding officer shall administer the oath hereinaft-er provided to the mem- The Chief Justice of the United f?tates, Ron. Morrison R! Waite 2 bersof the Senate then present~ and to the other members of the Senate as they subsequently eutered the Senate Chamber, escorted by :Messrs. Ert shall appear, whose duty it shall be to take the same. MUNDS and THUR~, the committee appointed forth~ purpose. But on examination we are unable to fincl any statute of the United The PRESIDENT pro t-empore. The hour of one o'clock having ar- States which authorizes the President of the Senate or the presiding rived, the Senate, according to its rule, will now proceed to the con- officer to administer this oath. It stands upon the rule alone. The sideration of the articles of jmpeaclunent ~xhihited by the House of language of the statute a,bout the authority of the presiding officer Representatives against William w. ~elknap, la.te Secretary of War. ~'~ that, when Senators appear to take their seats upon an election to The Chief Justice will take the JSeat provided for him at the right of this body, l!~e presiding officer shall swear them in, and any Senator the Chair. may administer a similar oath to the Vice-President, the President of The Chief Justice too~ a seat by the side of the President pro t~rn­ the Senate, when he appears; and there the statute stops except in pore of the Seuate. respect of witnesses who are by law to be sworn by the President of The P~ESp)ENT p1·o tempore. The Senate will give attention the Senate. · while the constitntional oath is being administered. Ill. this state of difficulty and in the very grave doubt, at least, The Chief Justice administered the oath to the President pro tem- tl1at m the minds of all the gentlemen whom I have been able to con- pore, as follows : sult there is about this being a constitutional compliance with that You do solemnly swear that in all things appertaining to the trial of the impeach- requirement which obliges us to be under oath, (which, of course, im.- · ment of William W. Belknap, ill.te Secretary of War, now pending, :you willdoim- plies a legal and binding oath,) we have thought it best for this occa- part.ial justice according to the Constitution and laws : So help yon God. sion, until provision can be made by law, to submit to the Senate a The PRESIDENT p1·o tempore. The Secretary will now call the roll proposition that the Chief Justice of the United States be invited to of Senators alphabetically in groups of six, and Senators a-s they are attend at one o'clock to-day to administer these oaths, there being no so called will advance to the desk and take the oath. question about his authority to do so. Therefore·, Mr. President, I Mr. MORTON. If there be no objection on the part of any Senator, ~sk unanimous consent that this portion of Rule 3 which I have read, I suggest that all the Senators be sworn at once, standing iu their respecting the administration of the oath l>y the presiuing officer, places. I see no objection to that. It will save time and some trouble. 4 TRIAL OF WILLIAM W. BELKNAP. The PRESIDENT P'I'O tempore. Is there objection to the proposition do nuder the circumstances. I move that the Senate sitting for this of the Senator from Indiana 7 trial adjourn until the 17th instant. :Mr. THURMAN. There may be some doubt about, verifying who Mr. BOGY. Before the motion to adjourn is put I should like to are sworn if we proceed in that way. I thiuk we bud better follow make an inquiry; and I call the attention of the Senator from Ver- the precedent heretofore esroblished. mont to what I a.m about to state. I see by the twenty-fourth rule :Mr. MORTON. Very well. that the summons has to be returned to t)le Senate or to the court at The Secretary proceeded to call the roll alphabetically, and the twelve o'clock and thirty minutes p. m/, and this order speaks of one Chlef Justice administered the oath to Senators ANTHONY, BAYARD, o'clock. " BoGY, BoOTH, BOUTWELL, BRUCE, CAMERON of Pennsylvania, CAM- The PRESIDENT pro ten1pm·e. The motion to adjourn does not fix ERON of Wisconsin, CLAYTON, COCKRELL, COOPER, CRAGIN, DAVIS, the time. DAWES DORSEY,EATON,EDMUNDS,FRELINGHUYSEN,GORDON,HAMIL- Mr. EDMUNDS. The Senator has turned to a form, and that form TON,~,HARVEY,IIITCHCOCK,lNGALLS,JONES ofFlorida,KELLY, happens to say twelve o'clock and thirty minutes, but the Senate has KERNA...""{, KEY, LOGAN, McCREERY, McDONALD, McMILLAN, MAxEY, ordered, changing that form which I thought it was convenient to do, M.ERRIMON, MITCHELL, MORRILL of Vermont, MORTON, NORWOOD, and a.s it was merely a form I did not suppose it was necessary to make OGLESBY, PADDOCK, RANDOLPH, SARGENT, SAULSBURY, SHARON,SHER- a separate motion on that subject to make the form say "one o'clock," MAN, SPENCER, STEVENSON, THURMAN, W ALLA.CE1 WEST, WHYTE, in order that the necessary preliminaries from half-past twelve, usual WINDOM, WITHERS, and WRIGHT. .... on such occasions, might take place beforehand. The PRESIDENT pro tempore. The absentees on the call will now Mr. BOGY. That may be; I speak on this subject with very great be called so that in case they bavo entered the Chamber since the modesty, for I really know nothing about it ; but, nevertheless, the oath has been administered they may come forward. forms being given in the rules, I am of t.he opinion that they are a part The Chief Clerk called the names of the absentees, as follows: of the rules, and unless a very good reason can be given why the Messrs. ALCORN, .ALLISON, BURNSIDE, CAPERTON, CHRISTIANCY, CONK- forms should be departed from, it may be that the very fir t step we LING CONOVER, DE:sNIS, ENGLISH, GOLDTHWAITE, HOWE, JOHNSTON, take in this proceeding may possibly be wrong. The form is given in JON~S of Nevada, MoRRILL of Maine, PATTERSON, RANSOM, ROBERT- a joint rule, andi t would be a very easy thing to conform to that form SON, and WADLEIGH. which appea.rs to be a part of that joint rul(} as adopted for this spe- The Chlef Justice thereupon withdrew from the Senate Chamber, cific purpose. escorted by Messrs. EDMUNDS and 'firoRMA...~. Mr. EDMUNDS. It is not a joint rule, but a rule of the Senate. It Mr. FRELINGHUYSEN. Mr. President, I flffer the following order, is a form of the Senate rather than a rule. and ask for its present considemtion; Mr. BOGY. It is a Senate rule, nevertheless; and why not con- Ordered That the Secretary notify the Holl8e of Representa,tives that the Sen:~.te form to the rule 7 is naw orda,nized for the tri~l of articles of impeachment against William W. Bel- Mr. EDMUNDS. It would have be~n verv well to have made that knap Ia.te Secretary of War, and is ready to receive the managerd on the part of the suggestion before the order of the Senate had been adopted fixing the Hot~e at its bar. hour of one o'clock as the moment at which this accused person should The order was agreed to. appear. But if the Senate has adopted an order which is contrary to At one o'clock aud fort.y minutes p.m. the managers of the im- a form which it had previously adopted, I take it that the adoption peachment. on the part of the House of Representatives appeared at of this onler must, for the time being, override the form of the writ the bar and their presence was annou.ncecl by the Sergeant-a.t-Arms. of summons fixing a different hour. The PRESIDENT pro tempore. The Sergeant-at-Arms will conduct Mr. BOGY. I would suggest to the Senator is it not ll. rule f The th~ mann.g ers to the seats provided for them within tho ba.r of the form makes it a rule. Is it not so 7 Mr. EDMUNDS. Snppose that to be so, if the Senate, without ob- Senate. jection, orders that a particular moment named in the rule shall be The managers were conducted to the seats assigned them within the space in front of the Secretary's desk. for a particular occasion changed to another moment, I take it that The PRESIDENT p1·o tem,pore. Gentlemen managers, t.he Senate is order making the change would be binding nevertheless. Certainly now organized for the trial of the impeachment of William W. Bel- the Senate, in the presence of the managers, has ordered that this knap, late Secretary of War. summons shall issue for this person to appen,r on the 17th instant., at Mr. Manager LORD rose and said : Mr. President, we pray for the the hour of one o'clock in the afternoon, which is, to be sure, a half issuing of process against William W. Belknap, late Secretary of War, hour later tbn.n the form of the summons names. So the present on the ::trticles hitherto presented. order of the Senate is that the summons go in that way; and until Mr. EDM1Th-rr>S. Mr. Presiuent, I offer the following ordor: that order is roversed, I take it, it will bind the President of the Senate and the executive officers to follow it. Ordered, That a summons be issued, as required by the rules of procedure aml The PRESIDENT pro tempm·e. The Senator from Vermont moves practice in the Senate when sitting for the trial of impeachment, to William W. th~tt the Senate sitting for the trial of the impeachment adjourn un- :Belknap, returnable on Monday, the 17th day of tho present month, n.t one o'clock in the afternoon. til t.he 17th inst:mt. Mr. BOGY. The suggestion I have made bas not boen disposed of. The PRESIDENT pro tempo·re put the question on the proposed Perhaps there is nothing that the court can dispose of. Nevertheless order, n.nd it was agreed to . . it, does seem to me that the form is a rule, a rule prescribed by the Mr. Mn.nager LORD. That is satisfa{ltory to the managers. Senate for the government of the Senate when it sits as a court. This The managers thereupon withdrew. body ·in its capacity of a court has changed that rnle. It may be al- Mr. STEVENSON. If there is no further business I move th:~.t the together proper; I am not clear that it is proper. If there could be court adjourn. any way by which we could retrace our steps and conform to what Mr. EDMUNDS. I do not thlnk that is precisely the proper motion appears to me to be a rule, because it is a form prescribed by the Sen- to make under the rules. I think we ought to adjourn until the day ate as a Senate for the government of thi:; court as a court of impeach- at which the summons is returnable; n,nd tberefore-- ment, anti which we as a court perhaps cannot well change, it is a Mr. STEVENSON. I should like to ask the Senator from Vermont subject wort.hy of being considered, and I suggest that the matter be whether the counsel of General Belknap a.resatisfied with the period more thoroughly investigated. of time fixed for his appearance ' Mr. EDMUNDS. ~ir. President, I think it right to say to my friend Mr. EDMUNDS. I do not understand the Senator. from Missouri that so fa,r from our inability to change the forms of Mr. STEVE~SON. I desire to know whether there haa been any procedure sitting as a court, as the expression is, when the late Chief conference with General Belknap's counsel to learn whether the period Justice of the United States appeared, these rules having been adopted fixed for his appeamnce is amplo enough to meet with their wishes. by the Senn.te before he did appear to preside at the trial of Mr. Mr. EDMUNDS. I am not authorized to speak for anybody but Johnson, tho President of the United States, be thought, and sub- myself. Speaking for myself, I say, as a Senator sitting on this trial mitted to the Senate that it ought to adopt these rules while we were and as a jud~e, that I have not had and do not expect to have any sitting as a court, in~smuch as its composition was such that n, new conference With the counsel of General Belknap ; but I ha.ve prg- element was introduced into it on that occasion. And accordingly~ pesed this period of time as a reasonable and suitable one. Of course, the Senate sitting as a court, or sittincr for the trial of the impeach- when he appears, if he needs further time he will apply for it. ment, which is the same thing, adopted over again these rules as part Mr. STEVENSON. Mr. President, I did not suppose there was any of its orders. So I think t.here can be no question, judging from the impropriety in the question, nor did I suppose that there was any- previous consideration given to the subject, that it is perfectly com- t.hing that could be implied by the question; but certainly a good petent for us t.o change or to modify these forms by any order tbat deal of time may be saved to the Senate, and I see no impropriety in we choose to make sitting as a comii. That wa.s the general opinion the managers, if they think proper, before the time is fixed, having at that t :me. Although it was thought· by many Senators that it was a friendly interview with the counsel of General Belknap as to what quite unnecess:ny to adopt them over again merely because the Chief would be a proper time. If we adjourn now until :Monday week, and Justice, a new element, had come in, yet everybody agreed that it then ten days more should be asked, we shall lose that much time, was competent to do it; and, out of respect to his wishes, it was clone. which it seems to me might be avoided by some conference with the 1\Ir. SHERMAN. If I understand it, the Senate have only fixed one counsel of General Belknap. That waa the only reason I made the o'clock as the hour for the return of the process. It seems to me we suggestion. ought to adjourn until half past twelve o'clock, with a view to IIlflk- Mr. EDMUNDS. I am sure the Senator ought not to have under- ing the necessary pre:iminaries before that. stood me as int~nding to reflect on the propriety of his question, but Mr. EDMUNDS. Certainly, that is the time the rule provides we only as stating my own view of what it would be proper for me to shall meet. TRIAL OF WILLIAM W. BELKNAP. 5 Mr. SHERMAN. I do not see that there is any difficulty. The Mr. BOGY. The motion I would make of course cannot be enter- summons calls on General Belknap to appear at one o'clock. That is tained if tha.t motion is carried. not at all inconsistent with the rule ; but the court is to convene at Mr. EDMUNDS. That is so. , half past twelve o'clock for the purpose of making preliminary or- Mr. BOGY. I am extremely sorry that at the very first step the ders and arrangements. The action of the Senate thus far is in per- Senator from Vermont should be rather disposed to cut short and be fect harmony with the rules. curt about this thing. I desire no offense to him and do not question .Mr. BAYARD. All that I have to guide my mind is the rules of anything he may have done. I am inclined to think we have com- the Senate on the subject. Looking at them, it seems to me that the mitted an error; and the 'views expressed by the Senator from Dela- su(Tgestion of the Senator from Missouri is entitled to a great deal of ware confirm me in that opinion. To dispose of this thing in that co~sideration. Rule 7 provides that- manner, I think, is not treating the subject or those persons that do The presiding officer of the Sena.te shaJ.l direct all necessary preparations in the not agree with the Senator with much courtesy. Senate Chamber, and the presiding officer on the trial shall direct all the forms of Mr. EDMUNDS. I ask unanimous consent to make an observation, proceedings while the Senate are sttting for the purpose of trying an impea-chment, as all this debate is out of order. and all forms during the trial not otherwise specially provided for. The PRESIDENT p1·o tempore. The Chair will state that as differ- There is in the twenty-fourth rule a special provision, according to ent Senators were speaking he supposed it was done by unanimous my understanding, of the form of the summons to be served upon the consent. The rule is explicit that there shall be no debate. party impeached, and that form requires the impeached party- Mr. EDMUNDS. I ask unnanimous consent to.make a statement. To be and appear before the Senate of the United States of America., at their The PRESIDENT p1·o tempore. Is there objection¥ The Chair hears Chamber in the city of Washington, on the- day of--, at twelve o'clock and none. thirty minutes atter noon, then and there to answer to the said articles of impea£,h- ment, &c. Mr. EDMUNDS. I wish to state to my honorable friend from Mis- souri that I have not intended to be either curt or short; but after the By Rule 9 it is provided that- subject has, by unanimous consent, been considered upon botb sides At twelve o'clock and thirty minutes after noon of the da:y appointed for there- of the views it struck me that the simplest way of test.ing the sense turn of the summons ao-ainst the person impeached, the legiSlative and executive business of the Senate s'hall be suspended, and the Secretary of the Senate shall ad- of the Senate upon this question of half past twelve or one o'clock minister an oath to the returning officer in the form following. would be to make this motion. If a majority of this body are of Then follows the form prescribed for the returning officer. The opinion that we have exceeded our jurisdiction in making this order tenth rule provides that- retnrna.ble at one o'clock instead of ha1f past twelve, of cours~ it will The person impeached shall then be called to appear and answer the articles of be their bounden duty to refuse to adjourn and to send for the man- impeachment against him. If he appear, or any_ person for him, the appearance agers and have the order amended; bnt if they are of opinion that shall be recorded, stating particularly if by himself, or by agent or attorney, nam· this court can change one of its.{orms by making an order inconsist- ing th.e person appearing, and the capacity in which he appears. ent with it as to au hour, without violating the Constitution of the It seems to me, with all due respect for the superior experience of United States, then I take it the Senate will be willing to adjourn those who have heretofore sat in business of this kind, that the lan- until that time. Making this explanation to my friend, lest he may guaCTe of the rules is directory, and I cannot imagine any inconven- have misunderstood the spirit in which I made the motion, I take my ienc~ or ill to follow from our following their language with precis- seat. ion. If the Senate has, from inadvertence or from any other cause, Mr. BOGY. I shall feel compelled under the circumstances to call :fixed a time for the appearance contrary to that prescribed by the for the yeas and nays upon the question, a thing which I have never form contained in Rule 24, it seems to me that it is erring upon the done in this body before. I think we are starting wrong in this thing, shle of caution if it follows the rule by amending the order lately and therefore I call for the yeas and nays on the motion of adjourn- marle. I see no possible objection to the amendment of the order, ment. and if it be :fixed at twelve o'clock and thirty minutes of the after- The yeas and nays were ordered. noon of the day named for the return of the writ, then it will be in The PRESIDENT pro tempore. The SecretaiJ will call the roll of precise accordance with the form prescribed in Rule 24 and also in Senators who have been duly sworn. accordance with Rules 9 and 10, which fix the time of the return of The Chief Clerk called the roll, as directed; and the result wa.s that writ for the swearing of the officer as to the true service of the announced-yeas 38, nays 10; as follows: process and of the appearance of the party, either in person or by attorney. I think it is just possible that there might be a technical YEAS-Messrs. Anthony, Booth, Boutwell, Bruce, Cameron of Pennsylvania., Cameron of Wisconsin, Clayton, Cockrell, Dawes, Dorsey, Edmunds, Frelinghnysen, objection made to the hour and minute of the return of this service. Gordon, Hamilton, Hamlin, Hitchcock, Jones of Florida, Kelly, Kernan, Key, Lo- It may not be one of substance; but even if of form, if it be neces- gan, McCreery, McDonald, McMillan, Maxey, Merrimon, Mitchell, Morrill of Ver- sary for the Senate n~en to pass upon it, certainly the necessity for mont, Morton, Oglesby, Paddock, Sargent, Sherman, Spencer, Wallace, WC8t, Win- passing upon it can be saved by an amendment of the order of the dom, and Wright-38. · NAYS-Messrs. Bayard, Bogy, Cooper, Davis, Eaton, Norwood, Randolph, Sauls- Senate as made just now. bury, Whyte, and Withera-10. Therefore I trust there will be a reconsideration of that oTdet for NOT VOTING-Messrs. Cragin, Ferry, Harvey, Ingalls, Sharon, Stevenson, and the purpose of having an order made in accordance with the twenty- Thurman-7. fourth rule. No harm can come, but much difficulty may be saved. Mr. WHYTE. l\1r. President, I should like to ask the President of The PRESIDENT pro t~tpore. The Senate sitting for the trial of the Senate whether it is not proper for us in the first instance, as a the impeachment stands adjourned until thE\ 17th instant, at twelve court, to adopt the rules of procedure by the Senate in cases of im- o'clock and thirty minutca p. m. peachmentT It was the opinion of the Chief Justice in the trial , which last tooK place in this Hall that while the Senate might as a Senate in its legislative C!lpacity adopt certain rules in regard to im- peachment, it was necessary for the Senate when sitting as a court of impeachment to adopt those rules as such court. Therefore I sug- MONDAY, April 17, 1876. gest to the Chair whether it is not proper for us in this instance to adopt the rules before we discuss any questions· arising under those The Chief Justice of the United States entered the Senate Cham- rules 7 ber, escorted by Messrs. EDMU.r..~s and THURMAN, the committee ap- Mr. EDMUNDS. I insist upon the motion I made, that the Senate, pointed for the purpose. sitting for the trial of this impeachment, stand adjourned until the The PRESIDENT pro temp01·e. The hour of twelve o'clock and 17th instant at half past twelve o'clock. thirty minutes having arrived, in pursuance of rule the legislative Mr. HOGY. Before that motion is put I hope that this matter may and executive business of the Senate will be suspended and the Senate be further considered. I intend to present a motion that the order will proceed to the consideration of the articles of impeachment ex- which has been made, for the return of service-at one o'clock, be hibited by the House of Representatives against William W. Belknap, amended so as to make the return at half past twelve. late Secretary of War. Mr. EDMUNDS. That cannot be properly done without the pres- The Chief Justice took a seat by the side of the President pro tern- ence of the managers. pore of the Senate. Mr. BOGY. Why is it not proper 7 The PRESIDENT pro tempo1·e. The Sergeant-at-Arms will make Mr. EDMIThTDS. And there is not the slightest need of it. the opening proclamation. Mr. BOGY. I can see no reason for the. Senator's suggestion. Any TheSERGRANT-A.T-ARMs. Hearye! Hearyel Hearye! Allper- order made by a court can be changed by the court on a proper case sons are commanded to keep silence on pain of imprisonment while being made out. I desire to present the question to this body in a the Senate of the United States is sitting for the trial of the articles proper way. The very limited discussion which has taken place upon of impeachment exhibited by t.he House of Representatives against the subject has tended to confirm me in the belief that we are depart- William W. Belknap, late Secreta: of The PRESIDENT pro tempore. Senators, you have heard the mo· Willi:un W. Belknap to the articles of impeachment exhibited by them to the tion proposed by the Senator from Vermont. Senate against the said William W. Belknap. The House of Representatives of the United States, J.lroseouting, on behalf of Mr. EDMUNDS. I shall then propose that the Senate sitting for themselves and t,h e people of the United States, the articles of impeachment ex· this trial adjourn until the last day named, the 27th instant. _ · hibited by them to the Senate of the United States against said William W. Mr. CARPENTER. Mr. President, I desire to understand that or· Belknap, reply to the plea of said William W. Belknap, and say that the matters alleged in the said plea. are not sufficient to exempt the said William W. Bel- der. The 24th is Monday, as I understand, and the court is not to be knap from answering the said articles of impeachment, because they say that at the in session on that day. time all the acts charged in said articles of impeachment were done and com- Mr. CONKLING. How will the rejoinder be received T mittOO, and thence continuously done, to the 2d day of March, A. D. 1876, the said Mr. EDMUNDS. Let it be filed with the Clerk. William W. Belknap was Secret.ary of War of the Unite, as Secretary of War, in re{!ard to the proposed by the Senator from New York to the motion suggested by matters and things set forth as official miSconduct in the said articles of impeach· the Senator from Vermont. · ment; and of this he, the said .Belknap, demands trial Mcording to law. Mr. EDMUNDS. There is no objection to that. I accept it. m. The PRESIDENT pro tmnpore. The order will be so moilifi.ed; and And the said BellrnaJ;>. as to t.he said second replica,tion of the sa.ifl Hou e of Rep- the question recurs on the order as so modified. resentatives of the Umted States, secondly above pleaded, further saith that the The order as modified was agreed to. said House of Representatives ought not, by reason of anything in t.h at replication alleged, to have or maintain the saitl impeachment against him, the saiu Belknap, Mr. EDMUNDS. Mr. President, now I move that the Senate sit- because he s.'l.ys that at the city of Washington, in the Distr•ct of Columbia, on the ting for this trial adjourn until the 27th instant, at half past twelve 2d day of March, .A. D. 1876, at ten o'clock and twenty minutes in the fortmoon of o'clock afternoon. that day, he, the said Belknap, resig-ned the office of Secretary of War1 by written The motion was agreed to ; and the Senate sitting for the trial of resignation under his band, addressed and deli>ered to the Pre iUent ot the United States, and thePresidtmt of the United States then and there accepted the said resig- the impeachment adjourned until April 27. · nation, by acceptance in writing under his band. thon and there indorsed upon the said written resip1ation ; so that the said Belknap then and there cea1 ed to be Sec- retary of War of tbo United Stat~. amlsince that time ho. the said Belknap. bas not been an officer of the United States. butha been a privat.ecitizen of the United States and of the State of Iowa, as stated by said Belknap in his said plea. ; and that at the time be, the said Belknap, resignPd a.s afore aid, and thl:' said r esignation THURSDAY, April27, 1876. was accepted as aforesaid. the said House of R.epresentatives had not taken any proceeding for the in;esti"ation or examination of any of the charges set forth in the said articles of impeac'bment as official miscontluct of him, the said llelknap, The PRESIDENT pro tempore. The hour of twelve o'clock and as Secreta1yof War; nor had the said House of Representatives raised any com- thirty minutes having arrived, the legislative and executive busi- mittee of the said House, nor directed, nor instructed any committee of the saicl ness of the Senate will be suspended and the Senate will now proceed, House to make inquiry or investiJration in that behalf. pursuant to order, to the consideration of the articles of impeachment And this the said Bellmap is ready to verify. Wherefore he prays jurlgmeut if the said House of R.epresentatives ought to have or maintain the said impeachment exhibited by the House of Representatives against W. W. Belknap, against him the said Belknap. late Secretary of War. The Sergeant-at-Arms will make the opening IV. proclamation. And the said Belk>Jap, as to the said second replication of the HouRe of Rcpr~­ The usual proclamation was made by the Sergeant-at-Arms. sentatives of the United States, secondly above pleaued, further saith tha.t the said The respondent appeared with his counsel. House of Representatives of the United States, by reason of anything in that repli· The PRESIDENT pro tempore. The Secretary will inform the House cation alleged, ought not to have or maintain tho said impeachment against him tho said Belknap, because he says that, when the said Hou e of Representatives took of Representatives that the Senate is now ready for the trial of the the first proceeding in relation to the impeachment of him, the said Belknap, and impeachment and that provision haa been made for the accommoda- when the mlttter was first mentioned in the said House-that is, in the afternoon tion of the managers and the House of Representatives in the Senate of the 2d day of March, A. D. 1876--the said House of Representatives was fully ad- Chamber. vised and well knew that he, the aid llellmap, had before then resigt!ed the said oilice of Secretary of War, by resignation in writing, under his hand addressed and de. Mr. EDMUNDS. I understand that the Senator from New Hamp- livered to the President of the United States, and that the President of the United shire [Mr. WADLEIGH] was not present when the oaths were admin- States had also before that time, as President as aforesaid. accepted the said written istered and is now here. resignation, by acceptance in writino-, si!!lletl by him and indorsed on the said writ;. ten resignation, and that he, the said'Belbiap, was not then an officer of the United The PRESIDENT pro te14tpore. The Secretary will call the names States, as the facts were. of Senators who haYe not been sworn. And this he, the said Belknap, is ready to verify. Wherefore be prays judgment The Chief Clerk proceeded to call the names of the Senators who if the said House of Representatives ought to have or maintain the said impeach- have not been heretofore sworn,_and the President p1·o tem.pore admin- ment against him, the said Belknap. istered the oath to Senator WADLEIGH. v. Mr. WITHERS. l1r. President, I am instructed by my colleague And the said Belknap as to the said second replication of the House of Repre- sentative.~ of tho United States, secondly abo;e pleaded, fm:ther saith that the said [Mr. JOHNSTON] to state that he is detained from his seat in the Sen- House of Representatives of the United States, by rea on of anything in that rol>li- ate by the serious indisposition of a member of his family. cation alleued, ought not to have or maintain the said impeachm£>nt against him, At twelve o'clock and thirty-eight minutes p. m. the Sergeant-at- the said B€iknap, because he says that, although true it is that a certain committee of the said House, called the Committee on the Expenditures of the War Depart- Arms announced the presence of the managers of the impeachment ment, had been pretendin~ to make some in<:tnirY into or investigation of the mat- on the part of the House of Representatives. ters and things set forth m said articles CJf rmpeachment as official mi conduct of The PRESTI>ENT pro tmnp01·e. The Sergeant-at-Arms will conduct bim, the said Belknap, but without any auth01ity from or direction by tho House the managers to the seats provided for them within the bar of the of Representatives in that behalf, yet he, the said Belknap, says that said commit- tee had notcomv.leted its said pretended invt'stigation, bnt wail engaged in the ex- Senate. amination of witnesses, when said committee was informed that tlie F.aid Belknap The managers were conducted to the seats provided for them had resigned as Secretary of War, by resignation in writing, under his hand. ad- TRIAL OF WILLIAM W. BELKNAP. 9 "1::. dressed and delivered to the President of the Unit-ed States, and that the Presi- in said several rejoin deY'S to said second replication contained, or either of them, dent of the United States had accepted the said resignation by acceptance in writ- wltich denies or traverses the acts and intents charged against said defendant in ing, under his hand, indorsed upon the said written resignation ; that said com- said second replication, and they re-affirm the truth of the matwrs stated therein; mittee received the said information during and before the completion of the said and this the said House of Representatives pray may be inquired of by the Senate _pretended investigation into the alleged facts in that behalf, to wit, at eleven sitting as a court of impeachment. o'clock in the forenoon of the 2d day of March, A. D. 1876, and that thereupon the Wherefore the said Honse of R-epresentatives, in the name of themselves and of said committee declared that they, the said committee, had no further duty to per- all the people of the United States, pray judgment thereon according to law. form in the premises. · MICHAEL C.lrERR, And this the said Belknap is ready to verify. Wherefore he prays judgment if SpeaJ.:er of the House of R.eprtsentativea. the said House of Representatives ought to have or maintain the said impeachment GEO. M. ADAMS, against him, the said Belknap. Olerk of the House of Representatives. VL And said Belknap aa to said second replication of the Honse of Representatives The PRESIDENT pro tempore. The surrejoinder will be considered of the United States, secondly above pleaded, further saith that the said House of ns duly filed also. The Senate sitting for the trial is now ready to Representatives ought not, by anything in that replication alleged, to have or main- hear tile parties. tain said impeachment against him, sa~d Belknap, because he says that, although Mr. Manager LORD. Mr. President, I am directed on the part of true it is that he did resign his position as Secretary of War on the2d day of March, A. D. 1876, at ten o'clock and twenty minutes in the forenoon of that day, at the the managers to make a statement to this court and to request the city of Washington in the District of Columbia, by a resignation in writing, under entry of an order which I will presently send to the Secretary to be his hand, addressed to and then and there delivered to the President of the United read. The respondent has not answered the charges contained in the States, and the President of the United States did then and there acce.~,>t- said resig- articles of impeachment. nation, by acceptance in writing, under his hand, then and there by him indorsed upon said written resi~ation, nevEirtheless i.t is not true, as alleged in that rep,lica- The pleadings now :filed relate only to the question of jurisdiction tion, that he, said Bel.K:Dap, resigned his said position with intent to "evade 'any of the Senate, tendering issues of fact :1nd raising a question of law. proceedings of said House of Representatives to impeach him, said Belknap; but~ The managers deem it the proper mode, and suppose it will be most on the contrary thereof, he avers the fact to be that a standing committee of said desirable to the defendant and most convenient to the Senate, to have Honse, known" as the Committee on the Expenditures of the War Department, without any authority from or direction of said Honse of Representatives to ex- the evidence given bearing on the question of jurisdiction before the amine, inquire, or investi~ate in regard to the matters and things set forth in said arguments shall be presented on that question; and, therefore, they articles as official misconduct of him, said Belknap, had examined one Marsh, and move that an order be entered which they send to the Secretary to he had made a statement to said committee, which said statement, if true, would not support articles of impeachment against hi.ra, said Belknap, but which said be read. statement waa of such a character in respect to other persons, some of whom bad The PRESIDENT pro tempore. The proposed order will be read. been and one of whom was so nearly connected with him, said Belknap, by do- The Secretary read as follows : mestic ties as _greatly to afilict him, said Belknap, and make him willing to secure In the Senate of the United States sitting "as a court of impeachment. the suppression of so much of sairl statement as affected such other persons at any cost to himself, therefore he, said Belknap, proposed to said committee that, if said THE U~HTED STATES OF AMERICA} committee would suppl"('SS that part of said st-atement which related to said other tl8. persons, he, said Belknap, though contrary to the truth, would admit the receipt by WILLIAM W. BELKNAP. him, said Belknap, of all the moneys stated by said Marsh to have been received by On motion of the managers, him from one Evans, mentioned in said statement, and paid over by said Marsh to Ordered, That the evidence on the questions pertaining to the plea to the jnris- any other person or persons, but sa.id committee declined to accede to said proposi- diction of this court be given before the argument~ relating thereto are heard, and tion, and Hon. HIESTER CLYMER, chairman of said committee, then declared to said if such plea is overruled that the defendant be required to answer the articl61! of Belknap that he, said CLnmR, should move in the said Honse of Representatives, impeachment within two days, and the House of Representatives to reply if they upon the statement of said Marsh, for the impeachment of him, said Belknap, unless deem it necessary within two days; and that the trial proceed on the next day after the said Belknap should resign his position as Secretary of War before noon of the the joining of issue. next day, to Wit, March the 2d, A. D. 1876; and, said BelknaJ? regarding this statement of said CLYMER, chairman as aforesaid, as an intimation tbat he, said Mr. Manager LORD. With the permission of the court, Mr. Pres- Belknap, could, by thus resigning, avoid the afiliction inseparable from a protracted ident, I will give the following reasons why we think this order should trial in a forum which would attract the greatest degree of public attention and the humiliation of availing himself of the defense disclosed in said statement itself be entered: which would cast blame upon said other persons, he yielded to the suggestion made All of the issues of law and fact relate to the question of jurisdic- by said CLYMER, chairman as aforesaid, believing that the same was made in good tion. It is but a single question, npon which the Senate can make faith by the said CLYMER, chairman as aforesaid, and that he, said Belknap, would, but one decision, and the facts pertaining thereto should be proved by resigning his position as Secretary of War, secure the speedy dismissal of said statement fi'om the public mind, which said statement, thou~h it involved no crim- before the arguments, so that the questions of law and of fact may inality on his part, was deeply painful to his feelings, and did resi~ his sa~ posi- be considered and decided at the same time. This is the course in all tion as Secretary of War, as hereinbefore stated, at ten o'clock and twenty minutes legal tribunals in which questions of law and fact are decided by the in the fOt'6DOOn of the 2d day of March, A. D. 1876; and at eleven o'clock in the same judge or judges. forenoon of the day and :vear fast aforesaid he, said Belknap, caused said committee to be notified of his saia resignation and of the acceptance thereof by the Presi- Now let me refer to some authorities on this point: dent of the United States as aforesaid; all of which was in pursuance and in con- In cases where the jury are to decide on both the law and the fact, a general ver- sequence of the said suggestion so made by: said CLYMER; and thereupon said com- dict may be rendered on the whole matter. (Starkie's Law of Libel, page 203.) mittee declared that they, the said comnnttee, had no further duty t~ perform in the premises. An(lhe, said Belknap, submits that, while said Honse of Representa. In the case of Baylis vs. Laurance, 11 Adolphus and Ellis, 920, re- tives claims that said CLnmu was acting on its behalf in said pretended examina- ferred to by Starkie on the same page, it was held that the law was tion of said Marsh, said Honse ought, in honor and in Jaw, to be estopped to deny the same in regard to both civil and criminal cases. that said CLYMRR Will also acting on behalf of said Honse in suggesting the resig- nation of him, said Belknap, as aforesaid, and ought not to be heard to complain of The same author, page 580, states: a resirnation thus induced. A jury sworn to try the issue may give the general verdict of guilty or not gniltv And' this he, the said Belknap, is ready to verify. Wherefore he prays judgment upon the whole matter put in issue, * * * and shall not be required or difecten if the said House of Representatives ought to have or maintain the impeachment by the court or judge • * * to find the defendant or defendants guilty merely against him, the said Belknap. · on the proof of the publication. WM. W. BELKNAP. When by the Constitution the sole power to try impeachments was The PRESIDENT pro tempore. This rejoinder will be considered conferred npon the Senate without any direction aa to the mode of duly filed, if there be no objection. The Secretary will now read procedure, it must have been intended that the rules governing the the surrejoinder of the House of Representatives to the rejoinder of Honse of Lords when sitting as a court of impeachment, so far as William W. Belknap. applicable, should control the Senate sitting as a court of impeach- The Secretary read as follows : ment. THE UNITED STATES OF AMERICA l . In the Sena.te of the United St.:ttes sitting as a court of impeachment. vs WILLIAM w·. BELKNAP. . Mr. Erskine, before the Court of Kin~s Bench, in the case of the By the House of Representatives of the Urut.ed Dean of Asaph, in regard to the abolitiOn of tbe king's court and States, April 25, 1876. the distribution of its powers, says : The House of Representatives of the Unit-ed States, in tbe name of themselves The barons preserved that supreme superintendin~ jurisdiction which never be- and of all the :people of the United States, say that the said first replication to the longed to the justices, but to themselves only~ the }ttrors in the king' a court. pie~ of t~e satd Willi!lJll W. Belknap · to the ~cles .of impeachment exhibited agamst him as aforesrud, and the matters therem contained, in manner and form as And in a note to his argument found in Goodrich's British Elo- the same are above set forth and stated, are Ruffieient in law for the said House of quence, page 659, it is said: ~pres~n~-atives to have and maintain the said art!cl~s of impeachment against the During a trial before the Honse of Peers every peer preeent on the trial has al- satd W1lham W. Belknap, and that the Senate Sltting as a court of impeachment ways been judge both of the law and the fact; hence no special verdict can be has jnp.sdiction to hear, "t:Y· and determine the same; and the House of Repre- given on the trful of a peer. sentatives are ready to venty and prove the same, a.s the Senate sitting as a court of impeachment shall direct and award: Wherefore, inasmuch as the said William Bouvier, in his Law Dictionary, volnme 2, page 540, says: W. Belknap hath not answered the said articles of impeachment or in any m:mner denied the same, the said Honse of Representatives, for themselves and for all the A special verdict is one by which the facts of the case are put on the record and people of the United States, pra.y judgment thereon according to law. the law is submitted to the judges. II. See also Ba-con's Abridgment, Verdict, D, A. And the said House of Representatives as to tho first and second subdivisions of A special finding or verdict is therefore only necessary when the the rejoinder to the secon~ repli~atiou of. the House of Representatives to the plea questions of fact are found in one tribunal and the law is applied by of the defe~dant to ~e srud articles of .lmpeac.hment. wherein the said defendant another. demands tnal accordmg to law, the srud House of Representatives in behalf of But there is a direct authority on this question from a court of im- M themselves and all the people of the United States do the like· and to the third fo~tb. fifth, an~ si~th subdivisions of the rejoinder of the slrid defendant to th~ peachment only second in dignity to this high tribunal. The court srud seco!ld replicatioJ?-, they say that the said .tfouse of Representatives by reason of impeachment of the State of New York is composed of the presi- of anythmg by the s:ud defendant in the last-named subSes in which any- ing of essays to satisfy the people of the right of rebellion, like that thing like this which I have recited as having been done there was which sent Algernon Sydney to i~ominious execution ; but treason perpetrated; but here in 1839, or thereabouts, a Mr. Swartwout was defiant and organized; treason w1th uplifted crest and outstretched charged with being a defaulter to the amount of 1,300,000. He was arm; trea~on which drenched the land with blood and darkened our not; he bad never spent or appropriated to his own use any dollar of homes with mourning. You have been engaged for years in removing the public money; but his papers were in a state of utter confusion; political disabilities from men guilty of such treason, quickening them he was not able to prove his innocence, anu so he ran away inconti- with capacity for political and official life, until they have at last nently. Everybody believed him to be guilty, including both polit- gained possession of the southern wing of this Capitol. .Anil this ical parties. Suppose he bad been tried before the great men who proceeding is their first signal exercise of authority ; and they come were members of this body in 1840 in the midst of that exciting pres- to the bar of this court heralded by proclamations and surrounded idential election, what earthly chance would he have had of escape 7 with pageantry which fills your galleries when nothing is to be done It would have been impossible. but the filing of a single paper. And all this to fix upon a citizen of There are other instances which I need not enumerate of strong de- Iowa, a Union officer, the disabilities which the generosity of the lusions. Everybody threatens to be excessively angry unless some- North has removed from offenders in the South. thing be done with the gentleman who is now at this bar, and espe- There are some incidents of this proceeding, apparently ordereO. by cia1ly our friends in the House of Representatives will be very much Providence, to suggest a pause. These articles of impeachment were excited by any disappointment. served upon General Belknap at five o'clock and forty minutes in the Just at this time the United States-are nearly in the condition of afternoon of the 6th day of April, 1876. On the 6th day of April, one of the Roman cities about the beginning of the second century. 1862, at about the same hour, General Belknap was in the fore-front The public authorities bad sent off to Africa and at very considerable of the line of Union troops who made their last stand and rolled expense they had secured and brought home a lion of great strength back the confederate forces on the bloody :field of Shiloh. 'l.'he and ferocity. Great pleasure, gratification to the people was expected former good character and distinguished services of the respondent if they could only get a man for the lion, but it seemed for a. while may not a.vail him on the final question of innocence or guilt, but a~ if 1Jlere might be some disappointment about that. On the eve may properly be considered in disposing of this motion, which is of the day when the games were to begin somebody caught a man addressed to the sound discretion, in some sense the grace and favor, and drag~ed him before the magistrates, charged with the crime of of this honorable court. Christiamty. He was convicted. But suppose the judges had re- There is no necessity for a speedy trial. The public safety is in no fused to take jurisdiction, or, having taken jurisdiction, had acquitted way in peril. No officer is to be removed, for no officer is touched by him upon the ground that he was a good pagan, what would have these proceedings. The prospect is not brilliant for his nomination happened to the judges 7 They themselves would have been thrown by the President for any office pending these proceedings, and if he were to the ]ion, and the people would have had their sport anyhow. nominated the Senate would probably not confirm him. Therefore no What do these examples of popularfury, and legislative ferocity in great public interest demands an immediate trial. In the case of consequence of the popular fury, teach us 7 History, says Hume, is Blount's impeachment the trial was had at a session subsequent to philosophy teaching by examples. What is the Jesson taught us by that at which the articles were presented. Judge Peck's trial was all the examples we know in the history of this country and of past postponed to a subsequent session on the motion of Mr. Webster. And timesY Why this, that when the people rage and imagine a vain in this case, whether political disabilities shall or shall not be laid thing and demand the sacrifice of avjctim against which theirV\rrath nponGeneralBelknapisnotaquestionofsuchpressingimportancethat is directed, that is the very time that you should not take cognizance its determination cannot be postponed to a calmer hour. Not only of the charge, that you should wait quietly until the times change. bas General Belknap maintained a good character, but he bas rendered It teaches that you should wait, as the prophet Elijah waited when important and eminent services to the Republic, and he stands to-day he came out of the cave, until the earthquake cea>Sed to shake the with honorable place in history, with reputation unquestioned save mountain, until the mighty wind had blown past, until the great fire in regard to the transaction now under consideration, testified to only had burned itself out, and then listen as he listened for "the still by a single witness, and that witness the feeble tool of one woman small voice" that speaks of justice, liberty, law, divine and human. bent on the destruction of another. We have a very recent example which shows that legislative bodies Every Senator who hears me knows that I am especially estopped are not infallible, although they are composed of the wisest, vir- to utter one disrespectful word to this body. I have experienced its tuousest, discreetest, best men in the world. It is bnt a few days a~o generous kindness so often that I can never entertain aught but the that the Honse of Representatives took up a man, ancl without juris- highest respect for the Senate and the warmest affection for it~ mem- diction, without pa.y ing the slightest attention to his defense, and bers; and no one will do me the injustice to suppose that my advocacy though he was not guilty, rushed him into prison. That was done, of this motion is inspired by any want of confidenc.e in the a.bility or remember, by a House near1y all of w bose members had distinguished integrity of this court. Bnt I remember a proceeding in this body themselves by their devotion to the great principles of human lib- some years ago, in which a Senator was on trial, and I happen to know erty, habeas corpltB, and the right of trial by jury. One of them, only that at that time another Senator, who had been a member of the 14 TRIAL OF WILLIAM W. BELKNAP. committee which reported the case to the Senate and had what was, opened upon him like the Russian artillery upon the fated six hun- substantially, a judicial duty to perform in the premises, was in the dred, and "volleyed and thundered" until Swartwout, in utter con- daily receipt of numerous letters from his warmest friends and lead- sternation, sought safety beyond the seas. There he remained until ing politicians of his own party at home, assuring him that if he dic1 the presidential campaign wa-s closed, the public mind had resumed not do everything in his power to expel the accused he never coulll its normal state, the storm had subsilled, and the uproar cea-sed. be re-elected. The Senator thus warned pursued the course which Then he returned, and upon a deliberate and honest settlement of his convictions dictated, but the predicted consequence was realized. his accounts it was ascertained that, so far from his having been a Of course, I do not know that you, Senators, are claily receiving default.er, the Government was indebted in a small sum to him. such letters in regard to this trial. But I should not be astonished to This lesson ou~ht not to be lost upon the lovers of justice when, learn that some person, unacquainted with the proprieties of this pro- in the hour of high political need·, a. victim is singled out to be pur- ceeding, had written a similar letter to some Senators. sued to the death-when a citizen is required as a scapegoat for a The coming presidential campaign is already dawning upon us, and party. willincreaseinwarmthandinterestdaybyday. Itisimpossibleforthis When we come to consider the final issues in this case, if we ever court to sit, amid the excitement of a political canvass, entirely unaf- reach them, then the considerations which we now urge ma.y be un- fected by political influences; and no harm can come to the public, while important. But upon this question, When shall Belknap be tried Y the respondent's chances of impartialjustice at your hands would be hls former good character and honorable public services are properly greatly increased by postponement of this trial until the coming po- urged upon the court; for surely such a man should be denied noth- litical contest shall be settled. ing which may secure to him the calmest, most impartial trial. And We all know what the. next campaign is to be. The democrats, then, if for the imprudence of others justice can only be appeased by who have been so long out of office, rely upon the watchword" anti- the disgrace of one who has rendered such service and bears such corruption" to win the people to their support. This the republi- honors, so be it. But let this grea.t ad of justice proceed from delib- cans must meet by exhibiting greater detestation of corruption than erate judgment, :md do not let it staml in our history a-s ttn instance the democrats profess. The democrats can only exhibit their virtue of political injustice to crimson the cheeks of our children With shame. by finding corruption in the republican party to be rebuked, and re- Mr. EDMUNDS. Mr. President, with a possible view of saving time, publicans can exhibit their virtue only by out-Heroding Herod in I move that the Senate withdraw for consultation. punishment of whatever corruption democrats may pretend to find. The PRESIDENT pro iernpo·re. The Senator from Vermont moves Both parties are therefore interested in ma,k ing the most of the al- that the Senate now withdraw for deliberation. leged misconduct of the respondent. The democrats have found A division was called for. nothing, in all their investigations, against any other officer, and The PRESIDENT pro tempo're. On the motion to retire the roll-call nothing against the respondent except the particular matter set out will proceed: a division being called for. in these articles of impeachment, and that alleged by only one wit- The question being taken by yeas and nays, resulted-yeas 35, nays lleSS, and he durst not remain in the country twenty-four hours after 24; as follows: he had testified. 'f'he campaign, therefore, must turn upon the guilt YEAS-MesRrs. Anthony, Bayard, Bogy, Bootb, Bul'll8ide, Cameron of Wiscon· or innocence of Belknap, both parties being interested to establish sin, Caperton, Christiancyt Cockrell, Conover, Coo-per, Cragin, Davis, Fa.ton, Ed- his guilt. He will therefore be made the object of att.ack from every munds, Golllthwaite, Hamilton, Key, McCreery, McDonalu, McMillan, Merrimon, stump, in every newspaper, and in every hamlet in the land. And Sautslmry, Morrill of Vermont, Morton, Norwood, Oglesby, Randolph, Ransom, Robertson, Sharon, Stevenson, Thurman, Wadleiah, and West-35. the quPstion is, whether this is a favorable time for him to receive a NAYS-Messrs. Allison, Boutwell. CameronofPennJ~ylvania, Conkling, Da.wc~, perfectly calm and dispassionate trial. Dennis, Frelinghuysen, Hamlin, Harvey, Howe, Ing-alls, Jones of Florida, Jones Consider what has already transpired. A report was made by a of Nevada,Spencer, Kelly, Logan, Maxey, Mit-chell, Morrill of Maine, Patterson, Sar~ent, committee to the House of Representatives about three o'clock in the Sherman, Windom, ancl Withers-24. :KOT VOTITG-Me~>s"73. Bruce, Clayton, Dors<'y, English, Ferry, Gordon, Hitch- afternoon of April 2, 1876. The committee had no authority to make cock, Kernan, Paddock, Wallace, Whyte, and Wright--12. the investigation or the report; but the tenor of the report was so grate- ful to the House t.hat, without printing the testimony, and under the The PRESIDENT pro tempm·e. The Senate orders a retirement for stress of the previous question, amid a scene of excitement and con- consultation. fusion which the Speaker characterized as "disgraceful disorder," the .Mr. Manager HOAR. 1'1Ir. President, before the Senate retires, I impeachment was carried by a unanimous vote. It is worthy of re- ask its consent to call attention to one other matter, and that is that mark, as evincing the excitement of the hour, that one of the firmest the Senate will consider whether the rule of parliamentary law which and ablest lawyers of the House, one of the honora.ble managers now prohibits the discussion in the Senate of what ba.s taken place in the present, after declaring that the Honse had no authority to impeach Honse of Representatives is a rule governing the proceedings of this ~Ir. Belknap, then out of office, was so carried away as to vote in favor h-ial, in order that the managers who represent the House may gov- of impeachment. eru themselves accordingly. I am led to allude to the subject from After this remarkable proceeding on the part of the House, the the fact that one of the learned counsel has been permitted to state Attorney-General, a mild-mannered gentleman, with a kind heart and t.bat a scene of disorder took pla.ce in the other branch of Congress high sense of propriety, was so excited by the fear that a democratic on a certain occasion to which he referred. I do not make any mo- Honse was getting ahead of a republican administration that in open tion upon this subject, but desire to call the attention of the Senate defiance of the Constitution, which declares that" the rj.ght of the to tho matter, that we may understand what our rights and duties are people to be secure in their persons, houses, papers, and effects against in the premiseR. unreasonable searches and seizures shall not be violated, and no war- Mr. CARPENTER. Mr. President, in behalf of the defenrlant we rant shall issue but upon probable cause supported by oath or affirma- wish to say that before that very important question shall be decided tion, and part.icu!arly describing t.he place to be searched and the per- by the Senate we desire to be heard npon it. son or things to be seized," without oath or affirmation establishing The PRESIDENT pi'O tempore. The Senate will now retire. probability of gnilt and without warrant issued for arrest, issued his The Senate, at two o'clock and fifty-five minutes p.m., retired to letvre de cachet to the chief of a band of detectives belonging to the the conference chamber. Treasury Department to exercise the strictest suneillance over the re- The Senate having been called to order in tille conference chamber, spondent. And in pursuance of this despotic and void order Belknap's The PRESIDENT pro tempo1·e stated the question to be on the mo- house was surrounded with armed policemen and filled fTom cellar to tion for continuance submitted by Mr. Carpenter, of counsel for the garret with these detectives. The Attorney-General had no more au- respondent. thority to seize Belknap's house and imprison him therein than Bel- Mr. EDMUNDS moved that the motion of the respondent to post- knap had to imprison the Attorney-General, a.nd no more authority pone the further hearing of the impeachment until the first Monday than had any private citizen to thus imprison them both. And, apart in December next be denied. froin the motive which inspired it, this proceeding of the Attorney- After debate, . Geneml is as much more deserving of impeachment than the trans- Mr. SHERMAN moved to substitute for Mr. EDMUNDS's motion actibn set out in these articles as the violation of a plain provision "that the President pro tempore ask the managers if they desire to be of the Constitution in favor of the people's rights is more dangerous heard on the pending motion of .M:_r. Carpenter, of counsel for re- to liberty than the violation of a particular penal statute. This pro- spondent." · ceecling of the Attorney-General, however, is only mentioned to show Mr. MERRllfON moved that the Senate return to its Chamber how political excitement could overcome the prudence of a high ex- without action ; on which motion the question, being taken by yeas ecutive officer and transform the head of the Department of Justice and nays, resulted-yeas 30, nn.ys 30; as follows: into a minister of injnstic6. YE.A.S-MP.ssrs. Allison , Bogy, Boutwell, Cameron of Wisconsin, Con'!ding. Cono- ver Cra!!in Dawes, Detmis, FetTy, llamlin, Ingalls, Jones of Florida, Jones of Ne- Let this trial go over until the political contest shall be ended. vada, Lo~a~ Merriman, Mitchell, Morrill of Maine, Morrill of Vermont, Oglt>RlJy, The respondent will not attempt to escape ; will not, like his accusers, Padilock~P~tterson, Ransom, Robertson, Sargent, Sharon, Sherman, Spencer, West, flee into Canada; but will be present whenever this court requires antl Windom-30. ' his presence. NAYS-Messrs. Bayard, Booth, Burnside, Cameron of Pt' nnsylvania, Caperton, Christiancy, Cockrell, Cooper, Davis, Eaton, Edmunds, Goluthwai~, R::mi!ton, My colleague has referred to the case of Swartwout, and it is full Harvey, Hitchcock, Howe. Kelly, K ey, McCreery, McDonald, McUillllJl Maxcy, 1 of insh·nction for the present hour. He was accused of unparalleled Morton, Norwood, Randolph. Saulsbury, Stevenson, Thurman, WadleJgh, and dishonesty in office. And his supposeJ dishonesty bas given a new Withers-30. NOT VOTING-Messrs. Anthony, Bruce, Clayton, word to our langu.age. ''Swartwouting'' is equivalent to embezzle- huysen, Gordon, Kernan, Wallace, ·wnyte, and Wri.gllt-11. Dorsey, English, Freling- ment and official peculation. He was set upon by pamphlets and speeches. political vituperation and popular denunciation ; the press So the motion was not agreed to. TRIAL OF WILLIAM W. BELKNAP. 15 The question recurring on the amendment of Mr. SHERMAN, the Mr. Mll>nager LORD. Mr. President, I think the managers pre-· yeas were 28, and the nays 31 ; aa follows : sented yesterday on that question all that they desire to submit at YEAS-Messrs. Allison, Bogy, Boutwell, Cameron of Wisconsin, Con?ver, Cragin, the present time until the other side are beard. Dawes Dennis Ferry Frelinghuysen, Hamlin, Ingalls, .Tones of Flonda, .Tones of The PRESIDENT p1·o t·empore. Do gentlemen of counsel desire to Neva{}~, Logan', McC~ery, Merrimon, Mitchell, Morrill of Maine, Morrill of Ver- be heard f mont, Patterson, Randolph, P..a-nsom, Robertson, Sharon, Sherman, Spencer, and Mr. CARPENTER. :Mr. President and Senators, the same reason Windom-28. which induced us to move yesterday for a continuance of the tr.Lal of NAYS-Messrs. Bayard, Booth, B_umside, Cameron of Pennsylv~nia., CaJK:rlon, Christiancy, Cockrell, Cooper, DaviS, Eaton, Edmunds, Goldthwru.te, Hamilton, this. cause until after the coming political campaign induces us now, Harvey Hitchcook, Howe, Kelly, Key, McDonald, McMillan, Maxey, Morton, Nor- since t.he Senate has determined to try this cause at the present term, wood, Oglesby, Sargent, Saulsbury, Stevenson, Thurman, Wadleigh, West, and to burry it forwa.rd ag fast as we can before the political furnace ·be- Withers-31. NOT VOTING-Messrs. Anthony, Broce, Clayton, Conkling, Dorsey, English, comes heated seven times hotter than its wont. I therefore say to Gordon, Kernan, Paddock, Wallace, Whyte, and Wright:r-12- the Senate that we shall ask no unnecessary delay in this case; we shall interpose no dilatory JH.ea or motion which, in our judgment, is So the amendment was rejected. not essential to the merits of the case, and shall do everything in our The question recurring on the motion of Mr. EDMUNDS, the yeas power to speed the trial and terminate it as soon as possible, having were 59, and the nays 0; as follows : due regard to t.be importance of the cause and to the proper defense YEAS-Messrs. Allison, Anthony, Bayard, Boey, Booth, Boutwell, Burnside, of this respondent. Cameron of Pennsylvania, Cam~n of W:isconsin, Caperton, Christiancy_, Cockrell, The first part of this order, "That the evidence on the questions Conkling, Conover, Cooper, DaVIS, Denms, Eaton, Edmunds, Ferry, Frelmghuysen, pertaining to the plea to the jurisdiction of this court be given before Goldthwaite, Hru.nilton, Hru.nlin, Harvey, Hitchcock, HowE:\, Ingalis, .r.ones of Flor- ida, .Tones of J;revada, Kell~.key, Lo~n, McC~ery. McDonald, McMillan. Maxey, the ar the plea to the jurisdic- tion of this court be given before the argumenta relating thereto are heard, and, if some calamity which cannot be foreseen, I think we shall ask for no such plea is overruled, 'that the defendarit be required ro answer the articles of other delays except in the necessary preparation of pleailings or other- impeachmE}nt within two days, :md the House of Representa.tllres to reply, if they wisft aa will be conceded to be entirely proper. deem it necessary, within two days, and that the trial proceed on the next day after Iu connection with tho request that we shall have two weeks to the joining of issue. prepare for this argument, I repeat my assurance that it is not for dr.- The PRESIDENT p1·o tempore. Are the managers ready to go on T lay; it is not to waste the time of the court; and it will not lla·.--e tba.t 16 TRIAL OF WILLIAM W. BELKNAP. effect, for I understand you have some things to do besideR hearing it will be in the discretion of the court to grant one, two, three, or this case-I refer to your legislative business-and our only object is more days, or longer time; I mention this number of days as sufficient to be a.b le to present the question as its importance demands. in my judgment for counsel to prepare; but it will of cour e be in Mr. Manager LORD. Mr. President and Senators, I df'slre to call the discretion of the court to grant such further time as the court the attention of this court to the proceedings bad on the 17th of the may deem proper. present month. I do not intend in the least to call in question the Mr. CARPENTER. Mr. President, I ask permission to say a word good faith of the counsel who bas just addressed this tribunal, but I in reply to the argument of the honorable manager so far as it relates may refer to what I am about to refer to, in order to show this court to me personally. After we had filed our plea, and the managers had the good faith of the managers in making this motion. On the 17th asked time to reply, the President inquired of the counsel for the de- of the present month this occurred. The Chief Clerk read: fense if they would be ready to proceed after the managers had filed "The managers on the part of the Honse of Representatives request a copy of their replication. To that I replied that if the managers did what the plea filed oy W. W. Belknap, late Secretary of War, and the Honse of Repre- we supposed they would, we should be ready to proceed-not proceed sentatiV"es desire time until Wednesday, the 19th~stant, at one o'clock, to consider to argue any question ; not proceed to take testimony; but proceed what replication to make to the plea. of the sa.ill W. W. Belknap, late Secretary of to file a counter-pleading; and I had then with me (supposing that War." they would demur to our plea, which stated nothing but facts) a The PRESIDENT pro umpore. Senators, you have heard the motion of the mana- gers. Those who concur will say ay ; those who non-concur will say no, [putting joinder in demurrer. If they had filed their demurrer that day, I the question.] The ayes have it; the Senate so orders. should have filed the joinder in demurrer the next moment. My re- The Chair will ask the gentlemen counsel fortherespondentifthcy will be ready ply simply was that we should be ready to proceed on that day if to proceed at the time n:uned in the motion submitted by the managers I they did what we supposed they would; that is, if they demurred to The learned counsel who has just addressed the court answered: our plea we should be rea{}y to join in demurrer. No question was That will depend entirely upon what the manaaers do. We cannot anticipate. asked as to when we should be ready to proceed with the actual trial. If they do what we suppose they will do, we shall be ready. If not, we shall have Everything done here is a proceeding in the trial. When this court to consider what we will do next. by its order directed that the trial should proceed on the 27th, what Now, if the court please, this answer of the conn el was supposed was intended! Simply that the next step should then be taken. to refer to a general replication; in other words, he said in substance The motion to continue it over this session was a proceeding in the to this tribunal that if the managers put in a general replication he trial. "\Ve proceeded with the trial all that day, and are proceeding would be re~dy to go on with the argument. At least, so we under- to-day; but to proceed with the trial and to be ready to argue a par- stood; and it is difficult for me at the present time to give any other ticular question, are very different things. possible interpretation. The counsel could not have intended to trifle The honorable managers, I suppose, have been investigating this with this court He could not have said that he would be rea{}y to go question for weeks. They have had the opportunity to do so, being on provided we were ready to come in here and abandon this impeach- excused, I suppose, from duty in the House, and allowed to sit in com- ment. Therefore all that he could have intended, in our judgment, mittee during the sittings of the House. They have had weeks to was this: "If the managers put in a general replication tn the plea devote to this subject and had the books at hand. We have not; and of the defendant, then and in that case we shall be ready to go on we have been engaged in other necessary professional employments immediately upon that question.'' during this t.ime. If this order is to be passed in this form, and this We did not put in simply a. replication relating to the principal question is to be argued to-day or to-morrow, it is impos ible for 118 question; we put in something more than a general replication, namely, to argue it. The honorable managers might a~ well ask for an order a special replication, ~nd therefore the counsel is not bound to go on that we should not be heard at all. Even the Almighty employs under his statement. human means and instrumentalities to execute His proviy making Mr. CAMERON, of Pennsylvania. I do not intend to debate; but I an issue upon that plea; but that is a matter of form and not of sub- rise to a question of order. I think I can move to amend the motion stance. If the counsel for the respondent bad seen fit to enter a of the Senator from Wisconsin by proposing that we shall adjourn general plea of "not guilty," the question of the jurisdiction of the until Monday at twelve o'clock and thirty minutes p.m. Senate to try and convict would have been involved in the final vote Mr. HOWE. I will withdraw the motion I submitted just now, upon that question. To show the jurisdiction of the court over the for the time being, in order that tho question raised by the Senator subject-matter of the inquiry is a part of tbeaffimativeissneinvolved from Massachusetts [Mr. DAWES] may be considered. in the presentment of articles. So t.hat l>y the logic of ordinary prac- .Mr. DA.WES. I do not know that the counsel have the least desire tice we are brought to the same result as we should be if it were not a to be beard ; but common courtesy, it seems to me, would demand question of the prerogative of the House, and the accustomed and well- the extending to them of the same privilege that the Senate has ex- settled methods of proceeding in impeachment. In the Blount trial, tended to the mana~ers. I believe I have stated wit.h sufficient flistinctness, the plea being The PRESIDENT 1n·o tempore. The Senator from Wisconsin with- that William Blonnt was a Senator of the United States and there- draws his motion. Do the counsel on the part of the respondent de- fora not an impeachable civil officer, and also that be had laid down sire to be beard f his office before the proceedings were instituted-upon that issue, Mr. CARPENTER. Mr. President,.from the course of the argument · which presented simply the question of jurisdiction, the opening and of the honorable manager I Mr. HOAR] we are very much in doubt close were with the House. whether we have any concern with this busin~ss. It seems to be Mr. EDMU~TDS. Mr. President, I move that the Senate sitting for rather a conference between the two Houses than a proceeding in this this trial adjourn 1.mtil half past twelve o'clock, afternoon, of the 4th trial. We are informed by the honorable manager that we have been day of .May. . tried and convicted in the other end of this Capitol, and that they \ Mr. McDON.A.J.JD. If the Senator will withdraw the motion-- Yr. EDMUNDS. I withdraw it. have simply brought their judgment here for ratification and concur- renee; and they are only now investigating the question as to how 'l Mr. McDONALD. I desire, Mr. President, to move to reconside:r and in what form the Senate is to concur in the judgment which the the vote in re~ard to the order of proceeding in the case. House of Representatives"h.as rendered against us. That, of course, The PRESIDENT pro tempore. The Senator will submit his motion . is a mere question of practice between the two Houses, which we are in writing. understood to have no interest in and no right to interfere with. 1\:Ir. CONKLING. May I inquire of the Senator whether his pur- On the merits of this motion to rescind, twenty-five years' practice pose is to enter the motion now a,nd leave it to stand 1.mdetermined has satisfied me that it is always safe to leave a. court to vindicate until the 4th of May, or to have immediate action upon it now J .And its own order; and when this court, after full deliberation and con- if it be not ont of order, I will assign as a reason for my inquiry that sultation in private, has made an order, we assume that that order if the motion to reconsider be entered and left to stand, no gentleman will be adhere-d to. who is to engage in the conduct of this proceeding on either side will In the next place, whatever may be the precedents in the Honse of understand what is incumbent upon him or to be incumbent upou Lords in trying an impeachment, we have the authority of the bon- him wben the 4th of May arrives. So I suggest to the Senator that orable manager himself who has just taken his seat that they are not he would hardly make th~ motion to reconsider and leave it standing, binding at all in a trial of impeachment under our Constitution. In thus untying everything that bas been done and leaving both sides the debate which took place in the House (if it can be called a debate in doubt. where nobody was allowed to speak) as to the ordering of tbeimpeach- ~Ir. ANTHONY. Mr. President, I submit that the motion of the ment, thehonorablemauager himself stated thattheBritishruleswere Senator from Indiana must be to rescind the whole order, not a part notapplicable, andconsequentlynoaidcould be drawn from the trial of of it. The order has been adopted. We cannot reach a part until Warren Hast:in~s. Now I snbmit that whatever may have been the the whole is placed before the court again. rule in the trial of impeachments in England this court should make 1t:Ir. CONKLING. This was a. separate order. There were two or- its own rule, and that should be the rule ..of right and justice. ders. I deny, as respectfully as a man may deny anything that comes from TRIAL OF WILLIAM W. BELKNAP. 21 a co-ordinate branch of this Congress, that the House appears hero in The PRESIDENT pro tempfJre. The Senator from Pennsylvania will any other attitude than we appear here, a suitor in this cam~e. Is it state his amendment to the motion. possible, where the Constitution says we are to have a trial, and the Mr. CAMERON, of Pennsylvania. I move that the court now sit- House of Representatives presents itself here as the accuser, that it ting adjourn until Monday at half past twelve o'clock. is a part of the court ; that it is entitled to any favor here that we The PRESIDENT p1'0 tempore. The Senator from Pennsylvania ar not entitlecl to f The rule uniformly aclopted by the courts of moYes, as an amendment to the motion of the Senator from Wis- luw is a rule which the experience of hundreds of years has deter- consin, that the time fixed Bhall be Monday, instead of to-morrow, at mined to be wise and proper, and that is the rule which I understand half past twelve o'clock. The question is on the amendment. this Senate has ordered for this trial. Is it desired by the honomble 'fhe amendment was not a.g reed to. managers that the ordinary course of justice should be changed on The PRESIDENT p1·o ten11J0re. The question recurs on the motion this trial, that we should be invited to new entertainments, and that of the Senator from Wisconsin, that the Senate sitting in ti.ial ad- we should be borne down here by oppressive precedents in the Honse journ until to-morrow at half past twelve o'clock. of Lor&, and especially after the manager himself, with an indepen- The motion was not agreed to. dence which was all worthy of him, has in his own branch of Congress The PRESIDENT pro tempore. The question recurs on the motion put aside the authority of the precedents of the House of Lords in submitted by the Senator from Indiana, [Mr. McDoNALD,] on which impeachment cases f the yeas and nays have been ordered. The PRESIDENT pro tempore. The question is on the motion sub- Mr. HOWE. If it is not too late, I think I shall ask for the yeas mitted by the Senator from Indiana, [Mr. McDONALD.] and nays on my motion to adjourn. I do not think it is tho pmpose Mr. Manager HOAR. Mr. President, I ask leave to say a word. of the Senat-e to d.live us to a vote on the motion of the Senator from The PRESIDENT pro tent1J01'e. · The manager asks to be heard. Is Indiana at the present time. there objection f The Chair hears none. The PRESIDENT pro tempore. Tho Senator from Wisconsin asks Mr. Manager HOAR. I desire to EH.ty, Mr. President, that the learned ·for the yeaa and na.ys on the question. Unless there is objection, the counsel has imitated one of his associates in strangely misnnder- Chair will inquire if there is a second to the demand. standin~ and misapplying some observations which he attributes to The yeas a.nd nays wero ordered; and being taken, resulted-yeas 22, me. I ao not, however, propose to be drawn into a discussion of what nays 31 ; as follows: took place in the House of Representatives. The proposition which YEAS-Messrs. Allison, Boutwell, Cameron of Wisconsin, Cooper, Dawes, Ferry, I mn.de and to which he has undertaken to reply was that the House Frclin.e:huysen, Harvey, Howe, Jones of Ne•ada, Key, McCreery,· McDonald, McMillan, Merrimon, Mitchell, Morrill of M:tine, Morrill of Vermont, Oglesby, of Representatives brings to the Senate n. charge the truth of which Saulsbury, Sherman, :mu Windom-2'2. it has ascertained in the course of its public legislative duty. Un- N AYs.:-Messrs. Anthony, Bayard, Bo~, Booth, Burnside. Cameron of Pennsyl· doubtedly it has the burden of maintaining that charge and of prov- vania, Caperton, C!tristia.ncy, Conklin IT, Conover, Da.vis, Dennis, Eaton, Hamilton, ing every fact which is involved in it; and undoubtedly the defend- Hitchcock, Ingalls, Jones of Floritla, Kelly, Max:ey, Norwood, Paddock, Patterson, aut has the full right to every constitutional or legal principle or Randolph, Ransom, Robertson, Sargent, Spencer, Thurman, Wallace, Whyte, nnd presumption of innocence which exists anywhere. .But the burden Withers-3L NOT VOTING-Messrs. Bruce, Clayton, Cockrell, Cragin, Dorsey, Edmunds, and the duty is on us of proving that charge according to the prec-e- English, Goldthwnite, Gordon, Hamlin, Kernan, Logan, M01·ton. Sharon, Steven- dents of this Senate and of all senates, accorfling to the precedents son, Wadleigh, West, anll Wright-18. of the House of Lords in England sitting as a court of in1peachment, So the motion was not agreed to . . and not according to the precedents of police courts or inferior courts :Mr. CAMERON, of Pennsylvania. I now move that the Senate of any other kind sitting auywhere. And the precedents of this sitting a.a n. court adjourn till Monday at twelve and a half o'clock. Senate and of all senates sitting as a court of impeachment have The PRESIDENT pro tempore. The Senate has refused to agree to adopted the rule practiced upon in the English House of Lords, from that motion already. which impeachments- come, for five hundred years, t,hat on all qnes- Mr. CAMERON, of Pennsylvania. This is a new motion, if the tions the party instituting tho proceeding and having the burden of Chair please. proof throughout the whole issue has the 1·ight to reply. That is the The PRESIDENT pro ten1pore. The Senate refused the motion of proposition, and to that proposition no answer whatever has been the Senator prior to the yea and nay vote just tal.:en • vouchsafed or suggested by the honorable counsel for the defendt:mt. .Mr. CAMERON, of P'e nnsylvania. The question was divided. Mine The further proposition, to which no reply has been suggested, was an amendment to the motion of the Senator from Wit-3consin. was that in this particulai· on this special issue now macle up, the The PRESIDENT pro temp01·e. And it was rejected by the Senate. precedent of this ~enate and of all senates sitting as a court of im- Mr. CAMERON, of Pennsylvania. I t-hink I have a rig-ht now to peachment, precisely corresponds and agrees wit.h tbe precedents of make a new motion that the Senate sitting as a court adjourn until all courts whatever, f,h at where a plea to the jurisdiction is inter- Monday at half past twelve o'clock. posed and to that plea a demurrer is filed, which-leaving out now Mr. ANTHONY. If the Senator will modify his motion so a.a to fix this second matter of fact-is the question here, the party demurring the time five minutes later, it will be in order. has the affi.I·mative and the reply in support of his demurrer. .Mr. CAMERON, of Peunsylvania. Then I will make it five min- So that, taking the first issue presented here, the two modes of de- utes after that timo. terming what is the proper course concur and coincide, and if the The PRESIDENT pro tent]JOre. That motion is in order. The Sen- issu-.. of fact tendered by the House of Representatives affecting the ator from Pennsylvania moves that tho Senate sitting for the trial of jurisdictional question be to any extent considered by the Senate, it the impeachment adjourn until .Monday at twelve o'clock and thilty- is also clear that upon that issue of fact the party tendering that five minutes p. m. would be entit.led in any court of equity or law to the right to begin The motion was agreed to; and the Senate sitting for the trial of ancl tho 1·ight to rAply. tbe impeachment of W. W. Belknap adjourned until Monday next at Mr. EDMUNDS. Mr. President, may I request the Chair to ask twelve o'clock and thirty-five minutes p. m . •the manager to point out to the Senat-e the demurrer of t.he House of Representatives to the pleaT .Mr. Manager HOAR. I will. It is the first replication: \ The House of Repre. entatives of the United States, prosecuting, on behalf of MONDAY, May 1, 1876. themselves and the people of tho Unitetl States, the articles of im.J?eachment exhib- ! ited by them to tho Senate of tho United States a~ust said William W. Belknap, r eply ro the plea of said William W. Belknap, ann say that the matters alleged m the saiu plea. are not sufficient to exempt tho said William W. Belknap from an- swering the said articles of impeachment. The PRESIDENT pro tempore having.announced the arrival of the time to which the Senate sitting for the trial of the impeachment had adjourned, 'fhe usual proclamation was ma.do by the Sergeant-at-Arms. And tben they mm·ely re-affirm a fact which had been affirmed in The respondent appeared with his counsel, Mr. Blair and Mr. Car- t.he original articles, that he was before that time Secretary of War, penter. which is not a matter denied in the original plea; so that this first The PRESIDENT pro tempore. The Secretary will notify the House proposition is nothing but a demurrer to the plea, though it is called of Representatives that the Senate is now ready to receive the man- a replication. · agers and the House, provision being made for their accommodation. I was saying, therefore, that if the second issue of fact be consid- The Sergeant-at-Arms announced the presence of the managers of ered by the honorable Senate in any degree the party having t-he the impeachment on the part of the House of Representatives; and affirmative of that issue of fact is entitled to tho right to begin and they (with the exception of Mr. Mc~lA.HoN, who was absent) were the right to reply. So, then, the learned counsel for the respondent conducted to the ~eats }'rovided for them. asks the Senate to overthrow the uniform course of practice in En- The l::)ecretary read the Journal of the proceedings of the Senate of glanrhlin the artkires of impeoohment o.goinst the respondent be reconsidered. ( i 22 TRIAL OF WILLIAM W. BELKNAP. Mr. EDMUNDS. .Mr. President, I feel bound, after what bas taken Mr. Manager HO.AR. J'llr. President and Senators, I desiro to say a place in the argument, to move that the Senate withdraw for con- few sentences only in reply to what has fallen from the learned coun- sultation. sel for the respondent and I desire to state exactly what is the fun- Mr. BLAIR. Mr. President, before the motion is put, I should like damental proposition on which we rest the claim which we presented to be heard for a few moments by the Senate. to the Senate on Friday. It is this, that a court of impea.chment, a The PRESIDEt\"'T p1·o tempore. Is there objection f The Chair parliamentary process for the investigation of the guilt of great pub- hears none. lic offenders, has had from time immemorial, both in this country and Mr. BLAIR. Mr. President and Senators, when this question waa England, its own rules of evidence, its own rules of pleading, and its own mooted at the last session of this court, I had not been able to give methods of practice, settled by immemorial usage and adopted by our any attention scarcely to the subject, and waa therefore wholly un- Constitution when it used the word "impeachment" as one of tho prepared to make any remarks whatever upon it. Since that adjourn- powers with which the Senate is clothed. Those roles of evidence, ment, however, I have looked into the matter with such opportunity practice, and pleading are not the rules which obtain in the courts of as the time afforded me would enable me to do, and upon examina- the common law, but are other and different rules. tion of some of the precedents, which I think will be more authorita- Do not let me be misunderstood or misrepresented when I make tive than those stated by the managers, I hope that the Senate will this statement. The rules of pleadin~ and of evidence and of prac- not recede from the order it has taken in this matter. tice, which are based upon common nght and which secure to a de- The first to which I will call the attention of the Senate is the case fendant a fair and impartial trial and protection a.gainst oppression, of Barnard, with which the managers have shown their familiarity, the presumption of innocence, all rules of substance, apply here. This having referred to it in connection with this plea in abatement. court sits to apply in all its proceedings the rules of common justice Throughout that case the rule which obtains in courts of justice was a.nd of common right, and is the highest court in the country author- adhered to, that counsel who maintained the affirmative of the issue ized to apply those rules to this class of offenders. But it applies had the opening and reply upon such issue. I would also say-and I these rules by its own methods. If in any respect a rule of procedure am making my remarks very brief-in regard to the affirmative of the existing in the court of impeachment is less favorable to a defendant issue that this is substantially a demurrer to the articles, because every at its bar tba.n the process in a criminal court in an analogous case, lawyer knows that in a proceeding like this the articles themselves Senators will remember the immense constitutional equivalent which must allege all the facts necessary to give the jurisdiction in the case is given him. He is entitled, for hiM judges and for his jurors both, t.o alleged and proved. This court of impeachment is a court of limited have impaneled seventy-four Senators of the United States, selected jurisdiction under the Constitution, and in every court of that char- by the various States which make up this Republic as the first men acter the facts upon which the jurisdiction rests must appear on the in character, in capacity, in knowledge of the Constitution that those complaint by which the case is initiated and inviting the a-ction of various communities present; and he cannot be convicted unless by the court. a two-thirds judgment of the court so made up. In this he finds an Now, every party demurring has the opening and closing, and the equivalent for every possible inconvenience which the application of argument which is addressed to the court on the other side, that, as the rnles which prevail in a court of impeachment may cause him. they have the affirmative of the general issue, therefore they ought I speak at this moment only from memory, but I do not understand to be heard in opening and replying upon all the questions arising in that the learned counsel correctly states the only American precedent the progress of' the case, would with equal propriety give the plaintiff to which he has referred-the case of Barnard. In Barnard's case a in every other court the reply on all such questions, whether applied plea was interposed to the jurisdiction, in substance the same plea \ to a question of la.w or a question of fact. But that is not the rule. which is interposed here, applying to several of the articles. That In this case we demur, and thus say that, assuming all the facts alleged plea was argued by itself, and upon that argument the counsel for to be true, the House of Representatives has no case. That is an the State had the opening and the close. In regard to the English affirmative proposition tba.t no impeachment can be maintained on precedent, I beg leave respectfully to refer honorable Sena.tors to a the facts charged, and therefore we are entitled to the opening nnd report of whi<;h Mr. Burke is the author from a committee appointed conclusion of the argument. by the House of Commons to inspect the journals of the Lords with a. It is altogether a mista.ke, also, that this proceeding was ever other- view of ascertaining the occasion of the great delay which had hap- wise considered here or in England as standing upon any different pened in the trial of Warren Hastings. This inspection and report footing in its general principles than any other proceedings at law. were made in the seventh year of that trial. Mr. Burke makes in Woodeson,inhislectureonthesubjectofimpeachment,(volnme2,page this report a most ample and thorough discussion of the entiro pro- 596,) treats it as a suit. His language is that "the House of Commons, cedure in cases of impeachment in Parliament. He begins by consid- as the grand inquest c5f the nation, become suitors for penal justice." ering the matter of pleadings and the matter of evidence and other ·wilson in his Parliamentary Law speaks of the articles as analogous to matters of procedure, and states in the fullest manner the principle an indictment, and hence the rules of practice ought to conform to upon which the claim of the managers rested. I do not mean to say those of the courts in analogous circumstances, and if they vary from that be states a.nything in regard to this particular question of the them in England, it (loes not follow a practice there which does not opening and close. The report is silent upon that particular subject, conform to the general principles recognized hero. We have greatly but he states the doctrine. He begins by saying : restricted the impeachment proceeding; it is not the proceeding here Your committee finds that the Lords, in matter of appea.lorimp~chmentin Par- as there in many of its essential features. liament, are not of right obliged to proceed according to the course or rules of the This is all I think it necessary to say in support of the jod!mlent of Roman civil law, or by those of the law or usa~e of any of the inferior courts in the Senate establishing the rule of proceeding nuder consi~eration. Westminster Hall; but by the la.w and usage ot Parliament. I premise the honorable chairman of the Judiciary Committee, upon Then he cites various precedents from the earliest times; and finds whose mot.ion it waa made I believe, bas made himself familiar with that always the court proceed according to the law and nsagt} of Par- this subject. I hope I may be allowed to say in conclusion, that as liament. Then he cites Lord Coke: American lawyers are not very familiar with this proceeding of im- As every court of justice hath laws and customs for its direction, some by the • peachment, for it is very unusual in this country, if the Senate does common law, some by the civil and canon law, some by peculiar laws a.nd customs, retire to consider this matter, it will take into considera.tion the ques- &c., so the high court of Parliament~ sui& propriis legibus et consuetudinibtut sub· tion of giving ns a little more time; and I am sure our brethren, the sistit. It is by the lex et consuetudo parliam.enti that all weighty matters in any ) \ managers, will not oppose it on further consideration. We do not ask parliament moved, concerning the peers of the realm, or Commons in Parliament assembled, ought to be determined, adjudged, and discussed by the course of the i it for the purpose of making any display. We want to investiga.te Parliament, and not by the civilla.w, nor yet by the common laws of this realm used this subject, so as to save the time of the Senate in pre.senting it in more inferior courts. briefly and in an orderly manner; and we can save the time of the liament~ This is the reason that judges ought not to give any opinion of a. matter of Par- becanse it is not to be decided by the common law~. but secund"m leyem et \ Senate, its valuable time at this season of the session, if we are al- CBn~ttetudinem parliamenti; and so the judges in divers Parliaments ha-ve confessed. lowed some time to read and digest our reading before discussing this very important constitutional question to be considered. Then he goes on under the "rule of pleading:" Mr. Manager LORD. Mr. President-- Your committoo do not find that any rules of pleading aa observed in the inferior The PRESIDENT pro tem.po1'e. Is there objection to the managers courta han ever obtained in the proceedings of the high court of Parliament in a. being heard f The Chair hears none. canso or matter in which tho whole procedure has been within their ori¢nal juris- Th. Manager LORD. Mr. President, on the question of time re- false diction. Nor does your committee find that any demuiTer or exception, as of or erroneous pleading, hath been over admitted to any impeachment in Par- ferred to last by the counsel who has addressed the court, the managers liament, as not coming within the form of the pleading; and, although a. r erva- have already said all that they desire to say, and simply announce tion or protest is made bythe defendant-matter of form, as we conceive-" to tho that we adhere to positions formerly taken. generality, uncertainty, and insufficiency of the articles of imueachmoot," yot no On the question of the opening ndclosingof he argument., the man- objections have in fact been ever made in any part of the record. agers desire to be further heard through Mr. HoAR, and I will say now, I do not think it is worth while to detain the Senate with reading so that I need not rise again, that tho managers also desire that four very full and .copious extracts from t.his report.. I will take the lib- of their number may be allowed to argue the questions now before erty of placing the book whel.'e it will be reached by Senators when the court. It will be seen by the orders of this court that there are five they discuss this question. principal questions presented-I need not now refer to them-four of Let me say again that it is not claimed that in any particular tho them by the pleadings and the fifth by the order of the court, to wit, rules of pleading, of evidence, or of practice, which as matter of com- whether the matters contained in the second replication of the House mon right and of common justice a.re essent.ial to giving the defend- of Representatives ought not to have been presented in the original ant a fair trial, to requiring of his accusers the fullest proof and giv- :trticles. Theso five questions being before us, the managers suggest ing him the entire benefit of the presumptions of innocence, do not that four of their number should be allowed to argue them. obtain in this high c6urt; but t.he law and custom of Parliament have TRIAL OF WILLIAM W. BELKNAP. 23 been adopted with the adoption of impeachment itself, and one of the defendant answer over, perhaps setting up some other matter strictly I r' well-settled methods of practice against which no authority has been cited is that in all matters the House of Commons or the House of in bar, and have that determined, and so the Senate put to a trial of half a dozen successive issues of fact f I respectfully submit that Representatives have the right. of reply. that is not the rule, but that the proper method of pleading is the The learned counsel has called attention in t.he second place to the one which I have first stated. character and form of these pleadings upon the first issue which is Undoubtedly it would have been very proper that the matter set up made up; and with the leave of the Senate I desire to explain pre- in this second replication should have been set up in the original ar- cisely how that stands. The House of Representatives, in the first ticles; but it is also well settled in matters of impeachment that the instance, allege in the original articles: House of Representatives has in its discretion the right at any time ART. 3. That said William W. Belknap was Secretary of War of the United to file additional articles if it see fit. It is also true that this ne\V States of America before and during the month of October, 1870, and continued in matter set up in the second replication ha-s been pleaded to without office as such Secretary of War until the 2d day of March, 1876. objection on the part of the defendant; that it is before the Senate as Now, if the Senate will be good enou~h to observe the plea. which an allegation in the cause presented by the authority of the House; was put in by the honorable counsel, it 1s this: and whether it should or should not have been originally inserted in the articles becomes now of no consequence. That this honorable court ought not to have or take further co!!Dizance of the Mr. CONKLING. Mr. President, I should like under the rule, said articles of impeachment exhibited 1\Dd presented ap:ainst biro 'by the Houl'4e of Representatives of the United States, because he says that before and at the time through the Chair, to make an inquiry of the manager now on the when the said Houae of Representatives ordered and directed that he, the said floor. I would like to have read from Blount's case, if that was the Belknap. should be impeached at the bar of the Senate, and at the time when the case to which the manager referred, or from the case of Chase, if that said articles of impoaehment were exhibited and presented a~~inst him, the said was the case to which he referred on Friday, the passage in the report Belknap, by the said House of Representatives, be, the said Bemnap, was not, nor in which it appears that the Senate held the affirmative to be with bath he since been, nor is he now, an officer of the United States. the managers, regardless of the nature of the issue, regardless of the In that replication there is an ambiguity. If the respondent had q nestion whether they were the propounding party in respect of that said that at the time of the presentment of the articles of impeach- particular issue or not. ment he was not a. civil officer it would have presented the naked 1\Ir. Manager HOAR. Mr. President, I desire to express my grati- qtiestion of jurisdiction without ambiguity or difficulty, and the tude to the h-.morable Senator for putting that quest.ion, because it House would have demurred; but he inserts the word" before." That reminds me of what I had moant to say if I was called upon to address may have one of two meanings. It may amount to an allegation that the Senat.e again t.his morning. he was never, before the original articles of impeachment were pre- Blount's case was the case to which I referred. In the haste of re- sented, a civil officer of the United States. I do not say that t.hat plying to the learned counsel I usod the phrase, "the rule settled by astnte purpose waa in the mind of the counsel who drew the pleading. itself for the Senate in the first case which came before them." In If we bad demurred simply, if we had made a simple demurrer, the point of fa.ct, it appears upon the report that the order of proceeding respondent might then have come before the Senate and argued that was settled by the four distinguished counsellors who took part in it he had responded to the articles that he never was a civil officer of by an agreement, and there is no vote or other express action of the the United States at any time before they were presented, and we Senate to be found; and it was my purpose, on the suggestion of one should have been left to a discussion upon the verbiage of the article of my honored associates, to have made that explanation to the Senate and to the danger of being excluded from court by a blunder in not at this time, bn tit passed from my mind. But Blount's case seems to me giving the proper construction to the defendant'slangna~e. Accord- to be a very significant and important authority, for it is not credible ingly we set up no new matter but we simply re-assign, m regard ·to that those four lawyers, four as able lawyers as the bar of the United the fact which is left doubtful on the expression of the defendant's States afforded at that time, Mr. Jared Ingersoll, .Mr. Bayard, Mr. plea, what we said in our original articles; in other words, we say, Harper, and 1\Ir. Dallaa, would have conceded so important an advan- I "We mean to say that you were a civil officer of the United States tage to the managers on the part of the Honse of Representatives until the 2d of March ; and therefore, that being the meaning of our without any equivalent, unless they had understood the practice to original article, your plea. presents no legal or proper response." It be so. is a case therefore of a ro-a.ssignmen t or a re-affirmation of a fact ori~­ Mr. CONKLING. That was a demurrer by the House, though. nally set forth in a mode in which the meaning of the original alle- Mr. Manager HOAR. That was a demurrer by the House to a plea gation cannot be questioned, and saying that therefore, that fact being on the question of jurisdiction, so that the Senate, and the Senate considered, the plea of the respondent shows no answer in law. Thus without any objection, allowed the practice as settled by the counsel we have presented to the Senate in substance an issue made here in among themselves to be adopted and acted on. It is not, however, this way: a. statement of the original articles that the defendant was strictly accurate to say that the Senate settled the practice. a civil officer of the United State.~ down to the 2d day of .March, re- :Mr.EDMUNDS. Mayia-sk(throughtheCbair)them:magerwhether t affirmed in the replication; a statement by the defendant that before the House in the Blount case, being the demurring party, were not en- these articles were presented he had ceased to be such civil officer; titled on ordinary judicial principles and practice to go forward with- and a statement on the part of the House of Representatives that out relying upon their privilege Y that last allegation is no defense to the charge; in other words, a Mr. Manager HOAR. Undoubtedly. Our replication is a copy of simple demurrer to what is pleaded and well pleaded in the original the Blount replication. article; and on such demurrer by the invariable rule of courts both Mr. MeDON ALD. I was about to ask if the replication is not a of law and equity the party sustaining the demurrer has the affirm- copy of what is termed the demurrer in that case f ative. .Mr. :Manager HOAR. It is. Upon the larger question (setting aside now the pleadings and Mr. EDMUNDS. I a...~k the manager to read the replication in the taking the substance of the issue upon the question of jurisdiction) Blount case and the replication in this case. the plaintiff always has the affirmative. If the respondent had con- Mr. Manager HOAR. I have not here the Blount case. tented himself with introducing a naked plea of "not guilty," he Mr. COCKREL.L. I can furnish the managers with the case if they , ,• could have availed himself of his objection to the jurisdiction upon desire it. [Sending a book to the manacrers.] that plea, and it would have required the judgment of the court to .Mr. LOGAN. Before tlie manager rea& that, I desire to ask a. ques- be given against him orin his favor, without setting up the fact at all, tion merely to have him give his comments in l"eference to it. The because the original articles do not all~e that at the time of the pre- replication on the part of the House to the first plea. of the respond- senting of the articles he was a civil omcer of the United States. ent is claimed by the managers to be a demurrer. Then there is a And it may be proper to say one further word in conclusion. I demurrer by the respondent, and the managers follow with their understand, in accordance, as was suggested in the very significant joinder in demurrer to the demurrer of the respondent. I ask whether question put I think by the honorable Senator from New York that by that joinder in demurrer to the respondent they do not waive that the true rule of pleading in impeachment cases is this: The House which they claim to be their demurrer in the replication to the first of Representatives present articles setting up the substance of the plea of the respondent f I should like to hear the manager on that transa.ction on whi"h they rely, not in the form of an indictment or point. of a bill in equity or of a civil declaration certain to a certain intent Mr. :Manager HOAR. I am not sure that I correctly apprehend the in general, but setting forth the substance of a transaction. It is not force of the question of the honorable Senator from Illinois; but if I necessary to give dates. Yon may say "on or about the time." It do, with all due respect, I can express my opinion by saying that it is not necessary to give legal result-s or intendments. Then the de- refers rather to what the successive steps in the pleading are labeled fend:mt comes in and in his answer either denies the whole matter if by the parties, than to what they re:.1.lly amount to. The substance there was no such transaction as is set. up, or if there waa a transaction of this issue is this: The Honse of Representatives say the defend- of the kind but an innocent and not a guilty one, with certain dif- ant did certain acts as Secretary of War, and remained Secretary of ferent and other circumstances, he tells the story as he alleges it to War until the 2d day of March. The defendant replies, " I was not be, setting up at the same time all special suggestions of law or of Secretary of War when you presented your articles, OJ.: before," leaving defense of fact on which he relies; and the pleadings are made up in it ambiguous whether he means never before, or that there was a time that way by a joinder of issue. I do not think it is in the power of before. when he e further cognizance of this suit and of the said impeachment, Mr. SARGENT. Rule 18 provides: :m'il whether hebthe said William, to the said articles of impeachment, soaR afore- said preferre£1 y the House of Representatives of the United States, ought to be If a Senator wishes a question to be put to a witness, or to offer a motion or compelled to answer. ot·der-except a motion to adjourn~it shall be reduced to writing and put by the JARED INGETISOLL. presiding officer. · A. J. DALLAS. The PRESIDENT pro tempore. The Cbair formerly ruled that de- bate was out of order; but he does not consider tho manager a wit- Mr. Manager HOAR. I now ask the Secretary to read, as was re- ness in the case. Senators asked unanimous consent to put questions quested by the Senator from New York, the first plea in the present to the manager to draw out information on the subject which he is case. discussing, and by unanimous consent the Chair allowed it. Mr. CHRISTI.A.NCY. I wish to submit a question in writing. Mr. SARGENT. I can see that if we indulge in questioning coun- The PRESIDENT pro tempore. The manager has desired to have sel on the respective sides at any length a great deal of time will be a plea read before any other business is transacted. It will be first consumed, and perhn.ps the result will be much more unsatisfactory read. than even if we allowed general debate. I think I shall feel called The Chief Clerk read as follows : upon hereafter to insist that it be not allowed. The PRESIDENT pro tempore. If the Senat.or objects, the Chair will rule it out of order. l .In the Senate of the United States sitting as a court of impeachment. THE U~lTED STATES OF A_)ffiRICA ·vs. WILLIAM w. BELK.~AP. Mr. Manager HOAR. Mr. President and Senators, I have simply The replication of the House of Representatives of the United States, in tbeirown one thing to say in conclusion, and that merely a summing up of behalf and also in the name of the people of t.h e United States, to the plea of what has been already said. The substance of this whole matter, William W. Belknap to the articles of Impeachment exhibited by them to the stripped of its form, is an affirmation by the party presenting articles Senat.e against the said William W. Belknap. of impeachment to the Senate that the Senate has the jurisdiction, The House of R.epresentatives of the United States, pro eculing, on behalf of and on that matter the House always has the affirmative and the themselves and the people of the United Stated, the articles of im"P,eachment ex- hibited b:y them to the Senate of the Unitell States against said William 'V. Bel- 1·ight to reply. No Ilea was necessary of any kind to raise it. It is knap, reply to the plea. of said William W. Belknap, and say that tho matters involved in the fina determination of the issue. alleged in the said plea. are not sufficient to exempt the said William W. Belknap In the next plaee; upon the pleadings as they stand the affirmative from answering tbe said articles of impeachment, because they say that a~ tho of the issue menalties. In proceedings of this description each house partici- which I send to the Chair. pates as alegisla.tive body. and the concurrence of both is necessary. The person, The PRESIDE~T pro tempm·e. It will be reacl. against whom the bill is directed, is tried, so far as any trial takes place, first by tlie one house and then by the other, and if the bill passes is foun(l guilty by both. The Secretary read aa follows: There is also another form of proceeding, in which one house, the Commons, ap- Do the managers claim to reply in the discussion of all questions, pears solelv in the charncter of complainants or accusers, and the other, the Led in other judicial of Wisconsin, Caperton, Christiancy, Cooper, Davis, Dennis, Eaton, Edmunds tribunals. Tho mana~ers for the Commons are bound to confine themselves to the Ferry, Frelinghuysen, Goldthwaite, GQldon, Howe, Kelly, Kernan, Key, Mo::Cree.ry charges contained in the articles of impeachment. McDonald, lrcMiThm, Merrimon, Morrill of Main~. _Morrill of Vermont, N orwoou, Oglesby, Patterson, Ra.ndolJlb, Robertson, Saulsbury, Sherman, Stevenson, Thur- Reference is here made, in a note, to the trial of Warren Hastings. man, Wa.dloigh, Whyte, and Wrigbt-40. Burke, in one of his philippics, uttered language importing charges · NAYS-Messrs. Cameron of Pennsylvania, Conklin", Conover, Dawes, Hamil- of crime not mentioned in the artic.les of impeachment. Hastings, by ton, Hamlin, Harvey, Inga1ls, Jones of Florida, Logan, ~xey, Mitchell, Paddock, Sar,~;ent, Spencer, \Vest, Winclom, a.n d Withers-18. petition, informed the Commons, and inquired whether they intended NOr VO rL.NG-Messrl!. Bogy, Bruce, Clayton. Cockrell, Cragin, Dorsey, English, making such accusation against him. 'l'he Commons made the mat- IDtchcock, Jones of Nevada, Morton, r.ansom, Sharon, and Wallace-13 • TRIAL OF WILLIAM W. BELKNAP. 27 So the motion was agreed to ; and the Senate (at two o'clock and and I should suppose for the court also, to let the argument come after twenty-one minutes p. m.) retired to t.he conference chamber. that adjournment. That would give us a little additional time for On the question to agree to the motion of Mr. :McDosALD, preparation which on the part of the defendant we really need. We After debate, had all been so much occn pied with other engagements that until The question being taken by yeas and nays, resulted-yeas 20, nays Monday I believe none of us had sat down to a. preparation for the 34 ; as follows: argument of this question. Its importance both to this case and to YEA~Messrs. Bayard, Caperton, Cockrell, Cooper, Davis, Dawes, (}Qldthwaite, the public, if it is to stand a-s a ruling upon a great constitutional (}Qrdon, Jones of Flol'ida, Kelly, Key, McCroory1 McDonald, Norwood, Ransom, question, certainly demands that we should give it a more thorough Saulsbnry, Stevenson, Thurman, Wafiace, and Withers-20. preparation than we have been able to do in two or three days. Now, NAY~Messrs. Allison, Anthony, :Boutwell, Burnside, Christiancy, Conkling, as there seems to be a probability at least that the Senate will adjourn, Dennis, Edmunds, Forry, Frelinghuysen, Hamilton, Hamlin, Harvoy, Hitchcock, I submit to the court the propriety of our commencing the argument Howe, Ingalls, Logan, McMillan, Maxey, Merrimon, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Oglesby, Paddock, Patterson, Robertson, Sargent, after the Senate resumes its session. Spencer, Wadleigh, Wbyte, Windom, and Wright-34. .Mr. Manager LORD. Mr. President and Senators, we prefer of NOT VOTING-Messrs. :Bogy, :Booth, Bruce, Cameron of Pendsylvania, Cam- course to go on with this argument if we can have a consecutive eron of Wisconsin, Clayt~n. Conover, Cragin, DorRey, Eaton, English, Jones of Nevada, Kernan, Randolph, Sharon, Sherman, and West-17. hearing from day to day; but the case is somewhat different if the argument is to be broken into by the adjournment of the Senate- So the motion was not agreed to. and I confess it looks very much a-s though it would-because from On motion of Mr. BOUTWELL, it was my experience here on Saturdays and Mondays I do not think very Ordered, That four managers on the part of the House of Representatives may much would be done on those days in the presence of the great cele- be allowed to submit arguments upon the question whether the respondent is bration to which reference has been made. And therefore, on behalf amenable to trial by impelW}hment for acta done aa Secretary of War, notwith- of the managers, I say that unless it is certain that this court can sit standing his resignation of said office, and whether the issues of the fact present- from day to day until the arguments are all in, the managers prefer ed in the pleadings are material, and also whether the matters in support of the jurisdiction alleged by the Honse of Representatives in the pleadings subsequent that there should be an adjournment. to the articles of impeachment can be thus alleged if the same are "not averred in Mr. CARPENTER. I ask for an order, Mr. President, to that effect • said articles. that the further trial of the case be postponed to-- On motion of Mr. CONKLING, the Senate returned to its Chamber. The PRESIDENT pro tempore. 'Vill the counsel reduco his motion At two o'clock and :fifLy-three minutes p.m. the Senate 1·eturned to to writing! the Senate Chamber and the President pro tempor~ took the chair. The motion was reduced to writing, and read by the Secretary, as The PRESIDENT p1·o tempore. The pi:esiding officer is directed to follows: s~1.te that the motion to reconsider the vote by which the order of Ordered, That the further trial of this cause be postponed nntil Monday, the 15th argument was made is overruled, and also to state t.hat an order is of May. made granting tho request of the managers on the part of the House Mr. SHERMAN. Mr. President, I submit an order. that four of the managers be permitted t.o argue the case. The PRESIDENT pro tempore. The ordor submitted by the Sona- Mr. THURMAN. I move that the Senate sitting for the trial of tor from Ohio will be read. the articles of impeachment adjourn until Thursday next at haJ.f pa,st The Secretary read as follows : twelve o'clock. Ordered, That this court adjourn nntil Monday, May 15, at twelve o'clock and The motion was agreed to; and the Senate sitting for the trial of thirty minutes p.m., and that the argument of the question of jurisdiction he con- the impeachment of W. W. Belknap adjourned until Thnr:stlay uext fined to eight hours on each si{le. at twelve o'clock and thirty minutes p. m. The PRESIDENT p1·o t{Jmpor·e. The question is on the motion pro- posed by the Senator from Ohio. Mr. SARGENT. Is an amendment in order T The PRESIDENT pro tempore. It is. Mr. SARGENT. I move to strike out the words of limitation. THURSDAY, May 4 7 1876. The PRESIDENT pro tempore. The Senator from California will redt1ce his amendment to writing. The PRESIDENT pro tempore having announced the arrival of the The amendment wa,s reduced to writing and read, as follows : time to which the Senate sitting for the trial of the impeachment hall Strike out these words: "and that the argument of the question of jurisdiction adjourned, · be confined to eight hours on each side." The. usual proclamation wa,s made by the Sergeant-at-Arms. The PRESIDENT pro tempore.. The first question will be on this The respondent appeared with his counsel, Mr. Blair, 1\fr. Black, amendment to the order proposed by the Senator from Ohio. and Mr. Carpenter. The amendment was agreed to. The managers of the impeachment on the part of the House of The PRESIDENT pro tempore. The question recurs on the order of Representatives appeared in the scats provided for them. tho Senator from Ohio as amended. The PRESIDENT pro tem.pore. '!'he Chair understands that there Mr. HOWE. I ask for the yeas and nays. is a Senator present who has not been sworn. The Secretary will call The yeas and nays were ordered. { the names of absentees who have not been sworn. The PRESIDENT p-ro tempore. The Secretary will report the order The Chief Clerk called the names of the Senators who had not been as amended. ~ heretofore sworn; and the President pro t-em,pore administered the oath to Senator JolL.~STON. The Secretary read as follows : Ordered, That this court adjourn until Monday, May 15, at twelve o'clock and The PRESIDENT pro tempore. The Secretary will give the nsual thirty minutes p. m. notice to the House of Reprcsentati ves. The minutes of the trial-day of Monday last will now be read. The yeas and nays being taken, resulted-yeas 21, nays 40; as fol- The Secretary read the journal of the proceedings of the Senate lows: sitting for the trial of the impeachment of W. W. Belknap of Mon- YEA~Messrs. Anthony, :Bogy, Burnside, Caperton, Clayt~n. Conover, Cooper, dav, May 1, 1876. Davis, Dennis, Ferry, Goldthwait-e, Hamlin, Howe, Johriston, Kelly, Mitchell, Morrill of Maine, Patterson, Randolph, Sargent, and Windom-21. The PRESIDENT pro t~ntpo1·e. The Senate is now ready to proceed NAY~Messrs. Allison, :Booth, Boutwell, Bruce, Cameron of Pennsylvania, Cam- with the trial. The Secretary will report the two orders made by the eron of Wisconsin, Christiancy, Uockrell, Conklin/!, Dawes, Dorsey, Eaton, Ed· Sonate. munds, Freling~uysen, Hamilton, Hitchcock, Ingalls, Jones of Florida, Kernan, The Secretary read as follows : Ke.v, Logan, McCreery, McDonald, McMillan, Maxey, Merrimon, Morrill of Vermont~ Norwood, Q~lesby, Paddock, Ransom, lli>bert.son, Saulsbury, Sherman, Ordernd, That the Senate proceed first to hear and determine the question whether Thurman. Wadleigh, wallace, Whyte, Withers, and Wrio-bt-40. W. W. Belknap, the respondent, is amenable tD trial bv impeachment for ants done NOT VOTIN&-::-Messrs. Ba.yarcf, Cragin, English, (}Qrd'on, Harvey, Jones of as Secretary_of War, no~withstanding his re_signation of said office; and tl!at the Nevada., Morton, Sharon, Spencer, Stevenson, and West-11. managers and counsel m such argument discuss the question whether the issues The PRESIDENT pro tempore. The Senate declines to make tho of fact are material and whether the matters in support of the jurisdiction alleged by the House of Representatives in the pleadings subsequent to the articles of im· proposed order. Senators, the counsel on the part of the respondent peachmentcan be thus alleged if the same aro not averred in saiensably necessary, but tbat the bouse ma:v proceed without one. The 22, nays 38 ; as follows : articles of impeachment are a. kind of bills of inilictment, found by the Honse of Commons and afterward tried by tho Lords; who are in cases of misl1emeanors c-On· YEAS-Messrs. Bogy, Caperton, Cln,yton, Conover, Cooper, Davis, Dennis, Gol£1. sidcrcll not only as their own peers, but as the })eersof the whole nation. '!'his is a. thwaite, Hamlin, Howo, Kelly, Mitchell, Morrill of Maine, Pat.terson, Randolph, cnstom derived to us from the constitution of the ancient Germans, who in their Ransom, Sargent, Saulsbury, 'sherman, Thurman, Whyte, anll Windom-22. great councils sometimes tried capital accusations relating to tho public: "licetapud NAYS-Messrs. Allison, Booth, Boutwell, Bruce, Burnsido, Cameron of Pennsyl- consilium accu11are guoque et discrimen capitis intender e." And it has a peculiar pro- vania, Cameron of Wisconsin. Christiancy, Cockrell. Conkling, DawN!, Eaton, Ed- priety in the Eughsh constitution; which has much improved upon the ancwnt munds, Ferry, Frelinghuysen, Gortlou, Hamilton, Hitchcock, Ingalls, Job.nstou, model imported hither from the continent. Jones of Florit he was in such abuse their delegated powers to the inj nry or rnin of the community, anti at the same ca e not to be prosecuted. The second question is whether all the time in offenses not properly cognizable lJeforetbeordinary tribunals. The influence of 1>-uch delinque11ts, and the naturo of such offenses, may not unsuitably en!?Uge the allegations of fact which are necessary to maintain jurisdiction must authority of tho highest court,, and the wisdom of the•sagest assembly. 'l'ne Com- be alleged in the articles, or wllether they may be supplietl in sou- mon~1 therefore, as tho granme to report on the 6th try, is this a place, which would tolerate such an abuse f If this be of August, added the article as an article providing for the punish- the case, who would be safe that ever held an office 7 The great offi- ment of the accused which now stands in the Constitution, disquali- cers of this Government, the heads of Departments, are ob1iged to fied him from holding office upon impeachment and conviction. In exercise their powers in a large degree by subordinates. If there is no part of the debate, from the beginning to end, was that a subject no limitation upon impeachment to persons boldin~ office when a po- of discussion. And it has in fact no relation to the subject, which !itical adversary is installed in power, he may assail any man whom was simply whether the Executive should be .removed by impeach- It may be thought necessary to assail for party or personal causE\. ment. It is but an addition t-o the judgment, which might or might We know, and it is one of the saddest commentaries upon poor hnmau not be added if impeachment should take place. nature, that the subservient sycophant who basks in the smile of The cuse of Blount, to which I have adverted, determined that the power is ever ready to prostrate himself before any other power which disqualification clause did not enlarge the category of persons subject may succeed, and is ever ready to desert and betray t.he unsucce sful. to impeachment. If the power given to adjudge disqualification How eager are many who were obsequious enough to the defend- could have that effect, the effect would be to subject anybody to im- ant within the year now to rush forward to aid in his destruction! peachment, and the jurisdiction would be unlimited, which, as before How they press forward to make their peace with his enemies now said, the case of Blount and the whole philosophy of the Govern- installed in office! How easy it would bQ for experts in the great ment negatives. Departments to suppress part of the truth and discolor what may be I call the attention of the Senate to extracts from Judge Story's preserved, so as to pervert an honorable act to the destruction of men Commentaries. In volume 1, section 803, Story says : who may have held positions in them. If this court is to bo opened It would seem to follow that the Senate on the conviction were bound in all to the persecution and prosecution of private men, and party passion cases to enter a judJ,nnent of removal from office, though it has a. discretion a~ to and personal bate are to be invited to set themselves here upon pri- inflicting the punishment of disqualification. If, then, there 'fr.tUit be ~judgment vate men because they may ha"Ve been obnoxious officers, we haYe not of removalfrom ojfice, it would seem to follow th~t the Constittttion contemplat.m that the party was ~Still in o~ at the time of impeachment. If he was not, his offense yet passed by the days of tyranny. Man's nature has not changed. waa still liable to be tried and punished in the ordinary tribunals of justice, and it It is only by the limitations of constitutions and powers that a. limit might be argued with some force that it would be a vain exercise of authority to and a check can be put upon his malignant passions. If this Senate try a delinquent for an impeachable offense when the most important object for can be tempted to break down in moments like this the wise limita- which the remedy was given waa no lon~er necessary or attainable. And although a judgment of disqualification might still be pronounced, the language of the Con· tions which our great fathers put upon this sort of prosecution, they stitution may create some doubt whether it can be pronounced without being will have found an easy way to the oppression of the innocent by the coupled with a removal from office. There is also much force in the remark that hand of power. an Impeachment is a proceeding purely of a politicnl nature. It is not so much From the remarks to which I have called the attention of the Sen- desii!Ded to punish an offender as to secure the State against gross official misde- moonors. It touches neither his person nor his property, but simply divests him ate it will be seen that a large body of the ablest men who sat in this of his political capacity. convention were opposed to impeachment altogether, seeing in it a At section 790 he says: machinery of oppression. What did they suggest as a means and a From this clause it appears that the remedy by impeachment is strictly confined sufficient means to meet the evil of abuse and corruption in office f to civil officers- Short terms of office, in order to let the people pass upon these sup- That is the point I have been considering- posed delinquent,s. That was the theory of Gouverneur Morris, Charles Pinckney, and many other able men in the convention which formed of the United States. including the President and Vice.President. In this respect it differ!' materially from the law and pra~tice of Great Britain. In that kingdom the Constitution. Their hand is seen in the provisions which limit • all the King's subject'!!, whether peers or commoners, 1\re impeachable in Parlia- this prosecution to persons in office. It was intended to permit those ment, though it is asserted that commoners cannot now be impeached for capital who were not willing to stand the brunt of party excitement for the offenses, but for misdemeanors only. Such kind of misdeeds, however, aa pecu- moment to retire and wait for more auspicious seasons to vindicate liarly injure the commonwealth by the abuse of hi~h offices of trust are the most proper and have been the most usual grounds for this kind of prosecution in Par. themselves before the people. liament. There seems a peculiar propriety, in a republican government ~t least, in eon- When Andrew Johnson was being pursued here and when articles fining the impeaching power to persons holding office. In such a. government all the were found against him it was not for any crime; it was because he citizens are equal and ought to have the same security of a trial by jury for all honestly adhered to the law and the Constitution as delivered by the crimes and offenses laid to their charge when not holding any official character. fathers of the Government. Mr. CONKLING. From what do you read f Suppose that he bad chosen to retire and appeal to the people Mr. BLAIR. Story's Commentaries on the Constitution. Judge against the Senate and say, "I am adhering to the Constitution and Story further says : • my habitual enemies are seeking to overthrow it., and desire to sac- To subject them to impeachment would not only be extremely oppressive and ex- rifice me because I oppose them;" could the Senate have gone on pensive, but would endan_ger their lives and liberties by exposin~ them against and disqualified him from holding office and thus taken away his their wills to :persecution tor their conduct in exercising their political rights and power of appeal to tho people, and thus have frustrated the design of privileges. Dear as the trial by jury justly is in civil c!l.ses, its value as a protec- tion against the resentment and violence of rulers and factions in criminal prosecu- the framers of the Constitution that a man might retire when faction tions makes it inestimable. It is there, aml there only, th:>-t a citizen in the sympa- triumphed and appeal to the patriotism of the people. The views thy, the impartiality, the intelligence, and incorruptible integrity of his fellows of constitutional power which he then adhered to are believed to be impaneled to try the accusation may indulge a well·founded confidence to sustain and cheer him If he should choose to accept office, he would voluntarilyincurall sound by a great portion of the people~ (and yet they were regarded the additional responsibility growing out of it. If impeached for his conduct while as sufficient to justify his impeachment by almost the requisite num- in ofiioo, he could not justly complain, since he waa placed in that predicament by ber of Senators to convict and disqualify him.) I think it a fair con- his own choice; and in accepting office he submitted to all the consequences. In- struction of the Constitution that be might have resigned pending deed, t11e moment it was decided that the judgment upon impeachment should be limited to removal and disqualification from office, it followed as a Il!l.tural result the impeachment, and thus have escaped liability to it, and been in a that it ought not to reach any but officers of the United States. It seems to have condition to make an appeal to the people, which Pinckney and Mor- been the original ollject of tha friends of the National Government to confine it to ris believed to be the safer tribunal, and hence the form of language these limits; for in the original resolutions proposed to the con>ention and in all adopted, and which admits of this action as not inadvertently adopted. the subsequent proceedings the power waa expressly limited to national officers. The gap was purposely left open. We are not arguin~ now any- I call the attention of this court to this carefully weighed language thin~ except in reply to what is asserted here as a reasonmg. of the most authoritative commenta.tor upon our Constitution. I It IS argued that if a resignation should be permitted under such have already called attention to the proceedings in the convention circumstances the people would be defrauded out of their rights to upon which he comments, showin purely imaginary ill which can arise Mr. ED.MUNDS. I move that the Senate sitting for this trial take from withholding the hand that would disfranchise a citizen and dis- a recess for tnirty minutes. able him from vindicating himself in a calmer moment. The motion was not agreed to. ~Judge Story says, from beginning to end of the debates on the Mr. WHYTE. I move that the Senate sitting as a court take a Constitution there was no proposition considered but one of removal, recess for fifteen minutes. and when the resolutions reported by the committee of the whole and The motion was agreed to; and (at two dclock and thirty-five min- the plans of Pinckney and Patterson, neither of which contained any utes p. m.) the Senate sitting for the trial of the impeachment took a provision for disqualification, were on 20th of July sent to the com- recess for fifteen minutes. · mittee of detail, and that committee reported the disqualifying clause The PRESIDENT p·o turnpo1'e (at two o'clock and fifty minutes p.m.) as the judgment to be rendered, they did not intend to disregard the resumed the chair. known will of all sides of the house and report a provision inconsist- Mr. SARGENT. I move a call of the Senate, as there is not a quo- ent with their declared wishes. The committee of detail knew that the rum present. convention did not contemplate any one not actually in office. Hence The PRESIDENT pro tempore. The call will proceed. the disqualifying clause was not intended to give any such power. The Secretary called the roll, and 53 Senators were found to be That was the limitation which the whole debate shows was in the mind present. of every member of the convention. Hence you are not now asked to The PRESIDENT pro tempore. The managers on the part of the contravene the ideas of the framers of the Constitution in dismissing House of Representatives will now proceed with the argument. Sen- this proceeding. ators will please give their attention. I pass now to the second branch of the question presented l)y the Mr. Manager LORD. Mr. President and Senators, if I bad any per- order of the Senate, and that is on the materialit.y of the allegations sonal desire in the matter of postponement beyond the wish that this of the second replication and of our rejoinder. We did not regard a,rgnment should not be "divided in twain, it was that the managers the replication as tendering a material issue, and for that reason we might have some more time to condense their positions and authori- might, and perhaps ought to have, demurred; but having, as we ties i but, as it is, I shall be compelled to read more from books than believed, a conclusive answer to it in the rejoinder which we made, I otherwise should. In the first place I desire to call the attention we chose that course, prefetring that in this maneuvering fo1' position- of this court to some of the positions taken by the learned counsel . that is all it amounts to-our friends on the other side should not have who has just addressed you. First, as to the Cardozo case, I think the advantage of us. altogether too much weight has been given to it. It occurred in the It needs no argument to show that if only persons holding office are State in which I reside; and I think that the Senators from that amenable to impeachment it must be charged in the articles that they State will concur with me when I say that the report of the judi- hold office; and describing the defendant as "late Secretary of War'' ciary committee in the assembly of that State was not regarded as at does not bring him within the description of persons given in the Con- all conclusive upon the question of jurisdiction. stitution as amenable to impeachment. It would not be sufficient for Then, again, the counsel called your attention to various authori- them to have alleged that "the defendant does not now hold office, ties or suggestions that an impe..1ochment of a citizen or the impeach- but was an officer at one time, and resigned in order to avoid impeach- ment in fact of any person might prove ruinous to that person. I ment.'' That would not have beeu sufficient certainly, for, if so, an fail to see what that ha-s to do with the question of the jurisdiction ordinary court of justice might entertain jurisdiction of a person who of this Senate, and, therefore, I proceed in the line of my argument had not been served with process upon an allegation that the defend- to call your attention to the pleadings in this case. Before that, how- ant, hearing that it was intended to serve process upon him, had incon- ever, as the counsel on the other side did not state precisely the ques- tinently taken himself out of the juriscliction of the court. Thero is tions before this court, as I have understood them, I crave leave to no imaginable difference betwt>en the cases. We heard that they in- refer to the order under which this argument is proceeding: tended to impeach us, and, as the Constitution limited the prosecution Ordered. That four managers on the part of the House of Representatives may to persons in office, we stepped over the line, just as a citizen of the be allowed to submit arguments upon the question whether the respondent is amen- able to trial by impeachment for Mts done as Secretary of War, notwithstanding United Sta.tes who happens to be in New York, and learns that some- his resignation of said office, and whether t-he issues of the fMt presented in the body there wants to serve him with a writ, betakes' himself to New pleadings are material, and also whether the matters in support of the jurisdiction Jersey. alleged by the House of Repre. entatives in the pleadings subsequent to the articles A man bas a right to avoid law-suits. The defendant here had a of impeachment can be thus alleged if the same are not averred in said articles. right, however innocent he mi~ht have been, to avoid the ruin which For the proper consideration of these questions it is e:xpedien t that the law-books tell him attend mvariably the prosecution of a private at this stage of the case I call your attention precisely to what the person by this overwhelming power. No sensible man, unless he bad issues are. I do not intend to read the pleadings in full, but only ample means, would undertake a con:Bict of that sort if he could avoid such parts of them as may be necessary for the understanding of this it and character enough to stand before the country to justify his ac- point. Article 1 presents as follows: tion. But the Supreme Court of the United States have settled again That William W. Belknap. while he was in office as Secretary of War of the and again an analogous question, that a man residing in one State United States of Americ.a, to wit, on the 8th day of October, 1870, had the power and authority, under the laws of the United States, as Secretary of Warns afore- may convey his property to persons outside of it to give a court juris- said, to appolnt a. person to maintain a trading establishment at Fort Sill, a mili- diction, provided he does it in good faith. That principle was decided tary post of the United States; that said Belknap, as Secretary of War as afore- in the caso of McDonald VB. Smalley, 1 Peters, 120; also Smith t:B. said, on the day and year aforesaid, promised to appoint one Caleb P. Marsh to Kernochen, 7 Howard, 198; Jones vs. Lee, 18 Howard, 76; Briggs VB. maintain said trading establishment at said military post. French, 2 Sumner, 252. * * * * * That thereafter, t~ wit, on the lOth day of October, 1870, said Belknap, as Secre. The court also holds in those cases that a man may cha~ge his resi- tary of War aforesaid, did, at the instance and request of said llil'l:!h, at the city dence from a State in order to assert his title to property within that of Washingt()n, in the District of Columbia, apJ>()int said John l:>. Evans to main- State in the Federal co~ against persons holding it adversely, pro- tain said tril.ding establishment at Fort Sill, t-he milit.ary J>()St aforesaid, and in con- vided he changes his residence in good faith. Does anybody doubt sideration of said appointment of said Evans, so made by him as Secretary of War as aforesaid, the said Belknap present such furthfr articles as the House of sintiliter. And in regard to the main question presented by the second Commons or the House of Representatives might see fit to present. replication-not the most conclusive quootion perhaps, but it may be I assume, therefore, in this case that it will be held by the Senate that called the main question of the second replication-namely, whether unquestionably we might have presented further articles; and there- this defendant has the ril-!ht to evade t.he Constitution and defeat its fore, even if we had stated another offense, the matter would-if is- operations by his own will, he confesses and avoids. He aomits on sue bad been taken-have been before this conrt. If we had charged the record that ho resigned for the purpose of evading this impeach- upon him a violation of duty in regard to some other post-tradership, ment. It is true he says he was not guilty, and resigned for other pur- if we had charged in the replication any other high crime or misde- poses; but that is utterly immaterial to this question, because he does meanor, and he, instead of objecting, bad joined issue, that question admit, I repeat, that he resigned for the purpose of defeating this would be fairly before this court, just as much as though presented impeachment. _ by additional articles. But we are not in this position, and need not I will not stop, Senators, to answer thA suggestion of counsel, that go to this length, because, I repeat, our posit,ion is that, he having the chairman of that committee had the right, in behalf of this nation, challenged the jurisdiction of this court, we had the right to state and in behalf of the House of Representatives of the United Rtates of any fact in aid of that jurisdiction. This principle is as old as the America, to make a contract with the defendant that if he would get common law. It is not a departure ; it is not a new assignment, as out of the office of Secretarv of War before a certain hour he should the learned counsel suggested; it has no relation to a departure ; it not be impeached for these.high crimes and misdemeanors, which, if has no relation to a new assignment. It is simply the st~tement of these articles are true, had polluted him for years, and made him of facts, which could always have been stated in all the ages of the all men that have ever appeared in a court of impeachment the most common h.w, in aid of a fact alleged in the original articles, and unfit to hold civil office. I deny such a right. I am astonished that which the other side disputes. counsel of respectability and of high standing should stand in this Mr. MITCHELL. Mr. President, I shoultllike to make an inquiry court and assume for a moment that tile chn.irman of a committee had of the manager which I send to the Chair. a right to make any such infamous contract; but that is one of the The PRESIDENT pro tempore. The Senator from Oregon propounds issues. I was surprised the more to hear it stated here, because it is an inl}niry which will be read. one of the issues. The allegation of such agreement we absolutely The Chief Clerk read as follows: deny ; we deny that any stwh contract 1vas made. By our surrejoinder Does tho doctrine of the law that the plaintiff may introduce new we t.ender an issue upon that question, and it is accepted by the other matter to explain and fortify the position taken in the declaration side by filing their si1niliter. apply in criminal cases T Reference has beeu made also to the fact that the Constitution Mr. Manager LORD. It applies in casee of impeachment. This is leaves the defenclan t subject to an indictment, and that an indictment partly a civil and partly a criminal proceeding. In all the modes of may .be found against him. The two proceeuings, Senators, are en- proceuure, this is a civil proceeding. In regard to the attitude of the tirely and absolutely distinct. One has nothing to do with the other, defendant and the punishment to be pronounced upon him, it may be for the statute to which the counsel referred (section 1781 of theRe- called a criminal proceeding; and perhaps I concede too much in say- vised Statutes) does not pretend to change the law or rules of impeach- ing this, because some writers have gone so far as to affirm that in ment. no sonse is the removal and disqualification directed and allowed by Now I wish to call the attention of this tribunal t.o another con- the Constitution a punishment ; they say these sentences simply pro- sideration; and that is that on this question you aro not to give the tect the people against themselves and against a bad and corrupt defendant the benefit of any of those rules wliich are provided for officer after he is impeached; the Constitution thrusts such a one out criminal cases. Assuming, for the sake of the argument, that be is of his office upon his conviction; and when he has been guilty of accused as a criminal and that this proceeding is a. criminal proceed- crimes and misdemeanors which show that be is polluted, that he is ing, so that when we get to the merits he may say that ho is entitled intrinsica,l ly dishonest, the Constitution permits the Senat.e to say to the presumption of innocence, that h13 is entitled to be defended by that he shall be forever disqualified. Therefore we might say that coum;el-and certainly he has illustrious counsel-that ho would be this is not a criminal proceeding either in the sense of trial or of pun- entitled to the right of challenge if before a jury, and is entitled to ishment; but inasmuch as replications and rejoinders and surrejoin- confront the wituesses; assuming that this was au indictment ancl ders are allowed, so far it is a civil proceeding. Who ever heard of he WM before one of the courts of the land and should stand up and ·a replication or a rejoinder or a surrejoinder or a similiter under an claim all these privileges, they of course would be given to him, and indictment f Therefore we are not to be brought within that narrow we do not care about challenging them here. For the sake of the ar- range; no legal right is to be crushed out of this case; the defendant gument, we admit that here upon the merits he has all these privileges, i8 not to be permitted to escape because in some of its analogies this so far as applicable in this court. What I say is that on this ques- may be regarded as a criminal proceeding. I affirm in regard to the tion of jDl'isdiction he has no such privilege; on the contrary, he has pleadings that in all respects it is a civil proceeding, and more than not as many privileges, as the authorities will show, as he would have that., that there is far more latitude, as I shall presently show, in this in a oivil action. court than there is in any lower court in regard to pleading. This is not one of the questions over which .the law watches with I call the attention of the court now to the report of a committee such jealousy to guard the rights of a defendant. So long as it is of the British House of Commons, a lenrned and intelligent commit- true that no case of fact can be made, no evidence can be otfered un- tee, a committee which has made a report that will go down with the der which speculation may not peer; so long as it is true that some- ages, a.nd I apprehend be received as the law on this subject so long times innocent men suffer; so long as that maxim exists in our law that as civilization exists. I call attention to Burke's Works, seventh vol- it is better that ninety-nineguiltymeugofree than thatone innocent ume, page 490, where the committee consider the "rules of pleading in man suffer, the common law will allow a person accused of crime the courts of impeachment." I never have hea.rd yet of any rule as to presumption and privileges we have referred to. But what have these pleadings in a criminal court besides the indictment and the plea. questions to do with a mere abstract question of lawf The question Sometimes a defendant puts in whti,t we call a special plea. If a ques- now presented to you has nothing to do with his guilt or innocence; tion of jurisdiction is raised, it is usually raised ore tenus. But what it haa nothing to do with his imprisonment; it has uotbing to do with are the rules of pleading in this court f Such committee say: any question personal to himself. It is purely a legal one, and must Your committee do not find that any rules of pleading, a-s observed in the in- be considered precisely as though it arose in a civil action, excepting ferior courta, have ever obtained in the proceedings of the high court of Parliament, as before suggested that he has not all the privileges in this regard in a cause or matter in which tho whole procedure hns been within their original that he would have in a civil action. When a. defendant in a crimi- jurisdiction. Nor does ;rour committee find that any demurrer or exception as of nal action raises a dilatory plea it does not receive the consideration ful~>e or erroneous pleading hath been ever admitted to any impeachment in Par. liament n.a not commg withln the form of the pleading. which it does in a civil action. What is the object in pleading in criminal actions T Allow me to The members of this court know the distinguished character of Mr. call the atte;'ltion of t.he court to 2 Archbold's Criminal Practice and Walpole not only as a lawyer, but as a statesman. Pleadings, sixth edition, volume 2, pn.ge 206: Mr. Walpole wd- The object of pleading, whether in civil or criminal actions, is to inform the parties of the facts alle;;eu by each against the other with such clearness and dis· P~tge 497- tinctness a.'! to enable tnem to prepare for the trial of disputed facts or for the ap- " Those learned gentlemen (Lord Wintonn's counsel) seem to forget in wha.t court plication of the law to thoso which aro admitted. In its application to criminal they. ~re. TheY: have taken up so much of your lo.rdsbips' time in quoting.of au- cases, it is a statement of a crime imputed to the prisoner witb such a particularity thont"!es ami. nsmg arguments to.show your lordships what would quash an mdict- of circumstances only as will enable him to understand the charg6 anllJlrcparo for ~eut m tho coul'ts ~elow, that they seem to forget they aro now in a court of Par- hi.s defcn e, and as will authorize the court to give the appropri.lte judgment upon liament, and on an 1m~achment of the Commons of Great Britain." conviction. And page 501- At common law a defendant in a criminal action was not allowed to plead in abatement as in civil action, (1 Archbold, page 110; Bar- A great writ~r on the criminal law, .Justice Foster, in one of his discourses, fully ber's Criminal Law, page 343,) and cannot tender n. bilJ of exceptions. recognizes those principles for which your mana_zers have contended, and which have, to this time, been uniformly observed in rarliament. In a verv elaborate (Garbett's Criminal Law, volume 2, page 521.) Therefore you see, rcasonin~ on the case of a. trial rn Parliament (the trial of those who had mur- Senators, that while the law has always been watchful to protect life ''ered En ward the IT) he observes this: "It is well known that in parliamentary and liberty, intending that no innocent man should be falsely accused proceedings of this kind, it is, and ever waa. sufficient that matters appear with of crime, yet in regard to the surroundings of the case: in regard to proper li~llt.and certainly to a common understrulding, without that minute e:s:- actnes!! wnich is required in criminal proceedings in Westminster Hall. In these the mere question of pleadings, be ha8 certainly had no more privt- c&ses the rule has always been loquendum et vulgus." lege and certainly has now no more privilege than in a civil action. 3I 34 TRIAL O:F WILLIAM W. BELKNAP. Bishop on Criminal Procedure, volume 1, page 324, says: First clause, section 2, article 2. The President, Vice-President and all civil officers of the United States, shall be Tho extreme kind of certainty, called certninty to a certain intent in every ~ar­ removed from office on impeachment for, alld conviction of, treason, bribery, or other ticular is required by the tribunals when a JHI.r·t.y p1eads any matter not e.ntermg high crimes a.nd misdemeamors. into the merits of the ca.sc but going merr·ly to tlcfeat tho pen~ing proceedin~ a~ain t him. Angation in the replic~tion,. ~t~out any !ssno joined npon ficat.iou, for its object was to prevent attainder and confiscation; any fact, Mr. Burke saw fit m .h1s ph1hpp1c to arrmgn th~ ss words but by its intent, does exclude the idea of impeachment trial by jury, which cannot be taken from him except by express en- a' ag:.tinst a mere private citizen. . . . . actment; because we find provisions which guarantee to the Sta.tes But at this point I may as well mqurre whetht>r the Constitution, the rights which they have not conferred ancl confine the United in reO'ard to a civil officer, is a mere rope of sand T If we find by the States to the rights which are conferred; and therefore when we takA inte~ion of the Constitution that a man cannot be impeached while into view the whole scope and iut~nt of the Constitution we fintl a. mere citizen; if that is its obvious intent, notwit.hstanrl~ng the that impeachment was only intended for a public officer, either while in generality of the language, why then may w~ no~, by appl~mg tho office or after he has lrft offwe, for offenses committed while in office. same rule as to it intent, show that the Constitution never mtende.d I may say in pas ing, if the court plea e, that while in my ·view of that any person when his sin finds him out, shall be permitted to i.be Constitution if the defendant here shoultl be con vic ted, an infe- abnegate or def~at that Constitution in this re~ard ¥ rior sentence, like that of cen ure, might be pronouuco1l, yet I appre- There are cases-such is the jurlgment of the law, such was the hend no such question will arise in this case, because, if it be true, as judgment of the common law, such is the judgment of th~ Constitu- char(Ted in the articles, that. be is guilty of this long series of criminal tion-there are cases where a man has shown such depravity that he tran~actions, if he has thus polluted his honor and his hands with ongbt to be disqualified for all the days of his life. Now, s~all this bribes during these long years, then, as before suggested, if a case cnn provision of the Constitution, Senato.rs, be defeated 'J.>Y the w.ill of the be conceived in which disqualifieation was demanded it is tb.s case. criminal f It is answered that here IS a statute which provides that Therefore, we claim that the limitation of ·the Constitution is not as if found guilty be shall be disqna.lified. That statute certainly is a to tin~e; it simply relates to a class of persons; and the word " officer'' mere "rope of sand." Thew bole disqu~.lification can be remov~d by is used as descriptive precisely as it is usetl in the very statute to t be pardon of the Presiden~, (but you will recollect th~t the President which the counsel referred. If it be true because the word" offir.e" cannot pardon in a case of rmpeachmen.t,) or the Legislat~e may .r~­ or "officer~ is used in the Constitution, whhout saying anything pca] the law under which be was conVIcted and restore htm to Citi- about a person after he is out of office, that the defendant is not im- zenship. Therefore, if it is t.ru~ that sometimes the .People need pr~­ peachable, then be ca.nnot be indicted, because the statute relating tection aO'ainst themselves; if It be true that a br-stghted and ambi- to his indictment simply speaks of him as au officer. tious rna~ may, years aft-er his. c.rimes have be~n co~mi~.erl, ride into What is the real intent and meaning of the word" officer" in the Con- power on some wave of fanatimsm or corruptiOn ; 1f thlS ?e true, .so stitution "I It is but a general ~esc.ription. .An office~ in one sense that the Constitution wisely provideil that a ma.n thus g111lt.y of dts- never loses his office. He gets h1s t1tle and he wears It forever, and qnalifying crimea should forever be disqualified, then ought we to be :m officer is nuder this liability for life; if he once takes office under a!lked to fall ba.ck on a statute which may be at any time repealed or the United States, if while in office and as au officer he commits acts the force of which the President may at any time remove by a. par- which demand impeachment, he may be impeached even down to t.he &nt . time to which the learned counsel, Mr. Carpenter, so eloquently re- But there are high crimes and misdemeanors not puni-,hable by ferred the other day-down to t.lJe time that he takes his departme statute or any law and I will caU the attention of the Senat-e for a from this life. moment to the re~arks in this regard of one of the counsel in tho It is supposed by manytha.t b~cause an officer ~ust be !emoved, no Blount case. I read from page 2316 of the Annals of Congress, Fifth judgment can ~e pronounced ~tbout prononncmg the JU.d~men~ of Congress, volumfi} 2: removal. This It seems to me 18 a very great error. If be IS rn office, It seems to me- of course under the Constitution be must be removed; but if out of office the senlence of disqualification or some inferior sentence may Says the learned counsel- be p;ssed upon him, for the obvio.ns reason that the sente~ce is di- that the power of impeachment has two objects: Firs~ to remo.ve persons whose visible. This was distinctly held m the Barnard case, to which refer- misconduct may havo rendered them rmwort.il,v of retammg ~herr ot:fices and, sec- ence has been made. In that case the conrt proceeded unanimom;ly ontllv to punish tho o offenses of a mere political nature, whwb, though not 8US· to vote that he should be removed from office; but when the question cPptible of that exact definition whereby they mi~bt be brought within the sphere of ordinary tri~mnals, are yet very dangerous to the pubhc. came up on the other point, shall he be disqualified f several mem- berR of the court voted in the negatiYe. Now that this matter may be fully before the Senat.e, I desire to I do not see, then, any possib!e view in which there is difficnlt.y; a.u d call attention to all the provisions of the Constitution relating to im- the learned counsel on the other side will not be able to create auy peachment, for the purpose of showi~g beyond all re~sonable d~ubt­ difl:iculty excepting under the claim t~at a person in offi~e, bavin~ ~o thouuh we are not driven to that pomt here-that It was the mt,en- conducted himself as to be worthy of unpeachment, findmg that It IS tion ~f the convention whieh framed the Constitution and the inten- impossible to escape the facts or pervert th~m, m.ay, I ~epeat, defeat tion of the States iu adopting it to allow a person to be impeached the Constitution for the purpose of preventmg h1s pumshment. who had held office after be should have gone out of office. I have It is said that under the parliamentary law this H?use could not carefully copied word for word in their order all the provisions of the pronounce judgment until the House of Representattves deruaud~d Constitution relating to impeachment. that such judgment be pronounced. Suppose that ~r. ?elknap m First, the House of Representatives '.'shall ha:ve the sole power of this case had not resigned; suppose he bad made up h1s mmd tha~ he impeachment." The last clause of sectiOn 2, artwle 1. would not confess thls sin, that be would not attempt to evade llll- The Senate shall have the so1epowertotryall impeachments. When sittingfor peachmeut but that he would prove the real fa.ct. in t.be case. as hA that pnrpo e the\- shall be on oath or affirma.tit:Vl. \V hen thePresideut of the rr~nted alleges tbe~aud certaiuly if they are true they are suscept~ble of St.ares is tried the Chief J nstice shall preside; and no person shall ba convu:ted proof, even though you assume that he. cannot be sw<;>rn as a witness, without tl~e concurrence of two-thirds of tho members present. .rnrl!!meutln ca.Hes of impeachment shall not e:rleml fm-tber than to removal from or tlla.t his wife cannot be sworn; yet if she bad this large fund f!f oftice antl dt;;qualifiea,tl.on to hold and enjoy any office of honor, trus~ or profit liD· whtch }le aupposed be was receiving the interest, in some way this tl'er t}le IJpjt,ed State.s 1 bn~ tl}e party convicted shall neve1-th~less be liable and sub- faet cQu)d be proved brouO'bt to the attention of the Senate-suppo e Ject to indi.ctJ)lent, trial, jQ.dgmel)t·, and punishment, according to la.w. he bad sean fit to take tbat course, and stood up and said," I am in- ·· Las~ two cla.ul'Je~ nf .section 31 &tWl~ 1. nocent· I dema,nd a. triAl on the merits;" and suppose that be had The Presl.dent- been c~nvicred, and this House was waiting for .the demand of the other House to have judgment pronounee pointed out in Lord who aideil in the work of the Constitution or men who were their con- Porchester's case by Lord Mn.nsfield, and recognized by Buller, J'., in Pugh VIJ. Robinson. temporaries, as to t.he real intent of the instrument. Rawle, a cele- brated lawyer of Pennsylvania, known to some of the counsel, the I next call the attention of the court to the case of the Queen t•s. author of a work upon the Constitution, the compiler of :five volumes The Inhabitants of St. Mary, 1 Ellis and Blackburn, page 816. In of reports, and I believe of some nineteen more in connection with reading these ca.ses I wish again to remind the court that on this Mr. Sergeant, says, and I call the particular attention of Senators to question the law is to be held precisely as though the action was this: civil; that no intendment whatever is to be held in favor of the de- fendant; and that if there was a. judicial proceeding in his case, From the reasons already given it is obvious that the only perROns liable to im· :peacl1ment are those who are or have been in public office All executive and occurring on the same day that he performed the personal act of re- JUdicial officers, from the President downward, from the judges of the Supreme signing, the judgment reaches back of it, and he was properly im- Court to those of the most inferior tribunals, are included in this description.- peacbed: Rawle on the Oomtitution, page 203. A building .was let, at .£30 per annum, to C by a written a~ment stating tbat I also c:tll the attention of the court to the language of Alexander C had taken It" from the 30th day of September, 1850 ;" "the tenancy is for one year, commencing on the 30th day of September instant," (11350.) d entered at Hamilton, in the Federalist, which, although not quite as conclusive, is noon on 30th September, 1850, and quitted at four in the afternoon of 29th Sept~m· nearly as much so as that which I have just read. I call attention to bar, 1851. pages 300 and 301, No. 65, where Hamilton says: Held, that C gained a settlement. bJ: renting and occupying a tenement "for the term of one whole year at least," within statute J, William IV, chapter 18, section 1• .A. well-constituted court for the trial of impeachments is an object not more to be desired than ditlicult to be obta.ined in a. government wholly elective. Let me call the attention of the court more particularly to what this case is. Here was a statute which provided that before a person The delicacy :md magnitude of a trust which so d~inconcerns the political could obtain a residence in any particular pluce he must have occu- reputation and existence of every man engaged in the · i~tration of public af. pied a tenement there" for the term of one whole year at lea,st." He fait11 speak for themselves. took a lease for a year, which ended on the 29th day of September, * * * * * * * 1850, a.nd quit the premises at four o'clock in the afternoon of the Wbat, it may be asked, is the truo spirit of the institution itself 7 Is it not de- signed as a. method of national inquest into the conduct of public men I If this be 29th of September. On page 8"27, Lord Campbell, chief justice, says: the tlesi:rn of it., who can so properly be the inquisitors for tho nation as the rep- resentatives of the n. in ordinar.v langua!!e, would say that the pauper occu- who always measured his words so well, spoke of impeack to the inception of the proceedings by an authorized In this case before the court the doctrine of rt.lation prevents in-· committee of the House f Whether the committee was authorized or justice, for it· changes no rule of evidence, and does not affect the not is a question of fact. Therefore the comments of the learned coun- merits. sel relating thereto were not in order, because itisaffirmee invoked, and tha tis the principle of adoption. Bnt it is appeared by the sixth subdivision which has been read, and it pre- not necessary to discuss that now, beca.use, for the purposes of this ar- sents the questions: Can he thus defeat the object of the Constitu- gnment, tho authority is conceded. In regard to the principle of rela- tion f Can he thus take advantage of his own wrong.T tion it i@ this: that the House of Representatives before t,hisresignation But the learned counsel on the other side, who addressed the court having in~tituted proceedings aga.inst Mr. Belknap for the purpose of on this point, assume that this is a very simple t.hing; that because investigating these crimes and for the purpose of impeaching the de- a. ma.n has the right to change his residence by croSJ ing a. State line, fendant, when the impeachment was made it relateu back to the orig- or a. right under certain circumstances to convey his property, there- inal proceeding which was instituted, as is confessed, before this res- fore he has the right, wheu confronted with hls crime, when the ignation. When divers acts concur to n. result, the origin3.1 act is to Constitution pronounces against him the decree of clisqua.lification, be preferred, and to this t _be other acts have relation. In Lord Por- when good morals, when the judgment of mankind, when justice to che~:~ter VB. Petrie, 3 Douglas, 273, it is said as follows: tho country clema.nd that that j11dgment of disqualification shall be In Miller 'VB. Bradley the deftver changed or varied excepting to prevent injustice. In this case room for argument as to whether a man can be impeached after be we claim that the House of Represe-ntatives, having obtained juris- has been expelled from office, bnt he affirms that there is no room for diction of the sn bject-ma.tter by instituting these proceedings against argument against his liability for impeachment after a voluntary the defendant, he could no more defeat them by resigning midway resignation to evade prosecution. • than he conlcl defeat the Constitution itself. When the House of Mr. Jared Ingersoll was one of the persons who signed the Consti- Representatives by its solemn act impeached him of high crimes and tution, a Representative from the State of Pennsylvaniat a. person misdemeanor~, th3;t wa~ n. ju~icial act, the highest judicial act that who helped make that Constitution, a lawyer of trnn~cenden£ abili- can pe performed rn th1s natiOn save one, and that is the act to be ties, a person who measured his words well, as you may see by refer- performed by this tribunal when it pronounces" guilty" or ''not ence to his argument. What does be sa.y upon this point on page guilty" upon the proofs before it. 2'294 f He says: · Therefore, we say the defendant in this case should not be allowed It i8 among the leas objections of the cause that the defendant is now onto£ offico his dilatory plea, because these proceedings had bsen instituted not by resignation. TRIAL OF WILLIA!I W. BELKNAP. 37 I call the attention of Senators particnlarly to these words: The PRESIDENT p1·o tempore. The question is on the motion pro- I certninl.v shall never contend that an officer may first commit an offense, and posed by tho Sena.tor from Kansas that the Senate sitting )or this trial afterward avoiu punishment by resigning hls office. take a recess until half past seven o'clock. Then be adds- Mr. ANTHONY. I hope we sllall not ~'tke a recess. I do not care how long we sit, but I think we had better not go down street and But the defendant has been expelled. come back again this eveuing. Mr. Ingersoll then makes this argument : Mr. COOPER. I move that the Senate sitting a.s a court of im- Can he be removed at one trial and disqualified at another for the same offense 1 peachment do now adjourn. IR it not the form, rather than the substance of a trial1 Do the Senate come, as Mr. THURMAN. Until half past twelve o'clock to-morrow f Lorlll\Iansfirld says a.jury ought, like blank paper, without a previous impression r upon tl1eir minds Wou1d not error in the first sentence naturally be productive Mr. CONKLING. The rule fixes the hour a.t half after twelve. of error in the second instance! Is there not reason to apprehend the strong bias Mr. EDMUNDS. Wo bad better fix it at twelve. of a former decision would be apt to prevent the influence of any new lights brought The PRESIDENT pro.tempore. The question is on the motion of the forward upon a. second triaH Senator from Tennessee that the Senate sitting in trial do now adjourn. This last argument of Mr. Ingersoll had such weight upon the The motion was agreed to; and the Senate sitting for the trial of minds of some of the :tnnota.tors that they affirmed that jurisdiction the impeachment of W. W. Belknap adjourned until to-morrow at was denied on the ground of Mr. Blount's expulsion. That I do not half past twelve o'clock. 1.mderstand to be the ground. I understand that jurisdict.ion was declined because a Senator is not a civil officer within the meaning of the Constitution. Mr. Ingersoll argues that even if he were a FRIDAY, May 5, 1876. ci vii officer within the meaning of the Constitution be had been sum- marily triess for an imminent reason. Thie question, Senators, Briefly, the attitude of the case is this: must be left to the discretion of the House of Repre!!entatives. The articles of impeachment charge that the resJ>ondent, Belknap, In conclusion, we affirm this court has jurisdiction because the de was at one time Secretary of War, and, while holding that office, did fendant has been Secretary of War. We also affirm under our special certain things which are declared by said articles to be high crimes replication in aid of the jurisdiction, first, that this court bas juris- and misdemeanors. diction, becanl58 the law will not divide the day into fractions to de- The respondent pleads to the jurisdiction of the court that, when feat the judicial act of impeachment; second, that under the dectrine this proceeding was commenced, he was not an officer of the United of relation the impeachment of the defendant can be susta-ined; third, States, but was a priYate citizen. that he iM subject to impeachment because be resigned with the intent The first replication avers that he wa~ Secretary of War when he to evade the disqualification of the Constitution. The House of Rep- committed the acts complained of, and the respondent has demurred. resentatives of the United States, having impea-ched the defendant of A second replication by tho House cba.rges that after the acts were high crimes and misdemeanoTM, through their managers demand that committed the House bad commenced an investigation, with a view he be tried by this court, and, if found guilty, that be be disqualified to impeachment, and that the respondent, with full knowledge of the from holding any office of honor, trust, or profit under the United fact, resigned his office, with intent to evade impeachment. This States. replication bas closed in issnes of fact, which are pending for trial. Mr. CARPENTER, [after a pause.] Mr. President, . I snpposed The court has ordered an argument in regard to the sufficiency of another muna.ger would speak on that Ride. It certainly should be the plea in abatement, the materiality of the issues of fact, and also so arranged. It can hardly be supposed that the other t.h ree man- whether the House can support t.be jurisdiction by matters alleged agers are exactly going to repeat what bas been said by their chair- in subsequent pleadings, but not alleged in the articles of impeach- man. If there are new points to be made in the case, we certainly ment. sbonld hear some more of them before we are asked to spea.k further. I shall endeavor to maintain the following propositions: We ought to hear at least two managers now, and not pile the whole 1. That articles of impeachment cannot be entertained against a three upon the counsel who closes this case. private citizen in any case whatever. :Mr. Manager LORD. Mr. President and Senators, I supposed the 2. That wherever articles of impeachment a.re exhibited, they must understanding was perfect between the counsel and myself that he set forth every fact essential to constitute a high crime or misde- was to reply and then that three other mauagers, nuder the order of me:mor, and every fact necessary to bring the case within the juris- the court, would go on. The Senate will see a,t once that we ought diction of the court; and to bear more from the other side. It would be unjust to compel two 3. That the issues of fact arising upon the plea, in aba,tement are managers to go on now, having beard only one upon the other side. immaterial. Mr. CARPENTER. We have no understanding made with us that l. Can proceedings by impea-chment be maintained against a pri- wc understand 1.1pon that subject. There wa.ssomeconversation upon vate citizent it. There are two1theoriet'l of the Constitution in reg2.rd to impeachment. .Mr. Manager LORD. That was the last euggestion which we made. 1. That the provisions which give the House the power to impeach, Mr. CARPENTER. Some conversation passed upon it. At all and the Senate the sole power to try imJ>euchments, confe-r a power events, the fair wa.y to do is for two managers to speak no\v and then as broad as +,bat before then exercised by the British Parliament in the other two before the case is closed by the counsel for the defend- regard to the persons who ma.y be impeached and tbe crimes for which ant. impeachment may be had. And that the provision, "Judgment in M:r. INGALLS. I move that the Senate sitting as a .court of im- cases of impea.chment shall not ext.e nd further than to removal from peacbmeut take a recess until half past seven o'clock this evening. office, ancl disqualification to hold and enjoy any office," &c., is a Mr. CARPENTER. I desire to Ray that unless an arr:mgemcut is mere 1imitaticm upon the power to punish; and that the provi~:~ion, made, if another manager does not come next, it will fall upon me to "The President, Vice-President, a.n1l all civil officers of tbe United ]Jroceetl on the part of the defendant. I certainly cannot proceed States, shall be removeflfrom office by impeachment, for," &c., merely: to-night for I am not in a state of health t.o do so. I had not expected declal'e what the pnnllihment shall be, when t.he person impeached. to ue called on to-day. I have some briefs that are being printed, happens to be snch officer. which I expect t.o be able to u e to-morrow or the next day; but it. 2. The other t.l1~ory is, t.hat impeachment, as authorized and regn- wnuld ho impossible for mo to go on t-o-night with any iustice to the latetl by the Constitution, is only a pnxJ&>ding to nmwve an mucorthy case, or to myself, or to anybody else. I public officer. 38 TRIAL OF WILLIAM W. BELKNAP. One or the other of those theories must be accepted; there is no Again, the ninth resolution proposes the removal of the President midclle grounn. And the importance of judging correctly which is "on impeachment and conviction of malpractice or neglect of duty." the proper construction cannot be exaggerat-ed. That is, that the President should only be impeached while in office, If the former theory be adopted, it will follow that every inhab- because the object of impeachment was to remove him. In tue tbir- itant of the United States, citizen or :1lien, male or female, may be teen~h resolution the power is to try ''impeachments of any national impeached for any conduct or transaction which, in the opinion of officers;" not impeachment for misconduct in office, but impeach- the Senate for the time being, may be characterized as a high crime ments of national officers. . or misdemeanor. · These resolutions exclude the idea that impeachment was intended The Const.itntion provides- to rea-ch any one not in office, because it is manifest that the power to 1. The House of Representatives shall have the sole power of im- impea-ch could not extend beyond ~be power to try impeachments; peachment. (Article 1, section 2.) and this was confined to impeachment of officers. 2. The Senate shall have tbe sole power to try all impeachments, On the 20th of July, the ninth resolution was considered by the and the judgment in snch ca es shall extend no further than to re- convention; and the subject of impeachment was discussed quite at moval from office and di.squ.alijication to hold office. len~th. ~Ir. Pinckney anry implication. And by necessary implication ular punishment be provided, it will be irregularly inilicted by tu- only such powers are gr:1.nted as are essential to the execution of the mults and insurrections. powers which are expressly granted. And, manifestly, a claim of Dr. .Fmnklin cited t.be bad conduct of the Dut-ch Stadtbolder :md jurisdiction in this court, which, if conceded, would subject forty the evil which resulted from his not being impeachable. millions of people to its power in all matters of hill'h crime or mis- Mr. King remarked that the case of the Stadtholder was not appli- demeanor, must find support in clear grant in the Constitution, and cable. He held his place for life, and was not periodically elected. is not to be assumed upon forced construction or doubtful implica- In the former case impeachments are proper to secure good behavior. tion. In the latt-er they are necessary. Bearin~ these principles in mind, if I can establish that no warrant Mr. .Morris, at the conclusion of the debate, said that his views had is found m the Constitution for impeachment of a private citizen in been changed by the iliscussion. The Executive ought to be impeach- any case whatever, this proceeding must fall. To say thnt a private able. He should be punished 110t as a nt.an, but as an officer, and pun- citizen may be impeached. but only for crimes committed in some of- ished only by degradat·ionfront hi.s office. fice formerly held by him, would be to establish a distinction as arbi- And on tbt' question, "Shall the Executive be removable on im- trary and capricious as to say he can only be impeached for crimes peachment," the vote by States was-yeas 8, nays 2. committed by bim while he was between thirty and forty-years of This was the principal debate in the convention upon this subject, age. The question is whether a private citizen can be impeached at and shows conclusively that no member of the convention entertained all. If so, be may be impeached for whatever the Senate for tht' time the idea that impeachments should be employed ag&inst any but being may consider a high crime or misdeme'l.nor, without regard to public officers. the time, place, or circumstance of committing the offense. On the 6th of August the committee of detail reported their first I shall endeavor to show, from the text of the Constitution, from drau~bt of the Constitution. It provided, (art.ic~e 4, section 6:) the debates of the convention which framed it, contemporaneous writ- The House of Representatives shall have the sole power of impeachment. ings of public men, commentaries of recognized authority, and the de- Article 10, section 2, provided: cisions of this comt, that the only office whieh impeachment can per- He [the President] shall be removed from his office on impeachment bytbe IIouse iorm is removal from o.fli.ce or removal and disqualification, in the dis- of Repro entatives, and conviction, in the Supreme Court, of treason, bribery, or cretion of the court. If I shall succeed in this endeavor, it will follow corruption. that impeachment can only be bronght against oue who is an officer Article 11, section 3, extended the jmisdiction of the Supreme Court of the United States at the time of impeachment. to" the trial of impeachments of officers of the United States." And I . hall first refer to the debates and proceedings of the Constitu- section 5, article li, contained the provision as to puni~:~hment, a.s it tional Convention, which will be seen to shed a flood of light upon now sbtnds in t.he Constitution. this question. This clranght of the Constitution clearly confines impeachment to After several plans had been submitted and discussed in Committee "officers of the United States;" because the power to try impeach- of the Whole, the committee, on the 13th day of June, 1787, reported ments is so confined. · to the convention a general scheme of the Constitution, in the form August :n, such parts of the Constitution as had been postponed, of resolutions, nineteen in all. Two of these resolutions touch the and such parts of reports as had not been acted on, were referred to subject of impeachment. a committee of eleven. This committee, on the 4th da.y of Septem- The ninth resolution relates to the Executive ;-how he should be ber, made a partial report., in which t.hey recommended that the latter elected, what his powers should be, to be ineligible a second time, part of sect.ion 2, article 10, shonld read as follows: "and to be remot:able on. intpeachment and oom;iction of ntalpraatice or ·neg- He (the President] shan be removed from his office on impeachment l1y the Hou~o 1ect of duty." of Representati'\"'es, aml conviction by the Senate, for treastm or bribery. The thirteenth resolution was in regard to the judiciary, and pro- The committ-ee explained the rea.son forgiving the power to try im- posed ''that t.hejurisdiction of the national judiciary shall exten put rnjcoprmly of life or limb; nor sh<\ll be compelle1l in any crim:ua! ca"n to he a wit- the words " or maladministration." nes:> azainst himRelf. nor be depri•ed of life, liberty, or property, mthout duo pl-oc- Mr. Madison objected to this term which, be said, was so vague that e ·s of ' law; nor shall private property be taken for public use, without just com- the President's tenme wonld be during the pleasure of the Senate. pensation. AltTICLR VI. Mr. Mourns. It will not be pot in force, and pan do no harm. An election of every four yea~'8 will ~event maladministration. In all criminal proser.urions. the accused shall enjoy the ri~ht to a speedy and public trial, b.v an impartial jury of the StAte and district wherein the c;·imo shall Colonel Mason then withdrew "maladministration," and substi- bn.ve been committeu, wh1ch d•strict shall have been previously asce:ta.inerl b.v tnted ''other ltigh crimes and misdemeanors." law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to h:1.ve compulsory process for obtaining wit- It is evident from this that the term "high crimes and misde- nes es in his favor, ana to have the assistance of counsel for hi:> defense. meanors" was used in the sense of o.fficialmi.sconduct amounting to crime or ntisdemeanor. The phrase was substituted for "maladmin- "No person "-persons include every inhabitant uf the Unit-ed i~tra,t.ion " only because that word was too vague and general. States, citizen or alien, male or female, in office or not-" shall be After this, on motion, and without debate, the following, " 1'he held to answer for a capital or otherwise infamous crim~, unless upon Vice-President, and other civil officers of the United States, shall be presentment or indictment of a grand jrtry, except in cases ariRiog 1·emoved from office on impeachment and conviction as aforesaid," in the land or naval forces, &c.; nor ~ball any person be subject for was added to the clause on the subject of impeachments. the same otfeose to bE:' twice put in jeopardy, &c. * * * In all This left tho provjsion of the Constitution as follows: criminal prosecutions, the accnsed shall enjoy the right to a speedy He[the President] shall be removed from bisofficeonimpeoohmentbytheHouse and public trial by an impart.ial jury," &c. of RepreBE'ntati'"cs and con~iction by the Senate, for treason, bribery, and other The respondent in this case is held to answer for an infamous crime, high crimes and misd('lmeanors against the United States. The Vice-President, without presentment or indictment of a grand jury; and his case and other civil officers of the United Sta.tel!, shall be removed from office on im- did not arise in tlle land or n-l:!sity for re. muting a~ain to tile great source of power in this country, the people oft.he Sl.ottes, the Constitution proposed several amendments, which were ratified by for adtHt.ional guarantees of human rights; additional powers to tho Federal GO\"· the States, materially changing the Constitution. Bnt these amend- ernment; arlditional restraint-s npon tfio>~e of the Stat-es. Fortunat-ely that history ments have generally been regarded as though they bau been con- is fre:~h wit.hin the memory of us all, and its leading features, as they bear upon tained in the original in trument. Everybody understands that th~ the matter before ns, free from doubt. thirteenth, fourteenth, and fifteenth amendments have wrought ma- And in the light of this history, and to secure the purpose for terial changes. They were intended so to do, and are construed ac- which it was adopted, the court proceeded to construe the fourteenth cordingly. And yet it is manifest that the first eleven amendments amendment, limiting its operations to much le~ than its language fall within the same canons of judicial construction; and that each imports. .must be considered as repealin~ any provision of the original instru- I am content. in this case with this rule of construction ; content ment wjth which, when properly construed, it conflicts. that the intention with which the power of impeachment was incor- Let us turn now to the fifth and sixth amendments, and consider porated in the Constitution, that is, to remove unworthy officers of their language, without regard to the intention with which, and th~ the United States, should be applied to that instrument; content that object~ for wh~ch, they were adopted. the same rule should be applied to the fifth and sixth amendments. The original Constitution provides in wordc;, that officers of the But, if t.his rule be rejected as to the Constitution itself, it cannot be United State~ may be mpeached by the Hou~e ~md tried by t.he Sen- appliecl to the amendments; and the power of impeachment is gone ate, for t.reason, bribery, or an.v other high crime or misdemeanor; and altogether. that, too, without regard to whether such ofton~e was committed in an Spea~ing of the text of the Constitution, I may refer to the method ollice by l.ll!~use of its functions, or while holding an office, the offense adopted in its frame-work, of first conferring a power, and then pro:. not being connected with the office; or committed at any time even ceecling to define it. For instance, article 1, section 1, provides, previous to holding an office. And that the officer, after being triell "All legislative powers herein granted shall be vested in a Con.rress by the Senate, and pnuished to the extent of removtl.l, or removal and of the Uuit.ed States, which shall consist of a Senate ancl Hou~e of disqnalitication, rnv.y btl indicted, tried, and punished by the ordinary Representatives." TIJe Constitution then proceed.::; earelully to enu- conrt.s of law for the same offense. That i~, he may be twice tried merate tho powers a.nd privilege~ of the l'CSpective Houses, ami t.he m11l tw!ce punished fol' the same offense. legislative powers they shall exercise. The fifth and stxth amendments of the Constitution are as follows: A.!·-'- icle 2, section 1, declares, 'The executi\·o power shall be vested. ARTICLE V. in a Presitlentof the United Stat.esof America.;." ancl then follows an ~To person shall be belides that _not be maintained against a private citizen. . . this jod ~-ment shall be no impediment to indictment, trial, judgment, and puni8h· ment "according t-o law .. , Thus again is the distinction declarecl between an im- I need not take t.he time to show why the Senate, s1ttmg as a conrt peachment and a. proceeding "nccoiding to la.w." The first, which is politicnl, be- of impeachment, should be bound by i t.s former adjudications. In the longs to the Senate, which is a. political body; the latter, which is judicial, belon.~s proceeding of impeachment so much is necessarily left without defini- to the courts, which are judicial bodies. The Senate removes from office; the <;ourts tion or regulation, that the determinations of the court, after able ar- punish. I am not alone in drawing this distinct.ion. It is well known to all who have studied the subject. Early in our history it was put forth by the distingni~b~d gument and full consiueration, shonlu not be departed from, except Mr. Bayard, of Delaware, the father of Senat,ors, in the case of Blount, and 1t IS for irresistible rea.sons. adopt~ by no less an authority than our highest commentator, Judge Story, who In the case of President Johnson the managers concluded that the wa-s as much disposed as anybOdy to amplify the judicial :power. In speaking of object of impeachment was removal from office. General Butler, in this text he says that impeachment "is not so much designed to punish the of. fender as to secure the state against gross ojfici.al misdemeanors; that it touches opening the case, submitted a brief prepared byRon. WILLIAM LAW- neither his person nor property, but simply estigation, of much deliberation, that With these lanrunarks to guide them, our fathers adopted a constitution under the interests of this country are no longer sa.fe in his hands. which official malfeasance and nonfeasance, and, in some cases, misfeasance, may be the su hject of impeachment, althou_gh not ma.de criminal by act of Congress, or The learned manager evidently considered that removal from office, so recogniZed by the common law of England or of any Stn.te of the Union. They not punishment of the offender, waa the only object o.f the constitu- adopted impeachment as a tneamsof removing men j1'om office whose miscomluct tional provision for impeachm('nt. imperils the public safety and renders them unfit to occupy political position. .All this is supported by the elementary writers, both Engliflh and American, on We have been unable to find a single case in which impeachment parliameutary and common law; by the English anrl American usa~e in cases of has been sustained where the accused was not in office at the time of Impeachment; by the opinions of the framers of the Constitution; uy con tempo· impeachment. raneousconstrnction, all uncontradicted by any author, authority, case, or jur1st, lu the case of Barnard, in New York, he waa impeached for, among for more than three-quarters of a. century aftt:r the adoption of the Constitution. other things, offenses committed in a former term of the same office. On page 134 he says : But be was in tl1e same office at the time of impeachment. In the The Constitution contains inherent evidene.' tba.t the indictable character of an first volume of the Trial of Barnard, page 151, we find the argument net does not define its impeachable quality. It enumerates tho classes of cases in of Mr. Beach for the defenda.nt, who cites the report of the judiciary which legislative power roa.y be exercised, and it defines the class of persons and committee of the house of New York in the case of Philip C. Fuller: cases to which the judicial power extends; but there is no S'U.Ch enumeration of im- peachable cases, though U1ere is of persons. The house direct.ed the judiciarv committee t-o inquire and report. In Eng:land and some of the States the power of removal of officers by the execu- First. Whether a person could 'be impeached who, at the time of his impeach- tive on the address or re.quetot of the Leg1sla.ture exists, but the Constitution made ment, was not the bolder of an office under the laws of the State. no provit;ion for thil! a.s t-o any officer, manifestly because the power of impeach- Second. Whetller a person could be impeached and deprived of his office for mal- ment extended to every proper case for removal. conduct, or offenses done or committed under a prior term of the same or any other As to the President and Vice-President, there is this provision, that "Congress office. may by law provide for the case of removal, death, resignation, or inability, * * * declaring what officer shall then act. * * * tmtil the disability be removed or a • * President shall be elected." (Article 2, section 1.) Mr. Weeks, from the judiciary committee, reported that- It has already been shown that the framers of the Constitution regarded the The only clause in the Constitution relating to judgments upon impeachments power of impeachment a.s a means of defending "the community against the inca- provides that judgments in such cases shall not extend further than the removal pacity" of officers. This clause of the Constitution recognized the same view, f~:_oru ollice, and disqualification to hold and enjoy any office of honor, trust, or pro tit (article 2, section 1 :) " Congress may by lawJl.fO>ido for the C..'\Se of * * * ina- under this State: but the party impeached sh:ill beliab]e to indictment and ptm· bility, both of the President and Vice-President, declaring wha.t officer shall then ishment according to law. a.ct as President, and such officer shall act accordingly, until the disability be From this and from the theory upon which our Government is based, the com. removed or a. President shall be elected." mitte have come to the conclusion: This, and the power of impea.cbmont :~.re the only 'lllodu of ,getting rid of officers ~'irst. That no person can be impeached who toM not, at the time of the c-ommis- whose inability from insanity or otlterw~e renlkrs them unfit to hold ojfice, and whose sion of tho alleged offense, and a.t the time of the impeachment, holding some office evo-y official act will necessarily btl misdemeanor. As to the President and Vice· under the laws of t,his State. President, it was necessary to give Congress the power to designate a successor, That the person impeached must ha.ve been in office a.t the time of the commission and so to determine the disability. As t-o a.ll ot-her officers, the. Constitution or la.ws of the alleged offense, and at the time of the impeachment holding some office un- define the mode of designating a successor, and it wleft to the impeaching power to der th~ la.ws of this State. remove in ca.ses of insanity or misdemeanor arising from that or other cause. It Tba.t the person impOMhed must ha>e been in office at the time of the commission cannot be supposed the whole nation must suffer without remedy if the whole Su- of the allegerl offense, is clear from the theory of our Government, namely : Tha.t preme Court or other officers should become mterly disabled from the performance all power is with the people who, if they sa.w fit~ might elect a man to office )!nilty of their duties. Such an occurrence is within the range of possibility, if not prob- of overv moral turpitude, and no court has the power to thwart this their will, and ability. say he'shall not holtl the office to which they have elected him. A contrary doc- trine would subvert the spirit of our institutions. On page 140 he says: It is equally clear, from the tenor of the Constitution, that the person must be The first case tried, that of William Blount, a. Senator of t.h e United States from in office at the time of the impeachment. This instrument provides that two modes Tennessoo, simply decided that none but cit~il ojfi.:ers can ~ impeached, and that a of punishment, namely: Removal from office, or removal or disqualification to hold Senator is not such civil officer. office. In either mode of punishment the person must be in otlice, for removal i8 contemplated i1~ both cases, which cannot be effected unless the person is in office. These are the grounds upon which the House of Representatives The courts are the onl:y tribunals that have jurisdiction over a delinquent, after {lema.nded the conviction of President Johnson. It would be a bur- his t.et'ID of office has exprred, to punish him for offenses committed in the discharge lesque of jnstico to suppose that the House of Representatives could of tho duties of his office. The committee ba.ve further come to the conclusion: deruand the convi'ction of Belknap by denying the principles upon Secondly. That no person can be impeached and deprived of his present term of which they demanded the conviction of Johnson. office, for offenses alleged to ha.ve been committed dw-ing a prior term of the same, Bnt we are not left to the doctrine of this House upon the subject. or any other office. We have the opinions of Senat.ors upon this point. Ne1ther by the Constitution nor by our la.ws is there any period limited in which an impea{lhinent may be found. It 1s but fair, therefore, to infer that the inte11tion Senator HowE, volume 3, page 68, said : was to confine the hme to the term of office during which the offenses were alleged I hold, with the elder authorities, with the late authorities, with aU the author- to have been committed; any other conclusion would lead to results which coUld ities, that impeachment is a process provided, not for the puni8hmentof crime, but not be sustained, for who can sa:y but that the people 1.-new of this malconduct, for the protection of the state. And so holding, I must give judgment, not as t-o these offenses, and elected the individual notwithstanding; true, an extreme case whether the acts proved upon the respondent are declarr.d by the criminal code to mi crimes, but whether I think them so p~judicial to the state as to warrant his oftfce the rndividual might be immediat~ly re-eXected; yet who could say this was removal. not known to the people. How is the matter to be settlE~d ~ The mere statement of the question shows the dilemma. in which we would be placed at e>cry election, Senator EDlfUNDS, ibid., page 89, said: if the tenure of st-ability of an office depended npon a legal inquiry a-s to whether the people knew tho characte1'8 of the individuals they had elected to office, and Pttnishm.ent by impeachment doos not exist under our Constitution. · The accnsed had exercised n proper discretion. cannt)t thereby be deprived of li!'e, liberty, or ~roperty. He can only be removed Hovever mucl1 it may be desired to have men of hi!!h intepity and honesty to from the o.Jfiu he fiUs, and prevented from hollhn;; ollico, not as a punishment, bnt fill our pulllio ollices of trust and honor, yet., by our Constitution aml the fuuda- as a mean merely of prot~tion to the community against the danger to be appre- mental principlea of our Government, no particular scale of integri~', honest..-, or hended from ha.vmg a cri'llinal in office. morality is tixed. No inquisition as to what character had been can be hPl•l; it is 42 TRIAL OF WILLIAM W. BELKNAP. enough that the people have willed the person should hold the office, ane no powe•· to interfere. The Constitution provides, as we have seen, tllat a person cannot be impeached case; ancl therefore counsel mi~ht confess and avoid, instead of tak- after he is out of office; then, if the same person should be re-elected to the same ing time to answer the proposttion on its merits. The rtuestion of office a year afterward, would this right of impeachment be revived 1 In fine, by jurisdiction depends upon whetl:ter the respondent holds or does not his re-election, would he incur any other liabilities or acquire any other rights than llold an office, and not whether he got out of it by expiration of his those incident to his present term of office 1 We think a moment's reflection would term or by resj ()'nation. convince each person that it would not. .Again, could an officer be d eprived of his present office by impeachment for mal· The honorabfe managers rest their side of this question upon three conduct in another and different office, or even the same office, twenty years before words in Rawle's Commentaries; and the admission of two lawyers . his present term commenced 1 If not, COLlld he after one year or c.ne moment bad in arguing a cause where the quest.ion was wholly immaterial. elapsed 1 Th e time is nothing; the question is, is be out of office 1 It matters not if the next moment he is inducted in. · Mr. McDONALD. I propose a question to the counsel. Th" committee think · it clear, in every light they have be.en able to view this The PRESIDENT p1·o tempore. The Secretary will report the in- matter, that the Consritntion i ntended to coafine impeachment& to persons in office, quiry propounded by the Senator from Indiana. · and for offenses committed during the term of lhe o.f!icefor which the person is sought The Secretary read as follows: to be remot:ed. In pursuance of this conclusion, the committee recommend to the House the adoption of the followin~ resolution: If the term of office of the accused should terminate or expire pend- Resolved, That the committee of investigation into the official conduct of State ing the trial, would that operate to discontinue or abate the cause f officers, and of persons lately but not now holding o.f!iu1 be instructed- Mr. CARPENTER. I think it would. 1. That a persoo wbose term of office has expiretl1s not liable to impeachment Mr. THURMAN. I suppose that some time during t,h e day the Sen- under section 1, article 6, of the Constitution. . 2. That a person holding an elective office is not liable to be impeached under ate will take a recess for a few minutes; and I would like to inquire section 1, article 6, of the Constitution for any misconduct before the commencement of the counsel if it would suit his convenience for the Senate now to of his term, altbougll such misconduct occurred while he held the same or another dosof . otlice under a preVIous eletJtion.. Mr. CARPENTER. .I should like to go on for a few moments. We have been unable to find any case in which a private ~itizen If I am right in saying that t he only purpose of impeachment is to has been held subject to impeachment for misconduct in an office remove a man from office, when the man is out of office the object of formerly held by him. In the Barnard case, it is true, the court held impeachment ceases, and the proeeediugs must abate. There would that the accused might be convicted and removed from office on ac- be no further object to attain by the proceeding. Suppose t.he man count of offenses committed in a former term of t,he same elective committed suicide while his trial wa.s pro~essing, would not that office which he was holding at the time of.impeachment. be good mutter of abatement f Suppose ne commits official sui- In the State of Ohio Messrs. Pease, Huntingdon and Tod held a cide, by resigning, why should this not h:tve the same effect! I certain act of the Legislature unconstitutional and void. At theses- have attempted to show that the sole object for which the power of sion of the Legislature 1807-'8 steps were taken to impeach them impeachment was given is removal from office. therefor, but the resolution was not acted npon at that session. But There is another proposition which I intenderl to argue in that con- at the next session steps were taken toward the impeachment of the nection. The flisquali:fication clause of punishment was evidently offending judges, and articles of impeachment were reportecl against pnt in for the purpose of making the power of removal by impeach- Pease and Tod, but not against Huntingdon, who, in the mean time, ment effectual. After providing that the officers of the United States had been elected governor of the State, and, of course, had ceased to might be removed on impeachment, although the President could not b~ a judge of the court. This di~Scrimination is an authority in favor pardon the offender convicted and removed, yet if he could re-instate of the proposition that no man can be impea-ched ;:tfter he is out of him the next morning hewoultl have substantially the power of par- office. (Cooley on Constitutional Limitations, page 160, note 3.) clon. To prevent this waa the object of the disqualifying clause; To all this the managers, as I understand them, have nothing to which Story says is not a necessary part of thojudgment. Yon might oppose but the arguments in Blount's case, and three words from impose it where yon had removed an officer appointed by the Pre i- Rawle on the Constitution. I shall refer to both; I ask the Secretary dent whom the Presiden~ could re-instate. You could stop that by fix- to read from the argument of Mr. Bayard in that case, 2 Congressional ing disauilit.y upon the officer; and that I take to h::t\'e Leeu the sole Annals, page 2261. purpose of this clause. The Secretary read as follows: If I am right in this position, if the man died in the middle of the I observe, it is stated in the plea, that William Blount was not an officer of t.be trial, or if be died after fiuding against him, but. before judgment had United States at the time of the act done char/Zed in the articles of impeatJb ment. been prononnced, the suit. wouhl abate. Must this court go on and This objection is removed if either of the grounds which we have taken be main- taina.blo: First, that impeachment is not co11fincd to officers, hut exemls to every sen fence a mau after be is dead,-either physically or officially dead f citizen; second, that a. Senator is an officer of the United States. It is equally absurd to talk of removing a man from an office which It is also alle~ed in the plea, that the party impeachcu is not now a Senator. It he no louger fills, as to talk of removing a man from office after he is is enou~h that he was a Senator at the time the arlitJles were prefencd. If the dead. So far as its effect upon the suit is concerned I see no differ- impeachment wel'e regular and maintainable, when preferred, I apprehen d no sub- sequent event, grounued on the willful act, or caw~ed by tho delinquency of the ence between the ease of his natural <1eat.h and his official deat·h. The party. can vitiat" or obstruct the proccerlin~. OtheJ'wise the r:u·ty, by resignation suit abates because there is no further object to be attained by its or tho commission of some oft'ense which merited antl occa<~lOUed lns exp•usion, prosecution. mi·• ht secure his impunity. This is against one of the Ragest maxims of the law, Let rue remind the Senate that there is not a writer on t.bis subject which does not allow a man to derive a. benefit from his own wrong. who does not maintain that the power of impeachment was never in- Mr. CARPENTER. Please read from the argument of Mr. Dallas, tended for punishment. page 2::!78, the passage marked. This is conclusively shown by the fact that the party, after he is The Secl'etary read as follows : in: peached, is to be indicted a.nd punished for his crime. And it should It wmud be permitted to hlm. however, curnorily to remark that the articles of be remarked that, if impeachment Jies against one not in officp.t he impeachment do not charge William Blount wit.h an.v crime or misdemeanor com- must either not be punished at all, which would show the absurdity mittetl in the execution of hls oftice witll any act which might not have been com· mittct.l by any other citizen as well as a Senator; that there was room for argu- of the proceeding; or you nuUJt inflict the disqualification, which, ment whether an officer couhl be impeached after he was out of oftice; not by a Story says, you need not inflict on one removed from office. vohmtary ret~ignation to evade prosecution, but by an adversary expulsion. Returning from this digression to the line of my argument, let me Mr. CARPENTER. Now read from Mr. Ingersoll, page 2~4. say that Raw le's Commentarie8 ancl the report of the Blo~m t case were The Secretary read as follows: coll.Siderecl by J ndge Story in writing his Commentaries; and he quotes It is among the less objections of the cause, that the defendant is. now out of from them both, but evidently disagrees with Rawle's parenthetic sug- office, not by resignation. I certainly shall never contend that au officer may fi1·st gestion, and the concessions made by the counsel of Blount. commit an offense, and afterwards avoid punishment by resigning his office; but I read from Story'!:! Commentaries on the Constitution, § 789. The the deft•ndant has been expelled. fourth section of the second article is quoted as follows: Mr. CARPENTER. They also citetl Raw leon the Constitution, page The President, Vice-President and all civil officers of the United States, shall be 213, for the benefit of three words only. On page 213 Mr. Rawle says: remo>&l from dlice on impeachment for, and conviction of, treason, bribery, or other From the reasons alrea.dy gi>en it is obvious that the only persons liable to im- high crimes an(l misdemeanors. peachment are those who are or h'l.,·e been in public office. Story then proceeds: Three words, "or have been," is all they claim any comfort. from From this clause it appears that the remC(ly by impeachment is strictly confined in this passage from Rawle-an instance of the caution of a WI'iter, to ciru officers of the Uniterl States, including the President antl Vice-Pre~illent. iu laying down a general proposition, to throw in here and thet·e In this respect it iliffers materially from the law and practice of Great Britain. In that kingdom all the king's Ruhjects, whether peers or commoners, are impeachable qualifications which may or may not exist. He does not discuss the in Partia:ment, thonj!'h it is asserted that commoners cannot now be impeached for question at all, or give any reason why men should be impeached af- capital offenses, but for misdemeanors only. Such kind of mi~deeds, however, as ter they are out of office. peculiarly iojnro the commonwealth by the abuse of hirrh offices or trust are tho In regard to the argument of Blount's counsel, it may be remarked most proper ancl ha·ve been the most nsual grounds for thls kinu of prosecution in Parli:;r.nent. There seems a peculiar propriety, in. a republican govenunent at least, ill that the question was not involved in that case. Blount had not confining tlle impeaching power to persons holding ujjiu~ resigned. Neitle f muchjorre in the remark that an impeacllment 1s a proceeding purely of a. polihcal Mr. CARPENTER. There were but two principal debates upon this nature. It is not so muob designed to punish an offender as to secure the State against gross o.Jficial misdemealWT8. sul>ject in the convention. One was upon the question whether the power ·of impeachment should be incorporated in the Constitution; Mr. CONKLING. Mr. President, I should like to ask a question of aud the other was in regard to the question whether the trials of im- the oounsel. I aak it that I may understand fully his all8wer made peachments should be had in the Supreme Court or in the Senate. I to the Senator from Inruaua. do not think the precise question proposed by the Senator from Ohio The PRESIDENT pro tempore. The Senator from New York pro- was debated in the convention at all. The doctrine of kingly im- pounds a question, which will be read. munity, I think, was not debated at all. The principal point in de- The Secretary read as follows: bate was w bether the power of impeachment should be conferred in Is there no distinction on the point of jurisdiction to try an impeach- regard to the President, whose tenure was only for a short te-rm. ment between the case of a resignation l>efore articles are found and Mr. President, the question now pending before this court is not the case of resignation not till after articles have been found? prejudiced by even the opinion of the House. When the report of .Mr. CARPENTER. That is like the question considered by Messrs. the committee arrainst this respondent was made in the House, the Da1las and Ingen!oll in their case, and wuich they conceded, rather proceedings whi~h followed were not such as to give any weight to than st.op to answer. It is a question not material in t.his case, he- the conclusion which was reached. Having referred on a former cause here the resignation preceded the exhibition of the articles. occa-sion to the disorder amid which the impeachment of the respond- Still, to answer the question, I think that even such resignation ent in this case was carried, I will now refer to what was said by the would abate t.he proceedings. Speaker of the House upon the sul>ject. :Mr. EDMUNDS. Mr. President, I move that the Senate sitting for The SPEAKER. The Chair is resolved that this solemn business shall not proceed this trial take a recess of twenty minutes. · in such disgraccftd di-sorder, and be therefore appeals respectfully and personally The motion was agreed to; and (at two o'clock p.m.) the Sen~t.e to every .member upon this floor to aid. him in restoring and maiutainmg order. sitting for tho trL1.l of the impeachment took a recess for twenty mm- utes. That was my authority for saying that these proceedings went on in the House under a state of things denominated by the Speaker as The PRESIDENT pro tempore, at two o'clock and twenty minutes "dis~ra.ceful disorder." If there be any appeal from the Speaker of p. m., resumed the chair. the House of Representatives, it certainly is not to the counsel for Mr. CARPENTER. Mr. President and Senators, during the recess Belknap. \Ve are bound by the ruling of the Speaker on that ques- I have reflected upon the questions proposed t.o me by two of the tion. Senators; that by the Senator from Indiana, which is: Let me read the remarks of Mr. HoAR in the House, not so long H the term of office of the accused should terminate or expire pending tJle trial, arro as to have been forgotten by him, in a proceeding which he de- would that operat-e t~ discontinue or abate the cause1 n~minates judicial, a man..'l>ger, too, on this occasion. And the other by the Senator from New York, [Mr. Co~TKLING:] I thank the honorable manager for the suggestion made the other Is there no distinction on the point of ,jurisdiction to try an impeachment, be- day that, when the proceeding took place, he was acting judicially, tween tile case of a resignation before articles are found, and the ca.~e of resigna- for that gives the more weight to the opinion he then expressed: tion not till after articles have been found ! Mr. RoAn. The division of this hom, the committee being unanimous in one When these questions were propounded to me, I had in mind pre- opinion. both republicans anll democrats, seems to me to imply the opinion on the cisely the difficulty that I have inherited from the course pursued Ipart of the chairman of the committee that it is in some way a political question. utterly disclaim and repudiate snob an idea. No person can bemorodeRirous to by Messrs. Dal138 and Ingersoll. I was determined that the counsel punish any public officer found ~ilty of a crime like this charged upon the late who shall follow me in the next impeachment case, should not be Secretary of War than the republiCan memb('rs of the Honse.. I wish simply to call embarra.ssed by any inconsiderate a-dmission of mine. I therefore at.t~ntion to one matter. The gentleman from North Carolina [Mr. ROBBINS] al· met the questions as I thought, at the moment, they ought to be an- luded to the fact of the baaty acceptance of this resignation. swered. That is, the resignation of Belknap- The question put to me by the Senator from New York is very This Honse solemnly determined in the case of Whitt~more that the formal act specific, and, in reply, I would say that a distinction exists between of resignation by the officer terminates the qffice, and tllat any Anlerican citizen the case where a resignation precedes the exhibition of the articles, can lay down an office held by him without the consent or acceptance of anybody and the case where a resignation comes between the exhibition of the whatever; it is a mer~ formal matter. articles and final judgment. And this court might hold that after jur- It is more than a matter of form to get into office, but according to isdiction had attached byexhil>ition of the articles, or even by the formal the ruling of the learned judge [Mr. HoAR] it is a mere matter of impeachment which precedes exhibition of articles, the jurisdiction form to get out. A mere resignation accomplishes this result. had attached, and resignation would not prevent final judgment. Now, the gentleman from New York (Mr. BASS) savs be has not investigated the Speaking, however, for myself, I still incline to the opinion that, if question whether after the civil office has terminated. the officer can be impeache~, the officer, who alone can be impeached, is out of the office before judg- be but bo thinks that the gentleman from North Carohna., [Mr. RonBINs,l who said had not looked at the authorities, as I understood him, has investigated it more ment of removal passes, this would abate a proceeding, which, I have than any other ~ember of the committee. endeavored to show, can only be had for the purpose of removal. It Precisely what Mr. ROBBL.~s had read, this opinion of Judge HoAR is said the law will not require a vain thing; from which I infer does not state. I proceed now with the opinion: that the highest court in the Republic will not render a vain judg- ment. Having thus performed my duty to the next impeachment done. Now, Judge Story, after fnll disc088ion, lays down the doctrine that it cannot be ca e, I return t.o my argument in this case. . We certainly shall not hear from the managers that Judge' Story I have read to the court three sections from Story's Commentaries does not support the position for which we contend. on the Constitution, to show that he did not accept the parenthetical suggestion of Mr. Rawle, nor the concessions made bl counsel for done. Now Judge Story, after full diScussion, la.vs down the doctrine that it cannot be 'In England any.citizen oan bo impeached, and therefore the English case of Blount. Candor compels me to read from the Commentary of Judge Warren Haatm!!S does not apply. In America no man can be impeached but a Story: civil officer, an'a when he ceases to be a civil officer h.e cea.'!es to be within tho lit- SEC. !105. It is not intended to express any opinion in these commentaries, as to removal eral construction of the Constitution. In .America the only jud_!Dllent rendered is which is the true exposition of the Constitution on the points aboYe cited. They to hold office. from office as the principal with the incident of perpetual disqualification are brought before the learned reader, as matters stillii'Ub judice, the final decision shall take place and the Constitution provides that tho punishment of the offender of whicn may be reasonably left to the high tribunal constituting the court of im- judge. as if the impeachment had been had by trial before a jury aml a peachment, when the occasion shall arise. Thejudge (Mr. HoAR) proceeds: Every lawyer knows that Judge Story was in judicial office while he was writing these commentaries; every lawyer knows his method punishment Now, for the11e offenses there is provided in the statute.s of the United States a of fine and imprisonment-, and perpetual clisqualifi.cation t~ holll office. in regard to undecided questions, in all his legal writings. When he Now, sir, thurman beina out of office, and if foundgniltv it being impossible to get came to any important questions, not settled by judicial decisions, he him back into another, l"prot~stagainst this hothast.e without even baYing tho testi- gave t.be arguments pro and con, and invariably declined dogma.f:ical mony printed, and determining the q.uestion whether it is expedient that all tho an· declarations, hnt it is never difficult to discern the leaning of l.ti:; own denceisprint.ed thority of this House shall be exerCised. when it is very likely that when ti.Ji'l e\i- it may befonnd thatthoHousomayarlopt tlwconclnsion to which the mind; notwi thst.anding his repeated assertion that be docs not intend committee have arrived; but it seems t.o me unworthy of this gre.1otoccasion, ami if 44 TRIAL QF WILLIAM W. BELKNAP. I stand alone, I stand here to say t~atthis eacbments. When sittin~rfor the office held uy tlle accuserl was an elective office; that the people tha-t purpose they shall be on oath or affirmation. When tho President of tho United them elves ha(l it directly in their own power to preserve its purity withoutisthe States tried the Chief .Justice shall preside; and no person shall be convicted concwTence of two-thirds of the members present. by refusiu!} to re-elect a man who hacl abused their confidence and betrayed h1s trust hy the perpetration of official crimes; that they had These are the jurisdictional clauses. The fourth section of the sec- condoned his offewses, if he were in fact really guilty, and that the ond article prescribes peremptorily what judgment shall be given upon court of impeachment bn.d no authority consistently with the theory impeachment and conviction in certain particular cases, taking away of government iu that State to countervail the will of the majority from the court all discretion in that regard whatever, in the follow- l>y removing a mau from office for offenses alleged to have taken ing terms: lJlace before his election and of which the electors wero supposed to The Presicl ves at the ballot-box; notwithstanding which, the court intervened, fine the boundary beyond which the court, in uo instance, is author- anu, in order to maintain tlle pmit.y of an office intended for the pro- ized to go, is as follows: tection of their interests, convicteu and removed an officer therefrom, on account of crimes committecl before his election, a-nu which, so far office J nrlgment in cases of impeachment shall not extend further than to removal from and rlisqualification to hold and enjoy any office.of honor, trust, or profit un- as their votes could do it, had been by them coudoned; whereas in der the United States; but the pa.rty convictetlsball nevertheless be liable and sub- the case at bar the only security the people can have is in the con- ject to indictment, trial, judgment, and punishment, accordin~ to law. viction and di qualification of t.he accused, if he should be proved to While, t-o conclude the whole, the last sentence of the first clause be guilty of the crimes alleged against him. of the second article places the restoration of-the party convicted I a.pprehend, however, that the question now under consideration forever beyond the rea.ch of executive clemency by providing that will be settled upon its own peculiar grounds; that it will be deter- the President- mined not by what the framers of the Constitution ed for t!Je consideration of the articles of impeachment against 80:3: William W. Belknap, The usual proclfLmation was made by the Sergeant-at-arms. SEc. 803 . .As it is declared in one clanse t'f the Constitution that "judgment, .in The managers on the part of the House of Representatives appeared cases of irnpt>achmeut, shall not extend furtber than a removal from office anrl dul- qualificatiou to hold any ollice of honor, trust, or profit under t.he United States; " in the seats provided for them. anll in another clause. that "the President, Vice-President, and all civil officers of The resronclent appeared with his counsel, Mr. Blair and Mr. Black. the United &tates shall be removed from office on impeachment for, and conviction The PRESIDENT pro tempore. The Secretary will give the llSual of treason bribecy or other hirrh crimes or misdeme:mors," it would seem to follow th~t the ~nate ci~ the conviction, were bound in all cases'to enter a. judgment of notice to the House of Represenf.atives. removal from ~ffice, though it has a discretion as to inflicting the punishment of The Secretarv read the journal of the proceedings of the Senate sit- disqualification. ting yesterdayforthetrialofthe impeachment of William W.Belknap. But why, may I be permitted to ask, should it follow, or even seem Mr. THURMAN. I move a call of the Senate. to follow, from the premises laid down by the learned commentator, The PRESIDENT p1·o tmnpore. The Senator from Ohio moves a call that the Senate are bound in all cases to enter a judgment of removal of the Senate. Is there objection f The Chair hears none, and the from office T I grant t.bat, if at the time of conviction the party con- roll-call will proceed. victed is in office, all discretion is taken from the Senate; by the The Chief Clerk called the roll, and forty-two Senators answered to fourth section of the second article they are then bound to remove their names. him. But there is not a syllable in either ono of t.hese provisions The PR~SIDENT pro tempore. There is a quorum present. The which, either expressly or l>y any necessary or reasonable implication, Senate is now ready to hear t.be managers. takes away from the Senate the power to dh;qualify, alt.hough the Mr. CONKLING. Mr. President, I have in my hand two questions. power to remove may have been taken away by the resignation of the which I wish t{) ask, and I will send them up now as there is less party accused. likelihood of there being an interruption to the managers at this time For centuries and down to a time within the memory of many Sen- than after they have proceeded with the argument. . ators present., the sixth year of the reign of George IV, I believe, cer- The Secretary read as follows: tain classes of persons in England were allowed, upon being convicted 1. If two persons guilty of crime in office cea~e to ~e o~cers at the of particular felonies, to plead the benefit of clergy, and, in caee their same time, one l>y removal and the other by res1gnat10n, 1!:1 one rather prayer were alloweu, instead of being hanged, as they otherwise would than the other sul>ject to impeachment afterwaru f If a distinction have been, the judgment prescribed byt!Je statute was that theys!:10nld between the two cases exists, please state it. be burned upon the brawn of the thumb of the left hand. Now, If you 2. Is a private citizen lial>le to impeachment under the Constitu- would fully appreciate the logic of t~e. text; if you would ~ealize. to tion of the United States f its utmost ext.ent the force of the pos1t10n that you cannot disqnalify If his having previously held an office distinguishes him in this because ytm cannot remove, that you cannot render .a portion of ~be respect from other citizens, please trace the distinction to the cla11Se judgment because ~ou can~ot the whole, yon h~ve Simply got to Im- of the Constitution, or to t.he principle in which it is found. agine the Lord Chief-J osbce of the court of Kmg's Bench, wrapped Mr. MITCHELL. I should like to ubmit an inquiry at this time, in the amplitude of his magisterial gown, solemnly announcing to a so as not to inteiTupt the ma.nagers after they proceed. trembling culprit whose left hand had been amputat-ed that he most The Secretary read the question of Mr. MITCHKLL, us follows: go hang because it wa.E~ a physical impossibility for the sheriff to v.p- The Constitution provides that when the President of the United ply the branding-il·on to the precise spot prescribed by law! The States is tried on impeachment, the Chief Justice shall preside. Sup- ·c ommentator continues: pose a late President were impeached for high crimes and misdemean- ors committed w hHe President, and presented at the bar of the Senate If, then, there must be a judgment of removal from offi~, i~ would seem to ~ollow for trial, who would preside, the Chief Justice or the President of the that the Constitution contemplated that the party wa.'l stilltn office at the tim~ of Senat~ ? impeachment. If he was not, his offense was still liable to be tried and punished in the ordinary tribunals of justice. The PRESIDENT pro tempore. The Senate is now ready to hear the managers. Certainly it would seem to follow, if the party was in office, that Mr. l\hnager K.."N"OTT. Mr. President-- the Constitution conteruplatee removed upon con- The PRESIDENT pro tempore. Senators will please give their at- viction, for that is precisely what the Constitution .prescribes. It is tention. evident that this learned writer has simply transposed the terms of Mr. Manager KNOTT. When the Senate did me the very great the propo it ion. Had he said, " if then the party was stilt in office at kindness to adjourn ye terday evening, I was suffering intensely from the time of impeachment, it would ~eem to follow that there must l>e a, very paiuful affection of t.he eyes, with which I have been afilicted a judgment of removal from office," he would have said precisely what for some time. I am sorry to say that I find myself in no better con- the Constitution says; only that and nothing more; and he would dition this morning. .By an arrangement between my colleagues and have conveyed precisely the idea intended to be conveyed by the the cormsel who is to conclude this argument, I a.sk the pi·ivilege of framers of the Constitution in employing that language. Ile proceeds: the Senate to conclude my remarks on Monday, inasmuch as the ar- And it might be argued with some force that it would be a vain exercise of au- gument will not be closed _before that time, and that in ~he mea.n thority t~ try. a. delinquent for an i.mpeachable offense when tho most. important time my colleagues who desrre to be hear~ m~y proceed. If. there 1s object for whteh the remedy was g1ven was no longer necessary or attama.ble. no objection to that arrangement, I hope 1t will ue made, as It would Certainly, it might be argued with some force, if it were trne t.hat be a matter of considerable inconvenience for me to go on at this the only object, as argued by learned counsel on the other side, or time. even the most important ol>ject of an impeachment, was simply the The PRESIDENT pro tmnpore. The Chair hears no objection to removal of the official criminal from nffice. llut such. I apprehend, that arrangement. is not by any means the only or the most important object to be at- Mr. Manager JENKS. Mr. President and Senators, with reference tained by this mode of procedure, as we shall presently see. to the qnestiollS which have been submitt-ed by the honorable Sena- tors, I will say that if in the course of the discussion of the subject, And although a judp:ment of disqualification might still be pronounced. the l::m- as we shall enter upon it and conclude it, they are not answered, we guaue of the Constitution may create some doubt whether it can be pronounced witfi'out being coupled with a removal from office shall then take them into consideration. They will be considered in the course of the argument l>efore the managers s:::tall have closed the Of course not. If yon pronounce a judgment of disqualification ab- disco sion. At present I conceive to a great extent they will be dis- solute, that ipso facto removes the delinquent from office; there can cllSsed in wha.t I shall present in the body of my argument. be no doubt about that. The resolution on which this discussion is progressing is the fol- There is also much force in the remark that an impeachment is a proceeding lowing: purely of a political nature. It is not so much designed to punish an offender, as That the Senate proceed :first to bear and determine the question whether W. W. to secure the state against ~ross official misdemeanors. It t<>uches neither his per- Belknap, the respondent, is amenable to trial by impeachment for acts clone as Sec- son nor his property, but Slmply divests him of his political capacity. retary of War. notwithstanding his resignation of said office; and that the man- This closing sentence suggests dil'ectly what it seems to me is the auers and counsel in such arnument discuss the question whether the issues of fact a~e material, ancl whether nfe matters in support of the jurisdiction alleged uy the pivotal idea on which the question under discussion must turn, and Honse of Representatives in the pleadings subsequent to the articles of impeach- that is. what is the rea] object and purpose of impeachmenU ment can be thus alleged if the same are not averred in said a1 ticles. Mr. President, I dislike exceedingly to ask tho favor at the bands There are two maiu propositions involved in this resolution; first, of the Senate, but I am really suffering such physical pain that it whether the Senate, notwithstanding the resignation of the defend- would boa Rreat accommodation to me if the court would adjonrn. aut, can take jurisdiction of this cause; and, second, whether the facts l\lr. EDMUNDS. I move that the Senate sitting for this trial ad- surrounding his resignation are pertinent to be considered with ref- journ; anrl that by the rules will be until twelve o'clock to-morrow, erence to the effect of t.hat resignation. As a general answer to this, rather than half pa~t twelve o'clock. This will save half an hour. we would say that any and every case should always be a.cljndged The PRESIDENT pro tempore. The question is on the motion of upon its own standing, because you can !!!eldom, if ever, find two cases the Senator from Vermont. that are strictly analogollS. You cannot determine the eft'ect of this The motion was agreed to; and the_Senat.e sitting for the trial of resicruation without inqniril1g concerning all the facts ·anu circum- the impeachment adjourned. sta,;ces stU·rounding it. As was stated by the learned counsel for the 48 TRIAL OF WILLIAM W. BELKNAP. defendant yesterday, the fact whether it was colorable or not might triotic devotion, can efface the stain, but the citizen must be forever be a pertinent que tion. The fact. whether it was bona fide intended at the mercy of the prosecuting tribunal, until only in the rest of the tho.t it shoul(l be really an existing resignation or whetber it was only grave oblivion is found, then official life is truly one of grave respon- a temporary re ort to evat!e this proceeding, might be a material ques- sibility. To determine this contention no authority except the Con- tion. Whether it is cha.rged that that is so or not does not affect the stitution can be adduced. Other courts, like t.he planets, may shed relevancy of the consideration of all the facts attending it; but you their reflected light of precedent; the musty volumes of historic lore must judge every ca e upon it own merits, antl wba.tever facts are may afford analogies ; adjudications of similar tribunals may suggest es ent.ial to arrive at a correct conclusion in that case should be taken parallels; but from no source except the Constitution, illuminated into consideration. by the sunlight of rea-son, can the command come: Thus shall this Of the second portion of this proposition, which is concerning the judgment be rendered. collateral facts, I shall say but little, if anything, more than this: In the second section of the first article of the Constitution it is It ba.a been considered by the chairman of the managers; he bas ad- provided that- vanced three or four propositions in support of the view that it is The Honse of Representatives • • • shall have the sole power of impeach· material to consider all the surrounding facts. One of those proposi- ment. tions is, that in law there is no fraction of a day. He has cited au- If the word "sole," which only qualifies the power by preventing thorities to estaulish that; that was the general rnle, t.hat in law any other person or branch of the Government from exercising it were there is no fraction of a day. This being the general rule, an excep- left out, the clause would read: tion was introduced by the honorable connselfor the defendant, that The House of Representatives 1hall have the power of impeachment. is, that if it be necessary to sub erve the purposes of justice, a court It is not a pos ible grant of power, but an absolute one. If this clauee will consider the fractions of a day. Then the matter stands thus: had dechtretl "the House of Representatives may have the power" As a rule, comts will not recognize· the fractions of a day; but as an it would iqdicate a. grant that might exist or might not, dependent upon exception, if it be nece sary to snbserve the purposes of justice, t.hey some contingency outside of the Constitution, such as the willingness will recognize the fractions of a day. Hence, when the counsel cited of t.he Senate to entertain the impeachment, or the willingness of the those authorities to show that they would consider it as an exception, defendant to be impeached, ormanyothercontingencies that might be it wat~ essential to show that it was necessary to subserve the pur- imagined; but the people in the organic law have said the power shall poses of justice to bring his case within •the exception. He left ofl' exist. Whatever that l)Ower may be is granted, not in part, not with jnst where the real contest began: is it necessary to subserve the pur- qualification, but in full plenitude, as the words signified at the time of poses of jm~tice that this court should recognize the fractions of a day t the formation of the Constitution, unless by some succeeding article It seems to rue that there is no necessity iu subserving the purposes of in tho fundamental law that power is restricted. What the power of justice, that this court should recognize any fraction of a day. Put impeachment consisted in will be considered as further progression is the question in this form: How ean it subserv~ the interests of jus- made in the ar~ument. tice, when a defendant is charged with having surreptitiously filched The present mquiry will be, are there any restricting or limiting from t.he pockets of from eight hundred to a thousand men from ten clauses in the Constitution which take away any portion of that which to twenty-five cents every day for five years, that tha.t defendant shall has been considered. • plead t.hh~ as :m excuse that the ell(ls of j nstice are snhserved by rec- In the third Rection of the first article the court is constituted be- ognizing the fractions of a clay~ If he had discus~ed this, nnd sh?wn fore which the power of the House of Representatives shall be exer- that this defendant would have been wronged dul you not consider cised in the following words: it. he would then have brought his case within the exception; bnt, The Senate shall have the aole power to try all impeachments. When sitting for havinrr failed to do that, he leaves it as my colleague, the chairman, left that purpose, they shaU beonoathoraflirmation. When t.h ePresidentofthe United it; tb~t is, that the general rule, if the defendant have not brought States is tried, the Chief Justice shall prcsido: and no person shall he convicted himself within the exception, still exists, and the court will not rec- of without the concurrence of two-thirds of the mem bere present. J ndgment in cases impeachment shall not extend further than to removal from office. and disqnal· ognize the fractions of a day. . . . ificat10n to bold and enjoy any office of honor, trust, or profit under the United States; With reference to the questwn of relatwn, that was not cons1dered but the party convicted shall nevertheless be liable and subject to indictment, trial, at all by the counsel for the defendant, and we shall leave it as our judgment, and punishment, according to law. chairman has left it, with you, and enter upon what to us seems to be The first clause of this portion of the third section, "the Senate shall the main and material question in t.his cause, ancl one in which with have sole power to try all impeachments," is the constitutional grant all deference we feel satisfied that the constitutional law tmstains of jurisdictioJl to this honorable court. Whatever or wboeve.r is em- our position. That is, has the Senate sitting as a court of impeach- braced in t.his grant may rightfully be called to answer at this bar. ment jurisdiction over a defendant who by his resignation after the In itself it is manifestly co-extensive with the power to impeach. And, crime committed claims to be placed beyond its jurisdictional powerf in that'' all impeachments" are ex:pres ly included in the grant, it Jnrisdiction is limited in one or more of three ways. It is limited would seem to forbid that some who have committed impeachable t erritorially, or as to place; it is limlted as to subject-matter; or it is crimes could, by their own act or the act of any earthly power, place limited as to person. Territorially, jurisdiction may be waived or themselves without the pale of t.his comprehensive declaration. ruay be conferred. As to subject-matter or as to person, it is never In addition to this ~ant of jurisdiction, the clause contains the too late to plead it, and it can neither be waived nor conferred at the general rule of practice m this court: the judgment it may pronounce will of the parties. Then we will consider this in these three aspects. and a limitation on the effect of that judgment. It will not be main- Territorially, the Senate of the United States has jurisdiction co-ex- tained that the second part which relates to the rule of practice tensive with the earth. Whether the offense be committed in Wash- limits the generality of the grant. If any limitation is therein con- ington, London, Rome, or Pekin does not afl'ect the right to judge tained, it must be found either in that which relates to the judgment the offender. or in the limitation on the effect of that judgment. Does this lan- As to the character of the offense, it takes cognizance rightfully of guage, "Judgment in cases of impeachment shall not extend further all impeachable offenses. As the plea in this case does not deny the than to removal from office and disqualification to hold and enjoy any offense charged in t.he articles to be ii.npeachable, it is unnecessary to office of honor, trust, or profit under the United States," limit t.h e discuss what constit.utes an impeachable offense, except so far as the general jurisdiction contained in the first part of the clause which question ruay incidentally arise in determining the persons who are includes'' all impeachments1" To effect this result it must operate as criminally answerable before this tribunal. an exception out of the previously-granted power, in tha.t its pro- In further illustration of tbis, we would here state that it doed be- visions are so contradictory that both cannot stand together. come material to consider what impeachment meam~, in order to de- It is not contradictory of the extent of the grant so as to forbid the termine how far the jurisdiction of this court extends as to persons. impeachment of one who at the time of trial or judgment heM no of· By the pro ecntion it is m~intained that an:r p~rson who is o~ has fice, as it only fixes the utmost limit to which the punishment may been a civil officer of the Umted States who whlle m office comrmtted extend. It does not require tba.t t.be criminal shall be removed from an impeachable crime is before this court subject to trial and punish- office, but, if the circdmstances and criminaiity justify, the judgment ment. may include a removal from office. If he be not in office that por- By the defense it is claimed that, if the criminal resign at or before tion of the judgment cannot be inflicted, but still whatever judgment the time the proceedings for his punishment are instituted, thereby the circumstances warrant, not exceeding full disqualification, may the jurisdiction of the ~ourt is ousted and the criminal as to the pun- be imposed. He may be reprimanded; _he may be disqualified to hold ishment consequent upon impeachment is forever discharged. The a judicial office, or a military office only, or all offices, as may seem antaO'onism between these two propositions is what the court by the just. This clause finds a striking parallel in most of the penal stat- defegdant's plea and the replication on the part of the House of Rep- utes, which empower courts to impose a penalty of fine or imprison- re entatives and the people is called upon to settle. {)n account of ment not beyond a given limit, or both, or either, in which case any this issue thA case under consideration is one of supreme importance. part of the penalty may be inflicted. On the one hand, if a criminal may commit a crime of character so Under a similar constitutional power the senate of Pennsylvania, in atrocious that the lives of thousands or the liberties of millions are the trial of Judge Addison, who had been impeached for an impeach- endangered or destroyed thereby and by his own act it will condone able crime in the discharge of a judicial office, sentenced him only the ofl'en e, then the power of impeachment granted by the Consti- that he should not exercise under the Commonwealth of PennRyl- tution for the maintenance of official purity is a chimera, the august vania a judicial office during the term of his life. A strong and very tribunal established by the Constitution for its judgment almost an convincing argument was made in that case that the sentence need idle pageant. · not and should not go so far, but should only extend under the cir- On the other band, if after the commission of an impeachable cumstances of the case to mere reprimand; and it seemed to be con- offense no life of purity, no years of penitent grief, no deeds of pa- ceded that under this clause a mere reprimand might have been given, TRIAL OF WILLIA.M W. BELKNAP·. 49 and nothing further. So there are any number of punishmonts that Another assumption must follow, that all impeachments should be may be inflicted upon a defendant independently of that of removal limited to" treason, bribery, and other high crimes and misdemean- from office, still coming under the clause of disqualification to bold ors," or all the prior assumptions are vain ; for if judgment of re- an office. mov'll from office be not such a necessary and indispensable part of And herein I would also notice this distinction, that the power to the judgment as to oust the jurisdiction of the court in case it cannot disqualify from holding office does not, per se, involve the necessity be rendered, still this section would leave the defendant liable to trial to remove from office, because your sentence may not be that he shall and judgment by this tribunal. None of these postulates would be be disqualified from bolcling the particular office be is then enjoying; grant-ed; but, on the-contrary, the better reason would as to each, it is but he may be disqualified from holding some other office, or some claimed, on careful P.Xamination be found to be in the negative. But other sentence that the court may see proper to inflict. That, then, to enter fully into the discussion of each would require a more full is not a correct construction of this clause of the Constitution which treatise on the subject of parliamentary impeachment than either the says that disqualification necessarily involves removal from office, time or the necessities of this trial would pt"..rmit or require. Hence, because you need not give full disqualification, but only partial, as except as they may incidentally occur in the consideration of the your judgment. It is hence relieved from that notice taken by Judge second, no further notice will formally be taken of any of them. Story and to some extent conceded by others in their discussions of The defend:mt was a civil officer of the United States at the time this question. of the commission of all the alleged crimes charged in the articles. Hence it does not seem to contravene the general grant of power. If his case be not included in t.he general jurisdictional clause grant- The last part of this clause, which says, u but the party convicted ing.the Senate power to try all impeachments, it must be because this shall nevertheless be liable and subject to indictment, trial, judgment, section is to operate as an exception out of the general power, in that and punishment according to law," only guards against the pleading he is not now an officer of the United States, or as a proviso qualify- of this official puni.shrnen-t for official or impeachable crime as a defense in ing it in such a way that it should be construed to read, "the Senate the courts of law, and has no significance as a limitation of the power shall have power to try all impeachments, provided at the time of of tbe court of impeachment. tria.l the accused shall continue in office," or it must be a particular The only remaining provision in the Constitution which requires clause repugnant to the generality of the grant. It need not be con- consideration in this stage of the inquiry is the fourth section of the sidered whether it be an exception or proviso, as .its collocation for- second article, which is: bids such a construction. The Presiclent, Vice-PreRident, and all civil officers of the United States, shall be The only debata.ble ground is the question whether this clause is removed from office on impeachment for, and conviction of, treason, bribery, or repugnant to the general grant. The first power is that which is other high crimes and misdemeanors. placed in the House of Representatives, which sha.U have "the sole P1·ior to the introduction of this section, the power of this court had power of impeachment." This clause leave~:~ it discretionary with the been declared to include "all impeach'ments." The mode of practice House whether all impeachments shall be prosecuted or not., implying, had been in a general wa,y established; its judgment ha-d received its if the offense be tiivial, the ofi(mder insignificant, or the crime of rare limitations and qualifications; the subject of the tribunal for impeach- occurrence, the discretion will not be exercised. On the other hand, ment had been fully considered and finished. The second :1rticle, which if the offense be heinoua, the offender conspicuous, and, the crime embraces the executive department of the Government, was then common ard polluting to the administration of government, this taken up. The subject under consideration in this art.icle in the tribunal shall be invoked to restore safety ancl purity. miuds of the constituent delegates did not include the jurisdiction of The word "sole" forbids any private person to start the machinery any court. '!:hey were providwg a mode by •.vhich the sever:ll offi- of impeachment and denies to all the world the right to legally dis- cers included in this department of. the Government they then had pute the propriety of the prosecution, if an impeachable crime has un(ler consideration, in case their longer continuance in office should been committed, after the House shall have determined upon insti- endanger the Republic, should be removed. If this section were in- tuting proceedings. tenued as a definition of the powers of the court of impeachment, I should call your attention to this: that as the people have seen either as to the persons on whom these powers should be exercised or proper to confer upon the Honse of Representatives the right to prose- tlle crimes of which it should take cognizance, the location is tru1y cute impeachments, and as that power must be conferred upon some- remarkable. The naturalist would not be more surprised to find the body, they have assumed that the House will not exercise this dis- orange or palmetto-tree growing in frill luxuriance in Greenland than cretionary power except when the emergencies of governmental safety the constit.utioual commentator would be to find n. section with such shall require it, so that the Senate need not inquire, nor have they a an object among the powers and duties of the Executive. It is truly right to inquire, whether the House will exercise this power improvi- thus located a rare exotic. Judge Story remarks: dently or thoughtlessly. When the House has made up its mind that B.v some strange inadvertence this part of the Constitution bas been taken from a crime is of a terrible character, the people have said you have the its natural connection, and with no great propriety arranged under tlie heall which right tojndge whet.herit shall be prosecuted or not. The House may, emllraces the organization an1l rights and duties of the executive department.- I maintain, prosecute a common custom-house officer when it ·sees ~tory's Commentaries. volume 1, aectlon 788. proper; but if it seo proper to prosecute even the lowest of the offi- We maintain that there is uo l.lli..'llocation; it is not thrown out of cers of the Government, and conceives that it is its duty so to do, it its regular order. The character of those who gave language to this exercises its constitutional rights, and it is the duty of t.he Senate to voice of the people, the Constitution, was so high, that it can scarcely try it; but it is not probable, and the people so thought when they be conceived tllat they would be guilty of so illogical a tb.ing as to gave this power of attorney, the Constitution, to their Representa- finish a court of impeachment, then step clear out of the jndiciary, tives, that it would not be exercised tmless it were necessary to sub- st~p outside of the duties .o f the Senate, step outk!ide of the duties of serve the general good of the Republic. the court, and then distinctly in a. sepamte clause define the powers So that this discretion is in the House whether they will prosecute of a court which they had already frilly defined; because we maintain or not; and the learned counsel need giYe himself no trouble as to the that impeachment itself is a. complete tlefinition of those powers, and probability of your ever being called upon to try offenses committed a defiuirion that in itself is amply su:tl:icient for a limitation of jnris- by forty millions of people, becn.use t he House of Representatives will dict.ion and for the conferring of the ample powers of the grant. eliminate from the forty million all tlut.t tue general safet.y and gen- Such a mislocation of this section is not conclusive that it is not a eral welfa1·e of the Republic do not demand ought to be prosecuted. new jurisdictional clause, but is sufficient to excite inquiry and sug- But we do not maintain-and I wish now to state it lest I may be gest a doubt. To sustain the plea to the jurisdiction iu thiH case, this ·misnndeiiStood from what I have now said-that we have any right clause mu ·t be construed- . to prosecute any other than official crime. The House of Represent- First. To limit the grant of power to try "all impeachments" to .atives cannot prosecute a private citizen who has not been guilty of impeachments against civil officers; antl to this I would call your official crime. It is not included in the powers of impeachment in special attention, because that is all we propose to discuss especially. England or elsewhere. I shall consider this further, however, as we Second. To such civil officers \18 shall at the date of and during the proceed in the argbment. trial choose to continue in office and abide the judgment of the court. The second grant of the people is "The Senate shaH have the sole I say '' during the trial," because if it he true that the removal from power to try all impeaehruents." In consequence of the infrequent oftice is tlle reason why this is a jurisdictional grant, the pe~son im- use of this power its definition is at first glance uncertain. lf the peached might, a.f ter you had gone through all the formalities of trial, term "murders" or "all prosecutions for murder" were substituted tllen resign and bid you defiance and say, "You cannot remove me for the word "impeachments," so that the clause should read "to try fromoftice; having no powertoexecute,youhaveno powertojudge." ·all murders" or ''to try all prosecutions for murder,'1 it would take· As we progress further in the argument, we shall show that this is in a very distinctly-expressed repugnant clause to divest the juriE~diction' opposition to every recognized principle of law that has ever been of the court. Then if the word "impeachment,s " had a meaning t.o- udopteu in other judicatures. the framers of the Constitution as definite as "murder," or if it had Third. To change that clause, of section 3 of article 1 so that in- any meaning whatever, that word indicated mnst require a no less ~tead of l~avi_ng a. di~cretion _in the court a~ to the extent of the puu- distinctly-expressed repugnant clause to divest this court of the right Jshment, 1t will reqmre that mall cases of nnpeachmeuts, on convic- to adjudge it. And here in the language of Professor Dwight, which tion the defendant impeached must be removed from office. To this is found in 6 American Law Regist~r, New Series, page 257: · I would call your attention also, that the clause which conferred the The Constitution refers t~ impeachment without definin~ it. It assumeR its ex•. pvwer upon the court clearly intended that there should be a discre- istence, and silently points to En~lish precedents for knowledge of 1:\t;ltaiL We are tion in this court, at least in some cases; and if there is a, discretion reminded of the statement that the Constitution is an instrument of enumeration, in some cases to be left to this court, this clause cannot be a defini- and not definition. · : tion of the power of impeachment. The Constitution then has namedthepower, assuming that the sig- 1 I 50 TRIAL OF WILLIAM W. BELKNAP. nifica.tion of that name was known. The language is that of En- impeachment, a.s understood by our fathers, it covers the Blount case glish parliamentary law; and whatever it then signified the framers in this: The Blount ca e decided that it must be an officer of the of the Constitution meant it should signify here; otherwise it is United States who was impeached. The very definition of impeach- meaningless, and the whole grant an inanity. ment sa.ys it must be an officer of the United States, becau e an officer Impeachment, like the common law, was a. work of time. At first of a State as to the United States is a mere citizen, and yon cannot but indistinctly limned out., but little by little, with each recurring impeach a citizen in any court of impeachment. So that 1bis detini- case, its characteristics were developed until finally in the Constitu- tion of impeachment, which will be found to be consistent with as I tion of our coun"ta:y it stands forth with fully-delineated features. believe every decided case, and if it be not with every case, the case Of German origin, there the accusing and adjudicating tribunals were that does not conform to it is exceptional, we say it completely em- one and the same,, but then, although in the constitution of the tri- braces the Blount case without calling into requisition anything from bunal the maxim whlch forbids the prosecutor to be the judge was the fourth section of the third article of the Constitution with refer- violated, the crime to b~ punished was official crime, visited with ence to it. civil and official punishments. Imported into England, the prosecut- In Rawle on the Constitution it is asserted: ing and judging tribunals were separated. The Commons prosecuted; In general those offenses which may be committed equally by private persons or the Peers judged. This was one step toward the perfection of the public officers are not the subjects of impeachment. < proceeding. There, as in Germany, the crimes impeachable were official crimes, and the punishment was alike civil and official, as in That is the way our ancestors understood it, that an offense which Germany. By the judgment of the high court of impeachment the could be committed only by an officer was all that was the subject of officer was often deprived of his office and politically disqualified. 1mpea{Jhment. This statement Judge Story cites with approval, as But the citizen, too, by the same judgment in the same case, was often found in 1 Story, section 801. deprived of his life or his property. The punishment of the officer I made inquiry also of Mr. Spofford, the Congressional Librarian, and citizen was merged in one heterogeneous sentence. As the and on research he states to me that he found no case that did not come English r.onstitution improved on the German by separating the prose- within the statement that officers only were prosecuted, and his cuting from the judging tribunal, so the Constitution of the United researches, as you all know, are usually exhaustive and complete. States improved on that of England by separating tho conviction and Hence I will assume that thi~:~ is the definition of what impeachment the punishment of the officer from that of the citizen. By the Con- means, official crime per se; and the Con~:~titution, when it says the stitution the officer is to be judged by one tribunal for his official Sen':tte shall have the power to try all impeachments, says this Senate crime. He is to be judged by another as a ma.n or citizen. By one shall have power to try all cases of official crime; the House of Rep- tribunal he is sentenced for his official crime, a sentence that oper- resentatives, it is to be remembered, is the power to prosecute, the atf>s on him only as an officer; by the other he is sentenced as the House having a. discretion whether they will call all official crime citizen by the deprivation of some of his personal rights. The sen- before yon or not. tence of one tribunal may be removal from office and disqualification I wish also to cite from Blount's case as an authority to show that to hold any office under the Government, which amounts to official in that case this view was asserted and not denied ; that is, that the death, or any other official punishment of inferior degree. In the definition of impeachment itself meant officia.l crime. On page 2266 other he may be sentenced to physical death, or any other usual per- of the volume of the Annals of Congress containing that tlia.l, I read sonal pnniohment of inferior degree. The one tribunal dea.ls with from the ar(J'ument of Mr. Dallas-and here I may say that Wood- the officer as an officE\r, and on conviction inflicts an officia.l punish- deson himseif, by not considerin~ the force of what Justice Black- ment; the other deals with the offender as a citizen, and on convic- stone had said, left the impressiOn that commoners as commoners, tion imposes a personal punishment. not in office, were subject to impeachment, and that is commented on This separation between the officer and the citizen is that which by Mr. Dallas in his argument. He says: now perfects the jurisdiction of this court and fully defines what Speaking of Wooddeson's lectures- ou~ht to be the power of a conrt of impeachment. It treats the two That all the king's subjects are impeachable in Parliament ; but with this dis- subjects as thongh they were different men: the officer as one man, the tinction, that a peer may be so accused before his peers of any crime, a commoner (though perhapR it was formerly otherwise) can now be charged with misdemeanors citizen a.l:4 another. Although it may be the sa,me individual that only, not with any capital offense." This ~sition, however, must be understood commits the two crimes, yet he is adjudged for each crime in its own in coincidence with the general policy preVIously stated; and then all subjects are appropriate tribunal. Hence our system has perfected that which impeachable, berause all subjects may be magistrates and public officers. The in- was borp. in Germany, matured partially in England, and completely tion stances specifted in Wooddeson are all of an official nature; and no other descrip- of impeaehment by the CoiD.IDons can be traced in the English books. consummated here. This brief 1·esume loads to the definition of impeachment a.s usecl So that :Mr. Dallas has made tho same investigation apparently that • in the Constitution as the p:uliamentary prosecution of official crimes. I have with reference to this subject, and came to tho conclusion, No formal definition perhaps bas been announced. But with this after examining the authorities cited by 'Mr. Wooddeson and the sev- view no work wi ~hin our rt>a.ch has been found to disagree. Im- eral digests, and found that the very word "impeachment" itself de- peachable crimes, as administered in courts of impeachment, have fined that it included nothing but official crime. a.l ways been official crimes. The Constitution recognizes two characters of crime as distinct; On this subject I wish to call your attention to a complete review those committed by an officer in his official relation, to which an of the anthorit.ies. I have not made it here, because it would be a official punishment aa a penalty is affixed; the other, individual crime work of days, and it would be trespa-ssing upon your time more than by the citizen, of which a personal punishment is the incident; and would bo justified. But if yon go over the cases cited in Comyns's althou~h the officer a,nd the citizen may be one, and he may commit Di~est, Bacon's Abridgment., or any other work treating of the sub- two crrmes, the official and personal, by one act he cannot in the ject of impeachment, you will find that there is no case in which the same tribunal receive punishment. for both, but if both are to be pun- crime was not official crime. The case that comes nearest contra- ished, the operation of two different tribunals must be invoked. The vening this definition is that of Doctor Sacheverell, a. parson of the official crimo, a.s such, cannot be punished in the ordinary courts of English Chnrch, who wa-s prosecut.ed for prE>aching a. seditious ser- llllw. Then if the official crime is not to pass unpunished, it must be mon. Here at the first blush it might t~eem a.s though it wus a pri- punished by this court. To justify the conclusion that a character ve~.e citizen who wa-s pro ecuted. But when you go back to the facts of crime that strikes at the foundation of civil government is by a of the case, this state of facts exists. In England there is an estab- subsequent repugnant clause in the greater number of instances lished church; he was a minister or parson of this church, officiating placed beyond the reach of the powers of the only court by which it minitlt.erially, and under the established church. .At first advowsons, can be punished, is scarcely to be credited. If to this be added the us you will all recollect, were prese:mtative: conative, and donative. fact that such~ conclusion must always leave it to the option of the Donative are those which art'l h~ by the king in his own person. criminal whether he will be punished or not, re.quires a. larger devel- An advowson, "t.he right of presentation to ecclesiastical bene- opment of credulity than the most of mankind can ever be exp~cted fices." The king appoints in all donative advowsons either himself to possess. or a subject to whom he has granted the franchise to appoint in his Now, is there such a repugnancy between this clause and the gen- stead. Justice Blackstone says that in the first instance all were do- eral grant which went before as to call for this superabundant cre- native; those that are not now donat.ive, that are presentative·or col- dulity f If this section be considered in the view that it has" Rome lative,. have become so through time, but they all trace back to the jurisdictional power or effect more than merely to require upon the great fountain of office a.nrl honor, the king. He commissions. They commission of a given character of impeachable offense by a. certain are. really officers of the Government; they ate really discharging class of officers and conviction therefor a. fixed punishment must be d!lt1es ~nder th~ l~ws of tha~ ~overnment, commissio_ned by the inflicted, which is the view most favomble to the defendant, then it king, directly or mdtrectly recetvmg their emoluments ancl pay from must be claimed a repugnancy arises from the fad that the criminal th~ govemment. Hence that case, which is the only one that can be must be a. civil officer of the United States. This is not repugnant ~ounu ~hat ap~at-s .in any way.~ ~ontravene the genera.! definition to the general grant, as it is only one who is or was an officer of the 1s not m colhswn with that detimtion, but rather in support of it. United States who could commit an impeachable crime, as the offen e But I may say here that a sporadic case can be found in opposition must be official. In this we join hands with the honorable counsel to almost every principle on earth; and he who is so omnivorous as to and say that he must be an officer of the United States. But the ma- take down everything that comes before him must inavitably have terial question arises after this, When must hf; be an officer of the much food that is difficult of digestion. Even if a single case were United States f .At the time he committed the crime, or at the time found which differed from this definition, it would not break down he is convicted f the i,rre&t principle running through htmdrecls of years. Unless this question is to be answered in opposition to all the course . T.Utm, it official crime \Ytts always that which was prosecuted by of procedure in cdminallaw, it is the locality or status of the criul- TRIAL OF WILLIAM W. BELKNAP. 51 inal at tbe commission of the crime that establishes alike his guilt the Constitution, using identically the same language that is used in and the jurisdiction to which he should be hehl amenable. every statute relating to the same subject-matter, shall receive a dif- If this clause of the Constitution may be viewed in tliree different ferent construction from that which every court under all circum- aspects, the aspect that he might be impeached after election for an stances has given to such statut.esf We maintain that there is not oftense committed before he went into office would fill all that has even plausible color for _such an argument as that. If yon yourselves been discussed by the counsel for the defenda.nt. That is, a man should appear in any court of criminal jurisdiction with such a plea, might commit treason to-da,y, he might commit bribery to-day, be it occurs to me that you would feel that you were disgraced in your might have received a presidential pardon therefor, and four years professional character. from this time be might be elected to office ; and, if his being in office Then that portion of the section, "the President, Vice-President, and conviction of treason and bribery, according to the llmitn.tions and all civil officers of the United States, shall," &c., by the ordinary they propose to use this article for, were the terms that defined the rules of construction signifies th;J.t the time when the accused was impeaching power, be could, for that bribery for which be had been required to be an officer of the United Sta.tes is at the time of com- pardoned, still be impeached and removed from office. This is not mitting the crime. true. There is Rome time at which it means he shall be an officer. It I refer to the case of Lord George Sackville, who at the battle of does not mean that he shall always have been an officer, but it men.ns Minden comm:tnded the British forces under Prince Ferdinand, who some specific time, and we maintain that that specific time, in accord- for disobedience to the command of his superior officer or cowardice ance with every precedent in criminal ln.w, is the time at which the fell into disgrace. In September, 1759, he resigned. His resignation offense was committed. It is the loca,lity or status of tho criminal n.t was accepted immediately, and bo was dismissed from all official em- the commission of the crime that estn.blishes alike his guilt :tnd the ployment. In February, 1760, a court-martial was called to try him. jurisdiction to which he shall be amenable. . The question wa.s submitted to the twelve judges of England whether If the crime be committed in one county or district and after the a citizen could be subjected to a court-martial. The judges responded deed is done the criminaJ escapes into another county, the jurisdic- that he could. After full consideration they decided h1m subject to tion of the court where the crime is committed is never questioned. the judgment of that tribunal, notwithstanding his resignat.ion. He An illustration was used by one of the defendant's counsel to show was accordingly tried by court-martial and convicted. that they could step out of the jurisdiction of a criminal court. He On this same subject I will call the att.cntion of the Senate for a called to his ::t8sistance the fragile fabric of civil cases to illustrate moment to Scott on Military Law. With this authority one of the this criminal one. I take the ground now distinctly that t.his is a honorable counsel for the defendant must be very familiar, for be de- criminal case; thn.t removal from office and disqualification is a pun- livered an opinion upon it, I see at the foot of the page. But I "hall ishment; and, in support of this, the case of Cummings vs. State of not quote his opinion as an estoppel. Estoppel seems to be the fa- Missouri, 4 Walla{le, n.nd In re Garland, in tho same volume, fully vorite doctrine of the counsel for the defendant. I will not nsk that corroborate me that it is a punishment; a-nd we think that this is he shall be estopped by it, but I will ask if it is the truth yon shall conformable to the doctrine asserted on impeachments heretofore. accept it. If a statute declare that certain acts of a cashier of a bank or other Section 630 is as follows: tr11stee shall constitute embezzlement, it would never for a moment No person shall be liable to be tried and punished by a general court-martial for be entertained that the criminal by resigning the office of cashier or any offense which shall "ppear to h.we been committed more than two years before trustee could thereby escape the punishment for his crime by plead- the issuing of the order for such trial, unless the person, by rea.son of having ab- sented hinisclf, or some other manifest impediment, shall not have boon amenable ing that at the time of information or trial bad he was not cashier to justice within that periotl or trustee, and therefore was not covered by the provisions of the I now read from the note: penal statute. All the statutes with reference to that subject speak In the only instances in which this phase of the question of jurisdiction has been of the crime, that if the cashier did so and so, or if tho trustee did so passed npon by the civil courtd of our own country, it hns been affirmed that the and so, he shall suffer such and snnh punishment. Should not this case .Jnrisdictionofcolll'ts-Jlill.l'tialcomprehended:illoffenseacommitted while the offender receive the same construction f Substitute for cashier or trustee the is subject to the Rules and Articles of War, whether he had or had not continued ca eofaPresidentcommittingtrea.son, bribery, &c., and what interpre- in the military service. tation would you ~ive itT You would say it did not mean he must be That is, all offenses commitfe.d while he was sn bject to the Articles President itt the time of trial. You would sav that it does not mean he of War, whether at the time of trin.l he had or had not continued in must be President at th"' time of conviction or at the time of sentence. the military service. But you would say it means he must be President at t.he time he did Mr. Cushing at one time delivered au opinion that be could not be this wrong. AR to the illustmtiou proposed by defendant's counsel, if tried ; that whenever he went out of service the power of the court- General Jackson were living at the Hermitage to-day and the House martial to try him was ~one; that its jurisdiction was divested. In should see proper to impeach him for some removal of the deposits colli!Oquence of this opinwn of Caleb Cuehing, au express statutory en- from banks while he was President would you have authority to try f actment wag made to repudiate that doctrine as found in a section in I say if he committed the crime while in office and the House of Rep- the same work. I have not the sections rightly nnm be red, and, as it resentatives of the United States, endowed as they are with the right will take me too long to find it, I will not read the section enacted to judge whether he shall be impeached or not, say he should be im- for the purpose of avoiding the opinion given by Mr. Cushing. This peached you have the power to try him, whether it was General Jack- is Mr. Cushing's opinion : son or no matter who it was. Attorney-General Wirt was of opinion that soldiers discharged in consequence There is no limitation to crime except that by express statutory en- of the re-orypnization of 18Zl were no longer subject to military law, at least; for actment. Limitations to crime are made by statute, and not by in- the completion of a punishment which in its charncter looks to their restora-tien to ferences. At the common law, if a. servant killed his master or a wife the milit.'l.ry service when the punishment shall be over, as sentences to confine- her husba.nd, it was petit treason. If a servn.nt should plead that the the ment, hard labor, &c. There is color for the opposite opinion, but I hold this to be safest aD.!lsonndest on the L'low as it stands. deceatied, at the time of informn,tion made or at the time of verdict rendered, was uot his master, that. would be the truth ; still the court Judge Black, while Attorney-General, delivered the following opin- would reply, as we reply to this defendant," You were his servant at ion: the time of the commission of the crime, and your condition at the It is by no means clear that t-his circumstance (the dismissal of the officer whose time you did the deed is that which fixes your guHt or innocence." case was then under advidement] p1'\Ced him beyond the jurisdiction of a court- Almost every penal statute for the punishment of crimes by an officer martial. speaks of the subject of the statute as an officer of the United States; He remarked also that- yet it never or.curred that it at all implied that the criminal 11.hould, In England the ~nrisdiction of a court·martial unde-r such circumstances was at the time information wag made against him, be an officer of the unanimously sustained by the twelve juc.lged in the case of Lord Geo~e Sack- ville, and their decision is recognized as the law by Tyler, page 113, in Griffith's United States. He may hn.ve resigned, but the stain of his crime re- Notes, page 32, and in other respectable works on military law and courts-martiaL mains. This point was incidental only t.o the question before Mr. Black, and · This we will illustrate by the very case under discussion. Allow be explained that its introduction- me to call your att-ention for a minute to the very statute under which Was not for the purpose of pronouncing an opinion upon it, but to avoid miscon. in a criminal court this defendant would have to be brought to the ception, because silence would have been regarded as an admission that the jurisdic- bar, (section 1781, Revised Statutes.) If a court should give the tion of a court-martial expires with the solaier's term of service. , same construction to the statuto which the counsel for the defendant Section 1070 of Scott's Military Law reads as follows: a k you t.o give to the Constitution of the United States, they would This article of war- 4ave to refuse jurisdiction, for it speaks of him as an officer of the United States. Take section 1781: Section 630, which I have read- is a statute of limit.'lotions in case of proceedings to punish persons for offenses Every member of Congress or any officer or agent of the Government who di- "a.risir•g in the land forces." As at present advised, I do not see what provision rectly or indirectly t'l.kes, receives, or agrees to receive any money, property, &c.- oi the Constitution, or statute, or principle of common law can be invoked to pre- vent the arrest and trial of a person by court-martial for a military offense com- .· Going on and giving the limit of the punishment. The language mitted while such person was an officer or soldier of the Army of the United States }"- after- Every member of Congress or any officer or chief of any Departmtmt of the Gov- Italicized- ernment. after the expiration of the term of service, so that the order for the trial is issued Their plea to the cour~ of the District of Colnmbia.wonld be, "I am within the time limited by the Article of War. not au officer of the Umted States, as that statute says. Not being That is, within two years. an oft1c~r of the United Stat.es, can yon prosecute me f Have I not And so in principle it seems to have been held in the case of Lord Goorge Sack. made out a full and complete ca-sef'' Senators, how can you say that ville, as reported by Tyler in his trea_tise on courts· martial. 52 TRIAL OF _WILLIAM .W. BELKNAP: 1~71. fn tha~ case it ~ppeared that, as tbe<~efend::t?t ha~ be~ndismisscd from His execution; they cannot enforce their judgment. They put out their MaJesty_ s serVIce preVIously to the _prosecntio_n a_glll;ns_t hun, It was doubted un~er. execution· but tbev cannot collect the money And ay thi defend- the mutiny act whether he was subJeCt to the Juri dtction of the court; upon which , ' l " · f _ that question was referred to the twelve judges, who certified that under the cir- ~n~ S ~Ot~nse : If you Ca?not ~n ot "O your sentence, you b:we no cumstances of the case they saw no reason to doubt the juris£liction of the court· JUTISdlCtiOn; yon cannot gtve a JUdgL...ent." You canqot argue from mar~al. . . . . . the want of bility of the court to carry out that which it ueciues 1012. In f'e Will1am Walker, deruded ~yMr: JustiCe \_Viltle, of the supreme cou~t that it has no J'uri diction to decide. It has never be n admitted of Massachusetts, and after consultation With and With the concurrence of b1s . . ' urother juclges, and reported in .American Jmist, .April number, 18:10, it was held and never w:n be, I thmk. In the. c_a e of Rhode Island ~8. l\ias a- that a seaman who had committed a naval offense, and had been arrellted therefor cbusetts a bill was filed by the solic1tor of Rhode Island m the Su- o~ thedaypr~cedin_gtheexpilation_of ~s term of his service, might be detained ~or preme Court of the United States to settle the boundary between the !'nal and purus~ent a~r the exp1ration of ~uch ~ In the ~urse of the opm- State of Massachusetts and the State of Rhode Island and this very 1on the learned JUdge mtes the case of Sackville, c1ted supra, Wlth approval; and . ' . upon the general question says: . . . plea wru;; mterl?osed that the ?ourt ~ould not enforc.e 1t.s senten~e ; "It is true that. a seaman is not bound to do semce after the term of his enlist- "how will you Issue an executiOn or u;sue auy mandate to a sovermgn R!E>nt. But within that term he i~ bound ~ obse~ve the rules an~ regulations pro· State saying you shall abide by this boundary or this judgment which v1ded_for ~egl?ve~entof the Na:'Y, af:ld Is purushab!e for all CI~esan~l o!fen_ es we shall reuder!" The SUJireme Court after con iderincr it fully comm1tted m VIOlation of thoro dlll'lll~ his term of serVIce. There 18 no limitation . ' ? ' of time within which he is to be prosecuted and tried for such offenses, but if there and after Jt had been argneu by the first lawyer of the na.t10u at that were it would be sufficient to show that the prosecution was commenced within time, decided they bad juri diction. Because they could not ca,rry the time of lilnitation." out their decree could not prevent the court from rendering a jndg. In corroboration of this view, I suggest the principle that when ment that would be binding. It does not follow that the court can- any one enters upon an office he is not relieved from all the duties not enter into a case for want of jnriscliction. The personal inability and responsibilities of that office, civil and criminal, until they are of a defendant to receive and sutfer the full sentence of a court. can- fully discharged. not be interposed as a ground why the jurisdiction of the court shall The punishment by impeachment is an incident of a civil office, not be sustained. That was well illustrated by my colleague ye ter- and be can no more throw off Iris responsibility criminally than he day [Mr. KNoTT] concerning the benefit of clergy. Because the could throw off hit:~ responsibility civilly to account for the moneys thumb cannot be burned, therefore there can be no judgment by the that came to his hands. His official duties are not consummated court, and therefore the jurisdiction of the tribunal would Le ou ted! until u.fter ho shall have performed all and subjected himself to every Can you sustain such a view as that in this tribunal t requirement of the law under which he went into office. Mr. LOGAN. Mr. President, before the manager leaves that part Therefore, it seems tome there is not even color for saying that this of the case which he was discussing under the Articles o.f War relative man is now ont of office for the purpose of this prosecution, because to courts-martial, I have a question to propound. he has not fulfi1led all his responsibilities nor discharged a.l l his du- The PRESIDENT pro tempore. The Secretary will read the inquiry ties. If he had retained some money that might haY~ come to his propounded by the Senator from Dlinois. hands, for which he was by law accountable, would his resignation The Chief Clerk read as follows: icted; if after conviction, he shall not recei>ejudgrmmt; if after judgment, full and JUSt de erts he must have the nght to claun exemptwn from he shall not l>e ordered for execution; forjurimtus solo furore punitur, and the lawl tri.-'11 and judgment. knows not bn~ h~ might ~ave offer~ some reason, .if in _his senses, to ha'\"e sta?e • Stuarts contended for that principle, and when Parliament pnssed a The convention that framed the Constitution depended upon th6. 56 TRIAL OF WILLIAM W. BELKNAP. process of impeachment to secure the people against two great d~n­ has, I believe with scarcely an exception, been exerted in England gers : usurpation of executive power and official corruption. Their justly and with the most beneficent effects upon public liberty and debntes, the debates in the State conventions, the countless argu- public virtue. I have not examined every recorded case. If I had I ments addressed to tbe people through the press, all show that the ought not to weary you with t heir recital. Bnt I will cit e one weighty men of that generation expected the Constitution to stand or fall as authority, which you will, I think, accept as decisive of this quest ion. it had solved the problem of protection against these two dangers, Hallam, the gre:tt historian of English constitutional liberty, says of executive usurpation and use of office for corrupt personal ends. 'fhe the impeachment of the Ea.rl of Middlesex, in the time of James I: discussions were of methods which should a.fford protection against This impeachment was of the hi~hest moment to the commons, as it restored executive power and executive corruption; the maxims cited were forever that s'tlut.ary constitutional right which the single precedent of Lord "Bacon the maxims which restrain executive power and executive corruption. might have been insufficient to establish as against the ministers of the Crown.- Hallam's Constitutional Hil;tory, volume 1, pery question of fact which is in- when he was impeached, and that the acts charged were not done in volved in the issue f" That was the argument which those counsel the execution of his office, and the cause w:tS beard on a replication submitted to the Senate at that time. to this plea in the nature of a demurrer. Of the soundness of the decision in the Blount case no question as I wish for a moment to ask the Senate to consider the proposition far as I can remember has been raised since. That the members of which the learned counsel on the other side founded upon that judg- either House of Congress should be impeachable by or before the ment. They would have you believe that the judgment of the Senate othet·, or that an officer whose duties are legislative should l>e called sustaiuin(J' that plea, and declining to take jurisdiction, was because in question elsewhere for official acts, could never be tolerated and they dee~cd that a person liable to impeachment while in office could is repugnant to the nature of the office itself. The claim that the de- not.be impeached after he had left it; and it is therefore an author- cision was on the ground that be was out of office cannot be main- ity on their side. If that be true, then the question whether a Sen- tained. Would Blount have been impe:lcbable if be had staid in ator of the United States can be impeached by the House of Repre- office t Does the learned counsel maintain that f There has been no sentatives is an open question under our Constitution. That is con- attempt to do it. Although I am sorry to say there have been cases trary to the jud~ment of every text writer, and I venture to say of enough of official misconduct, no attempt bas been made to impeach every member of this tribunal, however he may incline on the final a Senator or Representative from that day to the present. question. If that 'be true, we have no authority under the Constitu- This question was directly presented in the case of Barnard in tion which determines that the House of Representatives cannot im- New York in the year 1872. After very full and able arguments, tbe peach one of its own members, or that it cannot impeach one of the court of impeachment, consisting of the court of appeals and the mernl>ers of this body and compel the Senate to put him on trial. senate, voted 23 to 9 that the plea of the respondent that he could No, Senators, the judgment in the Blount case, as has beeri the unani- not be held to answer for offenses committed in a former term of mous construction given to it ever since, is that the nature of the office which had expired be not sustained. The court afterward senatorial office, the nature of the office of Representative in Congress, unanimously found the defendant guilty on most of the articles to is utterly incompatible as created in the Constitution with the ap- which this plea applied. plication to it of the jurisdiction of impea~hmf'nt. Is it to be toler- The counsel attempt to break the force of the decision in the ca.se ated~an two branches of a legislative body dwell together under of Judge Barnard by sns-gesting that it only decides that a man who the Constitution in peace if one of them has the constitutional pre- holds one office can be Impeached for what he did in another. ln rogative to lay its hand upon a member of the other and force that other words, it is gravely claimed that the decision of Barnard's case body to which he belongs to put him on trial for an abuse of that is on the ground that you may impeach a civil officer only while he very legislative office to which he was elected f That is the limita- holds office; but that you may impeach him while he holds office for tion of the doctrine in the Blount case. The power of removal is anything whatever which he did before he entered upon it, whether given to each House for those very causes by another and independ- those acts had anv relation whatever to the office he holds or not. ent and exclusive provision of the Constitution, as my distinguished Can any Senator, :i:fter reading the discussions in the Barnard case, colleague [Mr. LAPHAM] suggests. believe that any member of the tribunn,l who composed it rested his The principal argument on both sides was on the question whether decision on that ground f The able and ingenious counsel who de- a Senator was an impeachable ci \'il officer, and there is no doubt that fended Judge Barnard did not deem it fit for them to present this the judgment sustaining the plea was on that ground. But the opin- ground to the court, so far as I can see, and the counsel who prose- ions of the very able counsel on both sides constitute very weighty cuted the impeachment against him had nothing of the sort to say. evidence of the contemporaneous understanding of the Constitution. I have, Senators, one other authority to cite on this matter. It is The two managers, Mr. Bayard and Mr. Harper, and the two counsel the opinion of an individual statesman, but carrying with it a weight for the defendant, Mr. Dallas and Mr. Ingersoll, were among the ablest on such a question as this not surpassed by that of anything except a lawyers of their day. Mr. Bayard said: judgment of the Senate itself. If this were a doubtful matter his It is also allej!ed in the plea ~at the party impeached is not now a Senator. It character and history might have been expected to bring him to an- is enough that he was a Se.n ator at the time the articles were preferred. If the other result. He had held. every variety of civil office. His life wa.s impeachment were re&ular and maintainable when preferred, I apprehend no sub- an example of independence of individual judgment, of a struggle ou sequent event grounaed on the willful act, or caused by the delinquency of the thoMideof liberty against authority, against the power of public bodies party, can vitiate or obstruct the proceeding. Otherwise the party, by resignation and of public opinion. His early youth was passed among the open- or t.he commis ion of orne offen e which merited and occasioned his expulsion, mi~ht secure his impunity. This is against one of the sagest maxims of the law, ing scenes of a revolution. In middle life he was driven from the winch does not Ylow a man to derive a benefit from hi.s own wrong. Presidency, which he had administered with unsurpassed wisdom and Mr. Dallas, for the defendant, said: integrity, by a storm of popular delusion and folly. At the age of fourscore, in the cause of liberty be had bared his breast against a. Thtre was room for argument whether an officer could be impeaehed after he dominant majority both of Congress and of people, lookiog only "to was out of office; not by a voluntary resignation to evade prosecution, bnt by an another age" for his vindication. Certainly this man would not in- adversary expulsion. cline to extend unduly the power of a political body to punish polit- -Mr. Ingersoll, for the defendant, said : ical offenses by a judgment of political disfranchisement. It is among the less objections of the cause that the defendant is now out of office Yet John Quincy Adams, in 1846, declared: not by resignation. I certainly shall never contend that an officer may first com- And here I take occasion to &.'l.y that I differ from t.h e gentleman from Virginia, mit an offense and afterward avoid punishment by re igning his office; but the de- fMr. Bailey,] and, I believe, other gentlemen who ha.ve stated that the day of im- fendant has been expelled. Can he be removed at one trial ancl disqualified at peachment has passed, by tho Constitution, from the moment the public office another for tbe same offense¥ Is it not the form rather than the substance of a expir~. I hold no such doctrine. I hold myself, so long as I have the breath of trial1 Do the Senate come, as IA>rd Mansfield says a jury ought, like blank paper, life i.:n""my body, amenable to impeachment by this House for anything I did during without a previous impression on their minds¥ Would not error in the first sen- the time I held any public office. tence naturally be prot.! ucti ve of error in the second instance ¥ Is there not reason Mr. BAILEY. Is not the judgment in ease of impeachment removal from office 7 to apprehend the stron~ bias of a. forml'r decision would be apt to prevent the in- Mr. ADAMS. And disqualification to hold any office of honor, trust, or pi'otlt un- ftuence of any new lights brought forward upon a second trial. der the United States forever afterward; a punishment much greater, in my opin- ion, than removal from office. It clin,gs to a. man as long as he lives; and if any It seems to me that the consenting opinion of these leaders of the public officer ever pnt himself in a. J.>OSition to be tried by impeachment, he would American bar, two of them making a concession against their client, hn.ve very little of my good opinion if he did not think disqualification from hold- is entitled to great respect. They all ::tgree that the fact that there ing office for life a more severe punishment than were removal from office. I hold, therefore, that every President of the United States, every Secretary of State, every can be no judgment of removal is not decisive against the mainte- officer impeachable by theln.ws of the country, is as liable twenty years after his nance of the proceeding; for that is true whenever the office has office expired as he is while he continues in office.-Oongressional Globe, April 13, been laid down. But the defendant's counsel confine their objection 1846. solely to the fact that the removal has been accomplished by another The learned counsel did me the extraordinary honor to quote to the constitutional mode of dealing with the same offense, and one which Senate some words which I uttered in another place, tl.ae discussions has disqualified the tribunal itself from proceeding to give judgment in which are not very proper for consideration here, as it seems to me, in impeachment. when this question was up. The honor was a little diminished by the I do not agree with the distinguished ~eut.lemen on the other side fact that the same counsel think that the House of Representatives as to the statement of a principle of constitutional law made by Jared are forever estopped in their great constitutional power of impeach- Ingersoll and .Mr. Dallas-a concession directly against the interest of ment by the legal opinions of Mr. WILLIAM LAWRENCE in the Fortieth their client-because they were 'c onceding that under some circum- Congress, as matter of law, and as matter of fact by the action of stances a person could be impeached after he bad left an office. It was Mr. HIESTER CLYMER in this. I snppo e we might perhaps re- for the interest of their client to maintain the general doctrine that ply by the citation which ruy honored associate [Mr. JE.~-x:s] made under no circumstances could that be done. One of these distinguished of the opinion of Mr. Spofford, the Librari:w, who I suppose fairly by gentlemen says be is not capable, he never will be Jed by any profes- the same logic would estop l>oth branches. When the la,ngnage which sional necessity, to argue that a man who lays down his office to avoid Mr. Carpenter quoted the other day was uttered, tbtl question was on the penalty of his crime can so escape, and the others in different lan- pa.ssing the resolution to impeach this officer, under t'he previous9ues- guage but in substance concurred in the same opinion. They pnt their tion, when a member of the House who has not at all changed his in- 60 TRIAL OF WILLIAM W. BELKNAP. dividual opinion on that subject insisted that more delay should be Somers was impeached for putting the great seal to a disadvan· p;ranted, and quoted the opinion of Judge Story, or the inclination of tageous treaty. Judge Story's mind, as showing that it was a very grave and serious The word ''impeachment" meant, when used in the Constitution, question. I will not stop to read the language, but I S3.i d, ''I the right to proceed acconling to the usages of Parliament against think very likely that the House will come to the conclusion on such persons and for such offenses as those usages permitted. . examination t,hat it has the power," and, as some gentlemen who It bas been claimed that no . person can be convicted except for now do me the honor to listen to me know very well, I stated to the crimes or misdemeanors indictable by statute or at common law. gentlemen who sat about me at the time my own individual opinion But the English authorities, too numerous to be cited, are otherwise. that the power of the House existed and that the j nrisdiction existed. If the question were ever an open one whether an officer can be im- Suppose when this trial opened a proposition had been made to limit peached for high official misdemeanors not prohibited by statute and . the distinguished counsel for the defendant to a five minute' or sixty not offenses at common law, it must be taken to be settled hy the judg- minutes' defense of their client for a discussion of this great consti- ment of this court in theca e of Johu Pickering, who was impeached, tutional question, is it not pretty likely that some Senator, whatever convicted, and removed from office for drunkenness and impropriety nright have been his individual judgment as to the law, would have of speech on the bench; and .by the expre s and unanimous resolu- ri en in his place and said, "Senators, here is a grave constitutional tion of the Senate when they expelled Blount, in which they recited question about which such a jurist as Judge Story has doubted." that be had been gnilt.y of. high crimes and misdemeanors, which are Could he not do that without being prejudged or charged with any the terms URed in the impeachment clause, although his offense wa in- inconsistency if he should in the end come to the conc~usion at which citing certain Indian tribes to make war against a foreign power, not, we arrive' of course, an offense indictable at common law. It is proper to say, however, as regards the case of a defendant flee- There are a thousand cases of the highest official nrisdemeanor ing from office in order that he may interpose this objection between which it is impossible to anticipate by a tatute. The giving evil his crime and his punishment, that the act ion of the Honse of Repre- advice to a President by his constitutional counselors for corrupt sentatives finds great vindication when it determined that at least personal endt~, the abuse of the official discretion lodged so largely in the proceeding for impenchment should begin on the day when the the heacls of Departments, the appointing a poblic officer for money fu~itive sought to avoid them by flight. before the statute pas..,ed making that an offense, the perverse and The narrower argument drawn from the letter of the Constitution wanton refusal to discharge official duties imposed on them by law, is the chief argument of the defense. The counsel make two points may surely be reached by impeachment, though not punishable as upon the text of the fourth section of the third article. First, "all crime . So of the jodge. H was forcihly put by the counsel for the civil officers of the United States." The defendant is not now a civil people in the case of Barnard, in New York: officer; therefore he is not included in the description. Second, a For perverting lhe course of jnstico, for excee(ling a iust and lawful c.liscretiou, judgment of removal is imperatively required. No removal is possi- for oppressing suitors, for indecency on the bench, for beinz a. buffoon in the pub- ble from an office already resigned. Therefore the judgment re- lic bar-rooms of the city-for the. e and other things. for which he ou:rht w be de. quired by the Constitution has become impossible. On the other graded from the judicial office Q.v a court of impeachment, where is tho remedy 1 hand, we maintain that the language of the Constitution, even ex- By indictmenU No.-Spuch of 'Van. Oott, trial of Barnard, volumo 1, page 173. pounded as you would expound a deed or a will, without regard to The judge who sits when his brother is a party, or who is guilty of the history of its formation and without resorting to the great public gross oppression or gross usurpation, cannot be reached by any ordi- reasons which favor our construction, brings us to the same result as nary criminal process. Yet of his liability to be impeached there the authorities we have cited. can be no question. The authorities on this sobject are fully col- The articles which provide for the Senate and Honse contain a lected in a brief submitted to the Senate in the trial of the President, complete provision for impeachment. The House is vested with the preferred by Judge LAWR.El.~CE, and annexed by General Butler to his sole power of impeachment. The Senate is vested with the sole power opening argument. to try all impeachments. The judgment is limited within certain Now then-and this is a point of this argument which I deem a bounds. The number necessary for conviction, the oath or affirmation, strong one-if it is true that the power to impeach at common law and the calling in the Chief Justice to preside in case the President is included the power to proceed against any subject for any abuse of tried are prescribed. We have here, then, an adeqnate and ample pro- public trust w it.hout exception, is not the absence of any express lim- vision covering the entire process: authority to institute it, authority itation in the Constitution almost decisive that it intended to leave to try it, the method of proceeding, and the limitatiqn of the judgment. the definition of the per on to the common law, as it left the definition For what is meant by impeachment, what offenses it shall cover, and of the offense t what persons are liable to it, for the forms of pleading and rules of If there is anything that the framers of" our Government did not evidence 1·ecourse must be had to the common law. The power of leave to construction, but expre sed in plain En~lish, it was the lim- impeachment is nC\t defined by grant in our Constitution, but by limi- itat~ons on the power of dealing with offenses m cases where they tation. The general power is conferred, and then a limitation is in- thought the intere t of justice or of liberty required such limitation. serted upon the judgment, which is not to extend further than removal They knew that the grant of the power of impeachment involved in it and disqualification, and the power of conviction, which shall only be by thecommon-lawmeaningof the term the power to punish for official by two-thirds vote. For everything else we are referred to the com- offenses not indictable, and the power to impeach, try, convict, and mon law. Mr. Rawle says: sentence after the offender had left office. Iri the beginning of that Impeachments are thus introduced as a known definite teTID, and we must have centUI·y Lord Chancellor Somers, the friend of liberty and th,e friend recourse to the common law of England for a definition of them. (Rawle on Con- af America, had been tried for putting the great seal to treaties dis- stitution, page 198.) - advantageoos to England, on impeachment commenced after he left office. Lord Chancellor Macclesfield in 1725 was impeached for cor- The learned counsel who opened for the defense says that United ruption in the sale of offices, and sentenced to fine and imprisonment, States courts have no common-law powers; and that is true. He on proceedings resolved on uy the Common~ after he left office. It says that is as true of this court as of all other United States courts. seems impossible that they should not have expressly confined im- That I agree is true. But when a word is used in defining powers peachment to persons in office, if it bad been their desire so to con- granted, you resort to the common law for its meaning. That is so as fine it. It seems impossible that any provision so confining it would to the meaning of" admiralty," which is a jurisdiction granted to have got into the Constitution without debate. · United States courts,or "maritime." So as to" levying war," ''felony," Mr. SARGENT. Mr. Pre ident, not to interrupt the manager, I ''bribery," as to the term "quorum," by the legislative grant of power, should like to ask a question which I send to the Chair. for the limits of the power of pardon:, and all these things, althoogh The PRESIDENT p-ro tempo-re. The inquiry propounded by the Sen- they are granted by the Constitution, you refer for the meaning of ator from California will be read. the terms used in the grant to the common law, to which those terms The Chief Clerk read a-s follows : belong. There are now several members of the Senate who have been in past Now, it is well settled that all abuses of official trnst are impeach- years civil officers of the United States. Are they liable to impeach· able .i n Parliament. At common law there is no limit as to person; ment for an alleged act of goilt done in office t there is no limit as to time ; there is no restriction as to the character Mr. Manager HOAR. They are undo.ubtedly. The logic of my ar- of the offense or in the punishment, save the discretion of the two gument brings .us to that result; a.nd undoubtedly they are as safe Houses._ from the operatiOn of that proce practically as the newly-born infant Mr. Wooddeson states the law in his lectures, volume 2, page·601 : in his rnotber's arm . Does anybody suppose that there is to be a All the king's subjects are impeachable in Parliament. Such kinds of misdeeds, two-thirds vote of the American Senate whlch will rake up and try however * * * as peculiarly injure the commonwealth by the abuse of high and punish for political offense , when the public judgment of this offices of trust are the most proper, and have been the most usual, grounc.ls for tliis people bas demanded an amnesty! The whole power-to punish, the .h-ind of prosecution. Thus, ii a. lord chancellor be guilty of bribery, or of acting gro ~Y contrar:r to the duty of his office, if the judges mi.l!lead their SOYereign by whole Judgment after the offender has left office is disqualification to unconstitutional opinions, if any other ma!!istrate attempt to subvert the funda. bold office, and that judgment is a judgment in tbe discretion of tho mental laws or introduce arbitrary power, those have been deemed cases adapted Senate. Hunt in Massachusetts, a justice of the peace-the language to parliamentary inquiry and deciSion. So when a lord chancellor has been thought to h:J.\-e put the seal to an ignominious treaty, a lord admiral to neglect the being exactly the same as this-wa sentenced simply to suspension safe ~ard of tho sea. an embru sador to betray his trust, a privy councilor to pro- from his office and disqualification to hold any other for twelve mont.hs. poonc.l or upportpernicious nnd dishonorablomeasures, or a confiuential adviser of Tha.twas the case of a justice of the peace in the town of Watertown, his sovereign to ot.tain exnrbitant grants or incompatible employments, the e im- I think, early in this century. putations b:tY properly occa ioned rmpeachments, because it is apparent how little the ordinary t:rilmnals are calculatcu to take cognizance of such offenses or to in- Mr. SARGENT~ I wish to propound a further question. I do not vestigate and reform the general polity of the state. desire to interrupt the manager. TRIAL OF WILLIAM W. BELKNAP. 61 :Mr. ~Ianager HOAR. I am very happy to answer any question I shall be removal from office and disqualification if tl!e defendant is ron. 1t illing I" That is the summing up of the two propositions. The Chief Clerk read as follows: But the meaning of these provisions of the Constitution mtlBt be Then what becomes of the - comity between the two HotlBes on ascertained after all by a b~oa.d consideration of the great public ob- which the learned manager laid stre sf jects they were intended to accompli~:~h. "Never forget," says Chief Mr. Manager HOAR. Why, Mr. Senator, I do not understand that Justice Marshall, iu McCulloch vs. Maryla.n d-and that sentence is there is any comity which prevents pursuing a Senator into this the key-note to his whole judicial power-"Never forget t.hat it is a Chamber for snv offense that he has committed-- constitution yon are interpreting." Yr. SARGENT. The necessity for good feeling between the two It is clear that in the case of high state offenders it was deemed Houses! important by the people when they established the Constitution that Mr. Manager HOAR. I do not understand that there is any comity the judgment of perpetual disqualification to hold office should be or necessity for good feeling between this Senate and any other tri- imposed in the discretion of the Senate. There is no need to argue bunal whatever which prohibits pursuing him for guilt elsewhere that anything which finds expression in the Constitution is of grave wit.h a lawful or constitutional punishment. He cannot be called in national importance. This jndgment of perpetual disqualification question by the court for anything he does or e.ays in this Chamber, was provided, among other reasons, to prevent the return to office the blackest libel or slander though it might be conceived to be; and after removal or resignation of guilty favorites of the Ex_ecutive. For he cannot be called in question by the Honse of Representatives. that large class of impeachable misdemeanors which cannot be de- Mv argument related to impeaching a Senator for senatorial conduct scribed in a statute beforehand it is the only penalty known to the and for what took place here and to the indecency of supposing that Constitution. The mere removal from office carries with it little terror, it ever was thought that the House of Representatives might require and is of little public importance as applied to all officers less than the Senate to try at its own bar a member whom it hall permitted, the President himself. By our customs most offices, including those without the exercise of its power of expulsion, to remain here. That of the judges in many States, are laid down at brief and stated inter- was the argument, but of course if General Belknap had been elected vals. All officers are removable at the pleasure of the '.lppointing to the 8enate from the State of Iowa in the ignorance of the people, power, with certain exceptions-. To be' removed from office, of itself, and. had taken his seat in the Senate on that election, and after that carries with it no degradation. If such removal be for a cause not the::;e acts of bribery had been discovered, the Honse of Representa- involving personal infamy, it will in many cases work no disgra-ce, tives could, and should, and would have demanded that he be seques- even if it take place on impeachment, unless the perpetual disquali- tered from his seat in this Chamber, and be placed at the bar, as he fication be attached to it. John Quincy Adams was right when he now stands, as a criminal; and that power would be as necessary for said: the purity, and the honor, and the dignity of the Senate itse~ as it If any public officer everfut himself in a position to be tried by impeachment, is for the protection of the American people. he would have >ery little o my good opiniofi if he did not think disqualification Let me then sum up the argument, drawn from the ln.nguage of the from holding office for life a more severe punishment than mere removal from office. Constitution. The power of impeachment is not defined in the grant A good deal has been said as to whether this constitutional judg- in the Constitution. It is conferred as a general common-law power. ment be a punishment or a remedy; but, after all, it seems to me, if Tllejudgment is then limit(ln to removal and di qualification, and we settle what the thing is, it is not necessary to trouble ourselves a.s two-thirds required for conviction. No limit of its appli_cation to to which of these two words is applicable to it. In a certain sense it persons is inserted in the grant. Bnt a subsequent limitation on the is a punishment for a member of t.he House of Representatives not to tenure of office is inserted, namely, the ca-se of a removal by impeach- be re-elected and to lose the confidence of his constituents or for a ment, to guard against the argument that officers, whose term is fixed member of the Senate to lo e the confidence of his State Legislature. in the Constitution, cannot be removed under the power of impeach- It is a punishment in some sense for an executive subordinate officer ment, just as impeachment is excepted in the clause securing the to be removed for cause. And in that sense undoubtedly it was the right of trial by jury and in the clause conferring the power to purpose of the framers of our Constitution to have the terror of this pardon. result, whether it be removal or disqualification, held up before the But suppose we grant the phrase, all civil officers, to be inserted official as a security against his guilt. But in the theological or the as a definition of the persons who may be reached by this process. old legal sense in which we use the word" punishment"-that is, as Is the definition to be taken to apply to them at the time of the com- an adequate expia,t ion or atonement for an offense, the meting out of mission of the offense or at the time of the puni~hment f Suppose a justice to the offender-of course this constitutional provision is not statut.e enact that all wTong-doers may be punished. Is it not clear a punishment, because the Constitution expressly provides tha.t the that if they be wrong-doers when they commit the act the liability to party may be held to answer to trial at law iu all cases in addition punishment attache:; f The very statute which punishes bribery to this. In that sen.!:le, therefore, the leading purpose of the Consti- would fail by this construction to reach anybody, because it is in tution was to secure the people this great r~medy against the return this respect, as has already been said, almost identical with the pro- to office of the guilty official. vision of the Constitution in its description. The judgment of disqualification is in all cases, when re-appoint- The provision that the judgment shall extend no further than re- ment or re-election has taken place, the only method of accompli b- moval from office and perpetual disqualifieation authorizes any lesser ing removal. Senators will reflect that this judgment of disqualifi- penalty included within those limits to be imposed at the discretion cation involves and includes removal from every oflice held by the of the Senate. In Hunt's case, in Massachusetts, the sentence was person convicted at the time it is pronounced. disqualification for a year under a like constitutional provision. The exception of the judgment on impeachment from the operation I ought to have added, in further reply to the honorable Senator of the power to pardon strongly shows the importance attached to from California, that if he refers to that large class of cases where that part of it which is to be of perpetual operation. How careful the Constitution has expressly imposed a disability, that is, for aid were the framers of our Constitution t.o mark their sense of the im- and comfort to the rebellion in the late war, and where the Constitu- portance of this jud~ment of disqualification so that the man should tion has expressly provided a means of removing that disability, I never get back. W nittemore was re-elected by the people of his dis- should have no doubt that any person whose offense consisted, whether trict after he had resigned and fled from the House of Representa- an official offense or an offense as a private citizen, in giving aid and tives to avoid expulsion; and cases of such offenders may easily be comfort to the rebellion, could plead au exemption from impeach- conceived. Of course the expulsion fr~m a legislative body they ment when he had, under the very provision of the Constitution could not give that effect to, but the framers ot the Constitution put itself, by the vote of two-thirds of both branches, received his par- into the power of judgment on impeachment this power of perpetual don. So that I do not think anybody need be much afraid of what disqualification; and then they added that it should be beyond the will happen to him or to any person whom he thinks public policy reach of the Executive pardon, because it was intended to reach requires should not be further pursued for state crimes, in coming to guilty Cabinet officers or counselors of the Executive. the conclusion for which we contend. It seems to me the decisive consideration in determining this ques- It certainly will not be seriously maintained that when a statute tion is this: The people of the United States are entitled for their prescribes two punishments, one of which has become impossible, protection to a certain judgment. T.he guilty officer shall be removed, that the offender is thereby exempted from the other. The penal- and, if the degree of his guilt warrant the greater condemnation, he ties provided in more barbarous ages will suggest abundant illustra- shall be incapable of being restored. The Constitution expressly tions. Some of our old statutes provide that an offender be impris- mentiona perpetual disqualification beyond the reach of pardon as oned or whippe.d, and in addition have his head shaved or his ears the judgment which the Senate may think its duty in some cases to cropped, or labor in the tread-mill. Do the learned counsel think he pronounce. Now can this protective judgment ever be any the less would get rid of the imprisonment or whipping if he did not happen necessary because the crimH has not been discovered untit the official to have any hair or any leg , or if he had had his ears cropped be- term has expired, although perhaps the officer has been re-appointeti, fore f or because just before the proceedings begin, or just before the judg- The whole constitutional provision, so far as affects our preEent ment is pronouuce.d, the official bas laid down his office f Beca.use the purpose, can be summed up in two Sdntence~ w llich are scarcely a logic of my fliends on the other side, as the counsel very frankly ad- paraphrase or change of the existing text of the existing law, and mitted, is this: They say that when a man has ceased to be a civil these two sentences I think state precisely the contentions on the one officer yon cannot pronounce the constitutional judgment, because side and on the other. We say that the Constitution in substance the constitutional judgment must be a judgment of removal; and is this: "The Senate shall have the sole power to try impeachments, therefore it is true, as the counsel admitted, that if that resigna- and civil officers shall be removed on conviction." The cormsel for tion be made after every Senator has publicly ·pronounccd his opin- the defendant would state it to be: "J ndgment in case of conviction ion of guilt, before the judgment is actually entered, it may be ple:.l(led 62 TRIAL OF WILLIA~I W. BELKNAP. · in arrest of judgment, ann the power to pronounce the greater part which the officer belongs. These cases proceed upon the ground that of the penalty taken from the Senate. the performa,nce of an office to which the subject has been lawfully It is true that there are statutes requiring or authorizing the per- called is a duty which he cannot refuse. Wherever that doctrine ex- petual disq nalification to bold office to be inflicted by the ..courts of tends-that is, wherever in England or America it has been held that the United States ns a punishment on conviction of crime. But the the acceptance of somebody is necessary to a resignation-the citizen existence of these statutes does not meet the difficulty ; for a pro- elected or appointed is compellable by 1nand.amus to take the office tection t.o the people provided by the Constitution itself. and depend- originally even against his wish. But the American law as applied ing on the high discretion of this constitutional court, a statute pro- to offices not municipal or corporate is settled otherwise. (M'cCrary vi ion, repealable at the will of the Legislature, can never be deemed on American Law of Elections, pa~e 260; People vB. Porter, 6 Califor- an equivalent. A constitutional disqualification intended to bar out nia, page 26; United States vB. Wnght, 1 McLean, page 512; Gates VB. the guilty counselors of the Executive from a return to political power Delaware County, 12 Iowa, page 405; Lewis VB. Oliver, 4 Abbott's can only be placed beyond the operation of an Executive pardon Practice, page 121.) when it is pronounced by the judgment of the Senate. The disquali- We are therefore brought inexorably to the alternative that pro- fication provided by statute can only apply to that comparatively ceedings for impeachment can be instituted and go on notwithstand- narrow claas of offenses which can be so foreseen as to be described ing the withdrawal from office of the delinquent, or that the greater with reasonable certainty in ordinary criminallegislation. Impe!!.ch- part of a jurisdiction expressly conferred by the Constitution exists inent goes much further. and may be exercised, not at the discretion of the Senate, but at the The whole constitutional theory of impeachment proceeds upon discretion of the accused. the ground that, wbile conviction for crime may be safely left to juries An argument is also drawn from the practice of criminal courts. and its punishment to the discretion of inferior courts, the protec- It is sa.id that when a judgment is requiJ:ed by statute to be for two tion of the American people against the return to office of the guilty things it cannot be for one of them alone, and that here the jod~ment official has been deemed of importance enough to be attained by the must be by the Constitution either for removal alone or for removal mechanism provided by the Constitution of an inquest and impeach- and disqualification. The practice of criminal courts affords no rule ment by the Representatives of the whole people and a judgment of binding in this Chamber. Undoubtedly, the laws of common justice the Senate itself. It seems to me a monstrous absurdity to suppose and common reason are of universal authority. Undoubtedly, you that this great cQnst.i tntional remedy of a judgment against t.he re- can derive great aid in discovering and applying those rules from the turn to office of a high political official on account of great political sages of the law. But beyond tllese simple precepts of universal ap- offenses committed at the seat of Government should depend on con- plication, an attempt t.o entangle this high court, while exercising viction by a jury drawn by the marshal fJ·om the office-holding popu- its exalted functions, in the technicalities of criminal practice, is, to lation of the District of Columbia on a trial conducted and controlled use Burke's comparison, "as if a rabbit that breeds four times a year by officers of the executive, and on a sentence of a sin~le judge of a should attempt to prescribe the period necessary for the gestation of court, however respectable, whose jurisdiction is confined within a an elephant." couple of square leagues. Such confined and inallplieable rules would be convenient indeed to oppression, B~ ides, there is certainly a grave constitutional difficulty in sup- to extortion, bribery, and corruption, but ruinous to the people, whose protection is porting much of the legislation by which Congress has undertaken the true object of all tribunals and of all theirrules.-Burke'a reportojcomm\tteeto to clothe the national courts with the power of imposing disqualifi- inspect the Lord's journals. cation to hold office as a punishment for crime. If it is to operate Among the na,rrow, technical, artificial reasons suggested by the as a disqualification to hold those offices whose qualifications are de- practice of the police court, and of doubtful cogency even there, is fined by the Constitution, it is liable to the objection of declaring this doctrine. I do not believe that it will be adopted here, or be relied persons disqualified whom the Constitution declares qualified. If it on by the Sen:.>.te as the foundation for a determination that where, is to operate upon persons holding office at the time of their conviction, in the contemplation of the Constitution, the safety of the state en- it places the power of removal from office in hands where the Consti- titles the people on demand of its representatives to a solemn resolu- tution has not placed it. tion of the Senate that a high state offender shall be removed from It is further argued that the danger of the return to office of per- office and disqualified to return to it, the power to erect this barrier sons guilty of great political crimes is a visionary anion. The acceptance of a resignation is a The impeachment of Andrew Johnson was resolved by the House on mere formality, adding no validity whatever to the act. If it were the 24th of February, 1868; the final judgment of acquittal was pro- not so, it would be an imperative duty whenever the officer in whom nounced on the 28th of May, a period of three months and four days, the power of accepting it is lodged believed in the guilt of the party precisely corresponding in length with the short se sion of Congress resigning. under our present arrangements. This does not include the time oc- There are some authorities, English and American, to the effect cupied by the House in obtaining the evidence, or in the debates which that there are certain public offices which cannot be resigned with- preceded the resolntion of impeachment. This present impeachment out thb consent of the appointing power or of some public board to has been pressed, I think, mortj ra.piilly than any other known in our TRIAL OF WILLIAM W. BELKNAP. 63 history; yet nine weeks have already expired since it begun. This whether he be tempted to abuse or nsnrp power or to gain wealth by fact shows that for any official misdemeanor committed in the last corrupt means in office, shall hang the dread of what the Federalist year of his office an impeachment and conviction of the·President_dur- calls the" awful discretion" of t.be Senate to try him in the presence mg his term will in most ca8es be found wholly impracticable. He of the wbole American people and to visit him with the perpetual may have secured his re-election by unconstitntionn,l or corrupt use of infamy of its sentence. For the citizen accused of crime is the grand his power, and the people, if he cn,nnot be impeached dter his term jury, and the indictment, and the statute of limitations, and the jury expires, are wholly without remecly. trhl, and the law enacted beforehand. For him is the maxim that The destruction of the power to impea~h carries with it the de- it is better that ten guilty escape than that one innocent perish. struction of the power of the House to make the inquest, len,ving the But for the public officer who voluntarily seeks or accepts these vast people wholly dependent for their protection on the executive power trusts, the safety of the whole state demands there shall be a higher of removal. This power does not extend to all cases. The Executive responsibility and another method of punishment. may be deaf to charges of guilt against officers in whom he has trusted, I have thus, Senators, very imperfectly performed the duty assigned coming to him without authority and tested by no competent pro- to me by the House of Representatives. It has been a dull argument cesses of in vesti~ation. of a dry question of law. Your decision, like every decision affecting It is said that It is a dangerous construction which leaves the pub- permanently the power and authority of the Senate, is to reach in its lic officer exposed to impeachment during his whole natural life. But consequences t.o a period very far distant in the future. But I am if be be gui1ty and deserve impeachment be ought to be so exposed. much mistaken if there be not a very deep and present public interest His safety against unjust prosecution or the revival of old political in this issue. offenses, which the public peace requires should be buried in oblivion, I said a little while ago that the Constitution had no safeguards to is abundant. No impeachment can proceed unless both Houses concur. throw away. You will ju~~e whether the pn blic events of to-day do The judgment of disqualification is clearly discretionary; and the not admonish ns to look well to all our securities to prevent or power to Senate, in my judgment, may refuse even to take np for trial an im- punish the great guilt of corruption in office. We must not confound peachment presented by the House against an officer out of office in idle clamor with public opinion or accept the a~cnsations of scandal which it is clear that in the exercise of itle, exempteu the party thus ate sitting for the trial of the ar~icles of impeachment a.g~inst ~ill­ convicted and condemned from the general power of the Executive iam W. Belknap, pursuant to adJournment, now resumes 1ts session. to pardon. The Sergeant-at-Arms will make proclamation. But was this all t Was the only purpose of this disqualification The u ual proclamation was made by the Sergeant-at-Arms. simply to pre erve the Government from the danger to be apprehended The managers on the part of t he House of Representatives appeared from the s~le convict.ed criminal t Very far from it, sir! That in in the seats provirled for them. reality constituted but a very small part of the design. The great The re pondent appeared with his counsel, Messrs. Blair, Black, and object, after all, was that his infamy might be rendered conspicuous, c~~~ . historic, eternal, in order to prevent the occurrence of like oft{mses in The PRESIDENT pro tfJmpore. The Secretary will notify the House the future . The purpose was not simply to harass, to persecute, to that the Senate is ready to proceed with the trial. wantonly degrade, or take vengeance-upon a single individual ; but l\Jr. MERRIMON. I move a call of the Senate. it was that other officials through all time might profit by bi pun- The PRESIDENT pt·o tempore. The Senator from North Carolina ishment, migllt be warned by his political ostmcism, by the everla. t- moves a call of the Senate. The Chair hears no objection, and the ing sti~ma. fixed upon his name by the most august tribunal on earth, roll-call will proceed. to avotcl the dangers upon which he wrecked, and withstand the The Chief Clerk called the roll, and thirty-nine Senators answered temptations under which he fell, to teach them that if they should to their names. fall nuder like temptations they will fall, like Lucifer, never to rise The Secretary read the Journal of the proceedings of the Senate sit- a(J'ain. 0 ting on Saturday last for the trial of the impeachment of William The real purpose of proceedings of this kind is present.ed so beauti- W. Belknap. fully and so fotcibly in a single paragraph in the opening speech of The PRESIDENT pro tempore. The Senate is now ready to hear Mr. Wl1itbread upon the impeachment of Lord Melville, who, like the managers. Senators will please give tl1eir attention. the accused here, son~ht to evade the consequences of his crimes by Mr. Mana(J'er KNOTT. 1\Ir. President, if the court please, in resum- re ignation, that the ~:;enate will pardon me if I read it. He says: ing the rem~rks which it bas devolved upon me to submit upon the que tion under discus ion, I need not promi e the court that I shall be And here let me observe that all prosecutions of thia sort are instituted for t.he general benefit., and not with the view of harassing any private inclividoal. PJI as brief a possible. Even if I were in perfect health I do not feel puni~hment is inflicted for the sake of example, and not for the purpose of per- that I am speaking for posterity, and conse.queutly am under no ~emp­ sonal vengeance. tation to talk until that audience shaH arise. Moreover, the line of l\Iark this : remark which I had proposed for myself ha.s been so completely antici- It is the morals of a country which in all these inquilies we ought to reut that the government to which every citizen looks for pararrraph which I had just read from Story's Commen.tarie, on the protection may be kept pure, uncontaminated, and worthy of the Con titntion, as to the ptn:pose for which the remedy by Impeachment confidence of those who are subject to its authority. was designed, with the view of determining whether the construc- Distinguished counsel in his argument the other day in isted very t.ion of the various provisions of the Constitution relating to that earnestly, and went so far as to cite the opinions of others equally subject, propo ed on behalf of the House of Represcntati ve , was more eminent withhimselfto show, that the idea of punishment i not con- con istellt with that purpose than that in isted upon by the defen. e. templated in proceedings of this kind. And, sir, I am glad to be able As to what that pnrpo e really was, I imagine there can be !Jut little, to admit that it is one of the most pricele s privileges guaranteed to if any, dispute. However much controversy tllere may IJe with rc- every citizen by the Con titution of the United States that he may ganl to the chn.raoter of the offense~ for whic~ an impenchm~ut will not only entertain but freely express his own opinion upon every sub- lie, I apprehend there can be but lit~le qnestwn th=:tt the obJect for ject whatever, no matter who may differ with him. It is therefore which this mode of procedure was des1gued was prem ely tha.t stated not in the power of the Supreme Court to prevent the learned coun- by Judge Story, namely, to secure the state against gross misueruean- el from entertaining or promulgating a different view from that ors in office. expres~ed by them in the ca e of Cummings vs. The State of .Missouri, The framers of our Federal Constitution were perfectly aware that and re-affirmed in the case of Garland, however much they may regret the functions of the Government they were preparing to establish his inability to concur in that opinion. would neces arily have to be committed to tho e who would be sub- The court say in the case of Cummings, 4 Wallace: ject to the same frailtie and actuated, to some extent at least, by the The theory upon which our political in. titutions rest is, that all men have certain same p~ions which infl•1ence the conduct of their fellow-men. They inalienable rights; that among these are life, liberty, an.u th~pursuitof b.appin s; , knew, moreover, that tho e who are called to fill the most exalted and that in the pursuit of hap pine R all avocation , all honors, all po itions, are st.a tions of public trust are frequently, if notal ways, under the strong- alike open to every one ; and that in the protection of these rights all are eq oal be- e.·t po sible temptation to abo e the opportunities afforded by their fore th~ law. Any deprivation or suspension of any of these rights for past conduct is pu.fii~hme nt, and can be in no otherwise defined. official position for the promotion of their own aggrandizement, the PLU..lshment not being, therefore, re ' tricted, as contended by counsel, to the dep. exten ·ion of their own authority, and the perpetuation of their own rivation of life, liberty, or property, but al o embracing deprivation or su penSion power, be ides being constantly subject to the sugge tions of an ig- of political or civil rights, and the di abilities prescribed by the provi ions of the Missouri constitution being in effect punishment, we proceed to consider whether noble appetite for illegi timate emolument. .A.s wi e and sagacious ther6 is any inhibition in the Constitution of the Umted States against their en- statesmen, therefore, fully appreciating the importance of securing forcement. every department of the Government from the contamination of offi- But, sir, we have been told that "there were brave men before cial corruption and crime, they devised this mode of procedure as the A.cramemnon;" and it appears that there were learned and distin- mo t practicable and efficient method of pre erving the purity and g-~iRhed lawyers even before conn el were employed in this ca e who maintainin(J' the integrity of tho e departmentse pecially which were undertook to maintain the view expressed by the honorable conn el not designed to be under the immediate, direct control of the people here. .A.s far back as the celebrated Blount case, of which the Senate through the ballot. This much I unuerstand to be conceded by the bas heard so much during this trial, the same suggestion was made honorable coru1sel for the accused. by conn. el for the defen e, and the argument a-dduced on that occa- But how was the end proposed to be attained Y First, by making sion was so eloquently and triumphantly met by 'Mr. Manager Harper it peremptory upon the court by which a criminal official should be and his reply theretq o pertinent to the remarks of counsel here, that convicted on impea<:hment to remove him immediately from office; I will read what he said : · and thi , say learned counsel, was the only purpose the framers of ~be But the learned counsel fort he defendant have told us that the :power of impeach- Constitution sought to accomplish : "That the sole object for which ment i limited in the Constitution itself by the restriction wh1Ch it impoRes on the power of impeachment was given was removal from office." It the power of puni lunent. The power of punishment on conviction by :W.npea.ch- seems that those wise aud patriotic statesmen thought differently, meut is restricted, sa.:v they, to "removal from office an~ disqua.lifi~tion. to hold however. They knew that if the proce of impeachment went no or enjoy anv office of honor, tru t, or J?rofit under the Umted t.ate i. and It would be ab ul'd to impeMh, try, and conviCt a man who held no office rrom which he further than to remove a criminal or corrupt official from office the could be removed, and could, of consequence, be no otherwise affected than by whole proceeding would amount to n,othing more than a puerile a. disqu alification to hold in future office which he, perhap , never had a. pros- farce. They knew that the party convicted and removed mtght be pect of obtaining. Of this absurdity t he Constitution cannot be suppo ed to be immediately restored to the arne or appointed to another and per- guilty · and thercl'ore it could not have intended to subject to the power of impeach- ment' :{ny persons except tho e who actually hohl offices and may be punished by haps more important position by a corrupt or mi guided patron, and removal. to guard acraiust any uch po ible contingency they weut a step fur- But where, Mr. Pre ident did the honorable counsel for the defendant learn t hat ther and provided that the court might not only ui rui the delin- di qoalilication to hold any offic6 of truRt, honor, or profit under the Government quent from office but prevent him from again polluting the Govern- of our country is no punishment 1 Would either of tho e honorable ~entleruen t.bink it no punishment in his own ca~e ~ There are no doubt many men mditf~reut ment he had alreay disqualifying him to hold any office as to offices of profit, and not ambitious of those of honor or trust. nut to be held TRIAL OF WILLIAM W. BELKNAP. 65 up to our fellow-citizens as a person unworthy of trust, unde erving of _honor; to If it be true that the framers of the Constitution did intend that be stigmatized by a solemn sentence of th.e l.~w, pronounced by tho highes_t and no person should be impeached unle s be should be in office at the most awful judicatnre known to the Constitutwn; to be excluded by the voice of time of the impeachment, learned counsel would have conferred a our country 'n·om all hope of participating in those rights~ privileges, and advan- tn~es which are open tQ our fellow-citizens; to bcdisownea byourcommo~mother favor upon this honorable court and have contributed a great deal a.s degenerate and unnatural ons, unworthy of her confiu.ence; t? be depnvA~._ not to the gratification of the unenlightened public if he had told us why only of her kindness and her favors, but even of the nght which a good Citizen they did not say so, why they did not express it in some clause upon bolil dearest of all, the right of devoting ourselves to her service, of defending her in the hour of dan rrer and distre s-are these not punishments~ I know not where the face of that instrument. For instance, when they said " the the learnod counsel learned that they are no~ J but this I know, th:,tt the:y did _not House of Representatives shall have the sole power of impeachment," learn it in their own hearts. Yes, Mr. PreS1aent, a sentence of disqua.!1fication why did they not add the restraining words to that clause, "but no pronounced by this honorable body in the face of the whole .American nation, aml person shall be impeached unless he shall be in office at the time?" Oil <1 charge of'hirrh crimes and misdemeanors by the representatives of the American people, is a. punfshment; and, as this punishment is applicable to persons who are Or, leaving that clause, when they came to the one regulating the not officers as well as to those who are, it follows that the power of impeachment, judgment that should be rendered~ why did they not say that "judg- if itB extent be measured by that of the power of punishment, is applicable to all ment in cases of impea-chment shall be rPndered against no person persons, whether officers or not.-.A.nnals of Oongress, Fifth Oongress, (1797-'99,) unless he shall be in office at the time, and no such judgment shall volume2. extend further than to removal from office and disaualification to But, as to the end and final cause of all punishments, every member hold office Y" Or, if these two provisions had pa~sed out of their of this honorable conrt has long ago been advised when in his youth- minds when they came to consider the fourth section of the second ful days ho conned over the pages of Blackstone. He says: article, and they still desired that the American people for whom they 2. As to the end or final cause of human punishments. This is not by way of were preparing the frame-work of a government should understand at{)ncment or expiation for the crime committed, for that must be left to the just that no man should be impeached unless he was in office at the time, de termination of tho Supreme Being, but as a precaution against future offenses of tho Mme kind. This is effected tln·ee ways: either by the amendment of the of- why did they not annex the restraining words to that article, why fender himself, for which purpose all corporal punishment, fines, and temporary did they not say, "but no person shall be impeached unless he shall exile or imprisonment are inflicted, or by deterring others by the dread of his ex- be in office at the time'" ample from offending in the like way. The framers of our Constitution were wise and patriotic as well as There, sir, is the ultimate object to be reached by all such proceed- cultured men. They fully appreciated the magnitude of the work in ings as this, and I would say to the learned counsel, now and for all, which they were engaged; they knew that they were preparing a that they are dignifying their client far too much when they suppose government not for a day, not for a year, but a government that should that this impeachment was intended simply to harass him, simply to mold the destinies and affect the interests of a mighty people through disqualify hint from again contaminating the Government, if indeed long ages to come. They consequently weighed every word they used he is guilty; and upon that I beg leave to say I would sedulously for- with the utmost care. So careful were they, in fact, that they even bear to express any opinion at this time. The House of Representa- provided a committee on style and arrangement, to whose scrutiny tives in sending these articles here had a far hi~her purpose in view. every line and word and syllable of the Constitution wa~ subjected, That purpose was the correction, the purification of public and of- and whose careful supervision every provision it contains underwent £cial morals in this country; and who, sir, that has contemplated the before it was adopted. Would they have overlooked such a glaring frightful picture of crime and corruption so graphically and power- omission a~ the argument of c6unsel implies' They were men with fully drawn by my distinguished colleague [Mr. HoAR] on last Sat- heads upon their shoulders, and if they had intended that no man urday will deny that it is high time some such corrective process should be impeached except he should be in office at the time, they should be put in operation! would doubtless have said so in plain, unmistakable terms, or if they Now, sir, if it be true, as I have stated, that the object and design did intend it and did not say so, the learned counsel ought to have of proceedings like the present are not merely to remove a guilty party informed us why; because if there is a man upon the continent capa- from office, not merely to disqualify him to hold any office of honor ble of giving that information I have no doubt he is the one and the or trust or profit under the United States, but that it is designed as a only one; but inasmuch a~ he failed to do so, I take it for granted that great preservative means for securing the purity and honesty of offi- he was simply mistaken as to the intention of the framers of the Con- cial conduct on the part of all officers of the Government; if it is true stitution on that point. I take it for granted that the very fact that that the several provisions of the Constitution relating to the subject they omitted to make this restriction is conclusive that they did not of impeachment were intended to protect the Government from official intend that the power should be so restricted. corruption and crime, which if left unchecked would lead to its ulti- It will not do to say that the idea of impeaching a man after he mate overthrow and destruction; if it is true, as it seems to me every was out of office was never considered by the convention at all; for, rational mind mnst admit it is, that the only efficacy of those pro- as my learned colleagues so clearly and conclusively showed on Sat- visions is to be found in the ri~d, impartial, certain, and inexorable urday, that very question was under discussion when this identical enforcement of the penalties tney prescribe, the question is whether proposition wa-s considered. The question then was, not whether a they shall be so construed as to promote the object they were intend~d man shoulcl be impeached after he was out of office, but whether the to accomplish in the amplest manner consistent with the language in President should be impeached while he wa-s in office. There was no which they are expressed, or whether they shall receive such a con- .objection anywhere, so far as I have been able to see, to the proposi- struction at your hands as· will render them utterly nugatory and tion that he might be impea-ched after the expiration of his term. worthless. But I submit, sir, that this section not only does not reqnire, but it That, sir, is the plain, simple question before you. Now, will this does not admit of interpretation. It is a plain principle of legal con- distinguished tribunal, this tribunal of statesmen, say that notwith- struction, as well as of common sense, that where words are so plain standing the Constitution vests in the Honse of Representatives the that their meaning cannot be mistaken, no interpretation is neces- power to institute proceedings by impeachment, and clothes this sary or to be allowed. The words must be taken for just what they body with full and complete jurisdiction· to try all cases of impeach- express and no more. This has been settled over and over again by ment; and notwithstanding the plain, obvious principle of law and the courts. Now, look at the language of this section. Is there any- common sense that when a person enters upon the duties of an office t.hing dubious about it 1 Is there anything uncertain or mysterious he assumes all the responsibilities of that office, criminal a~ well as about it' Is there anything connected with it that a wayfaring civil-responsibilities of which he cannot divest himself except in pur- man, though a fool, IlllloY be mistaken about Y suance of law-yet neither House can exercise its powers in a case of Examine it in what light you will and you cannot make it say more impeachment except at the option of the party accused ! Will you or less than it does. I care not whether the immediate controlling say iu the face of the intelligence of this age, and to the civilized motive in its adoption wa~ to provide a mode for the removal of a world, that our institutions present such a ridiculous anomaly in juris- guilty official from office, or whether it was intended as a peremptory prudence, such a miserable, pitiable spectacle of imbecility as that f direction as to the judgment that should be rendered in case he should Yet you must say so ; the logic is inexorable; there is no escape still be in office when convicted, it simply means that when any civil from that conclusion, if yon hold, as 'is maintained by the defense officer of the United States shall be .c onvicted on impeachment for here, that a party may commit an offense while in office, and escape treason, bribery, or other high crime or misdemeanor he shall be re- the penalty described simply by the act of resignation or by any moved, and that is all it means. Torture it as you may it is impossi- other act of his except suicide. ble to find in it the remotest insinuation that removal from office is But let us look a little more particularly to the two clauses of the the only object to be effected by impeachment, or that if judgment of Constitution from which this singular conclusion is sought to be de- removal shall be rendered unnecessary by the resignation or previous duced. As the Senate is alrea-dy aware, the fourth section of the sec- removal of the offender the Senate has no power to render a judgment ond article provides : of disqualification either limited or perpetual. The President, Vice-President, and all civil officers of the United States, sba.ll be But, sir, it is said that this section should be collated with the sev- romo>ed from office on impeachment for, and conviction of, treason, bribery, or enth clause of the third section of the first article, and both construed other high crimes and misdemeanors. together. Very well, let us do so, and what do we find then f We 'fhe learned counsel consumed nearly two hours of this world's val- discover that the framers of the Constitution intended that you should uable time in a very labored though perhaps not an exhaustive re- have more than the mere power of a motion. We find that they did hearsal of the records of the convention which framed the Constitu- intend that there should be some other penalty for official crime than tion to establish the proposition tha,t the idea they meant to convey the mere removal of the offender from office, and that you should by the section I have just read wa that no man should be impeached havepowertoinflictit, too; that you might disqualify him to hold any unless he should ue in office at the time of his impeachment. He office of trust, honor, or profit under the United States. Now ij it be £nally reached that conclusion and announced it, but by what process true that the removal of the guilt.y official was the sole aim and object, of logic I confess I was then and am still unable to appreciate. the only purpose to be effected by impeachment, why did not the 5 I 66 TRIAL OF WILLIAM W. :BELKNAP. learned counsel inform us why this provision authorizing disqualifi- Wlteu they came to look over the long catalogue of impeachments, cation wa-s inserted here t I beg pardon, I believe he did undertake however, which bad t.aken placo in the p arent country, they found to explain that. He said: that while that mode of procedure had been resorted to mainly, as I I have attempted to show t.hat the sole object for which the power of impeach- have said, for the correction of abuses and the punishment of crimes ment wa given is r emoval from office. in office, there had been an almost unlimited discretion exercised in There is another proposition which I intended to argue in that connection. The disqualification clause of punishment was evidently put in for the purpose of mak· the infliction of penalties upon those convicted. In some ca es enor- ing the power of removn.l by impea.chmeut effectual. After providing tlmttheoffi. mous fines had been inflicted; in other ca-ses fines and imprisonment; cers of the United States might be removed on impeachment, although the Presi- in other cases, fine, imprisonment, and the pillory; in other cases dent coU:d not pardon the offender convicted and removed, yet if he could re-instate death at the block. Cboosin~ therefore, as they did, to remit the him the next morning he would have substantia.lly the power of pardon. offender to the regularly constituted courts of justice for indictment, Now, sit, if the convention intended by this power of disqualifica- trial, and the ordinary punishment prescribed by the law applicable tion simply to prevent t !1e President from violating the Constitution to each particular case, and resorting to impeachment only for a cor- by virtually ignoring the restriction upon his power to grant reprieves rection of official abuses and for the punishment of offenses affecting and parclons, if it was simply to prevent him from placing the con- the pmity of the Government by political ostracism, they cletermined vict back into the same office from which he had just been removed, that in this country there should be no more such penalties inflicted a.s learned counsel suggests, can it be imagined that they were guilty by a court of impeachment; that, wherea-s in England the high court of t he supreme folly of permitting the guilty official to secure to the of impeachment had plcnarypower and could reach not only the lib- President the right to re-appoint him by resigning before impeach- erty and property but the life of the offender, here tbore should be ment and thus taking away your power to disqualify him at all f by such a court no fine, no imprisonment, no pillory, no riding upon Did they intend to say that" we will prevent the President from mak- horseback with the victim faced to the horse's tail, as in the case re- ing the power of removal a nullity, but we will leave that power in ferred to some time since by the learned counsel, Judge Black; no the hands of the guilty party himselH" Yet they must have so in- beheadin(J' upon the block-nothing of that kind· but as t.he object tended if the gentleman's theory is correct. For he could resign, no was simply to preserve the purity and maintain the integrity of the matter how guilty before impeachment, and thus not only destroy Government, the delinquent should be in the first place removed from the power of the House to accuse but yours to try him, and thus be office, and in the second place disqualified to hold or enjoy thereafter in precisely the condition to enable the President to re-appoint him any office of honor, trust, or profit under the United States either for · without having to violate the clause of the Constitution respecting a limited time, or forever, as the court of impeachment might deter- his power to pardon. I repeat, sir, were those wise men guilty of mine. the supreme folly of leavin~ it in the power of the . guilty party If I have stated the facts con-ectly, which I apprehend will not be to clo precisely the thing which counsel himself saya they were en- disputed, there is no longer any mystery about the seventh clause of deavoring to prevent by this disqualifying clause f And besides, sir, the third section of the first article. It was simply intended as a as suggested by my learned colleague, [Mr. HoAR,] if this clause au- limitation upon the judgment that might be rendered, and not in any thorizing disqualifications was intended for the purpose indicated by sense of the word to affect the jurisdiction of the court. The lan- counsel, and that a.lone, the provision would manifestly have been guage is plain, simple, and easily understood: · so framed as to disqualify the convict from holding the particular Judgments in ca-ses of impeachment shall not extend further than a. removal office from which he might be removed, and not from all offices what- from office, and disqualification to hold and enjoy any office of honor, trust, or profit ever. under the United States. The learned counsel in his remarks the other day invoked the rule Now take the two sections tog ether, collated as they are by the laid down by the Supreme Court in the Slaughter-house cases, 16 Wal- counsel for the defendant, and do you find a solitary syllable even lace, page 36, which I propose to apply to the point I am now endeav- remotely intimating that your power to try is taken from you in a oring to discuss, that we should take into consideration in construing case where it is impossible to enforce or unnecessary to render that por- the Constitution the facts of contemporaneous history, the circum- tion of the judgment which you would be obliged to render on convic- stances as they existed at the time and before it was adopted. Let tion if the party were in office! To make this question so mew bat us look a little into the circumstances existing at the time and see if more pointed and plain, suppose the framers of the Constitution had we cannot ascertain the true reason why t.be peculiar verbiage of this made the limit a little wider, and instead of saying that a judgment clause, which says that "judgments in ca es of impea-ehment shall not in impeachment shall not extend further tha.n disqualification to hold extend further than to removal from office aud disqualification to hold office, they had added, after the words" disqualification to hold office," and enjoy any office of honor, trust, or profit under the United States," the words "fine and imprisonment;" could it be maintained then was employed. that a criminal official conld oust the jurisdiction and escape being Mr. MORTON. I desire to propound a question, which I will read, fined or imprisoned by resigning his office f Would you have heard as I can do it better perhaps than the Secretary: learned and lengthy arguments here to convince you that because Whether in England a person who has been punished by the courts you could not remove the accused from office that therefore you could for crimes committed in office has, after retiring from office, been im- not fine him or imprison him! I can scarcely think that learned peached and punished by Parliament, or where a person ha-s been counsel would present such a proposition as they now do if the three impeached and punished in Parliament, has he afterward been pun- words " fine and imprisonment" had been added to the clause under ished by the courts for the same offenses f consicloration. I should be gla-d to invite the attention of the honorable manager But if resignation would . not oust the jurisdiction of the court to that question. under the section with these three words added, by what kind of logic 1\i.r. Manager KNO'IT. Mr. President, in answer to the question can it be said to oust it as the clause now stands! The same rules .of propounded by the honorable Senator from Indiana, I have to say construction would have to be applied in both cases. that I do not know of any case in England in which a conviction had But there is another principle of construction that should not be upon impeachment ha-s been followed by a subsequent conviction for entirely lost sighb of in considering the provision under discus ion; the same offense in a court of justice; nor do I know that where a and that is, in c~nstruiug any law that requires or admits of inter- per on had been convicted in a court of justice he has afterward pretation, not only the object and purpose of the law must be kept be-en impeached for the same offense. I have never examined the constantly and distinctly in view, but the effects and consequences question with ·a \-'lew of ascertaining whether either of the cases sup- of the -proposed construction in respect of that object should also be posed by the honorable Senator has ever occurred in Enuland or not. carefully considered; that is, will the construction proposed promote I was, however, approaching that subject, and I think f shall show, the manifest purpose intended, and make the law effective, or d feat whatever may have been the courMe of adjudication in England in the object of the law-maker entirely, and render the enactment au the cases supposed in the honorable Senator's question, the difference absurdity or a nullity. between our own law and the English law with regard to impeach- Before proceeding to a direct application of this rule, however, I ments, so far as may be pertinent to the point under discussion, and wish at this time to call the attention of the court to a brief rcc:.t- the reason for that difference. pitulation of the points presented and insisted upon heretofore by When the framers of our Constitution came to provide a method by the House of Representatives, in order that .they ma,y have this rnle which the Government they were about to establish should be pro- clearly in view and be able to apply it as it should be. We have en- tected from official corruption and wrong, they naturally turned for deavored to show on the part of the House of Representatives that a model to the country under whoselawsthey had been reared and with the real object sought to be attained by impeachment is not to wan- whose institutions they were familiar. There they found the process tonly harass or needle ly degrade any private citizen, but to presen-e of impeachment complete; confined, however, tothepunishmentofpo- the purity and integrity of the Government, and to protect tllo in- litical or state offenses to malconduct in office. Copying that model, terest of the people, for whose benefit the Government is establishet:l, as bad been done in the formation of most of the State constitutions, by confining, as far as possible, the administration of its f-unctions to they located the power of accusation and the necessary power of in- honest and reputable officials; that that object was sought to be quisition with that branch of the legislature emanating directly from effected by the framers of the Constitution, first by providing per- ancl immediately responsible to the people at frequent and stated pe- emptorily for the prompt removal of the corrupt anrl convicted wrong- riods, as being most likely t.o watch their interests with the most jeal- doer from the office degraded and polluted by his criminal malver- ous vigilance, while they committed the sole power of trial to that sation, and second lha,t he may be disqualified, either forever or for branch of the legislature which, from the nature of its organization a limited period, to bold any office of honor, trust, or profit unuer the and the relation it sustained to the Government and the people, would Government whose escutcheon he had stained and who e efficiency be most likely to reader strict and impartial justice between the ac- he had impaired; thus not only placing it beyond his power tore-: cusers and the accused. peat his ~:~tabs at tho vitality of the state in positions which his con- TRIAL OF WILLIAM W. BELKNAP. 67 viction of official crime has shown him totally unfit to fill, but 1llent, until some one less stlmnecl !>Y the announcement than his fel- exhibiting a striking and conspicuous example of the certain and in- lows suggests "that this court do now adjourn sine die." The motion exorable consequences of officia,l malversation. is carried unanimously, and the curtain descends npon the last act of In harmony with these purposes and in order to render the means the ridiculous farce, while the House of Representatives ''retires to for their accomplishment completely effectual, we maintain that when slow music." a person enters upon an office he assumes all the responsibilities per- Now, I ask you if this proceeding, which you and I and all of us taining thereto, criminal a,s well as civil, and cannot (livest himself have been taught from our infancy to regard as a great constitu- of them by any act of his own, but must continue under those respon- tional remedy, can be reduced to ~:tnch a senseless pageant, such a sibilities until discharged therefrom according to law; that the very ridiculous, miserable, contemptible farce as that I have attempted to moment he commits an impe:1ehable offense he becomes liable to im- describe! Yes, sir, it is, if the theory presented here by the defense pt';tehment; and, as there is no provision in the Constitution exoner- be true, because there is no limitation upon his right or power to re- ating him.from that liability until his conviction or acquittal on im- sign; and if his resignation can oust you of jurisdiction at all, it can peachment, it must continue, notwithRtanding the termination of his do so if made at one time just as well as another. If yon cannot pro- official service, whether by resignation, removal, or lapse of time. nounce any judgment except a judgment to remove the person con- This construction, and this only, we contend can give full and com- victed from office, to be followed in your discretion by the judgment plete effect to the manifest intent of the Constitution with regard to of disqualification, as claimed by the defense, your powers are taken the proceeding by impeachment. On the other hand, we maintain away just as effectually by a. resignation made ten minutes before that the construction claimed by the defense, that a guilty party can you render your judgment as if made before a single article was drawn deprive the Honse of Representatives of its prerogative to accuse or or even before his guilt was suspected. this Senate of its j urisdict.ion to try an impeachment, is simply to ren- The theory and logic of the defense is that., having re~oved him- der the provisions of the Constitution relating to the subject a ridic- self from office, your power to enforce the first part of the judgment ulous absurdity and to stultify the framers of that instrument. is taken away or has become unnecessary; therefore yon cannot pro- In the tirst place it should be remembered that the right of any nounce the other and more important sentence of disqualification! civil officer of tho United States to resign his office at any time is There is the logic, and I have endeavored to give you an illustration ab olute and unqualified. The mere formal acceptance or rejection of the theory. I apprehend, however, that the highest tribunal in of his resignation does not in the least affect its validity. He may the country or known to t.he Constitution will scarcely construe its be guilty of crime in office and can resign before he is suspected of own functions into such a ridiculous and disgraceful absurdity. its commission. He can resign after his detection and before his ac- But it may be said, if the theory of the Honse of Representatives cusation by the Honse of Representatives. He can take his chances in this case is correct, that a man may be impeached and removed from and resign after his impeachment and before his anaignment; or he an office in which he has done no wrong for misdemeanors committed c::LU resign after his arraignment, he can resign after the evidence is while in some office he may have previously held. Very well, sir, sup- heard, and he is as much out of office as a thousand Senates could pose it is so, ought it not to be sot I thh1k I can suggest a case in put him out by judgment upon impeachment, so far as the mere amo- which it would not only be considered proper, but eminentl.v· neces- tion from offi(je· is concerned. sary, if not absolutely indispensable. Before doing so I will invite This is the view of my colleagues and myself, it is admitted by your attention to the first section of the third article of the Constitu- counsel, and it is sustained by judicial decision in the only case in tion: which the question has come under judicial review, to my knowledue, The judicial power of the United States, shall be vested in one Snpreme Court, in a Federal tribunal. The court said in the case of the United States and in such inferior courts a~ the Congress may from time to time ordain and estab- vs. Wright, McLean's Reports, volume 1, page 512: lish. The judges, both of the supreme and iriferior courts, shall hold their offices during good behavior, and shall, at st.ated times, rccei ve for their services, a compen- There can be no doubt that a. civil officer has a. right t~ resign his office at pleas- sation, which shall not be diminished during their continuance in office. me; and it is not in the power of the Executive to compel him to remain in office. Now, suppose that at some period in the distant future a vacancy It is only necessary that tbe resignation should be received to take effect· and this docs not depend upon the ru::ceptance or rejection of the resignation by the should occur in the office of Chief Justice of the United States, and, President. what would not be at all improbable, that the then acting Attorney- The House of Representatives is frequently composed of very General should be promoted to fill the vacancy. Suppose, moreover, enterprising gentlemen, notwithstanding it may require a steam- that from the moment of his confirmation by the Senate, his private elevator to brmg them up to the level of the contempt of some of the conduct, as well as his official action, may be as pure a,s the icicle- learned counsel. N~erous i_nstances in their past history might be That's curded bv the frost from purest snow, And hangs on D1a.n's temple. adduced to show their energy ill the pursuit of useful knowledge. But pretermitting the mention of aU examples of such enterprise at He may be a perfect model of private morality and the paragon of this time, suppose they should set themselves seriously to work to official purity. But suppose it should transpire that while in the oc- solve the great problem in fiscal science which has so long excited cupancy of the former office he was larded all over with bribes, fes- the curiosity and enga!Ted the ingenuity of the American people; tering with corruption; guilty of having embezzled thousands and suppose they should undertake to determine how it is that a,n averaue tens of thousands of the public money; the patron and emissary of patriot of moderate means who devotes his gigantic talents to the thieves and cut-throats, who were in the habit of regularly dividing seryice. of his coun?-y upon ~ salary of $5,000 to $8,000 a year can with him the ill-gotten booty of their nefarious calling. Suppose mailltam an establishment ill a style of luxury and magnificence that his pals should turn upon him like the hounds of Acteon upon that our imperial visitor might envy, and still be able to invest at their master, and disclose evidence sufficient to show his guilt to the the end of a few years 100,000 or 200,000 in the remunerative stock exclusion of a reasonable doubt, and that he should be indicted, tried, of some profitable corporation. Suppose that in the prosecution of convicted, and sentenced to the penitentiary. Now, it will doubt- that desirable information they should a-ccidentally unearth some less occur to Senators that the silk gown of the judge would be a plodding public servant steeped to the very eyes in corruption, loaded little incongruous with the zebra uniform of the convict. It would down to the very gnards with official pillage. .As a matter of course not perhaps be a source of a ~reat deal of pleasure to an American he would be instantly impeached by the unanimous vote of the Senator to point out to a distmguished foreigner the unostentatious House in the name of themselves and of all t,h e people of the United dress and retiring habits of the chief judicial officer of his country. States ; the damning catalogue of his crimes would be set out in ap- It would certainly be a little inconvenient, not so say somewhat hu- propriate articles in the stately phrase of legal diction, interspersed miliating, to the pride of the American citizen to have him remain and ornamented with the choicest flowers of a florid rhetoric. .Man- there during his whole term-perhaps for twenty years-occupying agers are appointed and appear at the bar of the Senate, looking a,s the position and entitled to the emoluments of the office of Chief solemn as the pall-bearers at a rich man's funeral; proclamation is Justice of the Supreme Court of the United States while breaking made and the defend:mt appears surrounded by the most distin- rock in a State prison f But how would yon get him out f It may guished counsel the continent can afford, the latchets of some of be said that he could be impeached for misdemeanor in office for not whose shoes an average member of the House of Representatives is appearing upon the bench and performing his duties at the regular not worthy to touch with a ten-foot pole. Witnesses are brought terms of his court as required by law. Grant that; but c1trry the from every part of the country. Day after day, week after week and case a step further. Suppose the statute uf limitations had barred month after month is consumed in their examination. The argn~ent a criminal prosecution before the ordinary tribunals of the country, commences. Counsel for the accused electrify the Senate with so that the impediment of imprisonment would not be in the way of bursts of eloquence almost sufficient to rekindle their wonted fires in the discharge of his duties as Chief Justice. Must the highest office the slumbering ashes of Sheridan and Burke. Nevertheless the Sen- known to our judicial system be polluted forever by the presence of ate at last finds the defendant guilty by a unanimous vote; notifies a known felon f I imagine that if such a case should actually occur the House of Representatives that on a certain day it will proceed to the Senate would have very little hesitation in sustaining its juris- ju~lgment, and adjom:ns. The day arrives. The House of Represent- diction. You may say it is an extreme case to suppose, but cases atives, heade.d by ~eir Speaker and Sergeant-at-Arms, make their ap- fully as remarkable have more than once occurred in the history of pe~rance. Silence IS .commanded on penalty of fine and pain of im- the human family. pnsonment. The chivalry and beauty of the capitaJ., collected in The honorable Senator from New York [Mr. CONKLING] on Satur- tile galleries, look down in breathless awe upon the august scene daypropounded a couple of questions which courtesy to him requires transpiring below. The silence, profound as the hush of death, is at should receive a direct answer. 1\fy colleagues inadvertently over- last brokeu by counsel for the accused, who rises and informs the Sen- looked them and have requested me to a,nswer them a.s I am able: a~o ~ha~ the defeJ?-dant last evening resigned his office, and your juris- 1. If two persons guilty of czime in office cease to be officers at the same time, eli chon IS gone, like Othello's occupation. Senators look around on one by removal and the other by resignation, is one rather than the other subject; ~tl:!~tachment afterward Y If a distinction between the two ca-ses exists, please each other in blank amazement at the singular anu sudden denoue- 68 TRIAL OF WILLIAM W. BELKNAP. . As to my single self, I say no, sii! It is the guilt that gives yon ju- I wonld not, if I could, by any undue influence cause the un,lance risdiction; it is not the per on; it is his status at the timo he commit- which should here ue poised. uy tho firm, teady baud of rigid and ted the offense, and not his position at the time of the trial. You get impartial justice to change "but in the estimation of a hair." at once the jurisdiction of the case on the commission of the offen e, I know not whether the inexorable pen of history will note the and it is no difference, therefore, whether he go out of office by resig- transactions of this hour, but if it should, I tm t the record will be nation or whether he be removed from ()ffice by a superior power; not., in characters imperishable as the rock-ribbed hills that the Amer- of course, upon impeachment. So I say, so far a~ I am capable of di - ican Senate, unbiased by personal or party considerations, uninflu- cerning, there is no eople will accuse the RollS~ of Representatives self." Coke was honored as you will not be honored, by beinO' de- of being either fools or traitors for sending it here, or denounce you posed from his office, by being compelled to pay a fine of £1B,ooo, for cowardice or corruption, decide it as yon will. Whatever your and persecuted generally during the whole of that reign. . decision may be I trust it will be snch a-s to redound to your own This lash question, therefore, I shall not trouble you or myself by credit as jurists and statesmen, as well as to the permanent good of discussing. The second neecls very little attention. The strain of our common country. ''I have neither action, nor utterance, nor the case is upon the first, namely, whether a man who "has resigned power of speech to stir men's blood;" and if I had, I have no appeal his office is to be still accounted a. public officer for all the purp.o es of to make to your passions or your prejudices. I cannot forget that I an impeachment against him by the Honse n,nd beforo the Senate. stand in the presence of the most exalted tribunal known to the Con- On that subject, of course, we have the negative; and I will try to stitution of my country, sitting to determine one of the gravest maintain it if I am able to do so. questions ever submitted to a human court; not for thls hour, but It is not necessary that I should repeat the arguments which yon for all time; not for the weal or woe of this individual accused) but for have already heard from my colleague; it would be a waste of your aught I know for the good or ill of generations yet unborn. I would time. I suppose I on~ht to answer tho arguments of the managers; n,nd not therefore, if I could, obscure a single ray of the pure, bright, yet there are some tnings said by them which I cannot reply to. The light of truth and reason in which that question should be viewed. honorable manager who spoke last ou Saturday made the most elabo- ·- TRIAL OF WILLIAM W. BELKNAP. 69 rate and carefully prepared oration that it has ever been my good It appears from the citation itself that the general opinion of the fort·nne to hear. Of course it excited my admiration, as it did yours; Honse as expressed by other members was that the power of impeach- but it was filled for the most part with the bitterest abuse of the ac- ment applied only to persons actually in office. Mr. Adams of cour ·e cused party and of other persons not here but absent and undefended. opposed what everybody else believed to be true. Nothing indeed I cannot have any objection that that gentleman should play the part would have given him greater pleasure than to be impeached. It of Cicero in this proceeding; but I do protest that he has no right to would have given him an opportunity to come over here and lay make an imaginary Mark Antony out of General Belknap for the mere about him right and left. His organ of combativene s was always purpose of having a subject for his philippic. He not only berated in a state of chronic inflammation. He enjoyed nothing so much as him as guilty of everything set forth in the articles, but he goes out he did the certaminis gaudia-the rapture of the strife. That was of his way and a.sserts that the whole country is full of public and the strongest passion of his nature. He tried to provoke a motion for notorious corruption which disgraces her in the eyes of all the world. his own expulsion from the House, and that failing, he presented a Judges, members of Congress, city corporations, and railroad compa- petition from some outside enemy to expel himself. nies share with one another in the general infamy, and he gives the Another authority from the House of Representatives is cited by scandalous hearsay that the President's intimate friends and com- one of my colleagues. But I confess I do not claim much by it. The panions are tainted with the s8Jlle ba-se crimes. By his account, it honorable manager who argues questions of jurisdiction in the form will be more tolerable in the day of judgment for Sodom and Gomor- of philippics against the accused, declared when this question was ra.h than for these cities whose wickedness he has been watching. first mooted that the Honse had no power and the Senate no jurisdic- Like Lot, his righteous soul has been vexed from day to day by the e tion. We would regard that decision as very important if it had not iniquities. According to him, all classes of this country are welter- been reversed by the same high authority that made it. . ing together in one great mass of moral putrefaction. He scoffs at It would be a great prop to our argument if he who put it under ns the argument of my colleague as "the jeers and· the sophistry of the had not afterward knocked it away. But he had a right to change ·criminal lawyer." If he were a criminal lawyer, which I suppose by his his opinion. No man is bound to live and die by the notion be may sneer that be is not-if indeed he were any lawyer at all-and go in a take when a question like this is first presented to his mind, and no one court of ordinary jurisdiction, upon pretense of discussin~ questions here or anywhere ba-s a right to say that the change was not a con- of law, and would attack the opposite party with unfoundea abuse, and scientious one, or that he professes any opinions now which he does at the same time give everybody else a lick with the rough side of not honestly and sincerely entertain. It is true that the change oc- his tongue, he would be gently reminded that he waa traveling out of curred under circumstances of excitement and political terrorism not the record, and if necessary he would be brought ba-ck to the point very conducive to the formation of a sound judgment. He was sur- with rather a sharp turn. rounded by a conflagration of anger and animosity. Paley was right .I know not what may be your rule when you. are sitting here in the when he said that he must be either more or less than a man whore- exercise of your ordinary function; but it seems to me that when this fuses to kindle in the general blaze. It is some honor to that. gentle- body resolves itself into a judicial tribunal, it ceases to be a proper man that he was the la-st one to take fire, though when he did begin place for that kind of oratory which "splits the ears of the ground- to burn he proved to be rather more combustible than any of the rest. lings" and calls down the claps from the galleries. If the gentleman [Laughter and applause in the galleries.] de ires to show his virtue and the wickedness of other people, let him Mr. DAVIS. I call attention to the disorder in the galleries. go to the hustings and call his belovrd constituents around him. · The PRESIDENT pro tempore. The Chair will formally remind the There his sonorous periods and his well-poised antitheses would ex- occupants of the galleries that applause, either for or against, is out cite universal admiration; his friends shout themselves hoarse, and of order. He trusts that due deference will be paid to the Senate; throw up their caps as if they would hang them on the horns of the otherwise, the Chair will be compelled to vacate the galleries. moon. But this question of law is not to be determined by the vitu- Mr. BLACK. We usually expect to find something on subjects of peration of the managers. It may be that this is not a very good this kind in the Federalist, showing what was in the minds of those world. It is generally supposed that there are things in it which need who urged the adoption of the Constitution upon the States and the correction; but the gentleman ha-s no right to throw those things into people; and we do find a little there, not very much. Hamilton says the balance here. He may want a victim, aa he does no doubt, and in one of his papers that this power of impeachment gives an "awful if he cannot get one according to law so much the worso for the law, discretion" to the Senate, and calls the power in the House of Repre- for he intends to have one anyhow. I think be believes in the maxim sentatives "a national inquest upon the public men of the country;" that it is better ninety-nine guilty men should escape than that one from which the inference is a perfectly fair one that he did not t hink innocent man should suffer; but he seems to think that more than the House of Representatives could throw its drag-net over the whole ninety-nine have escaped already, and that the turn of the innocent country and draw in every man, whether he was a public officer or a man has come. private citizen, provided he had once held an office. There is no way It is not a part of my duty to examine in detail the authorities that I can conceive of in which they can make out that Hamilton was which have been cited on both sides; but I shall refer to them in a wrong about that or that his remarks cover a ca.se like this except in somewhat compendious way, merely that they may be recalled to the way taken by the chairman of the managers when he laid down your memory. the broad doctrine that once an officer always an officer. But that Blount's case bas been much spoken of. Why it should be so I am cannot be possibly true. When the gentleman [Mr. LORD] crossed at some loss to say, except for the purpose of showing that something the bar and told me, with a severe countenance, that I was still a can be said on both sides of thi8 question. But that does not ad- public officer, it did not alarm me in the least, because I had a perfect vance us one step in the argument, since this case itself furnishes you inward consciousness that I was not and had not been for fifteen with a demonstration that a great deal can be sald on both sides. My years in the public service. I was and I am a private citizen, clothed colleague who opened the ca-se thought that because the judgment with all the immunities and privileges of a private citizen; and, what of the courts sustained both the pleas it must be regarded as a de- is more, I can assure the gentleman that there is a fair prospect that cision of the point raised by the second as well as the first. .As be- I shall, if I live, continue to enjoy that inestimable blessing for a good tween the parties that is the technical effect of the record; but I while to come. cannot conceal from myself that the turning-point of that case was The debates in the convention have been carefully eviscerated by that Mr. Blount, being a Senator, was not a civil officer and never had my two colleagues, and it would be gilding refined gold for me to go been, and therefore it made no sort of difference whether he had re- over the argument which they have made. Suffice it to say that there signed or was still in office. is not in the whole of them a single trace to be found of any such If the mere dicta of counsel can be considererl a thing of value, then notion as that which is now urged by the managers. why did not our friends on th~ other side take some notice of the There is no contemporaneous exposition of the Constitution which opinion expressed by Luther Martin on the impeachment of Judge favors their view. Thedebatesin the State conventions which adopted Chase' He was at that time the acknowledged head of the American the Constitution I would have thought might contain something bar, and declared it to be his unqualified judgment (which was not upon this subject. Perhaps they have not been very fully examined. contradicted by anybody there) that a person after going out of office But there is one remark made by Governor Johnstone, of Nort h Car- was not liable to impeachment for anything donewhilehewa-s in. Dis- olina, a man whose blood and judgment were so well commingled tinguished members of this court, many of them on the most im- that his opinion deserves great attention ; a simple statement of his portant occa-sion of their lives, the impeachment of President Johnson, own views on this subject that is most }mpressiYe and most direct. expressed that doctrine deliberately, simply, and plainly. The manag- Among all the old writers on this subject not hing is clearer, more ers ignore that authority, and think it amounts to very little in compari- impressive, or more direct than what he says; and here it is : son of what the counsel on tho one side said in Blount's case in face I never thought that impeachments extended to any but officers of the United of a flat contradiction from the other side. They do introduce one States. When you look at the judgment to be given on impeachments, you will see that tho punishment goes no further than to remove and disqualify civil officers of dictlt1n pronounced in another place, and they make much of it. The the United States who shall, on impea-chment, be convicted of high misdemeanor . manager from Massachusetts cited John Quincy .A.dams, and coupled Removal from office is the punishment, to which is afldl'd future disqnalification. the citation with as lofty a eulogy as one man can make upon another. How could a man be removed from office who had no office ~-Fourtb volume El- I, of course, do not detract from the merits of that distinguished man. liot's Debates, page 35. He must have had some attractive qualities, since he was considered Three distinguished jurist.s of this country have written elaborate by a very large number of his countrymen fit to be set up as a candi- books on the Constitution : Rawle, Sergeant, and Story. Sergeant date for President against him who was then the foremost man of all says absolutely nothing about this question; it does not seem ever to this world. But the public history of Mr. Adams shows that he of have been raised in hi::~ mind. Ra.wle says what is the same as n oth- all men that over lived was tho least reliable upon a question of law. ing. In describing who are subject to impeachment ho aysit applies He was too fond of personal controversy to care which siue he took. to officers or thoso who have been in office. If he bad said it appllcs 70 TRIAL .OF WILLIAM W. BELKNAP. to officers and all those who have held office heretofore it would have subject of the realm, to everybody except the supreme executive been something in their favor; but the grammatical construction of magistrate, aud a power kindred to it, though not called by the same the sentence shows that be intended to be as indefinite as possible. name, was actually exerted in one case upon the King himself. It But Story is outspoken and plain; you cannot doubt what he says. might take for its victim a peer or a commoner, a prince or a peasant, It applies, in his judgment, only to persons in the actual possession a priest or a layman, freeholder, cocman or locma.n , merchant, of offices. mechanic, or sailor, and try him for any offense. It is true that they We have, then, to support our view all the jurists, statesmen, and did not often trouble themselves with the trial of any except political text-writers, except the counsel on one side of the Blount case and offenders, but they were not restricted by any law to .that class of John Quincy Adams, w;hose spirit of universal contradiction drove cases. Nor were they limited in their judgments. They could hang him to the other side. Such also bas been the uniform practice. We and quarter a man whom they had convicted, behead him, set him in have had several great political revolutions in this country, when the the pillory, brand him, maim him, imprison him for lifo, fine him to party previously occupying the seats of power have been driven out the' whole extent of his estate. with the wrath of their victorious enemies burning after them. As Out of this boundless ocean of power our ancestors took the smallest they came in they were not sparing of their charges. Treason, cor- possible quantum and with many misgivings, and after imposing care- ruption, and other crimes and misdemeanors. we1·e freely asserted. ful restrictions upon its exercise, they lodged it here in default of some Yet it does not appear to have ever entered into the head of any one better place to put it. Would you sound the limitle s depths of the that the party coming in could subject theh displaced opponents to sea and measure all its vast circumference to ascertain the dimensions the power of impeachment. It is impossible to :tccount for this with- of the drop which you hold in the hollow of your han.d f If you ban out ·supposing a universal opinion that no such power existed. do that with respect to the persons who are subject to the power, theu That is not all. There have been a great many particular cases in you must also do it, or, at least, you may as woll do it with regard to which it was thought desirable to remove judges, who could be re- the sort of judgment that you will pronounce. If General Belknap,· moved in no other w~ty. Investigations have been commenced in the after he has resigned his office of Secretary of War, can be ma-de amen- House of Representatives for that purpose; and whenever a judge, able to it because Bacon wa.s convicted after he surrcne a loss as great to him as that of trine of strict construction, give it up at this time of dayt Are you conviction. going to surrender it now! No; this is the very time above all others, All these are reasons which yon cannot deny to be sound for saying and this judicial occasion is the proper occasion to show that it is not that this provision be const.rued as strictly as po ible :md tlh'llt noth- a mere political dogma, put forth to flat-ter and cajole the people, ing should be done under it which cannot be done strictissimijm•is. but a principle and a truth, founded in conviction and sustained by I have finished. I have nothing more to say. I began without an reason. And do not forget that whatever may seem to be the bad exordium anc.l I will end without a peroration. luck which on some occasions bas happened to that doctrine, it is in- Mr. EDMUNDS. Mr. President, I move that the Senate be cleared extinguishable ; it has a vitality which will arrest the degeneracy and the doors closed. . which would destroy it. The motion was agreed to; and the Senate (at three o'clock and The men who made the tenth amendment and who faithfully ad- forty minutes p.m.) proceeded to deliberate upon the question sub- ministered the Government upon the principle embodied in it, who mitted. · at any time would have gone to their graves as freely as to their The doors being closed, beds rather than to have seen it violated, are still consecrated in the Mr. EDMUNDS submitted the following order for consideration: affections of mankind. No portion of the respect which is due to Ordered, That the managers and respondent be excused from attending before them has ever been taken away. The colossal grandeur of Wash- the Senate sitting for the trial of impeachment until Mn.y , 18th instant. ington's character still attracts the admiration of the world; and Mr. BURNSIDE moved to amend the order by inserting at the end Franklin's quiet memory climbs to heaven; and the pure philosophy thereof, ''And that the Senate sitting for the trial of impeachment of Jefferson illuminates the path of the statesman; and Madison's adjourn to Monday next, the 15th of May instant." wisdom is the standard of orthodoxy, and Jackson's name shall be The amendment was agreed to. · th€1 watch-word of the free forever. Mr. MORRILL, of Maine, moved to amend the order as amended But suppose you do not think so; suppose you regard this as a great by striking out all after the word "ordered" and in lien thereof in· consolidated Government, where all power belongs to the Union, what serting: then Y The statutes and ordinances and constitutions and laws which That until further notice the attendance before the Senatel sif:ting for the trial of are made by this Government must receive a construction according impeachment, of the managers and the respondent will not oe required. to the rnles of interpretation established for other governments. The amendment was agreed to. You will give to this provision at lea-st the kind of interpretation The order, as amended, was agreed to, as follows : which wonld be conceded to it if it were an act of the British Parlia- Ordered, That until further notice the attendance before the Senate, sitting for ment, and for that reason the construction contended for by us is just the trial of the impeachment, of the managers and the respondent will not be re- DB necessary, according to the common-law principles, as it is if we quired. look for the rule to the Virginia and Kentucky resolutions. 1\Ir. SHERMAN moved that when the Senate sitting for the trial of This is a penal provision. When our friends on the other side were impeachment adjourns it be to Monday next at half past twelve ransacking the library to see what they could see in the English cases, o'clock p. m. it is a pity and a wonder that they did not come across something Mr. BURNSIDE moved to amend the motion by striking out "Mon- which wonld have reminded them that penal statutes are to be con- day next" and in lieu thereof inserting "Tuesday, the 16th instant." strued strictly. This is, according to their own account of it, a penal The amendment was rejected. provision, and all judges in that country from which we derive our Mr. SARGENT moved to amend the motion by striking out "Mon- notions of law, all judges of every grade, apply that doctrine to such day" and in lien thereof inserting" Saturday." a statute ; not merely Coke, and Hale, and Holt, and Mansfield, but '.rhe amendment was rejected. others of a lower grade. Jeffreys himself, when be came home red- Mr. PAD DOCK moved to amend the motion by striking out "Mon- handed from the bloody assizes, time-serving and blood..thirsty brute day" and in lieu thereof inserting ''Friday." as he was, would not have denied that the law had that much human- The amendment was rejected. ity. The question recurring on the motion of Mr. SHERMAN, it was agreed But there is another ground. Whenever yon are considering any to. special provision of the Constitution which impinges upon some great On motion bj' Mr. SARGENT, (at four o'clock and fifty-five min- general right that the Constitution was made for the purpose of pro- utes p.m.,) the doors were re-opened. tecting, yon are always to give it the narrowest construction that yo"'.l The PRESIDENT pro tem,po1·e announced that the Senate sitting for can, so as to take away from the general right as little as possible. the trial of impeachment, in close session, had ordered that until fur- This does affect in that way several of the most important rights that ther notice the attendance before the Senate, sitting for the trial of were ever claimed by a people or conceded by a government. For impeachment, of the managers and the respondent will not be re- instance, all men charged with a criminal offense shall be entitled to quired; and that the Senate so sitting had further ordered that when a trial by jury. This provision takes away the right of the party ac- the Senate sitting for the trial of impeachment adjourn it be to Mon- cused to a trial by his peers and so bjects him to a trial before a po- day next., at half past twelve o'clock p. m. litical body composed, it may be, of his rivals and his enemies. If On motion by Mr. SARGENT, the Senate sitting forthe trial of the the Constitution in plain words says that be shall be deprived of that impea-chment adjourned. 1·ight, we cannot deny it; but we deny it because it is only by a con- strained interpretation that our adversaries would take the right away. It was the manifest design of those who framed our institutions to provide for a judiciary separate, distinct, apart from th~ rest of the MONDAY, May 15, 1876. Government, composed of men having certain qualifications, holding their office by a certain tenure, and paid in a certain way. The Con- The PRESIDENT P'I'O tempm·e. The hour fixed for that purpose stitution declares that the judicial power of the United States shall having arrived, the legislative and executive business of the Senate be vested in one Supreme Court and such inferior courts as Congress will now be suspended, and the Senate will proceed to the con idera.- shall from time to time ordain and establish. The impeachment pro- tion of the articles of impea-chment exhibited by the House of Repre- vision takes away from all persons who are subject to it the right of sentatives against William W. Belknap, late Secretary of War. having their cases investigated and determined by judicial officers. It Mr. INGALLS. I move that the galleries be cleared and the door~:~ takes a portion of the judicial frown away from the courts where the closed. other parts of the Constitution intended to put the whole. The motion wa'3 agreed to ; there being on a. division-ayes 28, Again, the principle pervading our Constitution and the constitu- noes 9. tion of every government pretending to be free is that the judicial, The Senato thereupon proceeded to deliberate. the legislative, and the executive departments shall bo kept as com- The doors having been closed, pletely separate and distinct as it is possible to make them. But this · The jourm1l of proceedings of the Senate, sitting for the trial of provision, as far as it goes, mingles them together and gives a part of William W. Belknap, of Mondayl May 8, was read. the judicial power to a body whose general functions are legislative. The PRESIDENT pro tempore administered to Mr. ALCORN, who The Constitution declares what Magna Charta had declared be- had not been previously sworn, the following oath, namely: "You fore and what was a well-established principle of the common law, solemnly swear that in all things appertaining to the trial of the im- that no man shall be twice vexed for the same cause. Here, however, peachment of William W. Belknap, now pending, you :will do impar- you try a man first and for the same offense you send him inro the tial justice according to the Constitution and laws: So help yon God." courts to be tried again. Mr. ALCORN ro e and stated that he had been unavoidably ab ent There is another provision in our Constity.tion that every man shall from the sessions of the Senate sitting for the trial of impeachment hav justice done to him at home, where he can be tried by a jury of heretofore held, and for that reason ho asked to be excused from voting his neighbors in the vicinage to which he belongs. The Constitution upon the question now under consideration pre ented by the plead- expressly declares that he shall always be tried in the district where ings. -TRIAL OF WILLIAM W. BELKNAP. 73 Mr. SHERMAN moved that Mr. ..ALcoRN, for the reasons assigned to the consideration of the resolution yesterday submitted by him pro- by him, be excused from voting upon t1le question now before the viding for the reporting and printing, in confidence, of the proceedings Senate as presented by the pleadings. had and opinions expressed in secret session. The motion was agreed to. The motion was not agreed to. The question before the Senate sitting for the trial of impeachment The question before the Senate, sitting as aforesaid, being whether being whether W. W. Belknap, the respondent, is amenable . to trial W. W. Bellrnap, the respondent, is amenable to trial by impeachment by impeachment for acts done as Secretary of War, notwithstanding for acts done as Secretary of War, notwithstanding his resignation of. his resigna.tion of said office, said office, aa stated in the order of proceedings adopted on the 28th After debate, of April last, On motion of Mr. EDMUNDS, (at three o'clock and fifteen minutes Pending debate thereon, p.m.,) the Senate sitting for the trial of the impea-chment took a recess On motion of Mr. ALLISON, (at two o'clock and five minutes p.m.,). for twenty minutes; a recess was taken for twenty minutes. After which, • . After which, Debate was resumed on the foregoing question ; Pending debate under the order of the 28th Aprillaat, Pending which, Mr. SARGENT moved (at four o'clock and fifteen minutes p.m.) On motion of Mr. MORTON, the Senate sitting for the trial of im- that the Senate sitting.for the trial of the impeachment adjourn to peachment adjourned to to-morrow at twelve o'clock and thirty min- to-morrow at one o'clock p. m. utes p.m. Mr. DAVIS moved that the Senate sitting for the trial of the im- peachment adjourn ; and on this motion the yeas and nays being taken resulted-yeas 18, nays 26 ; as follows: YEAS-Messrs. Allison, Caperton, eiayton, Cockrell, Cooper, English, Gold- TUESDAY, Ma.y 16, 1876. thwaite, Gordon, Harvey, Kelly, McCreery, Maxey, Merrimon, Norwood, Oglesby, Randolph, Whyte, and Wright-18. The PRESIDENT pro tempore having announced the arrival of the NAYS-Messrs. Bayard, Bogy, Booth, Boutwell, Bruce, Burnside, Camoron of hour fixed, the legislative and executive business was suspended, and Pennsylvania, Cameron of Wisconsin, Christiancy, Conkling, Conover, Cragin, Ferry, Frelinghuysen, Hamlin, Howe, Ingalls, .Jones of Nevada, Kernan, Logan, the Senate proceeded to the consideration of the articles of impeach- McMillan, Paddock, Ransom, Sargent, West, and Windom-26. ment exhibited by the House of Representatives against William W. NOT VOTING-Messrs. Alcorn, Anthony, Davis, Dawes, Dennis, Dorsey, Belknap, late Secretary of War. Eaton, Edmunds, Hamilton, Hitchcock, .Johnston, Jones of Florida, Ke:v, McDon- ald, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Patterson, RObertson, Mr. EDMUNDS. As we adjourned with closed doors yesterday, I Saulsbury, Sharon, Sherman, Spencer, Stevenson, Thurman, Wadleigh, Wallace, suppose the doors will be closed now, as a matter of course. and Withers-29. The PRESIDENT pro ternpore. The Sergeant-at-Arms will clear the galleries and close the doors. So the motion was not agreed to. The usual proclamation was made by the Sergeant-at-Arms. The question recurring on the motion of Mr. SARGENT, it was agreed The J oumal of proceedings of the Senate, sitting yesterday for the to; and the Senate sitting for the trial of the impeachment ad- trial of William W. Belknap, was read. journed to meet to-morrow at one o'clock p.m. The question before the Senate sitting for the trial of impeach- ment being whether ·w. W. Belknap, the respondent, is amenable to trial by impeachmont for acts done aa Secretary of War, notwith- standing his res-ignation of said office, as stated in the order of pro- ceedings adopted on the 28th April last, THURSDAY, May 18, 1876. Mr. MORTON submitted the following question for consideration: The PRESIDENT pro t-entJ)(YI'e having announced the arrival of the Is there power in Congress to impeach a person for crime commit- hour fixed, the legislative and executive business waa suspended, the ted while in office, if such person bad resigned the office and such res- galleries were cleared, the doors closed, and the Senate proceeded to ignation had been accepted before the finding of articles of impeach- the consideration of the articles of impeachment exhibited by the ment by the House f House of Representatives against William W. Belknap, late Secre- Mr. MORRILL, of Vermont, submitted the following question as a tary of War. substitute for that submitted by Mr. MORTON: The usual proclamation was made by the Sergeant-at-Arms. Has the Senate power to entertain jurisdiction in the pending case The journal of the proceedin~s of the Senate sitting yesterday for of the impeachment by the House of Representatives of William W. the trial of impeachment of W1lliam W. Belknap was read. Belknap, late Secretary of War, notwithstanding the facts alleged in The question pending being whether W. W. Belknap, the respond- relation to his resignation t ent, is amenable to trial by impeachment for acts done as Secretary of Mr. ALLISON submitted the following resolution for considera- War, notwithstanding his resignation of said office, aa stated in the tion: order of proceedings adopted on the 28th of April la-st, Resolved, That the consultations and opinions expressed in secret session be taken Pending debate thereon, down by the reporters and printed in confidence for the use of Senators. On motion of Mr. EDMUNDS, (at two o'clock and seventeen minutes The question submitted by Mr. MoRTON having been considered, p. m.,) a recess was taken for twenty minutes, Pend.iJ;lg debate thereon, After which On motion of Mr. SARGENT, (at three o'clock and :fifteen minutes Mr. WHYTE, by unanimous consent, submitted the following order p. m.,) the Senate, sitting for the trial of impeachment, took a recess for consideration : for twenty minutes. Ordered, That the Senat-e sitting for the trial of impeachment shall proceed at After which, four o'clock p. m. on Saturday, May 20, 1876, to vote, without further debat-e, on The Senate sitting for the trial of impeachment resumed the con- Senator the question of jurisdiction raised by the pleadings in the pending case; and each shall be permitted to file Within two days his written opmion thereon, to sidera~on of the question submitted by Mr. MORTON; and, be printed with the proceedings. Pendmg debate, On motion of Mr. CRAGIN, (at five o'clock and twenty-five minutes Pending debate under the order of 28th April, p.m.,) the Senate sitting for the trial of impeachment adjourned to On motion by Mr. FRELINGHUYSEN, (at five o'clock and three meet to-morrow at twelve o'clock and thirty minutes p.m. minutes p. m.,) the Senate sitting for the trial of impea-chment ad- journed. WEDNESDAY, lJlay 17, 1876. FRIDAY, May 19, 1876. The PRESIDENT p·ro tem_po1·e having announced the arrival of the The PRESIDENT pro tempore having announced the arrival of the hour fixed, the legislative and executive business wa suspended, the hour fixed, the legislative and executive business was suspended, the galleries were cleared, the doors closed, and the Senate proceeded to galleries were cleared, the doors closed, and the Senate proceeded to the consideration of the articles of impeachment exhibited by the the consideration of the articles of imJ>eachment exhibited by the House of Representatives against William W. Belknap, late Secre- House of Representatives against William W. Belknap, late Secre- tary of War. tary of War. · The usual proclamation was made by the Sergeant-at-Arms. The usual proclamation was made by the Sergeant-at-Arms. The Journal of the proceedings of the Senate sitting yesterday for The journal of the proceedings of the Senate sitting yesterday for the trial of William W. Belknap was read. the trial of impeachment of William W. Belknap was read. Mr. WHYTE submitted the following order for consideration: The question before the Senate, sitting as aforesaJ.d, being whether Ord~red, That the Senate, sitting on trial of impeachment shall proceed, at four W. W. Belknap, the respondent., is amenable to trial by impeach- o'clock p. m. this day to vote, without further debate, on the question of jurisdic- ment for acts done aa Secretary of War, notwithstanding his resigna- tion raised by the pleadings in the pendin~ case; and each Senator shall be permit- tion of said office, as stated in the order of proceedings adopted on ted to file within two days his written oprnion thereon to be printed with the pro- the 28th of Aprillaat, ceedings. · - Pending debate thereon, Mr. ALLISON moved to postpone the present and all prior orders On motion of Mr. SARGENT, (at two o'clock and seven minutes p. and that tho Senate sitting for the trial of the impeachment proceed m.,) a recess was taken for twenty minutes. 74 TRIAL OF WILLIAM W. BELKNAP. After which Pending debate, Debate was resumed under the order of 28th Aprilla,gt, and On motion of Mr. ALLISON, (at two o'clock and three minutes p. Pending debate thereon, . m.,) a recess for twenty minutes was taken. On motion by lli. HAMLIN, (at four o'clock and forty minutes p. After which, m.,) the Senate sitting for the trial of impeachment adjourned. Debate was resumed under the order of 28th April. Mr. WRIGHT moved that the Senate sitting for the trial of the im- peachment adjourn until to-morrow at eleven o'clock. Pending which, Mr. INGALLS (at five o'clock and thirty-five minutes p.m.) moved SATURDAY, May 20, 876. that the Senate sitting as aforesaid do now adjourn. Mr. EDMUNDS called for the yeas and nays, and they were ordered; The PRESIDENT pro tempore having announced the arrival of the and being taken, resulted-yeas 22, nays 20; as follows: ; hour fixed, the legislative and executive business was suspended, the YEAS-Messrs. .Allison. Barnum, Bayard, Bogy, Booth, Boutwell, Burnside, galleries were cleared, the doors closed, and the Senate proceeded to Conkling, Cooper, Dennis, Ferry, Goldthwaite, Gordon, Hitchcock, Ingalls, Jones the considern.tion of the articles of impeachment exhibited by the of Nevada., Logan, McCreery, McMillan, Mitcllell, Patterson, and Steven on-22. House of Representatives against William W. Belknap, late Secre- N AY8-Messrs. Cockrell, Dawes, Edmunds, Frelinghuysen, Kelly, Kernan, Key, tary of War. Maxey, Merrimon, Morrill of Vermont, Oglesby~ Paddock, Ransom, Sargent, Saulsoury, Thurman, Walla.ce, W"lSt, Windom, ana Wrig.h~20. The usual proclamation waa made by the Sergeant-at-Arms. NOT VOTING-Messrs. Alcorn, Anthony, Bruce, Cameron of Pennsylvania, The journal of the proceedings of the Senate sitting yesterday for Cameron of Wisconsin, Caperton, Christiancy, Clayton, Conover, Cragin, Davis, the trial of impeachment of William W. Belknap was read. Dorse:y, Eaton, Hamilton, Hamlin, llarvey, Howe, .fohnston, Jones of Florida, Mc- The question before the Senate, sitting as aforesaid, being whether Donald, Morrill of Maine, Morton, Norwood, Randolph, Robertson, Sharon, Sher- man, Spencer, Wadleigh, Whyte, and Withers-31. W. W. Belknap, the respondent, is amenable to trial by impeachment for acts done as Secretary of War, notwithstanding his resignation of So the motion was agreed to; and the Senate sitting for tho trial said office, as stated in the order of proceedings adopted on the 28th of the impeachment adjourned. of April last, Mr. SHERMAN moved to postpone the pending and all prior orde1s and proceed to the consideration of the order submitted by Mr. WHYTE on the 18th instant, fixing the time at which the vote on the WEDNESDAY, ]Jf.a.y 24, 1876. (1uestion of jurisdiction in the pending case of impeachment shall be taken. The PRESIDENT pro tempore havll:ig announced the arrival of the After debate, hour fixed, the legislative and executive business was suspended, the The motion was not agreed to. galleries were cleared, the doors closed, and the Senate proceeded to Pending dehate under the order of 28th April last, the consideration of the articles of impeachment exhibited by the On motion by Mr. SARGENT, (at three o'clock and forty minutes House of Representatives against William W. Belknap, late Sem·e- p.m.,) the Senate sitting for the trial of impeachment adjourned to tary of War. Monday next at twelve o'clock and tl~irty minutes p. m. The usual proch1.mation was made by the Sergeant-at-Arms. The journal of the proceedings of the Senate sitting yesterday for the trial of the impeachment was read. The question being whether W. W. Belknap, the respondent, is amenable to trial by impeachment for acts done as Secretary of War, MoNDAY, lJlay 22, 1876. notwithstanding his resignation of said office, as stated in the ordor of proceedings adopted on the 28th of April last, The PRESIDENT pro t.mnpore having announced the arrival of the Pendin~ debate, hour fixed, the legislative and executive business was suspended, the On motiOn of Mr. CONKLING, (at two o'clock and three minutes ga1leries were cleared, the doors closed, and the Senate proceeded to p. m.,) a recess for twenty minutes was taken. the consideration of the articles of impeachment exhibited by the After which, House of Representatives against William W. Belknap, late Secre- Debate was resumed under the order of 28th April · and tary of War. On motion by Mr. FRELINGHUYSEN, (at five o'ciock and twelve The usual proclamation was made by the Sergeant-a~Arms. minutes p. m.,) the Senate sitting for the trial of the impeachment The Journal of the proceedings of the Senate sitting on Saturday adjourned. lru;t for the trial of impeachment of William W. Belknap was read. The PRESIDENT pro tcmpore administered the following oath to Mr. BARNUM, whose credentials were presented this day and who was admitted to his seat as a Senator from the State of Connecticut, to THURSDAY, May 25, 1876. wit: The PRESIDENT pro tempore having announced the arrival of the "You solemnly swear that in all things appertaining to the trial of the impeachment of William W. Belknap now pending you will do hour fixed, the legislative and executive busineSP was suspended, the galleries were cleared, the doors closed, and the Senate proceeded to impartial justice according to the Constitution and laws : So help you the consideration of the articles of impeachment exhibited by the God." The question before the Senate sitting for the trial of the impeach- House of Representatives against William W. Belknap, late Secre- ment being whether W. W. Belknap, the respondent, is amenable to tary of War. The usual proclamation was ma-de by the Sergeant-at-Arms. trial by impeachment for acts done as Secretary of War, notwith- The Journal of the proceedings of the Senate sitting yesterday for standing his resignation of said office, as stated in the order of pro- the trial of t.h e impeachment was read. ceeding~::~ adopted on the 28th of April last, The question being whether W. W. Belknap, the respondent, is Pendin~ debate, amenable to trial by impeachment for acts done as Secretary of War, On motion by Mr. EDMUNDS, (at two o'clock and thirty minutes notwithstanding his resignation of said office, as stated in the order p. m.,) a recess for twenty minutes was taken. of proceedings adopted on the 28th of April last. After which, Pending debate, Debate was resumed under the order of 28th April; and Mr. SHERMAN submitted the following resolution for considera- On motion by Mr. McCREERY, (at four o'clock and thirty-five tion: · minutes p. m.,) the Senate sitting for the trial of the impeachment adjourned. Resolved, That notwithstanding the resignation of William W. Belknap prior to ... ~ his impeachment by the House of Representatives, he is still liable to such im- peachment for the misdemeanors oharged in the articles presented by the House of Representatives, and his plea of such resignation is not sufficient in law to bar the trial upon such articles. TUESDAY, May 23, 1876. On motion of Mr. AL.LISON, (at two o'clock and thirty-three min- utes p.m.,) a recess for twenty minutes was taken. The PRESIDENT pro tentpore having announced the ~rrival of tho After which, hour fixed, tho legislative and executive business was suspended, the Debate was resumed under the order of 28th April; and galleries were cleared, the doors closed, and the Senato proceeded to After debate, tho consideration of the articles of impeachment eXhibited by the On motion of Mr. EDMUNDS, (at four o'clock and thirty-seven House of Representatives against William W. Belknap, late Secre- minutes p.m.,) the Senate sitting for the trial of the impeachment tary of War. adjourned till to-morrow at eleven o'clock a.m. The usual proclamation was made by the Sergeant-at-Arms. The Journal of the proceedings of the Senate sitting yesterday for the trial of the impeachment of William W. Belknap was read. The question before the Senate sitting for the trial of the impeach- FRIDAY, May 26, 1876. ment being whether W. W. Belknap, the respondent, is amenable to trial by impeachment for acts done as Secretary of War, notwith- The PRESIDENT pro tempore having announced the arrival of the standing his resignation of said office, as stated in the order of pro- hour fixed, the legislative and executive business was suspended, the ceedings adopted on ~he 28th of April last,. galle1·ies were cleared, the doors closed7 and the Senate proceeded to TRIAL OF WILLIAM W. BELKNAP. 75 the consideration of the articles of impeachment exhibited by the After debate, House of Representatives against William W. Belknap, late Secretary 1\fr. HOWE called for the yeas and nays, and they were ordered; of War. and being taken, resulted-yeas 28, nays 21 ; us follows : The usual proclamation was made by the Sergeant-at-Arms. YEAS-Messrs. Bayard, Bogy, Boot-h, Caperton, Cockrell, Cooper, Davis, Dawes, The Journal of the proceedings of the Senate sitting yesterday for Dennis, Edmunds, Go.rdon, Hamilton, Kernan, Key, McCreery, .Maxey, Morrill of the trial of the impeachment wa.s read. Vermont, Norwood, O,!desby, Randolph, Sargent, Saulsbury, Sherman, Thurman, The question being whether W. W. Belknap, the respondent, is Wall.ac.e, Windom,Withers, and Wright-28. NAYS-Messrs. Allison, Boutwell, Burnside, Christiancy, Cra!!in, Ferry, Fro- amenable to trial by impeachment for acts done as Secretary of War, linghuysen, Goldthwaite, Harvey, Howe, Ingalls, .Jones of Florida, Jones of Ne- notwithstanding his resignation of said office, a.s stated in the order vada, Kelly, Logan, McMillan, Mitchell, Morton, Patterson, Ransom, and Stevon- of proceedings adopted on the 28th of April last. son-21. · Pending debate, NOT VOTING-Mes&':'S.Alcorn, Anthony, Barnum., Brnce, Cameron of Pennsyl- vania, Camero~ of Wisconsin, Cbyton, Conkling, Conover, Dorsey, Eaton, Hamlin, On motion of Mr. LOGAN, (at two o'clock and thirty minutes p.m.,) Hitchcock, .rohnston, McDonald, Merrimon, Morrill of Maine, Paddock, Robertson, a recess of twenty minutes was taken. Sharon, Spencer, W~«lleigh, West, and Whyte-24. After which, • So the amendment was agreed to. Debate was resumed under the.order of 28th April; and On the question of ~"Teeing to the order of Mr. MORTON, as amended Mr. WHYTE submitted the following order: on the motion of Mr. EDMm"'DS, Ordered, That the Senate sitting on the trial of impeachment shall, after consid- Mr. PADDOCK moved to amend the order by striking out all after eration, proceed on Saturday, the 27th of May, instant, to vote npon the question of jurisdiction raised by the pleadings in the pending case, which vote shall be the word "ordered," and in lieu thereof inserting : taken before the Senate shall adjourn on that da.y; and that eooh Senator shall be That tho Senate ajtting as a court of impeachment take a recess until 7.30 permitted .to file within seven days thereafter his written opinion thereon, to J.>e o'c!ock, that the vote upon the question of jurisdiction be taken at eleven o'clock printed with tho proceedings in the order in which they may have been delivered. this evening, and that Senators who may desire to file opinions in the caso shall be permitted to do so before the lOth of .rnne next. On motion of Mr. SHERMAN, (at five o'clock and twenty minutes p. m.,) the Senate sitting for the trial of the impeachment adjourned. Mr. PAD DOCK called for the yeas and nays, and they were ordered; and being taken resulted-yeas 17, nays 34; as follows: YEAS-Messrs. Allison, Bruee, Burnside, Edmunds, Frelinghuysen, Hamilton, Harvey-, Ingalls, .Jones of Nevada, McMillan, Maxey, Mitchell, Morton, Oglesby, Paddock, Windom, and Wright-17. . SATURDAY, May 27, 1876. NAYS-Messrs. Bayard, Bo~, Booth, Boutwell, Caperton, Christiancv, Cock- rell, Conkling, Cooper, Cragiri, Davis, Dawes, Dennis, Ferry, Goldthwaite,'Gordon, The PRESIDENT pro t.empore having announced the arrival of the .Jones of Florida, Kelly, Kernan, Key, Logan, McCreery, Morrill of Vermont, Nor- hour fixed, the legislative and executive business wa.s suspended, the wood, Patterson, Randolph, Ransom, Sa:rgent, Saulsbury, Sherman, Stevenson, galleries were cleared, the doors closed, and the Senate proceeded to Thurman. Wallace, and Withers-34. the consideration of the articles of impeachment exhibited by the CameronNOT VOTING-Messrs. Alcorn, Anthony, Barnum., Cameron of Pennsylvania., of Wisconsin, Clayton, Conover, Dorsey, Eabm, Hamlin, Hitchcock, House of Representatives against,William W. Belknap, late Secretary !lowe, Johnston, McDonald,. Merrimon, Morrill of Maine, Robertson, Sharon, of War. Spencer, Wadleigh, West, ana Whyte-22. The usual proclamation was made by the Sergeant-at-Arms. The Journal of the proceedings of the Senate sitting yesterday for So the amendment wu.s rejected. the trial of the impeachment was read. The questjon recurring on the order of Mr. MORTON as amended, Mr. INGALLS (at twelve o'clock and seven minutes p.m.) moved Mr. OGLESBY having proposed an amendment thereto which was that the Senate sitting for the trial of the impeachment adjourn. disagreed t,o; and Mr. ED .MUNDS called for the yeas and nays; and being taken, re- The order of Mr. MORTON having been further amended on the sulted-yeas 0, nays 39; a.s follows: · motion of Mr. CONKLING, 1\Ir. MORTON moved to lay the order, as amended, on the table. YEA-{). NAYS-MesQrs. Allison, Bogy, Boutwell, Cameron of Wisconsin. Christiancy, 1\Ir. MORTON called for the yeas and nays, and they were ordered; Clayton, Cockrell, Conkling, Cooper, Cragin, Davis, Dawes, Dennis, Dorsey, Eaton, and being taken, resulted-yeas 14, nays 34 ; as follows : Edmunds, Ferry, Harvey, Howe, Kelly, Kernan, Key, McCreery, McMillAn, .Maxey, YEAS-Messrs. .Allison, Boutwell, Christiancy, Conkling, Cragin, Ferry, Fre- .Morrill of .Maine, Morrill of Vermont, Morton, Oglesby, Paddock, Randolph, Sar- linghuysen, Harvey, How€1, Ingalls, Logan., McMillan, Morton, and Patterson-14. gent, Saulsbury, Sherman, Thurman, Whyte, Windom, Withers, and Wright-39. NOT VOTING-Messrs. Alcorn, Anthony, Barnnm, Bayard, Booth, Bru.co, N .A.YS-Messrs . .Bayard, Bo~cr, Booth, Burnside, Caperton, Cockrell, Cooper, Burnside, Cameron of Pennsylvania, Caperton, Conover, Frelinghuysen, Gold- Davis, Dawes, Dennis, Edmunds, Goldthwaite, Gordon, Kelly, Kernan, Key, thwaite, Gordon, Hamilton, Hamlin, Hitchcock, Ingalls, .Johnston Jones of Florida, McCreery, Maxey, Mitchell, Morrill of Vermont, Norwood, Oglesby, Paddock, Jones of Nevada, Logan, McDonald, Merriman, Mitchell, Norwoou, Patterson, Ran· Randolph, Ransom, Sargent, Saulsbury, Sherman, Stevenson, Thurman, Wallace, som, RobertsOn, Sharon, Spencer, Stevenson, Wadleigh, Wallace, and Wright-34. Windom, Withers andWright-34. . NOT VOTING-Messrs. Alcorn, Anthony, Barnum, Brnce, Cameron of Pennsyl- So the motion was not agreed to. _ vania, Cameron of Wisconsin, Clayton, Conover, Dorsey, Eaton, Hamilton, Hamlin, Hitchcock, .rohnston, .rones of Flori(la., .rones of Nevada, .McDonald, Merrimon, The question being- whether W. W. Belknap, the respondent, is Morrill of Maine, Robertson, Sharon, Spencer, Wadleigh, West, and Whyte-25. amenable to trial by Impeachment for acts done as Secretary of War, notwithstanding his resignation of said office, as sta.ted in the order So the motion was not agreed to. of proceedings adopted on the 28th of April last, The order of ~Ir. MoRTON having been further amended, on motion Pending debate, . by Mr. EDMUNDS, it was agreed to, as follows: On motion of Mr. THURMAN, (at one o'clock and fifty minutes Ordered, That the Senate proceed on Monday next, after consideration, to vote p.m.,) a recess of twenty minutes wa-s taken. upon the pending qnestion and any amendment that may be proposed theret.o. After which, Mr. MORRILL, of Vermont, moved that when the Senate sitting Mr. THURMAN submitted the following resolution for considera- for the trial of the impeachment adjourns it adjourn to Monday next tion: at ten o'clock a.m. Resolved, That the Hou.se of Representatives and the respondent be notified that The motion was agreed to. on the- day of - , at twelve o'clock meridian. the Senate will deliver its judg- On motion of Mr. OGLESBY, (at six o'clock and thirty-five minutes ment in open Senate on the question of jnrisdiction raised by the pleadings, at which time the managers on the part of the Honse and the respondent are noti..fi.ed p. m.,) the Senate sitting fo11 the trial of the impeachment adjourDed. to attend. Resolved, That a.t the time specified in the fore()'oing resolution the President of the Senate shall pronounce the judgment of the S'enate as follows: "It is ordered by the Senate sitting for the trial of the articles of impeachment preferred by the House of Representatives against William W. Belknap, late Secretary of War, that the demnrrer of said William W. Belknap to the replication of the Hou.se of MONDAY, May 29, 1876. Representatives to the plea to the Jurisdiction filed by said Belknap be, and the same hereby is, overruled; and, gomg back to the first defect, and it being the The PRESIDENT zn·o ten!:Pore having announced the arrival of the . opinion of the Senate that said plea. is insufficient in law, and that said amcles of hour fixed, the legislative and executive business was suspended, the iln:reachment arc sufficient in law, .it is therefore further ordered and ad,jud~od that galleries were cleared, the doors closed, and the Senate proceeded to saul plea. be, and the same hereby JS, overruled and held for naught, and saul Will- iam "\V. Belknap is ordered to plead or aiU!wer to the merits withln - days;" the consideration of the articles of impeachment exhibited by the which judgment thns pronounced shall be entered upon the journal of the Senate Honse of Representatives against William W. Belknap, late Secre- sitting as aforesaid. tary of War. Pending debate under the order of the Senate of the 28th of April The lJ_Sual proclamation wa.s made by the Sergeant-at-Arms. last, The journal of the proceedings of the Senate sitting on Saturday Mr. MORTON submitted the following order for consideration: for the trial of the impeachment was read. Ordered, That the Senate proceed on Friday next at one o'clock to vote without The question being whether W. W. Belknap, the respondent, is further debate upon the pending and cognate questions. amenable to trial by impea-chment for acta done as Secretary of War, Mr. MORTON moved to postpone the peniling and all prior orders, notwithstanding his resignation of said office, as stated in the order and that the Senate proceed to the consideration of the foregoing of proceedings adopted on the 28th of April last, order. Pending debate, The motion was agreed to. On motion of ~Ir. EDMUNDS, (at one o'clock and thirty minutes Mr. EDMUNDS moved to amend the order of Mr. MORTO:N so a.s to p. m.,) a recess of twenty minutes was taken. read: After which, Orde1'ed, That tho Senate proceed on Monday next, after consideration, to vote Debate was resumed under the order of 28th April last; and upon tho pending antl cognate questions. Debate having been concluded thereunder, 76 TRIAL OF WILLIAM W. BELKNAP. The PRESIDENT pro tcmpm·e announced that tho proposition be- Mr. THURMAN called for the yeas and nays, and they were or- fore the Senate now pending for determination was the inquiry sub- dered; and being taken, resulted-yeas 37, nays 29, as follow~:~: mitted by Mr. :MORTON on the 16th instant. YEAS-Messrs. Bayard, Bogy, B~de, Cameron of Pe!illsylvania, Ca~rton , Mr. MORTON having modifiecl his inquiry to read as follows- Cockrell, Cooper, Davis, Dawes, Denrus, Edmunds, Goldthwaite, G:ordon, Hallli!ton, Hitchcock, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Mitchell, Morrill of Resolved That the power of impeachment created by the Constitution does not Vermont, Norwood, Randolph, Ransom, Robertson, Sargent, Saulsbury, Sherman , extend t~ ~person who is c~'lrged with the c~mm.issi?n of ~ high crime while he Stevenson, Thurman, Wadleigh, Wallace, Whyte, Withers, and Wright--37J.... . waa a civil officer of tho Umtell St.a.tes and acting ill his offimal cnarncter, but who NAYS-Messrs. Allison, Booth, Boutwell, Bruce, Cameron of Wisconsin, unris- had ceased t~ be such officer before the finding of articles of impeachment by the tiancy, Cla.yton, Conkling, Cragin. Dorsey, Eaton, Ferry, Frelinghuysen, Hamlin, House of Representatives- Harvey, Howe, Ingalls;., Jones of Florida, Jones of Nevada, Logan, McMillan, Mor- Mr. MORRILL, of Vermont, moved to a;mend the res~lution b~ strpr- rill of Maine, Morton, uglesby, Paddock, Patterson, Spencer, West, and Windom- ing out all after the word ''resolved," m the first line, and m heu 29. - NOT VOTING-Messrs. Alcorn, Anthony, Barnum, Conover, .Tohnston, Merri- thereof inserting: mon, and Sharon-7. That the demurrer of the respondent to the replication of the House of Repro· So the first resolution, as amended, was agreed to. sentatives to the plea of the respondent be, and the same is hereby, overruled; an.d The question recurring on the second resolution of Mr. THURMAN, that tbe plea of the respondent to tho ,jurisdiction of the Senate be, and the same 1s hereby, overruled; and that the articles of impeachment are sufficient to show that The said resolution having been amended on the motion of Mr. the Senate bas jurisdiction of the case, and that the respondent answer to the BAYARD, merits of the accusation contained in the articles of impeachment. On the question to agree thereto as amended, 1 Mr. CHRISTIANCY moved to amend the amendment of Mr. MoR- Pending debate, RILL, of Vermont, by striking out all after the words "that," in the Mr. IDTCHCOCK (at seven o'clock and thirteen minutes p. m.) first line thereof, and inserting : moved that the Senate sitting for the trial of impeachment adjourn W. W. Belknap, the respondent, is not amenable to trial by impeachment for to Wednesday next at twelve o'clock and thirt.y minutes p.m. acts done as Secretary of War, he having resigned snid office before impeachment. Mr. illTCHCOCK called for the yeas and nays, and they were or- dered; and being taken, resulted-yea 27, nays 36; as follows: After debate, YEAS-Messrs. Allison, Boutwell, Bruce, Cameron of Pennsylvania, Cameron 1111-. WRIGHT moved to lay the resolution of Mr. MORTON on the of Wisconsin, Christiancy, Clayton, Conkling, Cragin, Dawes, Dorso:v, Eaton, table. Ferry, Frelinghuysen, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones of Florida, :rtfr. CONKLING called for the yeas and nays, and they were or- Jones of Nevada., Logan, McMillan, Morton, Patterson, Spencer, and West-27. dered; and being taken,. resulted-yeas 36, nays 30; as follows: NAYS-Messrs. Bayard, Bogy, Booth, Burnside, Caperton, Cockrell, Cooper, Datis, Dennis, Edmunds, Goldtnwaite, Gordon, Kelly, Kernan, Key, McCreery, YEAS-Messrs. Bayard, Bogy, Burnside, Cal(h~:J' Cockrell, Cooper, Davis, McDonald, Maxey, Mitchell, Morrill of Vermont, Norwood, Oglesby, Paddock, Ran- Da.we , Dennis, Edmunds, Goldthwaite, Gordon, · ton, Hitchcock, Kelly, Ker- dolph, Ransom, Robertson, Sargent, Saulsbury, Sherman, Stevenson, Thurman, nan, Key, McCreery, McDonald, Maxey, Mitchell, Morrill of Vermont, Norwood, :Wallace, Wliyte, Windom, Withers, and Wright--36. Randolph, Ransom, Robertson, Sargent, Saulsbury, Sherman, Stevenson, Th1ll'J.lli1Il, NOT VOTING-Messrs. Alcorn, Anthony, Barnum, Conover, Hamilton, .Tohn- Wadleigh, W:illace, Whyte, Withers, and Wright-36. ston, Merrimon, Morrill of Maine, Sh.'tron, and Wadleigh-10. NAYS-Messrs. Allison, Booth, Boutwell, Bruce, Cameron of Pennsylvania, Cam- So the motion to adjourn was not agreed to. eron of Wisconsin, Christiancy, Clayt~n. Conkling, Cragin, Dorsey, Eaton, Ferry, Frelinghuysen Hamlin, Har;,«g;!owe, Ingalls, .rones of Florida, .rones of Nevada., The question recurring on the second resolution of Mr. THuRMAN, Logan, McMillan, Morrill of · e, Morton, Oglesby, Paddock, Patterson, Spencer, as amended, West, and Windom-30. Mr. CHRISTIANCY moved to amend the said resolution by strik- NOT VOTING-Messrs. Alcorn, Anthony, Barnum, Conover, Johnston, Merri- ing out all after the word "resolved" and in lieu thereof inserting: mon, and Sharon-7. Whereas the Constitution of the United States provides that no person shall be So the resolution was ordered to lie on the table. convicted on impeachment without the concurrence of two thirds of the members Mr. THURMAN submitted the following resolutions for considera- present; and whereas ~ore th..~ ~no-third of all the m<:mbers of the Senate have tion: already pronounced theu conVIction that they have no nght or power to atljudao or try n. citizen holding no public office or trust when impeached by the House 'Of 1. Resolved, That in the O"{linion of the Senate William W. Belknap, the rMpond- Representatives; and whereas the respondent, W. W. Belknap, was not when im- ent. is amenable to trial by 1mpeaohment for acts done aa Secretary of War, not- pea{)hed an o-fficer, but a private citizen of the United States, and of the State of withstanding his resignatl.on of s:tid office. Iowa; and whereaa said Belknap has, since proceedings of impeachment were com- 2. Resolved, That tlie House of Repre entatives :md the respondent be notified menced against him, been indicted and now awaits trial before a judicial court that ou the- da.y of-, at twelve o'clock meridian. the Senate will deliver its for the same offenses charged in the articles of impeachment, which indictment is judgment in open Senate on the question of jurisdiction raised by the pleMings, at pursuant to a smtute requiring in case of conviction (in addition to fine and im- which timo the managers on the part of the House and t.he respondent are notified prisonment) an infliction of the utmost judgment which can follow impeachment to attend. ill any case, namely, disqualification ever again to hold office: 3. Resolved, That at the time specified in the foregoing resolution the President Resolved, That in view of the foregoing facts it is inexpedient to proceed further of the Senate shall ,Pronounce the judgment of the Senate as follows: "It is ordered in the case. - by the Senate sit tin~ for the trial of the articles of impeachment preferred by the House of Representatives against William W. Belknap, late Secretary of War After debate, that the demuiTer of said William W. Belknap to the replication of the House of Mr. CHRISTIANCY, by unanin1ons consent of the Senate, with- Representatives to the plea to the jurisdiction filed by said Belknap be, and the drew his amendment. same hereby is, overruled ; and going back to the first defect, and it being the The question recurring on the second resolution of 1\Ir. THURMAN, opinion of the Senate that said plea is insufficient in law, and that said articles of impeachment are sufficient in law, it is therefore further ordered and adiudged that as amended, as follows- said plea be, and the same hereb:y is, overruled and held for naught, and srud Will- Resolved, That the House of Representatives and the respondent be notified that iam W. Belknap is ordered to plead or answer to the merits within- days; " on Thursday, the 1st day of June, 1876, at one o'clock p.m., the Senate will deliver which judgment thus pronounced shall be entered upon the journal of the Senate its judgment, in open Senate, on the question of jurisdiction raised by the plead. sitting as aforesaid. ini!:~J. at which time the managers on the part of the House and the respondent are notined to attend- Mr. CONKLING moved to amend the first resolution by inserting at the end thereof "before he was impeached." On the question to agree thereto, The amendment was agreed to. .Mr. THURMAN called .for the yeas and nays, and they were ordered; Mr. CONKLING having demanded a division of the question em- and being taken, resulted- yeas 45, nays 4 ; as follows : braced in the resolutions of Mr. TlmRMA...~ and a separate vote thereon, YEAS-Messrs. Bayard, Bogy, Booth, Boutwell, Burnside, Caperton, Christiancy, Clayt~n, Cockrell, Cooper, Davis, Dawe , Dennis, Edmunds, Ferry, Goldthwaite, On the question to agree to the first resolution as amended, Gordon, Hamilton, Harvey, Hitchcock, Kelly, Kernan, Key, McCreery, McDonald, Mr. P .AD DOCK further moved to amend the said resolution by strik- Maxey, Morrill of Vermont, Norwood, Oglesby, Paddock, Randolph, Ransom, Rob- ing out all after the word "resolved" and in lieu thereof inserting: ertson, Sargent, Saulsbury, Sherman, Stevenson, Thurm:m., Wadleigh, Wallace, That William W. Belkna.p,late Secretary of War, having ceased to be a civil offi- West. Whyte, Windom, Withers, and Wright-45. NAYS-Messrs. Eaton, Hamlin, MMilllan, and Morrill of Main~. cer of the United States by reason of his resig:rtation before proceedings in impeach- Allison, Anthon.y, Barnum, Bruce~,....Cameron of ment were commenced against him by the Honse of Representatives, the Senate Pennsylvania, Cameron of Alcorn, NOrVOTING-Messre. Wisconsin, Conkling, Conover, Cra~ vorsey, Fre- cannot take jurisdiction in this case. linghuysen, Howe, Ingalls, Johnston, Jones of Florida, Jones o¥ Nevada, Logan, Mr. EDMUNDS called for the yeas and nays, and they were ordered; Merrimon, Mitchell, Morton, Patterson, Sharon, and Spencer-24. and being taken, resulted-yeas 29, nays 37; as follows: So the second resolution, us amended, was agreed to. YEAS-Messrs. Allison, Booth, Boutwell, Bruce Cameron of Wisconsin, Chris- The question recurring on the third resolution, tiancr, Clayton, Conkling, Cragin, Dorsey, Eaton, Ferry, Frelinghuyl!e~~l Hamlin, The said resolution having been amended on the motion of Mr. H.ar-iey, Howe, In!!alls, Jones of Florida., Jones of Nevada, Logan, MCJUillan, Mor. BAYARD and on the motion of Mr. THURMAN to read as follows: rill of Maine, MortOn, Oglesby, Paddock, Patterson, Spencer, West, and Windom- 29. .Resolved, That at the time specified in the foregoing resolution the President of NAYS-Messrs. Bayard, Bogy, Burnside, Cameron of Pennsylvania Caperton, the Senate shall pronounce the judgment of the ;:;enate as follows : "It i ordered Cockrell, Cooper, Davis, Dawes, Dennis, Edmund~ Goldthwaite, Gordon, Hamil- by the Senate sitting for the triill of the articles of impe.'tchment preferred by the ton, Hitchcock, Kelly, Kernan, Key, McCreery, Mcvonald, Maxey, Mitchell, Mor- House of Representatives against William W. Belknap, late Secretary of \Var, rill of Vermont~ Norwood, Randolph, Ransom, Robertson, Sargent, Saulsbury, Sher- that the demurrer of said William W. Belknap to the replication of the Hous of man, Stevenson, Thurman, Wadleigh, Wallace, Whyte, Withers, and Wright-37. Representatives to t.he plea to tho jurisdiction filed by said Belknap be, and tho NOT VOTING-Messrs. Alcorn, Anthony, Barnum, Conover, .Tohnston, Merri- same hereby is, overruled; and, it being tbe opinion of the Senate that said ploa is mon, and Sha~u-7. insufficient in law and that said articles of impeachment are sufficient in Iaw, it is therefore further ordered and adjudged that s.1.id plea be, and the same hereby So the amendment was rejected. is, overruled .and beld for naught;" which judgment thus pronounced shall be en- The question recurring on the first resolution of Mr. THURMAN as tered upon the journal of the Senate sitting aa aforesaid. amended, On the question to agree there o Mr. THURMAN called for the yeas On the question to agree thereto as follows- ancl nays, nnd t_hey were ordered; and being taken, resulted-yeas Resolved, That in the opinion of the Senate William W. Belknap, the · respond- 35, nays 22; as follows: ent, is amenable to trial bJ impeaobmEint for acts dono a8 Secretary of War, not- YEAS-Messrs. Ba.yard, Bogy, Burnside~ Cameron of PennsylYania, Caperton, withstanding his resignation of said office before he was impeached- Cockrell, Cooper, Davis, Dawes, Dennis, Eamnnds, Goldthwaite, Gonion, llamil- TRIAL OF WILLIAM W. BELKNAP. 77 ton, Kelly, Kernan, Key, .McCreery, McDonald, Maxey, Morrill of Vermont, Nor- be held to cripple those powers o as to defeat a jurisdiction that had wood, Randolph , Ransom. Itollertson, Sar~ront, Saulsbury, Sherman, Stevenson, once a,ttached. Thurman, Wadleigh, Wa1lace, Whvte, WitJ10rs, and Wright;---35. . . . At the time these meager provisions were ingrafted into the Con- NAYS-Messrs . .A.llison, Booth, ':Boutwell, Cameron of W1sconsm, Christiancy, Conkling, Cragin, Eaton, Ferry, Frelinghuysen, Hamlin, Harve_y, Howe, Jones of stitution it cannot be claimed that the framers of that instrument Nevada, Logan, McMillan, Morrill of Maine, Oglesby, Paddock, Spencer, West, supposed they were conferring an undefined and undefinable power. and Windom-22. On the contrary, they must have taken it for granted that the juris- NOT VOTING-Messrs. Alcorn, Anthony, Barnum, Bruce, Clayron, Conover, diction they were conferring upon the House of Representatives and Dorsey, Hitchcock, Ingalls, Johnston, Jones of Florida, Merrimon, 'Mitchell, Mor- ton, Patterson, and Sharon-16. the Seuate in matters of impeachment was as clearly ascertainable as the jurisdiction conferred upon the Federal courts by the same So the resolution, as amended, was agreed to. instrument which, by article 3 of the Constitution, embraced all cases On motion by Mr. EDMUNDS, it was in law and equity arising under the Constitution and laws of the Ordered, That when the Senate sitting for the trial of impeachment adjonrns it United States. be to Thursday next at one o'clock p. m. At the time the Constitution wa.s framed the jurisdiction of the Mr. WHYTE submitted an order, which was considered by unani- British Parliament in matters of impeachment was as much a part of mous consent; and the same having been amended on the motion of the constitutional law of England aa was her system of civil and crim- :Mr. EDMUNDS, it was agree to, as follows: inal jurisprudence. It rested upon the same immemorial usage as Ordered, That each Senator be permitted to file his opinion in writing upon the the common law, and might properly be termed a part of it. It per- question of jurisdiction in this case on or before the 1st day of July, 1876, to be formed a simi1.1.r office in respect to political offenders in the judicial printed with. the proceedings_ in the order in which th_e saiD;e shall be d~li'l"er~, system of Great Britain that courts of equity did in matters of con- and the opimons pronounced m the Senate shall be prmted m the order m which science. Courts of equity grew out of the necessity created by the they were so pronounced. unbending rules and practice of the courts of common law. Equity On motion by Mr. CONKLING, (at nine o'clock and twenty-five is defined by one of the eminent jurists of Great Britain to be "the minutes p.m.,) the Senate sitting for the trial of the impeachment correction of that wherein the la.w by reason of its univers:tlity was adjourned. defective." A class of offenders whose close relation to the affairs of state aa ministers of the Crown or whose personal power and influence made it difficult if not impossible to deal with them in ordinary courts of the common law, made it necessary to clothe some more powerful tribunal with authority to try them, and in such cases the House of OPINIONS Commons in the name of the whole people arraigned them at the bar of the House of Lords as the highest court of judicature in the realm, DELIVERED IN THE and this was called impeachment. The usual grounds of accusation were alleged misdemeanors committed by persons employed by the DELIBERATION OF THE SENATE ON THE QUESTION Crown, either at home or in its foreign service, maladministration of justice and extrajudicial conduct by judges of the realm, treason and RAISED BY THE DEMURRER OF treasonable practices not specifically named in the statute. These, as will be seen by consulting Hartsell's Precedents of Proceedings iu Parliament, were usually classed under the heads of treason, bribery, WM. W. BELKNAP, THE RESPONDENT, and high crimes and misdemeanors. TO In early times the power to impeach did not seem to be limited to official crimes, or crimes committed by persons holding official sta- THE REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE tions, but was invoked against such offenders as the House of Com- PLEA TO THE JURISDICTION FILED BY THE RESPONDENT, VIZ: mons deemed proper subjects, and for causes the House of Lords were WHETHER SAID RESPONDENT IS LIA.BLE TO BE IMPEACHED willinO' to entertain. But in such examination as I have been able to BY THE HOUSE OF REPRESENTATIVES, AND TRIED BY make i have seen no case that received the sanction of both House:i THE .SENATE ON IMPEACHMENT FOR ACTS DONE BY in impeachments against commoners which did not grow out of mal- HIM AS SECRETARY OF W.A.R, NOTWITHSTANDING conduct in office, or was not for some political offense, such as treason or the like. As for the peers of the realm they could only be pro- HIS RESIGNATION OF THAT OFFICE BEFORE ceeded against for treason, or misprision of treason, felony, or mis- HIS IMPEACIDlENl'. prision of felony, by impeachment. It was sometimes doubted whether a commoner could be impeached for any capital offense, but the weight of authority is against this restriction. It is quite clear, however, that as earlya.s the impeachment and trial of Warren Ha tings, com- Opinion of Mr. IYieDonald, moners were only impeachable for official crimes or political offenses Delit•ered May 15, 1876. of such magnitude as to take them out of the case of ordinary offend- ers. Thus stood the law of impeachment at the time the Federal Mr. McDONALD. Mr. President, the question for present consid- Constitution was framed; and it must therefore be held that this was eration before the Senate sitting as a court of impeachment is whether the power conferred upon the Senate and House of Representatives, the respondent, William W. Belknap, is amenable to trial in this to be exercised by each respectively in a manner provided in the sec- court for acts done as Secretary of War, notwithstanding his resigna- tions of the Constitution which I have substantially quoted, limited tion of said office, and, in that connection, whether the motives which and controlled by the provisions of that instrument relating to that may have influenced him to resign are material as affecting the ques- subject and by the nature and character of our institutions. tion of our jurisdiction. The nature of our institutions necessarily eliminated or rendered The brevity of the constitutional provisions relating to impeach- inoperative all that part of the law of impeachment which related ment and the absence of any precedent in our history add greatly to peers of England as peers of the realm, and left in force only such to the difficulties which would ordinarily surround a question of so parts of the law as gave authority to impeach commoners. much importance. The provisions of our Constitution which limited judgment in cases In the first article of the Constitution-the one providing for the of impeachment to removal from office and disqualification to hold or organization, prescribing the jurisdiction, and defining the powers of enjoy any office of honor, trust, or profit under the United States, Congress-the sole power of impeachment is conferred upon the while it subjected the party to indictment, trial, judgment, a,nd pun- House of Representatives, and the Senate is invested with the sole ishment in the courts according to law, withheld from this court the power to try all impeachments. The limitations upon the powers power exercised by the Hou~:;e of Lords of covering by their judg- thus conferred, as contained in the same article, are "that judgment ment the whole punishment attached by law to the offense, and sep- in cases of impeachment shall not extend further than removal from arated the offense into two distinct parts, vesting in the Senate as a office and disqualification to hold or enjoy any office of honor, trust, court of impeachment the power to impose the political punishment or profit under the United States." It will be seen that these are authorized by the Constitution, leaving the party to be tried for the limitations upon the power to punish, and not upon the jurisdiction criminal violation of law by a jury. By the judgment in impeach- of the court to hear and determine matters that may be the subject ment the offender is simply divested of his political capacity; it of impeachment. It is also contended that a still further limitation touches neither his person nor his property. is contained in section 4 of article 2 of the Constitution affecting the Impeachment, therefore, under our Constitution is that procedure jurisdiction of this court, wherein it is provided that the "President, by which persons who holding civil offices under the United States, Vice-President and all civil officc,rs of the United States, shall be re- including .the President and Vice-President, may be brought to trial moved from office on impeachment for, and conviction of, treason, for the commission of treason, bribery, or other high crimes and mis- bribery, or other high-crimes and misdemeanors." Inasmuch as this demeaners committed in office, and be adjudged to suffer such politi- section is found in that article of the Constitution which creates the cal penalties as are provided in the Constitution. And the ques- executive and administrative department of the Government, and is tion for determination at this time is whether one who while in office designed to provide a mode for the removal of such officers from has become liable to these penalties can be proceeded against after office, if it limits in any degree the ~eneral powers of the co-ordinat.-, he has voluntarily terminated his official existence, and when it is no branch of Government in which is vested the sole power of impeach- longer in the power of this court to impose the full measure of the po- ment, such limitations could only be by implication, and could not litica,l punishment which may be incident to the judgment against 78 TRIAL OF WILLIAM W. BELKNAP. him. In oth er words, is the power to order the removal of the offend- To answer the first question we must have recourse to the sources er from office e · ·ential to the jurisdiction of t his court, and does the of the common antl parliamentary law, in English juri prudence and want of such power take away from it tho authority to hear and de- history. For no impeachment trials in America, nor any constit,u- termine the accusation and to impose such political punishment as tional provisions of the States, or charters of the colonies han estab- may remain, namely, to divest him of his political capacity! If this lished, before the adoption of the Constitution, a meaning of the term is true, then it must follow, if a party accused should ce.ase to be a "impeachment" peculiar to America, or in any wise different .from civil officer at any time before final judgment is rendered against the signification given to the term in the jurisprudence of the mother him and that fact should be made known to this court by proper sug- country. Indeed no ca.se of a trial upon impeachment, in America, gestion, that the proceeding would abate, and therefore the accused prior to the adoption of our Constitution, has been pointed out. might go through the entire trial in the hope of defeating the cause Cf1,rming then to English jurisprudence we find that an impe::tch- upon its merits, and, failing in that, could at any time ho saw proper ment is an accusation against an ir1di vidual preferred by the House to do so withdraw himself from the jurisdiction of this court by a of Commons and tried by the House of Lords; that it was in exist- voluntary surrender of his office. In the case under consideration, ence as early ns the year 1376, and has been frequently resorted to, that voluntary surrender of official station took place on the same especially in the seventeenth and eighteenth centuries, for the pun- day and within a few hours before the House of Representatives ishment of gr~at offenders; that "all the king's subjects are impeach- took cognizance of this case; but if the Senate has no power to try able," whether in or out of office, but that the procedure has with after the juugment of removal could no longer be operative on ac- very few, if any, exceptions been confined to ca es of official malfeas- count of the voluntary act of the accused in vacating the office, it ance or misfeasance, or of abuse of franchises or privileges granted could make no difference when that vacation occurred, provided it by the Crown. antedated the finding and judgment of the court on the merits. In Wooudeson's fortieth lecture, entitled "Of Parliamentary Im- But, as 1 have already stated, the limitations in the Constitution peachments," delivered a few years before the formation of our Con- relied on are not limitations upon the jurisdiction of the cotu-t to hear stitution, and with which, it is probable, the most of the framerAof and determine matters of impeachment, but are limitations only upon the Constitution were fn,miliar, it is s:1id: the judgment of the court. These can extend no further than the It is certain that magistrates and officers intrusted with tho administration of limitations prescribe; and, while it might be true that the court might public affairs may abuso their delegated powers to the extcnsiyc flctrirucnt of the community, b.e disinclined to go on with the cause when it wa..s informed that no ordinary tribunals. and at tho sarno time in a manner not pwpcrly C0!-'1li zablc bcfo• e t ho Tho influence of such delinquents, and tl1o na tur~ of :sut:h part of a judgment it had power to render could be operative for any offenses may not nnsnit::tbly en:rage the authority of the llighest court . antl tho wis- cause, yet I apprehend that so long as there was a party against whom clom of the sagest assembly. Th o Commons, therefore, as tlle f!raml inqut>!-OWP.l' of impeachment of tho ment of removal when the person was out of the office when the pro- President, Vice-President, and civil officers of the United Stat~s, who, upon con- ceeding was commenced would ue an absurdity too glaring to be con- viction, shall be removed from oflico. sidered. The argument made by the managers that the Senate may have jurisdiction to try and convict in a case where no jutlgment can This fourth section of the second article, which has been recognized be rendered may be considered a reductio ad absurdum, in constitu- as a limitation of the officers who may be impeached, speaks of them tionallaw. onlv as existing officers, and refers to impeachments simply a~ the 'fhe last clause of the provision I have just quoted is conclusive method by which they may be removed. upon this question. It declares: The third nrovision, which I have quoted, declares that the Senate shall have the sole power to try all impeachments. When sitting for The party comicted shall nevertheless be liable a.nd subject to indictment, trial, that purpose they shall be on oath or affu·mation. When the Presi- judgment and punishment, according to law. dent of the United States is tried the Chief Justice of the United If there had been room to doubt before, there is none after thi1 States shall preside, and no person shall be convicted without the provision. It strips the proceeding by impeachment of all purpose concurrence of two-t.hirds of the members present. for punishment and leaves it simply as the means of removal from This defines the powers and the duties of the Senate in connection office. It provides that in all cases of impeacllment tho party con- with impeachments. As the House bas t he sole power to prosecnte im- victed shaH be liable and subject to indictment, trial, judgment, and peachments, this declares the Senate shall have the sole power to try. punishment according to law. Though the Senate may remove from The use of the word" sole" in each provision shows that the powers office and disqualify the party convicted from holding any office under and duties of each Honse a1·e exclusive of tho other, and that this the Unit-ed States dUl'ing the term of his natural life, yet such con- provision simply designates the part which the Senate shall perform viction and judgment cannot be pleaded in bar of punishment in the in the proceedings of impeachments and regulates its action in such courts. The right of the courts to punish in all cases is reserved, and performance. we cannot conceive that any power of punishment is leftin.Congre s The Senate has the power to try all impeachments which the House unless it was the intention of the Constitution that a man might be bas the power to present. punished twice for the same offense. Such a suppo~ition is not to be Neither the provision in regard to the Honse or the Senate assumes entertained for a moment. to define the persons or the purpose for which the one may present Tile principle that a man cannot be punished twice for the same and the other may try. The provisions that the Cbiof Justice shall offense runs through our Constitution and through tho constitutions preside and that the concurrence of two-thirds is neccRSary to con- and laws of all the States. It was a right secured to the English peo- vict simply regulate the procedure, and have nothing to do with the ple in their early history, and has not for hundreds of years been vio- question of jurisdiction. . lated by the parliaments or the courts. Under the Englli!h constitu- Against what persons and for what causes may the House present sion the Parliament is omnipotent and may absorb the whole crimi- articles of impeachment T I answer against officers of the Unit-ed nal jurisdict.ion of the kingdom. It may assume to puni h any man States to remove them from office as specified in the first section for any offense, whetbtn• committed in or out of office. Parliament quoted. If the jurisdiction of the House extends beyond the persons assumes not only the power to remove from office, but to punish for and the purpose specified in the preceding section, it must be deriYed the crime committed. This puni hment was oft-en by death, by for- from a source outside of the Constitution, which would J.>o the com- feitures of goods, by attainting the blood, and by banishment from mon law of England, and t.his would give to the House all the jnris- the realm. It extended to persons out of office as well as to tho e in diction possessed by the House of Commons. If this view ue adopted, office. It became a source of the greatest crimes in En~lish history, the preceding section gives to the House of Representatives but a and it was wisely determined by our fathers in the estaolishmcnt. of small part of the jurisdiction it possesses, and renders that section Government to dig it up by the roots as an instrument of revenge or wholly unnecessary, for the House would have, anyhow, like the plmishment. But while jmpeachment lmder the English constitu- House of Commons, power to remove from office by impeachment ; tion was a prolific source of the greatest crimes, he it said to the and in this connection it may be observed that the House of Com- honor of the English nation that it was never made to violate the mons bas in all cases of conviction on impeachment of persons in office principle ''that a man shall not be punished twice for the same of- made removal a part of its judgment. fense." If a. person were 1mnisbcd by Parliament, be was not after- The express authority given to Congress to prosecute and try im- ward punished by the courts for the same crime. If punished by the peachments in certain cases is in effect the denial of power in all courts, he was not afterward punished by Parliament. When, there- other cases. This seems to be the universal rule applied in the con- fore the Constitution of the United States provifled that the court struction of the Constitution. Congress only has those powers which should have the power to punish crimes committed in office in n.H are expressly conferred or which are necessary to carry out those ex- cases, and that the judgment of impeachment could not in any case pressly conferred, and does not upon iClis subject or upon any other be pleaded in bar, it was a declaration which cannot be misunder- inherit powers not granted which belong to the Parliament of En- stood, that an impeachment is never to 1Je used for punishment, and gland. The common law of England bas been adopted to a certain that its sole purpose is to 1·emove bad men from office. extent by statntes both in the nation ancl in all the States but one or The right being reserved to the courts to punish by indictment in two. The jurisdiction of all the courts, whether of tho nation or of all cases, if the Senate now, as a matter of punishment, may inflict the States, is determined altogether by constitutions and statutes. upon William W. Belknap the disqualification for holding office It is well established both in the nation ancl the States that the courts during the whole or any portion of his life it would cle;}.rly suuject have no common-law criminal jurisdiction, and that there are no him to punishment twice for the same offense, because the courts, by common-law crimes. Crimes are created alone by special enactment the express provision of the Constitution, may go on and punish him of national and State legislatures. In the use of terms and the con- again the next day. The fact that different tribunals may inflict differ- struction of statutes, common-law definitions aml rules are resorted ent punishments for the same offense does not at all affect the princi- to as guides only. The rules of evidence and methods of proceeding ple, foT it is still double punishment. Suppose, for example, that are borrowed in large part from the common law; but it may be one statute in New York should punish the crime of forgery by im- stated as a principle to which there is no exception, in both t be nation prisonment, another statute should be passed giving to another tri- and the States, that crimes are created and exist only by statute, and bunal the power to punish the same offense by fine; still the punish- that the jurisdiction of courts is established and defined only by con- ments, although different, would be for th~ same ofi(mse, cleady in stitutions or statutes. The idea that the Congress of the United violation of constitutional right. States bas jurisdiction in cases of impeachment which is not specially My conclusion from the foregoing considerations is that the sole conferred by the Constitution, or that it is no~ necessary to the ex- purpose of impeachment under our Constitution is the removal of ecution of some power or duty enjoined upon Congress l>y the Con- offenders from office, and that, as William W. Belknap was not in stitution, is at variance with every principle of construction that has office when this proceeding was instituted by the Bouse, the Senate been applied to it. has no jurisdiction whatever over his offenses, and that ptmishment The fourth provision says "judgment in cases of impeachment under the Constitution is left entirely to the courts. shall not extend further than to removal from office and disqualifica- tion to hold and enjoy any office of honor, trust., or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment accord- O pinio n oC Mr. F r e liag h uy11eil, ing to la.w:'' This defines and limits the judgment ·that may be rendered. It Delivered M(Ly 15, 1876. declares that- Mr. FRELINGHUYSEN. Mr. President, I will first call attention Judgment shall not exteml further than t~ r emoval from office, and clisqualifica- tion w bold and enjoy any office of honor, trust~ or profit under the United States. to a consideration which has been much pressed upon the Senate, bnt which is not involved in t he question before us, namely: Whether an . Tak en jn conn13ction with the first provision I have qnoted, it officer can resign after he is impeached ancl thus oust jurisdiction. makes I'epl0\~11 from office an indispensabl"' part of the judgment in I will, seconuly, consider t he true question we are to decide, name- all cases 9f ~onviction, while disqualification to hold an d enjoy any ly : Have we jurisdiction in this case 'f office of honor, trust, or profit is an illciuent which may or may not I. The Senate is not called upon to decide whether t he resignation bo ~dded by the Senate in its discretion. If a. person not in office of a civil officer after articles of impeachment have been presented )V~!·~ jm,peachM ft:Qd f:!OHVjct~¢1 ap.d the Senate should be of the opin- against him ousts the jurisdiction of the Senate and deprives it of 'TRIAL· OF WILLIAM W. BELKNAP. 83 the power to try the impeachment. That case is not before us. Will- much stronger than in the cases supposed. The right of the Honse lam W. Belknap lw.d resigned t.he office of Secretary of War, and his is to retain jurisdiction to satisfy their double demand, to wit., that resignation bad been duly accepted before the House of Representa-. the officer be removed, and that he also be disqualified. It would ti ves impeached him. The suggestion that, inasmuch as there igna- be a strange ruling which should hold that when jurisdiction had tion and the impeachment were made on the same day, the law will vested by the proceedings being commenced while the official was in not take notice of the fact that the resignation was in point of time office, it was divested by his complying with only half of the demand prior to the impeachment, because the law ignores fra_ctions of days, of the actor in the proceedings, to wit, "removal from office," while is unsound. The Le the performance of tho very thing sought by the suit, be a bar to that resignation of office or its termination by lapse of time while the action, unless it be accepted by the party who of right is enforcing proceedings are pending may not, either upon a plea of p1ri~ dm-rein the duty. continuance or a mere suggestion on the record, be specially recited If the Honse of Representatives had the right to impeach when they in the judgment so aa to correspond with the facts of t.be ca,se. This presented their articles and thus commenced proceedings, tl.Je act of the would not interfere with the jurisdiction o'f the court t.o pronounce respondent or of the President could not be pleaded as a bar t.o the pro- the constitutional judgment of removal and disqualification. Nor do ceeding. Neither can it be said, if the House bad the right to impeach I mea.n to sa.ythat thejudgmentwould relate to the time of impeach- at the t.ime they presented the articles, that it is absuru or incongruous ment to such an extent as to render void the official acts of tho officer that tbejndgment of removal from office, which unuer the Constitu- while proceedings for impeachment were pending. The aatual re- tion ~mst be pronounced on conviction, should be entered against moval from office is only effected by conviction and judgment. or:e who, since the articles were so presented, bas resigned the office. But, as before said, on the question whether one who is impeached The right of the House to that judgment existed, if at all, when the by the House while in office can divest the jurisdiction of the Senate proceedings were properly commenced, and all action of tbe respond- by resignation it is not necessary to give an opinion, because that is ent subsequent thereto is, in the eye of the law, in this, as in all like not before us. It is clear that much is to be said when that caae arises. cases, ignored. The House stands hcfore the Senate with all the Enough has been said to show that it is very different from the ques- rigbts that other suitors have before other courts. Every affirmative tion whether the House can impeach and whether thA Senate have judgment in civil or criminal proceedings is a mere judicial declara- jurisdiction over one who at the time of the impeachment had ceased tiou of the existence of the. right of the actor in the suit to be sus- to be a civil officer. tained and assured in the claim made when the legal proceeuings And in determining the true question before us we neecl not be in- were commenced. Where, I ask, would be the incongruity of a. jndg- flnenced by the equivocal and undignified position the two hrancbes ment of the Senate were it customary to make up a judgment-roll · of the legislative department of the Government would find them- which should in substance read thus: selves in if, after the presentation of articles, after a protra-cted ''William W. Belknap having on the 2d of March, 1876, been im- trial, and after deliberate consultation, and when the Senate was pea,cbed by the House of Representatives for high crimes, and the Sen- just about to pronounce its judgment, the accused could thwart the ate having, on the demand of the House, proceeded to try the truth whole proceedings by a summary resignation. This consideration, of the several articles of impeachment so presented, the Senate do, on presented to our sense of judicial propriety so frequently ancl with so this - - day of - -, 1876, adjudge that the said articles are sus- much address by the managers, does not belong to this case. When tained, and do pronounce as their judgment that the saicl William W. the question of the effect of a resignation made after impeachment Belknap be removed from office, and that be be perpetually disquali- arises it will be decided. fied from holding any office of honor, trust, or profit under the United We have now to do with the effect of a res:ignation, not after, but States." . before an impeachment by the House. 'rhero would be no incongruity between the judgment and the record, IL Has the Senate sitting as a court of impeachment jurisdiction even though it appear that between the time the proceedings by the to try a citizen whom the House of Representatives claim to have im- House were commenced and the rendition of the judgment William W. peached, such impeachment by the House being made when be bad Belknap bad resi~:,rned his office. He, by tho hypothesis, was an officer ceased to be n. civil officer. when impeached by the House. The evidence had extended to that The procedure by impeachment was imported into our Constitution point of time and not beyond it. Was be, then, guilty bad been the from the common parliamentary law of England, but it was placed question throughout, and the judgment of the Senate in sustaining there clipped and pruned of very many of its baneful incidents. Im- tbe claim of tbe House speaks as of the day t.ho proceedings were peachment, associated with bills of attainder and of pains and pen- commenced. Such a juclgment would be no more incongruous than alties and ex pOJJtjaato laws, was made in Great Britain an instrument that of a court which, having ascertained that a. defendant was in pos- of political persecution and partisan aggrandizement. It was through session of lands when the ejectment was commenced, and that the those agencies that the grossest injustice was perpetrated in the name right of possession was then in the plaintiff, pronounced a judgment of law; that men of political power were destroyed; that families of that the plaintiff recover, notwithstanding the defendant may have influence were blotted out, and that their estates were confiseated to pleaded thathehadabandonedthepossession. Suchajndgmentwould become a reward to those who persecuted those who owned them. l>e no ruore incongruous than a judgment of six cents and costs against Bills of attainder, which term includes bills of p:t.ins and penalties a defendant who, havin~ at the time snit was commenced made default (1 Story on the Constitution, 9 1344; Cummings vs. State of Missouri, in the execution of an mstrument it was his dnty to have executed, 4 Wallace 323) were sometimes directed against whole classes of peo- sbou1d make it appear that he did execute it the day after process was ple without naming the individuals. They were sentences pronounced served. by the legislati>e instead of the judicial branch of the government. It might, in fact, be claimed that the argument in favor of the Tbey were often pronounced witbout evidence, on the surmise or on right of t.b.e House to retain jurisdiction, notwithstanding a resig- the clamor, as the old books term it., of the Commons. The investign.- nation after the impeacb~cnt proceed~g!'l were .commenced., wa::; tion, if any, was in the absence of tho accused, without his having • 84 1 TRIAL OF WILLIAM W. BELKNAP. counsel, and without any recognition of the rules of evidence. The And there are cases where the house had even assumed to convict on punishment, which was often the deprivation of estate, of inheritable impeachment. And it was intended that it should be clearly under- blood, and of life, was determined by no pre-existing law. stood that the Senate alone, in a judicial and not legislative capacity, Ex post facto laws imposed punishments for acts which were inno- was to try the charges which the House alone could make. cent at the time they were performed,or greatly changed and increased In England every desllription of person of both sexes was subject the punishments after the act punished was done. to impeachment. As the object in retaining the procedure in the Con- lmpeachnwnts extended to other than officers of the government stitution was the removal from office, the Constitution restricted im- and to acts that no law had declared criminal. And without counsel, peachment in its exercise to the President, the Vice-President, and witnesses, or jury, a mere majority of the Lords often pronounced all civil officers" of the United States." I say restricted the power to the judgment of banishment and often of death against the accused. those named, because, as the powers of the Constitution are delegated Justice Miller, in speaking of the manner in which the framers of and limited, they can extend no further than is expressed. Unless the the Constitution regarded bills of attainder and of pains and penal- provision of the Constitution which declares that "the House of Repre- ties and e:t post fact() Jaws, says: sentatives shall havetheso]e power of impeachment" imports into the It is no cause of wonder that men who had juRt passed successfully through a des- Constitution the entire power of impeachment as it existed under the perate struggle in behalf of civil liberty shoulc.l feel a detestation for legislation common parliamentary law of England, it is certainly true that the of which these are the prominent featnres. (Ez parte Garland, 4 Wall8Ce, page fourth section of the second article, providing that the President, Vice- 388.) President, and all civil officers of the United States shall be removed And Justice Story, in speaking of the men who framed the Consti- from office on impeachment for and conviction of treason, bribery, or tution and modified the English procedure by impcachntent, says: other high crimes and misdemeanors, has the same significance as if it stated that no one, excepting the President, Vice-President, and History had sufficiently admonished them that the power of impeachment had all other civil officers of the UnitedSta.tes, shall be liable t.o impeach- been thus misr.h ievously and inordinately a1Jplied in other ages; anc.l it wa.s not safe to disregard those lessons which it had left for our instruction written not ment. A person who has duly resigned his civil office before any ju- unfreq uently in blood. He then refers to cases where the final overthrow and cap- risdiction in impeachment has attached is no more a civil officer than ital Pxecution of the accused was the result of political resentn.ent. (Story on he was before he entered upon the office. the Constitntion, § 784.) The purpose of the framers of the Constitution was specifically to England had no written constitution, and Parliament wa-s omnipo- define who should be subject to impeachment, so as, in view of the tent; and each political party as it rose to power made use of this scope of impeachment in England, to exclude those thev intended machinery of attainder, pains and penalties, ex post facto Jaws, and should not be so subject. Had they intended to subject to impeach- impeachments to oppress and weaken the rival party. The fathers ment not only those in office but the lar(J'er number of those who of our Republic, familiar with the history of England, to escape these ever have been, th~ywould have said so. At all events it is true, ac- atrocities perpetrated in the name of law, determined that this nation cording to the established rule of construing a penal provision, that should have a written constitution. They determined that the nationa1 it must be so said before we can by any authority hold that an un- Legislature should not be. omnipotent, but that it should only possess mentioned class are subject criminally. Persons not in civil office are delegated powers, reservmg expressly to the States and to the people not civil officers, ·and so do not come within the descriptio personre of all other powers. So careful were they on this point that they even the Constitution. · provided that the enumeration in the Constitution of the rights which In harmony with the provision that only persons in office at the belonged to the people should not be construed to deny or disparage time they are impeached are liable to impeachment is the manda- such rights as were not enumerated in the Constitution. tory provision of the Constitution that the President and Vice-Presi- As to these legalized agencies of tyranny, the framers of the Con- dent and all civil officers shall, on impeachment and conviction of the stitution provided, hy article 1, section 9, that Congress should not, crimes named, be nnnote.d fron~ office. and by section 10, that the States should not, pass auy bills of at- Nothing can be more incongruous than that a person who is in no tainder, and this includes bills of pains and penalties. And as those office at the time the Honse impeaches, which is the time to which provisions did not reach the judiciary, they provided, by article 3, the judgment must relate, and when the jurisdiction attaches, should section 3, that no attainder of treason should work a forfeiture except be subject to a judgment that he be removed from office. during the life of the person attainted. As to ex post facto laws, they In still further harmony with the provision that only tho e in office prohibited their passage both to Congress and to the States. can be impeached is the provision that judgment inca es of impeach- And what did they provide as to the procedu1·e by i111peachment' They ment shall not extend further than removal from office and disquali- omitted to abolish or prohibit it, simply because that instrumentality fication to hold or enjoy any office of honor, trust, or profit under the was indispensable to a well-organized government. A President might United States. This provision is introdnced in view of the past his- be convicted of manslaughter, but that would not divest him of the tory of impeachment, where forfeiture, banishment, and death were presidential offic~. The Secretary of the Treasury might be sentenced not unfrequently imposed. The provisions of the Constitution rela- for the crime of bribery, but be might still remain Secretary of the tive to the judgment that may be rendered, taken together, amount Treasury. The sentence of a judicial tribunal would not necessarily to this: The judgment shall be removal from office or removal from deprive any civil officer of his office. It was not desirable that the office and disqualification. political power of removing from office should be given to the judiciary. The judgment of disqualification cannot be severed from that of Therefore, just as the House and the Senate were by the Constitution removal any more than a judge can pronounce as a sentence a less possessed with the right by a t.wo-thirds vote to expel any member, penalty than the minimum prescribed. So both the judgment for re- so any civil officer, under greater restrictions than those incident to moval and the judgment of disqualification require that the person the expulsion of members of Congress, might, on impeachment, by a proceeded against be in office when the impea~hment is made by the two-thirds vote of the Senate, be removed from office. It is clear that House, to which point of time the judgment relates. but for this necessity the procedure by impeachment would never have I do not see how the Constitution could more plainly have 1:1tated been found in the Constitution. that it intended to circumscribe the ancient procedure by impeach- The frnmers of the Constitution, however, in placing even the ment and intended that under our system it should be restricted to limited powers of impeachment in the Constitution were careful to those in "office when impeached than by saying in effect, first, that it divest it of its historic powers for oppression and tyranny. Let us be should be restrict.ed to the President, Vice-President, and all civil careful not to destroy the guards our fathers placed around this officers, (for that is what it does say, inasmuch as those words are :power. found in a constitution of delegated powers1) and by secondly saying They first provided that the House of Representatives should.have that the judgment in impeachment shall be removal from office or the sole power of impeachment. It is provided that the House alone removal from office and disqualification. shall have the sole power to impeach, u<'causetherearecaseswherethe Again, if impeachment is applicable to those not in office, it must Commons and the Lords joined in the impeachment and then the be so applicable as a means of imposing punishment for offenses com- Lords tried the articles. (Selden's Judicature of Parliament, page 38.) mitted while in office. So gross an outrage on justice as that of making the accuser and the Butthiscannotbeso,becausetheexclusiveprovinceofimpeachment, judge identical it was determined to forbid by the provision that the as found in our Constitution, is t.he protection of civil office from vicious House should have the sole power to impeach. And it is strange in- men. The judgment must be removal, and, as an incident thereto, may deed that these words, inserted for so plain and salutary a purpose, be disqualification. The object of impeachment is in no legal sanse should have been, as they have been, wrested from their purpose an dare punishment. Removal from office and disqualification inflict mor- claimed to have the effect of importing into the Constitution the whole tification and suffering; but this is in no true sense punishment; it is common parliamentary law of Great Britain relative to impeachment, rather an incident to than the object of the judgment. The p::Uns and that by force of this provision personsnotcivil officers are subject to thus inflicted are always less severe the more abandoned and vicious impeachment by the Honse, and that the Senate are to try those whom is the subject of it, and this is the reverse of the rule upon which the House may impe'1ch, and that this impeachment extends to mili- punishment is imposed. tary as well as civil. officers, and to the citizen as well as to the officer. The greatest abuse of this procedure in England arose from mak- If any one con.siders these words so pregnant with meaning his ing punisl.Jment the end of impeachment; and hence it is that the opinion will probably be reversed as we proceed very briefly to con- Constitution contains the prohibition against any further judgment sicl cr the provisions of the Constitution. than removal and disqualification, and, to show that punishment is They also provided that the Senate should have the sole power not the object of the Constitution in that connection, it imme(liately to try impeachments. This provision was in erted for a like reason a4ds: · as the former. Bills of attainder and pains and penalties, which were But the party convicted shall nevertheless be liable and subject to indictment, le~islative conviction, were the work of both Houses of Par~ament. trial, judgment and punishment, according to law. • TRIAL OF WILLIAM . W. BELKNAP. 85 To claim that the object of impeachment is punishment is to claim The Constitution provides- that the Constitution is inconsistent with itself. First. Who may impeach, namely, the House only. If disqualification is a punishment, it is an infamoUB punishment; Second. Who may try, namely, the Senate only. and, if so, the offense for which it is imposed is infamollB; for the Third. For what impeachment may be presented, namely, for trea- character of the punishment is always held to classify the crim~. But son, bribery, or other high crimes and misdemeanors. the Constituti(ln provides (article 5) that no person shall be held to Fourth. What shall be the judgment, namely, removal from office answer for an infamous crime unless on a presentation or indictment or 1·emoval from office and (lisqualifi.cation. of a grand jury. Here is no such indictment, and yet there is, in fact, Fifth. Who may be impeached, namely, the President, Vice-Presi- no inconsistency in the Constitution, because this procedure is not to dent, and all civil officers of the United States. punish crime; it is to protect the civil offices of the nation. It makes In tho light of these express provisions it is strange that any one other provision for the punishment of crime, so as not to be misun- should claim that the provision that "the House of Representatives derstood. shall have the sole power o:f impeachment" has the effect of import- Again, it is contrary to natural justice and to the expressed spirit, if ing the entire English system of impeachment, and that consequently not letter, of the Constitution, and contrary to the common law, that one need not be in office to be subject to the proceeding. one should be twice punished for the same offens~, because the law in We have been referred to a few authorities on this subject. Rawle, each case demands full expiation ; but here it is claimed that one is in his work on the Constitution, says, "It is obvious that impeach- to be punished by the Senate, and then, b~ the express provision of ment extends only to those in office or to those who have been;" and the Constitution, is to be fully punished m the courts. We impose this is claimed to be an authority in favor of the right to impeach no punishment-s; we simply protect the offices of the Republic from one who has ceased to be an officer. I do not so understand it. Mr. ba(l men. Raw le (lirectly negatives the_idea that the impeachment procedure of Again, the Constitution provid6s that in all criminal prosecutions GreatBritainhasanyplaceinourConstitution, bysayingitisrestricted the accllSed shall have a trial by jury, and shall have such trial in to those who are or who have bcon in office. .Again, he is stating a the district where the crime W38 committed. If the proceeding by limitationt and says in the altemate that it is obvious that the power impeachment is for punishment, it is for the punishment of a crime, of imfeachment extends "only to those in office or to those who have and hence comes within the provision of the Constitution which ex- been.' That few will question. tends to "all criminal prosecutions," and the accused would be en- The Blount case has been referred to. It is this: It appears that titled to a jury, which is denied him. Blount was a Senator and had been expelled. His counsel pleaded: There are two criminals before us convicted on impeachments: one 1. That senatorship was not an office. 2. That he was no longer a is convicted of a treason that has shaken the pillars of the Republic Senator. It was decided that the Senate had not jurisdiction. Will and decimated the land by death; the ot-her is a poor postmaster, any one claim that, if the common parliamentary law of England had who under temptation has appropriated a few stamps ; and we are to been introduced into our Constitution by its provision that "the impose the punishment, and we sentence each to removal from office House of Representatives shall have the sole power of impeachment," and disqualification. The claim that our judgment is in any legal the Senate would not have had jurisdiction over Mr. Blount's case f sense punishment seems to me an absurdity. It would unquestionably have bad jurisdiction. • But if the object of the procedure by impeachment is not punish- Barnard's case has been refeiTed to. He was in a civil office when ment, what is it that gives us jurisdiction over one out of office! It impeached; the judgment of removal was the very judgment that was is not to remove from office, for that is an impossibility. It is not to needed; and the fact that his offense was committed during a prior pronounc.e a judgment of disqualification, for that the Constitution term separated from its then existing term only by an imaginary tells us only extemls to one who is a civil officer, and also tells us that point of time does not affect the question. There is no provision.of the judgment of disqualification must be coupled with a judgment of the Constitution that I know of that would prevent a civil officer removal. We have no more authority to pronounce a separate judg- from being impeached whilo in office for a crime committed before ment of disqualification than would a judge have to impose :1 penalty ho became such officer. of only $50 for larceny when the statute said the penalty should be Kent, iu his Commentaries, ( vohlme 1, pages 2S8 n.nd 289,) treats im- twenty days' imprisonment and 50 fine. peachment simply asaprocec.lure for the removal of civil officers who No express provision can be found in the Constitution extending have been guilty of crime. impeachmentbytheHollSetothosewho are not, but have been, civil offi- The convent.ion that formed the present constitution of New Jer- cers, unless, as before stated, the provision that the House shall have the sey had submitted to it by its committee provisions relative to im- sole power of impeachment imports the whole English system with peachment identical with those of the ConstitWi,on of the United all its atrocities into our Government. Not only so, but the express States. On moLion of Chief Justice Hornblower, that convention com- provisions of a Constitution conferring limited powers negative such posed of distingnished jurists extended the liability of civil officers a claim. for two years after the expiration of their term, thereby showing that If impeachment can be extended to those who have been in office in their opinion the liability to impeachment under the Federal Con- it must be by implication, by inference, and because incident to some stitution was only while in office. power that is conferred and because of its marked propriety. Nearly ninety years have passed since the adoption of our Consti- Can any one believe that the framers of the Constitution, with tution, and it does not appear that the procedure by impeachment the history of impeachment and its associate legal instrumentalities bas in any State of the Union or under the Federal Government been before their minds, while thfly were providing against its being used invoked against any one who was not in office. . as an instrument of tyranny by carefully restricting the penalty, Proceedings in impeachment in the States and under the General when they knew it had been usedas ameansof political oppression- Government have been commenced and have uniformly been discon- can any believe that it was their intention, or, more properly, that it tinued on the resignation of the accused. is the true intent of the Constitution, when it does not so declare, Justice Story, in his Commentaries on the Constitution, gives the that impeachments may be resort-ed to by the successful political party ' most thorough dissertation on the subject of impeachment that is to disable the party defeated from rallying for another contest ; that anywhere to be found. There is scarcely an authority that he does itwasintendedtoplaceintheConstitutionaninstrumentalitybymeans not refer to or a view that he does not consider. The question we of which a popular leader, who perhaps alone could rally the party out have before us not having been adjudicated, he expresses himself of power, could be destroyed; that it is the intent of the Constitution with his usual deference; but no one can read the eight hundred and that when the archives have passed into the custody of political oppo- first section of the second volume of his Commentaries and don bt that nents, papers misplaced, lost, or intentionally suppressed, that then one the great jurist was clearly of opinion that one could not be im- who had been honored by the people, had laid down his office without peached except while in office. He says : any charge against him, that then he should be called upon, away from As it is declared in one clause of the Constitution that "judgment in cases of im- his district, without jnry, no matter what the lapse of time, to an- pea~hment shall not extend further than to removal from office and disqualification swer a charge the penalty of which is perpetual infamy! My regard to hold and enjoy any office of honor, tru..~t or :profit under the United States," and in for the interests of this nation's future, as well as my sense of justice, another clause that "thePresidep.t, Vice-PreSldentandall civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, were I at liberty, in the absence o.f _a ny such provision, to have any bribery, or other high crimes and misdemeanors," it would seem to follow that the judgment on the shbject, would revolt at any such conclusion. Senate were bound on the conviction in all ca.ses to enter a judgment of removal But it may be said that if an officer cannot be impeached after he from office, though it ha.s a discretion as to inflicting the punishment of disqualifi- is out of office the guilty officer will defeat the provision of the Con- cation. If, then, there must be a.jud~ent of removal from office, it would seem to stitution by resigning when he finds he is about to be impeached; follow that the Constitution contemplated that the party was still in office at the time of the impeachment. If he was not, his offense was still liable to be tried and that he may then be elected again; and so a vicious officer hold place. punished in the ordinary courts of justice. I answer that if he resigns, removal, the main object of impeach- And it mi(J'ht be argued with some force that it would be a. vain exercise of ment, is effected. authority to try a. delinquent for an impeachable offense when the most important He is not .likely to be elected again; the interests of the nation are object for which the remedy was ,;ven was no longer necessary or attainable. And although ajudj!TII.ent of disqualification might still be pronounced, the language of safe with the people and with that public sentiment which they create. tho Constitution may create some doubt whether it can be pronounced without But, besides, a remedy for this objection can readily be provided by being coupled with a removal from office. There is also mnch force in the remark statute by adding the penalty of disqualification to hold office on any that an impeachment is a proceeding purely of a political nature. It is not so much one who shall be convicted of crime while in or which relates to any meanors.designed to punish an offender as to secure the state against gross official misde- It touches neither his person nor his property, but simply divests him civil office. We have now such a penalty on our statutes aa to some of his political capacity. crimes. ' The provisions of the Constitution on this subject are very few and My opinion is that the Senate has no jurisdiction to try William plain, and may be thus stated : w·. Belknap. '86 TRIAL OF WILLI. t\.M . W. BELKNAP. Opinion of llir. Shei•man, one in dispute, and that it was settled that the PreRident ought to Delivetecl May 15, 1876. be subject to impeachment. Therefore the fourth section of article 2 _provides expressly that the President and Vice-President shall be Mr. SHERl\lA.N. The question of jurisdiction presented in this removed from office on impeachment, thus extending the power of cause depends upon-the following·clauses of the Constitution: impeachment to the chief executive officer, not subject to impeachment ,·. First- · by the English law. The House of Representatives * * · ,.,. shall have the sole power of impeach- So far the meaning of this section is clear enough, as it expressly ment. (Article 1, section 2, paragraph 2.) · includes the President and Vice President among those who may be Second- impeached, and by clear implication excludes officers of the Army The Senate shall have the sole power to try all impeachments. (AI·ticle 1, section and Navy from trial by impeachment; but it does not in express 3, para,rrraph 6.) terms limit the power of impeachment to civil officers 1oh-il-e ·in office. Third- Is the general law of impeachment changed in this respect by this The President, Vice-President and all cfvil officers of the United States, shall be section f If it is, then the judgment of impeachment can be defeated removed from office on impeachment for, and conviction of, treason, bribery, or by resignation, and imveachment itself becomes a mere mode of re- other high crh-ues and misdemeanors. (Article 2, section ·4.) moving an olmo:xious officer. Is the term "civil officer" de criptive Other clauses of the Constitution limit the degree of punishment to of the person at the time the offense was committed or must it apply removal from and disqualification to hold and enjoy office under the continuously to the time when he is impeached, tried, convicted, and United States, forbid pardons for impeachment, and reserve to the sentenced 1 The defendant claims, in support of the btter proposi- courts the power to try the party convicted by indictment, according tion, that, as the judgment, in cases of conviction, must be "removal to law. from office," this necessarily implies that he must ue in office at The first two clauses confer, in as full and complete a manner as th.e time of t.rial and judgment. To this it is replied that the juris- human language provides, upon the House the power of impeach- diction of the Senate is amply conferred by previous cla.uses; that ment and upon the Senate the power to try impeachments. the fourth section does not limit impeachment to civil officers 1.l'hile These are the only clauses in the Constit.ution that confer jmisdic- in office; that it does not confer jurisdiction, but only makes removal tion in cases of impeachment. They are in the ordinary form in mandatory when civil officers are convicted; that this i.s not incon- which powers are conferred upon the different departments of the sistent with the full power of impeachment conferred by other Government, whether legislative, executive, or judicial. clauses, whether the "civil officer" was in or out of office when the Thus the Constitution declares that" the Congress shall have power trial took pla-ce. We must{lonstrue these clauses together, giving to to lay and collect taxes, duties, imposts, and excises." This is the each full effect as qualified by the others, remembering that no word general grant of power upon which our whole system of taxation is used in the Constitution that has not its carefully chosen office rests. It is limited by other clauses of the Constitution as "that no and meaning. tax or duty shall be laid on articles exported from any State," and The designation ''all civil officers" as the persons to be impeached that ''all bills for raising revenue shall originate in the House of has full effect in excluding a large class of the officers subject to im- Representatives;" still we rest upon th{l general power already quoted peachment nuder the parliamentary law. The object of their exclu- for the great system of taxation which supports our Government and sion is obvious enough, as the power of Congress to make rules and the public credit. articles of war furnished the means of punishing such officers in a In the absence of other clauses no one could question the power of much more summary and proper way than by impeachment. The the House to .impeach or the power of the Senate to try, and the only primary object of impeachment, which the framers of the Constitution limitation upon these powers would be dmwn from the legal mean- clearly intended to preserve, was to secure the punishment of great ing of the word "impeachment." The framers of the Constitution offenders for official misconduct. They had extended this process of. spoke in the legal language of the English law-books, well known to trial and punishment to the President, the chief executive officer of them. The )VOrds used in t.he Constitution carry aU the legal inci- the United States. They had provided not only for his removaJ, but dents and meaning that these words convey according to the estab- for his perpetual exclusion from office. They were familiar with the lished law of the colonies a.nd the mother country, from which we English precedents which extended this process to all official offenders derive our institutions; and in construing them we mnst give them whether in office or out of office, but made no exception of civil officers full force and effect, except so far as they are qualified by otlter who. had resigned. They knew the abuses of this great power of im- clauses. peachment and carefully limited the extent of the punishment. They It is, therefore, necessary, before considering qualifying clauses, to knew the effect of party heat, and therefore required a vote of two- ascertain the precise meaning of the word "impeachment," when thirds of the Senate to convict. They knew that persons bad been that mode of accusation and trial could be resorted to under the convicted upon insignificant -charges, and therefore required the of- English law, upon whom it could operate, and then limit or enlarge fenses.charged t.o be high crimes and misdemeanors. The debates in -... the meaning of the word by other provisions of the Constitution. the convention show that impeachment was regarded by the framers Without entering into a detailed statement of the Enrrlish law of of the Constitution as a great safeguard to ue maintained and pre- impeachment, I assume that the argument and cases cited clearly es- served, and they conferred it in broad and general language and then tablish the following propositions: sought by qualifica,tions to prev~nt its abuses. It was not asserted, First. That no one can ue impeached except for official misconduct either in the Con ven1ion or in Parliament, that the power to punish or misconduct of an officer. "The jurisdiction is to be exercised by impeachment official misconduct by a person who ba~ resigned his over offenses which are committed by public men in violation of their office was an abuse to be guarded against; that a private person could public trust and duties." (Story on the Constitution.) _ thus be wrongly oppressed or disfranchised. There is no appearance The cases do not sustain the broad assertion by May in Parliament, of injustice in the English precedents of impeachment after resign~­ that" all persons may be impeached for any crimes whatever," for tion. The danger of such injustice was not pointed out and no words the power was only exercised by Parliament to punish offenses by 'were either proposed or adopted to confine impeachment to civil officers persons in official trust. It is designed as a method of national in- while in office. .AU civil officers may be impeached. The time when quest into the conduct of public men. is not stated, whether before or after resignation, nor was it material Second. That the king alone is excepted from impeachment. The by the law of impeachment. The material thing was that the offense king cannot be impeached, though others who advise or aid him can must be by a civil officer i that it must be a high crime or misde- be. Only by revolution can the king be removed froni offioo. It was meanor, and, upon convictiOn, that be sllall be removed and-may be a revolution that deposed and executed Charles I and a revolution foreve1· disabled from holding an office of honor, trust, or profit under drove James II from his kingdom. the United States. I therefore must holfl that the term ''civil offi- Thll·d. Persons not in office may be impeachecl for official miscon- cer" is used to designate the character of the office held by the ac- duct while in office. The cases cited in the argument conclusively cused when the offense was committed, and not to require t.bat he hold show that such ba-s been the unque-stioned practice in Parliament. the office either at the time of his impeachment or at the time of the The inquiry now is how far the Constitution of the United States trial. The use of this term was not to repeal the established parlia- qualifies or limits these general propositions of the English law of mentary law, that the offender should not escape impeachment by res· impeachment. ignation, but only to exclude from impeachment officers of the Army The fourth section of article 2, already quoted, changes the law of and Navy, who could be tried by the Rules and Articles of War upon impeachment in several particulars. By clear implicat~on it limits principles of military honor more exacting than those of civil law. the power of impeachment to "the PreSident, the Vice-P1·esident and l pon the most careful examination I mUBt conclude that the resigna- all civil officers of the United States," and thns excludes all officers tion of the defendunt does not affect the jurisdiction of the Senate to of the Army and Navy, who are to be tried by rules and articles try this impeachment. We are neither to assert jurisdiction without of war authorized by the Constitution. The designation of" all citil clear authority given by the Constitution nor to evade it or surrender officers of the United States" inclulles not only executive but judicial it when by our deliberate judgment it is conferred. officers, and wonld only except from the law of impeachment officers The construction I have given to the words "civil officers" in the of the Army and Navy. Constitution is supported by the plain and obvious intent of the word .A..s by the En~lish law the king, the head of the executive author- "officers" used in the statutes of the United States punishing the crime ity of the English government, could not be impeached, it might be of bribery. The Revised Statutes embody the general law against inferred that the President, the bead of execnt~ve authority in this bribery in the language used in all the statutes on that subject. Sec- 1 Government, could not be impeached without some other provision tiC!n 5501 provides that- extending the limit of parliamentary impeachment. It is apparent Every officer of the United States and every person acting for or on bebalf of the from tho debates in the conyentiou that thls question was tho chief United States in any official capacity, under or by virtue of the authority of auy TRIAL OF WILLIAM W. BELKNAP. 87 Department or officer of the Government thereof, * * * who asks, accepts, or when a court as to the ordinary tribunals of civil and criminal jus- receives any money * * * shall be punished. * * * tice. If eo, this danger of perpetual aecusation against a civil officer Section 5502 provides- by impeachment may be guarded against and regulated by law as in ordinary cases of crime or misdemeanor. Every member, officer, or person ronvicted under the provisions of the two pre- But, in the view I have taken of Uhis case, I do not rest npon a com- ceiling sections, who hold.s any office of profit or &·ust, shall forfeit his office or parison of the danger that may flow from asserting or 1·efusing juris- place, and shall thereafter be forever disqualified from holding any office of honor, trust, or profit under the United States. diction ; nor am I at liberty to decide it by the Constitution aa I t,hink it ought to be, but only by the Constitution as it is ; ancl upon this Section 5500 provides for cases of bribery of members of Congress. basis my conviction is clear that the jurisdiction of the Senate to try The law thus provides for the indictment and punishment of mem- this case was not affected by the resignation of the defendant. ber~ of Congress, officers of the United States, and persons other than officers who hold positions under the Government, that, upon convic- tion, any such person described as a member, officer, or employe, shall be imprisoned and forfeit his office or place, and he forever disquali- fied from holding any office of honor, trust, or profit under the United Opinion of Dlr. Sargent, States. Can it be possible that the resignation of an officer before Delitered May 15, 1876. his indictment tmder this Jaw can defeat his indictment because he was not an'' officer" when indicted or because the judgment of remo- Mr. SARGENT. In the few words that I shall sa·y I propose to val from office could not operate in his case t Such a strict construc- give rather my conclusions than the processes of reasonin~ by which tion would hardly be applied by a court to even a criminal law. And I have arrived at them. I think the jurisdiction of the I::Senate ex- yet this is the same cqnstrnction that would limit the jurisdiction of ists in this case because- the Senate to the impeachment of "officers" in office not only when First. The Constitution plainly provides that in cases of high the offense was committed but also continuously through impeach- crimes and misdemeanors in office the House shall have the power to ment,, trial, and punishment. So strict a construction of the Consti- impeach and the Senate the power to try offenders. tution would cripple all its great powers and leave it a helpless wreck Second. The jurisdiction inures at the very motnent the crimes are against treason and corruption. committed, whether the House impeaches or not; and the power to With no desire to enlarge the powers of the Senate I cannot so impeanh and try then exists and continues until completely exercised. limit the power of the House to impeach or the power of the Senate Third. The Constitution fixes no limitation of time during which to try impeachments. the power of impeachment may be exercised and at which it shall In considering this question I have not overlooked the danger that terminate; and, unless such limitation is affirmatively stated in that may arise in high party times when a reckless majority may by abus- instrument or necessarily implied, it cannot be assumed. ing the power of impeachment seek to exclude from high office the Fourth. So far from the Constitu,tion implying any limitation of most worthy private citizen for old offenses committed when in office. time, the provision denying pardon to persons removed or disquali· This argument applies as well to all the great and necessary powers fied implies the reverse; for no lapse of time, penitence of the crim- of the Government-the power to declare war; to make treaties; to ina], or subsequent exemplary life is potent •to secure for him reha- pardon crimes; even the judicial powers may be abused; but still all bilitn.tion. The reason of the rule is as pot.ent to subject the offender these powers are es ential to the existence of Government. The to a trial which will result in disqualification, obviously deemed im- power of impeachment has been carefully limited by the Constitu- portant to the public safety by the authors of the Constitution. tion in the same mode as other powers that may be abused-as to the Fifth. It is assuming a limitation of time at which the power of power of the Senate to make treaties or the power of either House impeachment shall terminate to hold that the resignation of his office to expel a member, each of which can only be exercised when two- by a high criminal or the expiration of his term defeats the power thirds of the body concur. Other safe-guards have been thrown and onst.s the jurisdiction of impeacbment. . around the power of impeachment: the nature of the offense is de- Sixth. The object of impeachment is the protection of the Govern· fined, tho officers to be affected are described, and the punishmen~ is ment and people, and tbis object is secured by providing two conse- limited. These safeguards only indicate that if it had been t.hc pur- quences to follow conviction, namely, removal from office and futm·e pose to further limit impeachment to civil officers while in o.f]ice it disqualification, the latter in the djscretion of the Senate. would have been clearly expressed. The precedents of impeachment Seventh. The power to sentence to disqualification to holll office of persons not in office for offenses committed while in office were was granted because its exercise may be as necessary to the pilblic well known, and if this had been considered a.n abuse to be guarded safety as removal from office; and it would be difficult to conceive a against it wo~d have been done in the same clear manner that the case where a person would be found guilty of crimes that would, in Const-itution guards against excessive pnnit:hment in cases of im- the judgment of the Senate, be cause for his removal, where the Sen- peachment. It is even now in this debate a well-balanced question ate wontd fail to further sentence him to lUsqualificati~il. whether, if we wore making a new Cons1itution, and not construing Eighth. A sent.ence to disqualification is a humiliating badge af- one, it is not more dangerous to the public to allow an officer to es- fixed to high crimes and misdemeanors in office, and qperates for the cape impeachment by resigning than it is dangerous to the private public safety not only by the exclusion of t.he criminal from office cit~zen to leave him subject to impeachment for alleged high crimes bnt as a warning and example to all public officers, tending to purity or misdemeanors when in office. Argument drawn from the possibil- in office. ity of the abuse of power can have but little weight in .the construc- Ninth. The power is as much conferred by the Constitution to sen- tion of a written Constitution of express powers; and in this cause tence to disqualification as to removal. If the jurisdiction to im- such arguments have been greatly exaggerated. Nearly a century peach inmes at the very moment the crimes are committed, it must has passed away and the plainly expressed power to impE>.ach all civil continue until acquittal or until the power of the court is exhausted, · officers bas been rarely exercised. It is not likely that the power to including the power to sentence to disq_ualification, unless the Sen- impeach persons not in office, for official misconduct when in office, ate shall omit disqualification, in its discretion, from its judgment. will often be invoked, and only in extreme cases and when the of- Tenth. Congress may have power to ena-ct a statute of limitations fender flees from justice by resignation. It may then be the only on impeachments, recognizing for that purpose the principle8 on which means of arraignment, exposure, and punishment. The public safety such statutes are upheld, that they are statutes of repose, going to may depend upon its exercise. It ha-s been often said that if this rem- the remedy and not to tho riGht; but it has not done so. edy exists it must exist until the gmve covers the ofl'ender; that Eleventh. The words "civil officers" used in the Constitution, des- there can be no statute of limitations against it. If this be true, it is if_plating persons liable to impeachment, were intended to establish a equaJly true of civil claims or judgments in favor of the United distinction between those who have assumed civil office in the Gen- States. But the limitation of civil suit-s, judgments, taxes, and du- eral Government and military and naval officers, as also those of the ties, as well as of all remedies, is a part of the law-makipg power. people never in office, who might be held liable to impeachment with- Congress may by Jaw limit the time within which all processes or out careful exclusion. remedies, whether in the Departments, the judicial courts, or in this Twelfth. The body of the people wa-s excluded from the process of high court of impeachment, may be presented. 'f.here is no remedy impeachment by apt language because the practice in the English that cannot be limited by a statute of repose. Although the House Padiament had given some color to the idea that any subject might of Representatives has the sole power of impeachment and the Sen- be impeached. But the President and Vice-President were included ate can alone try an impeachment, yet Congress has the power to in the number liable to impeachment because that practice had ox- make all Jaws which may be necessary and proper for carrying into eluded the king from such process. execution all the powers vested by the Constitution in the Govern- Thirteenth. The cumbrous machinery of impeachment is not likely ment of the United States or in any department or office thereof. to bo set in motion for light causes or be unjustly used by an incom- Under this power statutes of limitation are passed which deprive ing part.y as a mode of assault on their retiring adversaries. The a citizen of his property without" due process of law," but only by good sense and rectitude of the people would rebuke such nse of this the lapse of t.ime. All rights must be enforced by appropriate reme- tribunal. Congress has provided other means for tire trial of minor dies within a reasonable tiroo, to be fixed by Jaw, or they are for- offenders, to which they are properly :remitted, mid the Senate will feited. The power and jurisdiction of all courtS are subject to a quali- j11dgefor itself what are high crimes and misdemeanors. But, if this fied limitation by statutes which the courts are bound to respect and abuse is an inseparable incident to this process, the remedy is in an enforce, and I see no reason why this principle does not apply a-swell amendment to the Constitution. to the House of Representatives when an accuser and to the Senator Fourteenth. The allegations of the articles of impeachment, taken 88 TRIAL OF WILLIAM W. BELKNAP. as confessed for the purpose of this plea to the jurisdiction, are that sure or suspension ; but the fourth section, hereafter to be considered, the late Secretary of War was guilty of high crimes and misdemean- requires one of them to be done, if the person convicted happens to ors in that office. In my view, his resignation does not onst our juris- be within the category described at the time of judgment. diction to try this impeachment, and, if he is found guilty, to sentence The two things, removal and disqualification, are not inseparable him to disqualification from office. and to be taken in solido. We are not to go jutthcr than both. The clause is negative, and a 'Prohibition against doing more than two ""j., things cannot be turned into a command to do both or neither. In the negative form of the clause the use of the conjunction and was indispensable. Ha~ or been used, we should have been prevented Opinion of ltlr. Edmunda, from applying more than one of the remedies in any case. Hence it - Delivered May 16 and 17, 1876. follows that no inference can be raised from these words that the person impeached must be an officer at the time of impeachment. I Mr. EDMUNDS. Mr. President: The provisions of the Constitu- should myself, indeed, have no hesitation in holding that a person tion on this subject, brought together in their order, are as follows: out of office could be impeached for a high crime committed in it if the The Honse of Represtmtatives shall * * * have the sole power of impeach- language of the Constitution ha~ been affirmatiYe, like this: "All civil Iil!}nt. (Article 1 section 2, last clause.) officers of the United States shall be liable to impeachment for trea- The Senate shall have t-he sole power to try all impeachments. When sitting for that purpose they shall be on oath or affirmation. When the President of the son," &c. In all such cases thejurisdiction attaches on the commis- United States is tried, the Chief Justice shall preside. And no person shall be sion of the offense, and it attaches to the offense and the person com- convicted without the concurrence of two-thirds of the members present. (Article mitting it. No difficulty arises from the use of the word otfice or officer. 1, section 3, sixth clause.) An office is a function, and an officer is a person performing it. When, Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under therefore, the law provides for dealing with an officer who miscon- the United States: but the party convicted shall nevertheless be liable and subject ducts himself, all rights and responsibilities are fixed at the moment to indictment, trial, judgment and punishment, according to law. (Article 1, sec- of the act, and his ceasing to hold office is not of any consequence tion 3, seventh clause.) except as making one part of the judgment unnecessa1-y. It is the The President shaH * * * have power to grant reprieves and pardons for of- fenses against the United States, except in cases of impeachment. (Article 2, sec- indivil upon which clares what shaH follow the exercise of a jurisdiction by conviction of a the jurisdiction is conferred; neither the lapse of time. nor the change personholdingoffice. IneveryotberinstanceintheConstitutionwhere of circumstances of the offender has any effect upon 1t whatever. If power, authority, or jurisdiction is conferred, entirely different lan- he has received a pardon or has been before acquitted or convicted of guage is employed, clear and affirmative in its character: as in the the same offense, or if the statute of limitations has run, the jurisdic- passages before referred to, and in all grant~ of power to Congress or tion over the subject remains precisely what it was before, and these either of its Houses, in all grants of power to the Executive, and in things are matters of defense, showing, not that the tribunalhasnoright the grant of judicial power; and it is amazing that if the framers to try, but that, having the power ~o ·try, it is upon such circumstan- of the Constitution had intended this section to be one of jurisdic- ces bound to pronounce judgment m favor of the respondent. But tion, and determinable at the will of the offender at that, it should this elementary p1inciple must be so obvious that I will not enlarge have been left in its present form .for policy and conjecture to dis- cover it. It will be observed, too, that it makes no provision at all uponh T eit.oth er b ranc h of JUns · · ·d.1ct'1011 1s · w h a t 1s· called Juns · · di cti on of for disqualification; and if it be the jmisdictional provision, it com- the person. It always relates to the individual who is to be brought pletely measures the judgment as well as describes the offender and under the judgment of the tribunal. No matter how many places of the offense, and it would be difficult to disqualify at all, as removal trust he may hold or by bow many titles he may be described, it is alone is mentioned; for, as the prior disqualifying clause is in the the man in his personal, and not his official, character who is to be negative, that could not be resorted to to enlarge the jurisdiction confronted with the accusation and with the accuser. Even when the under this section. • object of the prosecution is not punishment, but to compel the perform- Bnt it appears to me that, if this section could be treated as one of ance of an official act, the judgment of the court always is against descriptive jurisdiction and made like the other jurisdiction clauses the person, commanding hinl to exercise the office and duty the law of the Constitution, to read affirmatively and specifically, that the has imposed upon him. This being the complete nature of jurisdic- House of Representatives shall have power to impeach and the Sen- tion, (and it was never, so far as I know, questioned,) the jurisdic- ate to try the President, Vice-President, and all civil officers o.f the tion over the subject-matter of the offense described in the articles, if United States, and on conviction to remove and disqualify, it would it, ever existed, cannot have been lost by the change of circumstances still be clear that retirement from office would not affect the ques- of the respondent; or, if by possibility it could be lost by such change tion; for, as has already been shown, if the power granted be to im- of circumstances, it must equally be lost when the change occurs peach and try the President, &c., for misconduct in office, it is a power after proceedings begun, as well as before. The proceedings them- to prosecute and try the person who while holding the office com- selves cannot create jurisfliction over the subject; they are only in ex- mitted the offense, without regard to his character at the ti.ne the ercise of the jurisdiction residing in the tribunal. But the jurisdiction hand of the law is laid upon him. There is no conflict between this over the person is first obtained by such exercise in t.he process of section and the provisions of article 1, nor is this a limitation upon bringing him before the tribunal. And as the jurisdiction over the sub- them. On the contrary, it is an addition that in respect to persons ject may be lost by abolishing the law creating the offense or abol- holding office at the time of conviction, the judgment of removal, ishing the tribuna.l authorized to try it, so the jurisdiction over the that otherwise would have been discretionary and might have been person may be lost by his ceasing to exist, and in no other way. And suspension for a limited time or censure, shall be pronounced. And at whatever stage in the proceedings this last event happens, the re- in view of the negative form of the judgment clause in the first ar- sul~ is the same, ~object in some cases, possibly, to the doctrine of re- ticle, it might have been open to doubt in the convention whether latiOn. . the President and Vice-President whose terms of office were fixed at I am, then, clearly of opinion that, viewing the provisions of the four years could be removed without an express provision. Constitution under the appropriat-e heads of the power of the House From these considerations confined to ~e words of the Constitution, of Representatives and the Senate in respect of impea{lhments, the I am of the opinion that in order to give effect to all its provisions on accused is subject to tl1e jurisdiction of this tribunal, notwithstand- the subject, and to caiTy out the iutent of the instrument expressly ing he may have been out office when the impeachment was begun. stated, to provide not only for removal, but (in many iustauces more But it is suggested that the second article of the Constitution, which important still) for excluding from office citizens who should betray r elates to the executive power, contains in its fourth section a pro- their official trusts, it must be held our jurisdiction is not defeated by vision that raises the presumption that jurisdiction to prosecute and ther~tirement oftheoffenderfromoffice. If, as is claimed, (but which try an offender by impeachment is to be confined to cases in which I do not by any means admit,) the Constitution is to be construed in the accused person persists, in spite of his detected crimes and in spite respect of its jurisdictions like a penal. statute, the jurisdiction is, I of the danger to the public service, in remaining in office until he is think, still clear. The definition of the terms used was perfectly un- prosecuted, and(aa I think it necessarily follows) until he is tried and derstood and the expressions employed must in every part be given convicted; for, as I have said, it seems impossible to hold that, if it their fair effect. be the person in his character of an officer who is impeached and that I will now proceed to the con8iderations bearing upon the question, he is in his character of an officer only to be convicted and adjudged, extrinsic to the words of the Constitution, and iu the light of which the jurisdiction exists any longer than the official relation does. This they may, I think, 6e justly viewed. The state of a subject at the section is in the following words: - time, the condition of the Jaws and practice, the mischief to be pro- Tbe President, Vice-President and all civil officers of the United States, shall be vided against, and the adequacy of the remedies to be applied, are all removed from office on impeachment for, and conviction of, treason, bribery, or just subjects of consideration in seeking for the true construction of other high crimes and misdemeanors. a constitution or a statute. It will be seen that it does not profess to confer any power, but it Under this head I refer- imposes a duty to be performed in a certain event. It is not placed Firs~. To the state of the English law of impe~chment at the time in that article of the Constitution which alone grants all the other the Constitution was framed and adopted. By that law, from which powers conferred either upon the Senate or House of Representatives, American impeachment wa-s taken, it was settled and univ0rsally but under the appropriate bead of executive powers and. liabilities. known that au ex-official could be prosecuted by impeachment and It provides for the inlmediate dismissal of offenders in that Depart- tried for crimes committed in the office he had vacated. And this pro- ment when convicted on impeachment. Obviously that is all there is vision of the English law, instead of ever having been regarded or com- of it upon its face. Everything else that is to be got. out of it must plained of as au abuse, was considered an essential security of the peo- be through the medium of speculative dialectics. Had it been placed ple, nncriticised by anybody. The case ofWarren Hastings then pro- in the first article with the provisions upon the subject of impeach- ceeding, was an eminent instance of a prosecution of this character, no- ment and in the same order in which it now stands, it seems perfectly torious in every country where the English language was spoken or plain to me that not a. cavil even could have been raised upon it in where English history was known. The chief and necessary object in favor of the claim of the respondent. The provisions then would such a. prosecution was the security of the state against the possibility have stood: of the retuni. to office of one who had flagrantly betrayed h~s trust. • First. The House of Representatives "shall have the sole power of Bnt in Englandapardongrantedafter conviction andjudgmenton im- impeacnment." peachment operated as any other case of pardon-to relieve the of- Second. "The Senate shall have the sole power to try all impeach- fender from all the effects of the judgment, and to restore to him his ments." fnll political capadty. The case of Lord Chancellor Bacon was a Third. "Judgment in cases of impeachment shall not extend further well-known instance of this character. To guard against the abuse than to removal from office, and diequalification to hold and enjoy any of this power of pardon, the framers of our Constitution carefully office of honor, trust or profit under the United States: but the party provided that there should be no pardon in any case of impeachment. convicted shall nevertheless be liable and subject to indictment, trial, The offender convicted and disqualified by the judgment of the ordi· judgment and punishment, according to law." And "the President. nary courts of law could escape 1;be consequences of his crime through Vice-President and all civil officers, shall be removed" on conviction, the pardon of the executive, and by his favor be again put in charge &c. So brought together, can the keenest criticism find any ground of the public trust he had abused; but if clisqualified by impeach- for claimjng that this last clause was intended to impair any power ment, the possibility of executive sympathy and favor was put en- granted in the prior ones; or that the circumstance of holding office tirely out of reach. It will be seen, too, on a careful consideration, at the moment of impeachment was to be made a test of the nght to that this exclusion of the power of pardon really has effect only in impeach or try anybody? respect of disqualification, if granted after sentence, for I think it 90 TRIAL OF WILLIAM W. BELKNAP. I clear that without this exclusion a pardon after sentence of removal South Carolina, were formed in substance and almost litemlly like actually executed could not restore the offender to his office. Such penal statutes, such as I have referred to, against official mi conduct, an act would be nothing less than an executive appointment. But and providing for disqualification as well as remov al. Ot-hers, na if in a case like the present, the guilty person can avoid alljurisdic- New York, providing a tribunal with general power to try impeach- tion of impeachment by resignation, he is enabled to do for himself menta, and describing affirmatively the 11ower of impeachment as the very thing that Constitution says the executive shall not do for againstofficera. One-Pennsylvania-providiugfortheimpeachmcnt him,-that is, relieve himself from any possible disqualification again of an officer "either when in office or after his resignation," using, as at the earliest moment, to lay hold of the administration of a1fairs it will be seen, the same words of description for the person in office with a fresh appetite for corruption. Was it not, then, the object of and out of it. Another, as North Carolina, describing the offender as the framers of the Constitution to retain the remedy of impeachment an officer, and providing for his prosecution like the ordinary descri p- in its full vigor, and to prevent, in the cases supposed, its being frus- tion of a penal statute. trated by any action of the Executive and much more by any action 'Vith all these constitutions 'before them, and with the knowledge of the wicked official t of the settled import and scope of the proceeding, and under the Second. The state of the law in the States at the time our Constitu- English law, it seems impossible to beli~ve that the members of the tion was adopted. Federal convention should not have in affirmative terms declared Nine of the thirteen already had distinct provisions in their con- that no one should be impeached or convicted unless in office at the stitntions upon the subject, regarded, evidently, not as instruments the time, if they had so intended, when at the same time they studi- o£ oppression or of danger to private rights, but as essential securities ously set a boundary to the judgment, and put away the possibility of of public liberty and purit.y of administration. executive interference; and in a case, too, in which, if the claim of 1.'hat of Delaware (September 20, 1776) provided that- the respondent be correct, neither the boundary to the judgment nor The president, when heiR out of office and wi~ eighteen months after, and all the exclu~ion of a pardon would be of the least consequence without others offending aates, pa~e 516.) The governor and .other officers offending against the State by violating any part In the South Carolina convention General Pinckney, also a member of this constitution, maladminist.ration or corruption, may be prosecuted on im- of the Federal convention, speaking of the impeachment of Senators, peachment of the G("D.eral.Assemb1y or presentment of the grand jury of RDY court said: of supreme jurisdiction in this State. (Article23.) Governor and other officials offending. (Article 23.) Though the Senate are to be judges on impeachments, and the members of it In this it will be observed that if the ex-official on the grounds in- would not probably condemn a measure they bad agreed to confum, yet a.s they were not a permanent body, they might be tried hereafter by the Senators and con- sisted upon in this case could not be impeached, he could not be pros- demned, if they deserved it. (4 Elliot's Debates, page 265.J ecuted in court ; fort.he powers to impeach and to prosecute criminally In another place, referringtotheargument that the power of great were stated in exactly the same terms. men might overthrow the Government, he said: That of South Carolina (March 19, 1778) provided: An appropriat-e body, immediately taken from the people and returnable to the * and corrupt * con- people every second year, are t() impeach those who behave amiss or betray their That the power of impeaching all officers of the Sta.t.e for mal public trusts; another body, taken from tho State Legislatures. are to try them. duct in their respective offices, not amenable to any other jurisdiction, be vested No man, however great, is exempt from _impeachment and trial (4 Elliot's De- in the house of representatives. (Article 23.) bates, page 281.) It will be seen that these constitutions, which must have been fa- In Blount's case the respondent was expelled after impeachment, miliar to the members of the Federal convention, and which certain and the plea alleged that he was not ever a civil officer and that he literal coincidences in respect of some of them show were actually in was not a Sena~r at the t.ime be pleadeu. The action of the Senate their hands, covered every aspect of the questionhsome, as Dela- was first to negative by 14 to 11 a resolution declaring that he "was ware and Virginia, withholding the power to impeac the chief mao-- a civil officer of the Uruted States within the meaning of the Consti- istrate until he should be out of office, and co;nferring it without d~­ tution and therefore liable to be impeached;" second, to adopt, by tinction as to all others. One·- New Jersey-providing this remedy the same vote of the same Senators, a resolution that his plea was only as a means of removal from office. Somo, as Massachusetts and sufficient. TRIAL OF WILLIAM W. BELKNAP. 91 I think the inference is fair, taking t.he two votes together~ that House of Commons-possessing the sole power to try and the sole the point made in the plea that be was then ont of office was not re- power to impeach ; for from Great Britain we derived not only our garded as having ru1y value. The negative of the first resolution, de- ideas of the common law but our ideas of parliamentary procedure, clarin~ in the past tense that he was a civil officer, was equiva.lent to onr systems of practice .and pleadings, our maxims and the meaning declanng that he l.Vas not sncb at the time of his offense, and so the of technical words and phrases ; and the meaning of impeachment, same fourteen Senators declared as a consequence that the plea was lH! understood by the framers of the Constitution as derived from our good. A careful examination of the whole course of the argument in British ancestors at the adoption of the Constitution, it has to-d~y, that case on both sides clearly convinces me that neither the man- subject only to the limitations and restrictions of the Con titntion. agers nor the counsel supposed that a person holding a civil office and The procedure is substantially the same as in the British Parliament. committing a high crime in the course of its administration could es- The judgment is rest1icted. cape impeachment by laying down his commission. Our Constitution, as I construe it, wisely subjects the person guilty It is indeed evident that in the case of offending officials the remedy of an impeachable crime or misdemeanor committted while in office, in courts of law by punishment may often entirely fail; first, when not only to impeachment for the official crime or misdemeanor com- the criminal bas the honest sympathy of the executive, whose unlaw- mitted while thus in office, but likewise to indictment, trial, judg- ful orders be may have been executing in committing the offense. In ment, and pnnishment according to law for the same crime or misde- such a case he would receive pardon; second, when, from a belief in meanor, the same as any other criminal person. The processes are his innocence or out of pit.y for bis supposed misfortunes, the prosecut- essentially different, the forums different, and the objects to be accom- ing officers themselves, under the orders of the executive, would be plished different. The person may be tried, convicted, and judgment directed not to proceed against him; third, when from corrupt mo- rendered against him by the court of impeachment for his official tives the same orders would be given; fourth, when, from party bias or crimes, and yet he may not be indicted, tried, sentenced, and pun- in supposed resistance of it, the same policy of inaction would be ished in the ordinary com'Se of law; or he may be tried, convicted, adopted. In all such oases tbeofficialoffender would go'' unwhipt of sentenced, and punished in the ordinary course of law, while for his justice" if by his own will he could defeat impeachment by resignn.- official crimes he may not be impeached. The two trials have no nec- tion; and impeachment as a practical remedy for security against essary connection. Eacb, however, is a trial, when bad, for a crim- great official crimes would cease to exist. inal offense: The one for a grave official crime or misdemeanor com- We have been pressed with the dangers liable to arise from uphold- mitted in office; the other for an offense against the ordinary criminal ing t.be jurisdiction. If it be admitted that this is a proper element laws of the land. The one is an extraordinary trial before a court in the question it must be considered from both points of view. On specially organiged under the Constitution for the very pmpose of the one band, it is asserted that it 8nbjects all the people of the investigating the official crimes and misdemeanors of which the ac- United States who have held office to the power of impeachment cused may stand charged by articles of impeachment, and of deciding without limit. of time, and that in the changes of party it may be- without appeal that very case. When this court of impeachment has come an instrument of persecution. But this presupposes that a ma- perfonned its functions in that case, it is dissolved and ceases longer jority of the elected Representatives of the people will have become to be a court. But the same person may, nuder the Constitution and corrupt. and that two-thirds of the Senators will also corruptly and by its special provisions, notwithstanding trial, conviction, and judg- throu~h perjury lend themselves to such schemes. When such a stat-e ment against him by the court of impeachment, be tried, convicted, of soCiety is reached, the power of impeachment will be among the sentenced, and punishecl by a court of competent criminal jllrisdiction least of evils. On the other band, if the jurisdiction in such cases organized, not for this particular case1 but for the trial of all offend- as the present does not exist, the great remedy (for it is a remedy ers within its jurisdiction, and it contmues to be such court after the rather than a punishment) of impeachment, carefully preserved in the trial the same as before. An investigation of the nature of the judg- constitutions of all the States, will be shorn of all its value for the ment pronounced by the court of impeachment will aid in the eluci- protection of the people, as declared in the Constitution, against the dation and solution of the question of jurisdiction before the court. return to office of great offenders and against their pardon by a cor- It has been strenuously argued that the ,judgment of the court of rupt or misguided Executive. In weighing these suggested dangers impeachment, even to the full of the constitutional limit, intlicts no on either side, can we hesitate in our choice T In every aspect of the punishment in the sense and meaning of the Constitution. If this be case that bas been presented to my m.irid I cannot doubt that the juris- correct, it logicall,y follows that the trial before the cotut of impeach- diction of the Senate is complete. · ment is not a criminal trial; for it would be vain to speak of a court bavmg criminal jurisdiction shorn of the power to punish. The law never says or does a vain or useless thing or a foolish thing. I think this is a grave error. · Opinion of Dir. Diaxey, Jud!rment in oases of impeachment shall not extend further than to removal from office, and disqualification to bold and enjoy any office of honor, trust~ or profit Delivered May 17, 1876. under the United States; but the party convicted shall nevertheless be liable and su~ject to indictment, trial, judgment, and punishment according to law. (Article Mr. MAXEY. William W. Belknap stands charged before t.he Sen- 1, section 3, clause 7, Constitution.) ate sitting as a court of impeachment, by articles presented and ex- We are not left in doubt as to the meaning of the word" convic- hibited by the House of Representatives, with being guilty of high tion/' and the common acceptation and the legal definition are sub- crimes and misdemeanors committed in office while Secretary of War, stantially the same. and is specifically charged in said articles with corruptly and unlaw- Webster defines " conviction:" fully taking and receiving money while Secretary of War, paid to him The a{}t of convicting; the act of proving, finding, or adjudging guilty of an with a view to influence his official action as such Secretary, and that offense. he was so influenced in consideration thereof. Bouvier defines "conviction:" The respondent pleads to tbe jurisdiction of this court, and says That legal proceedin~ of record which ascertains the guilt of the party, and upon that l•efore and at the time when the House of Representatives or- which the sentence or JUdgment is founded. dered .omd directed that he should be impeached at the bar of the Webster defines "judgment" thus: Senate and at the time when said articles of impeachment were pre- Judgment is the sentence of the law, pronounced by a court or a judge thereof, sented .tnd exhibited against him, he was nq_t, nor has he since been, upon a matt~· in issue in any cause before it; judicial determination; decision of a nor is be now an officer of the United States, but at said times, is now, court. and ever since has been a private citizen of the United States and of Bouvier defines "judgment" thus: the State of Iowa. Tho decision or sentence of the law, given by a court of justice or other compe- Without analyzing the pleadings, it is sufficient to say that tho tent. tribunal, as the result of proceedings instituted for the redress of an injury. real question before the court is, Has the Senate, sitting as a court Now, we have in the clause of the Constitution last quoted the word of impeachment, the constitutional jurisdiction to hear and decide "judgment" in respect to impeachment, and the word" convicted," this casef Here is a grave question of constitutional law we are " part.y convicted" in the same connection, and we have the defini- called on to determine. tion of conviction as that legalproceeding of record which ascertains The House of Representatives * * * shall have the sole power of impeach- the guilt of the party, and upon which tbe sentence or judgment is ment. (Part of clause 5, section 2, article 1, Constitution.) founded; so that these apt and appropriate words with well-defined The Senate shall have the sole power to try all impeachments. (Part of clause 6, section 3, article 1, Constitution.) meaning in criminal law are found in the seventh clause of section 3,· article 1, of the Constitution, limiting the extent of the judgment or The article~ of impeachment were presented by the House. If the sentence on conviction in cases of impeachment, namely, that it House of Representatives had the constitutional power of impeach- shall not extend further than to removal from office, and disqualifica- ment in the case at bar, the Senate undoubtedly has the sole power tion to bold and enjoy any office of honor, trust, or profit under the to try .the impeachment.; so that the question presents itself: Was United States. It is a limitation on the judgment, and in no sense the power of the House of Representatives constitutionally exercised touches the jurisdiction of the court. The highest punishment to in the case at bar T which the court can go in its judgment is fixed by the Constitution. The Constitution does not in terms define impeachment. What- All under this~ of the same nature as that fixeu, is within the discre- ever meaning the word ha{l at the adoption of the Constitution it tion of the court. It is entirely discretionary with the court what has now. shall be the judgment, provided it is of the nature of that set out in To ascertain this meaning we must ascertain what was understood · the Constitution; and provided it does not go further than the limit and acted on as it.s meaning by the States which framed and ratified :fixed by the Constitution, always making removal part of the judg- the Constitution and by the bodies in England-House of Lords and ment if the party on trial holds a civil office under the United States. 92 TRIAL OF WILLIAM W. BELKNAP. But I am not confined to the words " conviction" and "judgment" of Representatives to inveMtigate the chal'ges against him, bot I ap- in support of the posit ion which I have advanced, namely, that this prehend this does not change the fact, nor the ra.tification of the is a trial for a criminal offense, an official crime, by a constitutional action of the committee by the Honse, nor the constitutional power court with special criminal jurisdiction, naJDely, the Senate sitting of the committee derived through the House. In my judgment the as a court of impeachment, authorized by the Constitution to hear proce~dings begun, had their origin constitutionally, before that and pronounce judgment upon conviction. committee. In further support of this view I quote the following clause of the _Resolutions ordering articles of impeachment was another step, and Constitution: still another w~ taken by presenting and exhibiting articles of im- The President * * * shall have power to grant reJ?rievea and pardons for peachment agarnst the defendant at the bar of the Senate. If, then, offenses against the United States, except in caaea of IIDpeachment. (Part of the more circumscribed view is taken (to which I do not give my clause 1, section 2, article 2, Constitution.) assent) that jurisdiction attached by the beginning of proceedings, it In this connection I make the following extra.ct from a decision of att~ched when the investigation began before the committee, (of the Supreme Court of the United States defining "pardon;" namely: whiCh defendant bad notice and appeared,) culminating in articles of Pardon is an act of ~ce prooeedin~ from the power intrusted with the execution impeachment ; . and jurisdiction, having vested, could not be divested of the laws which exempts the individual from the pun.i.Ahment which the law in- by the act of tlie defendant, and therefore the plea to the jurisdiction flicts for a crime he has committed, (7 Peters, page 150, the passage quoted on should be overruled. page160. Third. I think it entirely immaterial whether the party against The position that judgment in cases of impeachment inflicts no pun- whom articles of impeachment may be presented is in office or not at ishment is conclusively overthrown by the passage which I have just the time they are found and exhibited. quoted from United States vs. Wilson, in which the opinion was de- The essential point is, Was he an officer of the United States at the livered by Chief Justice MarshalL time the imputed crimes and misdemeanors set forth in the articles Analyze the clause of the Constitution laBt quoted in the light of are therein charged to have been committed by him a-s such officer f the above opinion of the Supreme Court, and by substituting for If yea, the jurisdiction of the court of impeachment instantly at- "pardon" its meaning as defined by Chief Justice Marshall, speaking tached and became vested by reason of the alleged commission of the for the court, and we have : high crimes and misdemeanors in office, precisely a-s the jurisdiction The President shall have power to grant reprieves and exempt an individual of the criminal court instantly attached and became vested by the al- from the punishment which the law inflicts for the crime he baa committed, except that in caaea of impeachment he shall not have the power to exempt an individual leged commission of the crimes and misdemeanors auainst the law of from the punishment which the law inflicts for the crime be has committed. ~he.laJ?d,_ conside!inghim thesameasanyothercrimi~al person. Both So that we have the apt and appropriate words of the criminal Jaw, Jnnsdictwns sprmg out of the eame acts. There is no reason why "judgment" or "sentence," "conviction," "pardon," "punishment" one jurisdiction should attach before the other ; nor is there any moro "crime," "punishment," which the law "inflicts," &c., for "crime:" reason why one jurisdiction should be divested by the act of the party all used in respect to impeachment. · more than the other. The admission of such doctrine renders the Con- The conclusion to my mind is irresistible that this must be held a stitution in this regard a dead letter. Now we know that the incul- trial for a criminal offense-an official crime ; that this court is a pated party cannot divest the jurisdiction of the ordinary court of court of special criminal jurisdiction, with the power to inflict pun- criminal jurisdiction by his own act, neit.her can he dive t the court ishment upon conviction andjudgment, the extreme penalty or limit of impeachment of jurisdiction of l1is official crimes by his own act. of the judgment consequent upon conyjction being :fixed by the Con- The Blount case, (2 Annals of Congress,) to which reference has so ~equently been made, settles nothing in respect to this point. It stitution, beyond which the court cannot go. s1mply determines, and properly, that a Senator is not a civil officer If this be correct, and if there be nothing in the Constitution to the contrary, and there is not, then the jurisdiction of this court to of the United States, and therefore not impeachable, and this doubt- hear, try, acquit, or convict, and pronounce judgment of acquittal or Jess because his title and commission come from a State, and not from conviction according to the facts, atta.ched instantly upon the alleged th.e UJ?ited States. This exposition, in my judgment, is consonant commission of the crimes and misdemeanors imputed to the defend- with ngbt and reason. Not only so; it is the recognized doctrine in ant in the articles of impeachment. England, to which we must look iu the absence of a definition of im- The question of guilt or innocence bas nothing whatever to do with peachment in the Constitution, and of authoritative precedents in the question of jurisdiction. If the House of Representatives had the our own country. power to impeach upon the facts averred in the ar; icles, this court . The Consti~utiou ref~rs to impe::t?hment without defining it. It a sumes it ex- Istence, a~d sil~ntl.Y pomts t? En_ghsh p~edents for knowledge of detail. (Pro. has jurisdiction to try. And this jurisdiction attacheM iu this court fessor Dwight m sixth American Law RegiSter, page 257.) according to the facts averred in the articles of impeachment, pre- cisely as jurisdiction attaches instantly to a court of criminal juris- Among tho numerous English precedents which might be cited the diction according to the facts averred in the indictment. Jurisdic- cases of Warren Hastings and Viscount Melville are in point. Both tion in poth cases may lie dormant for want of discovery; but, for all had resigned their offices; Melville while the subject-matter of his that, it exists, and the beginning of proceedinp;s is simply setting in delinquencies was under discussion, Hastings before proceedings bad action a pre-existing jurisdiction. The jurisdiction of an ordinary begun. Hastings's trial was pending and had drawn to it unusual criminal court may also lie dormant for want of indictment, precisely attention and interest in Europe and America at the very time the as the jurisdiction of this court may lie dormant for want of articles constitutional convention was in ses ion. The debates in the conven- of impeachment; nevertheless jurisdiction in each case vests upon the tion on the question of the removability and disqualification by im- commission of the offense. J nrisdiction once attached cannot be peachment of the President throw much light on this subject. The divested by the act of the party inculpated so long as he may live. que tion there wa-s not whether the Executive should be impeachable The position of Mr. Rawle, that impeachment will lie against a per- but whether he should be impeachable while in office. It seems. not son ''who is or has been" an officer of the United States, for a high to have been doubted that he could be impeached after his term ex- crime or misdemeanor committed while in office, is, in my judgment, pired. We must conclude that the framers of the Constitution had correct and consonant with the great purposes sought to be accom- the English precedent-s before them and had full knowledge that in plished by this grant of power in the Constitution. England the power of impeachment not only existed but wa-s acted In the Virginia convention called to consider the Constitution of on of impeaching persons after they had gone out of office aB well as the United States, Mr. Madison, while discussing the treaty-making while in office for crimes and misdemeanors committed in office. The power, referring to the President, said: co_nclt;~sion is irresistible that they accepted the word impeachment * * ,. If he should seduce a part of the Senate to a. participation in his crimes, Wlth Its well-understood and recognized meaning, limiting only the those who were not seduced would pronounce sentence against him; and there is power of the court in its judgment to removal and disqualification this supplementary security, that he may be convicted and punished afterward. and commanding removal on conviction where the impeached party when other members come into the Senate. one-third being excluded every second was a civil officer of the United States. The power of impeachment year; so that there is a. twofold security-the security of impeachment and con- being restricted in the matter of judgment, and not otherwise, ac- viction by tho e Senators that may be innocent, should no more than one-third be engaged with the President in the plot; and should there be more of them engaged cording to all recognized rules of construction, no other restriction, in it, lle may be tried and convicted by the succeeding Senators, and the upright modification, or qualification was designed or made. Senators who were in the Senate before.-EUioU's Debates on tll.e Federal Comtitu- The trial by impeachment was, rn my JUdgment, designed by the tivisions of the Federal Constitution which are now, at office, and clisqualifica.tion to holcl and enjoy any office of honor, trust, or profit under the United States. the close of one hundred years of our national history, for the first The fact that a party convicted by the court of impeachment can- time presented for authoritative determination by the American not plead this conviction in bar to a prosecution by indictment is also Senate. set out. The question is this: Defendant being a civil officer at the time of But the party convicted shall nevertheless be liable and subject fu indictment, the commission of the offenses charged, is be liable to impeachment under trial, judgmen~ and puniahment according to law. articles exhibited against him after he had re8igned said office, said res- ignation having been accepted by the proper executive officerf If the fourth se.ction of the second article be regarded as jurisdic- Before reaching the m;tin question, however, two or three unim- tional, then the judgment of the court under that section is shorn of portant ones are perhaps worthy of notice. I dispose of these very its principal strength, to wit, disqualification from ever after holding briefly. office. This is unreasonable, and conflicts with the universal doctrine First. The acceptance of the resignation was in no manner neces- of construction, that all parts of a law must be construed to stand sary to its validity or completeness. As a rule, and save where a according to their plain import, if not manifestly contradictory,· which statute otherwise provides, any civil officer may, at his own will and is not the case here. . pleasure, lay down any public trust; and, that he may be relieved The fourth section of the second article, in my judgment, means from further official responsibility and care, it is not necessary that that if the party impeached be a civil officer of the United States, he he shaH have or obtain the consent of any other official or parson shall, upon conviction, be removed from office. Construed with the thereto. There is no law which forbids the Secretary of War or any other parts of t.he Constitution, the whole together means this: We other civil officer under the United States, resigning his office, and have granted to the Senate the sole power to try all impeachments. this resignation, when duly tendered and offered in fact, ~herefore, as We have furthermore directed that judgment in cases of impeach- comp1etely and absolutely disrobed the defendant offictally before ment shall not extend further than to removal from office, and dis- as after its formal acceptance by the Executive. The Executive had qualification to hold and enjoy any office of honor, trust, or profit no discretion, for he had no power to compel the defendant to remain under the United States. We now command that if the party con- in office. The law may require the assent of another, or others, to victed be a civil officer of the United States, by your judgment he get into office in this country, but, fortunately for the officer, and shall be removed from office. Whether you shall go further in your perhaps-for the service, too, he does not need such assent to get out. judgment, and add disqualification, is within your discretion. Second. Does the motive influencing the resignation in the least Whether you convict or not, is to be determined on your consciences affect the question f In other words, suppose the defendant resigned, according to the facts ; but should yon convict, yon shall remove. This, avowedly, openly, and undeniably, for the purpose of avoiding im- in my judgment, harmonizes and gives force to every part 'of the Con- peachment, and for no other purposa, could this in any manner be stitution bearing on impeachment. considered in determining our jurisdiction f I answer, most certainly It will be noted that in respect to impeachment the sixth clause of not. The resignation was a legal act and must have, upon every prin- section 3, article 1, of the Constitution uses the word "person," not ciple known, so far as I am aware, to every system of jurisprudence, •' officer." The seventh clause of the same section uses the word its legal effect. The motive influencing is of no more consequence than "party," not "officer;:' while the fourth section, second article, uses the color of defendant's hair or his opinion of the impeaching com- the word "officer." This is not accidental. The greater word ''per- mittee or the members of the Senate. Of course, if the resignation son," ''party," in the third section, first article, embraces the lesser was not actual but colorable or simulated, a different question would word " officer," in the fourth section, second article; so that every be presented. But in this case, admitting it to be real or actual, the part of the Constitution on impeachment can, ·without the slightest motive is attempted to be brought in question as of value. With it, strained construction, be given its full force. 1 And it is also to be ob- I repeat, we have nothing to do. served that there is.not a word in the debates of the convention which Third. Had the defendant resigned at the time the Honse of Rep- framed the Constitution ·indicating an intention to limit or in any resentatives took action f It is said he had not, for the reason that, manner restrict the broad power previously granted in clause 6, sec- as the House resolved on impeachment on the same day, though at a tion 3, article 1, nor is there anything in the debates to show a desire later lwur than the act of resignation, such resolution took effect, by or intention to abridge the power of impeachment as exercised in the relation, to the first moment of that day, and therefore was p ior, British Parliament, except in t.he judgment. The judgment was re- in actual or legal time, to the resignation. stricted, not the parties against whom judgment might be rendered. I do not stop to inquire whether defendant was actually and in a Unless the converse appears, we must conclude that the framers of legal sense impeached, or rather whether a due presentment was the Constitution took the word impeachment as they found it, and made prior to the 4th day of April last, (the day when the articles TRIAL OF WJLLIAM W. BELKNAP. were finally exhibited,) in the sense and for the purpose now under or that ofthe Constitution, and their cla.imedcompleterefntation; bull consideration. For, conceding that he was in law impeacb6{1 on the I dismiss them all; for if the Constitution speaks, and I am to assist 2d day of March, but as matter of fact at an hour after the resigna- in its execution, t.ben wit.h conseqences I have nothing to do, no tion I am still very clear that the resignation was prior in legal time, care. As a member of this court, knowing that I must for myself n,ud that therefore defendant was not an officer t~t the time of im- declare the law, I may happily, in the discharge of that duty, leave peachment. If there a.re no portions of a day as to the impeachtnent consequences to take care of themselves. neither are there as to the 1'eiligJJation, and if one, therefore, goes bac~ What, theu, is in the law or the Constitution T to the first moment of the 2d of March, so must the other. And if The House of Representatives shall have the · sol~ power of impeachment. defendant, therefore, bad resigned on that day after the articles were This is found in the second section of the first article in its prop~r resolved upon, be could claim, in my juugment, with as much pro- and appropriate connection. These words are few, but their mean- priety as the managers now do, that, as that act went back by rela- ing is certainly neither obscure nor donbt~ul. It git'es to the House tion to the first moment of that day, he was out of office before the the power to impeach and excludes every other body, for it says the House took action. And if, by possibility, in tllat state of the case, Hoztae "shall have the sole power." Nothing is left for interpret.ation, his counsel had so claimed, it is at least probable that such claim as to nothing in the sentence need we resort to books or law for ex- would have been resisted as stoutly and ably by the managers as they planation but the last word, "impeachment," and which was very now insist upon this rule for the people. But I repeat, if it. is true fully explained and defined yesterday by the .Senator from Vermont, in one case or as to one act, it is equally so as to the other, and noth- [.Mr. EDl\:IUNDs,] and to it I shall not, therefore, refer more at length. ing is gained. It is not true as to either, however, for in our criminal By this clause, then, we have declared the grand inquest which alone jurisprudence, in a matter so vitally affecting the rights of one cari. present or exhibit articles of impeachment against those liable charged with the highest offenses, neither the law, justice, nor com- to its penalties under our Constitution. mon reason wiU allow a technical, barren rule-a rule, too, only to be This as clearly confers the power as it would be possible for any invoked in furtherance of ,justice-to give the lie to what is true in words or language to do, and I confess to not a little surprise that any fact, or to make that true in law which is false in fact. one should say that it does not confer powe~ If the power to im- I shall assume therefore that the defendant was actually out of peach is not conferred here, it is not at all. Why it says that the House office at the time he was impeached, as much so and as completely acS shall have the power of impeachment, the sole power. When the Con- if he bad resigned or his term of office bad expired days or months stitution says that Congress shall have the power "to lay and collect before, and I shall treat the alleged motive of resignation as of no taxes," is there no power conferred t When it says Congress shall possible account, anu upon these assumptions inquire whether he was have power to "borrow money," does it confer the power named 1 still amenable to this constitutional punishment. When it says it shall ha.ve power to" coin money," do yon want moro Other Senators have, and others doubtless will, discuss the history to show that it has power to do this thing 1 When it says it shall of the constitutional provisions involved, as also the authorities or p~·e­ have pou er to ''establish post-offices and post-roads," have we ever cedents bearing upon the same. Because of this, as also because thiit doubted that power over these subjects was thereby conferred T When whole field was exha,nstively gleaned by counsel, but more because in it says that the HousE~ ~hall'' elect its own Speaker and other officers," my judgment, in view of conflicting opinions and the comparatively bas any one ever denied that this conferred the pow:er to make these little attention heretofore given to the real question here in valved, the selections T And when it says the House shall have the power, the merest ray of light has on prior occasions been thrown upon it-I ·"sole power of impeachment," do we need any more unequivocal and say because of these things I shall content myself with stating my clear or emphatic language to show where this power is lod~ed or conclusion from the provisions of the Constitution itself. I do not the right and duty to exercise it f Why if the language used w this think, however, that the authorities help us much, if any, and tha,t case does not confer the power claimed, then I repeat it is not fonn1l it must be treated as a question to be now for the first time author- at all, nor has Congress power to do anything tchatcver upon any 8'ub- itatively settled by the American Senate. I may remark, however, ject, for in precisely the same bnguage is all power conferred upon it in passing, that I by no means believe that the little decided conflicts as a legislative body. No, Mr. President, it will not do to say that with the conclusion I reach. this does not confer the very power claimed ; and I repeat, as I shall The CO'flsequeneeil of the one construction or the other of these con- I hope hereafter show, that this provision is the very source of the stitutional provisions, let me also say, I regard as ha,ving legitimately power invoked in cases of impeachment, and that without it we are but little weight. The light or aid drawn from the deprecated or to driven to rely upon the merest impljcation. be desired consequences of this construction or that of a, statute or Having, then, the supreme grand ,jury, or the proper inquest; hav- constitution is, at best; in most cases of the least value, and indeed ing found who alone may impeach, we next; inquire who is to try not infrequently misleads or ends in error. Then, too, in this case it these offenses. This is answered in section 3 of the same article, were difficult to tell in which path we shall find most dangers or in where it is declared that- which greater Rafety. For if only those can be impeached who are The Senate shall ha'\"'e the sole power to try all impeachments. in office at the time the articles are exhibited, then it is said the con'" sequences would be most disastrous to the public welfare and the And thus we see that the power to exhibit articles is given to but one situation most anomalous; because the most hardened an(l corrupt body, and that of trying is in precisely the same terms limited to the official could by resignation, even att.erthe Senate h~d adjud.ged his guilt Senate. The machinery of impeachment can only thus be s~t on foot, and before sentence, cheat the law and go unwhipt of justice. and when juri~:~diction is invoked but one body can exercise it. In And the Senator from New Jersey, with a heart that ever beats other words, we have but one jurisdiction with sole power to present, responsive to the highest moral impulses, feeling and seeing the great and the one court having sole and exclusive jurisdiction to hear and wrong which would follow the rule that resignation after trial and determine. immediately preceding sentence could defeat ,jurisdiction, has at- And now, having the agencies prescribed or the power given, rather tempted to find a middle ground. But I submit just here that there by enumeration than by definition, we may remark, (and this is true is no middle ground. He cannot find rest for his feet upon any such of almost the entire Constitution.) we naturally inquire for 1vhat may theory. Indeed his argument rests, he will allow me to say, more in the Honse impeach and who is liable to the process; and when we theory than in logic. If only t,hose in office can be impeached, be- have answered these inquiries we have at the same time answered cause removal is declared in all cases to be a part of the penalty, then who and what the Senate may try; for I assume that tbe Senate may the logic is inexorable and not to be avoided that they must be so at and (perhaps) must try such persons and for those matters which the the time the stmterwe is p1·mwunced. You cannot decapitate a•headless Honse may constitutionally present. trunk, whether the head was off a moment or a year before yon came Tbe first inquiry, for what offenses maythisjuris(liction be invoke(l to the execution. or for 1vhat may the proper persons or officers be prosecuted by im- But returning from this digression, I remark that to the argument peachment, is not very material, I grant, to the matter now before drawn from such consequences it is anRwoced, grant the premises, us, since there is no point made, thus far at least, that the matters yet one liable to impeachment may be indicted and tried in the judi- charged in the articles exhibited are not impeachable under the Con- cial courts, aml that if he escapes the sentence of the impeachment stitution. triers and courts, be must still confront the greater and more inex- We have, then, the only proper body setting on foot this impeach- orable judgment of a great people, who, while they judge in mercy, ment; this appropriate power bas made in due form its complaint to love that which is politically just; and that neither resignations nor the proper court and for or of a matter for which the defendant is forms nor pleas nor judgments of Senates can control or mislead this amenable to the penalties provided by the Constitution, unless by gmndest of inquests. On the other hand, if those once in office ancl his 1·esignation that liability no longer continues. now out can be impeached, if tbis is the meaning of the Constitu- Then who are liable 7 I answer, clearly not the private citizen. tion, then in alarm it is said only the grave can bar such prosecu- By this I mean that not every citizen of the land may be impeached. tions; and, too, that at each turn of the political wheel in this Gov- The tie of allegiance which holds or binds the citizen to the Govern- ernment, where elections are frequent and the people's will not the ment and to his duties is to be kept in full force and by all proper most stable, those displaced may be at the mercy of an exultant coustitntional and legal means in this country as in England. Hut and bitterly mali6rnant triumphant majority. To this it is answered, this rule, as I regard, of a.t least the earlier days of. the common law, that guilt can only be found by the action of both Houses, the Sen- that all citizens or every subject might by impeachment be held to ate only being allowed to so declare by a two-thirds vote; and that these obligations and punished for their violation, is not the rule of is it not to be presumed that a power so great and so tremendous this country. Even iu the States where we speak of t.he common will be invoked except in cases c·l early and justly calling it into ex- law obtaining, we do not mean all of it, but only such parts as arE\ ercise. And thus I might at much greater length state the argu- not changed by statute, and such also as are consistent with the spirit ments based upon the supposed consequences of adopting this view and genius of onr institutions and the habits and manners of our peo- TRIAL OF WILLIAM W. BELKNAP. 95 ple. This preroga.tive, or power, or right to impeach the private citi- a pa.r t of the punishment in all ca-ses. In the first place, I think the zen because of infidelity to his obligations to the Government, or for connection in which this last provision in relation to removal is found any crime or misdemeanor, never was contemplated by our Constitu- is of no little significance as bearing upon this quO:Stion. I find the tion as continuing or obtaining, and is no part of the common law of grant of power to impeach in that portion of the Constitution which this country or of impeachment. For it was no part of the well- defines and limit-s legislative powers and duties. I find in the same sett.led parliamentary or common law when the Constitution wa-s place the power given and the tribunal named to try the impea~hment. framed, and this its framers knew ; nor did they ever intend to go so I find there, too, at least some rules of practice and a limitation of far, as is plain from the Constitution itself and the whole frame-work the punishment or of the consequences to follow conviction in such of the Government. eases. Now, if having sa:id this much it had stopped, it would scarcely If citizens, as such, for offenses committed while citizens, are not be claimed that removal from office was in all cases to be necessa1·ily a impeachable, then who are f part of the penalty. Neither do I think would it have been insisted This question the Constitution, I admit, does not answer in words. thus far that only those in office at the t.i me of conviction were amena- We are left to deduce its meaning, in this respect, largely from its ble to impeachment. For if I had found theso or like provisions in implications and more especially and almost conclusively from the a statute, I should never have thought, I confess, for a moment tha.t law as it stood before or at the time of its adoption, rather than from liability depended upon the official status of the person at the time of any positive command. It does not say that civil officers shall only the trial, but rather at the time of the conunission of the act with which be impeached while in office. It does not say they shall be liable while he was charged. in office and for a limited period after they shall either voluntarily But it is said (and I may notice this point here as well as elsewhere) lay down their trust or after their terms expire, as in some of the that if those out of office were liable to impeachment, why did not States. Nor does it say in words that they shall be subject to these the Constitution say soT Ah, .Mr. President, I think this may well be great prosecutions after they cease to be officers. All we find is this: answered in two ways: First, those who had gone ont -of office, all tvill In the third section of the first article (from which I ha.ve already admit, were liable to impeachment for acts while in office by the pm·lia- quoted and which I here set out in full the better to se~ the connec- 1n,cntary law of England. It was never held there that impeachment tion of the entire illnguage) we have this: · was confined to those in office at the time of their presentment. Now, The Senate shall have the sole power to try all impeachments. When sitting for is it not fair and legitimate to assume that the framers of the Consti- that purpose they shall be on oath or affirmation. When the President of the United tution knew this, acted upon this assumption, and therefore intended States is tried, the Chief Justice shall preside: and no person shall be convicted that those who had gone out, as well as those in, were amenable to withouttbe concurrence of two-thirds of the members present. .rudgmcnt in cases of impeachment ehall not extend further tbnn to removal from snob prosecution Y And if so, may I not, in the second pla.ce, inquire . office, and disqualification to hold and enjoy any office of honor, trust, or profit with the utmost consistency and with next to unanswerable force, that under tho United States: but the party convicted shallneve1iheless be liable and if the authors of the Constitution, with this kn.owledge befm·e tltmn, in- subject to indictment, trial, judgment and punishment, according to law. tended to include only those in office, why did they not s::ty so f It was All the provisions thus far quoted, it will be observed~ a.re found in very easy if they intended it to say "while in office," or use some like the first article of the Constitution, which provides for the law-mak- apt words to express their. meaning, and tbe1·eby change the r16le as it ing power and defines or prescribes its powers and duties. In the then obtained, as all admit, in England and elsewhere. next article, relating to the Executive, and in its second section, we But to return. The Constitution, in th:.tt part setting up the legis- find that he is given "power to grant 1·eprieves and pardons for of- lative or law-making bra.nch of the Government, finished or concluded, fenses against the United States, except in cases of impeachment;" as I have said, aJl that seemed to be necessary on the subject of pros- and section 4 of the same article declares that- ecutions and trials of impeachment. Then it turned to the work of The President, Vice-President and all civil officers of the United States, shall be setting up the executive ma.cbinery, and said that he, the Executive, removed from office on impeachment for, and conviction of, treason, bribery, or shall have certain powers, and, among others, to be " Commander-in- other high crimes and misdemeanors. Chief ,. * ,. ofthemilitiaoftheseveralStates,"butnotuntil"ca.lled And thus we have all the constitutional provisions which, as far as into the actual service of the United States;" to "require the opiniori I can see, bear upon the question as to ·who is liable to impeachment. * * 10 of the principal officer in each of the Executive Departments," It will be observed that the provisions of the Constitution assumed but not unless the subject thereof related" to the duties of their re- rather than declared that any one should be liable to impeachment. spective offices;" to" grant reprieves and pardons for offenses,'' .. • · » For the Constitution does not say that the President and other civil but not " in ca-ses of impeachment ; " and so as to other powers and officers shall be lia.ble to impea.chment for the o.ftenses named, bu~ their exceptions. But for the last exception, specially named, he rather assuming such liability, and seeing that the power to impeach could have pardoned or reprieved in impea.chment cases as in the case hacl. already been given, it says that when they are impeached and of all other offenses against the United Stat-es. But that is in no sense convicted of these offenses they shall be removed. It assumes the con- a limitation or the semblance of a Nmitation, nor does it seem to indi- clusion, in other words, that they may be impeached, and applies or cate the least intention to limit or restrict the grant of power already declares certain consequences which are t.o follow. I deny tha.t this given, in its appropriate pla.ce, over the matter of impeachment. section confers any power to impeach, much less that it is the oaly And the same reasoning applies to the maio section relied upon in part of the Constitution conferring this power. I have already de- this connection. The second a.rticle, after prescribing the manner of duced this power from other and unambiguous provisions of the in- electing the President and Vice-President, their tenure of office, what strument. If there was nothing else than this section, I think it Congress might do by law in ·providing for cases of removal, disa- would be exceedingly difficult t,~ find power to impeach, for we would bility, &c., of both, and that the person succeeding to the office of be without a tribunal with power to present or power to hear. If President under such law should hold until the disability should be this was the sole source of power, the da.nger of exercising from mere removed or a President elected, and giving to the Executive the irnpli.cation a prerogative so high, and fraught with consequences so power to appoint judges, ambassadors, &c., then, in it-s last section. great, would be urged upon us with much propriety, and I must say ( 4, the one quoted,) apparently out of abundant caution, and to avoid not a little force. And it is passing strange to me that any one should the possible construction tha.t these officers mu,JJt, in virtue of wha.t depict the great danger in extending the implications of the Consti- it had before declared, at all events and in a,ny contmgency hold for tution, the necessity of looking for an express grant before exercising the terms named, it wa-s declared that they and all civil officers shottul a power, and still rest the exercise of this high prerogative upon a be t•emoved from office on impeachment and conviction of the offenses section which assumes but does not grant it. named. But how does tha.t limit the power to present and try im- But it is argued that as removal must be and is declared by the peachments before given or the persons to be impeached 1 T~is sec- Constitution a part of the penalty following the trial and conviction tion, a-s before shown, contains no grant of power on this subject. It in all cases-that as this is logically as well as practically impossible is a-s if all the other sections on the subject of impeachment and thoso of enforcement in one out of office, therefore only those who continue governing the tenure of office of civil officers had been collated, and in office to the time of their presentment, if not of sentence, a.re liable then at the close it had been said: "But all civil officers shall be re- to this proceeding. In my opinion tl;le pt•oposition as thus broadly moved from office when impeached and tried for treason," &c. stat.ed, or indeed however stated, assumes too much, and loses sight And it is not permitted to limit a grant clearly and expressly given of other and most materia.} parts of the Constitution. over a genera.l subject by a supposed limitation ingrafted, and only I do not believe that removal from office is necessarily a part of the to be supported by the most blind and indefinite implication. There punishment in all ca.ses. It is in cases where it can be applied, and is a st.ate of case, it will be seen at once, to.,which this section ca.n not otherwise. I grant, too, that if removal was the only pena.lty, or apply in a.ll its force a.nd with the fullest meaning, without invoking if the Constitution contemplated that in all ca~Ses it should be a part its language to limit and restrain all the other sections and provis- of the penalty, I should esteem there was but little room for argu- ions quoted. If this is so, then it is my plain duty to so apply it and ment in favor of the jurisdiction when the officer had resigned; for I have all the provisions stand. I must not find conflict if I can by fair do not agree with the proposition that inability to enforce the order construction help it. That construction is always to be preferred of a court, as applied to such a question, is not to be accepted as a and, indeed, adopted which will permit all the provisions of a stat- fair and proper test of jurisdiction. The Constitution no more than ute, and especially a constitution, to be of force rather than that the law requires or exacts vain or foolish things, and to sa.y that the which will nullify any. I accept and treat this section ( 4, article 3) Constitution expected or onlainell tha.t we should go through the as a simple rule as to what shall be done in cases of impeachment and farce of inquiring whether we ought to visit a punishment upon an conviction of those in office and to remove any doubt as to their right offender which for any cause we no longer lla.ve the power to inflict to continue to exercise their trusts a,fter their conviction. It does would be illogical in the extreme, and, as I think, in the face of all not at all impress me that it confines impeachment to those in office ' rules of any value or weight in judicial proceedings. at the tim.e of their trial and oonvicti..on.. The language used in connec- But, as already stated, I do not believe that removal is necessarily tion with the other sections is not different ft·om that fount! in num- 96 TRIAL OF WILLIAM W. BELKNAP. berless statutes providing for the punishment of official misconduct These clauses confer upon the Senate the sole power and jurisdic- and under which I never suppo ed, nor can I think any one ever did, tion to try all impeachments, limiting only the power of judgment. that the official must continue in office in order to incur their penal- Here it is important to ascertain what is meant by impeachment. ties. It is not defined in the Constitution, and we must necessarily look I am not unmindful that the Constitution(article 1, section 3) says elsewhere to learn its meaning. It is a technical legal term, well un- that " where the President of the United States is tried, the Chief derstood in the English common and parliamentary law, a.nd to that Justice shall preside;" and that from this it is argued that this offi- law, it is agreed by all, we must look for its meaning and use. Ac- cer can only be impeached when in office, for it is asked, If he is out cording to that law, it implies a method of accusation of official crime of office shall the Chief Justice preside f I answer, certainly not. The by which the House of Commons in England preferred charges of reason of the provision is clear enough, not doubted by any one; and crime against some person who, at the time of thfl commission of such why shall we attempt to warp or extend its meaning for the purpose crime, sustained some official relation to the government before the of limiting a nece ary power, given for wise and necessary purposes House of Lords. The House of Commons had the right and power to by the Constitution f . accuse any person who had been guilty of crime while in office under Mr. President, the Constitution, held up by its four corners and the government of such <1rime before the House of Lords, and the considered as a whole, must receive at our hands a reasonable con- latter had the right and power to try and acquit or convict the ac- struction. We must not lose sight of the objects and purposes for cused and award judgment in its discretion. It was not necessary which the powers therein given were conferred. As wa.s said by that the person so accused should be in office at the time of impeach- Judge Story, that construction'' should be adopted which is most con- ment; but it was only necessary that such person should have been sonant with the apparent objects and intent of the Constitution; that in office at the time of the perpetration of the crime in order to raise which will ~ve efficacy and force as a government, rather .than that the jurisdiction of the court of impeachment. ' Perhaps, in ancient .which will Impair its operations and reduce it to a state of imbecil- times, the Honse of Lords may have had, or exercised arbitrarily, a ity; * * * the exposition should have a fair and just latitude, so more extensive jurisdiction in matters of impeachment, bnt the En- as on the one hand to avoid obvious mischief and on the other hand glish law was a.s I have stated it to be at and for a long while be- to promote the public good." It is a charter of life, not of death, to fore the time of the formation of our Constitution. the people, their government, and their interests. Purity in the dis- This definition of impeachment being true, then the clauses of th~ charge of official duty and the perpetual exclusion of bad men from Constitution just cited provide certainly that the Honse of Repre- all public trusts are quite as essential to this life of the nation as that sentatives, like the House of Commons in England, have the unquali- some defiant little official shall be removed froni a trust which he has fied power to impeach-that is, to a~cuse-any person of crime per- disgraced. petrated while such person held office under the United States be- Under this rule, I think, the construction stated is most clearly to fore the Senate, and the Senate, like the Honse of Lords in England, be sustained. Because of this, and because I know, as we all do, as have the power to hear, try, and acquit or convict such person so ac- already stated, that neither in England nor elsewhere, prior to the cused, and award judgment. But the power of judgment is limited; a-doption of the Constitution, was impeachment ever confined to those it "shall not extend further than to removal from office, and disqua.li- in office at the time of their trial and oonvictihould control his snit. This of course Opiaion of ltlr. Hewe, was a legal necessity. There was no law extant declaring what was Delivered May 19, 1876. or was not impeachable conduct, or what penalties might or might not be inflicted upon conviction. Mr. HOWE. Mr. President, the pending debate has developed two The word impeachment was scarcely known to the English Ian- very different theories touching the remedy of impeachment as pro- guage. The thing itself was wholly -unknown to the English polity. vided by the Constitution of the United States. Some Senators main- Of course there was but one rule for.the Commons to follow in framing tain that the Constitution adopts the remedy known to the parlia- their indictments or for the Peers to follow in giving · judgments. mentary law of England, subject only to such limitations as are That rule wa~ prescribed by the humor of the times. Accordingly, expressly prescribed by that instrument; while others hold that our in some COllllts the defendant was accusPd of misconduct in England. Con titution borrowed nothing but the name of the remedy from En- In another of misconduct in France. His own conduct was arraigned gli. h juri prudence, and that it confers upon the two Houses of Con- in one count, and the conduct of his officers in another. The embez- gres no power in impeachment any more than in legislation not ex- zlement of military fLmds was joined with the loss of a military pres Iy grant-ed. On one side it is argued that Congress may do by post. It was a st,range event. A suitor, before unknown, appeared impeachment whatever the British Parliament may do, unless pro- in a. court before unheared of to demand the infliction of penalties hibited by some clause of our fundamental law. On the other hand, prescribed by no law, upon conduct prohibited by no statute, upon it is contended that Congress can do nothing by impeachment, or any allegations sustained by no proof. Prosecutor, tribunal, crime, and other way, unless expressly authorized by the terms of that law. punishment were each and all but the suggestion of the hour. The In my own judgment the English remedy of impeachment never historian says: ouo-ht to have existed anywhere, and never was transplanted into The said lord. answered every objection, as it would seem by the record, and th~ country. I therefore beg leave to submit briefly a view of that nry well voiU.ed them in open Parliament. stran~e remedy known in the English law as impeachment. Nevertheless he was removed from all employments, committed to The British constitution is of volcanic formation. In it-s succes- the Marshalsea, a.necl shall be liable to impeachment. they understood that this clause did more than define the prosecutor, It says that they shall be removed from office on impeachment. The these differences of opinion would have appeared before the clause other is the more natural form of expre ion, and is doubtle the form was agreed to. Fourth, such a construction is not in harmony with the convention would have used if its method of draftin~ the Con- the received interpretation of other and kindred clauses of the Con- stitution had been those I have employed in interpreting 1t. If tllo stitution. For instance, the first section declares that- draughtsman had reflected a-s he sat down to draft section 4 that All legislative powers herein granted shall be vested in a. Congress. the prosecutor and court and judgment had already been provided That never was understood as a grant of power to pass any par- for and that he had the single purpo8e to provide who should be lia- ticubr law, or as defining legislative power at all. Other and apter ble to impeachment, doubtless be would have employed some such cJauses were employed for that purpose. So the first section of arti- ]anguage as I have used. But such was not the course in prepariug cle 2 declares : the instrument; on the contrary, a careful examination of the de- The executive power shall be vested in a President. bates of the convention will discover the fact that until nearly the close of the session impeachment was considered merely as a method But no lawyer understands those words as a definition of executive of removi.ug the President from office. power. So the first section of article 3 declares: The convention opened on the 14th of May. After nearly three The judicial power of the United States shall be vested in one Supreme Court, &c. months had been expended in deliberation no one had suggested the No f)De ever ~nderstood tl?-.~t ol~use as giving jurisdiction to any application of impeachment to any one but the President. On the 6th t 'D.l' #" 0 ~ ? < TRIAL OF WILLlt\_!:1 W. BELKNAP. • 99 ~~ d . .,.() . ~ of August Mr. Rutledge reported from the so-called committee of de- of Representatives is clothed with the common-law powers of liD- tail a connected scheme for a constitution, presenting in due form all peachment, the fourth secti6n does not abridge those powers. that the convention bad agreed to up to that time. That scheme pro- Is it supposed that the office of the fourth section is to author~e ,vided,as the Constitution now pro:rides, tliat the House of Represent- the removal of civil officersf Was ever a civil officer convicted on ati ves shall have the sole power of Impeachment. But the only officer impeachment before the House of Lords and not removed T or person exposed to impeachment was the President of the United Was it the office of the fourth section to extend impeachment to States. In the article crea,t ing the executive office it provided that the hAad of the executive dep:J.rtment f Why, the records of the con- he should be removed from his office by impeachment. It provided vention show that impea-chment against the President; had been pro- for the impeachment of no one else, and therefore they made the Su- vided in the frame of the Constitution for weeks before the fourth preme Court, instead of the Senate, the tribunal to try impeachments. section was thought of. It was not until the 8th of September, just one week before the close Unless, therefore, we hold the fourth section to be the clause wl1ich of the convention, that it was proposed to extend impeachment to any confers jurisdiction over parties and causes, it supplies no purpose one except the President. On the morning of t.hatday all that had been whatever in the instrument. agreed upon the subJect of impeachment waa that the House should Against whom, then, does the fourth section give the remedy by im- ha.ve the sole power to prosecute; that the court should try; that peachment f Clearly -against those enumerated in it, and not against jndgmeutshouldextend only to removal or disqualification; that trea- those not enumerated. Against the President and the Vice-Presi- son and bribery shoulcl be the only causes for impeachment, and the dent, because they are expressly named, and against all civil officers President the only subject of impea.chrnent. On that day Mr. Mason because they are expressly named. But not against military officers; moved to add after "treason and bribery" the words or" maladmin- not against naval officers; not against church officers; not against istration." Mr. Madison objected that the term was t.oo vague. Where- officers of a municipal or private corporation or of a literary society; upon Colonel l\1ason withdrew maladministration and substituted lea.st of n.ll a.gainst such as are not officers o.f any possible descrip- '' or other high crimes and misdemeanors agajnst the state." That was tion. agreed to. Subsequently, on the same day, "United States" was sub- Bnt when may impeachment he preferred against a cit'il officer 1 It · stituted for State. Then that clause of the tenth article relating to seems to me, if we were not more learned than sensible we would the President stood: conclude at once that the best time to impeach au officer is when he He shall be removed from his office on impeachment by the House of Represent- is an officer, and not when he is a priest, a. parson, or a. private citi- .atives and conviction in the Supreme Court of treason, bribery, or other high crimes zen. and misdemeanors again.st the United States. Yet it is argued strenuously that if a disbursing officer embezzles btill impeachment was regarded merely as an incident of the presi- the public fund , he may be punished for the act after he has left the dential office. Th~n a new clause was moved in the following words: office. Undoubtedly he may. And we are asked why he. may not The Vice-President 'lnd other civil officers of the United Sta.tea shall be removed then be impeached also, after be has left the office? For the plai u from office by impeachment and conviction aforesaid. and sufficient reason that the two remedies have totally distinct aims, 'l'hat was agreed to. Then the convention transferred the power may be therefore applied at rlifferent times, though they may be to try impeachment from the Supreme Court to the Senate, and pro- both applied to the inme person. One remedy is given agaiUBt a vided that a vote of two-thirds shall be required to convict. That crime and the other ag~inst a position; one is for the punishment of t.ompleted the plan for impeachment. That da.y 's work virtually an oifender, the ·o ther for the pmification of the public service; one completed the Constitution. It was Saturday. On Monday follow- is meant to reform a cri.miual, the other is meant to reform an office. ing some motions · to reconsider were ma.de. Some ge:;aral debate Impeachment under·our Constitution is a remedy whereby one who was indulged in, and the plan was referred to the commutee on style is proved to be unfit to hold office ma.y be removed from it. It is anu arrangement. That committee very naturally left the power to true, disqualification may be an incident of jndgmeut. Qu.o warranto impeach to stand where it stood, among the powers of the House. It is a remedy by which one who has unlawfully intruded into an office transferred the power to try impeachments from the article enumerat- may be removed from it. Costs are an incident to that remedy. But in g judicia1powers to that section of the first article which treats of the it is well understood that quo ·wan·anto can only be prosecuted a.ga i nst composition and prerogatives of the Senate. It transferred the cl3.use one who is in the office at the time of service. If be vacate the office making the President impeachable from thn.t section which enumer- before commencement of the proceedings, the suit cannot be insti- ates the attributes of the presidential office to that provision which tuted for the purpose of recovering costs. So different remedies are makes the Vice-President and other civil officers removable, and given against him who unlawfully enters upon rea.l estate. Trespass made that section 4 of the Constitution. Section 4, therefore, is com- is given to punish the wrong-doer and to compensate the party in- pounded of two distinct ideas or plans, adopted by the convention at jured. That can be prosecuted against the wrong-doer after be has two clifferent times. One is the plan for removing the President from a.bandoncd possession. Ejectment is a remedy provided for removing office, and the other, evolved long afterward, is the plan for employ- the unlawful intruder from poSRession. That, bomwer, can only be ing impeachment. When giving expression to the first idea, it was prosecuted agaim;t the party who is in possession at the time of the most natural and most appropriate to say he shall be removed on commencement of the suit. So replevin is a remedy given against impeachment. And having that formula right before them when one who unlawfully detains the goous of another; bnt it can only be giving ex:pression to the second idea, it was surely more natural, if prosecuted against him who is in possession of the goods. If he not so appropriate, to use it for that purpose. But after all, when abandon possession before snit is commenced, replevin will not lie; the statutt· says that one convicted of murder shall be hanged by the though other forms of procedure a1·e provided by law to redress the neck until he is dead, and says the same of no other offender, it is injury done to the lawful owner. quite as clear a limitation of the power of the gallows a.s if t.he law Having thus stated my own interpret.ation of the different consti- said "hanging shaH be inflicted only on the murderer." I cannot tutional provisions touching impeachment, I proceed briefly to notice avoid the conclusion, therefore, that the uses of impeachment are what others have said upon this subject. As before remarked, there limited in the fourth section of the second article, so far as parties is very little upon the point we are discussing which can be called anu offenses are concerned. It may be employed against any party authority. Mr. Rawle alludes to and dismisses the subject with this and aga~nst any offense there named, but against no other. brief remark: It bas been ably -argued that if possible a constitution or a statute It is obvious that the only persons liable to impeachment are those who are or should be so construed as to give some effect to every part of it. have been in office. Within certain limits that rule of construction is a sound one. That opinion was advanced by Mr. Rawle with but very little con- The construction I have employed gives not merely some effect, but sideration of the subject, and is therefore entitled to but very little con- a distinct office, to every clause of the Constitution relating to im- sideration from us. AU we learn from it is that in the opinion of the peachment. One appoints the prosecutor. One appoints the umpire. commentator one who has been in office may be impeached if be has • One prescribes the judgment; and another defines the parties and left it. Evidently Mr. Rawle thought that the jurisdictional clause the cases. is not in the first article, but, as I have contended, is in the fourt.h sec- But if, on the contrary, we accept the last clause of the second sec- tion of the second article. tion of the first article ·as a jurisdictional cla.use, it will be impossible, No man who holds that under the first article the House of Repre- it seems to me, to give the slightest effect to one single syllable of the sentatives is clothed with the common-law powers of impeachment fourth section of the second article. The whole is absolutely with- will seriously insist that only those who are or who have been in office out meaning. Will it be said that the fourth section extends impeach- are liable to impeachment. And yet it has been intimated, and more ment to treason, bribery, or other high crimes and misdemea.nors T than intimated in the course of this debate, that in England the Why those are the very words upon which the Commons of England House of Commons could impeach only those who were in office or have impeached British subjects for five hundred years. If the first who had been in office. article authorizes t.he House to impeach for auy offense, it authorizes There is no authority for asserting such a limitation. Impeach· the impeachment for just these offenses and no others. These words ment, aa we have already seen, is in England not a power granted to embrace all the offenses againstwhich impeachment lies in England. the House of Commons, but a power assumed to be inherent in it. Will it be said that the fourth section extends the remedy to civil They impeach, not because any higher power has licensed them to officers! Why, when was it doubted that a common-law impeach- impeach, but because they choose to impeach. Of course they impeach ment lay against a civil officer 7 If under the first article the House all whom they choose to impeach. If a statute could be found de- could impeach anybody, is it not and was it not certain it could im- claring th.a t only those who were or bad been in office could be im- peach a civil officer T Will it be said that the fourth section excludes peac4ed, of course that would be a limit upon the power of impP-ach- military and naval officers from impeachment? But it does not .ex- mOJ)t. No such statute ha-s been fotmcl. No such statute can be elude military or naval officers. If under the first a~tjc~~ t4e ·Rouse found. Or, if a case could be produced when the house bad refused 100 TRIAL OF WILLIAM W. BELKNAP. to impeach because the party was only a private subject, that mi~ht before he is impeached. Tbat seems to be true. So also a murderer~ bo construed as a limitation upon the common-ln.w power of Im- not merely after accu ation, but after conviction, can escape hang- peachment. No such case has been adduced. On the contrary, Mr. ing by cutting his own throat. There are two ways by which the Tomlins expressly declares that- citizen can escape impeachment: one is by resigning office before the A peer may be impeached for any crime. A commoner cannot, however, be im- proceeding is commenced, the other is by never taking office. I am peached before the Lords for any capital offenst\, but only for high misdemeanors. not sure there are but these two. It seems to me better to leave tbe Edward Fitz Harris never held office. He was a papist. He was citizen these two chances. He must have both or neither. If the disqualified for holding office. But in 1&:!1 he was impeached by the first article gives to the House the dangerous power to impeach a House of Commons, and impeached for high treason. It is true the man because he has once been in office, it gives it the power to im- Lords threw out the impeachment, but not for the reason that Fitz peach him also because he is in danger of getting into office. One is Harris had not held office but because he was a commoner and was given as surely as the other. impeached for a capital offense. But even in that judgment the The rule of construction contended for by the managers clothes House of Commons did not concur. On the contrary they voted- these two Houses with the power to disqualify every man known to That this refusal of the Lords was -a denial of justico, a violation of the constitu- aspire to the Presidency or to any other office; and to do that upon tion of the Parliaments, and an obstruction to the further discovery of the Popish conviction of a.ny conduct which we deem to be a high crime a:od plot.-Kennet's HiJJtoryof England, volume3, pages 386,387; Hansard's Parliamen· misdemeanor, whether any law denounces it as such or not; and to IJJ,r]l Hi.sto·ry, volume 4, page 1263. do that reganliess of the question whether the· aspirant be now in a Upon the authority of the case of FitzHarris, Woodeson says: civil or a military office, or in no office at all. All tho Iring's subjects are impeachable in Parliament bot with this distinction: But again we are allmonished that if a corrnpt official can escape that the peer may be so accu ed before his peers of any crime; the commoner impeachment by resigning his office, be may tiJereby escape part of (though perhaps it was formerly otherwise) can now be charged with misdemean- the consequences of his crime. He may avoid disqualification. And ors only, and not with any capital offense. · it seems to be insisted that the well-being of the Republic depends Mr. Bouvier clearly indicates the opinion that the jurisdictional lar~ely, if not mainly, upon a vigorous administration of disqualifi- cla.use of the Constitution is in the fourth section of the second ar- cations for holding office. I am less impressed by this argument than ticle. He says : perhaps I should be but for two facts: one is that I have been o dili- 'fhe persons liable to impeachment are the President, Vice-President, and all civil gently instructed for these many years past that not merely the wel- officers of the United States. fare but the existence of the Republic depended not upon imposing • He does not intimate that any one else can be impeached. .Bnt he disqualifications for office, but upon removing them ; the other is, does not express an opinion as to whether the impeachment must be that it by no means follows that a delinquent official who avoids an im- commenced while the defendent is still in office. peachment thereby avoids disqualification also. '!"'hat depends upon In 1794 William Blount was impeached by the House of Represent- the nature of the offense 'Yith which he is charged. If he is accn~ed ati ves for misconduct while Senator from the State of Tennessee. of an offense for which the law has prescribed disqualification, then Blount pleaded, first, that he had cea ed to be Senator from Tennes 'ee; he does not escape that infliction bye caping impeachment. Then, and secondly, that a Senator was not a civil officer within the mean- although impeachment may not reach him, other criminal process ing of our Constitution. To that plea the managers on the part of will. The Senate may not try him. The courts can. And that sen- the House demurred. Thus the issue was clearly presented: tence of disqualification which the Senate does not pronounce the Can one not a civil officer under our Constitution be impeached; and, if not, is a courts can inflict. When, therefore, this Senate strain~ the office of Senator a civil officer 1 construction in order to take jurisdiction of one not in office, for the These questions were elaborately argued by Mr. Ingersoll and A. mere purpose of disqualifying him from ever entering office, it does J. Dallas for the defendant, and by Mr~ Bayard and Mr. Harper on so for one or the other of two reasons: either because the Senate behalf of the managers. The debate by the Senate was held with desires to disqualify for conduct against which the law has not pTe- closed doors. What was there argued we do not know, hut what the scribed disqualification, or because it would disqualify for conduct Senate deciention which framed our Constitution never That resolution was confirmed by a vote of 14 to 11. And there shared. That convention intrusted to the con.rts of law enormous is an express judgment qnalifi- tion, if pronounced, would fall quite as much upon the people as upon cation might still be pronounced, the lnn,!!llage of the Constitution may crcato some the delinquent. At the same time that i.t ilisqualified the delinquent llonbt whether it can he ,pronounced wiihout lleing coupled with a removal from from returning to office it would disqualify the people from return- office. * * * There 1 also much foroo in the remark that an impeachment is a. rroceeding purely of a political nature. It is not so much desi~ed to punish an ing him to office. · offl·nder as to secure the State against any gross official misdemeinors. It touches And, in couclusion, I submit that it is hardly wort.h while for t.he neither bis person nor his property, but simply divests him of his political capac- Senate -t o assume a jurisdiction which at best is so doubtful, which ity. (Commentaries on the Constitution,§ SOJ.) never ha-S been asserted which has so oft.en been donbted or denil'd, It may be said of this opinion that it does not amount to the dig- for the mere purpose ot1 administering a penalty which mnst fall at' nity of an authority; that Judge Story had no case before him on heavily upon the innocent people as upon the guilty individual. which to give judgment, and that he had not the aid of argument by counsel:- It is true, the commentator had no a~tnal ca..se before him. It is, however, equallytrna that he had all possible cases before him. H~ saw the question might arise. He considered it as a prac- tica,l question. It is true, he was not aided by the argument of coun- Opinion of llir. fJhristiancy, sel on either side; but it is equally true that he himself argued it on both sides; and when Jnuge Story had argued a q11estion on one side Delivered May 19, 1876. or the other he usually lett little for argument to do by way of eluci- Mr. CHRISTIANCY. :Mr. President, I do not propose to enter into d>tting it. any elabomte argument nor to make a needless display of 1earni og- uy Dnt it is s:tid that if impeachment will lie only against one in office, the citation of authorities, (very few of which can have any ilirect then a corrupt official can escape impeachment by resigning his office bearing upon the case;) but simply to express my opinion upon the TRIAL OF WILLIA~! W. BELKNAP. 101 questions involved, without any argument not actually necessary to had been publicly announced to the House before the first st.ep had render the grounds of my conclusions intelligible; stating results been taken ·by the House with a view to impeachment, could be aft- rather than detai Is. erward impeached, though on the same· day, for prior official filS- I may also say here, that in several matters which I shall discuss conduct in that office, and is amenable to trial for such acts by the I have been anticipated by the Senat.o r from New York [Mr. CONK- Senate. I state the question in this way, because the official record LING] and the Senator from Wisconsin, [Mr. HOWE.] _:My remarks, of the Honse, of which we are bound to take notice, and upon which however, had been prepared before either of those Senators had the vote for impeachment rests, shows this fact, that prior to the spoken and without knowing their views. I wrote nothing untiL I first step taken by the House looking to impeachment, his resigna- had heard the remarks of the Senator from Vermont on the day he tion was announced to the House, which met only at noon, as hav- first spoke, and completed my own opinion ou the evening o~ the day ing been· made and accepted at 10.20 of that day. after he had closed, except an allusion to the argument of the Sena- For convenience I shall call this a question of jurisdiction, thou~h tor from Iowa, [Mr. WRIGHT.] it in fa.ct is more thau this, a.s it includes the question whether tne But to proceed. This is not a mere ordinary case in a court of law, penalty of disqualification is one to which he can be subjected or is wh~re the result is to be affected by mere forms, technicalities, or at all liable. The question thus presented, like all other questions at fic tions; but a case of impeachment-a great state trial-an excep- the present stage of the case, is a clear, naked, dry question of con- tional and extraordin~ry vroceeding, beforo the Senate of the United stitutional law, to be decided, not by appeals to prejudice or passion, States, in the last.quarter of the nineteenth century. A.nd upon such nor by any consideration peculiar to the defendant personally, nor by a trial, before such a tribunal, and at such a time~ if we flid not dis- the consideration of the enormity of his particular offense, (which I regard mere forms and technicalities and all arbitrary fictions con- would not extenuate,) nor of the corruption or degeneracy of the trary to the acknowledged facts; if we did not look through and be- times, (which, though bad enough, is not unprecedented in the his- yond all these to the substance of things, to the actual merits of the tory of other countries, aud even of this,) nor by what we may any of questions arising upon the facts as they are known and admitted to us think the Constitution ought to r.ave provided as a remedy for be, we should deserve the scorn and derision of the American people. such cases, but simply and solely by the provisions of the Uonstitn- A.nd, on the other hand, if we should not give to the respondent all tion which our fathers saw fit to make and did mako in reference to the substantia.! benefits of the great principles of the common law in impeachments. Our province is not now to make a constitution to criminal cases and the protection of every shield which that law, meet our own nctions, but to interpret and administer that which has ameliorated and humanized as it has been by t.hb spirit of the age, been m:tde for us and which we are sworn to obey. A.s it is some- has thrown around a defendant on trial for a crime, we should eq nally times just as important to notice what is not, as what is, involved in deserve the execration of the nation and of the age in which we live. the question before the court for decision, it may be proper to say For although this is not, in the ordinary sense, a cnminal trial, bec.ause here that the question of jurisrliction in a case where an officer im- the ordinary punishment is not imposed and the respondent is left peached may have resio-ned after the vote of impeachment by the liable to be tJ;ied in the proper criminal court ancl to be there pun- House or after the at1;icfes are presented in the Senate, and therefore ished to the full extent of the punishment imposed by the statute for after the jurisdiction has attached, is not before us. This may, aud, the specific offense or oftEmscs charged, the judgment. of removalfrom as I am inclined to think, it would, rest upon different grounds. But office, with or wHhout disqualification to hold office, being, :18 I think, _it is enough for us to decide properly the questions before us, without imposed not for the purpose of punishing the offense as sucb, and for attempting to settle the law in all other ca~es which may hereafter the ordinary object of punishment, but for the :protection of the pub- a1·ise. It is quite obvious that when the resignation has taken place, lic against the danger of his continuance in the office whose t1·usts he as it did here, before the impeachment or any proceedings of the Honse has abused and a~ainst the risk to be incurred by being again placed to t.hat end, the redpondent, having alrea.dy ceased to be an officer, is in that or any-other civil office of the United States after his convic- no longer removable from office, and so much at least of the object of tion, and operating only incidentally as punishment upon the offonder; an impeachment has failed. The question, then, is narrowed down to yet the proceeding is, in a just and very high sense, a criminal trial for this: A.re we satisfied beyond a reasonable doubt that, though the those offenses, so far as they directly affect tho administration of the defendant is out of office, but liable to prosecution and the ordinary Government. A.nd by the Constitution itself the respondent must be punishment prescribed for his whole oftense in a court of law, it was "convicted" by the Senato of the offen es, or some offense, charged, nevertheless the intention of the Constitution that he should still be before any judgment can be pronounced against him ; and the Presi- li:J,ble to impeachment for the mere purpose of disqualifying him from dent llas the power to grant reprieves or pardons for" ofteuses against holding that or any other office of honor, trust, or profit under the the UnitedStatesexcept in casesofimpeachment.," (article 2,sect ion~,) United St.a.tes f though this conviction aud punishment are only for the merely po- Upon this precise question we have not the clirect authority of any litical aspects ·of the offense, and form no part of, aucl cannot be decided c!lse arising under the Constitution of the United Stat.es, pleaded in bar to, the punishment imposed by the statute upon the nor under the cons titution of any State, the case of Barnard not specific oftense when prcsecuted in the or«Unary manner by indict- falling sb:ictly within the principle, as he occupied the same office ment. without any interval between them, the termimttion of one term be- But. the removal from office, as well as the disqualification to hold ing the beginning of another, the office being still t.he same for the office, though: imposed upon conviction only UB a measure of preven-· whole period. Does a mau lo e his identity when he passes from his tion a_~ainst the possibility of fntUI·e mi'3cooduct in office, does inci- twenty-fourth to his twenty-fift,h yeart And is there any interval dentauy operate as a punishment, a punishment which to him may between l The only case in which the question ever aro e, even in- be as se.vero and even more infamous than would fo11ow a conviction cidentally, was Blount's case, in 1798 aucl 17<:!9. Blount was a Sen- in an ordinary court. It is, besides, in ordinary ca es and in the con- ator of the United States; ant!, as I 1·emember the c:tse, after the im- stitutional view, so far as it can operate as punishment, additional t.o peachment was voted by the Honse, and the House had impeached that which the statute may provide for the offen e when prosecuted him at the bar of t.he Senate, but before the articles of impt-ach- in an ordinary criminal court. And it makes no difference that un- ment were adopted or presented, the Senate proceeded to expel him der the part.icular statute charged in this case to be violated re- from that body. He was a Senator when impeached, and, though moval from office and disqualification to hold o~ce are imposed upon not so when the articles were presented, yet, so far as can be ascer- a conviction by indictment. In all onlinary cases of high crimes aud tained from the arguments of counsel-and unfortunately, as the misdemeanors such is not the case, (it being now confined to cases of Senators gave no opinions wllich have become public, the e argu- treason, accepting bribP;S by judges and by civil officers of the United ments and the final decision are all we can judge from-the pri.nci pal States,) and the Constitution not requiring, though it may possibly if not the only questions thought to be involved, or as I tbiuk really permit, statutes of this kind, it is clear that none of these cau affect involved, were whether a Senator wa-s a civil officer of the United the power or the nature of the impeachment, unless we can hold that Stateg," within the meanin~ of that clause in section 4, article 2 of CongreBB may alter the Constitutio-n. the Constitution, and whetner any but civil officers were impea.ch- Such being the nature ~rnd character of the proceeding by impeach- able; but it did not, in so many words, determine the questi(\u ment, we are bound by the well-settled principle of construction in whether a person out of office could be impeached for acts done in all courts, as well as by the nature of the question itself, to adopt a office, though, as l shall attempt to show, the whole decision was strict construction of the constitutional provisions establishing this based upon an expreBS ground wholly inconsistent with the idea that mode of proceeding. By this I do not mean that we are to adopt an such impeachment could be maintained after he bad ceased to holtl interpretation or construction contrary to what may clearly appear office;· for it was decided by a majority that he was not a civil offi- to our own minds to have been the intention of the convention which cer, and therefore could not be impeached. The form of the final framed, and of the people ho adopted it. But, unless clearly satis- resolution adopted, it is true, was such that some might possibly fied of the intention to include the case before us, or so long as we have voted for it on the ground that he was not such an officer at have any reasonable doubt that such was the intention, we should the time the articles were presented, because of his prior expulsion, decline the exercise of the power; while, if the question were one of though this is not at all probable. A.nd here it may be proper to say mere civil jurisdiction, we might perhaps properly enough weigh that the opinions expressed by counsel in that case and in some other conflicting probabilities, and sustain the jurisdiction if the probabil- cases, though gravely cited before us, are entitled to the same con- ities on that side seem to outweigh those upon the other, though sideration as the opinions of the counsel on either side in the present serious and reasonable doubts might remain whether such had been case, and no more. the act ual intention. Much reliance has been placed upon the fact, that in England, per- With these preliminary remarks, I proceed to inquire wliatis the sons out of office might be impeached for criminal conduct while main question in this case t It is simply whether Mr. Belknap, who they were in office. A.nd this is claimed to be conclusive, on the had resigned the offi.ce of Secretary of War, and whose resignation ground that the Constitution has a.dopted the proceeding by impeach- • 102 TRIAL OF WILLIAM W. BELKNAr. ment without defining it , as it has adopted t rial by.jury wit hout de- seiited and will pre ent those in favor of the power of i~pen chment fining it, and that we are therefore to resort t-o the meaning of the in this case; and it is sufficient for me to point out some of the con- term as understood by the English law. But if it were entiJ:ely true, siderations which lead my mind to the opposite conclusion. which I think it is not, that the Constitution has adopted impeach- How are we to ascert.ain the intention of the Constitution, and whose ment without defining it, wo should have to look to the English law intention is it which shall govern f It is the people of the Uni ted Sta tes only for the nature ~ud form of t~e proceeding, not to ascert~n, as_I who speak through this Constitution. It derives its force aud valid- think, the persons liable to be Impeached. And yet, even m th1s ity from theil: adoption and ratification. It is their intent and tl.Jeir mode of proceeding, my friend, the Senat.or from Vermont, has agreed meaning we are to seek: As we believe they must have undm tood fnlly with rue and strenuously argued, and the majority of the Sen- it, so we should interpret and obey it. It can make little differ nee ate have held, that we are not bound by the English precedents upon what any particular member or any mem hers of the convent.ion-lm- the question who should open and close the argument: and he has less it clearly appears to have been a majority-may have thought of treated the English precedents in that respect with the disapproba- the efi'ect of any particular provision. Some may have understood tion which they deserve. 'fhe facts, as I understand them, are that, and intended these provisions iu one way, some in another. orne by the English precedents-for we can hardly say by English law, may have voted for it with one object, others for an opposite 11111'- where all law waa set at defiance and a law made for each case as pose; but unless it clearly appears that a majority of the couven- passion, prejudice, or political partisan advantage might dictate-im- tion agreed in one and the same views, what they may have sai(l or peachment was not confined to those who were or had been in public thought is of very little importance, as it would not.have tmabled tile office, under the government, but extended to private citizens who people, had they had the debates before them, which (to any consid- had never been in office, and certainly, if they had but a collateral emble extent) they had not, to have determined the intention other- and indirect connection with a public office or trust, which, it has wise than we are ourselves compelled to do; and that is from the never until now been seriously claimed is or ever bas been theca e language used (in the Constitution) to e:x:.pre sit, understood in t.be under our Constitution--and certainly cannot be since the decision light of surrounding circumstances. If they looked to the consti- in Blount's case. By the English precedents it was the practice to tutions of the several States at the time, they wouJd see that npon inflict the whole punishment supposed to be due to the offense, and the question whether a man conlcl be impeached for official mis- without the restraint of any previous law or of any law but such as the conduct after he had ceased to be an officer, some State constitu- caprice, or passion or malice, or popular indignation might at the mo- tions had no provision on the subject. Some States, as Virginia a,nd ment demand. Such were some of the earlier cases, at lea~t in refer- Delaware, expressly permittee! this as to the chief executive of the ence to partie~:~, to modes of propeeding and punishment, which be- StaU,; while in at least two others, Massachusetts and New York, it came precedents; and we all know that whatever was once done in was, I think, very clear from the language of their constitutions that Engl~d in any ju:licial, quasi-judicial, or parliamentary proceeding, the impeachment could not be sustained after the offender was out of howenr awkwardly, unjustly, or unwisely done, was sure to be looked office. And they would also have discovered that the language in upon as the only proper mode of action in such cases, until the com- reference to impeachment adopted in the Constitution of the United mon sense orcommou humanity of the people forced the courts or the St.ates, was more exactly that of the constitutions of New York and Parliament out of the old ruts into, or towards, the pa,th of reason and Massachusetts than of any other State. And as the people of each humanity; an~ they have not even yet been driven into the path of State would naturally ha,ve been better acqua,inted with the const·i- eqnal ju tice in all things connected with the process of impeach- tution of their own State than that of any other; tho e in different ment. Many of the precdents in impeachment cases-like those in States might; possibly understand the same provisions differently. theil: ordinary criminal courts in former times, which denied counsel If we look to the debates before the people and tile State conven- or a copy of the indictment to a deft>ndant in the higher grades of tions, so far as they a.re preserved, we shaH find but little, merely spo- crimes, or, in capital cases, the privilege of ha,ving a witness sworn radic expre ions, sometimes one way and sometimes the other, and in his defense, and later, when allowed the privilege of having a wit- showing nothing like a settled, general popular opinion;· but as I ness sworn, if present, yet denied him a subprena. to compel the at- think, upon the whole, rather oppo ed to the idea of impeaching a tendance of his witness, and many other precedents in times when ma,n out of office. And certainly I think thi is thecae with tile an indictment or impeachm.ent was equivalent to a convictio:;-are series of papers called the Federalist, which probably had quite as precedents" more honored m th_e brea-ch than. the observanc~. much influence before the people as anything else. But look where But ~here waa one fea~e o.f Impeachm~nt rn England which does . we will onts1de of the language of the Constitution and we shall find no not enst under our Constitution, If that. IS to be const_rned as some snch unanimity or preponderance of opinion as to control that hu- have construed it here. The whole pnmshment to _which the party guage into the support of the jurisdiction in question. We are, then, was liable wasimp~s.ed by thejudgm~nt, or, at least, _1t was so treat-ed; driven, as the lleople of that day were driven, (for finding the iuten- and, however capnmous or ex~raordma.ry that puniSh~ent was, the tion,) to the only legitimate source for them and for us, the languarre convicti~n an~ punishm~nt on Impea~~ent were practically a. bar to employed to express their intention. And t u express my own opinign any prosecutiOn or .P~~shruent by rndi?tment. An~ they d~d not of that intention to be derived from the language of the Constitution violate the great prmmple that no man IS to be plllllshed twice for I cannot do better than to cite the views of Jntlfl'e Story in hi Com- the same offense, whi~b ~ould _be the case UJ?-der our C~nstitut~on if mentaries on the. Constitution, (third edit.ion, § 80~,) which, though 0 the judgment on conVIction by Impeachment Is to be co~tdered, many not intended to be given as a final or definite opinion, because the · proper sens~, punishment for the offense char~ed.. ~he 1mpe~chment precise question bad no~ yet been cleci(led, nevertheless shows the there was, m the full sense, for the purpose of cnmmal pumshment, result of his own reasomng; and his work shows that no man has and the whole of the punishment dne to the offense, a well as to get, ever examined the que tion more thoroughly. If the Madison Papers or keep, t~e offenderout.of office. And sue~ w~uld s~em to ha~·e been were not then pub1ished, the people in adopting the Constitution the case m Pennsylvama, under the c~nst.~tution of 1776,_ wh1ch has were as Ignorant of them as Judge Story, who says: "As it is de- been citecl here, and which the ConstitutiOn of the Umted States clared iu one clause of tbe Constitution t.hat jndfl'meut in cases of im- certainly ~id not adopt, as th_e S~nator from P~nnsylvania [Mr. W AL- peacunumt shall not extend flll'ther than remov~l from office and dis- LACE] clmms; for the ConstitutiOn of the Umted States does notal- qualification to hold any office of honor, trust, or profit under the low the punishment usually imposed by the ~tatute for. tho offense to Unite(l State ," and, in another clan, t\, that "the Pre ident, Vice- be impo ed at all as a consequence, o! on the tnal, ?f the tmpeach~ent, President, and an chriJ officers of the United State , sl1all be removed but leaves the party liable to be indwt_ed and pumshed for that. otlense from office on impeachment for, and conviction of, treason, bribery, or in the proper court; thus showing, as It seems tn me, that the only ob- other hifl'h crimes and misdemeanors," it wonld seem to follow t hat ject of the impeachmentwa>S to get the offi cer out of office, and! aft.er the :Senft.c on the conviction, were bound in all cases to enter a judg- his expulsion, to keep him out, though this may and does iumdent- ment of re:noval from office, though it has a discretion as to -inflicting allv operate as punishment to that extent. But, as suggested by the the punishment of disqualification. If, then, there most be a judg- Seiiator from Illinois, [Mr. LOGA.l~,] it is clear the framen; of the Con- ment of removal from office, it woulrity fense. (Art.icle4,,secti~n:3.) And the~ame mayals~ be said of several to try a delinquent for an impeachable offense, when the most impor- other offenses whlch might be the subJect both of Impeachment and tant object for which the remedy was given was no longer neces ary indictment; and it can hardly be claimed that Congress was to have or attainable. the right to alter the Constitut ion. (See article 1, sect.ion 8.) Again, Judge Story says,(§ 790,) in commenting upon the fourth In England impeachment was not founded upon, or in auy respect section of the second article: regulated by, any express provision of a constitution or statute. The question must therefore turn exclusively upon the intention to be From this clause it appears that the remedy by impeachment is strictly confined gat.hered from the several provisions of the Constitution upon the to civil officers o r the U nitetl States, includin '! t he P resi.lent anrl Vice- Presicl t>nt. subject of impeachment, which it must be admitted are not as clear tllat. In this r espect it th tfers matol'ially fr·om the law and practice of GrPat Britain In kingdom all the kin)!'a su4jects, wbethoa· peers or commoners, are im peac hable as tbey min-ht ha-ve been made, perspicuity having, as in several other in Parha-ment, thoug h it i ns cr ted that commonet-s cannot now be i mpoacb.etl fu r provisions of the same instrument, been sacrificed to brevity. ~nd capital offenses. bnt for mi ·clemeanors only. su ~h kinds of ucells, however, as pe- 0 it is not a.t all st range that equally honest and equallr able mmds cu liarly injure tbe commonwealU1 by tho abtu!O of hir{h offices of trust ar persons hohlin ;:: office. I n s nch a f!O< a~ a ni:'W question would not be) all on one side. Others have pre- ernment a.ll the PO?Pl.e are equa l, and ought to have tho same security of a tria l by • TRIAL OF WILLIAM W. BELKNAP. toa .'ury for all crimes and off~nses laid w their charge when not holding any official another tribunal, and a separate punishment to be inflicted by each character, &c. tribunal, or for a mere political punishment for the several offenses in These extracts so exactly express my own views that I need say one tribunal or at one time, and, for all other purposes and aspects of little more upon the main question. It is clear from these extracts punishment, in another tribunal or at another time. But all these (a~ well as sections 789, 790, 79:l, and 7~3) that Jndge Story, a.s I do, would not ma.ke t.he analogy complete without a provision tending and as the Senators from Ohio do, considered the fourth section of to show that one of the penalties must in all cases be inflicted, leav- article 2 as a designation of the parties liable to impeachment under ing the other discretionary. And this la~t, without the other char- the Constitution, as well as the causes for such impeachment. But, acteristics, would of itself be of little or no force. It will be time unlike the Senators from Ohio, he did not draw the conclusion that enough, therefore, to consider the supposed analogy when a statute . these various parti~ when out of office were st.ill impeachable, be- containing a.ll the foregoing characteristics shall be produced. As cause be undoubtedly saw, what the Senators from Ohio cannot on yet I know of none. reflection fail to see, that if this section be a designation of the par- Ao-ain, it is insisted by those who maintain the right of impeach ties liable to impeacllment, tmch parties cannot be impeached when ment in the present case, that those provisions giving the House the out of office, ad it clearly refers to them as holding the office at the sole power of impeachment and the Senate the power of trying_ all time of impeachment, and expressly de.clares that they ''shall be re- impeachments, vests in the Honse and Senate the full power of tm- moved from office on impeachment;" a thing which could not very peachment as it existed in England, except as restrained by other conveniently be done, if they were not in office at the time of impeach- clauses refening only to the mode of proceeding and the punishment. ment. No~ whether, as contended by some, it is this section which In my opinion those provisions a.mount to nothing more than a decla- gives the power of irnpeachment, or whether that power is given by ration tha.t those bodies shall have all the power of impeachment aud -the provision decla.ring that" the House sha.ll have the sole power of trial provioed for under this Constitution, and that we are to look to impeachment and the Senate to try," &c., if this section 4 is to be trn- article 4 of section 2 to :find who are to be impeached, and to the la~t derstood as an enumeration of the- parties liable or intended to be clause of section 3, article 1, for the judgment which alonl} can he made liable to impeachment, then this enumeration operates as a rendered; that. the clauses giving the House full power to impeach limitation of the power of impeachment to the parties nameJ or and the Senate to try impeachments were intended, as well for the enumerated in the section; and there can be no escape from the con- purpose of distributing to each their respective share in the proceed- clusion that the parties named must be in office at the time pf im- ing, as to give the power; a.nd that the real me:tuin~ of those clauses, peachment. wben construed in refere ce to subsequent clauses ts, that the HouHe Look at the language, now, understood in the light of such limita- shall have the power taimpeacb and the Senate to try impeachments tion: in the caBes thereinafter provided. The President. Vice-President and all civil officers of the United Sta.tes, shall I listened to the argument of the Senator from Vermont upon this be removed from office on impea.cbmrnt for, and conviction of, treason, bribery, point, a~ upon every ot.her, wit.h atLention, with pleasure, aucl, it is or other high rrimes and misdemeanors. not too much to say. with admir:' Lion; and it is upon the ground upon Mnst not t.he President and Vice-President be in office at the time of which he has attempted to sustain the })resent impeachment that it impeachment, when the language is that "the President," &c.," shall mnst stand, if it can stanu at all. But if his ar~uments aud conclu- · be removed from office on trial and conviction f" And if such is the sions are correct, that we are to look to .he English precedents to as- case with the Presiuent and Vice-President, must it not be the same certain the parties who are impeachab·.a, then not only the President with all the civil officers mentioned in the same sentence and con- and Vice-Presiclent, and the civil officers provided for by our Consti- nected by the conjunction "and f" Certainly no one can deny this. tution to be appointed by tl:le President or heads of Departments, or The Senat.or fi·om Vermont admits, and no one capabl~ of understand- by the courb1 of law, as authorized by the Constitution, are impeach- ino- language at all will deny, that under the clause of section 3, :uti- able, but Senators and Representatives and a,l l other persons, at least cl~ 1, '' when the President is tried the Chief J ust,ice shall preside," who may be in any manner employed in tho administration or aiding only applies to the President while in office; and is not this equally in t,be performance of the lmsiness or the protection of the interests clear heref of the Government as servants or as counsel, or otherwise; as all these1 Having thus shown that, if the fourth section of article 2 is to be at least, would have been cJearly impea{lhable under the English prec- understood as an enumeration of the parties intended by the Consti- edents. And the Senator from Iowa, [.Mr. WRIGHT,] who arlopts, tution to be impeachable, there is no escape from the conclusion that upon this point, the same argument as the Senat-or from Vermont, they must be in office when impeached; I shall, in the proper place, bolrlly a.ccepts this consequence, which, it must be admitted, is inev- endeavor to show that t,his section was intended as an enumeration itable from snch premises, and, in answer to the Senator from New· of all the parties liable to impeachment, as some Senators on the York, holds that persons acting merely as counsel for the United States other side expressly, and more of them by necessary implication, ad- wonld be impeac-hable. mit. But unless we are to overrule and wholly disregard the solemn de- Several Senators admit that none but "civil officers of the United cision of the Senate in the Blount ca e (and if we are to be bound by States" can be impeached, and that no one can be impeacbed except any precedent whatever, it most be t,h e decision of this, our own court) for the very t·rimes enumerated in this 8e_ction; in other words, that no such doctrine can be ma.iutained; for it was the:} very ground and the power is limited to the parties and offenses spoken of in this l:!ec- the .sole and express ground of that decision, the very premises upon tiou. Certainly there is nothing else in the Constitution establish in~ which the conclusion of his non-liability to impeachment wa~ drawn, the limitation. that none but a civil officers of the United States" were impeachable, For myself, I think the proceeding by jmpeachment was intended and that therefore, though Blount was a Sena.t.or, be WM n t impeach- principally to secure the Government against official misconduct, and able, not being :1 civil officer of the United St,ates, "within the meau- not at all for punishment, except as the removal and disqualification ingof the Constitution;" and there is certainly no other provision of may incidentally operate as such. The punishment, as was remarked the Constitution which ha,g been claimed or can be claimed to confine in Blount's trial, touches neither the defendant nor his prooerty, but impeachment to "civil officers of the United States," except the provis- simply affects his political capacity. And I do not see the force which ion of the fourth section of the Recond art,icle. The inference is t.here- some Senators appear to see in the analogy so much relied upon be- fore absolutely irresistiule, that they looked upon this section as iim- tween statutes, on the one hand, defining and punishing offenses by it.ing the power of impeachment to the parties mentioned in this sec- indictment, imposing two or more kin us of punishment for an offense, tion; and so Judge Story treats it, and expresses his opinion to t-hat and, on the other, the constitutional provision in section 3, article 1 effect without any reservation or doubt whatever. (See section 790 of the Constitution, which admits both of a removal and disqualifica- et seq.) But this is not left to mere inference, couclusi\e as that is. tion, absolutely reqniriug the first and admitting the second. The It is in legal effect, expressed in the Blount case that this very section purpose of such statntes as were referred to, was to provide for the is tLe one to which they nJlude for this limitation to'' civil officers." full punishment for the crime in the same prosecution by indictment. Let us see. The plea to the jurisdiction, in legal effect, set up two The whole purpose was punishment, and full and complete punioh- grounds: one that he was not a Senator of t.he United States at the ment, as such, in the ordinary legal senl.ie, and all in the same single time, &c., and, second, thatJ.. even if .he was a Senator, he was not a proceeding. While such, as I have endeavored to show, was not the civil officer of the United ::states, within the meanin~ of the fourth direct purpoEe of the punishment which incidentally springs from re- section of the second article of the Constitution, to whiCh it expressly moval and disqualification; and the Constitution expressly leaves refers. (See the plea, Annals of Congress, volume 2; Wharton's State the party liable to prosecution and punishment by indictment for the Trials.) The first ground was answered on. the· argnment, arcortl- full punishment prescribed uy law for the offense. ing to the admitted fact of the case, that he· was a Senator of the No species of legal argument is so liable to mislead Man argument United States at t,he time when the acts-charged weredone·and when based upon assumed analogies. Nullunt simile est idem-no more like impeached, which was trqe; and this point tMreafter seems to have is the same; and before we yield to an argument from analogy, we made no figure in the caae, and quite clearly had nothing to do with ought to see that the instance assumed as the basis of analogy or the decision. The argument and the· decisi·o n turned upon the sec- ·standard of comparison contains all the important or essential ele- ond ground, whether a Senator·wa'S a civil offlcerof the United States ment-s which are contained in the provisions to be illustrated or the within the meaning of the fourth section, article 2. Turn, now, to proposit-ion to be demonstrated, and that there are no conflicting ele- the decision. ments in the onewhichinvolveadifferentprinciplefrom those involved The first resolution offered to the Senate, and of course, as suffi- in the other. To give any force to the analogy relied upon, the stat- ciently appears upon its face, this must have been offered by one of utes fixing the several penalties (one of which is fonnu impracticable) the Senators in favor of the juris~iction, ;md it will be seen that even should, like the Constitution, provide for a trial of a part only of the these resolutions go upon the admission that none but civil officers penalties at one time, leaving the defendant liable to another trial in of the United States are liable to imp-eaehment under the Constitu- J04 TRIAL OF WILLIAM W. BELKNAP. non-which refers, of course, to this fourth section, as there is no other Senators doubtless may. I read from Comyn, at the .place cited other to which it could refer for such a pnrpose-but asserts never- above: theless that Blount (being a Senator) was such civil officer, (January The Duke of Buckingham waa impeached, for tltat he, being admiral, neglected 1,1799 :) t.ho afegnard of th e sea. (&u!ill, 30 .) Resolned, 'fhat William Blo1111t wa.s a civil officer of the United States within the The Earl of Oxforcl, that he hazarded the navy and had neglected to take ships meaninrr of the Constitution of the United State.s, and therefore liable to be im- of the enemy, 8 May, 1701 , and for selling goods taken as adriliral, for his own use, peached by the House of R epresentatives; without accounting for a tenth to others, 8 May, 1701. (Ibid. L. 39.) That as the articles of imooachment charge. him with high crime.s and misde- I will here say that I see nothing in this book, and recollect noth- meanors supposed to have been committed while he was a Senator of the United State~. his plea ought to be overruled. (See Annals of Congress, volume 2, page ing in any other English work, ancient or modern, making any cli~­ 23 L8, WhartOn's State Trials, page -.) t.i nction between different classes of subjects, whether officers or not, 'fbe vote upon the resolution was 11 for, and 14 against it; so that subject to impeachment, nor anything which tenrls to controvert the it failed; showing that, by 14 to 11 the Senate determined, in effect, assertion of so many English writers, that all the King's suujects that a Senator of the United States is not a" civil officer of t.he United were impeachable. · State ," and was not therefore impeachable. This is clearly enough Mr. THURMAN. Does the Senator remember any particular in- shown by the vote afterward taken on the 11th day of February, stance of an impeachment of a strictly private person in no way con- offered manifestly by some one opposed to the jurisdiction, as follows: nected with office f The court is of the opinion that the matter alleged in the plea of the defendant, 1\fr. CHRISTIANCY. I have not looked for any. When I find all is sufficient in law to show that this court ought not to hold jurisdiction of saitl im- the English writers from the earliest times asserting in effect that all peachment, and said impeachment is dismissed.-Annals of Congress, volume 2, British suujects are liable to it, and no English authority anywhere 88 above. intimating any distinction between clas es subject to it, nor that any The vote upon thisshows the Senators divided exactly by t.hesame but the king are not, the Senator will pardon me if I say I have more number, there being 14 for and 11 against it. Then look to the jndg- confidence in this uniform testimony of the English writers who bu.d ruent and its announcement to the managers, which is in the follow- the best opportunity to know, than I have in the Senator, or any Sen- ing language: ator here, who infers that all these English writers were in error sim- The court, after having g_iven the most mature and serious consideration to the ply because he has not found an instance. que tion and to the full ann able arguments urged on both sides, has come to the If he were to apply the same reasoning to the common law gener- decision which I am now about to deliver. ally, and deny everything to be law for which be could not find a de- Tho court is of opinion that t.h e matter alleged in the plea of the defendant is sufficient in law to show that this court ou~ht not hold jurisdiction of aid im- cided case in the year books or in any English reports, he would leave peachment; and the said impeachment is dismissed. (Page 3319, volume 2 of An- very large gaps in the English common law. nals of Congress.) · The fact undoubtedly is that many principles of the common law, Thus showing that the plea in effect asserting that none but civil as well relating to the power of impeachment as to anything else, bad officers of the United St.a tes could be impeached under the fourth become settled before the earliest reports or parliamentary records section of the second article (which wa.s expressly referred to) was now extant, though the mode of exercising the power of impeach- sustained by the Ser:ate, and on this ground the impea{lhment was ment bas undergone several changes since the parliamentary records dismissed. still extant. Who does not see that the whole conclusion rests immediately and I turn now to some miscel1aneous citations from Comyn's Digest, entirely upon the ground, that none but civil officers of the United lying before me, w hicb happen to be on and near the page just cited, States couJd be impeached under the Constitution, that this is the en- and which, in a miscellaneons manner, may tend to show for what tire premises from which the conclusion is drawn T Of what conse- offenses an impeachment would lie in Engla.ud, and therefore for what quence was it to inquire whether a Senator was a" civil officer of the they would lie here, if t.he fourth section of the second article d~les United States," if be could just swell be impeached whether a civil not limit the offenses for which impeachment may be sustained. officer or not t And where in the Constitution does the limitation of And if this fourth section does not limit the parties liable to im- the power of impeachment come from, if not from this section 4 T It peachment, it does not limit the offenses for which it may be sustaiuecl. cannot be pretendeu there is ·any other limitation of this kind in the Nor is there anything elsewhere in the Const itution which would con- Constitution. Is it not perfectly clear, then, that the Senate treated fine impeachments to "treason, bribery, and other high crimes and this fourth section as such limitation or an enumeration of all parties misdemeanors." · intended by the Constitution to be impeachable T But finally let me I read these miscellaneous ex.-'tmples, showing for what a man may ask, if this fourth section does not confine theu· power of impeach- be impeached. "The Earl of Bristol was impeached (2 Carolus) that ment "to civil officers of the United States," all of whom the Consti- he counseled against a war with Spain when that king affronted n , to tution provides shall be commissioned by the President, (article 2, the dishonor and detriment of the realm, (article 3,1 Ru hwortb, 250 ;) section 3, also article 2, Rection 2,) why are not Senators and Repre- that he advised a toleration of papists, (1 Rushwortb,251 ;) that he en- sentat.ives aJso impeachable¥ Why are not military and naval offi- ticed t.he king to popery, (id., 252, 262;) the Spencers, that they gave cers also impeachable? Members of both Houses of Parliament and bad connsel to the kin~, (4 Institutes, 54;) the Earl of Oxford, that 'military and naval officers were, I think, clearly impeachable in En- he ad vised a prejudicial peace, (8th 1\!ay, 1701.) giand. .And if we are at liberty to determine the cJas es of persons It is true these were privy councilors, but the offense was in giving liable to impeachment by English precedents, I can see no reason wby advice to the king. If the offenses here for which a pnrty may be all military and naval officers and Senators and Members of the House impeached are the same as in England, (and without the limitation are not a.s clearly impeachable here as they ever were in England. of the fourth section, art.icle 2, as upon the argument of those who And this must, I think, be the inevit.able re ult, unle s the fourth support the jurisdiction they must be,) how many Senators may be section of article 2 limits the power to the parties t.bere mentioned. impeachable for advice given to the President, e peciully in reference And yet it has been expressly admitted by some Senators who sus- to appoint.ments ¥ Is such arlvice one of the "high misdemeanors" tain the jurisdiction in the present case, and tncitly admitted, I think, mentioned in the Constitution J by everal of them, that the power, under our Constitution, does not But what shall we say of advising the toleration of papist.s f This, extend to military and naval officers: and no one bns yet contended according to the English law of impeachment, was a much an im- in this discussion that it extends to Senators and Representatives or peachable offense as bribery or any other crime or misdemeanor; to military or naval officers. I do not know whether the Senator and upon the argument in favor of the jurisdiction here I see nothing from Vermont claims that it extends to military ancl naval officers. to prevent its impeachment. There certainly is not, unle s the fourt.h Mr. DAWES. Does not the same removal and disqualification fol- section operates as a limita1 ion to the crimes and misdemeanors there low a sentence cashiering an officer in the military and naval service mentioned, or the :first amendment of the Constitution may so opera.t.e. as the Constitution imposes upon other ofticers on conviciion by im- And who in this conntry would not be liable to impeachment for this peachment! causeY Who does not advi e the toleration of papists J Mr. CHRISTIANCY. That may be so. But do not the same con- .Again, the Spencers, father and son, were impeached, among other sequences follow upon conviction by indictment iu a criminal court things, ''for that they put good magistrates out of office and ad- for the very offenses charged upon :Mr. Belknap 7 If the fact of such vanced bad." (4 Institutes, page 53.) How many Presidents and liability to disqualification, without impeachment, can be alleged as a Secretaries might have been impeache.d here, if this is an impeachal.lle reason why impeachment should not be sustained in the C\De ca e, I offense, and how many· Senators, as accessories before or after the do not see why it should not be eq nally efficacious in the other. Bo~h fact' stand npon the same ground, the authority of an act of Congress only, Lord Halifax waa i_mpeached for obtaining grants of money for- and not the Constimtion. Is it denit~d that by the English law, or feited for rebellion, (9 June, 1701,) for obtaining grants of money rather precedent, military and naval officen~ are impe-achable t I when there was a war aud heavy tax:es, and grants out of the king's have not hnuted the precedents, taking it for granted that all of the woods, (L. 39,) and so on. olcler as well as more modern English writers who as'ert the power But, to come back now to Blount's ca e, which clearly settled the of impeachment to extend to all the King' subjects, knew better point that none but civil officers of the United tates are impeachable, than any Senator here how the fact was. But, I read from Comyn's and that section 4 of article 2 of the Cons:itution was intended as an Di~est., which I sent for a few minutes since, title Jucccature of enumeration of all tho parties lial.lle to impeachment and of the Parliament, 31, the following pa sages which show instances of the ofJenses for which they were impeachable, I will say tbat deci. ion has, impeachment of naval officers for official delinquency in office, and from the day when it was made, been approveu a ound law a ud met there can he no reason for supposing that it. did not extend us well to the general approval of the legal profe · ion and of tbe people ; and, mili tary officers, thougl•, as I have not lately posted myself in English in my opinion, to chauge or overturn it now would be j 11stly lookt 11 history, I do not happeu at this moment to recollect an instance ; but npon as revolutionary. I must, therefore, for this aucl other rea OilS / I TRIAL OF vVILLIAM W. BELKNAP. . 105 already given, with diffidence, and I may say with reluctance, dis- the truth of the case; especially if this fiction or falsehood cannot he agree with the conclusion of the Senator from Vermont and other Sen- contradicted and the actual precedence of the respective events shown ators who have adopted his views, and h<_>ld Judge Story's view to be as they occurred; and it is insisted we cannot inquire into the fact founded upon the sounder and the better reasons, and upon authority at wb.a t time of the day either fact took place, nor which preceueu of a decision of this high tribunal it6elf. the other; but the whole day must be taken for both, because the My friend from Vermont also made, or attempted to make, an ar- law .takes no notice of the fractions of a day. gument in support of the jurisdiction, based upon the use of the word This makes a very pretty argument, and 'it is a great pity to spoil " person," in section 3, article 1 : . it by putting a case. But duty compels us to do a great many un- And no person shall be convicted without the concurrence of two-thirds of the pleasant things. Say that on the same day that Belknap resigned a members present, successor was appointeu and confirmed-as well he might be-or take I Hgree with the Senator, and do not suppose any Senator will dis- the ca~e which did happen, of another Secretary assigned to the agree, tbat, notwithstanding the Constitution in express terms speaks duties of the office on the same day and hour of the resignation, and of the impeachment of the Presiuent, Vice-President, and other civil that successor, or the officer so assigned, had, on the afternoon of the officers, yet, when a man who is an officer is prosecuted for an official same day, been guilty of bribery or other impeachable offense. He crime, it is, when we come down to precise accuracy, the man, the is impeached; and on the trial he denies that he was Secretary of person holding the office, who is prosecuted, and that the punishment War or in charge of the duties of the office on that day, and t,o prove on conviction is a personal punishment, not official; that, when he i~ it shows·by the record, or by .Mr. Belknap himself, perhaps, that be, removed from office, it is the man who is removed from the office, and Belknap, was Secretary on the morning of that day, and stops there. not the office from the man. But these considerations only go to Has he not made out a complete defense, if the fractions of a day ~bow that the use of the word "person," instead of officer, in the cannot be inquired into f Anu as the fiction may just as well1:elate cla.m~e cited, whether the man is impeachable after the termination backward to the beginning of the day as forward _to its close, why of his office or only while he continues in office, was correct, and en- might not Belknap defend him elf for bribery committed on the morn- tirely and equally correct, upon aither view. The Senator will there- ing of th,a t day, by showing that on that day another Secretary bad. fore permit me to say, with all deference, that he seems to me to have been assigned to fill the office, whose assignment and responsibility drawn a very la:rge conclusion from very narrow premises, when be must relate back to t,be first moment of the day 'f Now, in the case of infers from the use of this word in this connection, that a man can be these overlapping fictions would not every Senator admit that the impeached when out of office, when the use of the word is just as truth ought to be allowed. to escape between them 'f consistent with the conclusion that he cannot. Unaided and alone, I tbiok I may safely submit it to the candor and good sense of.the I certainly could not have drawn such an inference from such prem- Senate that the succession of events or acts happening on the same ises, and I am equally unable to accomplish the task with the pow- (}ay, and having relations to or affecting each other, may and ought erfnl aid of the Senator himself; and be will pardon me for sayii1g always to be shown, whether in a civil or criminal ca-'3e, as m11ch a~» that his ewn effort in that direction seemed to me a little too much if they had happened on different days; and that our jtuisdictiou like catching at straws. an(} the prosecution by impeachment can be maintained upon no such Mr. President, my conclusions upon the main question are- trivial falsehood, contradicted by the face of the record. First. That the main, direct, and primary purpose of impeachment As to the question, admitting that a resignation in ordinary cases is to pnt a man out of the office he may hold at .the time of the im- before the vote of impeachment would defeat t,he impeachment, woulu peachment. it have the same effect though made for the purpose of avoiding the , Second. As a. secondary and auxiliary safeguard against future impeachment t Upon this question I can entertain no doubt. The mi condnct in office aft-er he bas been convicted and expelled, to defendant had a perfect legal right to do the act, to make the resi~­ k erp bim out of that and all other ci vii offices of the United States; nation, and this cannot be rendered illegal or deprived of its legiti- or, iu other words, that the disqualification is but a discretionary in- mate effect, whatever his motive might have been, nor can that be in- cident of removal from office; and, therefore, quired into. Third. Tbat disqualification can only be imposed in addition to, These views render the other point contained in the resolution of and as a sequence of, the judgment of removal, and not as a single the Senate in relation to the pleadiog, immaterial, and I therefore and substantive punishment. express no opinion upon it. I see no absurdity in this result. The respondent is still liable to In conclusion, I must express my thanks for the indulgence of the be indicted in t,he proper criminal court and ptmished to the full ex- Senate, and my regret that I have been compelled to differ with so tent of the punishment prescribed by the statute creating the offense; many able Senators whose legal opinions I always respect and with and the sacred right of a. trial by jury is not to be disregarded, except whom I have generally agreed. in the clearest and most extreme cases. These views render it necessary that I should also consider the other questions involved in t,h e case. Remarks of Mr. Chr-istiancy em the resolu,tion o..ffered by him, May 29, 1876. And first, as to the fractional argument, the argument based upon The question recurring on the second resolution of Mr. THUR1\1A...~, the fractions of a day. And here allow me to say that, with my un- as amended, sophisticat~d habits of looking at things as they are in fact, stripped Mr. CHRISTIANCY moved to amend the said resolution by strik- of ull mere forms and fictitious coverings, I certainly did not expect ing out all after the word "resolved" and in lien thereof inserting: to live to hear it assert.ed in the United States Senate, upon a great Whereas the Constitution of the United States provides that no pen;on shall be st-ate trial, that, thongh, upon the facts as they are admitted to be, convicted on impP.achment without t,he concurrence of two-thirds of the members the defendant is not liable to impeachment-and t.his argument pro- pr~sent; and whereas more than one-third of all the members of the Senat~ have ceeds upon this a(lmission and has no bearing without it-we are at or already pronounced their conviction that they have no right or power to adjudge uy a citizen holding no public office or trust when impeached by the House of liberty, by a. pure fiction, known to be and shown upon the record to be Representatives; and wherea-s the respondent, W. W. Belknap, was not when im- false, to exercise a. jurisdiction based upon that falsehood and convict peached an officer, but a pri'nl-t.e citizen of the United States, and of. t.he State of the uefeml~nt upon a pure fiction kiwwn to ourselves and the world to Iowa; and whereas said Belknap has, since proceedings of impeachment werl' com- be a palpable lie. I am not ignorant of the fact that there are many for menced a~ain.~t him, been indicted and now awaits trial beforo a judicial court the sam e offenses charged in the articles of impeachment, which indictment is fict.ions of law contrived for the purpose of justice in civil cases, which pursuant to a statute r equiring in case of conviction (in addition to fine and im· a:e or sh?tll~ be,~waysliabletocontradiction when therightsofpar- prisonmcnt) an infliction of the utmost judgment whidh can follow impeachment tJes reqmre It. I will not deny that precedents may be found in courts m any case, namely, disqualification ever again to hold office: of law, e~pecially in past ages, where fictions have been resorted to inR~solved, theca.se. That in view of the foregoing facts it is inexpedient to proceed further in criminal cases, to the prejudice of the defendant; for there is no enormity for which such precedents may not be found. .Mr. CHR£STIANCY. Mr. President, it being now manifest that But when such precedent-s are invoked to show that the jurisdic- considerably more than one-third of the Senators present on thjs trial tion of a criminal court or the punishment of a defendant charged believe there is no jurisdiction in the Senate to try this impeachment., with arcrime can be sustained npon a pure fiction, contrary to the I t.hink the resolution I have submitted makes tbe proper disposition k!lown facts !"'PPe~ring upon the. records, these precedents may be of the case. I do not propose to argue the question at length, but to piled mountams h1gb, and I shall treat them all with the contempt state briefly my reasons for this conclusiolf. that all such falsehoods, ur::?ed for such purposes, deserve, in an age The ConRtitution declares that- and a country of liberty ana law. No person shall be convicted without the concurrence of two-thirds of the mem- Precedents standing upon palpable absurdities should share the fate bers present. of the absurdity upon which they stand. What is necessary to, and w.hat is included in, the conviction here . But let us examine t~e fi~tion ~n the present case. Belknap re- alluded to! But one answer can be given to this question, and that ~ngned at 10.20 a. m. ; his resignatiOn was announced in the House at is, every constituen~ element, both of law and fact, necessary to con- .noon, or a little after, and late in the afternoon the vote of impeach- stitute a valid conviction ; and the first and most important of all ment was adopted. It is now claimed that the law takes no notice these is the jmisdiction of the tribunal before whom the trial is to be of the fractions of a day, and therefore Belknap must be reuarded as had and the conviction }H'•,nOtmced, the right and power to try the in office the entire day, or that the vote of impeachment m~st be re- case at all or to declare the conviction. If there be no such juris- garded as hav_ing t~ken pla~e at the begi~ning of the day, or at least diction, ~0 such power to try, any determination we may make, before the res•gnatwn-for 1t makes no r- matters of law. sons as well in office as those who have vacated their offices. I bold Every Senator, upon a trial on the merits, acts in the double capac- the opinion, therefore, that any person charged with the commission ity of judge and jmor, and must for himself determine both the law of crime while in office can be impeached after he has ceased . to be and the facts and apply the one to the other according to his own an officer, whether by expiration of his official termorbyvoludtaryres- convictions and judgment. And certainly no Senator can be any ignation. more bound by the opinion of any other Senator or any number of I believe there is no limitation as to the time when prosecution for Senators upon a qnestion of law than upon a question of fact. Each impeachable offense can be had, save in the sound discretion of the must not only draw his own inference from the evidence, but must House of Representatives. apply, that eVidence to the law as be understands it to be. Impeachment as a known method of procedure is ingra:fted upon It would therefore be just as absurd, under the constitutional pro- our Constitution. As it was understood and exercised at the period vi ion requiring the concurrence of two-thirds to convict, to hold when the organic law was framed, subject only to the limitations set that a bare majority have a right to bind the minority upon questions forth distinct.ly in the Constitution, so it is now to be exercised. In of law as to bold that they have the right to bind them upon matters t.be language of Professor Dwight, the Constitution "a urnes tile of fact. Propositions of law are a.a much involved and as essential existence of this mode of trial in the law and silently points us to Eng- elements in a valid conviction as propositions of fact, and. they are lish precedents for knowledge of details." .Mr. Web:ter, also, when involved in every step taken on the trial. And if this were not so, defending Judge Prescott, and speaking of a clause in the constitution if a bare majority could conti·ol the minorit.y upon questions of law of Massachnset~s similar to that in the Federal Constitution, said: arising upon tho trial of ·an impeachment, such bare majority might The Constitution haa given this body fthe Senate] the power of tryinl! impeach- also in many cases establish every element essential to a valid con- ments without (Lefining what an impeac.hment is, aml, therefore, neces arily intro- viction in oppo ition to more than one-third of the Senate. ducing with the term itself its usual and received definition and cb.aracter and inci- Let us consider some of the phases of the case and the questions dents which belong t~ it. which must naturally be expected and which usually occur upon a Whenever foreign statutes are adoptetl into our legislation, the tTial. On a trial upon the facts in the present case questions of the known and settled construction of those st.atutes by courts of law lias admissibility and of the materiality ·of evidence must naturally be been considered as silently incorporated into the acts. expected to ari e and almost unavoidably do arise upon all trials of So of impeMhment; as it was regulated by the parliamentary law t.he kind. These are questions of law. Now a bare majority think of England, so it is to be understood, with its specific limitations, how- any particular testimony or piece of evidence offered admissible or ever, as part of the constitutional law of our country. material, as the case may be, but more than one-third of the Senate The framers of the Constitution knew impeachment to be the think it inadmissible o.r immaterial. mode of accusation and tiial of "statesmen for misdemeanors in tlle Tpe bare mnjority, no doubt: may admit the evidence, but, in con- administration of government." They knew that as early as the reign sidering its effect npon the case, tho minority, if they act upon their of Edward I the power of parliamentary impeachment had been ex- own convictions, will of course pay no attention to the evidence or erted, and that judges convicted of exactions had been sentenced to give it any effect. Will any Senator claim that this minorify are severe penalties by the Honse of Lords; that dming the reign of bound to disregard their own convictions as to the eft'ect of such evi- Richard II and under that of Henry Vlll lord chancellors and arch- dence because the majority hold that effect to be different T Are the bishops and chief justices had fallen nnder a like condemnation; minority, I mean, bound thus to yield to the majority when the result that under King James I Lord Chancellor Dacon had been the sub- is declared upon the question of guilt or innocence t Would not this ject of impeachment, and Lord Finch and others had suffered during be allowing a bare majority to control as well upon the facts as upon the reign of Charles I; that under Charles II chief justices of the the law T And would not this effectually fritter away the whole sub: King's Bench and Common pleas and barons of the Exchequer had stance and effect of the provision requiring the concurrence of two- been impeached by the Commons for various great official crimes. thil·ds to convict f Thus they had before them from various epochs of English history If, then, the decision of a bare majority in admitting evidence many instances of parliamentary impeachment. which the minority think inadmissible or immaterial cannot control It would indeed belittle Madison and Hamilton, Sherman and the minority as to the effect of the evidence or bind them to give it Pinckney, and the other intellectuaJ giants of that great couucil to an effect which they do not believe that it has, can or ought such suppose they did not understand in all its scope the power of im- majority to control such minority upon the question whether any peachment, which they were then importing into our federal form of eviclence is admissible, ana compel them to give effect to evidence, government. Some of them had access to Comyn's Digest, Bacou's all of which they believe inadmissible, because the Senate has no and Viner's Abridgment , Rushworth's Historical Collect.ions, and power to try the case or to administer an oat.h, and because they be- Selden's Judicatme of Parliament., and Howell's State Trials; nud lieve all the testimony given in the case is extrajnclicial, and that Pinckney bad, indeed, sat at the feet of Gamaliel, for he hau every witness may testify as he pleases ~ithout liability to the pains listened at Oxford to the splendid law 1ectures of Blackstone, which and penalties of perjury f now .as his Commentaries, more than a century after their delivery, Is it not manifest that every proposition of Jaw and fact which con- are to be found in the bands of every law student in our laud. Tiley stitutes a necessary element of a valid conviction must be found and knew, also, .that in this method of criminal proceclure, since the time sustained by the concurrence of two-thirds of all the members pre entT of Ed ward III, the Hou e of Commons accused ll·n•l th"' Hou e of And that if one if those elements, without which the conviction could Lords tried. So they gave the Role power of impeachment to the not be valid, may be established by less than two-thirds, any other House of Representatives and the sole power of trial to the Senate. necessary element-ancl therefore every other-may be established in Thus the trial by impeachment, without specially definingit, was the same way and by the same course of rea oning T And what ele- adopted from analogy to the English constitution. . ment can be more necessary to a valid conviction than the jmisdic- The makers of the Federal Constitution gave this power of trial by tion to try the ca.se and declare the conviction f impea~hment to the two Houses, a.a above stated, in all its plenitude, Uponanyquestionor any matter not anessential elementof a valid and then by subsequent special limitation restricted it in its details TRIAL OF WILLIAM W. BELKNAP. 107 wherevertheyintended its power to be restrained. The P?wer i~elf in 17f5'/ and this case, as we have seen, was referred to on the 8th day they never intended to cmtatl; for, .when they added ''high cnmes of September, 171;7, by Colonel Ma:'on, when the clause r~la.ting to and misdemeanors" to treason and bnbery, Colone~1\Iru;on remarked: the removal of the President on Impeachment and conv1ction for treason and bribery was under consideration in the convention, as As bills of attainder which have saved the British constitution, are forbidden, will be seen by reference to t~e Ma.disou ~ap~rs, vo~ume 3, page 1528. it is the more necessa~.r to extend the power of impeachment.-Madison Papers, volume 3, page 1528. He said "Treason as defined rn the Const1tut10n, will-not reach many ' dangerous great and ' offenses. Hastings . 'lty of t reason. " . no t gm. 1s And it is remarkab1e if true, as asserted, (and from the similarity This case was thus fresh before them ; and havrng placed several in the two instruments the assumption seems to be well founded,) limitations on the matter of impeachment, they were silent on this im- that the impeachment clauses in article 1 of our Constitution were portant point, and made no question of the right to impeach a P:uty taken from the constitution of New York of 1777, drawn by John Ja.y; guilty of official crime after he had ceased to .be an officer. Besides, that the word " officers" in the latter constitution is omitted in the the objection of Mr. Pinckney, that the Pre~I~ent ought ~ot: to. be Federal Constitution. If the New York constitution was intended to impeachable while in office is the only p~pos1t10n for any hD!lt:'l'tion operate only on officers while in office, it is clear that the~hange in of the time when an offender was t-o be Impeachable; and this IS the the words in the Federal Constitution by which "person" or" party" venr converse of the theory that he was impeachable after he had is substit.uted for" officer" was intended to give the power of im- vacated his office. peachment wider scope and to cover the ca es of those who had gone Givin(T0 due weight to the adverse argument based on the expedi- out of office after the commission of offenses as well as those who were ency of trying a man for official crime after he is out of office and in office at the time of impeachment. the dancYer of partisan impeachments, yet, under the sense of duty The difference between the two Constitutions is thus shown: which ~pels me to decide this question judicially, I can come to no other conclusion than that, as there is no limitation to the punis~­ New York constitution, 1777: Oonstitution of tlte United States : ment of crime except by express st.atutory ena"(}tment.-and ~hm:e 1s Tb power of impeaching all ojfice'rs of The House of Reprf'.sentatives shall none in the Constitution as to the time when impeachments w1ll he- the State for venal and corrupt conduct have tbe sole power of impeachment. • its framers meant as Mr. Rawle has expressed it, that "person lia.bl~ in theirrespectiveoffices (shall I be vested " • No person shall be convicted with- to impeachment are ' those who' are or h ave b een m . pu bl'IC offi ce.'" in the representatives of th'e people in as- out the concurrence of two-thirds of the sembly. " • • No jud!mlent of the members present. And I adopt this language of John Quincy Adams, as quoted by Mr. said court shall be valid un1es.'l it shall be Manager HoAR: ass·1~ted w by t·wo.thirds' part of the mem.- bers then present, &c. I bold, therefore, that every President of the United Sta.tA:s, ~very Secretary of State, every officer impeachable by the la.ws of the country, 1s liable twenty years It is clear that it was " persons" who were to be convicted, and not after his office expired as he is wbile he continues in office. · " officers" qua officers, at the period of conviction ; thus including ex- And this very doctrine will do as much as any one principle can to officers as well a incumbents of offices. restore the purity of our Government and elevate the standard of TheframersoftheFederalConstitutionalsotookintoviewtheimpro- official qualitication. . . . . priety of allowing the Vice-Pre iden t to preside over the Senate during The fourth section of the second article of the Constitution has, m the trial of the President upou articles of impeachment, and. so they my judgment, nothing whatever to do with the matter of jurisdiction provided that the Chief Justice ?f the Supr~meCourt sh':'uld act as pre- in cases of impeachment. That had been granted ~lr~ady. On the siding officer of the Senate durrng snch tnal. In the rnterest of the contrary this was a clause, absolutely mandatory m Its charac~r, accused, under the strong legal presumption of innocence, and to pro- for the r~moval of officers who were in office at the time of their im- tect agaiusL pas ion, it is seen they required two-thirds of tl1e mem- peachment and conviction. It ":a~ solely to accompliRh the remov~l bers present in the Senate to convict. They knew, also, that such of the convicted officers; and th1s IS clear from the fact that when 1t was the high authority claimed for the court of Parliament that was first inserted in the Constitution (then limited as it was to the the House of Commons, in the reign of Charles II, in the case of the Chief Magistrate) it is called, as will be seen on page 1434 of the ~bird Earl of Danby, insisted that no pardon under the great seal should volume Madison Papers, "the clause for the removal of the Prestdent be pleadable to an impeachment by the Commons of Great Britain, on impeachment," &c. . and this was finally enacted into statute law by 12 and 13 "William It was a limitation upon the official term of a person who, as Presi- Ill, chapter 2. dent, had been impeache~ and convicted of" tre~so_n, ~ribery, or And so they provided that no pardon of the President should be other high crimes and nnsdeme::'nors," ~ut not a .lmutatwn on th.e either pleadable in cases of impeachment or operative after sentence. power of impea"(}hment. I!> was rnserted m t.h.e a~tw~e of the Const~­ They knew the unlimited power of the Honse of Lords to impose tution defining the Executive department., as mdtcatmg how the offi- every kind of punishment upon the convicted, :md remembering the cial term of four years for the President could be cut short., and the extreme penalties which had been inflicted, and notably in the case insertion of "Vice-President and all civil officers of the United States" of Lord Cilancellor !lacon, who, notwithstanding his high dignity and was an afterthought, in no way changing ?r modifyin~ th.e purpose great per onal qualifications, on conviction had been fined £40,000, forwhi•h this clause was· originally inserted rn the ConstitutiOn. That was ordered to be imprisoned in the tower durin~ the king's pleruture, pnrpo e wa~ to compel the Senate on impeachment and convictio~ of to be forever incapable of holding any office, place, or employment, the ''President, Vice-President and all civil officers of the Umted and never again to sit in Parliament, or come within the verge of the States," for treason, &c., to remove them. The language is, they court, they put a limitation on the judgment to be pronounced by '' shall be removed from office." the Senate, and put maximum bounds to its sentence in removal from office and disqualification in the future; but they left the courts of The language is imperative ; it leaves yo.u no discretion ; yon cannot stop short justice to vindicate the majesty of the law by indictment and crim- of removal from office ; you cannot exceed 1t. inal sentence as in ot.h er cases of infraction of the laws. They were not ignorant that in Engla.nd, although it was claimed The clause was inserted for this specific purpose; to accomplish that ail subjects were liable to impeachment, yet in rare instances, as nothing more; to leave you in such case power to do nothing Jess. I said before, bad the power been exerted in any case of offense which Much stress has been laid upon the ca.se of Senator Blount, (Whar- was not official crime or t.he breach of public trust; so they left im- ton's State Trials200,) as estab]ishing the doctrine that none but civil peachment where they found it in English practice and hedged abont officers can be impeached, that is, persons in office at the time of im- private persons with trial for crime by jury; and the people in the peachment; but I can draw no such conclusion from that c~e. All States amplified this protection by fuller and clearer gu'll'antees to that was decided therein in poiut of law was that a Senator 1s not a accused private persons by the fifth and sixth articles of the amend- civil officer of the United States and cannot be impeached. The party ments to the Const.itution. They knew that in England officers who impeachable must ha~e been an officer of the U~ited States in ~eal­ had been guilty of offenses while in office were impeachable after ity anti, as a Senator IS not an officer of the Umted States! he 1s no they left office. mo~e liable to impeachment by the House of Representatives than any other officer of any of the States of the Union. A Senator for They had in mind that Lord Chancellor Somers had been impeached official crime or misconduct is liable to expulsion from the Senate, as after he was out of office. was done in Blount's case; and that precedent was afterward fol- They surely were awa.re of the case of Lord Chancellor Macclesfield lowed in the expulsion of Mr. Smith, of Ohio, who was charged with who in 1724 was in tile zenith of hh~ worldly success; yet they had being connected with tile Burr conspiraCly. The Constitution pro- seen that, shortly after the bnl'stiug of the Sonth Sea bubble, the tects the people agaiust the ~isconduct of Representatives.or Sen- storm of indignation arose and he was compelled to resign his office. ators by leaving to the respect• v_e Houses of Congress the parliament- They knew full well that, after his resignation, in January, 1725, pro- ary power of expulsion of their unworthy members. ceedings were originated in the House of Commons, and subsequently, In accordance with these views I do not deem it necessary to con- after a strong speech from Sir George Oxenden, the Earl of Maccles- sider any question relating to the time or circnmst.ances under which field was impeached. They had immediately before their eyes the the resignation of the la.t.e Secretary of War was tendered or ac- case of Warren Hastings. They knew that he bad left India in June, cepted, but considering him out of office on the 2d day of Ma~ch, 1785, having surrendered the keys of office. He returned to England, 1876 I hold that the Senate is bound under the Constitution to take where he was joyfully received by his friends. juri~diction of this case. The demurrer shoulll IJe overruled, and going On tile lOth of May, 1786, l\Ir. Burke accused him at the bar of the back to the first defect in the pleadings the plea should be overruled Hoose of Lords in the name of the Commons of England. Prelim- and the accused should be required to answer or plead further to the inary proceedings were conducted during the session of Parliament articl~s of impeMhment. 108 TRIAL OF WILLIAJI W. BELKNAP. Opinion of Mr. M.itebell, a Senate and House of Repre entatives." But compare with this the la t clause of section 2 in article 1 relating to impeachment : Deli1:ered May 2'2, 1 76. The House of Repres~ntatives shall have the sole power of impeachment. Mr. MITCHELL. Mr. President, the conclusions I have reached Is there any assumption here that furt.her on in that instrument on the i ue presented, by what is in subst.ance and legal effect the there is to be a separate grant, either ex pre ly or by implication, of plea of the respondent to the juri diction of the Senate, ~:~hall be the powers of impeachment t .M:ost certainly not. Is there anything stated briefly, and without unnecessary elaboration as to the reasons in this language that would justify the construction that it is merely guiding me. functional and not jurisdictional; that it was intended merely as a The Government of the United States is one of limited powers, the designation of a particular bra11ch of the Government to perform Constitution being the grant, consequently no exercise of any power one part in the proceedings of impeachment, the jurisdictional power upon the part of Congre.t;s, or either branch thereof, can be justified of which was to be granten in a subsequent section f Clearly. t.o unless the authority for such exercise can be plainly traced either to· my mind, not. Had such been the intention of the framers of the some express grant in the Constitution, or to one necessarily implied Constitu~n, it seems to me they would have emplQyed restrictive f1·orn the terms of t at instrument. language similar to that used in the clan e flesignating tb~ repo itory Before proceeding to an examination of the different clauses of the of all l~gislative powers. They would have said, ''The Hou e of Constitution I will state that I do not deem it proper either to discuss Representatives shall have the sole power of impeachment herein or decide any of the many questions that have been suggeste(l dur- gra1lied;" or, "All powers of impeachment herein granted shall be ing the progress of this proceeding which are imm.aterial to the de- vested in the House of Representative ;" and so also in the clan ere- cision of the question now before this court. For mstance, I do not lating to the trial of impeachments. If it hadlleen the intention to feel called upon to answer, either publicly or in my own mind, as to simply designate a certain tribunal as the authority to execute cer- the precise catalogue of offenses that are impeachable under our tain powers otherwise and in anot.ber section specifically or by nec- Constitution, nor whether a military officer may or may not be im- essary implication granted, inst-ead of saying "the Senate sh:tll have peached, nor whether a person in office may be impeached for an the sole power to try all impeachment ," they would have employed offense committed prior to the time he took office, and when be was different language; they would have followed the preCt:ldent laid a private citizen, nor whether a person in office is impeachable for a down in the first. section of the first article, and said, "The sole power high crime or mi demeanor committed prior to tli'e time be entered herein granted to try all impeachments· shall be vested in the SPn- upon that particular office, and while he was holding another office. ate ;" or, "The Senate shall hav~ the solo power h.el·£>in granted to The deci ion of these questions as well as many others that have been try all impeachments;" or, as in the clauses 'relating to executive su{!gested and ar~ued. during th!s discussion is not absolutely ess~n­ andjudicia.l power, they would, after de ignating the different arms tial to the determmatwn of the 1 sues now before the Senate, wh1ch of the Government that shall caiTy on the proceedings in impeach- stripped of all complication are simply and purely these: ment, have proceeded to say, in the same connec,tiou, to what cases First. Is the person, William \V. Belknap, who bas been a civ:I the impeachment power should extend, both as to person and offense. officer of the United States, but who is not now such officer, and was But it is said the clause which in section 1 of article 2 declares that not at the inception of these proceedings, subject to impeachment ''the executive power shall be vested in a President of the Umte in giving construction to the Constitution for the purpose of a-scer- tho clause in section 1, article 3, which declares that- taining the character and limits of any of its granted powers, all its The judicial power of the United States shall be vested in one Supreme Court. provisions bearing upon the particular subject under consideration shoulc.l be considered and construed togetber1 and in such manner as Here again the framers of the Constitutioll proceed in the same arti- to give legitimate effect to each part., and harmony to all. cle, in the appropriate place and under the proper head, to state to Section 2 of article 1 of the Constitution provides, among other what cases the judicial power shall extend, aud enumerate them at things, as follows: length. But where is the clause in the Constitution which declares The Hoose of Representatives shall choose their Speaker and other officers, and that the powers of impeachment shall extend to certain cases, either shall have the sole power of impeachment. 38 to person or offense f Suppose the Constitution bad st.opped in speaking of judicial power with the simple declaration that "the I regard this as an express, distinct, positive, absolute, and unquali- judicial power of the_United States shall be vested in one Supreme fied grant of jurisdictional power to the House of Representatives to Court ::tnd such inferior courts as the Congress may from time to time impeach. It is not, as has been suggested by the honorable Senator from ordain and establish," could it be contended that there was no grant Indiana [Mr. MORTON] and others, a mere assignment of the part the of judicial power to the Government of the United States' Clearly Honse is to act in the execution, jointly with the Senate, of a power not, and would not all admit in such .a case that in determining what granted elsewhere in the Constitution. It is not merely functional but that power was we would look to the history of jurisprudet1ce in jurisdictional; not (lirectory as to manner of procedure, but substan- England f And so in reference to the clause in section 2 of article 1 tive as to grant of power. It is itself the source of the power to im- in reference to impeachment. . peach, and not merely a direction in the execution of such power. But suppose section 1, article 1: were all there was in that instru- The grant is express, plenary, unqualified, unlimited, without any ment on the subject of legislative power. It is clear no power of leg- word of restraint save that of exclusiveness, and this of course does islation whatever would have been granted to Congress, becan e that not opera.t~ upon the Hou e of Representatives but rather upon every clause declares that ''all legislative power he.rein granted shall be other Department and officer of Government and upon all private vest-ed in a Congress of the United States." That clan e, tbPn, is a persons as well. "Shall have the sole power of impeachment;" that mere declaration of the particular branch or department of th Gov- is to say no other Department, or branch, or officer of the Govern- ernment that shall exercise all legislative power, and not a jurisdic- ment, nor shall any private person exercise this power, but the House tional grant of the power itself. This clause is indeeu functional and of Representatives shall have the power of impeachment. The first not jurisllictional, and in this it differs widely, in my judgment., from · section of article 1 of t.he Com-titution provides as follows: the clan es in sections 2 and 3 of article 1 in referencce to impeach- All legislative powers herein ~ntedshall be vested in a Con,!n'ess of the United ment, which I regard as jurisdictional, and which, in my opinion, are States which shall consist of a. Senate and House of Representatives. the only clauses in the Constitution that do confer juri c.liction in im- peachment, if we may except that clause in paragraph 6 of section :1 :Mark the language: not all legislative powers, not all the unlim- of article 1, which reads: ''When the President of the United States ited powers of legislation known to the English Parliament, but. all is tried, the Chief Justice shall preside," which clan e I think may very legislative powers herein granted. The clause assumes that in sub- properly be construed as a nece arily implied g1·o.mt of power to im- sequent parts of the Constitution there will be a separate grant, spe- peach the President and thus enlarge in this respect the English pur- cific or by nece ary implication, of the identical powers of legislation liamentary power of impeachment by extending it to the executive which it is provided by this clause shall be v~>sted in ''a Congre ." head of the Government, for in England tho king coulU uot l>o im- Here then it may wit h propriety be said that this clause i not a juri~S­ peached. This would not be a forced or unreasonable con trnction dictional grant of the various powers of legislation, but simply a des- of this clause. Still I incline to the opinion t hat without this <:lanse, ignation of the depository that shall receive anu e:s.erci tb ese pow- or that of sectjon 4, article 2 of the Constitution, the President woultl er, namely, a'' Congress of the United States which shall con "ist of lie impeachable ru1der the general grant of power !Jy the Honse to TRIAL OF WILLIAM W. BELKNAP. 109 impeach and the Senate to try, from the fact that the re~on for the by the abuse of high offices of trust ;" and although it is generally exemption of the king from impeachment does not hold ~ood as to stated that at common law there is no limit as to the person or char- the President, namely, "t-hat the king can do no w1·ong." The Presi- acter of the offense, in other words, that "all the king's subjects are (ient., unlike the king, has the power to do wrong, and unfortunately impeachable in Parliament," yet it is manifest to my mind that prior tlometimes exercises that power. The more reasonable construction, to the forrual:ion of our constitution the usage of the realm had so thf'.refore, to be given to the clause "when the President of the far limited the exercise of this power, if indeed any wider scope ever Unired States is tried, the Chief Justice shall preside" is, that it was attached to it, as to Jllake it apply solely to the prosecution of per- not intended as a jurisdictional grant of power to impeach the Presi- sons who either were or had been in office, for offen es committed dent, but aimply a recognition of such power previously granted while in office-in other words, for an ofi'ense as an officer, or while with a provision as to the officer that should preside when he was im- an officer of the Government, affecting the administration of public peached. affairs. Bnt what are we to understand by the phrase "power of impeach- And again, may it not with perfect propriety be claimed in the ment f" The Constitution does nut define it. The framers of that light of t.he English precedents that such has always been the full in trument did not in their wisdom think proper to specify by limits extent of the power of impeachment in England, and that the gen- tbe extent, the height or depth or breadth or volume of this power. eral declaration of the books to the effect that all the king's subjects Whatever they understood that power to be, bowev~r, according to are liable to impeachment should be construed to mean that all sub- the usages of Parliament at the time they inserted this clause in the jects who hold or have held office, and who have been guilt 'I of auy Constitution; whatever the people of the United States understood offense affecting public interests, disturbing the just administration by this phrase when they, in o"l'der to form a more perfect Union, or- of governmental affairs, are liable to impeachment f And applying dained and established the Constitution, whether wide enongh to the doctrine here, all private citizens are, in a certain sense, subject inclnde the right to impeach any person whomsoever for any offense to impeachment, because all citizens may hold office and may commit whatsoever against any law or rule of morals of the land, or so lim- impeachable offenses while in office. I most, therefore, not be under- ited ru; to apply solely to civil officers of the Government while in stood as holding that all private persons ar& impeachable, bot only office for offenses committed while in office, they granted it all to the such as have held office under the United States, and are chargeable House of Representatives, reserving no part of it to the States or to with impeachable offenses committed while in office. As to whether the people, vesting no portion of it anywhere else. Not the power of the power ext.ends to other than civil officers, it is not now necessary iru peacbment, however, that existed under the lex Parlianumt·i in 1376, to determine. I am free to admit, however, that if any such limita- when Richard Lyon was impeached for removing the staple of wool tion exists it is not by virtue of any restrictive.provil:iion of the Con- into France and loaning money at usurious rat~; not the power nec- stitution itself upon the parliament.ary power of impeachment, but essarily that existe(l in the fourteenth or fifteenth nor yet in the six- is to be found in the restricted c~aracter of the parliamentary power teenth century; but the power of impeachment as it had become itself, formed and fashioned by the usages of ages; and that such crystallized by usage as to impeachable offenses, persons impeachable limitation did not exist in England I would by no means affirm, for I nnd judgment on impeachment, in the latter part of the ei~hteenth believe no military officer has been impeached for centuries in En- centm·.v, at the date of the formation of our Constitution. Tbis lat- ~land, unless be was in some manner connected with the civil admin- ter is tl1e power of impeachment that was conferred upon the Gov- IStration. · ernment of the United States by the clauses in the firRt article of the The records of the British Parliament through a history of many Constitution. This was the power of impeachment it was intended centuries, during which scores of impeachment trials occurred, fail should be e-xercised by this Government, save and except as it was to ilisclose, so far as we have been advised in the investigation of limited or extem1ed, if at all, either as to person, offense, or judgment, this case, a solitary case of impeachment except for official crime or by subsequent provisions of the Constitution. breach of public trust. The grant, therefore, containetl in the two The Constitution, we are told, is " an instrument of enumeration, clauses, "the House shall have the sole power of impeachment," and anclnot of definition," consefJuently the power is granted, while the "the Senate shall have the sole power to try all impeachments," aside definition of that power is left undefined: and while English history from any limitations that may be imposed by other parts of the Con- and English precedents confer no powers on our Federal Government., stitution, amounts in legal effect to this: Tl.Jat the House of Repre- t.hcy are both invaluable as aids in defining the powers that are sentatives shall have the power to impeach and the Senate to try all granted by the Constitution either expressly or by necessary impli- persons impeached for official crime; and by official crime I mean any cation. Impeachment bad for centuries forme-d a part of the juris- offense possibly necessarily a high crime or misdemeanor affecting prudence, if I may so speak, of the English government prior to the adversely the administration of public affairs, not of course neces- forruation of our Constitution. The records of the British Parlia- sarily only such offenses as are indictable either by btatute or the ment for a period of four hundred yea;rs were dotted with the history common law. And upon this power, as we have seen in so far as this of impeachment trials that had taken place prior to that date. The part of the Constitution is concerned, there is no limitation whatever, power of impeachment as exercised in England and the settled usage either as to the place where the offense is committed, t.he time when of Parliament in this respect were then well understood by the states- it is committed, or the status of the offender, either at the date of men of this country. They had been moulded into shape by the the impeachment or the time of trial or judgment. The power, there- lap e of ages and crystallized intoperfer.tform by an almost unbroken fore, of the House of Representatives t-o impeach and the Senate to line of notable precedents. The dim, shadowy outlines of the par- try all persons for all official crime being plenary and unqnalified, in liamentary lex non scripta of the fourteenth century had become the virtue of the two clauses of the Constitution quoted, it follows that well-defined parliamentary lex scripta of 1787. In fact, our Constitu- all persons now living who have at any time since the formation of tion was made in the full blaze of light, shed upon the subject by the our Government, while officers of the Government, been quilty of impeachment of Warren Hastings, the governor-general of India, official crimA, a-s I have definwl\tbese terms, are liable to imp8ach- after l.Jis term of office had expired, for offenses committed while in ment by the House and trial'1S"y the Senate without regard to f.he office. The conclusion, therefore, is iuesistible and logical that the question as to whether they have ceased to be such officers, unless in- men who framed our Constitution, the peonJe who ordained and estab- deed there are limitations upon this liability to be found in otl.Jer por- lished it., used the terms "power of impeachment" in the sense in tions of the Constitution. which these terms were at that time nnder~tood and used in the lex .Mr. Hamilton, inNo. 65 of the Federalist, in speaking of impeachable Parlianumti of England, and that they iutended by the clause in the o.fienses, says : second article of the first section of the Constitution to make a full, The subjects of impeachment are those offenses.which proceed from the mi. con· ab olnte, express grant of this power in such sense to the House of duct of public men, or, in other words, from the abuse or violation of somo public Repre entatives, and the further unqualified, express grant of power trust.. . to the Senate to try all such impeachments by the clause in the third What ~are these limitations, if any, relating to the character of the section of the first article, which reads : . offense or the status of the offender, either upon the power of the The Senate shall have the sole power to try a.ll impeachments. Honse to impeach or the Senate to try f The third section of the tirst ·what, then, was the true definition of the power of impeachment in article of the Constitution, after prescribing certain rules of practice the English parliamentary law at the time our Constitution was in cases of impeachment, provides first, that: framed f For to this great defining power, the law and prece- No person shall be convicted without the concurrence of two·thirds of the mem· dents of England-so often invoked by the hie preferable. For an American citizen, who ha been honor r1 by ele- does not attach to the jurisdiction, but to that which follows after vation to high office, who ha8 stood in the temple of official power, juri diction has attached. It affects the judgment, and that alone. It whose sword has been drawn in patriotism and wielded with honor operates on that part of the proceeding in impeachment in such a in defense of his country, whose ambition may have led him to grasp manner as t.o not trench in the slightest degree on the question of still higher at the reins of government, to be denuded by the American jurisdiction. The Senate could comply literally with this provis- Senate, in the presence of over forty millions of people, of all the ion in rendering judgment whether the party convicted was or wa.s rights of au American cit-izen, in so far as they relate to the right to not in office at the time of impeachment, trial, and conviction. The hold and enjoy any office of either honor, trnst., or profit under the clause is simply a limitation upon the power of the Senate in refer- United States, is, it occurs to me, to snffer upon his part a humilia- ence to the judgment it may pronounce; its language in efiect is, tion, a punishment if you please, which nothing save the security of "thus far shalt thou go and no farther." If the person convicted is the rights of the whole people, tha integrity of the nation, and au in office at the date of the rendition of the judgment,·and that is a honest and just administration of public affairs would seem to justify: civil office, you must remove him, and you ID!lY, in addition to this, The sole object of impeachment therefore i3 not merely removal add disqualification to hold and enjoy any office of honor, trust, or from office ; and while the purpose is not so much the punishment of profit under the United States; but beyond this limit you cannot go. the offender as the protection of the Government and the people If the person is in civil office he, under section 4 of article 2 of the against the venality of dishonest men in office, still the framers of the Coustltution, must be re11wved. If he is not in civil office then you Constitution evidently regarded the deprivation from holding and en- may disqualify him for one day or a month or a year or five years or joying office under the United States eqnally important to the ends for the term of his natural life from holding and enjoying any office of justice, the correct administration of public affairs, and the gen- of honor, trnst, or profit under the United States ; but l>eyond this eral welfare of the Republic, with that of the removal from office of boundary of disability you cannot go. Under the common and par- a dishonest man. But, notwithstanding the enormity of this penalty, liamentary law of England there was no limit to t.he jndgment the which in one sense seems to be little e1se tllan punishment, it i not Peers might impose in ca es of impeaclli. "'nt save that prescribed by after all any punishment within the meaning of that term as n ed in the conscience and discretion of those 1 ronouncing it, and the rec- criminal jurisprudence. Legal punishment in the administration of ords of that bloody court show that during the past five hundred criminal law is that which in some way, either to a small or large ex- years these judgments ranged time and again, aU tllrough the whole tent, affects the life, liberty, or pr!lperty of the citizen; and t.his dqes catalogue of disability and punishment, from that of a mere censure neither. It operates exclusively upon his political rights, and no de- to execution upon the block. This unlimited power in Parliament privation of political rights of the citizen in our Government is ever in the matter of judgment the framers of our Constitution in their inflicted as a punishment of the offender, bnt solely as a means of wi dom thought should be restricted, and, while as to t.h e persons who protection to the State. The framers of the Constitution did notre- should be impeachable they left the matter where the common law gard it in the nature of a punishment, and they therefore provided and n ages of Parliament left it, as to judgment they limited the that- power of the Senate by declaring that- The party convicted shall nevertheless be liable and subject to indictmen~ trial, Judgment in cases of impeaebment shall not erlend further than to removal judgment, and punishment according to law. from office, ancl disqualification to bold and enjoy any office of honor, tmst, or profit As stated by Mr. Justice Story- under the United States. His not so much desii!Decl to punish an offender as to secure the State againllt Wben, therefore, it is urged that, if we go to English history for !!fOSS official misdemeanors. It touches nAither his person nor his property, but a definition of the power of impeachment, we must take that defini- simply divests him of his political capacity. tion in all its unlirrUted range as to the form and character of judg- The third section of article 1 of the Constitution, as we have seen, ment, as well as to the persons impeachable; and when. for the pur- vests a discretion in the Senate within certain limit as to the extent pose of casting the veil of derision upon the assumption here of a of the punishment to be inflicted. This discretion i. not taken away position supposed to involve this fatal ab mclity, we are pointed, by the fourth section of the second article. The obj('cct doubtle of with an air of triumph, to the headless trunks, the pilloried forme, this section was not to confer jurisdiction nor yet to limit that juri - the separated quarters, of those who have fallen beneath the cruel diction already granted in a former section, but rather to limit the judgments of impeachment in the English Parliament, it is enongh tenure of office; not to impose a limitation npon the power of the that we should answer in the language of the framers of the Consti- conrt in reference to judgment~ but rather to make imperative one tution, who, while they selected that which was good of English ju- part of the judgment to be pronounced in a case where the offender rispmdence in the matter of impeachment and incorporated it into is in civil office at the time of trial and conviction; that is to say, our fundamental charter, modified· and corrected that which was that he sha.ll in such a case be removed from office. evil in reference to judgment declared: Again, the terrus "civil officers," as u ed in the fourth section of Judgment in cases of impeachment shall not extenrl further than to removal the second article, neither add to nor take from the cope of the juris- from otlice. and disqna.lifi.cation to hold and enjoy any office of honor, trW~t, or profit diction of grant in the second nnd t,hird sections of the fir t article. under the United States. The power of impeachment we have seen granted in the clan e , The power to disqua~lfy from holding and enjoying office does not "the House shall have the sole power of impeachment'' and" the depend necessarily for -its exercise upon the power to remove f1·om Senate cshall have the sole power to try all impeachments,' is limited office. The exercise of the one does not necessarily draw with it the to prosecution for official crime i that is to say, for offenses commit- exorcise of the other. They are two separate and distinct disabilities ted while in office affecting puolic matters. Therefore, all persons or punishmentli, if they may be propelii" termed such, and not depend- who could be impeached under our Constitution, even althongh tbe ent in their infliction the one upon tBfrother. They are not necessa- fourth section of the second article were stricken from its provisions, rijy copulative. They may be disjunctive in application. must be or have been officers of the Government, and mnst be chn rged But it is said the fourth section of the second article of the Consti- with offenses committed while in office affecting the just administra- tution has an important bearing upon the jurisdiction of this court, tion of public affairs. and while there is quite a diversity of opinion even among Senators The honorable Senator from Wisconsin says, in substance, if the sec- who deny this juri diction a to the precise office of this section, it. is ond section of the first article gives j oriscliction then the fo11rth -sec- asserted and seriously contended by able lawyers of the Senate that tion of the second. article has no office; it is uselm.-s; its in ertion in the only grant of power to the United States to impeach at all for any the Coustitntion was upon the part of the framers mal ente11dre. The offense is one of implication, resulting from the language here used. answer to this, howPver, is that without this section the vilest crim- It reans a follows: inal in t.he highest office of the land, impeached by the Hou e and The President, Vice-President and all civil officers of the United States, shall be convicted by the Senate of crimes dangerous in the extreme to 1he removed from office on impe:whmen t for. and conviction of, tt·eason, bribery, or other high crimes and mistlemeanors. well-being of the Government, might, through a blso st'ntiment of pity or error in juclgment of one more than one-third of the members It is said that, because this section declares that the President, present- when judgment is pronounced, retain possession of hi office. Vice-President, and all civil officers of the United States shall, on im- The fonrth section, therefore, of the second article performs in thiR peachment for certain specified offenses, be removed from office, it respect a high function in disrobing tile Senate of all di ·cretiou, and rai es a necessary implication, an implied grant of power to the compelling, ipso jm·e, removal from office. Federal Government to be exerci ed through the Hou e and Senate The particular location in the Constitution of the fourth section of to impeach and try uch officers for the specified oftEm es, and that the second article should, it seems to me, receive con idernt.ion in this is the sole jurisdictional grant on this subject. This I cannot giving construction to its purpose. If we hold that this clan e is a~M~ · juri dictional, if it is a definition of the power of impeachment, if it It is contended furthermore that the sole purpose of impeachment is a limitation upon the persons subject to impeachment., or tllo of- is rem·oval from office, and that, therefore, this clause of the Consti- fenses for which impeachment will lie, then indeed must we agree tution limits the jurisdiction of this Government as to persons in with Mr. Justice Story in saying: cases of impeachment to civil officers of the United States while in By some strange inadvertence this part of the Constitution has been taken from office. It is difficult of comprehension how it can, with any plausi- its natural connection, and with ·no great propriety ran~.ed under the head which bility, be contended that the sole purpose of impeachment is removal embraces the organization and ri_pbts and dul.ies of me exeoutive department. from office, wllen tlle Constitution in terms vests in the discretion of (Story's c.>mmentaries, volume 1, ~ 788.) the Senate the power to impose upon the convicted party an infliction If, however, we regard it not as conferring jurisdiction, not as limit- other than removal from office, and one, too, more terr1l>le in its char- ing the power of impeachment either as to person, offense, or judg- 'TRIAL OF WILLIA~I W. BELKNAP. Lll ment, but s1mply as a limitation upon the tenure of office in th:e case who are, in public office are liable to impeachment. In referring to of a person in civil office convicted of some ofiense included m the this language of Mr. Rawle, Judge Story, section "801, uses this lau- de irnation "treason, bribery, or other high crimes and misdemean- ~uage: ors,' then we are at once constrained to say t.hat no more appropri- .A learned commentator seems to have taken it for granted that the liabilHy to ate place could have been found for its insertion in our fundamental impeachment extends to all who have been, as well as to all who are, in public Jaw. Had it been intended by this clause to confer jurisdiction or office. limit the power of ~urisdiction, either as to perRons, oftell8es, or judg- In the opinion, therefore, of Justice Story, Mr. Rawle, so far from ment, why not, as ID the case of the article conferring and limiting failing to commit himself upon t.he question, and so far from merely judicial power, have inserted it under the appropriate head of the stating the two classes of opinions that prevailed, and which alone g1-ant of legislative powers in proximity with the claus6--7- for obvious reasons could by any possibility obtain in reierence to The House shall have the sole power of impeachment. this subject, had employed such language as showed that be had. taken it for granted "that the liability to impeachment extends to The fact that it appears under the general head of matters relating all who have been, as well as to all who are, in public office." to the executive department of the Government, placed there in this It must be conceded, therefore, willingly or otherwise, for what- model production of the century by men so eminent for appropriate- ever it is worth, that .MJ.·. Rawle, in his Commentaries on the Consti- ness, style, and arrangement as were its framers, is an item not to tution, asserted the doctrine unqualifiedly-and he was a strict con- be overlooked in giving construction to its language. I hold, there- structionist-that under the Constitution all persons who have been, f,)re, that section 4 of article 2 is in none of its features repugnant to as well as all who are, in public office are liable to impeachment the general grant of power in article 1; bnt that it is in all its parts for impeachable offenses committed while in office. And can it be harmonious and consistent with all former clauses of the Constitution said, even after all that is claimed from Jndge Story's opinion on this relating to the subject of impeachment; it is in no sense a jurisdic- subject, that he (Story) joins issue with Mr. Rawle in this opinionf tional grant of power either expressly or by implication, nor is it a Will it be contended in the face of what I am about to quote from liwitation upon the power before granted eithP.r as to persons im- Mr. Storythat he ever at anytime a.sserted that the contrary of what peachable, the offenses for which they may be impeached, or the Mr. Rawle stated was the true doctrine? Most certainly not. judgment to be rendered; that its meanin~ is, in short, simply this, After referring to the several clauses of the Constitution bearing nothing more, that in all cases of impeachment of a person who is upon the subject of impeachment, and after stating in reference to a civil officer at the time of trial and conviction for any offense in- ane clause that so and so appeq,rs to be the case, and in reference to cluded in the designation "treason, bribery, or other high crimes and :mother that "it would seem tofollow"that so and so were true, he, mh,demeanors,'' the persons so convicted shall be removed from office; Judge Story, concludes and dismisses the whole subject in section auu if, under the common law and by parliamentary usage, as it existed 805 in these words: at tbe formation of our C?>nstitntion, any other persons than civil offi- It is not intended to express any opinion in these commentaries as to which is cers in office could be impeached for any offenses, whether included the true exposition of the Constitution on the points above cited. The.v are brought or not in the catalogue, "treason, bribery, or other high crimes and before the learned reader as matters still sub judice, the final decision of which may misdemeanors;" or if, under that law and usage, civil officers could the be reasonably left to the high tribunal constituting the court of impeaehment when OCClU!ion shall arise. be impeached for any offense not included in that catalogue or desig- natiou of offenses-and these are questions I do not decide-that then Justice Story, therefore, does not decide the question; he does, if all such persons as to such offenses can be impeached under our Con- we may take him at his own word, not even so much as '' express any stitution irrespective of section 4, article 2, and just as though such opinion" in his commentaries "as to which is the tme exposition of section were not in the Constitution. the Constitution" in reference to the very questions which to-day But it is asserted by some who deny jurisdiction in the case at bar, separate in opinion and judgment the members of this Senate. On with an air almof!t akin to defiance, that the universal current of the contrary, he, unlike Ra.wle1 who decided the contro"9'ersy, simply opinion of .American commentators is to the effect that impeachment brings it "before the learned reader as a matter still sub jttdice, still would not He against a person not in a civil office of the United States under consilleration, and one which in his judgment should be rea- at the time. And especially is the commentator Story relied npon as sonably left to this high tribunal for final decision when the occasion conclusive on the question. To this assumption, and in opposhion to might ari e. That occasion has at last arisen, and here and now the it, I refer to Rawle on the Constitution, section 801, in which he m~es great question must be forever settled. For nearly a century it haa this language: been sub judice by American commentators and the .American bar; diverse opinions have been held and expressed, it is true, and now it From the reasons already given it is obvious that the only persons liable to im- peachment are those who are or have been in public office. is for the first time before the proper tribunal for adjudication. What has been sub judice for nearly one hundred years must for all Is it conceded by those denying jurisdiction in this case that this future time be res judicat4. indeed is an exception f that here in truth is one .American commen- It bas been suggested that if the impeachment by the House had tator of ability as a writer on constitutional law who holds and states taken place prior to the act of resignation, that then the case would the opinion unqualifiedly that persons who have been in public office be different, upon the principle that; jurisdiction having attached, the a well as persons who are in public office are liable to impeachment' Senate could proceed to try. The view I take of the Constitution I do not understand this concession to have been made by any either renders it unnecessary that I should pass upon this question. I can- of the learned counsel for the defense or the able Senators who have not conceive, however, that it would make the s}jghtest difference in argued against this jurisdiction. On the contrary, itiscoutended with any possible view of the case in so far aa the jurisdiction of t.he Sen- earnestness that Mr. Rn,wle, in the language quoted, did not mean to ate to try is concerne-d. assert that a person not in office, but who had been, could be impeached. If the construction contended for by those who deny this jurisdic- And in t.bis attempt to show that he did not mean tbif:, but did mean tion is correct; 'if to confer jurisiliction the accused must be a civil something else, the reasons given are diverse and sadly in antagonism officer; if the _sole purpose of impeachment is removal from office; with certain ot.her positions taken by advocates on that sitle of the and if no judgment in impeachment can be rendered except there is question. One of the honorable counsel for the defense, Mr. Carpen- included in it, ~nd as a part of it, removal from office, then it follows ter, in referring to tbi clause, disposes of it in this cursory m2.nner: as a legal and logical sequence that a resignation even after the con- Three words, "or have been," are all they claim any comfort from in this pa..,sage clusion of the trial, and before judgment pronounced, would oust the front Raw le-an instance of the caution. of a writer in laying down a ~eneral prop- jurisdiction of the Sena~, prevent any judgment whatever f~om be- o ition to throw in here and there qualifications which may or may not exist. ing rendered, the whole proceeding would abate, the accused though An argument based upon the limitetl number of words in which the perhaps covered with the infamy of his crime would go forth a free capability of a writer on constitutional law may enable him to state man with the ri~ht, provided he could through a repetition of his his conclusions is one hardly calculated to add to the professional crime, or otherwise, command the power to receive a new commission fame of such eminent counsel when used in such an important pro- the next day, only to be surrendered perhap15 after another trial by ceeding as this. The question is, what do the wordR actually used impeachment in time to again defeat the judgment of the Senate. mean, without regard to the number of words employed by the Any construction, however, of our fundamental law that would make learned C(Jmmentator. such a course possible; that would make the whole constitutional But it is contended by others, the honorable Senator from New Jer- power of impeachment liable to suspension at the will of the accused sey, [Mr. l!"'RELL~GHUYSEN,] the honorable Senator from New York, criminal; that would, as it unquestionably does in effect, practically [Mr. CONKLING,] and the honorable Senator from Wisconsin, [:Mr. destroy this protection to the Government against the evil practices HoWR,] and perhaps others, that what Mr. Rawle meant to be under- of dishonest men who are in office and of others who have been and stood as saying by this language, and what he did in effect say, is may be again, is to my mind unreasonable, illogical, dangerous to the this: That from the reasons which had preceded it was obvious that best interests of the Government, and unwarranted either by its let- there were but two classes of opinion extant in reference to the ter or spirit. pe~ ons that could be impeached, the one being to the· effect that The fact that the Constitution empowers the Senate to disqualify, those holding civil public office were liable, and the other, which in- as well as remove from office, would, it seems, be a perfect 'uswer cluded both, namely, those" who are or have been in public office." to the assumption that the sole purpose of impeachment is the re- It seems to me, from a careful reading of the clause, giving to each moval from office. To prevent, therefore, in the discretion of the word its legitimate office, it may with much propriety be said that it is Senate, a return to office of one who had proved unworthy while in obvious that such a construction is illogical, unwarranted, and unsound; office, to the extent of commUting an impeachable offen ·e, was evi- besides, Judge Story, upon whose statements so much stress is laid in dently regarcled as a means of protection to public liberty, so neces- opposition to this jurisdiction, cites l\fr. Rawle as one commentator qary to the gnardlanship of the bi~h interests of the State as to secure who ~eld to the doctrine that those who have been, as. well a.s those for it a place in explicit terms m our fundamental law. To pla.ce • 112 TRIAL OF WILLIAM W. BELKNAP: upon the Constitution, therefore, such construction as would make it The House of R~presentatives * * * shall have the sole power of impea.ch- possible for a great public offender, by the simple voluntary act of ment. (Article 1. ection 2.) The Senate shall have the ole power to try all impea.chments. When sitting for resignation, to evade this part of the penalty, and thus trample, un- that purpo t.\ they shall be on oath or affirmation . When the P 1esident of tho checked and defiantly, upon one of the great constitutional protections United States is ti·ied, tho Chief Justice shall preside: and no person shall bt} cun- wit.h which the rights and liberties of the whole people are surrounded, victed without the concurrence of two-thirds of the members present. (Articlo 1, is, it seems to me, to cast a libel upon the wisdom, the intelligence, section 3.) Judgment in cases of impeachment shall not extend furt her than to removal from the le~allearning of the men who made the Constitution. office, and tlisqualificatiou .to hold and enjoy any office of hQnor, trust, or profit un- While to the President was given the power to grant reprieves and der the Unitecl States: but the party convicted shall neverthele s be liable and pardons for offenses against the United States, an exception was made subject to indictment, trial, judgment and punishment, according to la.w. (Article 1, section 3.) in cases of impeachment. This is the ''unpal'donablesin" of tlle Con- The President, Vice-President and all civil officers of the Unit.ed States, shall be stitution. So dangerous was the commission of an impeachable of- removed from office on impeachment for, and conviction of, treason, bribery, or fense regarded. by tlle framers of the Constitution to the vitality and other high crimes and misdemeanors. (Article 2, section 4.) purity of the life of our body-politic, that the offender is placed forever The President * * • shall ha>e power to grant rep.hwes and pardons for of- fenses against the United States, except in cases of impeachment. (Article 2, sec- beyond the reach of restoration through executive clemency; and yet tion 2.) will it be said that the criminal himself, after polluting the official The trial of all crimes, except incases of impeachment, shall be by jury. (Article robe and tainting the public virtue by his own official crime, can 3, section 2.1 evade the penalties of the Constitution and batter down the safe- 'These embrace all there is upon the subject. It must in all fair- guards of the nation by quietly surrendering his office f Can be thus ness be conceded that these promions should be construed to mean pardon his own offense before conviction f I cannot accept a con- no more and no lefs than the words employed conveyed at the time struction so fatal in its results to the very existence of the power of in the country from which they were borrowed, except so far as the impeachment incorporated in the Constitution. provisions themselves were directly modified and restrained. If for I am clear, therefore, in my conviction that the true theory of the no .other purpose, the common law may be resorted to at least to ob- Constitution in respect of the power of impeachment was declared tain the real significance of the legal terms used in the Constitution, by Ex-President John Quincy Adams in the national House of Rep- and with as much authority as the English cia: sics may be for the re entatives in 1846, when in speaking of this power he used the correct usage of other words in.our language. Even conceding tha.t following language: the common law gives no additional constitutional power, it will yet And here I take occasion to say I differ from g"ntlemen who have stated that the interpose against an erroneous definition or any curtailment of tlle day of impeachment bas pa sed by the Constitntion from the moment the public meaning of its phrase&. · office expires. I bold no such doctrine; I hold myself, so long as I have the breath The case llefore us arises upon the presentation by the House of of life in my bod.\', amenable to impeachment by this House for a.uything I did dur- ing the time I held any pulllic office. . Representatives of articles of irupeachment..against General William And when interrupted by Mr. Bailey, of Virginia, with a criticism W. Belknap, late Secretary of War, who pleads that here igned his in the shape of the following interrogatory: "Is not the juligment in office a short time before and on the same ua.y the article were moved. case of impeachment removal from office 7" The old man eloquent, in the House, ~d therefore is not liable to impeachmAnt. Under the the veteran statesman of four score years, responded as follows: apt and thoroughly defined phrases of the Con titution, and under the circumstances as stated, the question pending is: Has the Senate And nisqu:tlification to hold any office of honor, trnst, or profit under the United States forever afterward; a punishment much weakw iu my opinion than removal jurisdiction t from office. It clings to a man as lon~r as he lives ; and if an .,- public officer ever At this point, the question as to the guilt or innocence of the re- pnt himself in a J?Osi.tion to be tried by impeachment, he would have very lit tle of spondent is in no way concerned, and therefore the limitations as to my good opinion if be did not think disqualification from holding office· for life a the final judgment of this court, or the consequences which may fol- more severo punishment than mere removal from office. I hold therefore, that every President of the United States, every Secretary of State, ever.v offi cer im- low, are not matters for our present consideration. Nor does it affect peacbable by the laws of tho country is as liable twenty years aft~r his office ex- the case at this or any other stage that he may be tried and punish ell pired as be is while he continues in office.- Congressional Globe, April13, 1846. in the criminal court according to law .. That is an incident which But. it is said if in this case the Senate should take jurisdictjon it may follow any and all impeachments. It may be more important, opens a door so wide that ex-officials who have years ago retired from however, that we should pre erve the Constitution in that full bnt office will be dragged from their homes in private life and placed ru1exaggerated force and iL. that entire symmetry with which it left upon trial before a political tribunal for alleged official offenses; the hanus of the original framers, and a refusal by the Senat.e to ex- tllat it will establish a rule of construction for the several States ercise powers actually conferred, if they have been conferred, deny- that may operate practically in ·the same way, to the detriment of ing tlle right of the House to impeach an officer who has resigned, the administration of public justice and 1he deprivation of private would go far toward establishing a precedent that might practically ri~hts. As a preventive against abuRe in this direction may we not destroy the efficacy of all future impeachments, and that in cases wtth perfect composure rely upon that sense of justice and propriety po ibly much more flagrant and important than the one now pre- which must be presumed to exist at all times and under a.Jl circum- semed. Is tl.Jis to be the last case to appear in our history f Are we stances, whether under one administration or anotller, in the national to make a breach in the Con titution for the noiseless retreat of a House of Representatives and in the houses of repre entatives of the whole class of the greatest official criminals t several States. May we not with perfect confidence trust to their As it seems to me, from a common-sense view-and I speak with sound discretion for _protection against proceedings by impeachnient much diffidence-the points most deserving attention are: for offt>nses that are venial in tlleir character, and those that have First, llas the House of Representatives the power to impeach f been condoned by the lapse of time or par follow. !Jut .sitting understand the meaning of the words impeachment and pardon! The here as ajudae, to pas upon a great constitutional question, mvolv- absurdity of such a claim approaches sublimity. The school-boy ing the cons~uction of the or~anic law,_ on a po~t where the _r~ghts knows the meaning of the word pardon when he escapes the deserved of a citizen are to be determmed, ay su, the nghts of all citizens birch through the clemency of his instructor; we know, without any who may have held or shall hereafter hold civil or military or naval reference to the common law of England, the full force and meaning office under the Government of the United States, I should be false of the Norman-Fr·~nch word impeachment. We do not know with- to myself, false to those principles which have ever governed my pub- out reference to that common law and its impeachment procedure lic life, if I hesitated to announce the reru!Ons which control my ac- the damnable atrocities which have been again and again a thousand tion. The Constitution of the United States is an instrument of dele- times perpetrated by invoking its capricious power against the Eng- gated powers, delegated by the people of the several States, :;tnd its lishman. The framers of the Constitution of the United States·were provisions are to .be construed strictly. We are to take the mstru- well aware of the atrocities which had been perpetrated in England ment as it is, not as we would have it. We are not constitution- under the name and forms of law; and in my judgment they framed makers, but the servants of the makers, the people of the States. If an instrument which, under the proper and legitimate exercise of the the instrument is faulty, let it be amended in such particular accord- powers therein contained, will preserve alike the purity of the Gov- ing to its terms, and not force a construction to meet the requirements ernment and the sacred rights of the citizen. It may be pleasant for of a present contingency. the historic student, indeed it may be useful, to trace the right of Senators have gravely said "that the great men, the fathers who . trial by jury baek to the times of the heptarchy, and he may fancy framed the Constitution, were wise men, men who would not have so a resemblance between the representative assemblies of our days stultified themselves as to have given to their posterity an instrument and the Witans or Wittenagtmwtes of the Saxon Alfred and his kingly which could be defeated by the very act of a delinquent officer." . fu~ ! Such language can have no power or inftuence upon my mind; it begs But, sir, we go not into the regions of the musty past to ascertain the issue, and to it I attach no importance. the constitutional rights of the citizen of the United States, nor the The question is, what did the fathers do f Not whether they were powers of the Senate conferred by an instrument which is our su- wise or unwise; not whether the convention which formed the Con- preme law. And, sir, I beg to say right here that, had thd procedure stitution might not in many particulars have performed better work. of impeachment never obtained in England, the framers of the Con- Every Senator knows, it is a matt-er of history, that the Federal stitution would have found a way to get rid of corrupt and t.hieving Constitution would not have been adopted as it came from the hands officials, as they had found a way to rid themselves and their descend- of the framers by several of the Stat-es ; and many amendments were ants from the tyrannous exercise of the parliamentary law of Great demanded before a people jealous of their rights would submit to its Britain. And now, sir, to the question: Under the Constitution of government. · the United States, regardless alike of English precedents or the legal Therefore I say that the question of the wisdom or unwisdom of atrocities practiced under them, can the Senate proceed to assume the framers of the Constitution is unworthy the consideration of this jurisdiction in· the matter of William W. Belknap, late Secretary 'of ti·ibunal, and will not be entertained in its deliberations. By the War, now a private cit-izen of the State of Iowa and of the United terms of the Constitution has the Senate jurisdiction of the matter States 7 It is confessed that he was Secretary of War when the al- now pressed upon its consideration by the House of Representatives t leged crimes were perpetrated; it is admitted he was a private citi- Can a private citizen be tried by this body under articles of im- zen when the Honse of Representatives preferred its articles of im- peachment alleging criminal conduct of said citizen at a time when peachment. he was in the enjoyment of a Federal office f The meaning of the word impeachment, the full power thereof, the This is the sole question, and into it must not be interjected other mode of procedure thereunder, in Great Britain, were perfectly and and extraneous matter; not the time when the delinquent officer re- thoroughly understood by the men who composed the convention of signed nor the reasons which impelled him to a resignation; with all 1787. They deemed it wise and proper to place the power of im- that we have nothing to do. Have we the power to try a private citi- peachment, to a certain, well-defined, and limited .extent, within the zen Y It is not to be denied that as the House of Representatives has provisions of the organic law, and I will now address myself briefly the power of impeachment, so the Senate is the only body or tribunal to the consideration thereof, fully satisfied ,in my own mind that a possessing the power to try; but if the House exercises its power wrong- conclusion can be arrived at which will conform to the necessities of fully, no jurisdiction is conferred thereby on this body, and the Senate the age in which we live, without reflecting upon the wisdom of the should at once assert its independence and dismiss the articles of im- fathers. peachment. Can a private citizen, then, be impeached by the House I call the attention of the Senate to the constitutional provisions of Representatives and tried by the Senate for criminal acts done and relating to the subject-matter, and, though other Senators have so performed during the time that said citizen held an office under the done before me, it is necessary that I should again do so, in order Federal Government T • that my views may be properly presented ; therefore I proceed by It may be said there a,re no precedents to govern, assist, or en- saying that section 2 of article 1 of the Constitution refel'8 to the con- lighten us, and that in this case the Senate of the United States will struction and powers of the House of Representatives. Therein I find establish a precedent for all the coming years. I pray it may be a the following: wise one, one which will be respected by the future Senates who The House of Representatives shall choose their Speaker and other officers; and may be called to pass upon questions of a like character. There ru-e, shall have the sole power of impeachment. however, two precedents which have great weight with me, and to In my judgment there is no grant of power contained in this lan- which I shall here3.fter direct the attention of Senators, to wit, the guage. I tis, so to speak, functional; in other words, descriptive of one Blount case and the action of the convention which formed the pres- of the functions of the House; merely descriptive of where a power ent constitution of the State of New Jen;ey. "is to be located, to be elsewhere in the instrument defined. But, sir, Senators have succeeded in :finding English precedents by I think I cannot be mistaken when I assert that here is no definitive the score. I desire to say that in the consideration of this grave and power granted, and, unless I greatly err in judgment, I shall elsewhere important constitutional question English p1·ecedents will have no find in the instrument full, definite, and perfect power. controlling power over my mind, and I thank God for what I believe I next direct the attention of the Senate to section 3, article 1. I to be true, that English precedents in this particular had no govern- find this: ing weight in the minds of the men who framed the Constitution, The Senate shall have the sole power to try all impea~hments. When sitting for men who for years had suffered under the tyranny of that very House that purpose, they shall be on oath or affirination. When the President of the of Lords whose judgments are now invoked as precedents to govern United States is tried, the Chief Justice shall preside; and no person ahall be con- a Senate of the United States in the decision of a question resting in victed without the concurrence of two-thirds of the members present. Judgment cases of impeachment shall not extend further than to removal from office, and solely upon the provisions of the Constitution! disqualification to hold and enjoy any office of honor, trust~ or profit under the United I am amazed, sir, absolutely amazed, that Senators for whose opin- States: but the party convicted shall nevertheless be liable and subject to indict- ions I confess to have entertained entire confidence should seek the ment, trial, judgment and punishment, according to law. parliamentary law of Great :Britain to solve a question arising under This section is 'also, in my judgment, simply functional and descrip- that written instrument which itself is the sup1'cm.e law of the land! tive. It is fully and thoroughly de~criptive of the mode of procedure And, sir, we are gravely told by distinguished Senators, that the in the Senate, to which body is given the power, the sole power, to try modes of procedure adopted by the Parliament of Great Britain in all impeachments. As a descriptive, functional section it is well de- caaes of impeachment must have governing power in the delibera- fined: tions of this Senate upon a grave and important question. Sir, for First. The Senate is t.o be on oath or affirmation. one, perhaps the least in consequence of the members of this Senate, Second. In a particular case the Chief Justice to preside. I deny it; as a citizen of the United States, I deny it; as a humble Third. Necessary number to convict. member of that great and patrioti~ party-and, sir, I beg pardon for Fourth. Extent of judgment. .. using the word party-the cardinal legend of which is, "strict construc- Fifth. Party convicted subject to trial according to law. tion of the Constitution," I deny it. Sir, I have been taught in a Thus the descriptive and functional power of the Senate ia in this school which forbids the exercise of power by any branch of the section, as I previously suggested, perfect and well defined. TRIAL OF WILLIAM W. BELKNAP. 115 By implication, and by implication merely, I gather from this sec- But, says a distinguished Senator, "the Constitution does not in tion that a President of the United States may be subject to impeach- terms say that an official who resigns his office for the very purpose ment and trial by the Senate, and possibly other persons. I say pos- of avoiding impeachment shall not be snbjected to trial." That is sibly because the language is too indefinite to permit me to say that, quite true; and a sufficient ·answer to that may be found in this re- by implication even, any other person than he who holds the presi- mark: What the Constitution does not say, either expressly or by fair dential office could under this section be impeached and brought to and honest inference, we may do, tlwt the Senate cannot do. The trial. . power is denied when ungra'nted. And right here I desire to say a word as, to my understanding, to Let us view this question for one moment only. I promise to be the singular reasoning deduced from this section by the distinguished brief, and therefore ask the attention of the Senators who do me the Senator from Vermont, [Mr. EDMUNDS.] And in this connection I honor to be present, from another stand-point. I insist that section beg to remark that I am possessed with a high estimation of his .abili- 4, article 2, contains not only the grant of power to impea~h, bnt the ties as a constitutional lawyer, and therefore my surprise at the course classes of persmts subject thereto: of his reasoning. Dwelling with peculiar emphas:i,s upon the word The President, Vice-President and all civil officers. "person" contained in this section, he argues that in that word-" per- son" he finds authority for t.he Senate to try persons other than of- Abandon this construction and the Senate is a.t once at sea, on the ficial delinquents, persons in office; and again and again be charged wide ocean of mental conjecture, and will be logically forced to the upon the word "person" and rung the changes thereon. conclusion of the honorable Senators from Maryland and Oregon, as And this little word seemed to operate in like manner upon the I understand them, to wit: Every man, woman, and child in the mind of the distinguished Senator from Iowa, [Mr. WRIGHT.] And United States, capable mentally of committing crimes against the the effect of the word " person" upon the mind of my distinguished United States, is liable to impeachment. In office or out of office, friend from Maryland is absolutely appalling. Under it, by its won- ex-officials and those who have never been in office· are all equally derful potency, he finds authority for the Senate to try all the civil, liable. military, and naval officers of the United States, and possibly, if the If the law of the English Parliament is to be injected bythisforce- parliamentary law of England is to obtain here, every person in the pumpprocess into the Constitution of the United States, the base use United States; all the subjects of the realm, as the cherished English which may be made of this high court of impeachment is evident t.o anthorities would express it. . the most ordinary minds. I say may be made. I do not say that snch I confess that I am surprised that three distinguished Senators will be even a probable result; but I do insist that snch a construction should rest their main argument upon so slight a foundation ; but I as is sought to be given to the great charter of our liberties would am in error; I ought not to say that I am surprised, for take this prop make the Senate "the hewers of wood and the drawers of water," away and the entire superstructure falls to the ground. This is the and extremely dirty water,· for a venal and corrupt House of Repre- base, the foundation, and without this claim, to use a somewhat vul- sentatives, excited by party passion and heat beyond the bounds of gar yet nervous expression, they are nowhere. rea-son and justice. But, say other Senators, "such a state of things Let us examine this point again: . can never exist, because this common-law doctrine of impeachment And no person shall be convicted without the concurrence of two-thirds of the can only be brought to bear against persons holding civil office or such members present. as have held civil office under the United States." Is it so f Ah, Sen- Is it possible that there can be in this little word any hidden mean- . ators, you are at sea, in a leaky ship, destitute of rudder or masts or ing, hidden to my mind, the common mind, sufficiently powerful to sails, a mere hulk, where you are unballasted by t!;e material of the change the plain and evident sense of the language7 Constitution! One class of senatorial pilots endeavoring to force Suppose I alter the sentence slightly, thus: "And no conviction your frail craft to one port and another class seeking a different shall be had without the concurrence of two-thirds of the members haven. present." To my mind, and I think to most minds, the meaning of Again, by this, andinowmean the most moderate, construction every the sentence would not be changed in the slightest degree. It would man in this broad land who ever held office under the United States prior remain the same, and be much improved in euphony, by the altera- to the late terrible civil conflict, and did so at the time of the com- tion in the text. mencement of hostilities and deemed it his duty to side with his sec- I do not deem it necessary to elaborate this point. A mere statement, tion, would be liable to the pains and penalties of impeachment. But in my judgment, concludes the matter. says some Senator, "Do you believe that there will ever be a. House I next call the attention of the Senate to a part of section 2, arti- of Representatives a. majority of which could be found to pursue. a cle 2, and will read all that relates to the matter in hand : course so suicidal to the best interests of the conntry T" I hope, trust, He- and pray not; God only knows the hearts of men and the history of The President- the future of our country. I kno-w that a construction of the organic shall have power to grant reprieves and pardons for offenses against the United law such as is sought to be given would place this dangerous power States, except in ca.sea of impeachment. in a House of Representatives. What such Honse would do when in This is only important in this view, and in my opinion is entirely the possession of it is quite another question. At all events, sir, re- conclusive against the claim of certain honorable Senators. The fuse to-day to so construe the Constitution, and all the Houses of claim is that the parliamentary law of Great Britain, its precedents Representatives who come after ns will understand that the Senate for the last five hundred years, running through the bloodiest period of the United States will stand as a breakwater against all such of English history is and are to be used in construing the meaning stormy action. of our Constitution, the framers of which are said to have aded with Again, sir, adopt the construction which is claimed by ce;tain Sen- a full knowledge and intent that it would be so construed; and yet, ators, and every person who held a military or naval office duringthe the power to pardon a person wrongfully convicted in the heat of late, or any other war, or no war, who ever held snch-an office, is party passion was denied to the executive in all cases; a.· power be- liable to impeachment. My good friends, the honorable and gallant longing to and exercised by the Crown of England for a thousand Senators from Rhode Island and Illinois, must look well to their years I In my judgment such a claim does not run on all-fours with records, for they were once military officers under the United States, either common humanity or common sense, and deserves the repro- and are therefore liable to impeachment on a. trumped-up charge of bation of us all. maladministration dnring their commands. Sir, the English law I beg now to direct the attention of the Senate to the last remain- seized in its iron grasp all of her people: queens, princes, peers, com- ing provision of the Constitution relating to this subject-matter- moners, priests, counselors, women, military men, naval men, cut section 4 article 2 : the heads from some bodies, disemboweled others, strangled some Tho President, Vice-President and all civil officers of the United States, shall be throats, put the rope round other throats. Thank God, sir, none of removed from office on impeachment for, and conviction of, treason, bribery, or these barbarous acts perpetrated under the sanction of English pre- other high crimes and misdemeanors. cedents and by the authority of English law can occur under the Here I find the full, perfect, and absolute grant of power explicitly Government of the United States, no matter what construction is announcing the persons who are subject to impea~hment. given to the Constitution. · First. The person clothed wit.h the office and exercising the pow- But, Mr. President, in times of high political excitement strange, ers of President of the United States. most strange judgments have been pronounced even in the United Second. The person exercising the powers of Vic a-President of the States. We have seen in our own days an eminent citizen, a resident United States. of a State where the courts of the United States and of his own State Third. Each, every, and all of the civil officers of the United States. were open for the trial of all persons charged with crime under the Here I find the full, complete, and perfect list; as Mr. Owen would Constitution-we have seen ncitizen, who should have been either pro- say, the "sum total." The persons who, not by the law and prece- tected by the law or convicted by the law, haled from his house in dents of Great Britain, but by the Constitution of the United States, the dark hours of the night, tried by a self-constituted tribunal ut- may be subjected to the ordeal of impeachment are here definitively terly without legal authority, and visited with a punishment in vio- named and classified: Persons in -office, not out of office. The person lation of his rights as a, citizen, in violation of law, in violation of the holding and enjoying t-he office of President or Vice-President, and Constitution! any other person in the enjoyment of any civil office. Is there the So far as possible, let the Senai]e of the United States protect the slightest doubt about the true meaning f Can there be two opinions citizen in his rights guaranteed by the Constitution. about it Y Certainly not. And whyf Because each and all are to The beautiful and accomplished" Frenchwoman, Madame Rolanda, be removed/ron& ojfice on impeachment and conviction of any offense standing under the ax of the accursed guillotine during the bloody of the characternamed in the Constitution against the United States. carnival of the revolntion in France, exclaimed: A person must be in office to be removed therefrom. 0, Liberty, Liberty, what orimes are 11erpetrated in thy holy name I 116 TRIAL OF WILLIAM W. BELKNAP. ·.. Beware how you strain your constitutional authority under the chief justice in his amendment, that is, to extend the time of im- specious, false, and dangerous plea of necessity. peachment two years after the termination of the office. Mr. President, ~he point was well ta~en, and forcibly and elo- Then, sir, we have upon this great and important question. the quently put by my distinguished friend, the Senator from New York, opinion of many of the ablest jurists of New Jersey that previous [Mr. CoNKLING,] the other day, that for nearly a century, for nearly to the adoption of her constitution in 1849 a person must have been a hundred years, for a. space of time during which our planet has in office in order to have been subjected, in that State, to the proce- thrice lost its population and thrice by the inevitable laws of nature dure of impeachment. · regained it, no articles of impeachment have ever been preferred by For one, I value this precedent a.s of more importance than all the House of Representatives except against persons in the present those which England oan furnish. enjoyment of civil office under the Government of the United States. A question was put to the honorable Senator :&om Indiana I think No claim by that branch of the Federal Legislature having the power six times, and my honorable friend answered it as many times as it to impeach, since our existence as a people, has ever been made until was put. The honorable Senator is quite able to answer all questions the year of our Lord 1876 that any person could be impeached unless and to meet all antagonists, but he will pardon me if I add to his in the enjoyment of office. answer. The question wa&: "Would not the power of impeachment I desire also to say that the decision of the Senate in the Blount be full and perfect if section 4 of article 2 had not been pla-ced in the case fully sustains the position that no person can be impeached un- Constitution f" I think the question an exceedingly improper one, less in the enjoyment of a ci:vil office under the United States. That because no Senator baa a right to suppo e that any of the ections case has been so fully and thoroughly discussed that I will not take relating to impeachment could or would have been adopted by the the time of the Senate further thereon. convention, except in the very shape in which they now are. The Con- Many Senators seem to ent~rtain 1ile opinion that disqualification stitution is a work of compromises, and men gave their adhesion to from holding Federal office is the great constitutional penalty; not matters to which they were opposed upon the condition that checks removal from office ; and that the evident purpose of the Constitu- in the shape of additional sections were accepted by other men. tion will be defeated if that instrument should be construed in the The opinion of Judge Story, who is regarded by many distinguished manner indicated by those Senators with whom I class myself. Senators as one of the ablest of our constitutional lawyers, was clearly Here I lihink is the fatal error of the reasoning. In my judgment in favor of the opinion that no person could be impeached unle s actu- the great penalty to a public man consists in this: ally in office. First. To be charged by the grand inquest of the people,· the House In this opinion of Judge Story I have the more confidence from a of Representatives, with maladministration in office, with the com- fact which will be conceded by all Senators, to wit: the bent of his mission of grave crimes aga1nst the pu~lic weal; to be impeached mind was favorable to a broad, not to say unlimited, construction of therefor before the Senate of the United States in the gaze of the the powers granted in the Constitution. intelligence of the world. · I have in my mind a notable case to which I desire to call the at- Second. To be stripped of the official robes; cast from office a dis- tention of the Senate, apprehending that it will have great weight in honored man, to be forever thereafter the mark for scorn's unmoving sb.owing the opinions of gentlemen eminent for their ability upon finger. . the point now under discussion. I allude to the impeachment of .A.nd should the accused official, in hot haste to avoid the procedure President Johnson. I believe, and have satisfactory re ons for my of impeachment voluntarily in the face of the terrible and damning belief, that for days, ay weeks, the procedure again t him halted be- char~es against ~ resign the office w hioh he has disgraced, the re- cause the gentlemen having the matter in charge knew that a mis- sult 18 the same to him and to the country. He stands forever dis- description would be fatal and were uncertain whether to allege that honored before his countrymen, a moral leper, and the criminal law he was President or acting President of tbe 'Qnited States. The idea seizes him in its iron grasp to inflict condign punishment. was scouted that he could be proceeded against for acts perpetrated But, say objecting Senators, he is not disqualified from holding when he was in the enjoyment of the office of Vice-President, and office, and therefore the people are not protected to the full extent there were such acts which need not here be more particularly allu- demanded by the Constitution. Ah, llr. President, is it so f That ded to. The af!tute and versatile Stevens of Pennsylvania. was called presupposes that the people will elect as their Chief Executive a man into the troubled council, :md even he, renowned among all the men so destitute {)f correct principles and official honor as to permit him of these latter days as the man who had driven this damnable doc- to nominate to the Senate for Federal position a thief, a dishonored trine of necessity over and through the Constitution, even he, this and disgraced felon; and, further, that a majority of the Senate are man of Danton-like nerve and audacity, dared not place before the so degraded and debased that they will approve and confirm the Senate articles of impeachment against a person and describe him as nomination of a corrupt and venal Executive. late Vice-President of the United States. Sir, however this may strike the minds of Senators, of course I will No, sir; no, not until the year 1876, the centennial year, was the. not undertake to say or predict; but a. mere glance at the point con- discovery made in our history that a person could be proceeded against vinces my mind that disqualification from holding office in fact is no who was the late holder of an official position. For nearly a hun- penalty, because either the removal from o:t'fice by impea-chment, or dred years have this people, on this question, traveled the old, plain the resignation of office to avoid impeachment, is in itself an eternal political pathway marked down by the fathers. For one, an wering barrier to the person who has violated his official obligation and pros- for myself alone, I shall pursue the same course, and follow not after tituted his personal honor. the new doctrines of strange gods. I have alluded to the action of the convention of the State of New .AP. a sincere and honest believer in the doctrine of State-rights, Jersey as affording a precedent which should be entitled to great knowing that the true interest of forty millions of people who inhabit weight in the consideration of this important question. now this broad land, and of the hundred millions whose coming foot- In 1849, the people of New Jersey, in convention, formed a new steps we can almost hear, can only be maintained and conserved by constitution. A list of its members, which I hold in my hand, indi- a strict adherence to the letter and spirit of the Constitution, and cates that several of the ablest citizens of that Stajie were engaged believing, as I sincerely do, that the great danger to be apprehended in the work. The various committees had performed their labors, to our system of government is the centralization of power in the and the result was before the convention. various branches of the Federal head, I cannot, will not, and, before The article on impeachment was identically the same as and was a God and the people, dare rwt consent to this departure from the well- copy of the one in the old constitution of that State. I read from the known principle which has heretofore universally obtained. journal of the convention, page 2451 section 11: Therefore I say- The governor and all other civil officers under this State shall be liable to im First. That the Constitution of the United States is the law which peachnient for misdemeanor in office. should govern in this case, untrammeled by English precedents or En- glish procedures. Upon the consideration of this. article Chief Justice Hornblower, a Second. That no other persons than those who are in the enjoyment ma.n who enjoyed a national reputation as a lawyer and judge of great of civil office under the Government of the United States at the time ability, moved to amend. I now read from an authorized report of when articles of impeachment are presented by the House of Repre- the proceedings of the convention, placed in my- hands by the honor- sentatives are proper subjects of trial. able Senator from New Jersey, ~Ir. FRELINGHUYSEN: Third. That William W. Belknap, at the time of the presentment of Mr. Hornblower moved to amend so as to provide that public officers might be these articles of impeachment by the House of Representatives, was impeached after the expiration of their term of office. not in the enjoyment of any civil office nnder the United States, hut The amendment offered by Judge Hornblower was in these words: was a private citizen of the State of Iowa. During their continuance in office and for two years thereafter. Fourth. Therefore these articles of impeachment should be dis:missed by the Senate. · The amendment wa.s nnanimously adopted, and, as amended, the article was unanimously adopted and now stands as the organic la.w of New J eraey on this point. I now read the article, section 11, article 5 : Opi.ni.on oC Mr. A.lliaou, The governor and all other civil officers under this State, shall be liable to im- peachment for misdemeanor in office duri.D.g their continuance in office and for two Delivered May 24, 1876. years thereafter. Mr. ALLISON. The question now before the Senate for considera- While I admit, for the purpose of the argument, that the report of tion is whether or not the Senate has jurisdiction to try W. W. Bel- the proceedings is meager and incomplete, I unhesitatingly assert knap for the offenses alleged in the articles of impeachment, which that but one meaning can be attached to the language used by the offenses were committed by him while he was Secretary of War, he TRIAL OF WILLIAM W. BELKNAP. 117 having resigned his position as Secretary, and having vacated the all the writers on parliamentary law. It has been claimed in debate, office before the proceedings for impeachment were beF in the Honse and with much force, that this power has only been applied in cases of Representatives, and being at the time of such unpeachment, a of official misconduct or violation of public trusts. Assuming this private citizen, holding no office under the Government of the United narrower view of jurisdiction to be the true one, it nevertheless leaves States. I have given this question such examination and study as I open to the Senate to try all persons in the United States who at any could within the time allowed, and I have listened with interest to ·time may have committed any offense in office or violated any public all the arguments that have been presented for and against jurisdic- trust confided to them, and there is nQ limit of time during their lives, tion in this case, and have endeavored in my own mind to settle as to such persons, when they may be impeached by the House or tried the question without reference to what may be involved in the case. by the Senate. This statement of the cla:i:Ip. of those who invoke juris- The question presented to us for decision is whether or not, tmder diction in this case shows the importance'of the decision we are about the Constitution of the United States, a person not a civil officer can to make as affecting all the people who have held official position or be impeached, although at the time the alleged offense was commit- administered public trusts, or who may do so in the future. ted he held such office. In the present case it is admitted that the It seems to me that such construction should not be given to our alleged offense is an impeachable one, under the Constitution, if com- Constitution unless it is clearly inferable from the words employed mitted by a person subject to our jurisdiction at the time the impeach- or from the intent of the framers as drawn from the history of the ment was presented. · · time or from the debates in the convention. The fact that Mr. Belknap was in office so recently before the im- It seems to me, from the letter of the Constitution itself, and from peachment, and that he resigned having in view his impeachment, the history of the time, and from the debates in the convention, that is, upon the facts alleged and admitted, the most extreme illustration the Constitution itse~ intended to include impeachment as a remedy, which could be presented to mark the line or boundary which excludes and also intended to definitely prescribe its limits and boundaries, our jurisdiction, if it can be excluded at all. . prescribing a body to accuse, a tribunal to try, the extent of the pun· To take jurisdiction in this case it must be shown that, without ishment, the persons who may be tried, and the offeDB~s for which reference to the point of time, all persons may be impeached for public they are triable, leaving nothing, either jurisdictional or remedial, to offenses committed in office, although when impeached they are pri- be drawn from the parliamentary law. . vate citizens. To exclude jurisdiction, on the other hand, it must be .All writers agree that it was the intention of the framers of the shown that civil officers may be impeached while in office only, and Constitution to provide a government in all its parts of limited and for crimes specified and declared in the Constitution, and for none !:.]>ecified powers. Story says : other. The Constitution was from im very origin contemplated to be the frame work of There are four clauses in the Constitution that directly affect this national Governmeat of special and enumerated powers, and not of general and a question : First, the last clause of section 2, article 1 : unlimited powers. The Honse of Representatives * * * shall have the sole power of impeach· In order that there might be no mistake upon this.subject, contem- ment. poraneously with the adoption of the Constitution, among the early Second, clause 6, section 3, article 1 : amendments proposed and agreed to was the tenth article of amend· ments, which declares that- The Senate shall have the sole power to try a.ll impeachmenUJ. The powers not delegated to the United States by the Constitution, nor pro· Third, clause 7, same section and article: hibited by it to the States, are reserved to the States respectively or to the people. Judgment in cases of impeachment shall not ext.md further than to removal from If we are to resort, therefore, to the common law of Parliament f~r office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party conviCted shall nevertheless be liable and jurisdiction in cases of impeachment, it is the only instance that can subject to indictment, trial, judgment and punishment, according to law. be suggested where the Constitution has such resource. It does not seem probable that, with the history of impeachments in England Fourth, section 4, article 2 : fresh in the memories of those who framed our Constitution, they The President, Vice-President and all civil officers of the United States, shall be would have selected this as the special and particular good that removed from office on impeachment for, and conviction of, treason, bribery, or should be transplanted into our frame-work of government without other high crimes and misdemeanors. limitation, save only as to judgments. Section 1 of article 2 declares It is claimed by those who favor jurisdiotion in this case that the that "the executive power shall be vested in the President of the first-quoted clause not only describes the pody that shall originate United States of America;" yet it has never been claimed that any impeachments, ·a nd that it not only confers the power to impeach or other or different power was here invested than that prescribed in the prosecute, but that it is the jurisdictional clause in the Constitution second article. So the judicial power under article 3 was vested in conferring in terms whatsoever was at the time understood in En- one Supreme Court and such inferior courts as Congress might from gland to be the scope or boundary or extent of the jurisdiction to time to time ordain and establish. Under article 3 the Supreme Court impe~ch under the parliamentary law of impeachment in England, decided at an early day that the :United States courts had no juris- and that here js found not only jurisdiction, but all jurisdiction ; diction over offenses at common law and that they could onlyta,k e that under this clause and the following, granting to the Senate the cognizance of such offenses as were created by statute, and it is now power to try, is conferred all the authority to present and try-all settled beyond dispute that the Federal courts will not take jurisdic- cases of impeachment known at the time to the common law of Par- tion over any crimes which have not been placed directly under their liament, save only that the judgment is limited and the concurrence control by act of Congress. It would seem that here, if anywhere, of two-thirds of the Senate is required to convict, and that this grant the common law should apply. of power is not limited or circninscribed in any manner by the fourth Looking first to the letter of the Constitution, and applying to it section of the second ·article either as to persons who may be im- the ordinary modes of interpretation, it would seem that the framers peached or as to offenses for which impeachments may be instittNied of the Constitution meant to provide that impeachment as a remedy and tried; that this latter section was inserted for no other or di.ffer- should be resorted to with the same distinctness and brevity with 'tmt purpose than to prescribe the punishment which must be inflicted which they provided for other essential powers of government; that, in cases where the person impeached is still in the enjoyment of a in order to make this provision, they provided that the proceeding pu1:5lic office; or, in other words, for the purpose of pointing out a should be initiated only in the Honse of Repres~ntatives, that body class of persons who shall be removed from office when impeached; nearest to and directly responsible to the people. They had ·observed that this section is not jurisdictional in its character; that it confers that in England the king or a private person could initiate these pro- no jurisdiction and limits no jurisdiction, but only prescribes a par- ceedings. They also observed that in the States several modes of in- ticular punishment in specified cases, and is not used to designate the augurating impeachments were resorted to, as, for example, in Penn- persons who may be impeached or to define or declare what are im- sylvania the General Assembly could impeach and the council of cen- peachable offenses. sors could inaugurate the proceedings; and in North Carolina the If this claim be true, we are compelled to resort to the parlia- General Assembly or any grand jury could impeach. 'fhey there- mentary law of England to discover who may be impeached, and for fore resolved that only one body, and that "the Hom;;e of Repre- what offenses, and admit that the framers of the Constitution in- sentatives shall have the sole power of impea.chment." tended to resort to parliamentary law for .purposes of jurisdiction, · They next sought to provide a tribunal to try impeachments. Here and did not intend to define jurisdiction incases of impeachment except also they found great diversity in the constitutions of the several by reference tn parliamentary law. States. In some of them, as in Massachusett-s, the senate had the It thus becomes material to ascertain who could be impeached power. In others, as in New York, the senators, chancellors, and under the·parliamentary law of England. Under this law the Honse judges of the Supreme Court; in Pennsylvania, the president and of Commons could proceed against the delinquent, of whatsoever de- the council of twelve, taking to their assistance, for advice only, the gree, and whatsoever might be the nature of the offense. There was justices of the supreme court; and in Virginia the general court. no limit as to persons or offenses, except that the Lords could not by And after considerable debate, and after first providing that the · the law try a commoner for a capital offense on the information' of Senate should only try justices of the Supreme Court; and the Supreme the king or a private person, but with this exception, under the par- Court all other officers, they finally adopted the provision that "the liamentary law of England there wasno limit as to the persons who Senate shall have the so]e power to try all impeachments." ·Thus hav- might be tried or as to the offenses (See Selden's Judicature in Par- ing provided the body to prosecute, and the tribunal to try; they pro- liament, 1263 ; also 84 ; 4 Blackstone, 257 ; Hatsell's Precedents, vol- ceeded to the consideration of the judgment, an e laws of the land, the legislative, executive, aDil judiciary And this whole debate shows that, so far from Mr. Pinckney or powers are all blended in one branch of the Government." Gouverneur Morris intimating that they were in favor of impeachment This committee further reported the clause postponed on the 27th of the President a.fter he was out of office, they both objected to his of August, making the President removable from office on impeach- impeachment at any time, and wished to exclude him absolutely ment for and conviction of treason and bribery, thus omitting the from the power of impeachment. Those who opposed impeachments word "corruption." .A.s this clause had been postponed on motion of were in favor of a short term for the President, and wished to make Gouverneur Morris because he thought the Supreme Court an improper his power absolute and independent of either the legislative or judi- tribunal to try the President, it gave rise to considerable discussion cial departments. After this debate a vote was taken and the clause as to which was the :fitter tribunal to try, the Senate or the Supreme retained in the Constitution. Court, and the committee having struck out the word "corruption," On the 24th of July the resolutions reported from the committ.ee there was a debate as to whether the President should be removed of the whole on the 13th of June as amended, were referred to a for any other misconduct than treason or bribery. · committee of detail, consisting of Mr. Rutledge, Mr. Randolph, Mr. On the 8th of September the clause referring to the Senate the trial - QQrham, Mr. Ellsworth, and Mr. Wilson, and at the same time the of impeachments against the President for treason and bribery was oxiginal proposition of Mr. Pinckney and also the propositions of taken up. Colonel Mason said: Mr. Paterson were referred to the committee. Why is the provision restrained to treason and bribery only f Treason ru~ de- On the 6th of August Mr. Rutledge reported from thfl committee fined in the Constitution will not reach many great and dangerous offenses. Hast- ings is not £Uilty of treason. Attempts to subvert the Constitution may not be of detail reported a constitution, which provided: treason' as above described. As bills of attainder, which have saved the British The House of Representatives shall have the sole power of impeachment. (Arti· constitution, are forbidden, it is the more necessary to extend the power of im- ole 4, section 6.) peachments. The President shall be removable on impeachment by the House of Representa- If be had for a moment supposed-that the power was already con- tives, and conviction by the Supreme Court of treason, bribery, and corruption. (Article 10, section 2.) ferred by the first article, why should he have used these words Y He The jurisdiction of the Supreme Court shall extend to the trial of impeachments then moved to add after " bribery" the words " or maladministra- of officers of the United States. (Article 11, section 3.) tion." Mr. Madison said: Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to bold and enjoy any office of honor, trust, or profit un- So vague a. term would be equivalent to a tenure during the pleru~ure of the Sen· der the United States: but the party convicted shall nevertheless be liable and ate. subject to indictment, trial, judgment and punishment, according to law. '(Article Gouverneur Morris said: 11, section-.) It will not be put in force and can do no harm. An election every four years It will be seen that this report is the first intimation as to where will prevent mal.admi.nistration. should be lodged the power to accuse in cases of impeachment. Be- Colonel Mason thenwithdrew"maladministration" and substituted fore this report all propositions had been considered in the form of ''other high crimes and misdemeanors against the state;" which resolutions, but now the Honse of Representatives for the first time amendment was agreed to. Mr. Madison then objected to the trial ~f was given the sole power to make the accusation. Here all trials were the President by the Senate, and a considerable debate followed as to to be had before the Supreme Court of the United States, and were whether a President should be tried by the Senate or by the Supreme limited to officers of the United States. The President could be re- Court; but on motion to strike out the words " the Senate," made by movable only on conviction of trea-son, bribery, or corruption. The Mr. Madison, these words weye retained-9 in the affirmative, and 2 offenses of other officers of the United States were not described. in the negp.tive. Then Colonel Mason's amendment, wherein the word On the 20th of August Gouverneur Morris, seconded by Mr. Pinck- "state" was used, was struck out, and the words '' United States" ney, submitted several propositions, which were referred to the com- un.a nimously inserted, in order to remove ambiguity. The whole mittee of detail. The snbstanoo of these propositions was that clause then relating to the President, as amended, was agreed to. there should be a council of state, composed of the Chief Justice of It will thus be seen that up to this point they were fixing in this the Supreme Court and six Secretaries, and at the end it was pro- clause who should try the President, and for what offenses he should vided that each of the officers above mentioned should be liable to be tried, and also providing that he should be removed from office orl impeachment and removal from office for neglect of duty, malver- conviction. When the clause reached this point, it was voted with- sation, or corruption. Mr. Gerry moved that the committee be in- out debate, and apparently without division, to add to the clause mak- structed to report proper qualifications for President and the mode ing the President the subject of removal the further words," the of trying the supreme judges in cases of impeachment. Vice-President, and other civil officers of the United States shall be On the 22d of August the committee of detail made further report removed from office on imp~a-chment and conviction as aforesaid," with reference to several clauses, and provided that at the end of the thus showing that the offenses for which the President could be tried second section of the eleventh article should be a-dded," the judges were applied to all civil officers, and also applying to all civil officers of the Supreme Court shall be triable by the Senate on impeachment the provision already applied to the President, namely, "shall be re- by the Honse of Representatives;" thus leaving the impeachments of moved from office on impeachment and conviction," thus drawingto- all other officers, inclu.d ingthe President, to be tried before the judges gether in a single clause the provisions relating to the offenses for of the Supreme Court. On the 25th of August, in considering the which persons could be tried, and what persons could be tried. The pardon clause, the President's power to pardon in cases of impeach- clause relating to judgment still remained at this stage iu the article _ ment was excepted. This was agreed to nem. con. relating to the judiciary, and at this time the whole Constitution was On the 27th of August, Gouverneur Morris moved to postpone the referred to a select committee on style and arrl).ngement. The pur- clause relating to removal of the President on impeachment because pose of this committee was to bring the several provisions agreed to 120 TRIAL OF WILLIAM W. BELKNAP. under their proper heads, so that when this committee on style re- holding office notwithstanding their offenses. Therefore they pro- ported the Constitution as it now stands all the ;provisions relating viued that removal must follow for the protection of the state. They to jurisdiction of persons and offenses were drawn mto the fourth sec- had a~eed at an early day in their deliberations that such offenders tion of article 2, and that relating to judgment, except so much of the shoula be turned over to the courts for punishment, and provided that jud~ment as provided for absolute removal, was drawn into the last persons impeached should nevertheless be liable and subject to in- clause of section 3, article 1, or rather that clause was transfeiTed dictment, trial, judgment, and punishment according to law. This from the eleventh article, where it stood among judicial powers, to careful provision shows that they had full faith and confidence in the ·the first article, and transferred without change or amendment, so Federal courts to be thereafter created, and the people from the body that this clause was brought back in its fi.n:1l arrangement to stand of whom juries were to be made up. It will not do to say that if in the Constitution before the article relating to the Executive, in- Belknap is guilty as charged, he will escape punishment if we do not stead of standing after that article among the powers granted to the inflict upon him by our judgment the disqualification clause. Con- judiciary; and in construing these several provisions we must con- gress has carefully provided a statute for the class of crimes which strue them together as a whole frame-work relating ~o impeachments, it is alleged Belknap has committed, and has also provided a severe and give no prominence to the fact that any one clause stands before judgment which shall be pronounced against him if he be guilty, the other and should have a construction because of its relative posi- which judgment must embrace the only possible judgment we can tion in the Constitution. · pronounce and much more in addition, (See sections 5500, 5501, and It will be observed that at every stage of the proceedings it was in 5502, Revised Statutes.) contemplation to invoke impeachment only for the purpose of try- · But it is said that according to this view he can by his resignation ing national officers, and·this clauserelating to the President became escape the one penalty we are authorized to impose-disqualification. separated from that relating to other national officers because there Not so, because the statutes above referred to compel the rendition of was a doubt in the minds of many in the convention whether the this judgmtmt. President should be impeached at all, and up to the time of the ap- But it may be said that under the statutes the President can _par- pointment of the committee of detail, on the 6th of August, the tenure don. Admitting this to be true, he must still be elected to office by of the presidential office had not been fixed, and this committee of the people, or be appointed by the -President and confirmed by the detail reported that he shoulfl hold his office for seven years, and that Senate. It can hardly be supposed that a President and Senate would he should not be elected a second time, and this subject relating to unite in restoring to office a man against whom such a judgment has the tenure of the Executive was not concluded until near the close been pronounced. Besides, our judgment of disqualification does not of the convention. It will be remembered that at this stage of th~ prevent the accused, as wa..s shown by the Senator from Kansas, [Mr. proceedings the judgment in cases of impeachment was provided for L~GALLS,] from holding the most important offices of honor or trust. by section 5, article 11, the article relating to judicial powers; and The Senator from Kansas said truly that he could still be elected gov- there also stood at" this time in article 11 the provision extending to ernor of the State of Iowa; he could still be elected a Senator of the the judiciary the trial of impeachments of officers of the United States, United States and hold his office, because in the Blount case it wa.a so that it -became nece sary to modify this eleventh article. Other- decided that a Senator is not an officer within the meaning of the wise there would be a provision for the impeachment of the Presi- Constitution of the United States. dent, Vice-President, and civil officers only, and the provision still I think I have shown, from the debates in the convention, the real loft in tho eleventh article for the impeachment of officers of the intent and purpose of the framers of our Constitution, and that that United States not civil, making these two provisions apparently re- purpose thus shown is in accord with the construction I give to the pu be conferred only by the fourth section of article 2, per- prefer to rely upon this high authority rather than to give a strained sons once officers are impeac.3able after they are out of office for antl enlarged construction to the Constitution, especially so when I offenses embraced in this section committed while in office. find that Chancellor Kent and Mr. Rawle both resort to the fourth The fifth paragraph of section 2 of article 1 of the Constitution 11; section of the second article for jurisdiction in cases of impeachment as follows: as to persons and offenses. Curtis, in his History of the Constitution, The House of Representatives * * * shall have the sole power of impeach- volume 2, pages 261 and 262, in commenting upOSe, they shall be on oath or affiimation. When the President of the United States is tried, the Chief .rustice shall preside: and no person shall be con· "Victed without the concurrence of two-thirds of the members present. (Article 1, section 3, clause 6.) · OpiDi.on of Mr. Inamll•, .rudgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or yrofit un· Delivered May 25, 1876. der the United Stat-es: but the party convicted shall neverthel68s be liable and Mr. INGALLS. Mr. President, the ·American people have exhib- ~~~~~ti~~ ~3~!:e~~ trial, judgment and punishment, according to law. (Article ited so many convincing proofs of their capacity for self-government, Stated in their natural order, and assembled in theirpropersequence, and have falsified so many prophecies of disaster, that I hesitate to they would read thus: agree with those who affirm that either decision of the question now The President, Vice-President, and all civil officers of the United States shall be before the Senate is fraught in the alternative with fatal consequences subject to impeachment for treason, bribery, or other ~h crimes and misdemean· to the Constitution of our country or to the liberties of its citizens. ors; and on con-viction shall be removed from office. 'the House of Representa.- Should it be determined that the respondent, having resigned, con- tives shall have the sole power of impeachments, and the Senat.e shall have the tinues liable to impeachment for misconduct while in office, it would sole power to try all impeachments. Judgment in cases of impeachment shall not hardly be Considered a usurpation of general criminal J'urisdiction or extend further than to removal from office and disqualification to hold and enjoy any office of M'nor, trust, or profit under the United States; but the party con- a return to the judicial atrocities of the most hateful epooh of En- "Victed shall, nevertheless, be liable to indictment, trial, judgment, and punishment glish history, and presenting thus a novel menace to the guarantees aooording to law. of citizenship. Leaving particulars and descending to mere description, they desig- Should it be decided on the other hand that liabHity to impeach- nate- ment terminates when the accused ceases to be a civil officer, the great First. The persons who may be impeached. safeguards of the Constitution would still remain. When the Con- Second. The offenses for which impeachment will lie. stitution ceases to express the convictions, the purposes, the con- Third. The penalty on conviction. science of the people, it will cease to be operative. They will either Fourth. The method of procedure. amend it or they will abrogate it, or they will evoke from its recesses Fifth. The limitation of the judgment. some latent energy to become the potent minister of their will. The student of En(J'lish history will not fail to note that each of Nor do the securities and covenants of liberty and citizenship rest these particulars, with the possible exception of the fourth, is a direct upon any such brittle and shifting foundation as the decisions of departme from the law of Parliament upon impeachment. Under courts or senates on the construction of words, and clauses, and sen- that all the Iring's subjects could be impeached, but the king could tences of the Constitution. When the conclusions of these tribunals not. They could be impeached for any offense. Any punishment fail to register the decrees or to reach the full measure of the intel- could be inflicted, and the power of judgment was g,bsolute. ligence of the people, they will be reversed by a judgment in that as- I am compelled, therefore, to dissent from the doctrine that the size from which there is no appeal clauses giving the House the power of impeachment and the Senate I therefore approach the subject relieved of all apprehensions of the power of trial are in any sense jurisdictional, but must regard practical dangers, whether the determination may be upou the one them a-s functional merely; directory of the methods of practice and side or upon the other. Our political history for ninety years refutes procedure under the Constitu,tion, and not M a grafting upon our the idea that the subject is of very grave or paramount importance. system of the process of impeachment as recognized ·b y the parlia- Impeachment, even in cases where the power was undoubted, has mentary law of England. For it must be remembered that in a free been resorted to infrequently. States have been saved without it. popular government like that which our fathers instituted impeach- Official delinquency has not been uncommon, but impeachments have ment as known and practiced in Great Britain would be illogical, been rare. The process ·is dilatory, unwieldy, and expensive. The anomalous, and unnecessary. machinery is complicated. The possibilities of partisan unfairness Where monarchs were absolute and the right to rule descended and malignity are too great. The disproportion of resources between through snccessive generations of avaricious and sensual tyrants; the prosecutor and the oft'ender are so marked as to shock the love of where corrupt favorites administered the offices and -plundered the equity and justice which characterizes the Anglo-Saxon. The idea revenues of the kingdom at the pleasure of the king; where the upon which it is founded is repugnant to the prim:iples of popular property of the realm accumulated in families, and all the preroga- government and to the temper and instincts of a free people. tives of wealth and power were hereditary, there was no relief from The application of the doctrine now sought, whether it be reg~ded oppression but by extraordinary methods-the dagger, revolution, 1 as a limitation or an expansion of the power of impeachment, is novel, and the scaffold. but its assertion is not. The question whether the liability to impeach- Hence in the great struggle between 1..-ings and subjects, when law ment termin,ated with official existence has often been mooted, but at la t succeeded force, the right to impeach corrupt and incompe- it now for the first tim.e arises for practical determination. I do not tent rulers was asserted in Germany and transferred to England M think it will ever rise again. If the jurisdiction is denied, it is not early as the fourteenth centp.ry. Though it was an advance upon the likely that it will be re-asserted. If the late Secretary of War is redress of force, yet its methods were violent and its penalties cruel, tried, the spectacle will be such a-s to prevent the case from. being inhuman, and atrocious. Its victims were put to death, and their mu- cited as a precedent. tilated remains refused burial; their blood was corrupted ; they were Forttmately the· discussion is not political, and this source of our outlawed, banished, and exiled; tlley were stripped of their estates congratula-t ion is increa ed by the reflection that the question is di- and dignities, an<.l pursued with dishonor beyond the grave. And thus vested of a partisan ru:~pect by the disjunction of one party on;ty. One impeachment was associated with that odious group of remedies, great political division of the Senate is practically unanimous upon a among which were ex post facto laws, bills of attainder, and pains doubtful question of constitutional :Law, and is re-enforced by. allies and penalties. from that party with which the respondent has heretofore been asso-1 But in a country where the people are the rulers the necessity and ciated. Political organizations founded npon ideas rather than upon the occasion for impeachment are greatly diminished. Where neither TRIAL OF WILLIAM W. BELKNAP. l25 wealth nor power is hereditary, there need be no corruption of blood ; J mineral spring till his agents cease to testify and be reports of this and where the-tenure ofofficeis brief and depends upon thewillofthe or that constituent a trace only, the combined efforts of all these people impeachment is generally conducted at the ballot-box. . doctors have adduced the convincing argument that unless the right It m'nst therefore be apparent that when the founders of the Re- of impeachment for official misconduct continues after official exist- public conferred upon the House the power of impeac~ent, they did encehas ter:m~ated th~~~diction d~pends D:ot u~on the court but not mean impeachment aa understood by the laws of England. There upon the cnmmal. It IB InsiSted that, if by restgnation he can defeat was not only no necessity for it, but the idea would be repugnant to the judgment of disqualification, he renders nugatory the great de- their experience and without foundatiOJ?- ~ reason. . . si_gn of the process, whic? is. not o~y to put a man out but to keep We must then inspect the other proVIsions of the Constitution to hrm out; that, unless he IS disqualified, a perverse or corrupt Execu- discern their purposes and ascertain the limitations they intended to tive can re-appoint him after his resignation and thus defy and thwart prescribe. and trifle with the moral sellBe and will of the nation. They contend These relate to the su_bjects, the objects, and the penalties of im- that he must not only be banished from the Eden of office, but that peaohment; and, whenconsideredinconnectionwiththeuniformprac- the angel of vengeance with th~ :flaming sword of disqualification tice of Congress, seem to indicate conclusively that the subjects of must be stationed at the gate to prevent his return, and that unless impeachment are the President, Vice-President, and all civil officers this is done the public service may be stained, corrupted, and pol- of the United States, and that the sole objects of the process·are to luted by the invasion of dissolute and unseemly reprobates who will divest the offender of certain political attributes and functions, not thus be superior to law. The necessary corollary is that if they .are for the punishment of the individual, but for the protection of the so disqualified the nation·is safe, and that they can then endanger State. the councils of the nation no more. Aside from the fact that such .Articles 5 and 6 of the amendments to the Constitution are explicit, . conduct would be impeachable in the Executive and that he could and by irresistible inference exclude any other conclusion. They are not resign and re-appoint himself, there is the further consideration in the following language: that the security of the people from corrupt officials lies in public ARTICLE V. virtue and intelligence, and not in statutory prohibitions. No person shall be held to answer for a capital, or otherwise infa.moll.S crime, un· But let us for a moment examine this pretext and see how far the less on a presentment or indictment of a grand jury, except in cases arising in the protection would extend were the sentence of disqualification in all land or naval forces, or in the militia., when in actual service in time of war or pub- d Wh t dd't' a1 t t b d · th lie danger; nor shall any person be subject for the same offense to be twice put in cases pronounce · a a 1 lOn guaran ee, no ase rn e jeopardy of life or limb. morality of the people, would be derived from the strictest applica- ARTICLE VL tion of this part of the penalty f In all criminal prosecutions, the accll.Sed shall enjoy the right to a speedy. and Should the respondent in the case at bar be convicted and disquali- public trial, by a.n impartial jury of the State and district wherein the crime shall :6.ed, how could the country be safe from his machinations were he an have been committed, which district shall ha.ve been previously ascertained by ambitious, intriguing schemer with a following au.ffi.ciently numer- law. ous to make his pretensions formidable f The disqualification is only For the sake of illustration, let us suppose that the late Secretary partial. He could not be President, nor Vice-President, nor Cabinet of War had deliberately and with malice aforethought murdered a minister, nor postmaster, nor an officer in the civil, military, or naval post-trader, a capital offense, the punishment for which would be service of the United States; but after going forth from this cham- death by hanging. This would a~o be. an impell;ereux'l North Carolina, 15; Taylorvs. Porter, 4 Hill, 146; VanZandt v8. W~ddell, 2 Yerger, 260; State Bank vs. Cooper, ibid., 599; Jones's Heirs 118. Perry, its efficiency. Thus, if the President can by removal of an official de- 10 ibid., 59; Greene vs. Briggs, 1 Curtis, 311,) yet this is not universally true. There prive the House of Representatives of its_power to impeach and the may be and we have seen that there are, cases under the law of Engla.nd after Senate of its power" to try all iinpeachments," he may not only shel- Mao-na 'charta, and as it was brought to this country and acted on here, in which ter a dangerous enemy and treacherous public sel'vant from the pen- pro~ess, in its nature final, issues against the body, lands, and goods of certain public debtors without any such trial; and this brmgs us to the question whether alty of disqualification ever to hold office, but, having control over those provisions of the Constitution which relate to the judicial power are incom- the officials whose duty it is to prosecute offenders before the judicial patible with these proceedings. {Murray's Lessee et al. V8. Hoboken Land and Im- branch, he can practically prevent the trial of the criminal in the provement Company, 18 Howard, page 280.) courts or, if in his discretion he permits the prosecution to proceed, Mr. Justice Bla-ckstone's renowned Commentaries on English law- he can by a pardon totally relieve the criminal from all legal punish- and which our own great jurist, Chancellor Kent, has said "filled him ment for his guilt. with admiration and despair"-were in 1787, as now, the text-book of It is therefore essential, in order to maintain that independence all students of law in England and the United States. Blackstone which by the Constitution it waa designed should be secured to the described impeachment as ''a prosecution of the already known and two Houses of the Congress in their exercise of this great and "sole" established law frequently put in practice." And the most prolonged power of impeachment, that under no construction·should their juris- and celebrated trial byimpeachment, that of WarrenHastings,ex-gov- diction or method of proceeding be subjected, directly or indirectly, ernor-general of India, in the course of which everything that the in any degree to the action or influence of the executive branch. profound study of able and learned men could bring to enlighten the It is the p.ational self-protection against executive encroachments or subject had been collected and applied, was pending during the time malfeasance, and in its initiation and enforcement must carefully be the subject was under discussion in the constitutional convention kept out of the domain of executive power or control, for the correction which met at Philadelphia in May, 1787. of whose wrong it was especially designed. If then the power of the two The institution of impeachment, thus well known, was imported Houses of the Congress is to be maintained without interference or in- into the Government of the United States, and was perfectly under- fluence on the part of any officer of the executive branch, what shall stood in its principles, historyt and methods of procedure by the Fed- be said of that construction of the Constitution which gives to the eral convention, who adopted it as they found it then existing in guilty official himself the power at will to keep himself within or Great Britain, with such modifications as the republican constitution place himself without the jurisdiction of the two Houses of Congress, of government for the "more perfect union" of the States required and submit to be impeached only_with his own consent 7 "to secure the blessings of liberty" to the people of the United States It is difficult with a grave face to state the proposition that a culprit ancl their posterity. shall not only raise the question as to the jurisdiction of the tribunal In No. 65 of the Federalist, Hamilton-than whom no abler expos- assuming to try him, but decide the question himself at his own will itor of the instrument under consideration ever lived, and who had and pleasure, carrying his discha'!ge in his own pocket, to be produced been a leading member of the convention-4!aid: at will, a.s in the present case was sought to be done by a resigna- A well-Constituted court for the trial of impea()hments is an object not more to tion, on the very stroke of the hour when the resolution to impeach be desired than difficult to be obtained in a government wholly elective. him was about to be adopted by the House of Representatives; in The subjects .,f its jurisdiction are these offenses which proceed from the mis- other words, that a plea to the jurisdiction of a court is to be set- conduct of public men, or, in othel' words, from the abuse or violation of some pub- lic trust. They are of a nature which may with peculiar propriety be denominated tled, not by the law and facts as they existed at the time of the (Page 491.) What, it may be Mked, is the true spirit of the institution itself Y commission of the offense, but is to be decided by the accused party, political, as they relate chie:tly to injuries done inrmediately to society itself. * " * and not by the court-is to be always subject to the willingness of the Is it not designed M a method of national inquest into the conduct of/ublio men' accused to be tried at all. The model from which the idea of this institution baa been borrowe pointed out that course to the convention. In Great Brit&in it is the provirice of the Honse of To admit such a proposition in a case like the present would lead Commons to prefer the impeachmeBt, and of the Honse of Lords to decide upon it. to this result : that any guilty official being, as almost invariably is Sever-al of the State constitutions have followed the example. Aa well the latter the case, the sole custodian of the proofs of hi~:~ own misconduct, and as the former seem to have re~arded the practice of impeachments as a bridle in having by virtue of the powers of the office he was betraying the very the hanfls of thelegisla.tive bony upon the executive servants of the government. Is not this the truelight in which it ought to be regarded 9 means and the only means of concealment, should keep concealed. not And in No. 66, the same great authority, treating of the same sub- only his guilt but all means of its detection, unt.il the expiration of his term or his resignation at any time convenient to himself, and should ject, says: then leave the office vacant and for the first time open to inspection; An absolute or qualified negative in the Executive upon the Mts of the legisla- tive body is admitted by the ablest adepts in political science to be an indispensa- that he should in violation of every principle of law and justice be ble barrier against the encroachments of the latter upon the former. And it may, suffered to take advantage of his own deliberate wrong; be enabled perhaps., with not less reason, be contended that the powers relating to impeach- to change an unpardonable offense to one within the power to pardon ments are, as before intimated, an essential check in the hands of tlia.t body upon given to the President. the encroachments of the Executive. The high crime and misdemeanor of which W. W. Belknap has been Mr. Jefferson, although not a member of the constitutional con- impeached is an offense against the whole people of the United States; vention, was a contemporaneous expositor of the Constitution, and it is a "public offense" in the strongest, f~lest sense of the word. his Manual of Parliament-ary Practice, which to-day is one of our It is not doubted that the crimes alleged in the articles of impeach- leading authorities, in its title " Impeachment," contains abundant ment are "high crimes" and impeachable under the Constitution- evidence in its citations that he accepted the English precedents aa it is admitted under the pleadings aa they now stand, and for the ' authority on thls subject. (Vide section 53, passim.) purpose of deciding the question before us, that Belknap, while Secre- These references to contemporaneous authority will, I think, be ac- tary of War, and by the corrupt use of his power aa Secretary of cepted as proof, ifproof were necessary, toshowhowfully acquainted War, did commit high crimls-the offense being nothing less than with the subject, were the framers of the Federal Constitution. It the sale for money, of post-traderships, criminally disregarding his would be an idle parade to repeat the history of precedents and prac- duty as Secretary of War, and basely prostituting his high office to tice in impeachments in England up to the time of the importation his lust for private gain, to the great damage and injury of the offi- of this institution into the Government of the United States. cers and soldiers of the Army of the United States as well as of emi- Said Chief Justice Marshall, in United States vs. Wilson, 7 Peters, grants, ,freighters, and other citizens of the United Statest against South Carolina: public policy, and to the great disgrace and detriment of the public The language used IS OUR LANGUAGE, and of a nation to whose judicial institu- service. tions ours bears so close a resemblance. But it is argued in~ defense that, having removed himself from The grants of this power to each House of Uongress respectively, the office by his own act of resignation, which act, although promptly are general grants, as explicit, clear, and emphatic as words can create: assented to by the President of the United States, is not thereby " sole power" to the House to accuse ; " sole power" in the S!}nate enforced or weakened in its legal results as to him, (Belknap,) he is to try "all impeachments." For the sake of justice the accusers and ipso facto beyond the jurisdiction of the Senate, and that the judg- the judges ru:e never the same persons, and the concurrence required ment expressly authorized by the Constitution of "removal and dis- TRIAL OF WILLIAM W. BELKNAP. 129 qualification from holding any office of honor, trust, or profit" under In Great Britain a bare majority of the peers was sufficient to con- • the United States cannot be entered and enforced against him. vict. Can it be that a person charged with crime can thnt:1 at will place In the United States two-thirds of the Senators present were re- himself within or without t.he range of judicial authorityf quired to concur in a · judgment of conviction. The judgment of disqualification to hold and enjoy any office under Bills of attainder and ex post facto laws, species of public remedy of the United States would seem to contain in itself the removal of an great antiquity and frequent recourse, well known in parliamentary incumbent, because it forbids the party convicted to hold or enjoy prosecutions in Great Britain, were expressly forbidden by section 9 any office, therefore, in presenti as well as in ftdu1'o. The final commm- of the first article of the Federal Constitution. mation of long-contemplated crime could be postponed until the last Thus we find the founders of ·our constitution of government did hour of his official term, unt.il just enough of official power remained carefully consider and weigh all the features of the English institu- to make guilt successful, yet not enough to compel it to respond to tion of impeachment as it then existed, with careful reference to tl.Je the demands of justice. scope of powers and their adaptation to the new Government they were The trai.Ii could be laid and the slow-match lighted with close cal- arranging; and it seems to my mind a 11ecessary consequence for our culation, and the incendiary retire to the place of safety outside the accept.ance that, except as they expressly altered and amended it, it jurisdiction charged with his punishment. · now remains and must duly be exercised by the House of Representa- "Removal" from the particular office then held, on the contrary, tives and the Senate of the United States. does not include disqualification thereafter to hold som~ other office Upon what presumption of rea.son or justice, by what allowable or offices, or the same offico for another term. If, as has been argued, construction can we decide that the Honse of Representatives or the removal was the sole object of impeachment, then, that once accom- Senate of the United States are to be deprived of their respective pow- plished, the more serious and enduring part of the judgment author- erstoimpeach and to hea.randdetermineimpeachmentsin cases where ized by the Constitution could never be executed, because no officer, the guilty party who committed high crimes w:ben in office has gone i.e. person holding office, existed upon whom this portion of the sen- out of office by resignation before the resolution to impeach him ha.s tence could operate. been adopted by the tribunal possessing the" sole power!" Such As reasonably could it be said, that because in the verbal arrange- power did confessedly belong to the impeaching power of the gov- ment of the Constitution the word" removal "precedes "disqualifica-r ernment from which we imported the institution and was there fre- tion," the rendition of removal, being the first part of the judgment, quently exercised and never in any case questioned. By what au- would make it impossible to proceed any further. thority can we subtract this important feature of that power which But the Constitution in the clauses conferring jurisdiction in cases our fathers left untouched within the jurisdiction they delegated to the of impeachment (article 1) does not require" an officer" or person in two Houses of Congress T office to be the subje-ct of the judgment of the Senate. The individ- When the fi.rst case of impeachment under the Federal Constitution ual under impeachment is termed m one clause "a person," in another occured-that of Blount, a Senator from the State of Tennessee who "a party," and' in the enumeration of the classes whose removal from had been expelled from this body-the question of jurisdiction arose, offices upon conviction for certain offenses is made imperative we find and was in substance confined to the issue whether a Senator of the "the President of the United States, the Vice-President, and all civil United States was a civil officer of the United States or the officer of officers." So that nothing in the Constitution expressly or impliedly a State, and the decision wa.s that he was not a civU officer of the requires the party against whom judgment of the Senate of disquali- United States within the meaning of the Constitution, and therefore fication is rendered to be in office at the time of tlial or conviction. not liable to impeachment by the House of Representatives. But in Upon what principle of reasonable construction, may it be asked, the course of t.hat ably-argued case it was stated by the proaecntion shall the judgment of the Senate not extend so as to embrace dis- and admitted by the counsel for the defendant that a party could not qualification of the guilty party to hold office f . escape impeachment for crimes committed w bile in office by resigning The Constitution gives the power in plain words: "The jmlgment his office. shall not extend further." That is, it may extend so far as to remove Mr. Bayard said: and disqualify-mnne majus in se continet minus; if the judgment may It is also alleged in the plea. that the party imlJeached is not now a. Senator. It include both removal and disqualification, it may exclude either or is enough t.hat ~he was a Senator at the time the articles were preferred. If the both, except as provided iri section 4, article 3. impeachment were regular and maintainable when preferred, I apprehend no sub. sequent event grounded on the willful act, or caused by the delinquency of the It is clearly in the power of the Senate in passing judgment to pro- party, can vitiate or obstruct the proceeding. Otherwise the party~,. by resignation ceed to the outer boundaries of the power so granted, or stop short at or the commission of some offense which merited and occasionea his expulsion, any point within it. might secure his impunity. This is against one of the sagest maxims of t.he law, In the historical view of the usage and practice of impeachmentsin which does not allow a man to derive a benefit from his own wrong. the country from which we have derived the institution, no case ha~ Mr. Dallas, for the defendant, said: appeared of which I have knowledge wherein the power to impeach There was room for argument whether an officer could be impeached after he and try an ex official for an offense impeachable when it was com- was out of office; not by a >oluntary resignation to evade prosecution, but by au mitted, was ever denied or questioned. Such was the admitted and adversary expulsion. frequently-exercised power of the British House of Commons up to Mr. Ingersoll, for the defendant, said: and at the time of the importation of the institution of impeachment It is among the less objections of the cau'se that the defendant is now out of office into the Government of the United States, and when the correspond- not by resignation. I certainly shall never contend that an officer may .first com. ing branch of the Legislature under our system-the House of Repre- mit an offense and afterward avoid punishment by resigning his office; but t-he de- sentatives-was invested with the general jurisdiction of the subject fendant has been expelled. Can he be removed at one trial and disqualified at by the grant to them of the "sole power of impeachment," while to another for the same offense 7 Is it not the form rather than the substance of a trial~ Do the Senate come, as Lord Mansfield says a jury ought, like blank paper, the Senate was confided the " sole power to try all impeachments." without a previous impression on their minds 1 Would not error in the first sen- Taking the law and usages of impeachment as they found it in t.he tence naturally be productive of error in the second instance Y Is there not reason mother-country, the founders of our Government proceeded to mould to apprehend the strong bias of a former decision would be apt to prevent the in- it into harmony with ihe new and more liberal system they were fluence of any new lights brought forward upon a second trial. seeking to establish. They made certain important changE>.a in the In the light, then, of history, the record of decisions, and examina- way of restriction and also by enlargement of the relative powers of tion of the plain provisions of the Federal Constitution, how can we the legislative bodies, respectively accusatory and judicial. doubt that the power to impeach a man, when out of office by his own And it is safe for us to a-ssume as a canon of criticism upon this resignation for high crimes committed by him when in office, was not part of their work that, wherever they did not expressly or by the subtract-ed from the general grant of power over the subject which most necessary implication change the law and practice of impeach- our fathers so deliberately placed in the Constitution f ment as it then existed in Great Britain, they intended to maintain I do not consider it necessary to repeat the cumnlati ve evidence in it as it then was, unimpaired in all its features. support of the views I have stated, which is contained in the report Let us notice the changes expressly made. by Mr. Madison of the debates in the convention which framed the In Great Britain the monarch could not be impeached. Constitution. They have been too often referred to by the managers In the United States the chief of the executive branch, the Presi- on the part of the House and in the opinions delivered in this body to dent of the United States, was made liable to be impeached. make further citation needful. Nor do I reproduce the illustrations In Gre-at Britain the royal pardon, although not pleadable to abat.e or restate the arguments already drawn so well and elaborately from impeachment, could relieve against all penalties of impeachment, and the constitutional provisions of the States of Delaware, Pennsylvania, thus absolve the offender at the will of the king. . Virginia, and others, expressly giving the power to impeach men In the United States the power of the President to pardon was not when out of office for crimes committed by them when in office. permitted to extend to cases of impeachment. Does it not seem a most unusual construction to give to an express In Great Britain the judgment of the House of Lords was limited limitation upon a power the effect of an enlargement, and to hold in its nature and, extent, only by their discretion. · that when a State constitution has expressly limited impeachment In the United States the judgment of the Senate was forbidden to to two years after the party accused has ceased to hold the office in extend further than 1·emoval from office and disqualification to hold which he was guilty of misconduct, it therefore implies that no office. power so to impeach would have existed but for the limitation T In Great Britain a trial and conviction on impeaehment could be Jurisdiction on the subject is not conferrd by the fourth section of the pleaded in bar of a second trial for the same offense. second article of the Constitution, which is a mere cautionary addition In the United States it was expressly provided that judgment of to the provisions of article 1 by making removal from office im~ conviction on impeac1llllent should not operate as a bar to trial and perative in certain enumerated cases and for certain offenses, but in punishment at law. no tlegree and not even by remote implication impairing o.r restrict.. 9 I 130 TRIAL OF WILLIAM W. BELKNAP. ing or qualifying the general grant of jurisdiction before contained to meet extraordinary offenses, especially dangerous to public wel- to the House of Representatives of the'' sole power of impeachment," fare and safety. and to the Senate of the" sole power to try all impeachments." And in The best and most justifiable object of public punishment is to Blount's case such wM the view stated on the part of the House of prevent repetition of offenses by making public examples. The end Representatives, aml not dissented from by counselfor the defendant. sought is justice, not vengeance ; to protect society, and not merely Mr. Bayard said: inflict suffering on the criminal. The use of the law of impeachment is to punish and thereby prevent offenses The proceeding is too cumbersome, dilatory, and expensive to be which are of such a nature as to enda~er the safety or inj11re the interest of the lightly undertaken. 1 United States; and the object of the ~ ·ederal Constitution was to provide for that Mr. Justice Bl:J.Ckstone styles it "the trial of great and enormous safety and to protect those interests. Snch offenses may be committed as well by offenders, whether Lords or Commons, * * * by the most solemn persons out of office as by persons in office; and althou~h the punishment can go no further than removal and disq11alification, which restriction was perhaps wiselv grand inquest of the whole kingdom." introdn0041 in ortler to prevent those ab11ses of the power of impeachment which The two great bodies of the .Federal Legislature could not in the bad taken place in another country, yet it may often be extremely important to pro- nature of things find time for fTequent trials of this nature to the vent such offenders from getting int{> office a8 well as to remove them when they necessary exclusion of their legislative business. It is only in such are in; and it is therefore as consistent with the policy of impeachments and the principles of the Federal compact to punish them in the one case as in the other. cases as the present, when a great public example in the trial and The learned counsel for the defendant have adduced many of the State constitu- punishment of a great public offense is believed by the body having tions to ahow that the States have in their own constitutions restricted the power the "sole power" of impeachment, to be needed for the public safe- of impeachment to official persons and official offenses; from whence, accordmg to ty, for the protection of the integrity of the Government, then, when tbAm, it ought to be inferred that the States, in ratifyin~ the Federal Constitution, iuwodetl that the power of impeachment whiuh it contains shonlll be restricted in this high discretion has been exercised by the department of the the same manner. But, Mr. President, I cannot discern how this inference is war- Government having the sole power, in a c e like the pre eut, pre- ranted. The very contrary 1 shoultl suppose ought to be inferred. It must be re· senting an impeachable offense committed by a person clearly im- memberea that in the Stare constitutions the power is expressly limited; and that peachable when he committed it, I cannot doubt the power and' duty tt>rms are employed very different from those to be found in the Federal Constitu- tion. Thit~ proves that where the States intended to limit the power, as in their of the Senate to take jurisdiction and proceed regularly and duly own conNtitntions, they emplo:yetl express words for that pm-pose; from whence it to the hearing and determination. n1ay surely be inferred that when they took the Federal Constitution, without any It is my judgment that the plea of the accused to the jurisdiction such express words, they intended t{) take the power of impeachment alone with it~ of the Senate be overruled. without any such limit.ena.lties. At most it can only be will be in the power of the House of Representatives and the Senate claimed by those who maintain that the Honse and Senate have a by impeachment to remove an officer from his command, thus vio- jurisdiction under the Constitution of the United States conespond- lating, as it seems to me, one of the chief prerogatives of the Presi- ing to that exercised by the Parliament of Great Britain, that the dent under the Constitution. question is unsettled whether or not all the citizens of the United Those who deny the broad jurisdiction claimed under the British States are subject to impeachment by the House and trial by the law do so upon one of two grounds, either of which, as it seems to Senate. · · me, is entirely tenable. If it be assumed that the clauses before ~ regards the second class, all are agreed that they are liable to quoted, "the Honse shall have the sole power of impeachment," and impeachment, there being some difference of opinion however as to "the Senate shall have the sole power to try all impea{lhments," are the true construction to be given to the phrase, "And all civil officers jurisdictional clauses, they give to the two branches that power, and of the United States." that power only, which can be found in the Constitution. The third class are clearly liable to impeachment, if what is called The other theory is that they are functional clauses merely specify- the common la,w of Parliament has been imported bodily by the Con- ing the branch of the Government in which the charge of impeach- stitution of the United States and incorporated into our system. ment is to originate and the branch of the Government in which the Nothing is better established in the history of Great Britain than charge is to be heard and deeided, and that the jurisdictional power the fact that officers of the Army and of theN avy were the most com- is contained in the fourth section of the second article. In either mon subjects of impeachment. It is, then, the claim of the friends of case the result as to the measure of power is precisely the same. If jurisdiction that the common law of Parliament in regard to impeach- the fourth section of the second article is the jurisdictional one, then ment has been imported into this country, and that tmder that law all the House and Senate can take just that power and that only which military and naval officers and all persons who have held any ch·il is granted by the section. If, further, as is manifestly true, the ;r 132 TRIAL OF WILLIAM ·W. BELKNAP. section does specify particular persons and a class of person8 to These provisions in regard to impeachment seem tome to bealsorulefl whom the power of impeachment is applicable, unless other per- of conduct rather than grants of power, and if nowhere else in the sons or classes of persons are nam~d or specified in the Constitution Constitution were there to be found operative words or grants of to whom the general power claimed is also applicable, then the power the e provisions woulcl be wholly without force or value. power itself is limited to those specified in the section refeiTed to. The fourth section of article 2 declares that- This is manifest upon many grounds. In the Constitution words of The President, Vice-Pre ident, and all civil officers of the United States, shall be inclusion, whether the words relate to a grant of power, to a lia- removed from office on impeachment for, and conviction of, treason, bribery, or bility, to a penalty, or to the imposition of a duty, are words of ex- other high crimes and misdemeanors. clusion also. The power is grant-ed or the liability or duty is im- This section i either declaratory that the officers named are subject posed upon the persons named, and nothing is to be a sumed by or to impeachment, and of necessity all other persons are excluded, or it for any one else. The words of the fourth section, second article, are is a grant of power in the sensA of being a jurisdictional clause, and specific in this particular. They provide that the President, the in that case as well it works the exclusion of eyery other officer or Vice-President, and a.ll civil officers of the United States shaH be lia- per!!on from the liability therein imposed upon the officers specified ble to impeachment; therefore sufficient is found to which the en- and ennmerated. In either view it is to be construed strictly. It dowing clauses or the functional clauses of the Constitution can includes the President, Vice-President, and all civil officers of the be applied, and we need not seek by implication or construction, or by United States as subjects of impeachment, and upon the construction the importation of powers from the law of Parliament to find other for which I have contended no person can be impeached except he subjects for the application of the same clauses. come within the enumerations of thjs section. The section speaks of The executive and judicial branches of the Government under the the President in office. of the Vice-President in office, and of all civil Constitution are ilistinct from the legislative in one import2.nt par- officers of the United States as those who are in office, and it does not ticular. The executive and judicial branches can take and exercise speak of others. It has been contended that any person who has held that power only for which specific authority is given in the Consti- the office of President, or of Vice-President, or who h:ta been a civil tution or the laws. Nothing can be taken or assumed by implic.ation officer of the United States, can be proceeded against by impeachment or construction. This view recognizes a check upon every branch of under this section upon the ground t.hat he was Pre ident or was the Government. The executive and judicial branches can take noth- Vice-President or was a. civil officer at the time the offense was com- ing by implicat.ion or construction ; and in case the legislature shall mitted. exceed its constitutional power the judicial branch can annul it~ acts. It has been said by Chief Justice Marshall and quoted by several Hence, it follows that the Government in all its parts is practically Senators in this debate that there is but one definition, that of the aa well as in theory a Government of limited powers. The legisla- word " treason," to be fonn(l in the Constitution. l!'rom this state- tive branch of the Govt>rnment is endowed with power, by article 1, ment I dissent. There are two modes of defining words : one is by a section S, and paragraph 18- description of a word by the u e of other words, as in the case of the To make allla.ws which shall be necessary and proper for carrying into execu- definition of "treason" in the Consti liution; but a more accurate defi- tion the foregoing powers, and all other powers vested by this Constitution in the nition of a word can be reached by the use and the repetition of the Government of the United States or in any Department or officer thereof. use of it in the same paper or document and in relation to the arne The Senate is not now acting in its legislative capacity, but it·s subject-matter. In article 2 of the Constitution the words ''the functions are entirely judicial, and, being judicial, we are obedient in President" are used several times and in relation to different duties this respect to the law which applies to the judicial department of and powers imposed or conferred on the President and always with the Government in its other branches. It is, therefore, incumbent reference to the person in office, to the person holding the office of upon those who claim that the Senate has jurisdiction over a private President. person, whether he has held office or not, to find in the Constitution The executive power shall be vested in a President of the United States of A mer- specific authority for the power which they propose to exercise. iro. Article10of the amendments to the Constitution enforces this doctrine No per~~on except a natural. born citizen or a citizen of the United States at the with great clearness : time of the adoption of this Constitution, shall be eligible to the office of President. Tho powers not deleg~toted to the United States by the Constitution, nor prohib * In* case * of the removal of the President from office, or of his death, resignation, ited by it to the States, are reserved to the States respectively, or to the people. or inability to di charge the powers and duties of the said office, the same shall The Senate in the matter of jurisdiction represents the United devolve on the Vice-President. * * * States, and we cannot exercise jurisdiction if we observe the tenth The President shall, at stated times, receive for his services a compensation. amendment, unless we can find the power delegated to the United * Before " * be enterd on the execution of his office be shall take an oath or affirma· States by the 'Constitution. It is not assnmed by any one that that tion. * * * power is an expressed power. If exercised at all it is to be exercised The President shall be Commander·in·Chief of the Army and Navy. * .. * only upon the theory that indirectly and by implication the whole of theThe President shall have power to fill up all vacancies that may happen during recess of the Senate. the law of Great Britain on the subject of impeachment has been im- ported into the Constitution by the general terms "The House shall And in the same article the phrase- have the sole power of impeachment" and "The Senate shall have The President. Vice-President and all civil officers of the United States. shall be the sole power to try all impeachments." remo'Ved from office on impeachment for, and conviction of, treason, bribery, or In concluding this part of my argument I submit, with great confi- other high crimes and misdemeanors. dence, that inasmuch as persons and a clas_s of persons are mentioned It is a great latitude in construction to assnme that in the same and specified in section 4 of article 2 as subject to impeachment, and article of the Constitution the words "the President" are u ed four as no other persons are specified or mentioned in any other part of or five times as having reference to the person in the office of Presi- the Com~titution, and as these persons and classes are adequate sub- dent, and to no one else, and yet, in another case in the same article, ject-matter to which the endowing clause of the Constitution can be to assnme that the words "the President" include not only the per- applied, the attempt to extend those clauses and to include there- son holding the office of President but every other pers(ln living who under the law of the British Parliament is a construction of a written at any previous time bas held the office of Presidenr;. This is the constitution so broad in its character and so dangerous in its conse- result to which the supporters of jurisdiction iu this case are driven, quences that it ought not to be accepted either by the Senate or by upon the theory that the fourth section of the second article includes the country. not only t.he persons in office but all other persons living who at any It has been said in the course of the debate that section 4, article time have held either of the offices ennmerated or described in that sec- 2, is mi located, and that if it had the meaning which the opponents tion. The substantive members of this section, "the President,"" the of jurisdiction give to it, it should have been placed under section 3 Vice-President," and "all civil officers of the United States," ure so of article 1; and this view is in some degree sanctioned by a remark connected with each other grammatically, logically, and by a sim- made by Mr. Justice Story. An examination of section 3, artic~e 1, ilarity of responsibility that the law of impeachment must be the shows that the chief object of that section was to furnish rules for same for all. Inasmuch as section 4, article 2, whatever constr11ction the government of the Senate, and that it does not anywhere con- may be put upon it, relates to the President aml Vice-President and tain a grant of power : all ci vii officers of the Government who for the most part are the ap- The Senate of the United States shall be composed of two Senators from each pointees of the President, by and with the advice and consent of the State. * * * They are to be divided into three clas ea. * * * No person shall Senate, or of the heads of the several Departments, it would seem that be a Senator who shall not have att:linescribed as the appropriate remedy for the prevention of seqnent p1·ovisiun of that instrnment. official crimes. In the first fundamental law of my own State, adopted The framers of tbe Constit,ution incorporate(} in it a power which on the 20th day of September, A. D. 1776, a provision was inserted for existed in most if not all of the States from which they came, and the impeachment of persons holding officialrelations to the State guilty whose delegates they were, limiterl in many respects from what it of high crimes while in office, and in most, if not all, the other States was in the nation from wllicb those Sta.tes bad so recently' separat-ed. wer" constitutions formed about the same time wit.h similar provis- It was no new aurl nntried power, but one kuow:n and recognized and ions. In none of these early State constitutions is the power of im- proviued forb~· tho organic law of the several States. peachment or the extent of jurisdiction thereunder defined. Nor had The Federal Constitution, like tbt1 constitutions of most of the there been any practical application of the power of impeachment in States, presCl ibed the extent of the judgment to be rendered and the any of the States then forming the Union. We must therefore look number of coucurriug votes in the court neCf>ssary to convict, but left to other sources to ascertain the nature and extent of the powers and the persons subject to this mode of pror.ednre and the offenses for jurisdiction which may be exercised under the provisions of the Fed- which it may be invoked as they exist.ed at the time of the formation of eral Constitution to which reference has been made as the source of the Government. Tlre exercise of the power in England as well as in congressional authorit.y. · the original thirteen States which formed the national Union extend- To ascertain their meaning I apprehend recourse must be had to ed to and embraced all persons holding office under their respective the history of impeachments in England, from which we have bor- governments who should commit crimes detrimental to the public rowed not only the remedy itself but the mode of proceeding therein. weal or corrupting to the pmity of governmental administration, I shall not attempt a recital of the cases of impeachment that have whether in or out of office at the date of prosecution. The moment occurred in that country, but content myself by saying that with few an officer committed an impeachable offense be became liable to pros- exceptions, if indeed there are any exception, it wa>S a. proceedin6 ecution by impeachment, and uo lapse of time removed this liability. intended to reach and punish high official crimes, '1nd was applied to The jurisdiction to try attaches upon ·t he commission of the offense, persons indiscriminatAly in and out of office or public st,ation who and so remains, unless divested by some equally positive law. My had been guilty of offenses at any time while charged with public conclusion is that this court is vested with jurisdiction to try the de- trust or while holding some official relation to the government. Hal- fendant upon the articles of impeachment exhibited by the House of lam, in his Constitutional History of England, says that- Representatives, therefore the plea of the defendant should be over- The earliest instance of parliamentary impea.chment or of a solemn accus..'l.tion ruled. of any individual by the Commons at the bar of the Lords was that of Lord Lati- mer in the year 1376. Impeachments occurred at various periods in Parliament subse- qu.ent to that time, but in very few, if any, instances has it been ap- Opinioa of ltlr. Saul8bury, plied to any but persons who were or who had been in some way Delit;ered May 26, 1876. charged with official duty. Indeed at one time the House of Lords refused to try an impeached commoner, ou the ground that they were Mr. SAULSBURY. The House of Represf'ntatives has exhibited not compelled to give judgment against any but peers of the realm. articles of impeachment against William W. Belknap, late Secretary This refusal on the part of the House of Lords shows conclusively of War, charging him with hlgh crimes and misdemeanors while in that at that time no person other than those high in rank and station office, and demands that he be compelled to answer the charges thus could be proceeded against by impeachment for an;v offense. preferred against him before the Senate sitting as a. court of impeach- The Lords subsequently modified their views on this point and en. ment. The defendant denies by proper pleas the jurisdiction of the tertained complaints against persons inferior in station to themselve~:~, Senate to try him upon those char~es, alleging that he is and wna at but I am not aware of any instance in which the attempt was made to tho time the said articles were exhibited a p1ivate citizen, and not impeach a private individual. If such instances occurred at any time liable to 'impeachment for anything alleged to have been done by it must have been before the powers of Parliament were well nuder- him while in office. The question, therefore, npon which we are now stood. We all know that irt the early days of English history the rights to pass is not whether the charges preferred :!·re true, but whether and powers of Par~ament were not clearly defined; and it may be the Senate can I;ghtfully ent.er into any inquiry in reference to them. that excessive authority was at times claimed and exercised by both The question presented involves to some extent an inquiry not only Ron es of Parliament, and private persons subjected to their control. ~ntothe po~erof.tbe _~enat.e, but also of the Honse of Rei,>resentatives, The constitution of England and the powers of Parliament did not m counectwn With impeachments. Whatever authonty upon this reach their present well-defined limits in a day, but beca.me settled subject. as upon all others possessed by either House of Congress, is and marked by centuries of time. To whatever extent, therefore, derived from the Constitution, and it is therefore importa.nt to as- tile remedy or process of impeachment may at any time have be~n c<>rta.in the meaning of the provisions of that instrument which relat.e carried, whatever may have been the character of the crimes or the to impeachments, the inquiry is attended with some embarrassment; persons to which it wa.s applied, certain it is that at the time our nevertheless, I have been able to arrive at a conclu ion at least satis~ CoJ:4')titution was adopted it was nnuerstood, b_oth in England and in factory to my own mind. In briefly submitting the reasons for the this country, to extend only to such persons as were or had been in opinion I entertain, I may be allowed to say tha.t I have no ex1>ec- eivil office, and who were or had been guilty of some high oflicia.: TRIAL OF WILLIAM W. BELKNAP. 135 crime or breach of public duty. No instance can be found of its ap- I now proceed to notice the limitations found in the Constitution plication otherwise for a long time prior to the date of our Consti- upon the power of impeachment granted to Congress in the first tution. ruticle. It will be observed that whatever restrictions exist upon Nor was any such unlimited power claimed by the British Parlia- the power apply ~xclusively to the Senate sitting for the trial of an ment. It was asserted by the learned counsel for the defendant in impeachment and do not touch the power conferred upon the House this casej and has been repeated in a.rgument by Senators, that pri- of Representatives to impeach. It will also be further observed vate persons who had never held any public trust were liable to im- t~~ ~bey principally affect the judgment to be rendered upon con- peachment in England, and that, if the jurisdiction of ·Pa'rli· ment viction, and iu no sense restrict the jurisdiction of the Senate to try over persons was held applicable to impeachments in this country, the part.y accused. The provisions of the Constitution requiring the every American citizen is liable to impeachment. No greater mistake Chief Justice to preside when the President of the United States could be made. Trial by jury is the birthright of Englishmen, and is as shall be on trial and that the Senate when sitting for the trial of an well secured by Magna Charta as it is by our own Constitution. There impeachment shall be on oath or affirmation can in no sense be re- may ha>e been a few instances when this right has been denied, but garded as restrictions or limitations upon the power of the Senate or no instance of its denial can be found in that country more flagrant as in any way affecting its jurisdiction to try an accusation; they or inexcusable than recently occurreu i u this country, when a woman, simply regulate the proceedings upon the trial, nothing more. believed by many to be innocent of the crime wit.h which she was Two limitations upon the power granted to the Senate are found charged, was tried by a milita.ry commission and condemned and ex- in section 3 of article 1 of the Constitution, and in my opinion these ecuted. The mistake arises from a very erroneous idea of the power are the only limitations upon the power found in that instrument. of the British Parliament. There are limitations on the power of The first of these, if indeed it can be properly considered a limita- Parliament which are as well defined as are the powers of Con- tion of the power at all, is a restriction on the power to convict. It gress, and equally as well observed. In the exercit~e of legislative is in these words : functions Parliament may be omnipotent, but in the exercise of ju- And no person shall be convicted without the ooncllJTence oi. two-thirds of the flicial authority no such omnipotence is claimed. Its jurisdiction a-s members pre.sent. the highest court of the realm is as clearly settleed from office on impeachment by tbe Honse of Representatives Bnd emanated, and which for a time threatened to inundate and break conviction in the Supreme Court of treason and bribery. down every rampart and barrier of the Constitution. Look to Mr. Afterward t.he Senate was sn bstituted for the Supreme Court. This Madison's report of 1799 and see to what parts of the huge federal part of the Constitution elicited some debate. Colonel Mason ob- structure he directed his magnificent argument. He saw at a glance j ccted to confining the power of impeachment to treason and bribery. the foundations of the new and dangerous heresy. He saw that he He moved to adrl after bribery maladministra~ion. Mr. Madison said must demolish the monstrous doctrine that the common law-the this term ~ould be too general. Mr. Morris said it would do no harm, barbarous, far-reaehing, and unfathomable common -law-had been as an elt>ction every four years would prevent maladministration. adopt-ed by and incorporated into that Constitution which he had Colonel .Mason withdrew maladmini tration and substituted "other labored so much to create. high crimes and misdemeanors," and these words were adopted. In At the conclusion of his great argument he said: the adoption of this substitute there waa a compromise between those Such being tbe ground of our R~volntion, no support or color can be drown from who advocated an almost unlimited power of impeachment with it for the doctrine that the common law is binding on these States as one society; respect to offenses and those who favored a more restricted power. the doctrinei on tbe contrary, is evidently repugnant to the fundamental principle Is it not obvious that the convention never dreamed of the idea of of the Revo ntion. (See Madison's report, page 507.) compulsory removal. They looked only to jurisdiction. They spoke Our system of impeachment, as was aptly said by Garrett Davis only of the JlOwer of impeachment. The meaning of the section, as in Johnson's trial, is sui generis; it borrows nothing from the common understood by the framers of the Constitution, was that the officers law. Civil officers of the United States are a.lone liable to impeach- designated in it should not be removed from office for a.ny less of- ment. The Senate is made the conrt of impeachment. The Chief fenses than treason, bribery, or high crime and misdemeanor, The Jt1stice must preside when the President is on trial. Two-thirds of purpose was to fix and limit as well as they could the powers of the the Senators present must concur in a conviction. No impeachment Senate and House. Colonel Mason succeeded in extending the power can take place, except for treason, bribery, and other high crimes and beyond treason r.nd bribery. ::\1r. Madison's reasons prevailed, and misdemeanors. The judgment may extend to removal from office and maladministration was stricken out because it would give too great . disqualification to bold office. If it was the purpose of the Constitu- a power to the Senat.e. tion to give to the Senate and the Honse the same power of impeach- But. soppo"e the fourth section of the second article is not the source ment which was exercised by the British Parliament., where was the of our j m·isdiction, ca.n any reason be assigned for limiting this com- necessity of all t.bese express provisions T It is said that the Consti- pulsory duty of removal to civil officers of the United States T The tntion intended only to limit the punishment, and has left the En- learned mana~ers were forced, I think, to admit-·indeed their argu- glish la.w in full force. mentsledirresist.iblytotbeconclnsion-thatmilitaryandnavalofficers But why designate the officers and the offenses forwhich they were within the power of impeachment. If so, why was not t.heirre- may be impeached f Did not the English law of impeachment ex- moval provided for the same as that of civil officers Y Is v.n admiral tend to all public officers and accordin~ to the admissions of the man- or a general of less consequence or more dangerous when t.bey abnsll agers authorize the prosecution of all official offenses f Is there a their poweJ'S than a custo"'l·house officer or a district judge T It is case to be found in all English history of a conviction upon impeach- snid that jurisdiction attaches whenever an official offense is commit- ment that was not followed by a loss of office J If there is, I cha.l- tetl, hut is there no limitation to our jurisdiction in such cases T There lenge its production. Why, then, should the framers of the Con- is certainly not if the English doctrine is to prevail; for an admhal stitution have made removal from office a compulsory duty on the who neglects the safeguards of 4;he sen. or h·" who commands an army Senate when, under the general power given to it in the Constitu- in t.befield are liable to impeachment according to even the modern law tion and the interpreta.tion that had ever been put upon it in Enghi.ud of England. Where do you find the limitation which restricts your and which is claimed to have followed it here, that result was sure power to r.i vii officei'S T Do you not find it in the fourth section of the to follow every conviction. Mr. Hamilt«>n, who favored a stronger second article of the Constitution T Have we not the authority of the constitution than that adopted, submitted to the convention a plan of Senate sitting as a high court for saying that none but civil officers government in which .be put a provision on the subject of impeach- of th~ United States can be impeached, or at least removed from office ment. That provision contains every element of power which is to be on impeachment t found in our present Constitution on this subject, leaving out the Whatever may be the doubts in regard to the judgment of the Sen- ~overnors of States and Senators, whom be included among the offi- a.te in Blount's case in 1798, there was one question decided in it which cers sn bject to impeachment. It is as follows: shows what was thought of the unlimited power of impeachment in- Governors Senators, and a.ll officers of the United States to be liable to impeach- sisted upon then as now. The principal question in that case was not ment for mal and corrupt conduct, a.nd, UJ>?n conviction, to be removed from office whether a person who holds the office of Senator is an officer of the a.nd disqualified from holding anyplace of trust and profit; aJlimpeachments to be United States, for no one ever denied that a Senn.tor is such an officer; tried by a co'll"t. lmt it was whether or not Senator Blount was a civil officer of the Look now at the b.ngnage of the fourth section of the second arti- U nited States, so as to give the court jurisdiction over him. Does not cle of our Constitution, and read it in the light of Hamilton's provision: everybody see that if the jurisdiction of the Sonn.te and Honse were The President, Vice-President, and all civil officers of tpe United not affected by the limitations contained. in the fourth section of the States, to be removed from office on impeachment for and conviction second article of the Constitution, which confines the power of im- of treason, bribery, and other high crimes and misdemeanors. peacbment to cit:i~ 1fficers, t.hat the judgment against jurisdiction in I have here sn bstituted the words "to be" for "shall be;" but can the Blount case could never have been rendered f We have been in- any one say that the evident sense and meaning of the Constitution structed with long and interesting accounts of the jurisdiction of the is thereby changed T But it is said the President cannot pardon, and English Pru-liament. in caaes of impeachment, and it has been said that an officer may escape judgment of disqualification by giving with much force that the history of that body shows that no caae of up his office. It is well known that impeachment was intended to impeachment bas been tried there in modern times except for official extend only to officers w bo derive their appointments from the exec- crime. utive .authority, and if the President conld pardon in such cases, the But no one has undertaken to show tbnt the English law of im- power to remove from office and thus rid the public service of bad peachment as practiced there at H11 times did not extend to the Lords men, which is the object of impeachment, might be rendered useless. a.nd Commons of Parliament. The Senate then had before it in It was to render the power of removal eflectual that the power of Blount's case an opportunity to exercise the power of impeachment pardon was taken away. which all must admit belonged to the English Lords-. Had Blount But it is said again that disqualification is necessary in order to been a lord of England and a member of the House of Peers, instead prevent the r~turn of men to office who have proved themselves unfit of an Amerioan Senator, could he have pleaded the want of jnrisclic- for public station. The Constitution does not say that disqualifica- tion in Pnrliament t.o try him because he was not a civil officer of the tion to hold office shall follow in all cases of impeachment. A dis- realm f He escaped impeachment before the Senate in 179H, not be- cretlonary power is given to extend judgment to that extent where canse he was not an officer of the Unitetl States, bnt because this jurisdictio.n exists and a proper case is made for the exercise of the body, looking to the fourth section of the second article of the Con- power. The arguments made upon this point are founded in the fal- 140 TRIAL OF WILLIAM W. BELKNAP. lacy that disqualification must attend every conviction. It is said It will not be denied, I suppose, by those who seek to fasten upon that the right to impose this judgment attaches at the time tho us the common-law doctrine of impeachment, that whatever inter- offense is committed and cannot by any act of the offender be avoided. pretation ba been given in England to the words high crimes and Impeachable offenseb, .1nlike those in your crimininal code, are not misdemeanors, should be adopted here. The law of that country, as defined with accuracy. Murder, larceny, arson, and other well-known we have shown, for purposes of state policy ha left in the breast of crimes are so well understood, that proof of certain facts comprising Parliament the au~st power of determining what iR and what is not their elements mnst al~ays lead to the judgment of guilt by every an impeachable offense. This power cannot be compared to the cold tribunal which i vested with power to try them. Not so with im- and measured authority of courts of law, which in all countries is peachable offenses. The quality and character of these must often confined to the more simple business of applyin~ pre-existing and well- depend upon variable circumstances and the temper of the body to defined principles of jurisprudence to establisned facts. The jndge which is confided the ri,~Zht of judgment. who exercises this authority is not the fountain, but the organ of the Up to this time there is not to be found in English or American law. His duty is not to create, but to apply the rule. If the case law any fixed definition of the words "high crimes and misdemean- before him be murder, he is bound to see that the facts establi bed ors." Mr. Martin, on the trial of Chase, tried hard to limit them to bring it within every part of the definition which the law has given indictable. offenses, but his argument met with little favor. Mr. to that high crime. Nothing is left to his own willordiscretion. No Evarts, on the trial of President Johnson, undertook a like task, with questions of state policy, no moralizing upon the effects and conse- but little better success. Let it be borne in mind that we must test quence of the acts of the prisoner can be raised or permitted; and the argument I am combating, not by its application to sporadic or cannot all see the great distinction between that case and the case of particular cases, but by taking into consideration the whole acknowl- an impeachable oft'ense, which is at once ascertained and fixed IJythe edged doctrine of impeachment. judgment of a political tribunal. Jurisdiction, therefore, in my opin- One of the mo t important, and at the same time the most danger- ion, cannot be made to depend under our Constitution upon the time ous, features of this power is that it leaves to the two Houses of Con- when the act is committed, hut upon the status of the per on, which gress an arbitrary discretion respecting the acts or conduct which can alone confer authority on the impeaching tribunal to give to shall subject officers to impeachment. No man knows, no man can that act by the exercise of parliamentary discretion either the qual- know, what is an impeachable offense. To-day it may be one thing, ity of guilt or innocence. to-morrow another. Judge Humphreys was impeached and expelled We have been referred to the debates in the convention for light from office because he used seditious language. Still he had before on this subject. The distinguished manager, Mr. HoAR, ruentioneu an him the Constitution, which guarantees to every citizen freedom of expression used by Mr. Pinckney that the President ought not to be speech. My democratic brethren of this body, from whom it has impeached while in office; bnt he did not tell ns aU Mr. Pinckney said ~iven me no little pain to differ on this great question, tell me that in t.be debate. After using the above language, he said: 1t was not in the power of that indiscreet though it may be honest I do not see the necessity of impeachments. I am sure they ought not to issue man to escape judgment of disqualification under the law of impeach- from the Legislature, who would m that caae hold them as a rod over the Execu ment by throwing off the robes of office and standing upon his priv- tive. ileges as a citizen. The language attributed to him, if uttered un- Mr. Morris said: der ordinary circumstances. would not have been noticed. But the He was sensible of the necessity of impeaohinents if the Executive was to con- circumstances of the country, the political excitement of the time tinue for any length of time in office. He may be bribed by a brreater interest to made his utterances a high crime. betray his trust; and no one woulcl say that we ought to expose ourselves to tbe Juuge Peck, of Missouri, at a less turbulent period, was impeached agamst dan~erof seeing the First Majcstrate in foreign pay \Vithout being able to guard it by displacing him.- Madison Papers, volume 2, page 1159. by Congress for exercising a like power to that which is claimed for this body as the foundation of its jurisdiction in this case. He was Much has been said in re~ard to the common-law power of impeach- a judicial officer; and be was foolish enough to imagine that, sitting ments to show the limitations attending it in England. I put the as a district judge, he bad a right to exercise the same broad power of authority of Mr. Jefferson against that of the managers. In his Man- punishing contempts that was conferred by the common law, and ual, on page 284, he says : which had been so long an appendage of the judicial system in En- The Lords may not try a Commoner for a capital offense on the information of the gland. He made an attorney of his court purge himself of a contempt king or a private perso~. because the accused is entitled to a trial by bis peers gen. by answering on oath written interrogatories under pain of imprison- erally; but on accusation by the House of Commons, they may proceed against the ment. I commend the speech of Mr. Buchanan in that case to all delinquent, of whatsoever degree and what-soe>er be the nature of the oftense. who are in need of light on the subject of indefinite powers. Judge The man!lgers have argued in support of their theory tba.t according Peck was made to feel that there was a provision in our Constitution to the English law none but official offenders are impeachable. This which did not permit him to compel even an attorney to give evi- they had to do in order to avoid a conclu!;ion which would be fatal dence against himself. Under the law of impeachment as now under- to their argument. But let us not forget that we are now endeavor- stood how can any officer protect himself against those heats and ing to ascertain the views of the men who framed the Constitution passions of party which are inseparable from popular government if respecting the power of impeachment in England. No safer authority the doctrine of the managers shall prevail f can be looked to than Mr. Jefferson. He wa-s a representative man When it is conceded tnat an act indifferent in itself, and.which of his age and country. and we may confidently affirm that his opinion the circumstances of the times or the ~mper of the tribunal may in regard to the nature of the English power of impeachment waa make a high c:ime, how can it be claimed that jurisdiction to pun- not different from those of the great men who framen the Constitu- ish attaches in such a case when the act is committed and follows the tion. He has left us a manual of the p::trliamemary law of Great person through life f In the great majority . of offenses called im- Britain which is a text-book in both Houses of Congress. It is re- peachable the quality of the act does not depend, aa in ordinary crim- ferred to as a standard authority inca es of doubt arising under that inal cases, upon definite provi8ions of law, which leave nothing to law. Why should we refuse to accept his clear stat.e ment of the discretion. It cannot be said that any offense exists until the body English power of impeachment while we yield implicit faith .t o all which has the power of impeachment expresses its judgment upon the rest of his opinions upon the subject of parliamentary law f Im- the act arraigned. The criminality of officeTs' conduct in cases of peachment in England bas always been governed by the law of Par- impeachment is not fixed at the time it takes place, but when the im- liament, and we can no more disregard the authority of 1·his great peaching power applies to it the touch-stone of its variable justice. ma,n upon the question now under consideration than we can his In the very nature of things different considerations must enter into eqnally correct explanation of the" previous question" and its uses the idea of impeachable offenses from those which belong to ordinary in the Honse of Commons. crimes. Mr. Jefferson tells us plainly that on accusation by the House of Questions of expediency and policy, which have no place in the Commons by impeachment they may proceed against the delinquent criminal law, very often fix the character of an impeachable offense; of whatsoever degree and whatsoever be the nature of his oftEmse. and expediency and policy admit of no standard of permanency what- This authority refutes the doctrine of the managers that none but ever. Still, we have been pointed to an act of Congress making crim- official offenders are impeachable in England. Tme it may be that inal certain specific acts of corruption when done by public officers, and this despotic power has not in modern times been put in force against asked to explain the difference between the legal con seq uencesresulting individuals, but we are not interested so mnch in ascertaining what from its violation and those that follow an impeachable offense. Were Parliament has done as what it may do in exercising the power of im- I before a tribunal less exalted or discriminating than that which peachment. now hears me, I might feelsomeembarra ment in attempting to pnt The Senator from Delaware alluded to the fact tha.t Mr. Justice aside an analogy which exists only in the similarity of names. The Blaroceedina to ascertain to a heavy fine. He thought the liberty of speech and of the press whether cause exists for removing a. public offioer from office. "' was safe in the hands of tho e who had undertaken to uphold the He says that such cause of removal may exist where no offence Constitution f But he realized his folly in the darkness of his dun- against public law hru, been committed, and instances imbecility and geon and by the clinking of his chains. The nefarious law under maladministration as crimes of removal. (Curtis on the ConRtitn- which that innocent man suffered was advocated in Congress and tion, page 360.) 142 TRIAL OF WILLIAM W. BELKNAP. That careful writer, Chancellor Kent, speaking of impeachment, diction, were ohiefiy intended for offices in the executive line, would it not also be says: difficult !o exclu~e execo.tive infinence from the c~oice of juries; or would julies armetl With the IIDpeachmg power and under the mfiuence of an unimpeachable The President, Vice-President, and all civil officers of the United States may be tribunal be less formidable than the power as hitherto understood to be modified 1 impeached by the Honse of Representatives for treason, bribery, and other high The unive.rsality of this power is the most extravagant novelty that has boon yet crimes and misdemeanors, and, upon conviction by the Sen:.1te, removed from offioo. broached, e. pecrnfiy coming from a quarter that denies the impeachability of a Sen- (1 Kent's Commentaries, page 30'2.) ator. Hardy as these innovators are, I cannot believe thev will venture yet to bold this inconsistent and insulting language to the public. :if the conduct anu senti· Is it not plain that this great discriminating lawyer looked only to menta of tho Senate on some occasiOns were to be regarded as the natural and per- the fourth section of the second article of the Constitution as the mal?en.t fruit of the institution, they ou:rht to produce not only dis~ust., but de- ~palr, rn all who are reapy attached to free government. But I cannot help ascrib- source of this powerf mg some part of the evil to personal characters, and a great deal of it to the pres- In the same work he discusses at great length the common-law ent spirit of the constituents of the Senate. jurisdiction of the courts of the United States, but it never occurred Whenever the State legislatures resume the tone natural to them, it will probably to him that there was such a thing under our Constitution as common- be seen that the tone of their representatives will vary also. If it should not, the inference will then be unavoidable that the present constitution of the Senate is law jurisdiction in cases of impeachment. at war with the public liberty. Mr. President, it cannot be forgotten that this Government when first put in operation was regarded as an ex peri men t. It was watched A few of the grave inconsistencies resulting from the arguments over with great anxiety by its b.·iends and elicited the most gloomy of the Ifta.nagers I will now enumerate: forebodings from it~ enemies. Some thought it had too much power, First. We are told that our jurisdiction is derived from the second others tlmt it had too little. But there was a little band of patriots section of the first article of the Constitution. · and statesmen who fondly imagined that it was the most perfect Secon~. That it is to be governed only by the limitations attend- institution of the kind that had ever been created. Those men were i~g the exercise of the impeaching power 'in England, namely, offi- not admirers of England or of English government. They thought mal offenses. and felt that the refinement8 and tyranny of the feudal system were Third. That the fourth section of the second article of the Consti- not well ad:tpted to the free spirit of America. They favored strict tution is not a limitation upon the power of impeachment, but only limitations on all power which touched the liberty, life, or property a mandatory provision to compel the Sena.te to remove the officers of the citizen. They were for freedom regulated by law; but they therein named when convicted. cherished a fierce enmity against all undefined power. Foremost According to this argument, the broad power of impeachment ex- among these stood Jefferson and Madison. 'l'he one had breathed ists under our Constitution the same as in England. Therefore all into tbe Declaration of Independence the spirit of the purest liberty. officers of every description, high and low, State and municipal, are The other carried it down as Franklin did the lightning of heaven, subject to this power, because they are subject in England. applied it to practical purposes by making it the foundation of a 2. The power of removal given in the fourt.h section of the second written constitution. "\Vhen the fortnnes of party had placed the article can only operate on the class of officers named in it, all civil nohle work of these great founders of our Constitution in han us which officers of the United States; but every other description, nM•al and they considered unfriendly to its principles, they watched oTer its military, &c., State and municipal, do not come under the provisions convulsive and irregular operations with the same care and solicitude of this section, and they may be dealt with according to a different tha.t ibe most devoted parent would watch the progress of disea.se rule. If they are convicted of treason or bribery, the Senate is not when it seizes the health and vigor of his offspring. compelled to remove them, but may censure them and let them go In 1798, when tbe same claim of power in ca eR of impeachment their way and sin no more. which is set up to-day was asserted, the subject attracted the notice Again, the crimes, treason, bribery, and bigb crimes and misde- of Jefferson and Madi~on. This common-Jaw doctrine of impeach- meano~, specified in the fourth ection of the 8econd article, cannot, men~ put fort-h at that day, and now resuscitated, was denounced by accordrng to the argument, be regarded except for the purpose of fur- Madison as the most extraTagant folly of the period. The corre- nishing grounds for the simple removal of civil officers of the United spondence is here before me, and I will read it for the information of States. Iu all other ca es we are not bound to look to the Constitution the Senate, and I believe that the conclusion at which I have n.rrived for the offenses which will justify impeachments, but must be guided which denie jurisdiction in this case is in strict n.ccordance with the by the unlimited theories of the common law. Hence we have two principles of those distinguished men, and is the true constitutional different and distinct rules made applicable to persons subject to im- doctrine on the subject. pAar.hment under our Const..itution . . This correspondence has reference to the trial of Senator Blount, In the case of a civil officer, whose removal is imperat.i ve when con- the first case of impeachment which occurred under our Constitution. v.icted of treason or bribery, the Constitution has placed some limita- I stated that this trial took place in the era of the alien and sedition twns upon the power of removal. In the case of a naval or military Jaws. Tho Federal p::trty was in power. The managers in that c::Hle officer, or Senators or Representatives, all ofwhom are within the com- contended for a like construction of the Constitution to that which mon-law power of impeachment, and beyond the protection of the the present managers contend for. fourth section of the second article, they are at the absolute mercy of It was then insisted, as it is now, that the fourth section of the sec- the impeaching power and may be dealt with at theuiscretionof'tbe ond article of the Constitution was not the sonrce of juristliction, but Senate and the House. These conclusions are inevitn.ble from the that the second section of the first article conferred upon the Senate arguments of the managers, and to this doctrine I never will sub- and Honse the common-law power of impeachm·e nt. scribe. There is, however, a great difference in one respect between the argu- Mr. President, if there was no other argument against the exercise ments of the managerR in the Blount <'-USe and the arguments here. of this dangerous jurisdiction than that which is founded upon the There it was admitted that the common-law power of impeachment ab ence of a single precedent to sustain it., that argument would be contended for extended to all persons and all officers, State and Fed- sufficient for me. Cases have arisen in our history which called for eral. Here it is rlenied that it can be extended to private persons, the exercise of this power. Why wns it not put in practice~ From but properly applies only to official offenses. But is there not in this the origin of the Government until the present hour not a single in- very difference of opinion respecting this power enough to induce us stance can be shown of an impeachment of an officer after ho left to disregard both it and its source t This shows the danger of rely- office. Does not this amount to a construction of the Constitution 7 ing upon construction in cases like this. And why should a construction so long acquiesced in be departed from The managers in 1798 stated, I think, the true common·law doc- nowt · trine, and they claimed for this Government nothing but what was .Mr. Manager BoAB says that this Government has no securities to included in it, na they understood the English law. But the present throw away. I say, sir, tha.t the greatest danger to which the Govern- managers, looking to the very same provision of the Constitution for ment is exposed is in the gradual usurpation of powers not uelegated jurisdiction which the former did, in deference, I suppose, to the ad- to it. The people have been made so familiar with excesses of au- vanced spirit of the age, tell ns that the common law has always lim- thority until they seem indisposed to q oestion for a moment the power ited impeachments to official crime. The letter of Mr. Madison which of the Government to·do whatever it pleases. Placed here as a judge I will now read alludes to the claim of power set up by the managers in a case confessedly criminal, with a special oath resting upon my in Blount's case, and I have shown that the very same provision of COD cience to obey the Con8titution as I understand it., I shall not tho Constitution was im·oked to sustain it which is relied upon by consider for one moment what the world may think of the judgment the managers here. Still :Mr. Madison characterizes the claim of I now give. l\fy opinion may be founded in error. I claim no infal- power set up iu1798 "as the most extravagant novelty yet broached" libility for my judgment, but after the mo t patient and anxious con- by that party which carried through CongreM in the same year the sideration of this great question, after looking for light to guide my alien and sedition laws. Here is his letter to Thom'ls Jefferson: poor understanding in every quarter where I thought it could be MARCH 4, 1798. found, and with no feeling of party or of prejudice, I unhesitatingly DRAB SIR: Mr. Tazewell's speech is really an able one in defense of his proposi- say that in my opinion the Senate sitting as a high court of impe::wh- tion to ll!SOCia.te juries with the Senate in case of impeachment. His views of the ment has no jurisdiction under the Constitution of this case. subject are so new to me that I ought not to decide on them without more ex:ami· I am not insensible of the greatness of this occasion or of the impor- nation than I have had time for. My impression has always been that impeach· tance of having safeguards to secru:e the interests of the people; ruents were somewhat sui generis, anct exclude the use of jurie . Tho terms of the neither am I inuifferent to the great danger of resortinsan1y presents itself to the mind is, longed to the Crown. He was or had been a British officer, and it waa what is impeachment! And how can the question be answered with- as such be was brought before the Honse of Commons. As already out going to the common 1'1w for the exposition; it llein~ the fountain, stated, it is not important in this discussion to decide who all were or the great head-source from whence all our system fiows "f The framers were not liabl e to impeachment in England; it is sufficifmt to say of the Constitution were the sons and descentlants of Englishmen, the_ that there a civil officer, a.s was Warren Hastings, was considered lia- • 144 TRIAL OF WILLIAM W. BELKNAP. ble to be tried. He was a civil officer who had been removed from rogues and villains. The thieves must be driven from power; and, office-for he. did not resign, he was recalled and removed; and was im- Mr. President, I desire yon and the Senators around me to remember peached the year after his return to England. This great trial then that whenever the fact is made known to tile people that it bas been g-oing on in England to my mind is sufficient to explain what the decided that a guilty man can escape tTial by impeachment merely framers of the Constitution meant. Bnt, in addition to this, we have by resigning his office, they will take steps to correct this decision. the words of the Constitution itself. Although there may be a majority for the jurisclictiont yet if there It is very plain to me that when you examine critically the power is one-third opposed to it, I am satisfied from what has been said given to impeach and to try, that the President as well as any other that an effort will be made to get the party charged acquitted ori the person boldiug office is subject to impeachment. I have beard it said ground that those who are opposed to jurisdict.ion cannot vote for during this di ' COS ion that as the king in England could not be im- conviction. Let this be done, and in my1 opinion a storm will be let peached, so the President in this country was also not impeachable. loose that will sweep over thi~ land, and as it passes over the valley To my mind this is not correct.. While it is true that. in England the and mountains and plains, there will be heard in the di tance the ma- king could not be impeached, for the reason that bisoffic"' is hereditary, jestic voice of the people crying aloud for a restoration of this, the and as king be can do no wrong and is not responsible; therefore he people's remedy, with which alone they can drive from office the vil- could not be tried, because be was beyond the reach of thf.' law. But l:loins and thieves who may have fattened at the public crib. this is not so with regard to the President. Here be can do wrong, and for which he is responsible; elected by the people, and not hered- itary. In this country he is, like any other officer, subject t.o the same laws and equally responsible. Therefore I am sati fied he is Opinion of JD.r. Boelh, impeachable under the first section. Again, as this section provides that when the President is tried the Chief Justice shall preside, De.liveted Ma.y 27, 1876. it must be that it was intended to include him as one of the offi- Mr. BOOTH. Mr. President, two theories of impeachment as ap- cers thus liable. I see no reason why he should not be liable to im- plicable to the question before us are submitted, one of which we must peachment, but very good ones why he should be, and as hi name of adopt, for no other seems to be possible; and yet to my mind neither office is mentioned in connection with a trial, I take it that be was sub- is entirely consistent with all the provisions of the Constitution and ject to this mode of trial the same as any other person holding office. their accepted construction. It is said in this first article that judgment in cases of impeachment After listening to one of the ablest debates it bas ever been my shall not extend further t.ban to removal from office and disqualifica- privilege to hear, I am compelled to the conclusion that the doubt tion to hold any office. Leaving it optional with the Senate to im- exists in the Constitution itself, and ari es from the fact that the con- po e one or both of those punishments, a party convicted may be re- vention did not consider the whole subject of impeachment and de- moved and not disqualified, be may be removed and disqualified, or termine all its provisions at one time, but agreed upon each with ref- be may be disqualified without being removed, and if be is not in erence to a special object; and the difficulty is insuperable in the at- office be of course cannot be removed, it being a question of dis- tempt to reduce uncertainty to certainty. cretion with the Senate sitting as a court. I wish this fact to be The theory in favor of jurisdiction is that the term impeachment well understood, that the Senate bas an nndoubted discretion as to in our Constitution does not mean simply form of accusation, but the judgment. Whether it be considered a punishment or not there imports the whole of the common law in reference to impeachable is a diversity of opinion, bnt whether it be from my stAnd-point makes persons and impeachable offenses, giving to Congress the exact j llris- no difference, the discretion certainly exists. Now if the Constitu- diction which wns held by Parliament, and vesting in it pleua,ry tion bad stopped there the power of impeachment would have been power of punishment, restlicted only by all these by the provisions complete, the power to try no less so, the power to give judgment in of the Constitution; that is, that the use of tbe word impeachment its discretion equally so, complete in every res'{lect. But we must not in providing for a method of accusation and trial is a grant to Con- forget that this remedy by impeachment was a great weapon placed in gress of all the power which could be exerci ed by the British Par- the hands of the people, to be used for their benefit, and by them to liament on that subject, and that subsequent provisions, when not be employed to clean the A.ngean stables of the filth and manure of definitions of the methods of its exercise, are restrictions upon the the bulls and oxen that might be found occupying the public stables. grant. Hence the further provision was made, fourth section, second article, In support of this theory as to definition, it might be suggested that in the event the President, Vice-President, or any civil officer be that the first clause in reference to the subject reads : found guilty, he shall be removed; therefore when either of these persons was in office, there was no discretion as far as removal was shall The House of R~presentatives shall choo e their Speaker and other officers; and have the sole power of impeachment. • concerned, evidently showing that there might be a class of pe-rsons, if convicted, toward whom no discretion existed, and another cla The word " Speaker'' in the same clause is purely technical. It is toward whom there wa8 discretion. These two classes are first the not defined directly or indirectly by its use in any other connection. persons who, while in office, commit a crime and do not remain in Wr> are obliged to go to the British Parliament for its meaning. So office, and the other who is yet in office. I therefore consider that far as I know, the House of Commons is the only parliamentary body this fonrth section of the second article does not give jurisdiction, in the world that had ever designated its pre iding officer by that nor limit it, and has nothing to do with the question of jurisdiction, name, or a translation of it. Like many other words, it has drifted so but is only mandatory. far from its origin that the Speaker of the H01'1se is the only member This last section, to my mind, is proof positive that persons out of who cannot speak. When be speaks he is not the'' Speaker." To office can be impeached; otherwise there could be no case in which to make the argument drawn from tbis complete, it must follow that the exercise the discretion evidently given by the first section. presiding officer o£ the House of Representatives, by the use of the Noone can doubt that it was the intention of tbe framers of the word speaker is invested with all the prescriptive rights and func- Constitution to confer the power of impeachment of some character tions of the speaker of the House of Commons. or other. Let the cbaracterof the power be what it may, or the cia s That part of the sixth clause of the third section which provides of persons who may be embraced within it be who they may, a power that "the Senate shall have sole power to try all impeachments" is of this nature was evidently conferred. I repeat it, for it cannot be only important in this connection as indicating that the common-Jaw repeated too often, this was intended to be a great power, placed in idea was a controlling one in the mind of the convention as shown the hands of the representatives of the people for their protection in adopting a method of trial similar to that of Parliament. True against corrupt aud venal officials. Now, if it ia true that this power this was done after other methods were discussed, but its final adop- thns conferred can be defeated by the guilty official re igning, it tion is evidence o£ a disposition to keep within the line of precedent. might as well not have been put in the Constitution. Resignation I pass for the present to the next and immediately following clause will follow the detection of guilt in every instance; and thus although in the Constitution: it might be that a Secretary of State may have betrayed his country Jodgment in case..~ of impeachment shall not extend further than to remova~ to a foreign power, or the Secretary of the Treasury stolen millions of from office, and disqualification to hold and enjoy any office of honor, trust, or the public money, or any other officer from the Presidt>nt down shame- profit under the United States. &c. fully disgraced his office, or a judge publicly sold justice from the This clause seems to me the stronge t corroboration of the common- bench, it matters not wbo the officer may be or what he may have law theory of jurisdiction to be found in the Constitution. It is re- done, all he has to do as soon as the fact is found out is to hand in strictive. Restrictive upon what f Certainly not npon any sub e- his resignation, and be can go scot-free as far as this remedy is con- quent clause of the Constitution, for the Constitution was to be cerned. It is true he may be tried by a court. But I believe that operative as a whole-aU taking effect atone time. It would he absurd when the day comes that the Senate will decline to try a guilty for a convention making a co{lstitntion to attempt to-day to restrict official, and, as in this case, one who admits his guilt, but to avoid its own action to-morrow, when its whole work was to be adopted impeachment has resigned the office which be abused, the day will or rejected by the people as one instrument. And if after agreeing have come when it will not be very difficult to get out of the clutches upon these words they had adopted a subsequent provision that the of a court._ We all know how cases are continued and postponed and President of the United States upon impeachment for and connction · how juries are formed. Let a guilty man escape the punishment pre- of treason should suffer death, by a well-known rule of construction scribed by the people's remedy of impeachment., and to my mind you the latter clause would prevail. will proclaim a saturnalia for all rogues and villains to step forward There are no affirmative words in this portion of the clause; it. is and help themselves. My hope, my only hope will then be in the prohibitory. It is doubtful if under snob a clanse in a statuto a. crim- lleople; and it is to them I will feel it my duty to appeal to restore inal court could pronounce any judgment, unless a genoral or speciilo this great popular remedy. We cannot submit to be governed by power to pronounce any or somo judgment were elsewhere conferred. TRIAL OF WILLIAM W. BELKNAP~ 145 It may be argued that it is permissive, but a criminal court takes be found in the common law it must be sought in the Constitution, nothing by implication. The cl:1nse, however, is consistent with the and it ean only be found there in the fourth section of the second arti- theory tlJat the Senate was already clothed with the general p_ower cle. Now, w~etherwe con true this section as a limitation upon a juris- of punishment which attached to the House of Peers, and these words diction already vested or as the creation of jurisdiction, it clearly were restrictive of that power. To my mind this sentence must have means that only persons in office can be impeaehed. That is, if we meant this at the time and in the connection in which it was used, or are driven to this section to find a limitation which is conceded to it was designed as a limitation upon the power of Congress to enact exist, we are compelled to find the whole limitation contended for. statutory penalties for impeachable offenses. Bnt this section is not only a limitation; it is al~:.o an extension of Being a restriction upon punishment, it must have been a restric- jurisdiction. AI3 firS suggested by the Senator from New York and tion upon a power to p_u nish then in esse, or a restriction upon a power brought sharply out by tho Senator from Minnesota, the President, to create penalties. as the executive head of the Government, was not impeachable by Section 4 of the third article is susceptible of a construction con- any analogy of the common law. His position does not correspond sistent with this theory. It reads: · to that of the king who was not impeachable or to the prime minis- The President, Vice-President, and all civil officers of the United States, shall be wr who was. Story very ably argues, and refers to this very section of removed from office on impeachment for and conviction of treason, bribery, or the Constitution in confirmation, that the President is not an officer other high crimes and misdemeanors. of the United States. As was tersely said by the Senator fmm Mas- The nautral meaning of the words "shall be removed from office sachusetts, [Mr. BOUTWELL,] "He is a part of the Government." He on impeachment for," &c., is that these persons were before that su ~ject was made impeachablo by this section, and the President is so closely to impeachment. The grammatical meaning of the sent-ence, leaving linked with civil officers tha,t they cannot be separated for purposes out all question of legal construction, is that removal from office is of jurisdiction. In this view the rule that including a class excludes mandatory in the cases enumerated. To invoke the rule of construc- others becomes operative. tion in this view, incliUiio 1tnius, exclusio alterius, seems to me to be a· It is true, as suggested by the Senator from Missouri, [Mr. BoGY,] pef\tio principii, for whether this sentence is to be construed as inclu- that section 3 of the first article of the Constitution provides that sive and exclusive as to parties or mandatory as to punishment is the "when the President of the Umted States is tried" (on impeachment) whole question at issue. If the latter be the true meaning, it cer- "the Chief Justice shall preside," thus rai~ing an implication that tainly includes all persons who can suffer that punishment, and there the President was impeachable; but the history of the debates in the is no room exclusio alterius. convention shows that this provision was not agreed upon nnt.il after It is to be borne in mind, also, that the authors of the Constitution the adoption of the fourth section of the second article, and that its were familiar with the common law or lex Pa1·liamenti of impeach- precedence in place was assigned by the" committee on style." In ment; that it was consciously or unconsciously in their minds as the f~t it was first reported by this committee, after all other provisions basis of their proceeding. in regard to impeachment had been determined by the convention. Whether they desired to fit a known instrument to their purpose Where private rights are in issue, the general opinion of constitu- or to invent a new one they would use common-law terms. They tional construction should have little weight, but where public rights lived, so to speak, in the atmosphere of the common law, and thought and considerations are only involved, public opinion, that public in its language. If they had_said" the President, Vice-President, opinion which can alone give the Constitution any vitality as a po- and all civil officers of the United States shall be subject to impeach- litical instrument, becomes a great factor. I take it then to be ac- ment for treason, bribery, and other high crimes and misdemeanors cepted American law here and elsewhere, to which there is general committed in office, and upon conviction thereof they shall be re- acquiescence, though there may be individual exceptions of opinion, moved from office and may be disqualified from holding office under that only offenses are impeachable which are committed in civil office, the United States," I, at least, should have had less difficulty than I and tha.t these offenses are those enumerated in the fourth section of have with thio case. the second article. This is the law; so generally accepted that it is So far this "common law" theory seems consistent with itself; tho one firm and stable thing amid the shiftin~ sands and changing that is, that in the subject of impeachment the whole power and juris- winds of opinion and debate. We have one pomt fixed. Fixed not, diction of the British Parliament is vested in Congress ; that the I admit, by the clear intention of the men who wrote the words of the methods of their exercise are prescribed; that there is no limitation constitutional clauses, but by that far greater intelligence and more except that imputed by the word impeachment itself, ex v-i tm'nlini, infallible rule, a hund.I·ed years of experience; by the inertia of ac- as to persons and offenses; that punishment is restricted to removal quiescence. from office and disqualification to hold; and that removal from office Is it possible to deduce, can you deduce that fixed rule from the must follow the conviction of one holding office at time of conviction. vague, shadowy, undefined, and undefinable custom of Parliament I am compelled to the admission that I believe this would have which is only a custom in that it is above law-conforms to whatever been the interpretation of the provisions upon this subject by the men it desires and, borrows or repudiates the example of yesterday in order who in convention assembled gave expression to the Constitution of to sanction the right or establish the wrol!.~ of to-day at the whim or the United States if they had been called upon to express an opinion, caprice of its omnipotent but changing will f and not to make a judicial determination; and, if the meaning of the Who here, elsewhere, or anywhere can tell bow much of what is Constitution is to be ascertained simply by that kind of "mind-read- called the common law of impea-chment is derived from preceuents ing," that is the interpretation we must adopt. For myself I do not in impeachment trials and how much from the theory of the omnipo- think this the true rule for interpreting a constitution. The Consti- tence of Parliament f tution did not live until adopted by the people of the States. We Sir, for one I will not believe that this undefined law ever became must consider their ideas as well as the convention's. It live8 now by adoption a portion of American jurisprudence; that this vast by, for, and through the people of to-day. It is for them, not they power was properlyvested by implication in Congress. Any inten- for it. We must calculate its meaning in the light of events, by ju- tion to place it there must yield to the spirit of the whole instrument. dicial decisions, by the meridian of 1876 as well as 1789. The Consti- If grafted there, it did not grow. If planted there, it did not take tution of the United States is not dead, but living. If it were an in- root. crustation, not a living body, it would long since have stifled this With the Senatorfrom Wisconsin, [Mr. CAMERON,] I can :find in the nation or been destroyed by it. Constitution enough to create the proceeding of impeachment, with- To suppose that its authors could have anticipated the wants and out receiving anything from inheritance or taking anything by im- necessities of coming times and provided for the exigencies of human plication. I find there a class of persons, an enumeration of offenses life in this everincreasing volume in fixed and unchanging terms which are impeachable; only one penalty which is enjoined by affir- would be to attribute to them omniscient wisdom. mative words, one limit which cannot be transcended. I wish to state the paradox as my belief that the Supreme Court of I know that as a matter of verbal criticism or legal construction of the United States, that this body to-day understands the Constitution lan~age neither theory is perfect, but in the one I stand within secure of the United Stat-es in its application to affairs as they are better limits of actual grant, in the other in the vague and shadowy un- than the convention which framed it, and this generation far better known. In the one I stand within the rule of interpretation which than the generation which adopted it; as much better as the courts bas been found to be safest and wisest for the whole instrument, in now understand the statute of frauds in its application to present the other I make this procedure an excrescence upon the body-politic. transactions than it was understood by the Parliament which adopted If the time should ever come when the power to impeach after office • it, or aa the people do the rights protected by habeas corpu.s than the is necessary to sooure the proper administration of office, soeiety will · generation did when they we.re first vouchsafed that great writ for be so corrupt and the motives of public moro,lity so low that theRe- their protection. public cannot be saved with it, and would not be worth saving if it The difficulty in the common-law theory lies at the foundation. could. To make it consistent with what is accepted upon all sides as the law governing us, and what has been at least assumed to be the law in every impeachment trial in this country, impeachment at common Jaw must have been restricted to offenses committed in office. The OpinioQ. of Mr. Key, history of impeachment in Great Britain not only fails to sustain this Delivered May 29, 1876. to my mind, but refutes it. In the case of Blount (the first in the United States) it was held that Blount could not be impea-ched be- Mr. KEY. The provisions of the Constitution material to our con· cause he did not hold office under the United States when the offense sideration on this question are these: was committed. And the practice of tho country with universal ac- First- quiescence furt~er limits the rule to civil office. There are very co- The House of Representatives * * * shall have the sole power of impeach- gent reasons why this should be so. Now, if this limitation cannot ment. 10 I 146 TRIAL OF WILLIAM W. BELKNAP. Second- We must interpret the law strictly and as it is written. We are The Senate shall have the sole power to try all impeachments. not to make the law. We are not to determiue whether the Consti- Third- tution contains such provisions as we should have made or not or Judgment in cases of impeachment shall not extend further than to removal from ~~eth~r.they might be improved .. W:e must not obs~ure it, or render office, and disqualification to hold and enjoy any office of honor, trust, or profit under It meffiment and powerless by lat1tudmous constructwn or forced im- the United States. plications. The langua~e of the Constitution in regard to impeach- Fourth- ment, when considered m the order in which it stands, the order in ThePresident. Vice-President and all civil officers of the United States, shall be which it was placed by its makers-its regular and natural order, so removed from oiflce on impeaDhmentfor, and conviction of, treason, bribery, or other to speak-appears to me easy of interpretation, and so clear and ex- high crimes and misdemeanors. plicit in its terms as to need the application of none of the rules of These -are given here in the order in which they stand in the Con- ?onstruction used for ~mbig~ous or doubtful ~rovisions. To my mind, stitution, and it seems to me that when they are thus collated they 1t appears that the difficulties of the questiOn under consideration are so plain and explicit as to leave little room for construction or arise, not out of the Constitution, but from the latitude of opinion don btful interpretation. which has been taken heretofore in regard to the implications of the The first gives the House of Representatives the sole power to im- language used, and which do not properly belong to it, when that • peach. I confess that I do not comprehend that rule of strict con- language is defined in its natural order, according to its plain and struction which doe~:~ not find a power where it is expressly granted, simple meaning. aud discovers it, by implieation, in a clause in which no such power In giving expression to the opinion I have upon this question, I is given. Strict construction of an instrument finds the power in the wish to be understood as doing so with becomin(J' modesty and diffi- language in which it is ~ven. There is as much of latitudinous con- dence, for r confess that the magnitude of the difficulties in regard to struction in refusing to find a power in the words by which it is given, it which arise and which have arisen heretofore in the minds of the as by forcing an implication of the power from language which does most able and distinguished members of this body on this trial, as not authorize it. A strict construction eliminates and ascertains the well as on those like trials which have preceded it, make me doubt- powers delegated from the language as expressed, and will assert a ful of the justice and propriety of the views which seem to me so power which plainly exists as strongly as it will deny one raised only clear and inevitable. I have great respect for the opinion of tho e by forced implication. It appears to me, therefore, strange that al- Senators who have differed with my view of this question, and to dif- though the Constitution says that "the House of Representatives fer with them gives me some apprehension as to the correctness of shall have the sole power of impeachment," yet these words do not my conclusion; but, notwithstanding the ability, force, and earnest- give it the" sole power of impeachment," and that you must go some- ness with which their views have been urged, my mind is convinced where to find that power where nothing is said about it, and that a in favor of the jurisdiction of the Senate in this case. Nor am I / strict construction of the Constitution requires this. alarmed at the dangers which some Senators see in coming to such a The first provision grants to the House of Representatives the sole conclusion. Our fathers had confidence in the people. They gave power to impeach. The second gives the Senate the sole power to the people the right to choose those who should be the members of try the impeachment. The third declares that, should the Senate the House of Representatives. They did this because they were sat- convict the person impeached, the judgment shall extend no further isfied the people would elect good and qualified men, to whom the high than to removal from office and disqualification to hold office under trusts of that exalted position might be safely delivered. They gave the United States. The fourth provision says that if the President, the Legislatures of the States the right and duty to elect those who Vice-President, or any other civil officer of the United States shall be should compose the Senate of the United States, because they be- convicted on impeachment for treason, bribery, or other high crimes lieved these legislatures would choose suchaswereqnalified by experi- and misdemeanors, he shall be removed from office. The Constituticm ence, ability, learning, and integrity for their high station. To these does not say that the President, Vice-President, and other civil offi- bodies, the Senate and House of Representatives, it gave the legisla- cers of the United States only shall be impeached. It bears no such tive power of the Government. To the body chosen by the people our construction, in my opinion, unles8 it be forced by the widest impli- fathers believed they mi~ht safely give the power and discretion of cation. It does not say that only treason, bribery, and high crimes impeachment. They saia this body shall have the power to impeach. and misdemeanors shall be impeachable offenses. We can all see how They did not say it should exercise this power, but it might do so. a case might happen which would demand the removal of a public Our fathers never supposed that that august body of the people's officer who had been guilty of no such offense. Suppose a President, picked men would deal with any but great offenders, guilty of great by injury, diseaee, or other cause, should become imbecile to such an offenses in public station, or with great officers disqualified by some extent as to make him incompetent to discharge the duties of his high nnusual cause for the discharge of official duties. They had more office-suppose be should insist on the exercise of the functions of confidence in Congress and in our form of government than have maoy the office to which he had been chosen, believing himself fully qual- who have spoken in this debate. They never feared that the" awful ified to discharge them, how should we get rid of him Y He cannot discretion" of the Senate would be invoked or exercised against small be said to be guilty of treason, of bribery, or of high crimes or mis- offenders or small offenses, or from motives of hate and party passion. demeanors, for these are all criminal offenses, and an evil intent is a They would never have given to Congress its grand trusts and great necessary ingredient of the charge, and there is with him no such in- powers had they believed it would ever be capable of the infamous tent. -It is true the Constitution provides that in case of the removal conduct and action which in this Chamber have been pictured in hor- of the President from office, or of his death, resignation, or inability rible outlines before our eyes to terrify us. The fathers were not to discharge the powers and duties of the office, these duties shall afraid to trust Congress. They did not presume that the representa- devolve upon another; but how are you to ascertain and determine tives of the people and the States were those who would be the first his mental inability when he denies it from honest belief, and asserts to pull down the glorious fabric which sustains and protects our lib- with eqnal confidence his ability t.o discharge its duties, if not by im- erties. The first century of our existence as a nation has taught many peachmentf here, it seems, that Congress is to be feared, not trusted. Has Con- The Constitution does not undertake to define the nature and form gress grown alarmed at its own temper, powers, and tendencies t Do of impeachment, or its scope and boundaries. It treats of the whole ita members believe that the lives and liberties of the people are in subject as of a matter which is already defined, bounded, and under- the power and control of custorlians so dangerous f Has Congress stood. I think the House of Representatives may impeach for other grown so corrupt, so unfaithful, so weak that it may be driven from offenses, abuses, failures, and wron~s than those included in the its line of duty by passion or party rancor! Ha-s a new light shone terms "treason, bribery, and other htgh crimes and misdemeanors." out discovering to our startled vision rocks and breakers which never I think it may impeach other parties than the "President, Vice-Presi- before appeared in our sea, upon which our vessel of state is in immi- dent, and other civil officers of the United States.'' Upon no other nent peril of being wrecked f I repeat, are Senators afraid of the peo- hypothesis, it seems to me, can we reconcile aud harmonize the pro- ple's chosen representatives f Are Senators afraid to trust them- visions of the first and second articles of the Constitution defining selves f Do they think that we are better than those who are to come the extent of punishment or penalty. The first says that jud~ment after us f If corruption, party hate, or other evil spirit should so shall extend no further than to removal from 'office and disqualifica- possess and control Congress that the House of Representatives should tion to hold office. That provision is general, and, everything else impeach and two-thirds of the Senate vote to convict a political an- • . out of tije way, allows the Senate to remove and disqualify partially. tagonist, to destroy him on that account and for that reason, our Gov- or entirely, or to remove or to disqualify, in its discretion; but as this ernmentwill havoreached such a state of decline, decay, and rotten- might not be sufficient in some cases, tho second article says that ness that if destruction shall not come in one shape it will come in if the President, Vice-President, or other civil officer of the United another. States shall be convicted on impeachment, he shall be removed. To More than one Senator-as an argument ad hon~inem, I suppose-has that enent the Senate shall have no discretion, but it may still dis- told us that nnder the construction which would give this body juris- quality or not. If others are impeached, the Senate may or may not diction of this case those of us who were lately in rebellion could be remove; but if the President, Vice-President, or other civil officer is impeached for treason. Sir, on becoming members of this body we successfully impeached for treason, bribery, or other high crimes and took a most solemn oath. If we believe that a just interpretation of misdemeanors? the Senate shall remove. If the second article defines the Constitution gives this jurisdiction, and were deterred from say- who shall be 1mpeached and the offenses for which they may be im- ing so and voting so because the construction was nnfavorable to us, peached, removal from office is the imperative penalty, and the pro- we should forfeit all claim to honor and manhood, bring disgrace vision in the first unmeaning. It would follow also that the party npon ourselves and the people we have the honor to represent, and could only be impeached for treason, bribery, and other high crimes deserve the execration of mankind every-Where. and misdemeanors. But we ~re told ~hat impeachment in England was in formtlr ages . TRIAL OF WILLI.A.M W. BELKNAP. 147 a most barbarous, bloody, and tyrannous proceeding. It is true that I have listened to the opinions delivered on the one side and on tho in the times past many bloody sacrifices were made in that country other, and I believe I have listened to·them all, a-s well those from under the forms of impeachment; bntwhereoneman so fell hundreds which I have differed a-s those with which I have agreed. Senators under the sentences of other tribunals fell at the stake, on the gibbet, around me, at whose feet I delight to sit, have addressed to me in and on the scaffold. Of all the courts of Englaml in which crimes common with others very able arguments against this jurisdiction. and crimi~ls were tried the court of impeachment was stained with Among them has Leen my own colleague, [Mr. BOUTWELL,] whose the least blood. It tried noblemen and great officers. The people opinions cannot have as great weight with any other Senator as with fell by thousands under the other courts. We are told that a little myself. I have come to feel in the progress of these arguments- that later in our own country men were persecuted and punished becauRe it was due tv them that I should give them some reason why I find they were Quakers, and ugly old women were tried and condemned it impossible to yield to their reasoning. For this purpose alone I because they were said to be witches; but the descendants of those speak. who did these things were among the very first to light the fires of The plea is one of confession and avoidance. For the purpose of liberty on this continent, and none did more than they in laying the argument, it must be treated aa confessing all that is alleged; broad and deep the foundations of freedom's glorious temple and that is, that Mr. Belknap, while Secretary of War and in and about erecting thereon the magnificent structure which attracts the world's his official duty, has committed high crimes and misdemeanors, but admiring gaze. These excesses were not the fault of the people. The that by a subsequent act of his own, a simple resignation of office, age was to blame. The people of England are more enlightened, free, he has avoided all the consequences that would otherwise under the and tolerant now than they were in the days of Henry VIII and Constitution follow his official crime. I confess, at the outset, that Mary and Elizabeth, and the people of New England are more liberal it would not be easy to convince me of the validity of such a plea. and tolerant than in the days of Roger Williams and Miles Standish. I cannot easily come to the conclusion to which the Senator 4"om England, with what gentlemen call an omnipotent Parliament, has California [Mr. BOOTH] seems to have arrived in the beautiful aml had but one or two cases of impeachment, I believe, during the ex- eloquent _o pinion delivered by him yes.terday: that while the mem- istence of our Constitution. Their last was in 1805, I think. Since bers of the convention, if asked their opinion, would of one accord that period we have had many cases of impeachment. We have have said that they had provided for this case, but that nevertheless, this fact, which should quiet the grave apprehensions of Senators in without intending it, they had by some unaccountable jumble of ar- regard to the dangers of the common-law doctrine of impeachment: rangement thwarted their own purpose. A few simple rules of con- England, in our age, with what these gentlemen denounce as unlim- struction have guided me to the conclusion that this plea is bad. I ited power of impeachment, has had no case of impeachment while take the Constitution a-s a whole, and insist that effect must be given to we, with scarcely any power to impeach, according to their idea. all its provisions. Any rule of construction must be bad which brings have had several trials of the kind; so that, using our own age and its different provisions in irreconcilable conflict with each other or England and the United Stat.es for the test of the doctrine, the re- which renders any of them nugatory or void. Many Senators start- sult appeal'S to be that there is more danger of impeachment under ing from different premises have been led in this discussion different our Constitution than under that of England. What we should have ways and to opposite conclusions. With some the power of im- done had our Constitution and people been co-exietent with the reigns peachment placed in tho Constitution is the common-law impeach- in England, during which blood flowed so freely, we cannot tell. ment as it existed when the Constitution was formed, limited, it is I think, Mr. Preedent, our fathers intended to lodge, and did lodge, true, in its application and its penalty by express provisions found in the Houses of Congress, in such manner that these bodies should in the instrument itself. ·with others the impeachment spoken of in be a check upon each other, a high discretionary power, broad enough the organic law is a new creation of the Constitution itself, having and wide enough to be used and exercised for the safety of the state no reference to the common-law understanding of that t.erm, created, and the security of the liberties of the people in great and unforeseen defined, and limited by article 2, section 4, in these words : emergencies, dangerous to the life of the state ; a great discretion, to The President, Vice-President and all civil officers of the United Stat~s, shall be be exercised when something arose and had t.o be grappled with at removed from office on impeachment for, and conviction of, treason, bribery, or once to save the country, which the general law had failed to foresee, other high crimes and misdemeanors. define, and provide against. The Constitution waa made not only for By them it is held that all ot.her provisions relating to impeach- the age in which it was framed, but for all the ages which are to ment in the Constitution are but distributions of the several parts to come. It was impossible to foresee what complications, combinations, be performed -i n carrying out the power granted by this section. The or unthought-of dangers might imperil the nation; hence the fathers argument between the advocates of these two theories has proceeded gave the power of impeachment to the Houses of Congres~ the same upon the ground that they must necessarily lead to different conclu- bodies who give laws to the Government, to be used if neea be in un- sions. It has been generally held by those who believe that the im- foreseen emergencies, as well as in the cases specifically mentioned inpeachment here spoken of is the common-law power of impeachment, the Constitution. It is a power given for the security of liberty; a to which, wherever it obtains, it is admitted that all official miscon- power, like all others granted by that instrument, to be used wisely, duct is amenable, that it leads to the conclusion that the Senate has and not abused; a power, active, efficient, and operative when occa- jnrisdiction. Those holding the other theory, that this is :t new power, sion demands its exercise, and only then. claim, with equal confidence, that it leads to the opposite conclusion. Mr. President, I will conclude by saying that for the life of me I Hence these two methods of reasoning have been arrayed against cannot understand or greatly respect a theory which would impeach each other with great and exhaustive ability and research. But I and try President Johnson, who had been guilty of no crime, because have been unable to see that this distinction is essential to a correct conclusion. By either mode I arrive at the same result, and, there- he was in office, and permit one to escape who is presumed to be guilty, as the record stands, of a ~reat offense against the people of the na- fore, to my mind, this question, which has so often been made pre- tion in defrauding its soldiery, whom it was his duty to care for and liminary in the argument, is wholly immaterial. By both processes protecthbecause he resigned his office to avoid impeachment and trial. of reasoning I am led to the same conclusion. Even if the framers of I have eard of the uncertainty of the law, and such might be an the Constitution, in putting into art.icle 2, section 4, the words I have example of it. already quoted, namely, that "the President, Vice-President and The power of impeachment, Mr. President, is one of the bulwarks other civil officers, shall be removed on impeachment for, and convic- of our liberties by which the representatives of the people may insure tion of, treason, bribery, or other high crimes and misdemeanors," did them against those great offenders whose official misconduct is in- create a new power, with its own limitations audits own consequences, tended to destroy our Government or overthrow the rights of its citi- t.o be neither measured nor defuied by the llliltory of impeachment in zens, and not as an engine of oppression, by which a faithful officer the past, still from these premises I can come to no other conclusion could be destroyed and the greatest official offender of the age es- but that this power by every just and fair, aa well as strict, construc- cape; and yet that is what the theory of those who deny jurisdiction tion of the words here used includes the case at bar. in this case might accomplish. And briefly, for these reasons: Mr. Belknap was a civil officer when the offense was committed. The offense, as alleged, is a high crime and misdemeanor, a.nd the simple question to be decided is whether a civil officer who thus commits an offense described in the Constitu- tion must be a "civil officer" when the offense is committed or when Opinion of JYir. Dawes, he is tried for it. Those who believe that the Senate has jurisdiction Delivered May 29, 1876. to try the ca-se believe this language to mean that he must be a civil officer when the offense is committed, while those who believe that Mr. DAWES. Mr. President, the Senate has determined that the the Senate has not jurisdi?t~on are of opinion :tn-at the language Im- discussion of this question shall close with the day. The signal abil- ports that he must be a CIVIl officer when tned. The construction ity a:~}(l exhaustive charact-er o~ ~he debate which has preceded, and which requires the offense to be committed while in office, without re- the nghts of those who are wa1tmg to follow me, both admonish me gard to the position of the offender when tried, leads to the conclu- to be brief. I shall struggle to heed the admonition. sion that the person who, while in office, commits high crimes and I am of opinion that the Senate has jurisdiction to try William W. misdemeanors, maybe impeached therefor at anytime thereafter. On Belknap upon the articles of impeachment preaented against him by the other hand, the construction which requires that the person shall the House, anything in his plea to the contrary notwithstanding. I be a civil officer when impeached for high crimes and misdemeanors, have thought all along that I should sufficiently discharge my duty whether in or out of office, leads to the conclusion that the person by simply thus recording my vote, and that perhaps that vote would when in office may be impeached for any such offense committed vindicate itself quite as well without any attempt upon my part to whether in or out of office, and therefore during any period of his support it with arguments as in any other way. previous private life. While consequences are not always tests of 148 TRIAL OF WILLIAJ\1 W. BELKNAP. construction, yet no one can well lay a ide entirely their considera- heinous a chamcter that simple removal from office would not bEl nn tion, and, therefore, it has been urged upon us with great force by adequate penalty or a sufficient protection of the public. They then'>- those opposed to jurisdiction in this case that the construction which fore added to the power of removal from office a further power of dis- gives jurisdiction renders liable to impeachment for the reJTiainder of qualification to enjoy any office of honor, trust, or profit under the his life any person who has held any civil office under the Government, United States. overlooking in argument that the construction insisted upon instead I will not discuss at tl1is moment the comparative severity of the exposes every person the moment he enters office to impeachment and two penalties. It is enough for the argument to say that the framers consequent removal, and it may be peqletual disqualification, for any of the Con titntiou deemed this l:ttter a penalty of importance alleged offense he may have committed at any previous time in his enough to insert in that instrument. Therefore, in my judgment, any life, thereby attaching to the offense itself, years -it may be after its construction of tho instrument itself which renders that penalty of commission, apenalt.y not attached to it when it was committed, and no value cannot l>e the true one. The provision of the Constitution it may be long after the infliction of every legal penalty for such of- last cited is peculiar in form. " Shall not extend further than" are fense. I cannot, while listening to the dreaded consequences por- the words. If they bad stood alone in the Constitution, I think the trayed by those who fea1· the results that may follow jurisdiction in conclusion would have been inevitable that the judgment might be of this case, keep out of mind equally serious consequences which hang any character whatever touching the t.ennre of office or disqualifica- upon their owu conclusion that it is enough to give jurisdiction that tion to hold office; that is, might be removal, suspension for a term, the person be in office when impeached, and has, when in or out of disqualification to hold any office or any particular office, or for a office, committed any of the offenses defined in the Constitution. The limited time. Under a similar provision in the-Massachusetts con- construction which I have put upon this section of the Constitution, stitution, which has no such restricting clause as in article 2, section namely, that a "civil officer" is the description of the person com- 4, a justice of the peace was on impeachment suspended from office mitting the offense, and not of the one impeached, is in strict accord- one year. (Appendix t.o Prescott's Trial, page 216.) But taking this ance with t.he construction placed upon penal statutes of a like provision in connection with the first section cited, nan: ely, that which cha:racte1'. The very statute under which Mr. Belknap is understood requires certain officers to be removed on conviction, which is subse- to be now under indictment for this offense is in these words: qnont in point of fact in the Constitution, the Constitution has evi- Every officer of the United States and every person acting for or on behalf of tlently provided that at least in respect to the officers named in sec-· · tlJo Unlted States in any official capacity under or by virtue of the authority of tion 4 of article 2 there shall be no stopping short of removal from any Department or office of the Government thereof; n.nd every officer or person office. There is, therefore, no alternative in the cases mentioned in acting for or on behalf of either llouso of Congress, or of any committee of either Rouse, or of ooth Hou. es thereof, who asks. accepts, or receives any money, or any this section; but the general section (limiting, as I have aid, the contract, promise, undertaking, obligation, gratuity, or security for the pasment punishment in all cases of impeachment with the qualification here of money, or for the delivery or conveyance of anything pf value, with intent to stated) still remains in force, and the last clause of it authorizes disqual- have his decision or action on an:y question, matter, cause, or procee.y moval from office cannot be imposed without disqualification to hold which he is not autliorized to retain as salary, pay, or emolument, fails t<> render office; and yet the universal construction of the Constitution has been his accounts for the same as.provided by law shall be deemed guilty of embezzle- mllnt and shall be fined in a sum cqu:il to the amount of the money embezzled that the penalty of disqualification is a discretionary one, to be im- · and shall be imprisoned not leas than six months and not more than ten years. posed with removal or not at the discretion of the Senate. It was (Revised Statutes, sections 5490 and 5491.) imposed in the case of ·Humphrey, it was .not imposed in the case of In each of these sections it is the "officer" committing the offense Pickering; the only two cases of conviction thus far had. on whom the penalty is to be visited, and the uniform jndicial con- But it is also argued that the enumeration, in section 4 of art.i cle 2, struction of such penal statutes is that the person indicted under of the President, Vice-President, and all civil officers of the United them must have been such a.n officer when the offense was committed, States as the persons who shall be removed from office on impeach- without regarer- nor and council will not receive the impeachment." Answer, "I know that very early history portrayed in very dark colors. The enormities that in well, but the record of it will stand upon the journals, be published in pamphlets past ages had been committed in its name, the horrors and cruelties and newspapers, and perhaps make the judges repent of then· salaries and decline that had darkened the early pages of its history have all been told them; perhaps make it too troublesome to hold them. " "What right had we to im- ' by the Senator from illinois, [Mr. LOGAN.] How it originated and peach anybody1" Answer, ''Our houso of representatives have the same right to impeach as the House of Commons has in England, and .our governor and coun- its subsequent history have been carefully and accurately delineated cil have the same right and dnty to receive and oear impeachment as the king and by the Senator from Wisconsin, [ Mr HowE.] The Senator from Iowa, Honse of Lords have in Parliament. If the governor and council would not do [Mr. ALLISON,] tells us what no one could deny, that it existed in all their duty, that would not be the fault of the people; their representatives ought the colonies under their charters. It did so exist, Mr. President, not nevertheless to do theirs." Some of the company said that the idea was so new to them that they wished I would show them some reasons for my opinion that we had because of any express grant by the kin~ in the charter, but in the the right. I repeated to them the clause of the charter which I relied on, the con- belief of the public men of that time that It came a.s an inherent power stant practice in England, and the necessity of such a power and practice in every with the right of the colonists to govern themselves. At the time of free government. the Revolution and when the Constitution itself was framed it not The company dispersed and I went. home. Dr. Cooper and others were excellent hands to spread a rumor, and before n'.ne o'clock half of the town and most of the only existed, it not only had a place among the recognized powers members of the general court had in their heads the idea of an impeachment. The under their charters, but was believed by them to be a power mbst next morning early Major Hawley, of Northampton, came to my house under great efficient and promotive of the public good. I .fail to find any senti- concern an ma~rs still sub jud~, the final dec~sion of which ma.y be reasonably left to the one side, aided by a few allies on the republican side. I deaire to as- high tribunal constituting the com.:t of liD.peachment when the bccasion shall arise. sure both these Senators that I have given to these admonitions of It is objected to the doctrine, Mr. President, that the common-Jaw where my ·place should be on this question all the consideration power of impeachment has been ingrafted into the Constitution, that which they deserved, but that they have failed to convince me of a it exposes officials, if not private persons, to every impeachment for duty to go counter to the clear convictions of my judgment in the con- any manner of delinquency or unfitness in office that the discretion struction of the Constitution of my country. of the House of Representatives may determine upon instituting and Senators iri. argument, failing to do away by construction with that the Senate upon entertaining. Certainly there is nothing in the case clear, plain provision of the Constitution which authorizes this body at b:tr to render it necessary for us to determine how far the common- to impose on conviction of official crime fut.ure cUsqualification to law _power ?f imp~a;chment mig~t 'Yar~ant a pro ecution a~ainst an hold and enjoy any office of honor, trust., or profit under the Unit.ed officmlorpnvatemtizen. IfthelimitatwnsoftheConstitutiOn, in the States, have thought it a proper. consideration to urge that the pro- fourth section of the second article, to treason, bribery, and other high vision itself is of little or no consequence. They have called atten- crimes and misdemeanors is not a limit to the wholepowerofimpeach- tion to the fact that the accused in the ca.se at bar, if guilty, has gone ment, but, as is claimed by some, is a mandatory clause for the removal forever .into private life, and by no possibility could hope for any from office of the officials therein named when thus convicted, certainlv public trust again. And they have said," Of what use, then, to im- theca eat bar comes within the express provision of that section; and pose upon him, even if conviCted, future disqualification f" I have it may be wiser and safer for us to wait until the occasion arises be- already said, what I repeat, that it is not for us to weigh in the scales fore att~mptin~ a construction that ha_s no applicat ion _to pending the comparative importance of the two penalties, removal from office 1n·ocee<.lmg '. lin t one can fore ce occaswns for the e:xerc1sc of some anu future ilisqnalitication, aud dcciuc which preponuerat . It is TRIAL OF WILLIAM W. BELKNAP. 153 enough for us that the framers of the Constitution thought both nec- spondent or any Senator, it is conceded that the House of Represent- essary, aud attached as much importance to the one as to the other. atives had power to impeach the respondent for these alleged of- But I cannot concur with Senators that the judgment of future dis- fenses and the Senate power to try and convict him thereof, so long qualification can possibly be a slight one. Men may not desire to hold ashe continued to be Secretary of War. It is indisputable that on the office. It may be impossible for them ever to enter upon any public morning of the 2d of March, 1876, he was liable to impeachment for trust, but the brand upon the forehead that they are forever disquali- the alleged official misconduct. It is contended that by his resigna.- fied, beyond the power of pardon or any possible relief, to hold any tion between ten and eleven o'clock a. m. of that day he ceased to be office of honor, trust, or profit under the United States is in my opin- liable or subject to impeachment. 'l'be respondent subjected himself ion the severest possible penalty. The theory of the Government to the power of the House to impeach and to the jurisdiction of the under which we live is that all men are not only free and equal, equal Senate to try and convict him by committing while in office the crimes not only in the enjoyment of all political rights, bnt also of political charged a.g ainst him. He resigned the office before he was im- privileges, equal in all the opportunities and in seeking the emolu- peached. The only question for our decision is, does he continue lia- ments and honors of office of trust and of confidence. The citizen ble to this same power of impeachment, trial, and conviction for these upon whose forehead rests the ban that he can never enjoy part or same official crimes after his official term is ended f lot in this glorious inherita.nce bas upon him, like the curse of Cain, It has been urged by the counsel for the respondent that if be can a judgment of condemnation greater than any other it is possible for be impea{lbed for official misconduct after he ceases to be an officer me to comprehend. Mr. Hale's thrilling story of a man without a every private citizen of the United States is liable to impeachment. count.ry is but the story of him who goes in and out among his fel- This does not follow. There is no pretense that a private citizen who low-men in all time to come with the judgment of this Senate, from has never held an office nnder the United States is liable to impeach- which nothing but death can relieve him, following him to the ment for any offense he may have committed. Impeachment under remotest borders of the land, "Tho'l\ art forever disqualified to our Constitution is clearly limited to persons w"!lo have been guilty hold any office of honor, trust, or profit under that Government whose of misconduct as officers of the United States. The case before us flag protects all and whose aYenues to honor and confidence are open does not present, nor does its decision involve, the question whether a to all against whom for official crime thisSenat.e has not forever closed person who is elected or appointed to a civil office under the United the door." Like the leper he stands alone, shunned by all clean men. States is impeachable wbiJe in office for crimes committed by him The eNistence of this power in the Constitution, silent though it bas when he was a private citizen. Nor are we called upon to decide been for a century, is as necessary as it is safe. No construction that whether military or naval officers are liable to impeachment for mis- I have been able or willing to give tothatinstrumentwillstrikedown conduct in the discharge of their official duties. There is no quest.ion this most efficient weapon of protection against the corruption or the befm·e us as to extending the power and jurisdiction of impeach- despotic exercise of authority by the many officials who swarm the ment to.a person who denies that he was ever liable to this procedure. land. I may err in this construction. I bad rather die in the error The only question is, does a person who holds a civil office and by than be convinced with some Senators here that the framers of the official misconcluct becomes liable to impeachment and conviction Constitution by mistake paralyzed their own work, or with other therefor, escape from this liability. by resigning the office or by the ex- Senators that by design they failed to provide the most efficient and piration of his term of office f It is not a question of bringitlg a party the broadest restraint upon those placed in positions of honor and within the scope of this power by construction or implication. The trust by a confiding people. question is, does a party who by official crime has rendered himself liable to be impeached and disqualified from ever holding again any office of honor, trust, or profit under the United States, cease to be liable the moment he goes out of office T I ha.ve given this question the careful examination which its im- Opinioa oC Mr. K.el'llaa, portance demands and have come to the conclusion that impeach- Delivered May 29, 1876. m~mts are not restricted to persons who are officers at the time the Mr. KERNAN. Mr. President, at this latestageoftbediscussioniin- proceeding is commenced, aml that a party who, while holding a tend to occupy the attention of the Senate but a short time. I would be civil office under the United States, is guilty of impeachable crimes content to give my vote without saying anything, except that the is subject to impeachment therefor and conviction thereof after his official term is ended. In my judgment, this is the correct construc- question to be now decided does not, in my opinion, require us to pass tion of the provisions of the Constitution on the subject of impeach- upon several other interesting questions which have been discussed. ments. By this instmment the "power of impeachment" and the It is wise that every court should confine its decision to the point in "power to try all impeachments" are granted to the House and Sen- judgment in the case before it. It is especially proper that a court ate, respectively. (Article 1, section 2, subdivision 5, and section 3, constituted as this is should do so. The only question presented for subdivision 6.) This power is granted in the same clear and explicit decision is whether the respondent, William W. Belknap, late Secre- language in which many of the important powers granted by that in- tary of War, is subject to impea-chment by the House of Representa- strument are conferred upon Congress and other departments of the ti vcs and trial thereon by the Senate, after his resignation, for alleged Government. "The House of Representatives shall have the sole misconduct while in office. I shall confine myself to stat.ing briefly power of impeachment," "the Senate shall have the sole power to try my reasons for the conclusion I have come to on this question. all impeachments," is the language of the Constitution. (Article 1, The provisions of the Constitution as to impeachments are as fol- section2, subdivision 5; section 3, subdivision 6.) "The Congress shall lows, and are found in that instrument in the order in which they have power to lay and collec~ taxes, duties, imposts, and excises; to are quoted, namely: regulate commerce," &c., is the language in which the important The House of Representatives * * * shall have the sole power ofimpeachment. powers mentioned in section 8 of article 1 of the Constitution are (Article 1, section 2, subdivision 5.) . granted. Power is conferred upon the President in the same lan- The Senat.e shall have t.be sole power to try all impea-chmenta. When sittmg for that purpo e, they shall be on oath or affirmation. When the President of the gua.ge. (St>ction 2 of article 2 of the Constitution.) United States is tried, the Chief Justice shall preside: and no person shall be con- What is the meaning of the terms'' power of impeachment," "-power victed without the concurrence of two-thirds of the members present. (Same article, to try all impeae.hment.s," as used in the Constitution t .Mr. Hamil- section :i, subdivision 6.) Juclgmentin cases of impeaehmf'nt shall not extend further than to removal fromton. in the sixty-fifth number of the Federalist, mentions, what is well known, that the framers of the Constitution derived their notions of office, and di~> qualificat-ion to bold and enjo:y any office of honor, trust, or profit under the United States ; but the party convicted shall nevertheless be liable and subject impeach):nents from the law and practice on the subject as they ex- to intlictment~ trial, judgment, and punishment, according to law. (Same article, sec- tion 3, subdivision 7.) isted in England att.bat time. :Mr. Rawle,in his work on the United The President • * * shall have power to gr.mt re~rieves and parclons for of- States Constitution, page 210, says: fen.'!es against the United States, except in cases of rmpeachment. (Article 2, Impeachments' are thus introduced- section 2, sobdh-ision 1.) Tho President, Vice-President and all civil officers of the United States shall b o That is, into the Constitution- removed from office on impeachment for, and conviction of, tl'(~a.son, bribery, or as a known, definite term, and we must have recourse to the common law of En- other hi_gb crimes and misdemeanors." (Article 2, section 4.) Th e trial of all crime~o~, except in eases of impeachment, shall be by jury. (Ar- gland for the definition of them. ticle 3, section 2, snbdh·ision 3.) At the time the Constitution was formed the "power of impeach- The decision of the question presented depends upon the meanin~ ment" was the authority by which the House of Commons prosecuted of these provi ions of the Constitution. They are to be construed. before the House of Lords persons who had been guilty of misconduct together, and force and effect should be given to all and each part of in the discharge of their official dut.y; and the ''power to try all im- them if this can be done. peachments" was that which gave the Lords jurisdiction to try, con- It is conceded that the Const.itution confers power to impeach and vict, and pronounce jndgment upon the persons so accused. By the try a person who is a civil officer of the United States and who has law and practice in England the power to impeach parties for official been guilty of bribery or other high crimes and misdemeanors in ref- misconduct extended and was exercised against them whether they erence to his official duties. The respondent was a chil officer of the were in or out of office at the time the impeachment was commenced. United States. The offenses alleged in the articles of impeachment Tbe terms "power of impeachment," "power to try impeachments," are bribery and other high crimes and misdemeanors committed by him imported in their most restricted aud legitimate sense in the English while in office and in connection with the discharge of his duties as law and practice authority and jurisdiction to impeach and couvict such officer. He held one of the offices mentioned in section 4 of arti- parties who bad violated their official duty to the detriment of tbe cle 2 of the Constitution, and the crimes charged are of those enumer- public, whether they continued in office or had ceased to be officers ated in that section. According to the strictest construction of the when tho proceeding was commenced. Constitu t ion which has been contentled for by the counsel for there- Many of the most uotell cases of impeachment which had occurred i54 TRIAL OF · WILLIAM W. BELKNAP. in England during a hundred years immediately prior to 1777 were declared that ''every officer concerned in the collection of the reve- cases in which the parties impeached and tried for official crime had nue," who commits certain acts, shall, on conviction, be punishetl ceased to be officers long before they were impeached. The framers aa therein described. Section 1781 declares that "every member of of the Constitution were familiar with the law and practice as to Congress or officer of the Government who takes a bribe" shall, on impeachments as the same then existed in England. The judgment conviction, be punished by :fine and imprisonment. Can it be suc- on conviction in England might affect the property, the liberty, or cessfully claimed that the person who was an officer, and as such vio- the life of the person convicted. The framers of the Constitution by lated these statutes, is liabletoimpeachment and conviction only w bile an express provision declare that judgment in cases of impeachment he was such officer T Clearly not. He continues liable after he ceases shall not" extend further than to removal from office and disqualifi- to be an officer. cation to hold and enjoy any office of honor, trust, or profit under the In my judgment, the respondent continued liable to impeachment United States." By the English law and practice a majority was suf- for his alleged official misconduct after be ceased t.o be Secretary of ficient to convict the party impeached. The framers of the Consti- \Var. The plea to the jurisdiction should, therefore, be ove.r rnled. tution by an express provision declare that" no person shall be con- victed without the concurrence of two-thirds of the members pres- ent." If the framers of the Constitution intended that the "power of impeachment" and "the power to try impeachments" should be limited to persons in office at the time of the procedure, and should Opinion of Mr. (Jragin, under no circumstances be exercised against parties no longer in of- Delivered May 29, 1876. fice but who while in office had been guilty of official crimes, it seems to me they would have so declared in express language. Mr. CRAGIN. Mr. President, two things in this case are conceded Imp(lachment in our Constitution was intended to be something by every Senator, namely: That at the time of the impeachment of _ more than a procedure to remove from office a party whose official William W. Belknap, by the House of Representatives, he was not a. crimes are discovered while he is still holding the office. It was in- civil officer of the United States, having resigned prior to his impeach- tended to reach the corrupt official and disqualify him from ever hold- ment, and that he had a full and perfect moral and legal right. to re- ing office again, notwithstanding he waa able to conceal his miscon- sign. The fact appears of record that he resigned his office of Secre- duct until after his term of office had expired. The character of the tary of War at ten o'clock and twenty minutes, in the forenoon of the men who framed and the language they use in the Constitution forbid, 2d of March last, and that the House took no proceedings against in my judgment, a construction which would permit a dishonest him till the afternoon of the same day. On the next day the first officer to enrich himself by corrupt practices highly detrimental to official notice of the proceedings was brought to the Senate, in the the public welfare and escape conviction and a judgment disqualify- form of the following House resolution: ing him to hold any office thereafter by resigning. Certainly the power Resolved, That a committee of five members of this Hous~ be appointed and in- to impeach and to try impeachments, granted in express terms in the structed to proceed immediately to the bar of the Senate, and there impeach Will- iam W. Belknap, late Seoretary of War, in the name of the House of Represent- first article of the Constitution, should not be construed to have this atives and of all the people of the Ullitecl States of America, of high crimes and mis· limired application unless there is language in the subsequent provis- demeanors while in office, and to inform that body that formal articles of impeach- ions of the instrument which requires this constrnction. ment will in due time be presented, and to request the Senate to take such order in It has bee.n contended that the provision that "judgments in. cases the premises as they may deem appropriate. of impeachment shall not extend further than to removal from office It will be observed that the House, in its initiatory proceedings in and disqualification to hold and enjoy any office of honor, trust, or this case, described William W. Belknap as "late Secretary of War." profit under the United States," is repugnant to the exercise of the If there be any doubt as to his right to resign, or that his resigna- power of impeachment against a person who is no longer in office. tion was effectual, I quote as follows from the decision of the Supreme The argument is that because he cannot be removed as well as dis- Court in the case of The UnitedStatesvs. Wright,ll\fcLean'sReports, qualified by the judgment he is not impeachable. The argument page 512: might have some weight if the provision in question declared that There can be no doubt that a civil officer has a right to resign his office at pleas- the judgment should be removal from office and disqualification to ure; and it is not in the power of the Ex:ecutive to compel him to remain in office. It is only neoessary that the resignation should be received to take effect ; and hold office. But it does not. It simply provides that the judgment this does not depend upon the acceptance or rejection of the resignation by the shall not exten9, further than to removal and disqualification. It may President. . be either. So far from this provision furnishing an argument against When this discussion commenced, on the 16th of l\Iay, I had not the power to impeach a person for official misconduct after he has made up JDY mind on the question under consideration; but I strongly ceased to hold the office, the argument to be drawn from it is to the inclined t.o the opinion that the Senate had jurisdiction to try the contrary. This provision shows that one of the objects of the pro- respondent, notwithstanding his resignation prior to impeachment cedure was to disqualify a person whose misconduct as an officer ren- by the House. I confess that I was provoked at the idea that any dered it just and wise, in the judgment of the Senate, that he should person could, by voluntary resignation,just before and in view of not again be intrusted with the administration of public affairs. presentment, arrest proceedings in a case of impeachment, andes- It is contended that section 4 of article 2 of the Constitution limits pecially in the case under consideration. A man who bad just held the power of impeachment to persons in office at the time the pro- a high position, intimately and confidentially connected with the Chief cedure is commenced. This, in my judgment, is not correct. The Executive of the United States, waa charged with high crimes in of- power to impeach and to try impeachments is not conferred by this fice, crimes most disgraceful to him, dangerous to the public good, section. This power is given to the Honse and Senate, respectively, abhorrent to the public sense, and humiliating to the party whose by the provisions in article 1 above referred to. The most that can trusted representative be was. be justly claimed is that section 4 restricts impeachments to the per- . Under these circumstances I looked eagerly for the power to try sons who shall hold the offices designated in that section, and who him, and if found guilty, to lay the strong hand of the law upon him shall while in office be guilty of the crimes therein mentioned. Tbns with all its weight and consequences. My sense of right was out- construed,-it is in harmony with the provisions of article 1. The prior raged; my pride as an American citizen and friend of the party in provision, that the jnd~ment shall not extend further than to re- power was deeply wounded; and I looked for some way to satisfy moval from and disqualification to bold office, construed in connection justice, vindicate the honor of the nation, and at the same time brand with section 4, makes it mandatory that if the party convicted is in the offender and make an example of him, if found guilty. office be shall be removed, and leaves it in the discretion of the court I do not suppose any other Senator will make this confession, but to disqualify him or not. \ I do not believe I am alone in this regard. I do not pnt this forward It is urged that the lan(J'uage of section 4 is "the President, Vice- as any merit on my part, but mention it simply to show how the President and aU civil officers of the United States shall," &c., and human judgment is influenced and embarrassed, when called upon to therefore no one except a person then actually holding one of these decide questions of a judicial character, when mixed with strong per- offices can be impeached; that when he cca ·es to be an officer his sonal or party considerations, and bow difficult it is, even with men liability to impeachment for official misconduct while in office ter- who mean to do right, to rise above and look beyond the case whiuh minates. In my judgment, this is not the meaning of this language. has aroused their feelings and caused theirindi~ation. Under these This language is used to designate the persons who are impeachable. circumstances I commenced work to find jurisdiction in this case. The person who while acting as one of the officers named is guilty of I read and reread all the constitutional provisions on the subject of the crimes mentioned is impeachable, whether he is still in office or impeachment. I read carefully the proceedings on this subject of the bas resjgned. It is the person, not the officer, who is impeached and convention that framed the Constitution; I read the commentaries convicted. This is the opinion expressed by Mr. Rawle in his treat- of the two leading Ameris:an authors-Story and Kent-on the sub- ise on the Constitution, page 213: ject of impeachment, and s'tudied the American precedents under the From the reasons already given it is obvious that the only persons liable to im· Federal and State uonstitutj.ons. peachment are those who are or have been in public office. I have listened attentively to the ar~ments of learned and able Language similar to that onder consideration is employed con- Senators on both sides of the question till, in spite of my inclination t~tantly in penal statutes. Section 17138 of the Revised Statutes of and almost dete1·mination to the contrary, I am reluctantly forced to the United States is an example. It decl:l.r es that "every officer of the opinion that the Senate has no jurisdiction to try a person not in the United States concerned in the disbursement of the revenues office at the time of his impeachment. The provisions of the Consti- thereof," who does certain acts mentioned," shall be deemed guilty tution are as follows: of a misdemeanor and punished by a :fine of 3,000, aud shall, upon The House of Representatives shall have the sole power of impeachment. (Art. conviction, be removed from office and forever thereafter be incapable icle 1; section 2.) of holding any office under the United States." In section 1i "U it is The Senate shall have the sole power to try all impeachments. When sitt.i.ng fm: TRIAL OF WILLIAM W. BELKNAP. 155 that purpose they shall be on oath or affirmation. When the President of the the Senate only can try, &c. When the Presi(lent is tried the Chief United States is tried, the Chief Justice shall preside. And no person shan be con- Justice shall preside; it shall require two-thirds of the members pres- victed without the concurrence of two-thirds of the members present. Judgment in cages of impeachment shall not extend further than to removal from ent to convict, &c., · office and disqualification to hold and enjoy any office of honor, trnst or profit But who can be impeached and tried, and for what they can be im- umler the United States; but the party convicted shall nevertheless be liable and peached and tried, can only be determined by the fourth section of subj ect to indictment, trial, judgment, and punishment, according to law. (Article the second article. 1, section 3.) The President, Vice-President and all civil officers of the United States, shall be I construe and render the Constitution on the subject of impeach- removed from office on impeachment for, and conviction of, treason, bribery, or ment as follows : other high crimes and misdemeanors. (Article 2, section 4.) The President, Vice-President and all civil officers of the United By article 1, section 2, it a.ppears that the House of Representa- States, shall be removed from offic.e on impeachment by the Honse of tives ha.s the sole power of impeachment. By this I understand that Representatives for, and conviction by the Senate of, treason, bribery, the House of Representatives, and only the House of Representatives, or other high crimes and misdemeanors; and judgment in cases of can institute, present, and prosecute impeachments; that they are the ~peacbment shall not extend further than to removal from office grand inquest to indict and prosecute the indictment, and that no and disqualification to hold and enjoy any office of honor, trust, or other body has this power. profit under the United States, but the party convicted shall nenr- The word" sole" does not qualify the power, but only locates it. theless be liable and suoject to indictment, trial, judgment, and pun- It makes the House of Representatives the sole agent for instituting ishment according to la.w. The Senate wheri sitting for the trial of impeachments. The power is lodged with them, and now here else. an impeachment shall be on oath or affirmation. When the President Impeachment is a peculiar function of the House of Representatives of the United States is tried the Chief Justice shall preside, and no according to the clause in the Constitution before referred to. If the person shall be convicted without the concurrence of two-thirds of word "exclusive" had been used instead of "sole," its meaning would the members present. have been the same. The same word is used in conferring upon the In this arrangement of the constitutional provisions, on the subject Senate the power to try impeachments. They have the "sole" or of impeachment, I submit that I have in no way changed its mean- exclusive power to try all impeachments. This is one of the functions ing. I have arranged its provisions in different order and brought of the Senate, and is the function of no other body. The Senate them all together. I place the fourth section of the second articJe in acts in the capacity of court and petit jury to try and decide all mat- front, where it belongs. If the Constitution bad been arranged in ters of law and fact arising in all .ca.ses of impeachment under the this way, by the convention that framed it, there would not be :five Constitution. Senators in this Chamber who would claim jurisdiction in this case. I did not think of looking to the clauses of the first article for the par- It is well known that the convention after it had agreed upon the ties who· could be impeached and tried, or for impeachable offenses, provisions of the ConRtitntion referred its work to a committee of but aiJle Senators have argued that these are the jurisdictional "detail and arrangement." That committee arranged the provision clauses. It is claimed that under them the House of Representatives under different beads. What pertained to the Honse •of Representa- have all the powers of impeachment possessed by the House of Com- tives they arranged under article 1, section 2; what pertained to the mons in England, by its parliamentary and common law, except as Senate they placed under section 3 of the same article; and what per- restricted by the Constitution ; and that the only restriction is as to tained to the President, under article 2, sections 1, 2, 3, and 4. the judgment that may be rendered. No one ca.n give any reason why section 4 of said article was placed As to persons and offenses, the common law of England, or rather the in this position, only that the President is the first officer named. I parliamentary law of England, prevails, and is the rule of action un- contend it would have been better if the provisions on the subject of der our Constitution. This is the doctrine boldly proclaimed by some impeachment had been arranged together as I have arranged them. of the managers in this case and by many Senators on this tloor. I I wrote out this arrangement before I had opened the Commen- cannot subscribe to this doctrine, for it is well known that, by the taries of Story or Kent, and simply from reading and study of the parliamentary law of England, every subject of t.he realm is liable to Constitution itself. I previously arranged the clauses of the Consti- impeachment, and for any offense, in the discretion of the impeaching tution in the order as they now stand, with the fourth section of the power. I do not believe that the bloody code of impeachment in second article as an exception to the general power of impeachment, England was incorporated into our Constitution ; but I will defer as claimed by many Senators, but this I Roon rejected. If this clause furt.her remarks upon this point to another part of my opinion. is an exception, bow broad aml universal must be the general power! The clause in article 1, section 3, which declares that "judgment It must embrace every citizen of the United States. This cannot be in cases of impeachment shall not extend further than to removal the American doctrine. from office, and disqualification to holeing coupled with a removal from office. There is ah;o not be tried on articles of impeachment. much force in the remark that an impeachment is a. proceeding purely of a poli tival It is admitted on all sides that all the provisions of the Constitu- nature. It is not so much .designed to punish an offender as to secure the Staro against {!TOSS official misdemeanors. · tion on the same subject must be taken and construed together. The last section is as binding as the first, and the whole must be made to Removal from office is the main object of impeachment, and if the harmonize and agree. The fourth section of the second article should person has resigned his office that object is accomplished; and, as stand first, for it is the body and substance of impeachment in the Judge Story says, impeachment in such a case "would be a vain ex- Constitution. All else describes the functions of the two Houses of ercise of authority." If a crime has been committed the party can- Congress and the mode of proceeding. The House only can impeach, not escape by resignation of his office, but is subject to be tried and 156 'rRIAL OF WILLIAM W. BELKNAP. puni8hed in the ordinary courts of justice, and that punishment may "bribery," in section 2, article 10, "or other high crimes and misde- include perpetual disqualification to hold office. meanors against the United States." . In volume 1, page ~9, of his Commentaries, Chancellor Kent, in On the same day the following clause was added after the ~ ords construing and rendering the Constitution of t~e United Stat~s on the "United States:" subject of impeachment, embraces the whole m the followrng Ian- The Vice-President and other civil officers of the United States shall be removea guage, put Ling the fourth section of the second article foremost: from office on impeachment and conviction as aforesaid. The Pr sident Vice-President\ and all civil officers of the United States may be On the same day the convention voted to substitute the following impeached by the House of R~presentatives for treason, bribery, and other high in place of the--first section, ninth article: crimes and misdemeanors, and upon conviction by the Senate shall be removed The Senate of the United States shall have power to try all impeachments; but from office. no person shall be convicted without the concurrence of two· thirds of the members In the opinion of Kent this embraces all that there is of substance present~ and every member shall be on oath. on this subject in the Constitution. I am confident he is right. After this, and on the same day, a committee of five was appointed I now turn to the proceedings of the convention that framed the "to revise the style of, and anange, the articles agreed to by the Const.itution, and if I am not mistaken they will throw light upon house." the meaning of the provisions on the subject of impeachment. This It was not intended that this committee should in any way change convention commenced its proceedings on the 25th day of May, 1787. the meaning of the provisions of the Constitution as adoptecl by the On the ~9th of May Mr. Edmund Randolph, of Virginia, offered a series convention, but only to H revise the style and arrange the articles" of resolutions giving his ideas of the Constitution that should be under proper heads. The fourth section of the second article, a-a it framed. Under the head of the judiciary, and among the powers to now stands in the Constitution, went to this committee in the fol- be confened upon the Supreme Court, he mentions "impeachments of lowing language: any national officer.'' He- On the same day :Mr. Charles Pinckney, of South Carolina, submit- The President- ted a draft of a federal government which, in many respects, ~ iden- . 1 · h t C t't t• tica w1t our presen ons 1 u Ion. n ar I t•101 3 h e e says: shall be removed from his office on impeachment by the House of Representatives and conviction by the Senate for treason, bribery, and other high crimes and mis· The House of Delegates shall exclusively possess the power of impeachment. demeanors against the United States. * * * The Vice-Pre ident and other civil This is the exact meaning of the provision in the Constitution as officers of the United States shall be removed from office on impeachment and con· granted to the House of. Representatives, as I have heretofore ~1a~~ · d . viction as aforesaid. In article 10, on tho subJec·t of the Supreme Court, he extends 1ts JUris- I wish to place the fourth section of the second article, as it came diction "to the trial of impeachment of officer8 of the United Sta,teB." from that committee and now stands, side by side with the article re- It will be ob erved that Mr. R~ndolph contemplated impeachment ferred to them, that all may see that tho meaning was not .changed. of uational officers only, and that Mr. Pinckney contemplated iin- The following is the fourth section of the second article: peachment.s of officers of the United States, both meaning the same The President, Vice.President and all civil officers of the United States, shall be thinrr. On the 13th of June it was moved by Mr. Randolph and sec- r~moveajromoffice on impeachment for, and conviction of, treason, bribery, or other ~ high crimes and misdemeanors. onded by Mr. .Madison- That the jurisdiction of the national judiciary shall extend to impeachments of The article is made shorter, repetitions are avoided, and some words any national officer. are omitted. Nothing is said of the House of Representatives or Bear in mind that only office1·8 are mentioned by these leading mem- Senate, for it is provided elsewhere in the Constitution that the House bers of the convention. On the 15th of June .Mr. p 11tterson offer- of Representatives h11ve the power to impeach, and the Senato the ed propositions for a form -of government. In his fourth resolu· power to try and convict. The substantial meaning is iuentically the tion, in relation to the Chief Execut.ive, he provides ''that he shall be same, and Chancellor Kent was correct in his rendering of the Con- ineligible a second time, and 1·enwvable on impeachment and convic- stitution on this subject. tion of malpractice or neglect of duty by Congress, on application by The committee on style and arrangement made its report on. the 11 majority of the executives of the several States." In his fifth res- 12th of September, and their draught wa-s not changed on the subject olution, providing for a federal judiciary, he says: of impeachment, except the words "or affirmation" were adued to the requirement that Senators should be" on o11th" in the trial. No That thejudiciary so estabi.Mhed shall have authority the first instance on all impeachments of Federal ojficers. to hear ancl determine in person can fail to see that not a word was uttered by any member of On the next da.y Colonel Hamilton submitted a plan of govern- the convention, and nothing appears in the proceedings, in any way implying that impeachment wa-s intenued to 11pply to any person un- ment, the ninth paragraph of which is a-a follows: less be was actual.ly in office at the time of impeachment; and it is The governors, Senators, and all officers of the United States to be liable to im· · manifest t.bat the proceeding was only intended as a means for ' 'the pcachment for mal and corrupt conduct; and upon conviction to be removed from removal from office of a dangerous, corrupt, and unworthy official. ofil;~ the 19th of June Mr. Gorham reported, from the committee to "National officers," "Federal officers," ''officers of the United whom was referred the several plans and propositions, a series of States," are the only persons mentioned in the plans submitted by · ·a 1 h h E t· · Randolph, Pinckney, Patterson, and others; and finally the conven- resolutions. In the ninth artie1e it IS proVI e( t at t e • xecu lVe IS tion limited impeachment to the "P1·esident, Vice-Pt·esident a11d all to be ''removable on impeachment and conviction of malpractice or civ-il officers of the United States." How, then, is it po sible that a man nef~e~~:~:~:~~:th "impeachment of national officers, is a power not a President, Vice-President, or a civil officer of the United States given to the national judiciary. can be impeached under the Constitution f It is mn.nifest to my mind On the 6th of Aurrnt:lt Mr. Rutled!!e reported from the same com- that the person to be in~peached m·u8t be a civil officer of the United States ~ '"' · · · f ll still in office, and that the object of impeachment "is removal from mittee a clraft of a constitution. .AJ;;twle 4' sectwn 6, lS as 0 ows: office," to which may be added, in ~he discretion of the Senate, disqual- The House of Representatives shall have the sole power of impeachment. It ification to hold office, &c., under the United States. shall choose its Speaker aut:l other officers. The practice for one hundreu years, ever since the adoption of the Article 10, section 2, relates to the Executive, and provides that- Cmistitution, has been in accordance with this theory. No person He shall be removed from his office on impeachment by the House of Rollresent;. has been impeached and tried, under the Constitution, except he was atives, and conviction in the Supreme Court of treason, bribery, or corruption. at the time of impeachment a cit'il ojfice1·. In every case where im- Article 11, section 3, provides that the jurisdiction of the Supreme peachment has been attempted and the officer has resigned, even after Court shall extend "to the trial of impeachments of ojjicer.s of the impeachment by the House, tbe proceedings have instantly stopped, United States." except in this single case. This case stands alone. No preceuenli This draft of the Constitution, submitted by Ml·. Rutledge, was under the Constitution of the United States or of any State can be under considera.tion by the convention for several days. Each article founcl. The recent case of Governor Ames, of Mississippi, is in point, and section wat:l considered separately. as also the one of Judge Barnard in New York. - On the 27th day of August the following was adopted by the con- The first case of impeachment under the Constitution of the United vention: States was that of William Blount, and the- .decision of the Senate He shall be removed from his office on impeachment by the House of Represent- in that case, that they han no jurisdiction to try him" because he atives, ancl conviction in the Supreme Court of treason, bribery, or corruption. was not a civil officer of the United States within the meaning of the . Up to this time no suggestion had been made in the convention to Constitution," ought to decide this case in the same way, for the truth give the Senate the power to try impeachments. It had been deter- is exactly that. Let us refer to the facts in the Blount case. On the mined to give that power to the Supreme Court. 3d of July, 1797, the President, John Adams, sent to the Senate and On the 4tli of September Mr.Brearly,from the committee of eleven, Honse of Representatives a message in relation to transactions of reportet.L partially. Paragraph 3 of said rop01·t is as follows: William mount, 11 Senator from Tennessee. I do not intend to go In the place nf tbe ninth article, fugt section, to be inserted: "The Senate of the ftllly into the history of this case. It,appears, however, that his Uuitetl States shall have power to try all impeachments; but no person ehall be crime, if it was a crime, had no necessary connection with his office connctetl without t.he concurrence of two-thirds oft~ members present." of Senator. The same report provides that the latter part of the second section, On the 7th of July Mr. Sitgreaves, a member of the House, by order tenth article, shall read as follows: of the House came to the Senate and impeached William Blount. in He shall be removed from his office on impeachment by the House of Representa- the form now usual in such cases. On the next day, July 8, the Sen- tives, and connction by the Senate for treason and bribery. ate expelled William Blount from a seat in that body. 'I'he articles The convention proceeded to consider this report by paragraphs, of impe?..cbment were not presented by the Honse till the 7th day of and on tho 8th of September it was agrecu to iusert, after the woru l'ebruary, 1798. After the usual pleas, on the 3cl of Jauua.ry, li9J, TRIAL OF WILLIAM W. BELKNAP. 157 the Senate sitting as a court of impeachment heard arguments from impeachment were presented to the Senate, he wrote a letter to James the managers, on the part of the House, and counsel for the respond- Madison, from which the following is an extract: ent, on the question of jurisdiction. The arguments upon this ques- Articles of impea{)hment were yesterday given in aaainst Blount. But many great tion occupied four days; that of Manager Bayard, in favor of juris~ preliminary questions will arise. Must not a formJ'la.w settle the oath of the Sen- diction, was very able, and has not been surpassed, if equaled, in ators, form oi pleadings, process against person or goods, &cJ May he not ap- pear by attorney 1 Must he not be tried by a _jury 1 Is a. Senator impeachable 1 the trial of the case now under consideration. He contended that Is an ex-Senator impeachable 7 You will readily conceive that these questions, to the House of Representative had the sole power of impeachment, be settled by twenty-nine lawyers, are not likely to come to a speedy issue. and that the Senate had the sole power to try all impeachments, and On the 15th of February, the same year, he wrote to Mr. Madison that these clauses gave jurisdiction to the Honse to impeach, and the again, and the following is what he says on the subject of impeach- Senate to try, all persons and for all offenses, that the House of Com- ment: mons could impeach and the House of Lords try in England. He This ntatives, who are the impeachers; and there the ml•jorities This is his language: are of one, two, or three only, and these sometimes one way and sometimes another. In a question of pure party they have the majority, and we do not know what cir- The Constitution has said who shall have the power to impeach, and who of try- cumRtances may turn up to increase that majority temporarily, if not permanently. ing impeachments. It has also limited the extent of the punishment. But it has I .lruow of no solid purpose of punishment winch the courts of law are not equal to, not described the persons who shall be the objects of impeachment, nor defined the and history shows that in England impeachment 1tas been an engine more of p!Usion cases to which the remedy shall be confineh the position that the question of impeachabiHty is a the trial by impea{)hment was advocated by Mr. Tazewell and the fate of the ques. question of diseretion only, with the Commons ancl Lords. Not that I mean to in- tion. Reader's mot10n, which I inclose you, will probably be amended and estab· sis t that the Lortls haYe legal cognizance of a. chargo of a capital crime a~nst the lished, so as to declare a Senator unimpeachable, absolutely; and yesterday an opinion commoner, but simply that all tlie King's subjects are liable to be impeaced by the was lleclarell that not only ojft!Jers of t:he State gcnJernm.ents, but every private citizen Commons and tried by tho Lord.s upon charges of high crimes and misdemeanors. of the United States are impeachable. Whether they will think this the time to make the declaration I know not, but if they brio"' it on I think there will not be more He th~n goes on to show how important it would be, under certain than two votes north of the Potomac against the universality oftM impeaching power. · rcumsta.nces, to impeach a citizen not in office, lmt posses ed of exten- sive influence arising from popular arts, from wealth or connections, I wou1<1 here state that there was not a single vote south of the and actuated by strong ambition, if that citizen should by intrigue, Potomac in favor of jurisdiction in the Blount case. corruption, or force seek to place himself in the presidential chair or Mr. Madison, who is regarded as the father of the ConRtitution, re- some other high office. He contended that absolute and perpetual dis- plies to :Mr. Jefferson in a letter dated March 2, 179a. What he says qualification to hold any office, under the Government, wou1d be a upon the subject of impeachment is as follows: · suitaule punishment, and that the same is provided for under the Con- Mr. Tazewell's speech is really an able one in defense of his proposition to asso- ciate juries with the Senate in cases of impeachment. His views of the subject stitution. are so new to me that I ought not to decido on them without more examination than Mr. Bayard boldly and frankly accepted the logical consequences I bave had time for. My impression has always been that impeachments were of his a1·gument, which, I am sorry to say, some of the Senators, who somewhat BUi generis and excluded the use of juries. The terms of t.he amendment hold that the Senate has jurisdiction in case of William W. Belknap, to the Constitution are indeed strong, and Mr. T. has given them, as the French say, all their luster. But it is at least questionable whether an application of that shrink from doing. They hold the same construction of the Consti- amendment to the case of impea{)hments would not push his doctrine farther than tution, but claim that in England only men in office, or who have he himself would be disposed to follow it. held office, or who are connected with some official trust, are liable to It would seem also that the reservation of an ordinary trial by jury must strongly impeachment; and they seek to limit impeachment to the same classes imply that an impeachment was not to be a trial by jury. As removal aml vernment, the novel one, of the common law being in force and cognizable as an existing law in Belknap is not, and 1ras not at the time of his impeachment, a " civil their court-s, is to me the most formidable. All their other assumptions of nnW,ven officer of the United States, within the meaning of the Constitution powers have been in the detail. The bank law, the t.reatv doctrine, the sedition of the United States," and for this reason the case sbou1d be dis- act, alien act, the undertaking to change the State laws of evidence in the State missed, for want of jurisdiction. Did any harm come to t.he Republic courts by certain parts of tile stamp act, &c., have been solitary, unconsequen· tial, timid things, in comparison with the audacions, bare-faced, and sweeping pre- because William Blount was not disqualified to hold office under the ·tension to a system of lawforthe United States without the adoption of their Le_gis- United States t He was expelled from the Senate and never returned, lature, and so infinitely beyond their power to adopt. I am happy yon have taKen and never afterward held any office under the United States. up the subject, and I have carefully perused and considered the notes you inclosed If Belknap had committed suicide at the same time he resigned the to me. * * * office of Secretary of War he would not be more politicallv dead than tray I thmk it will be of great importance when you com·e to the proper point to por- at full length the consequences of the new doctrine that the comm~n law is he is at this moment. • the law of the United States, aud that their courts have, of course~ jurisdiction co- It will be a vain exercise of power to disqualify him to ever here- extensive with that law; that is to say, general over a.ll cases ana persons. Bt:~.t~ after hold office under the United States. The people have convicted great heavens ! who could 'have conceived in 1789 that within ten years we shonla and disqualified him, and from their verdict there is no appeal. I do have to combat such wind-mills' not know of anything that will scorch and wither a public man more I have quoted from this letter of Jefferson's to show that the power than the condemnation of an aroused and indignant people. to pa,ss the alien and sedition laws was claimed under the common Thomas Jefferson was Vice-President during the trial of William law of England, ''as the universality of the impea~hing power" is lllount, and on the 8th of February, 1798, the day after the articles of now claimed by those who hold that the Senate ha,s jurisdiction in 158 TRIAL OF WILLIAM W. BELKNAP. this case, and to sliowthat Jefferson thought there was great danger ion, were disqualified to hold any office; but by a special provision to the liberties of the people in such unfounded assumptions. Do their disabilities might be removed, by a vote of two-thirds of each you say there can be no abuse of this power T I answer that in high Honse of Congres.q, party times, when the passions of men are aroused, there is great . Let us not seek for dangerous and doubtful powers in the Constitu- clanger. tion, for the sole purpose of disqualifying private citizens from hold- Mr. Jefferson says, as before quoted: ing office; but if they have committed crimes, let us leave them to I see nothing in the mode of proceeding by impeachment but the most formid- the courts, which can punish them to the full extent of the ma()'ni- able weapon for the purposes of dominant faction that ever waa contrived. tude of their offenses, in their persons, property, and also disqualify If the power is confined to persons in office, the cases will be com- them from ever holding office under the United States. paratively few, of a factious or partisan character; but if you take in The courts can do more in the case of W. W. Belknap than the the leaders of parties, who are seeking office, or Ia.boring for the suc- Senate can do, and therefore there is no danger that he will escape cess of their party, the temptations to disqualify them become dan- punishment. The statute authorizes the court to disqualify him from . gerous in the extreme. holding office, and also to impose fine and imprisonment. Let us look at a few cases that might have arisen in our history, if I think there is danger in the exercise of this doubtful power. the power of impeachment, as now claimed, had been supposed to If the people of this country should ever fall upon turbulent and exist. revolutionary times, and party passions be hammered to whitest heat, Soon after Mr. Monroe became President hostilities broke out with I do say, with 1\Ir. J efterson, that I see nothing in this kind of im- the Creek and Seminole Indians, occupying a part of Geo:.-gia and peachment "but the most formidable weapon for the purposes of Florida. As commander of the southern military district, General dominant faction that ever wa.s contrived." "It would be the most Jackson was ordered to take the field against the hostile tribes ; and effectual one for getting rid of any man considered dangerous to their as many of the number took refuge in Florida, where they were be- views." lieved to be countenanced if not aided by the Spaniards, the general Would it be well to have in thiscountryten,fifteen, or one hundred deemed it his duty to enter Florida with his Army, and take posses- powerful men, who have been leaders in their party, disqualified for sion of Saint Mark's and Pensacola. He also seized and had tried by life to hold office f Would they be good citizens, would their friends court-martial, two Englishmen, Arbuthnot and Ambrister, who were acquiesce in such judgment T We did not think so when we removed charged with aiding and inciting the Indians in their flepredations your disabilities, houoretl and respected Senators. [Referring to upon our people. 1'hey were both found guilty and hung. RANSOM, GoRDON, and others whose disabilities h:1ve been removed.] 'fhese proceedings caused the President great anxiety. They were No! Rather that every citizen should feel that this is his country, considered in cabinet council and condemned and disavowed by every his flag; that its interests are his interests, its glory his glory; that member except l\Ir. Adams. A paper was drawn up and made public its Constitution and laws protect him in his equal rights and privi- that in enteriugFloridaGeneralJacksonhad acted without authority, leges; that all together we may honor, love, and defend our country. and upon his own responsibility; and it was decided that the places taken should be immediately eva~uated. This condemnation of Gen- [Mr. CONKLING, Mr. LOGAN, Mr. KELLY, and l\Ir. STEVENSO.N also eral Jackson roused his fiery temper, and his friends took up his delivered opinions, which have not been furnished for publication.] cause. The subject was brought before Congress by Mr. Cobb, a per- sonal friend of l\Ir. Crawford, who introduced a resolution in the House of Representatives condemning General Jackson's proceed- ings, upon which a very acrimooious, irritating, and prolonged de- bate arose. THURSDAY, June l, 1876. It was referred to the Committee on Military Affairs, a majority of whom made a report severely censuring General Jackson, while the At one o'clock p. m. the managers on the part of the Honse of Rep- minority reported that he deserved the thanks of the country. Upon resentatives (with the exception of Mr. LAPHAM and 1\Ir. HoAR) ap- a final vote the general's conduct was approved-100 to 70. peared and were conducted to the seats provided for them. The papers communicated by the President on this subject to the The respondent appeared with his counsel, 1\Ir, Carpenter. . Senate were referred to a committee of five. Three of this commit- The PRESIDENT pro tempm·e. Pursuant to order, le~islative and tee made a report severely condemning General Jackson's proceed- executive business will be suspended, and the Senate w1ll proceed to ings, while the minority justified them. No vote was taken on the the consideration of the articles of impeachment exhibited by the report in the Senate. House of Representatives against William W. Belknap, late Secretary The debates in Congress on this subject caused great animosity of War. The Secretary will notify the House of Representatives among members during the whole session. Now, suppose General that the Senate is ready to proceed in the trial, the managers being Jackson had been impeached for his conduct under" the unit,ersal-ity present. of power," as 1\Ir. Madison calls it, what would have been the con- The PRESIDENT pro tempore, (at one o'clock and ten minutes p.m.) sequences! Dangerous in the extreme. Civil discord unprecedented The Sergeant-at-Arms will make procl:unation. would have been the result. Had he been disqualified from holding The usual proclamation was made by the Sergeant-at-Arms. office, he would never have been President, unless he had reached that The Secretary read the journal of the proceedings of the Senate sit- position through revolution, which would not have been unlikely. ting on Monday, May 29, for the trial of the impeMhment of William When John Quincy Adams was elected President, Henry Clay, who W. Belknap. favored him, was charged with bargain and corruption, a charge The PRESIDENT pro tempore. The Senate is now ready to proceed which his enemies persisted in making as long as he lived. He was with the triaL On the question of jurisdiction raised by the plead· the great and favorite leader of the whig party. Suppose that he bad ings in this trial, it is ordered by the Senate sitting for the trial of the been impeached, convicted, and disqualified, what would have been articles of impeachment preferred by the House of Representatives the consequences t Discord, and possibly revolution. These were against William W. Belknap, late Secretary-of War, that the demurrer possible cases, if there had been the necessary majorities. Many of said William W. Belknap to the replication of the House of Rep- others of less prominence might be cited. resentatives to the plea to the jurisdiction filed by said Belknap be, and We have in New Hampshii·e to-day a flagrant case, an ex-governor, the same hereby is, overruled; and, it being the opinion of the Senate not one year out of his seat, usurped authority and violated the con- that said plea is insufficient in law and that said articles of impeach· stitution of the State, so as to change the political character of the ment are sufficient in law, it is therefore further ordered and adjurlged State senate. He gave certificates to two men not elected, and stifled that said plea be, and the same hereby is, overruled and held for the votes of the people. His action led almost to revolution. He naught. The Secretary will make the proper entry upon the journal. was censured severely by the bouse of representatives; but under Mr. WHYTE. Mr. President, I offer the order which I send to the this new doctrine of "universality of impeachment" he can now be Chair. impeached, and deservedly so, as far as his offense is concerned. But The PRESIDENT pro tempore. The Secretary will read the order I counsel no such procedure. We have the necessary mnjority in proposed. each house to impeach and convict him, but the people have already The Chief Clerk read as follows: condemned him, and I would not invoke this doubtful and danger- Ordered, That W. W. :Belknap is hereby ordered to plead further or answer the articles of impeachment within t~ dn.ys from this date. ous power, as it would inflame party passions and disturb the peace of an orderly and law-abiding people. Mr. CARPENTER. Mr. President and Senators: This court gave us Wehaverecently had a civil war in this country. The proceeding two days to prepare for the argument of the question of jurisdiction, of impeachment was not invoked to reach any of the leaders of the the decision of which occupied the court for about three weeks. I rebellion. If this "universality of power" bad prevailed, some Sen- am certain that our argument did not perplex the court more than ators on this floor, and ·I speak it with no disrespect, might have been the decision of the court has perplexed us. And under the circum- disquaJ.i:fied from holding office, and a two-thirds vote of each House stances I trust the court will give ns some time for reflection. The of Congress could not have relieved them. order offered by the Senator from Maryland is peremptory- This Impeaching power might have been carried to a very great ex- Ordered, That W. W. :Belknap is hereby ordered to plead further or answer the tent. The power as now claimed would have embraced all the officers articles of impeachment within ten days from this date. who deserted from the Army and Navy of the United States, all the This order assumes that :Mr. Belknap is compellable to answer fur- citi7.ens who were officers in the confederate army, and all the soldiers ther. Whether this be so or not deserves examination. By the old who enlisted t.o fight against their country, for they had all committed common law an issue of fact found upon a plain abatement was final treason. By the fourteenth amendment those who had taken an oath in cases of misdemeanors. Whether this was so where the issue joined to support the Constitution of the United States, and aided the rebell- was one of law merits examination. TRIAL OF WILLIAM - W, :· BELKNAP. ~ 159 I One of my associates, Mr. Blair, is necessarily out of town. The I wish opportunity to consult with my colleagues; and I hope no other, J u.spect and the law majority, might claim that the fa-cts were settled, and that the final with less, and I want the diBcussion in open Senate. .indgment must rest upon the question of law whether such facts The PRESIDENT pt·o tempore. The Chair reminds Senators again amounted to a high crime or misdemeanor. that debate is not in order. The Senator from Massachusetts insists In briefer and plainer terms, no conviction cari take place under on the enforcement of the rule. The Senator from Iowa. moves that this provision of the Constitution, unless two-thirds of the Senators the Senate sitting for the trial of the impeachment adjourn until concur iu regard to every element necessary to conviction, and first Tuesdav next at one o'clock. and conspicuous among these, must be the question of jurisdiction. Mr. s·HERMAN. I desire to offer an amendment to that, which I Mr. WRIGHT. Mr. President, I wish to inquire whet.her it would will reduce to writing. . Le in order now to move to adjourn to a day certain, or whether the Mr. CONKLING. 1 would inquire wbether a motion as to adjourn- order should be properly that when t.he Senate sitting as a court of ment is amendable except as to the time to which the adjournment impeachment adjourns, it be to a definite time 'f shall bet 'l'he PRESIDENT p1·o tempore. It would be in order to move to Mr. SHERMAN. I think the Senator will not object to the form. adjourn to a certain time. I have now my amendment. 11 I , 162 TRIAL OF WILLIAM W. BELKNAP. The amendment having been reduced to writing was read, as fol- idea of d~latory mot.ions in this matter; nor do we seek to put in lows: these motions for any such purpose. There seems to be an impression Ordered-, That this court adjourn until Tue.'!day next, and in the mean time the communicated to the public through the newspapers, that we ar~ defendant have leave to plead, answer, or demur herein. seeking in some way to delay action. Certainly gentlemen who have 1\lr. CARPENTER. I hope the Senate will also give us leave, if we the e.xpc~ience that weha:ve in lcga.l proceedings know very well that conclude to make the. motion, to make a motion to vacate this order nothmg lS to be accomphshed by that. We want a fair trial ancl a on the ground suggested. It is certainly as important a question as fair trial only, and an opportunity to present the questions ;risin(J' the one which was argued and not at all settled by the Senate. upon the case whicn are of the very greatest importance; and there~ .Mr. SHERMAN. It strikes me that this gives ample privilege. fore, we feel bound to make this motion and to ask that time b~ given The PRESIDENT p1'o tempore.. The Chair will state to the Sena- for the hearing of it. tor from Ohio that debate is not in order. Tbe Chair will also rule The PRESIDENT pro tmnpore. The attention of the Chair is called that the motion of the Senator from Iowa is a simple proposition for to the fact that the proposition of counsel h~ not in the form of an au adjournment, and that the proposition of the Senator from Ohio amendment. The proposition of the Senator from Mary land is a is not an amendment to the motion of the Senator from Iowa. proposition by itself, and so is that submitted by counsel Therefore Mr. KERNAN. I will withdraw the proposition I submitted in in priority of time the proposition of the Senator from Maryland must favor of the one of the Senator from Ohio. be tmbmitted first. The PRESIDENT p1·o temp01·e. The Senator from New York with- Mr. SHERMAN. I move to amend the·order of the Senator from draws his proposition. The question pending is on the motion of the Maryland by striking out the words "is hereby ordered" and insert- Senator from Iowa, that the Senate sitting for Lhe trial of the im- ing "have leave;" so as to read : peachment adjourn until next Tuesday at one o'clock p. m Ordered, That W. W. Belknap have lea.>e to plead further or answer the articles .Mr. SHERMAN. I ask the Senator from Iowa if ho h:ts any ohjec- of impeachment within ten days from this uate. ' tion to my substitute! The PRESIDENT pro temp01·e. The question is on the amendment Mr. WRIGHT. I thin"~\ I have. I adhere to the proposition I have propo ed by the Senator from Ohio. made, and ask for a vote on that simple proposition. The amendment was a.g reed to. The PRESIDENT pro tempore. The quest,i on is on tho motion of The PRESIDENT pro tempore. The question recurs on the order the Senator from Iowa, that the Senate sitting for the trial of the submitted by the Senator from Maryland ali amended. impea-chment adjourn until Tuesday next at one o'clock p.m. .Mr. BOUTWELL. Will the Chair have the motion of the counsel The motion was agreed to; and the Senate sitting for· the trial of read! impeachment (at two o'clock and twenty minutes p.m.) adjourned The PRESIDENT pro tempore. The motion snbmmitted by the coun- to Tuesday next !Lt one o'clock p. m. - sel will now be read. The Clerk read the motion submitted by Mr. Blair. Mr. Manager LORD. Mr. President, the managers beg leave to submit a resolution which I send to the desk. Tbe PRESIDENT pro tempore. A. resolution is submitted on the TuESDAY, June 6, 1876. part of the managers, which the Secretary will read. The PRESIDENT pro tempore. The hour of one o'clock having ar- The Chief Clerk read as follows: rived, legislative and executive business is suspended and the Senate Resolve~. Tha~ .in default of an an~nv:er to the merits within ten days by respondent proceeds to the consideration of articles of impeachment exhibited to the articles ot unpeachment, the trial shall proceed as upon a plea of not guilty. by the Honse of Repn-sentatives against William W. Belknap, late The PRESIDENT pro tempore. The question is on the order sub- Secret!try of War. The Sergeant-at-Arms will make proclamation. mitted by the Senator from Maryland as amended. The usual procl::~.mation was made by the Ser(J'eant-at-A..rms. , Mr. WHYTE. :Mr. President- The managers on the part of the House of Representatives (wit.h The PRESIDENT pro tempore. Debate is not in order. the exception of Mr. KNOTT) appeared and were conducted to the Mr. ·wHYTE. I do not rise to debate, but merely to make a sug- seats provided for them. gestion. If the proposition made by tho coun~el-- The respondent appeared with his counsel, Messrs. Blair and Black. Mr. CONKLING. The Senator is inaudible here. The Secretary read t.he journal of the proceedings of the Senate Mr. WHYTE. I was about to say tha.t if the counsel for the re- sitting on Thursday, June 1, for the trial of tho impoachment of spondent, and the managers desire to argue at thiti time the propol'i- William W. Bell-uap. tion submitted by the counsel, the order which I bave offered rau lie The PRESIDENT pro tem.pOf'e. The Senate is now ready to proceed on the table for consideration afterward. Thero is no proposition by with the trial. the counsel, as I understa,nd, or tho managers, to argue the sngO'es- 1\lr. EDMUNDS. Wha.t is the pending question before the Senate, tiou that they have made for a vacation of the order. If they pro- Mr. President! pose to argue it, I see no reason why tho· argument cannot go ou at The PRESIDENT pro tempore. The Secretary will report the pend- this time. ing Qrder submitted by the Senator from Maryland, [Mr. WHYTE.] Mr. BLACK. We have made no proposition to argue it now. The Chief Clerk read as follows: Mr. WHYTE. Or at any time. There is no proposition of a time. Ordered, Tbp.t W. W. Belknap is hereby ordered to plead further or answer the It is leaving it unsettled. articles of impeachment \vithin ten da.ys from this date. :Mr. BLACK. Any time that the Senate may fix we shall be ready Mr. BLACK. Mr. President, I ask leave in the absence of one of to argue it. the counsel to present a motion drawn up by him which he would Mr. THURMAN. Mr. President, it seems to me that the order sug- have presented if he had been here. I ask that it be read. gested by the managers is an amendment to the resolution offered by The PRESIDENT pro tem,pore. The Secretary will report the mo- the Senator from Maryland. I move it as an amendment to the order tion submitted by the conru;el. offered by the Senator from Maryland. The Chief Clerk read as follows: The PRESIDENT pro tempo1·e. The Senator from Ohio will submit TilE Uh'lTED ST.ATES OF AMERICA l Senate of the United States sitting as a court ,of impeaehment. VB. his propo ition in writing. Mr. THURMAN. It is the proposition on the table as submitted by the managers. WILLIAM w. BE~AP. The PRESIDENT pro tempore. The Senator from Ohio will have Here in court comes t.he sn.id William W , Bolkna.p, and moves the court now b are, to modify the proposition, changing it so as to be in the form of an to vacate the order entered l'f record in this ca.use setting a ide and holding as amendment. · Jlaught the plea of him, said Belknap, by him first above in this ca.use pleaded;' for the reason that said order was not passed with the concurrence of two-thirds of the .Mr. THURMAN. · It is to add to the order ''and that," &c. Senators present and vot}ng upon the question of adopting and passing said order, Mr. SARGENT. I should like to hear both reported. as appears by the record in this cause. The CHIEF CLERK. The order is in the following words : WILLIAM W. BELKNAP. Orde:red, That W. W. Belknap have leave to plead further or answer the articles J. S. BLACK, of impeachment within ten days from this-date. MONTGOMERY BLA.IR, MATT. H. CARP.ENT.lm, The amendment is to add: Of Counsel. And that in default of an answer to the merits within ten days by respondent to The PRESIDENT pro ternp01·e. The question is on the proposition the articles of impeachment, the tri::~l shall proceed as upon a plea of not gnilty. submitted by the Senator from Maryland, that being fu·st in order. Mr. Manager LORD. I present this in connection with tho other-- .Mr. BLAIR. Mr. President, it occurs to me that our motion ought The PRESIDENT p1·o tempo1'e. The paper will be read. first to be put. That motion to abate, set aside, vacate the order of The Chief Clerk read as follows: the Senate ought to be put as it supersedes, takes precedence-it cer- Resolved, That on the 11th day of July, 1876, the Senate sitting aR a court of im- tainly does so logically-of the other proposition. And while I am peachment will proceed t{) hear the e'·idence on the mmits in the trial of this ca-se. up I shoul cept, either by the deli very of au at- bas been rendered; and I do hope that this court will allow an argu- tested copy thereof to the person accused, or, if that cannot conveniently be done, ment to be presented upon that fundamental question, and will not by leaving such copy &t the last known place of abode of such person, or at his usual place of business in some conspicuous place therein; or if such service shall take snap judgment, because that is the proposition, to take snap be, in the judgment of the Senate, impracticable, noticl' to the accused to appear judgment and say, "We will not hear you upon this question," on shall be given in such other manner, by publication or otherwise, as shall be deemed which we have had no exception taken np to this hour, and when we just; and if the writ aforesaid 1:1haJl fail of service in the manner aforesaid, the are not in default at all and have not consumed the time of this court proceedings shall not thereby abate, but further service may be made in such man- ner as the Senate shall direct. If the accnsell, after service, shall fail to appear, by any attempt at dilatory motions. either in person or by attorney, on the day so fixed therefor as aforesaid, ort appear- Mr. BLACK. I should like to learn from the honorable manager ing, shall fail to file llls answer to such articles of impeachment, the trial snall pro- ceed, nevertheless, as upon a plea of not gnilty. If a. plea of guilty !!hall be entered, who spoke what his proposition is. Does he intend to have the Sen- ate throw out altogether the motion that we made, and refuse to judgment may be entered thereon without further proceedings. hear itT Mr. Manager LYNDE. :Mr. President and SenatorE, I wish to call Mr. Mana.ger LYNDE. It was not upon your motion, but upon the the attention of the Senate to the difference between the rule a-s it order introduced by the Senator from Maryland, and the amendment has now been read and the order which the managers have presented offered by the Senator from Ohio, that the respondent be required to to the Senate for their adoption. The order which we propose is that answer upon the merits within ten days, and in default of such an the respondent shall answer on the merits. We have already been answer, that then the case proceed as upon a plea of "not guilty." We occupied for several weeks with dilatory pleadings. We have had a have no possible objection to the Senate indulging the counsel in any plea to the jurisdiction of the Senate. It has been suggested by the ru:gument they may see fit upon any question that may properly arise counsel for the respondent that they would yet demur, or a-sk leave in the case, but we wish to get at an issue in this case so as not to con- of the Senate to demur, to the articles of impeachment. The man- sume the Senate's time and ours. agers believe that these dilatory pleadings have been indulged in by Mr. BLACK. I understand that there is no objection at all to our this Senate quite too long and without a precedent. I find no prec- arguing this question whenever the Senate see proper to hear it f edent either in England or in this country for dilatory pleadings on Mr. Manager LYNDE. None. impeachment. In the :first case tried under our Constitution against Mr. BLACK. Well, I will say now that, so far as I can see, the state- Senator Blount, it is true, the respondent :filed a plea to the jurisdic- ment of the law upon this point as made by the Senator from Ohio tion which is regarded a-s a dilatory pleading; but that was without [Mr. THUllliAN) is what meets with my view. I have not had time authority and withont precedent. There never had been a case in to consult with the other counsel in the case and do not know how En~land where a plea. of that kind had been allowed to be put into they feel about it; bnt I think, whatever may be done with this mo- artteles of impeachment, aml it stands alone in this country. tion or whenever it may be argued, it cannot really be directly decided The time which bas already been occupied in this case must sat- until the final determination of the case, and that we ought to have, isfy the Senate that it is not right that these dilatory pleadings therefore, the privilege of arguing the point at any time. It is a should be introduced or allowed. In the case of J mlge Barnard in question that arises aod will arise at every step of this case as we go New York, where the counsel for the respondent app1ieu to the court on. We have, I should think, a perfect right afier putting in an an- for leave to file a demurrer or leave to move ·to quash certain articles swer to the articles of impeachment to object to any evidence that the of impeachment, the court refusell be hearu upon the motion offeretl by the counsel for the respondent. again f The PRESIDENT pro tern-pore. As this OI"der pertains to adjourn- The PRESIDENT pro tempore. The Secretary will report th'e order ment, the Chair will put the question first upon it. again. Mr. LOGAN. Before the question is put, I think the convenience The CHIEF CLERK. The order reads as follows : of the managers and of the counsel for the defense ought to be con- Ordered, That W. W. Belknap have leave to plead further or answer the articles sulted in reference to these motions as to time. I do not know but of impeachment within ten !lays from this date. what it would be perfectly convenient for them should we adopt this To that it is proposed to add the following words : order, but I think their convenience ought to be ascertained. If the .And that in default of an answer to the merits within ten days by respondent to court is going to have the management of this case as far as time is the articles of impeachment, the trial shall proceed as upon a. plea. of not guilty. concerned, I think we had better retire and consult as to what kind The PRESIDENT pro tempore. The question is on the awendment of an order we shall make. I would rather that such an order should just reported. come from the managers or the counsel upon the other side, so that Mr. BLACK. Is it now in order for me to make a remark to the they may agree as to time and accommodate themselves to the con- Senate f venience of each other. The PRESIDENT pro ternpo1'e. It is. The PRESIDENT pro tempm·e. The Chair will state before any other Mr. BLACK. I wish to say that, while we do not see any special Senator rises that it is out of order to debate queEiions, and the Chair necessity for the amendment, we have no objection to it, because that is compelled to enforce the rule lest reflection be mado upon the Chair, is the right thing to bo done in case we make the default for which and he will enforce tho rule unless Senators prefer by common con- that is provided as a penalty; but the resolution being so amended sent to indulge in debate. we can have no objection to it. That is, we t.hink that we are per- Mr. EDMUNDS. I suomit a point of order. fectlycontent that that time should be fixed for putting in the answer. The PRESIDENT p1·o tempore. The Senator will state his point of Mr. BLAIR. Mr. President, the amendment offered, as I heard it order. read the last time, seems to be inconsistent with the original order. . Mr. EDMUNDS. I submit that the question muststill betaken on The amendment offered by the managers, in its phraseology, implies the amendment proposed by the Senator from Ohio, inasmuch as the an answer and necessitates an answer to the merits; whereas the order offered by the Senator from Maryland is something more than original order offered by the Senator from Maryland admits of a plea, a mere adjournment, and is an order for an argument. or answer, or further pleailing. It seems to me that under the one The PRESIDENT pro tempm·~. The Chair has ruled that, as the or- we might demur to the articles or we might file a plea. The Senator der includes adjournment, he will put tile question on the proposition from Ohio adopts or moves the motion of the m:magers as an amend- of adjournment snbmitteQ by the Senator from Maryland. ment t.o the order of the Senator from Maryland; and the one admits Mr. CONKLING. The rule, I believe~_permits a question to be asked. of a further pleading, that is, it would admit of a demurrer, and the I should like to inquire in some form-1 did n.ot hear the statement- other requires an answer to the merits within ten d:tyd. what was the statement made touching the illness or absence of one The PRESIDENT p1'o tempore. The question is on the n,mendment of the counsel for the respondent. I was called from the Chamber for proposed by the Senator from Ohio, [Mr. THURMAN.] Tho roll-can a moment and have heard nothing in respect to it. will proceed. Mr. BLAIR. I will state that Mr. Carpenter, by whom this prop- The Chief Clerk called the roll on the amendment, and the roll- osition was written, was very ill yesterday and is still ill, and that his call having been eoncluded, physician, in my presence, to-day told him that it would be improper The PRESIDENT pro tempore. On agreeing to the amendment the for h'im to leave the house, but he said that he hoped to be ready by yeas are 31 and the nays are 5; no quorum voting. TRIAL OF WILLIAM W. BELKNAP. 165 Mr. EDMUNDS. I move that the Sergeant-at-Arm~:~ be directed to question is on the order as so amended, and the roll-call will proceed. request .the attendance of absent Senators. The question being takeu by yeas and nays, resulted-yea.rs 33, nays Mr. WITHERS. There is manifestly a quornm present. 4; as folluws : , Mr. ANTHONY. I suggest that if the President counts· the Senate YEAS-Messrs. Bayard, Bo:ry, Booth, Cameron of Pennsylvania., Caperton, Cock· he will find that there is a quorum present. rell, Cooper, Dennis, Edmunds, Goldthwaite, Gordon, Hamilton, Hitchcock, John- Tile PRESIDENT pro tPTnpore. The question is on the motion of ston, Kelly, Key, McUroory, Maxey, Mitchell, MoiTill of Vermont, Norwood, R..'lu· the Senator from Vermont that the Sergeant at-Arms be directed to som, Robertson, Sargent, Sanlsbru-y, Sherman, Stevenson, 'l'hurman, Wa.dloigh, West, Whyte, Withers, and Wright--33. request the attendance of absent Senators. NAYS-Messrs. Cragin, Ferry, Howe, and Morton-4. The motion was agreed to. NOT VOTING-MessTS. Alcorn, Allison, .Anthony, Barnum, Boutwell, Bruce, The PRESIDENT pro ternpore. The Sergeant-at-Arms will execute Burnside, Cameron of Wi consin, Christiancy, Clayton, Conkling, Conover, Davis, the order. Dawes, Dorsey, Eaton, Frelinghuysen, Hamllit, Harve~, Ingalls, Jones of Florida, Jones of Ne'"ada, Kf\rnan, Logan, McDonald, McMillan, .Merrimon. Morrill of After a pause, Maine, Oglesby, Paddock, Patterson, Randolph, Sharon, Spencer, Wallace, and Mr. PADDOCK. "I should like to inquire if there is not now a quo- Windom-36. rum of the Senate present f So it was The PRESIDENT p1·o tempore. The Chair is unaware except as the Ordtrcd, That W. ·W. Belknap have leave to answer the articles of impeachment, vote reveals the fact, without counting the Senate. within ten days from this date; and that in default of an answer to the merits within Mr. PAD DOCK. I move that the roll be called. ten days by respondent to the articles of impeMhment, the trial shall proceed as Mr. EDMUNDS. We are now executing our order. upon a plea of not guilty. Mr. P .ADDOCK. I move that all further proceeding under the Mr. Manager LORD. Mr. President, may I ask consideration upon order be dispensed with until the roll is called. the last motion submitted by the managers t The PRESIDENT pro tempo1·e. The Senator from Nebra.ska moves The PRESIDENT pro tetnpore. The Secretary will report the prop- that all further proceedings under the order be dispensed with. osition. . • The motion was not agreed to. . The Chief Clerk read a.s follows: Mr. MORTON. Is it in order to say a word! lle8olved, That on the 11th day of July, 1876, the Senate sitting as a court of im· The PRESIDENT pro t-empm·e. Debate is not in order. pea.chment will proceed to hear the evidence on the merits in the trial of this case. Further time having elapsed, :Mr. Manager LORD. Am I in order in saying a word on that f Mr. THURMAN said: I move that the names of the Senators who The PRESIDENT pro tumpore. Certainly. have not voted be called, so that tbey may vote. Sev~ral have come Mr. Manager LORD. Mr. President and Senators, the reason for into the Senate since the roll was called. :fixing this time on the 11th of July next is mainly that the witnesses The PRESIDENT pro tempon~. That is not in order. The Chair is are now scattered to both sides of the continent. During this long informed that there is a quorum present, the count showing fifty-three delay we could not keep the witnesses, we thought, in justice to them, Senators. The Sergeant-at-Arms is executin~ the order of the Senate. and therefore they were allowed to go to their respective homes. Very What is the further pleasure of the Senate T likely before t.he 11th of July, possibly before the 1st of July, these Mr. SHERMAN and others. Call the absentees. witnesses can be gathered in; but we deem it more convenient to fix Mr. SARGENT. I believe it is in order to move to dispense with the 11th of July, and then it will be much more certain that the wit- further proceedings under the call. nesses will be here on that day than though an earlier day should be The PRESIDENT pro tempore. It is. fixed. Mr. S.A.RGEN1'. I submit that motion. Then, again, the House which we repre.s ent is anxious not to have The PRESIDENT pro tempore. The Senator from California moves this trial interfere with the pending legislation. It is important that that all further proceedings under the order directing the Sergeant- all be done before the 30th of J nne that can be done, and in order at-Arms to request the attendance of Senators be dispensed with. that. the trial need not interfere with the important legislation before The motion was agreed to. Congress, and in order that we may be enabled to ~et these witnesses Mr. THURMAN. Is my motion in order now f from these distant points, the managers propose this day for trial, the The PRESIDENT pro tempore. It is. 11th of July. Mr. THURMAN. I move that the Senators who have not voted on Mr. EDMUNDS. 1.-Ir. President, I move to amend that order by the amendment be called so that they may answer. making_ it the 6th.instead of the 11th of July. Mr. SAULSBURY. I was not in when the motion was put; I would Mr. Manager LORD. Mr. President, the managers accept that therefore thank the Chair to state the question. amendment. The PRESIDENT pro tempore. The question is on the amendment The PRESIDENT pro tempore. The managers accept the amend- submitted by the Senator from Ohio to the proposition submitted by ment. The Secretary will report the proposititon as now modified by the Senator from Maryland. Does the Senator desire the amendment the managers. 4 to be read f The Chief Clerk read as follows: Mr. SAULSBURY. I desire to have both read. Resolved, That on the 6th day of July, 1876, the Senate sitting as a. court of im· The PRESIDENT pro tentpore. Both will be read. peachment will proceed to hear the evidence on the merits in tht~ trial o£ this case. The CHIEF CLERK. The following is the order: The PRESIDENT pro tempore. Senators, the managers on the part Ord.tTed, That W. W. Belknap have leave to plead further or answer the articles of the House submit this proposition for your decision. of impeachment within ten days from this date. Mr. SARGENT. I move to amend by saying t.he 19th day of Juue. The amendment is to add: The PRESIDENT pro tentpore. The Chair will here rule that a .And that in default of an answer to the merits within ten days by respondent to proposition submitted by the counsel or the managers is not amend- the articles of impeachment, th~ trial shall proceed as upon a plea of not guilty. able by Se-n ators. The Chair will entertain a proposition of the Sen- ators. The managers modified their proposition according to the The PRESIDENT pro tempore. The names of non-voting Senators suggestion of the Senator from Vermont, and therefore the Chair en- wiU now he called. . tertained that. The Senator from California can move a proposition The Secretary proceeded to call the names of the Senators who had covering the point he wishes to reach, and the Chair will entertain it. not votecl on the previous call; and the roll-call having been con- Air. MORTON. Mr. P1·esident, on a question of this kind, so inti- cluded, the result was announced-yeas 35, nays 7 ; as follows : mately affecting the business of the Senate, I think there ought to be YEAS-Messrs. .Anthony, Bayard, Boey Booth, Burnside, Cameron of Pennsyl· opportunity for the Senate to be heard ou it.- Here it is proposed to vania, Caperton, Cockrell, Dennis, Edmund's, Gordon, Hamilton, Hitchcock, Johns. ton, Jones of Florida, Kelly, Key, McCreery, Maxey, Mitchell, Morrill of Vermont spread this trial all over the summer. I move that the Senate retire Morton, Norwood, Ransom, Robertson, Sargent, Saulsbury, Sherman, Stevenson; for the consideration of this question. Thurman, Wadleigh, West, Whyte, Withers, and Wright-35. Mr. EDMUNDS. I suggest that the Senate be clearecl. H~w~~Messrs. Conkling, Cooper, Cragin, Eaton, Ferry, Goldthwaite, and · Mr. THURMAN. I ask unanimous consent that the rules be sus- NOT VOTING-Messrs. Alcorn, Allison, Barnum, Boutwell, Bruce, Cameron of pended and we go on. Wisconsin, Christiancy, Clayton, Conover, Davis, Dawes, Dorsey, FrelinghuY.sen, Mr. EDMUNDS. That I object to. Hamlin, Harvey, Inualls, Jones of Nevada, Kernan, Logan, McDonald, McMillan, The PRESIDENT pro tempore. Objection is made to the suggesti~n M.errimon, M.orrillo~":Maine, Oglesby,:Padtlock, Patterson, Randolph, Sharon, Spen. of the Sena.t or from Ohio. cer, Wallace, and Wmdom-31. Mr. Manager McMAHON. Before the motion of the Senator from The PRESIDENT pro tempore. The amendment of the Senator Indiana is put, I desire to say that the managers can be ready to try from Ohio is agreed to. The question recurs on the order proposed this case at any time within ten days from this date. The suggestion by the Senator from :Maryland as amended, which will be read as it made by the chairman was chiefly to accommodate the public busi- now stands. ness, as I understand it; but if the Senate sees proper, in view of its The Chief Clerk read as follows : knowledge of the situation of the public business, to :fix this trial for Ordered, That W. W. Belknap have leave to plead further or answer the articles the 19th of June, having had peculiar means of knowing where the of impeachment within ten days from this date; and that in default, of an answer witnesses are, how soon they can be procured, and what we want, I to the merits within ten days by respondent to the articles of impea.chment, the think I c3rn safely say, on behalf of the managers, that we shall be trial shall proceed as upon a .vlea. of not guilty. ready on that time. Of course, it is only two days, aft-er the answer Mr. :W~TE. I move ~ Rtrike out "plead further or," so aa to is to be put in, but that is for the Senate to consider when they re- leave 1t sunply ''answer," m order to correspond with the amend- tire. \Ve shall be ready at any time within a reasonable period to go ment which has now been attached to the order. on with the trial. The PRESIDENT pro tempore. Is there objection to this amend- The PRESIDENT pro tempore. The Chair did not hear the propo- ment Y The Chair hears none, and the order will be so modified. The sition ·of the Senator from Indiana. Will he state it again f 166 TRIAL OF WILLIAM W. BELKN. L\.P. . Mr. .MORTON. I move that the Senate retire to consider this ques- The CHIEF CLERK. Tl1e -pending proposition is to strike out "the tion. 11th" and insert "the 6th ; '' so as to read : l\Ir. EDMUNDS. I suggest that we close the doors and stay here. That on the 6th day of July, 1876, tbe Senate sitting as a. court of impeach· Mr. MORTON. It is suggested that I change t.be motion to one ment, &c. that t.be galleries ue cleared and the doors closed, that the Senate The PRESIDENT pro tempore. The question js on this amendment, may deliuerate. I suumit that motion. proposed by the Senator from Pennsylvania to the amendment of the The PRESIDENT pro tempore. The question is on the motion of Senator from Rhode Island. the Senator from Indiana that the doors Le closed anu the galleries The amendment to the amendment was agreed to. cleared, that the Senate may deliberate. 'fhe PRESIDENT p1·o t.empore. The question now recurs on the The motion was not agreed to ; there being, on a division -ayes 15, proposition of the Senator from California thus amended, which will noes 24. Le read. The PRESIDENT p1·o tempore. The question is on the proposition Mr. SARGENT. I rise to a point of order. of the managers as modified, which will be read. The PRESIDENT pro tentpore. The Senator will state his point of The Chief Clark read as follows : order. Resolved, That on the 6th day of July, 1876, the Senate sitting as a. court of im· Mr. SARGENT. The proposition of the Senator from Rbo(le Island peachment will proceed to hear the evitlence on the merits in the trial of this case. has been amended uy the amendment of the Senator from Pennsyl- Mr. SARGENT. Mr. President, I propose the same order, strik:mg vania; and, being so amended, the question is whether that shall be out the time fixed and insert-ing the 19th of J tme. If Senators will substituted for the proposition which I made. wait while I go through the manual exercise of writing it, very well. The PRESIDENT pro tempore. The proposition of the Senator from Otherwise I think the Clerk might write it out. Rhode Island was simply as to time, and the Chair took the amend- The PRESIDENT pro ~rnpore. The ru1e requires all motions to be ment adopted by the Senate as taking the place of the amendment of reduced to writing. The Chair will enforce the ru1e. The Seoreta1·y the Senator from Rhode Island. The Senator from Rhode Island will reduce this motion to writing. · moved one day; the Senator from Pennsylvania moved different day, and that was agreeu to by the Senate. a The Chief Clerk read as follows: Mr. SARGENT. Exactly; and now tba question is between that Resolved, That on the 19th day of June, 1876, the Senate sitting as a. court of im· date, being the 6th of July, and the 19th of June, as I moved. peacbment will proceed to bear the evidence on the merits in the trial of this case. Mr. EDMUNDS. That is it. Mr. ANTHONY. Do I understand that the vote refusing to clear The PRESIDENT pro tempore. So the Chair stated, and he directed the galleries is equivalent to a vote to refuse to retire for consultation T the question to be reported as it is now proposed to be amenued. The PRESIDENT pro tempore. It is. The Chair put the question The CHIEF CLERK. The original proposition was in these words : on clearing the galleries and closing the doors that the Senate might That on the 19th da.y of J nne, 1876, the Senate sitting as a. court of impeachment· deliberate, and the Senate declined to do it. will proceed to hear the evidence on the merits in the trial of this case. Mr. ANTHONY. It is likely some might be willing to retire who Mr. WHYTE. There must have been some misunderstanding, cer- would not wish to clear the galleries. I move that the Senate retire tainly, on the part of some Senators; certainly there has been upon for consultation. mine. Do I understand that the Senate has already adopted the 6th The motion was not agreed to. of JulyT The PRESIDENT pro tempore. The proposition of the Senator from The PRESIDENT -pro tern.pore. The Chair will state the question. California, which has been read, being the proposition of a Senator, The Senator from California moved in his proposition the 19th of the Chair will put the question on it as first in order. June. The Senator from Rhode Is1and moveu to strike out that date .Mr. ANTHONY. I move to substitute for the 19th of June the 11th and insert the 11th of Ju1y. The Senator from Pennsylvania moved of July. to amend the amendment, and instead of the 11th to insert the 6th of The PRESIDENT pro tent.pore. The Senator from Rhode Island July. That bas taken the place of the amendment of the Senator moves to amend the proposition of the Senator from California ·by from Rhode Island, and the question now stands upon the proposition substitnt.ing the 11th of July. of the Senator from California as thus amended. :Mr. EDMUNDS. Is the proposition of the Senator from California Mr. EDMUNDS. Not as amended, but as proposed to be amended. before the Senatef Mr. THURMAN. I submit that the question is, Shall the 19th of The PRESIDENT pro tempore. It is; and the Senator from Rhode June be stricken out and the 6tho"f July inserted f Island moves to amend it by striking out "the 19th day of J nne" and Mr. WHYTE. That is the way we understood the question. inserting" the 11th day of July." The PRESIDENT p1'0 ten1pore. The amendment of the Senator from Mr. CAMERON, of Pennsylvania. Is that liable to be amended Rhode Island, as amended, stands in place of the proposition sub- again f mitted by the Senat.or from California. So the Chair understands. The PRESIDENT p1·o tempm·e. It is. All the difference is that the proposition of the Senator from Penn- Mr. CAMERON, of Pennsylvania. I move to substitute the 6th for sylvania has taken the place of that of the Senator from Rhode the 11t.h of J u1y. Island. The question now is 1 Shall that be substituted for the original The PRESIDENT pro ternpm·e. The Senator from Pennsylvania proposition of the Senator from California T moves to amend the amendment by inserting the 6th of July instead Mr. MITCHELL. Before the vote is taken, I should like to put an of the 11th. The question is on this amendment to the amendment. inqmry to the counsel for the respondent. Mr. WRIGHT. I understood that the order offered by the managers Will the 19th of June give the respondent's counsel such time as was the pending order, and that the order offered by the Senator from they deem necessary to prepare for trial on the merits f California was not an amendment to that, and therefore the question The PRESIDENT pro ten~pore. The Senate will hear the counsel. would be pnt on the propositions in the order they were offered. Mr. BLAIR. We have had no opportunity to confer on the subject, The PRESIDENT pro tempore. The Chair bas ruled that a propo- but, so far as advised, that would not give us the necessary time. We sition made by managers or counsel is not amendable by Senators; have some witnesses who will not be attainable at that time. but any proposition made by a Senator is amendable by a Senator, The PRESIDENT pro tempore. The question now before the Senate nor can the proposition made by Senators be amended by the counsel is, Will the Senate strike out the 19th of June and insert the 6th of or managers. A motion made by a Senator has priority of one offered July f The Chair puts it in a different form so as to make it under- by the managers or the oon.nsel. stood. Mr. WRIGHT. But I understood the Chair to say that the order The amendment, as amended, was rejected. o.ffereu by the managers, being first in time, the vote would first be The PRESIDENT p1·o ten~pore. The question recurs on the proposi- taken. tion of the Senator from California. The PRESIDENT pro tentpore. If the Chair stated that, he was in- Mr. BLAffi. Wou1d it be in order for the counsel for the respond- correct. ent to make a motion in regard to the timeT Mr. WRIGHT. I certainly so understood. The PRESIDENT pro tentpore. It would be in order for them to The PRESIDENT p1·o tentpore. The Chair holds that the proposition make a proposition, but it would not he in order to amend the pro- of a Senator has priority of a propo ition of the parties. The proposi- posed order. tion offered by the Senator from California being before the Senate, Mr. EDMUNDS. It would_ be in order to be heard. it is proposed to be amended by the Senator from Rhode Island, to The PRESIDENT pro ~pm·e. The Chair will entertain the propo- which the Senator from Pennsylvania offers an amendment. The sition of the counsel. Secretary will read the amendment to the amendment. Mr. BLAIR. I would beg, after conferring, to state to the Senate Mr. EDMUNDS. I rise to inquire whether, if no Senator asks for that we can only judge of the character of the witnesses needed for the yeas and nays on these points of time, it is necessary to call the our defense by the character of those who are summoned here for the roll f prosecution. There are some witnesses summoned for the -prosecu- The PRESIDENT pro tempare. The rnle requires it; but, if no Sen- tion whose testimony has been taken that we do not think bears d1 4 ator asks for the yeas and days, the Chair will put the question with- rectly upon the allegations contained in the articles. If those wit- out them. nesses are to be examined-and I presume they will be, as they have .Mr. EDMlTh'DS. I think the seventh rule excuses us from calling been examined formerly-we shall need a class of witneE~ses and testi- the roll on these questions unless the yeas an(l nays are regularly de- mony which will not be at all attainable within the time mentioned mandeil. by the order proposed to be adopted now. Mr. SARGENT. Let the several amendments be read that we may We think that justice to the defendant will be secured and the know how the question stands. public business quite ~well advanced Ly laying this trial over until TRIAL OF WILLIAM W. BELKNAP. 167 the next session of the Senate, or until some special adjournmen~ of McCreery, Mitchell, Morrill of Maine, Morton, Paddock, Ransom, Robertson, Wad- the Senate for November; and if it be in order for me. to snbiD.It a leigh, Wmdom, and Wright-27. · NOT VOTING-Messrs. Alcorn. :Barnum, :Boutwell, :Bruce, Cameron of Penn- proposition of that kind on the part of the defense I wtll do so. Of sylvania, Uameron of 'Yisconsin, Christiancy, C~mover, Davis,pawes, Frelinghuy. course the Senate will vote upon the subject. If it votes clown the sen, Harvey, Hitchcock, Ingalls, Jones of Flonda, Jones of lievada, Kernan, Mc- propo~:~ition of the S61lator from California it will be permissible, I Donald, McMillan, Merrimon, Ogl&~by, Patterson, Randolph, Sharon, Spencer, presume, to then offer a motion in writing to adjonrn over this trial Wa.llace, and West-27. until November or the 6th day of December next. So the amendment to the amendment wa-s rejected. I take the liberty of saying to the Senate that, while of course they The question recurring on the amendment of .Mr. ED~UNDS, he know their own business better than I do, it seems to me that there can called for tho yea.s and nays, and they were ordered; and bcmg taken, be no public object in requiring this trial to go on at this time. It resultecl-yeaa 36, nays 9; a.s follows: seem~:~ to me that the convenience of the Senate and the convenience YEAS-Messrs. Anthony, :Bayard, :Bogy. :Booth, Ca.pe1~n, Cockrell, Con~ing, of all parties would be promoted by the adjournment of the trial Cooper, Cragin, Dennis, Eaton, Edmunds, Ferry, Goldthw:rute, Gvrdon: Hamil~n, over, say, to the 6th of December. Hamlin, Howe, Johnston, Kelly, Key, McCreery, Maxey, Mitchell, Mornllof Marne, Mr. BLACK. Or to the 1st of November. Morrill of Vermont, Norwood, Ransom, Robertson, Saulsbury, Stevenson, Thur- man, Wadleigh,Whyte, Withers, and Wright--36. Mr. BLAIR. Or to the 1st of November, some time after the sum- NAYS-Messrs. Allison, Burnside, Clayton, Jones of Nevada, Morton, Paddock, mer heats shall have passed away, when it would be convenient for Sargent, Sherman, and Windom-9. all parties to be here. Our original proposition, as the S_ena~ knows, NOT VOTING-Messrs. Alcorn, Barnum, :Boutwell, Bruce, Cameron of Pennsyl- was to adjourn this question over until after the prestdenttal elec- vania, Cameron of Wi~consin, Cbristiancy, Conover, pavis, Dawes, Dorsey, Fre- linghnysen, Harvey, Hitchcock, Ingalls, Jones of Flonda, Kernan, Logan, McDon- tion. I do not think that anything has occurred since tliat motion ald, McMillan, MeiTimon, Oglesby, Patterson, Randolph, Sharon, Spencer, Wallace, was made to derogate from the sou!ldness .of the views I expresse.d and West--28. in makin(J' the motion, and I no~_gtve notJCe to the Senate ~hat,, if ~o the amendment was agreed to. they shali vote down this propositiOn of the Senator from Califorrua, The resolution of 1\fr. SARGENT having been further amended, on I shall hope to make that motion. the motion of Mr. ED.:\IUNDS, it was agreed t.o; as follows: The PRESIDENT pro tempo1'e. The question is n?w upon the origi- nal 'Proposition submitted by the Senator from Califorrua. Ordtrred, That on the 6th of July, 1876, at one o'c~ock p. m., the Sef!ate sitting _as a court of impeachment will proceed to hear the eVIdence on the menta of the tnal Mr. BLAffi. Before the vote is taken, I desire to suggest that my in this case. client says that General Terry, who is commanding an e~pedition, On motion of Mr. EDMUNDS, the doors were re-opened, after one cannot be brought here in time for th~ occasion. no": ment10ned. It lwur arid thirty-five minutes spent in deliberation. is necessary for him to be here, proVIded cert.am wttnesses now on ~~~~~~~~~~~~~g~oo the list of those to be examined by the counsel for the Honse of Rep- their seats, resentatives are examined. In that case General Terry would be an The PRESIDENT p1'o t-empore. The Senate continues the trial in indispensable witness for him, and he r:annot be here before fall: ~e open session. It has made an order which will be read. is ready to make affidavit of that fact, 1f the Senate should reqmre 1t. The Chief Clerk read as follows: The PRESIDENT pro ternpore. The q nestion is upon the original proposition submitted by the Senator from California, which the Sec- Ordered, That on the 6th of July, 1876, at one o'cl~k p. m., the Se~ate sitting _as a. court of impeachment will proceed to hear t-he eVIdence on the ment8 of the tnal retary will now report. in this CllSe. The Chief Clerk read a-s follows: 1\!r. BLAIR. 1\Ir. President, we have a motion to submit, which I Ordered That on the 19th of June, 1876, the Senate sittin~ as 3. court of impeach· will read to the Senate, as it is in my writing: ment will 'proceed to hear the evidence on the merits of the trial in this case. In the Senate of the United States sitting as a. court o impeachment. 1\Ir. MORRILL, of Maine. That is not open to debate, I under- THE UXITRD STATES } stand f '118. The PRESIDENT pro tevlpore. It'is not open to debate. . WILLIAM W. BELKNAP. Mr. MORRILL, of Maine. I ask unanimous consent to make a~n­ William W :Belknap by his counsel, moves the court that an order be made upon gle observation. not by way of debate at all, but by way of suggestion. the managers "on the pa. ~t of the House of Representati v~ to furnish within ~enty­ fonr hours to the accused or his counsel a list of the Wltnesses whom they mtend The PRESIDENT pro tempore. Is there objection to the request ?f to call, together with the particulars of the facts which they expect to prove by the Senator from Maine! The Chair hears no objection, and he w1ll thorn. pro~e~ . . Mr. HA.l\ILIN. Let the Secretary read the motion. Mr. MORRILL, of Maine. The question of fixing the time, m my mind is very important to the Senate and the country. The PRESIDENT pro tempo1'e. The Secretary will read the motion. M.r: EDMUNDS. I think if the Senator will move that the doors The motion was read by the Chief Clerk. Mr. Manager LORD. We simply say now that we obJect to the . be closed it may succeed; and then we can consider the question. 1\!r, MORRILL, of Maine. I desire to say simply in the interests .sses against him. None of which I rlo not believe in at all my~eli, to say one word, I will do it. those privileges which are secured in our Constitution were given to The PRESIDENT p1·o ten1pore. Is there objection! The Chair bears a party charged with a. criminal offense by the ancient common law. DODO. That common law was a bloody old beast. Mr. EDMUNDS. I should propose to modify the order of tl1e Sen- Mr. Manager LORD. Will the gentleman allow me to ask him a ator from California. so as to say "as far as at present known to the question! And that is, what was his practice in this regard as At- managers." Ho is quite right, according to my opinion~ in his state- torney-General; whether he gave ~nstrnctions to the district attor- ment of the law, that if we made a peremptory order, which on its TRIAL OF WILLIA-M W. BELKNAP~ 169 face seemed to exclude everything else, yet, if a witness wa~ produced The Chief Clerk read the journal of the proceedings of the Senate in good faith who was not known before, he would be received, we sitting on Tuesday, June 6, for the trial of the impeachment of Will- at the same time taking care that no injustice by way of sQrprise iam W. Belknap. shonld be 1lone to the other party. But to make it entirely safe, so The PRESIDENT pro tempore. The Senate is now ready to proceed tJ1at there shall be no misunderstanding, I move also besides the four with the trial. Tho Secretary will read the order made by the Sen- days, which my friend accepts, to say "a list of the witnesses so far ate respecting t.be trial. · as at present known to the managers," so t.hat they shall in good faith The Secretary read the following order, adopted June 6: gh·e to the other side all the names of all the witnesses whom they Ordered, That W. W. Belknap haYe leave to answer the articles of impEW}bment have at present any intention to call. within ten days from this date; and that. in default of an answer to the merits within Mr. SARGENT. I accept tbe modification. ten days by re,.qpondent to the articles of impeachment, the trial shall proceed as upon a plea of not guilty. Mr. THURMAN. Mr. President- The PRESIDENT pro tempo·re. The Senator from Ohio. Debate is Mr. BLACK. Mr. President- not in order. The PRESIDENT pro tempore. Senators will please give attention Mr. THURMAN. I ask leaYe to be heard as other Senators have to the answer of the accused. been. Mr. BLACK. The paper which I am about to read will require per- Tho PRESIDENT p1·o tempore. Is there objection Y The Chair hears haps a little, but a very brief, ex-planation. The order made by the Senate at the last meeting wa~ that we should plead to the merits, none. Mr. THURMAN. . I ·must say that it is news to me that there is any which means of course to the merits of our case in law or in fact; • law anywhere which requires the prosecution to give a list of its wit- that is, we should answer to the charges or else raise an issue of law. nesses to the defendant; but I am bound to admit that there must For certain reasons, which you will find stated in the paper which I be, because counsel say so. There is certainly none in my State; I now lay before you, we decline t-o put in any plea; not because we never heard of such a thing before. But, if it is so, it ought to be re- do not expect to go to trial upon the legal merits as well as the facts ciprocal. The State bas some rights as well as the defendant; and of the case, but because any such answer as that which the Senate therefore I move to add : expect we should put in under that order would probably be construed .And that within four days thereafter the respondent shall furnish the managors as an admission that we are not already acquitted substantially. with a list of the witnesses he proposes to examine, so far as they shall be known. But this declination to put in a plea will be followed, as a matter Mr. BLACK. We have no objection. of co~se, by the course which the S~nate expressed it~ determiuation Mr. BAYARD. Mr. President-- to take on a former occasion, nameljt that you will order the trial to The PRESIDENT pro tempore. Is there objection to hearing the proceed under a plea of not guilty, which the court itself will p11t in Senator from Delaware f The Chair hears none. for us. We expect you to put in the plea of not guilty for us, and Mr. BAYARD. I cannot but remark that in the very nature of we hope very sincerely that yon will be able to make it out, and we things the list on either side must be incomplete, and being incom- shall be here aiding and assisting you to the utmost of our power. plete it will be absolutely without value to either party. Therefore But we are in an extremely sin(J'ular predicament. The sense of the request on either side, in my opinion, would be not only lacking the Sen.ate upon the question which was submitted to them could be entirely in precedent, but lacking in judgment and sound logic. expressed only against us by a vote of two-thirds. One-third and 1\Ir. WHYTE. I ask unanimous consent merely to say ooe word to more than one-thircl of the Senate have decided in our favor. The correct a misapprehension of the Senator from Ohio. others, less than two-thirds, are powerless, of course, to find against The PRESIDENT pro tempore. The Chair bears no objection. us any fact· which is an essential element in any legal c-Onviction Mr. WHYTE. There is an act of Congress on the subject. In all which yon may be able at any time hereafter to pronounce•. The fact cases of trial of treason and other capital offenses the party accused alleged against us, that General Belknap was a public officer 'vithin shall haYe a list of the witnesses and the places of their abode. the meaning of the Constitution, has been found in our favor, but Mr. SHERMAN. I want that to be read. then a majority of the Senate say that judgment shall be pronounced Mr. WHYTE. It is aa follows: upon that vote as if it had been a vote of two-thirds. The majority can do as they please; they can put whatever they pleaae upon the SEC. 10:~ When any person is indicted of treason, a copy of the indictment and a liRt of tbe jury and of the witnesses to be produc.e d on the trial for proving the record. While they are legally incapable of convicting him without indictment, statmg the place of abode of each juro1· and witness, shall be delivered the concurrence of. two-thirds, the majority can say that we are con- t() him at least three entire days before )le is tried for the same. victed, although by them. We can do nothing but appeal to your Mr. GORDON. That is for treason. reason and sense of justice and love of the Constitution, which we llr. WHYTE. Treason and any other capital offense. think will prevail at some time or other. That the question will be When any person is indict~d of any other capital offense, such copy of the in· raised continually at every step in the progress of this affair, until dictment and li~t of the jurors and witnesses shall be delivered to him at least two we are finally acquitted and allowed to go hence without day, is very entire days before the triaL certain. Mr. Manager LORD. Mr. President, I will say that we make no I now propose to read this paper, which contains our reasons for objection to the order after four days to furnish the list of witnesses. declining to plead to the merits, whatever that may mean, to put in It wa~ the other part of the order asked for to which we made par- any plea at all other than this, which is an allegation that we have been ticular objectil)n. alre~dy acquitted; that there can legally be no further proceeding The PRESIDENT pro tempore. The Senator from Ohio [Mr. THUR- against us; and that we are entitled to a judgment which will allow MAN J has moved an amendment, which will be read. us to go hence sine die. I proceed to read the paper-: Tlte Chief Clerk read as follows: Insert at the end of the order: .A.Dd t.lmt within four !lays therenfter tl1e respondent furnish to the managers a 1 In the Senate of the United States sitting as a court of impe..'l.Chment. TB.E UNITED STATES OF .Am: RICA 'liS. list of witne ses, as far as known, that he intends to SUlllmon. WILLIAM W. BELKNAP. The PRESIDENT pro tempol'e. The question is on this amendment. And now, to wit, thjs 16th day of June, 1876, thesaicl William W. Belknap comes The amendment Will:! agreed to. into court, and being called upon to plead further to the said articles of impeach- ment doth most humbly and with profoundest respect represent and show to this The PRESIDENT pro tempore. The question is on the resolution honorable court that on the 17th day of April last past he did plead to the said as ameuded, which the Secretary will report. articles of impeachment~ and in his saicl plea did alle~e that at the time when the The Chief Clerk read as follows: House of Representatives of the United States ordered the said impeachment, and at the time when tho said articles of impeachment were exhibited at the bar of the Ordered, That the managers ful"nish to the defendant, or hi~ counsel, within four Senate against Wm. the said Belknap, he, the said &lk.nap, was and ever thereafter days, a list of witnesses, as far as at present kno"'"n to them, t.hat they intend to had been not a pu!Jlic officer of the United States, but a private citizen of the Unitecl call in this case; ancl tbat, within four days thereafter, the respondent furnish to States and of the State of Iowa; and that the plea aforesaid and all the matters and tl.tu managers a list of witnesses, as far as known, that he intends to summon. thlngs therein contained were by him, said Belknap, fully verified by proofs The resolution, as amended, was agreed to. namely, by admissions of the said House of Representatives before said court.; ana 1\lr. SHERMAN. I renew my motion that the Senate sitting for the srud Belknap further represents and shows t() the court here that the truth and sufficiency of the plea pleadod by him as aforesaid were thereupon debated by the the trial of the impeachment adjourn until the 16th instant at twelve managers of the said House of Representatives and the counsel of this respondent, o'clock. and thereupon submitted to this court for its determination and judgment thereon: The motion was agreed to; and (at four o'clock and forty-five min- and that snob proceedings were thereupon had in this court on that behalf in this utes p.m.) the Senate sitting for the trial of the impeachment ad- cause; that afterward, to wit, on the 2'Jth day of Mav last past, the members of this court, to wit, the Senators of the United States sitting as a court of impeachment as journed until the 16th instant. aforesaidt did severally deliver their several judgmen~, opinions, and vot-es on the troth ana sufficiency m law of the said plea, when anu whereby it was made duly to a~ that only thirty·se>en Senators concurred in pronouncing said plea in- suffiment or untrue; whereas twent.y-nine Senators sitting in said court, by their opinions and votes, affirmed and declared their opinion to be that said plea was FRIDAY, June 16, 1876. sufficient in law and true in point of fact; so that the said Belknap in fact saith that, on the day aml year last aforesaid, twenty-nine Senators sitting in said court The PRESIDENT pr~ temp(}re having announced the arrival of the declared therein that the said Belknap having ceased to be a publio officer of the hour fixed, the legislative and executive business was suspended, and United States by reason of his resignation of the office of Secretary of War of the tho Senate proceeded to the trial of the impeachment of William W. United States before proceedings in impeachment were commenced against him by the House of Representatives of the ITniterl States, the Senate cannot take ju. llolknap, late Secretary of War. risdiction of this cause; imoting thereon; but, on the con- some other paper which will disclose our reasons for declining to trary thereof, a.s tJJe vole aforesa1d fully shows, the saic.l plea of the said respondent plead further. The paper itself is not only respectful to th.e Senate, was sustained, and it-s tryth in fact aml sufficiency in law duly affirmed by the said Senate sitting as aforesaid, more than one-third of the Senators of said Senate, but it is humble to the last degree; and either it ought to be received sitting as aforesaid, having by their Yote. so declared, to-wit, twenty-seven Sena- or some reason should be given for rejecting it. tors as aforesaid, and said twt-nty-seven Senators lmving by their >otes declared and affirmed their opinion to be that said plea of said r. sponllent was true in fact, Mr. EDMUNDS. If by unanimous consent I can say one word, per- and was sufficient in la.w to pre>ent thl' Senate sitting as aforesaiil from taking haps I can relieve the counsel. My objection to the paper was not further cognizance of said articles of impeachment. with a view of rejecting it, but merely of holding it in reserve until Wherefore the respondenta\"er.:~ tlmt he bas already been substantially acquitted the Senate could consider what ought to be done about it. That per- by the Senate sitting as afor~aid; and that be, tl1e said respondent, is not bound further to answer saul articles of impeacllment; the said order roqniring this re- haps may relieve the fear of the counsel that he is not going to have spondent to answer oyer not having been made with tho concurrence of two-thirds it considered. of the said Senat{)rssittin~ as aforesaitlancl voting upon theqneHtionoftbepassage Mr. BLACK. Our offer to file it is, then, to be put on record f of said order; and said orcle1· having been passed with the concurrence only of less The PRESIDENT pro tempore. The Chair will put the question at than two-thirds of the said Senators sitting as aforesaid and voting on the question of making and passing said order, the said order ought not to have been enwred of the proper time. The objection the Chair notes; but the question record aa an order of . aid court of i~eachment in this cause; and said order a.p· will be subject to the vote of the Senate. pearing upon the whole recorcl of said cause to be null and >oid, a.s an order of sa1d Mr. BLACK. I only wish to have it noted now that we offer it. court. The PRESIDENT pro tempore. That has already been stated b:v And the said respondent prays the court now here, as he has before formally moved said court, to vacate said order ; and the said respondent hereby prays said the counsel. Do counsel desire to be heard furtherf ~ court that be may be hence dismissed. .Mr. BLAIR. On what-subject f WILLIAM W. BELKNAP. The PRESIDENT pm tempore. On the pending proposition of the MATT. H. CARPENTER. managers. J. S. BLACK. Mr. BLAIR. Js that a motion in regard to this paper f MONTGOMERY BLAIR. 0! Counsel for said Respondent. The PRESIDENT pro tempore. In regard to the trial. The Secre- The PRESIDENT pro t.entpore. The answer will be filed. tary will report the proposition submitted by Mr. Manager LORD. Mr. EDMUNDS. I do not wi h that answer filed until there shall The Chief Clerk read as follows: be consid~ration of it. I object to its being filed at present. Ordered, That the respondent, W. W. Belknap, shall not beallowecl to make any further plea or answer to the articles of impeachment preferred a;rain. t him on the Mr. Manager LORD. I rose to make tlle same c>bjection that the part of the Honse of Representative , uut that the further proceedings proooed as Senator ba-s made, uut it is now unnecessary. I ask that the order be upon a general plea of not guilty. made which I end to the desk. Mr. BLAIR. I do not understand, may it please the court, that The PRESIDENT pro tempore. The ordor submitted by the man- any such order as that is necessary under the existing ordet· of t.he agers will ue realdthwaite, Gi>ruon, Hamlin. Harvey, Hitch- The PRESIDENT pro tempore. No lmsiness can be transacted until lan, cock, Jones of Florida, ,Jones of l" evada., Kelly Kernan, Logan, McDonald', McMil- Merrimon, Mitchell, Norwood, Patterson, ~gent, Saulsbury, Sharon, Steven- there be a quorum. son, Wallace, West, and Withers-38. Mr. ALLISON. Then the adjournment will be until to-morrow at So the motion was agreed to; and the court adjourned until Mon- twelve o'clock. day, June 19, at twelve o'clock m. The PRESIDENT pro tempore. It will be. T.he Senator from Ver- mont moves that the Senate sitting for the trial of the impeachment do uow adjourn. The motion was agreed to; and (at twelve o'clock and fifty-one minutes p.m.) the Senate sitting for the trial of the impeachment MONDAY, June 19, 1876. atljourned until to-morrow at twelve o'clock m. The PRESIDENT pro tempore having announced the arrival of the hour fixed, the Senate proceeded to the trial of the impeacfunent _of William W. Belknap, late Secretary of War. SATURDAY, June 17, 1876. The usual proclamation wa-s made by the Sergeant-at-Arms. Messrs. LoRD, LYNDE, McMAHOY, JENKS, LAPHAM, and HOAR, of The PRESIDENT pro tempore having announced the nrrival of the the managers, appeared and were conducted to the seats assigned hour fixed, the Senate proceeded to the trial of the impea-chment of them. William W. Belknap, late Secretary of War. The respondent appeared with his counsel, :Mr. Blair. The usual proclamation was made by the Sergeant-at-Arms. The PRESIDENT pro tentpore. The House of Representatives will Messrs. LoRD, LY11.'DE 1 McMAHoY, and JE"NKS, of the managers, be notified as usual. appeared and were conducted to the seats assigned them. The Secretary read the journal of the roceedings of the Senate 172 TRIAL OF WILLIAM W. BELKNAP. sitting for the trial of the impeachment of William W. Belknap on cleared be reconsidered, upon which the yeas and nays have been Saturday last. asked. The PRESIDENT pro telnpore. The Senate is now readY. to proceed Mr. THURMAN. If we have an open sesoion there can be no de- with the trial. The Secretary will report the pending motion. bate unless t.ho rules are sm~pended. The Secretary read as follows: Ml.·. CONKLING. If we a.re consulting it is not so. The rule says • Ordered, That this cause be now continued until some convenient day in the that Sena.,ors may be heard when consultations take place ; but it month of November next. does not say that the galleries must be cleared in case of consultation. Mr. Manager LORD. }Jr. President, in regard to the application Mr. THURMAN. I ask that the rule be read. of the defendant to adjourn the trial to November next, the man- .Mr. CONKLING. This is an open consultation that is proposed. agers have reported to the Honse the proceedings in the court of im- Mr. THURMAN. I have no objection if that is understood; but the peachment on Saturday last; the House has tak~u no action in the rule is as I have stated. I ask that the rule be read. premises; and the managers therefore leave the question of such The Chief Clerk read from Rnle 23, as follows: postponement with the court. All the orders and decisions shall be made and had by yeas and nays, which shal · The PRESIDENT pro tempot·e. The pending question is on the mo- be f'Iitered on the record, and without debate, subject~ however, oo the operation of Rule 6, except whe11 the doors shall be closed for deliberation, and in that case tion submitted by the counsel for the accused. The Secretary will no member shall speak more tluln once on one question and for not more than ten again report the motion. minutes on an interlocurory question, and for not more than fi.ft.een minutes on the The Secretary read as follows : final question, unless by consent of the Senate, to be had without debate; but a motion to adjourn may be decided without the yeas and nays unless they be de. OrdMed, That this cause oo now continued until some convenient day in the manded by one. fifth of the members present. month of NoYember next. The PRESIDENT pro tempore. There cannot be any debate m open Mr. INGALLS. Mr. President, I should like to hear from the man- session unless the rule be suspended. agers upon the question of the power ~f the Senate to sit in trial when Mr. SHERMAN. I think the motion to reconsider had better be the Houie of Representatives is not. in session. withdrawn. Mr. Manager LORD. Perhaps, Mr. President, it will be sufficient Mr. SARGENT. I suggest that the order should be executed. The for the managers to say in that regard that the managers are not doors are neither open uor closed now. They had better bo closed. agreed on that question. Some of us have a very fixed opinion one The PRESIDENT pro tempore. The Senator from Wisconsin has way, and otter managers seem to have as fixed an opinion the other moved to reconsider the vote by which the Senate ordered the gal- way; and not being agreed among ourselves we perhaps ougJlt not leries to be cleared, on which the yeas and nays have been ordered. to discuss the question until we can come to some nareement. The Secretary will call the roll. I will say further, Mr. President and Senators, tbat the question The question being taken by yeas and nays, resulted- eaa 19, nays which is presented by the Senator has not been fully considered by 24·; as follows: the managers; it bas not been very much discussed by them; but it YEAS-Messrs. Alcorn, Booth, Cockrell, Conklin", Dawes, Eaton, Ferry, Hamil. ha-8 been sufficiently discussed to enable us to see that there is this ron, Howe, Johnston, JonM of Florida, Kernan, Norwood, Randolph, Ransom, Wal. difference of a pinion. I think myself that when the question is folly lace, West. Windom, and Withers-L9. NAYS-M s~. Allison; Bogy, Caperton, Ula.:rton, Davis, Edmunds, Frelin~huy. discussed by the managers they will come to a conclusion on the sub- Ren, Ingalls, Kelly, Key, Logan, McCreery, Maxey, Morrill of Maine, Morrill of ject nnanimonsly; but perhaps one differing with me ,might think Vermont, Morton, Paddock, Robertson, Sargent, Sherman, Stevenson, Thurman, we should come unanimouslv to a different conclusion from that which Wadlei~h . and Wright-24. I entertain. I wiJl say for myself that I have no doubt of the power Cameron NOT VOTING-Messrs. Anthony, Barnum, Bayard, Boutwell, Bruco, Burnsido, of Pennsylvania, Cameron of Wisconsin, Christiancy, Conover, Cooper, of this court to sit as a court of impeachment after the adjournment Urn~, Denn~. Dorsey, Goldthwaite, Gordon, Hamlin, Harvey, Hitchcock, Jones of the Coll$!ress. · of Nevada, McDonald, McMillan, Merrimon, Mitchell, Oglesby, Patter on, Sauls- .Mr. SHERMAN. What is the date fixed in the order proposed t bury, ShAron, Spencer, auu Whyte-30 . Mr. Wllea of not guilty: Prwided, The impeachment can only pro Mr. .ALLISON moved to amend by striking out "6th of July" and ceed while Congress 1s in session- in lieu thereof inserting "19th of November." Mr. THURMAN called for the yeas and nays, and they were or- Mr. CHRISTIANCY called for the yeas and nays, and they were. dered; and being taken, resulted-yeas 21, nays 16; as follows: ordered; and being taken, resulted-yeas 9, nays 37; as follows: YEAS-Messrs. Allison, Booth, Clayton, Conkling, Cra¢n, Dawes, Fre1inghny- YEAS-Me srs. Allison~ Christiancy, Clayton, Jones of Nevada, Logan, Morrill sen 'Johnston Kelly, Key, Maxey, Morrill of Maino, Morrill of Vermout, Oglesbr, of Maine, Wadleigh, Winaom, and Wright-9. Paddock, Patterson, Sargent, Sherman, Speneer, Wadleigh, and West--21. NAYS-Messrs. Alcorn, Bogy, Booth, Cockrell, Conkling, Cragin, Davis, Dawes, N AYS-MessrR. Bogy, Caperton, Cbristiancy, Cockrell, Davis, Edmunds, Ferry, Eaton, Edmunds, Ferry, Frelinghuysen, Goldthwaite, Hamilton, Howe, Ingalls, Howe, Kernan, McCreery, Norwood, Randolph, Ransom, Stevenson, TburmRD, lUl(l Johnston, Jones of Florida, Kelly, Kernan, Key, McCreery, Maxey, Morrill of Ver- Windom-16. 174 TRIAL OF WILLIAM W. BELKNAP. NOT VOTING-Mesal'S. Alcorn, Anthony, Barnum, Bayard, Boutwell, Bruce, The Chief Clerk called the following names: Burnside, Cameron of Pennsylvania., Cameron of Wiscon in, Conover, Cooper, E. T. Bartlett responded" present;'' J. S. Evans, no response; Caleb Dennis, Dorsey, Eaton, Goldthwaite, Gordon, Hamilton, Hamlin, Harvey, Hitch- cock, Ingalls, jones of Florida, Jones of Neva!la., Logan, McDonald, McMillan, P. M.a rshresponded present; John I. Fisher, no response; George W. Merrimon, Mitchell, Morton, Robertson, Saulsbury, Sharon, "'Wallace, Whyte, Moss, no response; J. S. Dodge, no response; J. C. Young, no re- Withers, and Wright--36. sponse; W. F. Moody, no response; H. T. Crosby, no response; W. T. So the second clause of Mr. SHERMAN's order, as amended, was Barnard, no response; Leonard Whitney, no response; E. M. Lawton agreecl to. responded present; James R. Roche, no response; W. H. Barnard, no lfr. EDMUNDS submitted the following order; which was consid- response; W. B. Hazen, no respon~:>e; Irwin McDowell responded ered by unanimous consent, and agreed to : present; Whitelaw Rei(l, no response; E. V. Smalley, no re!-~ponse; Ordered, That the Secretary issue tmbpamas that may be applied for by the re- A. R. Spofford, no response; H. F. Vail, no response; Mr. King, no spondent for such witnesses to be slu:nmoned at the expense of the United States response; Joseph A. Kernan, no response; William H. Carr, no re- as shall be allowed by a committee to consist of Senators FRELIXGHUYSEN, Taun· sponse ; A. H. Farmer, no response; Charles N. Vilas, no response ; M.A.:', and CHRISTLL.~CY; and that subprenas for all other witnesses for the respond- ent sha.ll contain the statement that the witnesses therein named are to attend Governor RaJph Lowe, no response. upon the tender on behalf of the respondent of their lawful fees. l\-Ir. Manager LYNDE. 1\Ir. President, we now ask for an order of On motion by 1\Ir. EDMUNDS, the doors were opened. the Senate for an attachment for such witnesses as have been sub- The PRESIDENT pro tempore announced that the Senate sitting poonaed and personally served aud have not presented t.hemsel ves for the trial of the impeachment in close session had agreed to the this morning and whom we have not agreed to notify. If the Senate following orders: will grant this order we ask permission to have the order executed as Ordered., That the paper presented by the defendant on the 16th instant be filed the managers may require: an order allowing ns to issue an attach- in this cause; and the defendant having failed to answer to the merits within ten ment to certain witnesses who have been personally summoned. days allowed by the order of the Senate of the 6th instant, the trial shall proceed The PRESIDENT pro tempore. The manager will reduce his mo- on the 6th of July next as npon a plea of not guilty: Prooided, That the impeach· tion to writing. ment can only proceed while Congres.~ is in session. Mr. CONKLING. May I inquire, without reducing it to writ.ing, Ordered, That the Secretary issue subprena~ that may be applied for by the respondent for such witnesses to be summoned at the expense of the Unit.ed States wh~ther there is an understanding with some of the absentees by as shall be allowed by a commit~e t{) consist of Senators FRRUNGHUYSEN, THUR· which they are to appear when wanted, so that the present motion MAN, and CHRISTI~CY; and that subprenas for all other witnetses for the respond- does not include all those who have failed to answer f ent shall contain the statement that the witne ses therdn named are to attend Mr. Manager LYNDE. There is such an understanding with sev- upon the tender on behalf of the respondent of their lawful fees. eral witnesses who are in the city and who are to be notified before On motion of Mr. HOWE, the Senat~ sitting for the trial of the they are required, and against such we shall ask for no attachment. impeachment adjourned to July 6. Mr. EDMUNDS. You will have to make your list in such a way as to cover the very persons you wish attached. Mr. McMILLAN. Mr. President, is there a proper return of serv- THURSDAY, ,July 6,. 1876. ice of these witnesses by the Sergeant-at-Arms on the record' The PRESIDENT pro tempm·e. There is. The Chair was auout to have the returns read. They will be read if desired. .. The PRESIDENT pro tempore. The hour of twelve o'clock having Mr. FRE~INGHUYSEN and others .. It is not necessary. arrived, pursuant to the order of the Sena made on Jnne 19, the ltl Mr. MITCHELL. I offer the followrng order-- legislative and executive business of the Senate will be suspended, and "' The PR~SIDENT pro tempore. The Secretary will report the order. the Senate will proceed to the consideration of the articles of im- The Ch1ef Clerk read as follows : peachment exhibited by the House of Representatives against Will- Ord~rerl, That attachments issue for all witnesses regula.rly sub:prenaed on the iam W. Belknap, late Secretary of War. :part of the prosecution who have not answered to the roll-call and Wlth whom there The usual proclamation was made b,Y the Sergeant-at-Arms. Is no understanding that they are to ·be notified by the managers when required to be present. :Messrs. LoRD, LYNDE, McMAHON, JENKS, LAPHAM, and HoAR, of the managers on the part of the Honse of Representatives, appeared, The PRESIDENT pro tentpore. Is t.he Senate ready for the question 1 and were conducted to the seats assigned them. Mr. CONKLING. I move to amend the order by inserting the The respondent appeared with his counsel, Messrs. Blair, Black, and names of such witnesses as are described. It is not in order for me to Carpenter. debate, but I think the a.mendment will snfficie:mtly indicate the ob- The PRESIDENT pro tempore. The Secretary will notify the House jection, and the Senator from Oregon may accept it. of Representatives that the Senat.e is ready to proceed with the trial Mr. MITCHELL. I accept the amendment. and that seats are provided for their accommodation. The PRESIDENT pro tempm·e. The question is on the order, as The Secretary read the journal of proceedings of the Senate sitting amended. for the trial of the impeachment of William W. Belknap of Monday, Mr. EDMUNDS. Let us hear the names read. June 19, 1876. The PRESIDENT p1·o tempore. The names will be read. The PRESIDENT pro tempore. The Senate in trial is now ready to l\1r.l\1anager LYNDE. We are not prepared to furnish all the proceed. The Secretary will read the order passed by the Senate on names at this time. The list ~bows the absentees, but we cannot the 19th of June. state to the Senate at this time just the persons to whom leave has s T11l. e ecretary read as f 011ows : been given to be absent this morning. Mr. EDMUNDS. I move to postpone the fnrther consideration of Ordered, That the paper presentell by the defendant on the 16th inst:mt be filed d b · ted b f · d th t'l to th t th in this cause; and the defendant having failed to answer to the merits within ten the or er su rrut Y my nen ' en, un I -morrow, so a e days allowed by the order of the Senate of the 6th instant the trial shall proceed mana()'ers can supply the names, if they are not ready to do so now. on the 6th of July next as upon a plea of not guilty: Provided, That the imp~ch- Th:PRESIDENT pro tentpore. Is there objection to the postpone- ment can only proceed while Congress is in session. ment of the order submitted by the Senator from Oregon 7 The PRESIDENT pro .tempore. The Senate is now ready to proceed Mr. CONKLING. I want to make an inquiry before I omit to oh- with the trial. The Senate will now hear the managers. ject to it. I want to know whether it be true that the managers can- Mr. Manager LYNDE. · Mr. President, befote opening we should not specify the names of any witnesses whose attendance they want like to know if om witnesses are present, and we therefore ask that to-day. If so, I submit if it is in order it is enough to attach those the list of witnesses on behalf of the Government shall be called. witnesses now, and the others, whose names they may not be able to Tbe ~RESIDENT 11ro tempore. If there be no objection, the Secre- present until to-morrow, can be attached when that day comes; but tary Will read the return of the officer to whom the subpama.s were I do not want to lose this day by the absence o£ witnesses, and I directed. should like to know whether there are witne es in the city who can Mr. Manager LYNDE. Mr. President, we ask that the list be read, be brought here in response to an immediat.e summons or orde1· of at- and that the witnesses may answer to their names if they are present, tachment. so that we may a.qcertain whether they are present. We simply ask Mr. EDMl.ThTDS. I wish to ask the managers, if I may do so with- that their names be called. out submitting it in writing, whether they have any witnesses in at- The PRESIDENT pro tempore. If there be no objection the Secre- tendance to proceed with to-day f tary will call the names of the witnesses who have been summoned Mr. Manfl.gerLYNDE. We have all the witnesses that will beneces- to attend on this trial. The witnesses present will answer in audible sary for the purpose of the trial to-day. tone so that the Secretary may note who are present and who are ab- Mr. EDMUNDS. So understanding, Mr. President, I think my roo- sent. The Secretary will call the names. tion is correct. Mr. CONKLING. If it be not out of order I inquire of the Chair Mr. CONKLING. I make no objection if it does not postpone the whether any place has been assigned to the witnesses, or any order trial. given admitting them to the floor or any other position sufficiently The PRESIDENT pro tempore. The Senator from Vermont moves near to enable them to answer when their names are called! the postponement of the order submitted by the Senator from Oregon ThePRESIDENTp1·o t~mpore. The Chair has directed the Ser- [Mr.MITCHELL]nntilto-morrow. IsthereobjectionT TbeChairhears gAaut-at-Arms to admit u,ll t.hc witnesses on the floor of the Senate. no objection; and it is so postponed. The Chair understands that several are present. For the purpose of Mr. CARPENTER. I notice on the list of witnesses read by the convenience the Chair will state to the witnesses who are present prosecution here this morning the names of nine witnesses not on the that they will rise when responding to thell' names that they may be list furnished to us. I should like to know what is tho explanation seen as well as heard. The Secretary will proceed to call the names of that. of the witnesses. Mr. Manager LYNDE. We answer the question by stating that we '\ .. t TRIAL OF WILLIAM W. BELKNAP. 175 found their materiality after the list was made out which wa-s pre- Mr. SHERMAN. Yes; I respectfully objected to the discussion of sented to the counsel on the other side. The order of the Senate was a question already decided upon the record, and asked that the order that we should give to the counsel on the other side a list of the ·wit- of the Senate that the case be proceeded to trial be executerl. nesses who we knew a.t that time would be material, a.ud whom we Mr. HOWE. If the object.i on was presented in the shape of a ques- expected to use in this trial. tion of orrler, I think it ought to be settled . .Mr. CARPENTER. Then furn~shing the names of two or three The PRESIDENT pro tempore. The Chair understands that the would have answered the orrler, and the rest could have been put in Senator from Ohio raised the point that the managers should not pro- sub equently. I supposed, Mr. President, that the order meant some- ceed in discussing the question to which be has referred. The man- thing, that it meant the witnesses whose names were not furnished ager then waived further discussion, so that the Chair did not put to us before the trial were not to be called and used against us. the question. Otherwise the Chair would have put to the Senate Mr. CONKLING. How many unfurnished witnesses are there f the question whether the mana~er should be allowecl to continue. Mr. CARPENTER. Nine; and some names we did not catch, so as He will now put the question, it desired," Shall the manager con- to be able to make the comparison. tinue the discussion on the point raised by the Senator from Ohio Y" Mr. Manager LYNDE. Mr. President and Senators-- Mr. SHERMAN. Unless the manager desires to continue that dis- Mr. CARPENTER. If the counsel will permit me a moment, I will cussion, I will not press it. state an additional fact which I havejnstlearnedfrom the Sergeant- The PRESIDENT pro tempore. The manager stated that he did not at-Arms, that he has not subpcenaed either one of those nine and desire to continue the cliscussion, but would go on with the pending never heard of them before. question, as the Chair understood. If so, the Chair will not put the Mr. Manager LYNDE. Those witnesses have been snbpcenaed to question to the Senate. appear before the managers then. Of course we should not ask for Mr. CARPENTER. And it will not be considered as settled at all attachments as against any witnesses who have not been subpcenaed by what has taken place this morning! by the Sergeant-at-Arms to attend at this trial. The PRESIDENT pro tempore. The Chair does not understand that Mr. President and Senators, I feel it is neceBRary for me, before anything has been settled by the Senate except this order which has stating to the Senate the facts that we expect to prove in this been read. case, to ask the indulgence of the Senate for a few moments upon Mr. Manager LYNDE. Mr. President and Senators, in con idering the paper which was filed by the counsel in behalf of the accused at this case and in opening this case to the Senate I shall take the lib- the last sitting of the court. I deem it necessary because of the bear- erty of giving in a few words, and occupying as little time as possi- ing and influence which this paper may have in the trial of this cause. ble, something of the history of the sutlers' service in this countl·y. I can see no purpose or object in the filing of this paper, unless it was The service of post-traders differs in some respects from the sutlers' to influence the hearing and the final decision of the cause. I there· service. The sutler is recognized as an officer of the Army of the fore ask to be heard for a few moments upon some of the allegations United States in our laws establishing the Articles of War and the in this paper. The second clause of this paper reads: rules and regulations of the Army, and has been an officer from the Therefore the said Belknap, referring to the Constitution of the United States, very foundation of our Government until the year 1866 when the article 1, section 3, clause 6, which provides that "no person shall be convicted with- office was abolished. out the concurrence of two-thirds of the members present," (meaning on trial on At the Continental Congress sitting September 20, 1776, articles were impeachment,) avers that his"said plea has not been overruled or held for naught adopted for the better government of the troops of the United States by the Senate sitting as aforesaid, no snch judgment having been concurred in by two-thirds of the Senators sitting in said court and >oting thereon; but on the con- which contain clauses in regard to antlers similar to the clauses that trary thereof, as the vote aforesaid fully shows, the said plea of the said respondent were afterward arlopted in the Articles of War of 1806 and have been waa sustained, and its truth in fact and sufficiency in law duly affirmed by the said continued down to the year 1866, carefully providing against extor- Senate sitting as aforesaid, more than one-third of the Senators of said Senate, sit- tion on the part of sutlers, or extortion on the part of the officers as ting as aforesaid, having by their votes so declared, to wit, twenty-seven Senators as :iforesaid, and said twenty-seven Senators having by the.ir votes declared and af- against the sutlers, and requiring- firmed their opinion to be that said plea of said respondent was true in fact and wa.s That officers commanding in forts, barracks. or garrisons of the United States sufficient in law to prevent the Senate sitting as aforesaid from taking further cog- are hereby required to see that persons permitted to sutle shall supply the soldiers nizance JJf said articles of impeachment. with good and wholesome provisions at the market price, as they shall be answer- Wherefore the respondent avers that he has already been substantially acquitted able for their neglect. by the Senate sitting as aforesaid. This rule is of course familiar to every gentleman who has been in Senators, we supposed that this question of jurisdiction had been the military service of the United States. Care has been taken from finally and definitely settled; that it wa-s res adjudicata,· that it could the very foundation of our Government that the soldier should be not again be raised in the trial of this cause withont an application protected against the extortion of the sutler and those who are per- for a rehearing upon that question. It is a rule in all legislative mitted to supply them with provisions and other articles in that serv- bodies, in all courts, that questions are decided by a majorit-y vote, ice. In 1866 the twenty-fifth section of the act of Congress approved except where some provision of the Constitution, some statute law, July 28 provides: or some rule of the court requires a larger or a different vote to decide SEc. 25. And be it further enacted. That the office of sutler in the Army and at the question. It is evident from this plea that the question of juris- military posts is hereby abolished, and the Subsistence Department is hereby author- diction was decided by a majority of the Senate. The clause of the by the ized and required to fumish such articles as may from time to time be designated inspectors-general of tho Army, the same to be sold to officers and enlisted Constitution which is stated in this plea is that" no person shall be men at cost prices, and if not pahl for when purchased, a true account thereof shall convicted without the concurrence of two-thirds of the members be kept, and the amount due the Government shall be deducted by the paymaster present." Is it contended by any one that a decision of the question at the pavment next following such purchase: Provided, That this section shall not of jurisdiction, let it be decided as it may, determines the question of go into effect until the 1st day of Julv, 1867. conviction T Have the Senate, by overruling the plea of the defend- Under that law, under date of May 24, 1867, the following general ant, already convicted the accused f Would he stand convicted if order was issued from the War Department: that vote had been a two-thirds vote f Should we be spared the trial HEADQUARTERS OF THE ARMY, that we are now about to enter upon by a mere decision of the Senate, ADJUT.A>.~-GENERAL'S OFFICE, by a two-thirds vote, that the Senate had jurisdiction and had a right Washington, May 24, 1567. to try this cause T And yet, if it be true that where more than one- General Orders No. 58.1 So much of Pai'a.oaraph IT, General Orders No.6, dated War Department, January third vote against the jurisdiction of the court it virtually amounts 26, 1867, as is inconsistent with the following is, by direction of the Secretary of War, to 'an acquittal, then it must follow that if two-thirds had voted in revoked: favor of the jurisdiction it would amount to conviction, and no fur- I will read :first t.he order of the 26th of January, 1867: ther trial would be necessary. Mr. SHERMAN. Mr. President, I respectfully object to a discus- fix the I. Section 25 of the act approved July 28, 1866, entitled "An act to increase and military peace establishment of the United States," enaets: "That the office sion of the question now being discussed by the managers, it having of sutler in the Army and at military posts is hereby abolished." already been decided by the Senate. I should like the question to be submitted to the Senate as to whether the point now under discus- Reciting the act : sion can be discussed at this time. The order is that we shall proceed IT. In accordance with the pro"risions of this act the warrants of all sutlers to to the trial of this case. the Army will terminate July 1, 1867, and after that date no sutler will be allowed, uncler any circrunstances, to keep or sell goods of any description within the limits Mr. Manager LYNDE. Mr. President, if I can be heard npon the of any military post, campi or station, or on any military reserve. Commanding question raised by the Senator, I will state that I am not discussing officers are made responsib e for the strict execution of this order. this question for the purpose of getting any further action of the Sen- By order of the Secretary of War: E. D. TOWNSEND, ate upon it at this time. There has been introduced here a paper by .Assistant Adjutant-General. the counsel on the other side, and I am merely discussing it for the purpose of showing that in the consideration of this case, and of the On the 15th of April, 1867, the following resolution of Congress was evidence which will be submitted, that question has already been published for the inform·a tion and government of all concerned: definitely decided by the Senate and is binding upon every Senator Resolved by the &nate and House of Representatives of the United. States of America and tht:S parties in the cause. But I do not care, Mr. President, to in Oonnress assembled, That the Commanding Gent>ral of the Army shall lJe au- thorized to permit a trading establishment to be maintained, after the 1st day of dwell upon this question. I will 1 therefore, leavejt for the purpose July, 1867, at any military post on the frontier not in the vicinity of any city or of considering the points which we shall make on the trial of this town, and situated at any point between the one hundredth meridian of longitude cause. west from Greenwich antl the eastern boundary of the State of California, when, in Mr. HOWE. May I ask, for information, if a question of order was his judgment\ such establishment is needed for the accommodation of emigrants, freighters, and other citizens: Provided, That after the Commissary Department made on the managers on the part of the House of Representatives shall be prepared to supply stores to sollliers a-s required by law, no trailer permit- hs the Senrtor from Ohio T ted to remam at such post shall sell ~y goods kept by the Commissary Department 176 TRIAL OF WILLIAM W. BELKNAP. to any enlisted men : And provided further, That such traders shall be under pro- the act had passed Congress and received the approval of the Presi- tection and military control as camp-followers. dent. But it was received at tbe.Departmenton the 25th July, 18i0, Approved March 30, 1867. which is ten days after the act had been approved by the President On the 24th of May the following order was issued: authorizing the Secretary of \Var to make the appointment of post- So much of pamgraph II, General Orders No.6, dated War Department, January traders. For some reason, which 1 am not able t_o show, this was fol- 26, 1867, as is inconsistent with the following is, by direction of the Secretary of lowed by anot.her recommendation signed by all or most of the offi- War, revoked. . cers at Fort Sill, with an indorsement from General Grierson, recom- The Commillsary-General of Subsistence having reported that no special appro- priation has been made by Congre s to enable the Subsistence Department to carry mending JohnS. Evans as post-trader. It would seem prol'able that mto effect section 25 of the act of Congress approved July 28,1866, which abolishes the objection to the first recommendation WaB that it recommended a the office of sutler, and requires said Department to furnish for sale to officers and firm, or two persons constituting a firm, and that this subsequent rec- 80ldiers such articles (heretofore supplied by sutlers) as may be designated by the ommendation was made for the purpose of obviating that difficulty. Inspector-General of the Army; and in view of the large expenditure of funds necessary to furnish such supplies and the delay which must ensue before an appro- Mr. Evans sends these recommendations with his own application for priation can be made for this purpose, it is ordered til at the sutlers at military posts the appointment under date of "Philadelphia, August 18, 1870." The on the frontier not in the vicini~y of any city or town, and situated between the Secretary, then, in August, as it would appear by these letters, lla.d one hundredth meridian of longitude west from Green which and the eastern bound- before him the recommendation of th6ofticers at Fort Sill with an in- ary of the State of California, shall, after the 1st of July, 1867, be ret.'l.ined until further orders 38 traders at such military posh~, under the resolution of Congress dorsement of the comm&.nding officer, General Grierson, and also, aB approved March 30, 1867, authorizing the Commanding General of the Army to per- it would appear from the date of the letter, the application of Mr. mit trader-s t.o remain at certain military posts. Marsh for this appointment of post-trader. Should the commanding officer of any post included in this order consider the Now we may not be able t.o prove, and it is probable that Mr. Marsh present sutler of his post an unfit person to bold the office of trader, he will for- ward a report to that effect, through the intermediate commanders, to these head- in giving his testimony will swear that his application was not made quarters. until the latter part of September or the 1st of October for that posi- By command of General Grant: tion. Here stands the contradiction between the date of his applica- E. D. TOWNSE~'l), Assistant Adjutant-G&neral. tion as the letter appears upon the file of the Department and the testimony which he will give as to when the application was made; This waa the order which was made iu carrying out the resolution and in conl'!idering that testimony I would call the attention of the of Congress passed in 1867 . . On the 30th of May, 1867, the following Senate to the fact that the letter from Mr. Marsh purporting to be o1·der was issued from the Department: wt·itten on the 16th of August has no indorsement of its receipt at Whereas it appears from a report of the Commis~ary-General of Subsistence, the War Department ; that the letter of recommendation from the that to carry out the provisions of section 25 of the act approved .July 28. 1866, en- officers at Fort Sill recommending Mr. Evans and Mr. Fisher was re- titled ''An act to incre38e and fix the military peace establishment of the United States, u which section requires the Subsistence Department to furnish certain arti- ceived at the Department July 25, 1870; that his subsequent letter cles hitherto sold by sutlers at military post..~ will involve the immedi.a.t~ outJay of bearin~ date the 18th of August is indorsed as having been received a large amount of subsistence funds for which no return can be realiz~d for many at the Department at ·washington on the 23d of September, 1870. months; I wish to call the attention of the Senate for a few moments to And whereas no appropriation of fonds has been manrfee, now trading at tho same place under like authority, and our investments at F01t the War Department: Sill combined agwe~ato a sum exceeding $125,000. The intent of General Orders No. 68, of July 19, 1867, is to enable department In view, then, of the interests that we have at stake and of tbe vital importance commanders, if they deem it advisable, to permit the formation of settlements on of retainin~ the protection heretofore enjoyed-because if tho sumo shall be with- the military reservations therein designated, by giving unlimited permission to drawn, anu in the e~ent of our being thrown out of tho privileges and protection traders to open establishments thereon. They may, therefore, at their discretion, we now have, our property would become almost valueless-! most respectfully restrict the number of traders to one, ot· to any greater number. In all cases, how- solicit an appointment for Mr. Durfee and myself to continue trading at saiiJ. m.ill- ever, when permission to trnde is gi"\"en, a written agreement, containing proper tary post as a firm, undor tho style of Evans & Durfee, under such regulations and stipulations, must be taken from the trader ; and explicit provisions must be made restnctions as may in futuro govern traders. therein that no right or title, expressed or implied. to ownership or permanent occu- Craving indulgence for thus trespassing on your time and patience, which noth- pation, is given to any part of the military reservation by the permission to trade ing but threatened injury would have induced. thereon. By command of General Grant : The application was received at the War Department on the 23d of E. D. TOWNSEND, September, 1870. No appointment was made for that post until the Assistant Adjutant-General. lOth of October thereafter. The officers at Fort Sill joined in the This was the condition of the law and the orders which had been recommendation that Mr. Evans should be appointed to that position. issued from the \Var Department _a t the time that William W. Bel- Mr. Marsh in his application, which bears date the 16th of August, knap was appointed Secretary of War. His appointment dates, I sayH: think, the 13th of October, 1869. On the 15th of July, of the year No. 51 WEST THIRTY-FJFrH STREET, Tuaday, 16th August, 1870. 1870, in the Army appropriation bill, section 2'2, Congress ena{Jted: Genl. w. w. BELKNAP. That from and after the passage of this act the Secretary of War be, and he is MY DEAR SIR: You will remember my application to yon in Washington a lew hereby, authorize<\ to permit one or more trading establishments to be maintained days since for an Indian tradership. FOllowing yo or suggestion I wrote to a friend at any military post on the frontier not in the vicinity of any city or town, when, in Kansas, and yesterday received a reply. My friennVIlege of the pay table. prived of thn,t post-tradership, the investments that he had made T~ey will be permitted to ereot .b?fidings for ~he purpose of carrying on their the amount of capital which he had employed, the buildings and im~ b~ess, upon such part of the military reservation or post to which they ma.v be ass1~ed as the commanding officer may direct. Such buildings to be within 'con· provements which he had put up, and the importance therefore of vement r~h of the garrison. the appointment to him. ' ' ~hey will be allow:oo the exclusive privilege of trade upon military reserves to Mr. Marsh comes to ~ashington. He is a merchant in the city of which they are appomted, and no other person will be allowed to traO t "for the convenience of emigrants, freighters, and other terested only in his own house, and that they be obliged to keep such articles as citizens." The section was plausibly worded and passed without objection. Un· are required for the use of officers and enlisted men of the Army, and to sell them. der it the Secretary appoints uut one trader at ea{lh post, and refuses to appoint at moderate prices. more so that f. his sin ale trailer having a monopoly of all the business, plunders The trader complies with circular of A. G. 0. issued June 7, 1871, as far~ I am the officers and men bv charging' them outrageous prices. There is no escape from aware. The bnilding~ (store, &c.) however, are not convenient to the present garrison, his rapacity, because the officers hav~ no control ove; ~.as they had over th.e snt. 1 bavinl! been built at the time wheri the command was in camp. ler. There is good authority for stating that traders pnvileges are systematically Very respectfully, your obedient servan~ farmed out by those who obtain them from theW~ Department. The Secretary B. H. GRIERSON, is notcbargeo with being cognizant of these practices, and prob.ably ha~ not. been Colonel Tenth Oavalry, Oommanding. informed oi them. One of the mos~outragoous ca .es of tl!e ~d 1~ descnbed m the followinuletter from an officer stationed at Fort 81~, Ind1an Terntory: . Received in the office of the Adjutant-General March 9, 1872. "I ha're incidentally learned that yon have a desue to know whether a bonus IS required from the traders here, for the privilege of trading, and have been urged [Indorsement.] to write yon the facts in the case. As there seem~ to ~e no secret made of ~he WAR DEPARTMENT, A. G. 0., March 11, 1872. matter and as in common with all others here, I feel1t to be a great wrong, I think Respectfully forwarded to the Secretary of War, with application of C. P. Marsll you will readily excuse the presumption which my writing unasked by yon might mdica.te. I have read the contract between J. S. Evans, a Fort Sill trader, and C. for tradership at Fort Sill. E. D. TOWNSEND, · P. or C. E. Marsh, of 1867 or 1870, Broadway, New York, office of Herter Brothers, whereby J. S. Evans is required to pay said C. P. or C. E. Marsh the sum of 12,000 .Adjutant-General. per year, quarterly in advance, for the exclusive privilege of trading on this mill· tary reservation. I am correctly informed that said sum has been paid since Why was the application of C. P. Marsh returned to the Secretary soon after the new law went in force, and is now paid, to include some time in Feb· of War with this letterf The application of C. P. Marsh was made ruary next. This is not an isolated case. I am informed by officers who were sta. at the time Mr. Evans was first appointed, in October, 1870. The tioned at Camp Supply that Lee & Reynolds paid 10,000 outright for the same exclu· letter from General Grierson showing to the Department the abuses sive privilege there. Other cases are talked of, but not corroborated to me; sufficient to sfat.e, the tax here amounts to ne.'\r $40 per selling day, which must nece sarily existing at that post was received in March, 1872. It seems that at be paid almost entirely by the comma.ud, and you can readily see that prices of the time the attention of the Secretary of War was called to these such goods as we are compelled to buy must be grievously augmented thereby. It abuses the application of C. P. Marsh was again sent up, in order that not being a revenue for the Government and Mr. Marsh being an entire stranger if there should be a new appointment made at that post it might still to every one at the post, it is felt by every one informed of the-facts to be, as I said before, a very great wrong.)' be in the control of this same C. P. Marsh, and these extra-ordinary Mr. Manager LYNDE. We shall show that this article in the Trib- profits which were realized from that post not lost to the parties in un.e was seen by the Secretary of War or that at any rate he con- interest. versed with Mr. Marsh and I think with others in regard to this On the 22d of March, 1872, about a. month after this letter was article. It evidently created some alarm in the mind of the Secre- written by the Secretary of War to the commandant at the post, Geu- tary, and on the next day-for that article was in the number of the eral Hazen was summoned before the Committee on Military Affairs Tribune of the 16th of February-the Secretary writes the following: of the House of Representatives and gave his testimony, setting forth and stating the abuses which existed at the post-trading establish- W A.l~ DEPARTMENT, ment at Fort Sill. In that testimony, however, General Hazen does WMhington City, FebruaT'IJ 17, 1872. The commanding officer at Fort Sill will report at once, directly to the Adjutant. not seem to be as fully informed as was the correspondent of the Tri- General of the .A.rmy, for the information of the Secretary of War, as to the busi- bune of the loth of February in regard to who the post-trader really ness character a.nd standing of J. S. Evans, post;. trader at that post; whether hls wa-s. General Hazen in his testimony seems to be of the impression, prices for ~oods are exorbitant and unreasonable, or whether his goods are sold at and so states, that Mr. Marsh, of New York, was appointed the post- a fair profit; whether the prices charged now and since his appointment to that trader, and that he had farmed out the post to Mr. Evans, who was position by the Secretary of War, under the act of July 15, 1870, arc higher than those charged by him prior to that appointment, when he was trader nuder pre- discharging the duties of post-trader and paying for the benefits to vious appomtment; whether he has taken advantage of the fact that he is sole be derived from it to Mr. .Marsh directly. This testimony, which was trader at that post to Op]Jress purchasers by exorbit{\Ilt prices; whether he charges given before the Committee on Military Affairs of the House on the higher prices to enlisted men than to officers; and whether ho has complied with 22d of March, seems to have attracted the attention of the Secretary the requirements of the circular of the Adjutant-General's Office issued June 7, of War, and on the 25th of March, three days after the testimony was 1871. The commanding officer ia expected to make as full and as wompt report as is given, we :find the following circular issued from the War Depart- possible. ment, which would seem to a person who was really cognizant of all W.W.B. the facts to be intended to meet the real difficulties existing at Fort .Also similar letter to commanding officer at Camp Supply in regard to the post. Sill, while it did not meet them at all. This circular is: tro.der there, A. E. Reynolds. The foregoing instructions were communicated to the commanding office~ of [Circular.] Fort Sill and Camp Supply, Indian Territory, by the Adjut{\Ilt;.General in letters WAR DEPARTMENT, dated February 19, 1872. Wo.ahington City, March 25, 1872. Now I wish to call the attention of the Senate to the reply which L The cou:acil of administration ~tt a post where there is a post·trader will.. from .was received from General Grierson, the commanding officer at Fort time to time, examine the po t;.trader's goods and invoices or bills of sale; and will, Sill, in response to this inquiry from the Secretary of War. subject to the approval of the post commander, establish the rates and prices (which should be fair and reasonable) at which the goods shall be sold. A copy of tho list HEADQUARTERS, FORT SILL, INDIAN TERRITORY, thus established will be kept posted in the trader's store. Should the post;. trader February 28, 1872. feel himself aggrieved by the action of the council of administration, be may ap. ADJUT.ANT·GENERAL, UNITED STATES .A.IDrr, peal therefrom, through the post commander, to the War Department. washington, D. a. Sm: I have the honor to Mknowled_ge the receipt of your letter dated February This is an adoption of the old rule to some extent, and so far so 17 1872, .relative to the post-trader at this post. good. i: understand J. S. Evans'£>. character as a buainess man is good, and he has here- II. In determining the rate of profit to be allowed tho council will consider not tofore given general satisfaction; but Mr. Evans is absent, antl has been for some only the prime cost~ frei~ht, and other charges, bntaJ.so thefa.Ct that while the trader months, and has associated with him J. J. Fisher, now also absent, who has had pays no t.ax or contribution of any kind to the post fund for his exclnsive privilen-es control of the establishment and who claims to have the greater pecuniary interest he has no lien on the soldiers' pay, and is without the security in this respect o~ce in the business, (the business being conducted, however, under the name of J. S. enjoyed by the :mtlers of the .A.rmy. Evans.) Repeated complaints have been made to mo of tho exorbitant prices at which goods were sold by them, and when I have represented the matter to the firm. "Once enjoyed," but not enjoyed for several years previous to the they replied that they were obliged to pay $1.2,000 yearly (to a Mr. .Marsh, of New abolition of that office. York City, who they represent was first appointed post;.trader by the Secretary of War) for their permit to trade, and necessaiily had to charge high prices for their IlL Post-traders will actually carry on the business themselve - goods on that account. I have repeatedly urged them to represent this matter in Mr. Evans, it appears by the report of General Grierson~ was him- writing to me, in order that I might lay the matter before the proper authority to relieve the command of this burden, upon whom it evidently falls; but they de- self absent frequently from the post; but Mr. Evans after all con- clined to do so, stating that they feared their permit to trade would be taken from sidered himself a resident at the post- them. Post-traders will actually carry on the business themselves, and will habitually As the prices could not be regulated by a council of administration, the trader reside at tho station to which they aro appointed. They will not farm out, sublet, not being a sutler, it has been contemplated by some of the officers of the garrison transfer, sell, or assign the business to others. to represent this matter, without reference to J. S. Evans, through the proper mil· itary channels, but as it was claimed that the authority for the tradership eman- Not one word in that order reaches the payment which Evans was ated from the Secretary of War it was feared that that course might be construed making to Marsh. It merely prohibits the post-trader from farming as taking exception to the action of superior authority. Th~ prices are considerably higher since his appointment by the Secretary of out, subletting, transferring, selling, or assigning the business to War than previously, and he 'bas undoubtedly taken advantage of his position as others. Evans was the post-trader; he had been appointed by the sole trader in charging these exorbitant prices, giving the reasons above quot.ed, Secretary of War post-tr::tder; and he was paying by coutra.ct to stating that he could uot, under the circumstances, sell goods at lower prices. Marsh, the friend of the Secretary, $12,000 a year for the appoint- It has also been reported to me that ho charges enlisted men greater prices for the same articles than he doe.s officers, and, at all events, it is very evident that ment which he held and the privileges he enjoyed. the officers and men of this ganison have to pay most of the 12,000 yearly, re- IV. In case there shall be at this time any post-trader who is a non-resident of ferred to above, they being the consumers of the largest portion of the stores. the post to which he has been appointed, he will be allowed ninety dJI,ys from the ._ TRIAL OF WILLIAM W. BELKNAP. 179 receipt hereof at his station to comply with this circular or vacate his appoint- was given to a man who had no intention and no purpose of . going . m~~ . V. Post-commanders are hereby (lirected to report to the War Department any from New York City to an Indian tra-ding post or a post in an Indian failure on the part of traders to fulfill the requirements of tJJis circular. territory for the purpose of supervising or transacting the business ; VI. The provisions of the circular from the Alljutant;.General's Office of June all of these fads, known to the Secretary of War and his particular 7, 1871, will continue in force except as herein modified. friend C. P. Marsh and used by him to extort from the post-trader This order issued by the Secretary of War gave alarm to the post- who received the appointment this enormous sum, must convince trader at Fort Sill. He found that the attention of the public was every rea-sonable man that the Secretary of War was a particeps ari·nt- called to the abuses existing there. He immediately commenced a inis in_,_the whole transaction. . negotiation with Mr. Marsh to reduce the amount which he had been Senators, I have occupied now mor~ time than I intended when I pRying, and finally completed an arrangement by which he was to first arose. . I have felt at liberty to read to you the orders that were p::y thereafter the sum of $6,000 a year instead of $12,000. issued by the War Department, in order that you might be familiar I have given a history of this transaction principally from the with the condiiion of aifairs at the time :Mr. Belknap took charge of documents on file in the Office of the Secretary of W n.r. I have shown that Department, that you might be acquainted with the orders and the history of this appointment, the orders which were issued all the regulations existing at the time that this post-trader was ap- favoring, and especiaJly favoring, the post-trader at this position, pointed; that you might know that the whole matter rested with the giving him opportunities and facilities such as no sutler in the Army Secretary of War; that he at any time could have adopted rules and ever had to extort money and make profits from his trade. I now regulations to protect the soldiocs at that post, to prevent extortion, call the attention of the Senate to the real operating causes, as we rules which as a mockery he did adopt on the 25th of March, 1873, believe, for this indulgence and for this abuse. after the public attention had been called to these abuses. After a.l l, This appointment having been made on the lOth day of October, I say as a mockery, because it did not reach the real evil; because this 1870, and Evans having promised and entered into a contract thnt he post-trader wa.s not farming out his office, but was paying an out- would pay Mr. Marsh 12,000 a year, quarterly in advance, with a sider for his influence with the Secretary of War. stipulation consenting that the first payment should be delayed for Senators, I have presented to you a statement of the proofs which a time, we find on the 1st day of ~ovember thereafter, a little more we shall introduce to sustain this impeachment. There will be some than twenty days from the time the nppointme~t is made, an express facts brought out in the course of the trial which I have failed to men- package sent by Mr. Marsh toW. W. Belknap, in the city of Wash- tion ; but I have endeavored to present the principal ones. I do not ington, containing 1,500, delivered to Mr. Belknap by the express feel that it is necessary to say anything upon the law if these fa-cts company in this city, receipted for by Mr. Belknap in his own baud- shall be proven. You all know the magnitude of the crime ; you all writing. We find on the 17th day Of January thereafter another know the shock which its exposure has given to the American peo- package of $1,500, just one-half of the quarterly payment, sent by ple; you know the disgra-ce which it has brought upon our Govw_n - express from New York City by Mr. Marsh toW. W. Belknap, re- D1Ant, and it remains with you to vindicate the national character and ceived by Mr. Belknap here; and, if my recollection serves me right, show to the world that our Republic requires official integrity in it was also receipted by him personally. On the 18th day of April, high official position. - 1871~ another package of 1,500 was sent by express by Mr. Marsh to Mr. CARPENTER. Mr. President, before the manager takes his Mr. Belknap, anceeding which may then be pending. or may by law or November 9, 1874. As to these certificates of deposit, an effort was as under the Constitution be brought before him in his official capacity, or m his place member of Con:n-ess, shall be deemed ~ty of a misdemeanor, and shall made to conceal and to prevent any trace of them from Mr. Marsh to be such imprisonecl not :tnoro than two years an!l fined not more than $10,000. And any Mr. Belknap, for they were always given and made payable to Mr. such contract or agreement may, at the option of the President, btl declared abso- Marsh himself, never to Mr. Belknap. It is true that Mr. Marsh sub- lutely null and void ; and ·any member of Congress or officer convicted of a viola- tion of this section shall, moreover, be ilisqualified from holding any office of honor, sequently indorsed these certificates of deposit to Mr. Belknap, and profit, or trust under the Gi>vernment of the United States. thereby we are enabled to trace them through his hand. SEc. 5501. Every officer of the Fn.ited States, and every person acting for or on T.b.e other payments mentioned in the specifications were made to behalf of the United States, in any official capacity under or by virtue of the au- Mr. Belknap in person. The payment of July 25, 1871, was received thority of any· department or office of the Gi>vernment thereof; and every officer by Mr. Belknap in New York City; the payment of June 13, 1872, or person acting for or on behalf of either House of Congress, or of any committee of either Hon.Se, or of both Houses thereof, who asks, accepts, or receives any was the same; the payment of November 2"2, 1872, the same. At the money, or any contract, promise, undertaking, obligation, gratuity, or security for payment of April28, 1873, Mr. Belknap was in Texas, and we shall the payment of money, or for the delivery or conveyance of anything of value, not attempt to sustain that specification by evidence. That is the with intent to have his decision or action on any question, matter, cause, or :pro- ninth specification of the fourth article. The payment of June 16, him ceeding which may a.t any time be pending, or which may be by law brou<>bt before in his official capacity, or in his place of trust or profit, influenced' thereby, US73, wa.s made to Mr. Belknap in New York. As to the payment of shall be punished as prescribed in the preceding section. (See § 5451.) the 22d of January, 1874, we shall not attempt to sustain that charge, which is the twelfth specification of the fourth article. As at present Mr. Manager McMAHON. The managers are ready to submit the advised in regard to the evidence which we have, I make this state- testimony now, and to have such witnesses sworn as are here pres- ment; but if in the course of the trial it should appear that we can ent. prove these specifications we shall ask leave to do so, although at The PRESIDENT pro t.em.pore. The Secretary will call the names present we think we shall have no occasion. of the witnesses who are present. Now, Mr. President and Senators, if we succeed in proving these The names of the following witnesses were called, and they ad- . payments, a,s I have charged, it seems to me there is nothing neces- vanced to the desk, and the Chief Clerk administered the oath pre- sary to be done, and the judgment of this court must convict the a~ scribed to them, respectively: Caleb P. Marsh, E. T. Bartlett, George cused. The receipt of these large sums of money from Mr. Marsh at . W. Moss, J. S. Dodge, Robert C. Seip, Irwin McDowell, George M. the times, periodically, according to the original contract made be- Adams, E. W. Rice. tween Mars.h and Evans, the amounts corresponding with the amounts Mr. Mc1\1AHON. We propose to examine Mr. Adams first. . of payments made by Evans to Marsh, handing over one-half of those The PRESIDENT pro tempm·e suggested that witnesses take a pla-ce payments to the Secretary of War, the circumstances under which at the right of the Chair, on a level with the Secretary's desk; but the appointment wa.s made, disregarding the recommendation of all at the suggestion of the managers and several Senators, a place on the officers of the post with a knowledge that to take Mr. Evans from the floor in front of tile Secretary's desk was assigned to the wit.- that post would ruin him in fortune and destroy his business, that it nesses. 180 TRIAL OF WILLIAM W. BELKNAP. Mr. Manager Mc111AHON. I wish to ask Mr. Adams if he is the ble manager refers wM based upon the order which wa.s made de- Clerk of the House of Representatives. claring that the plea in abatement was bad, that the demurrer to Mr. CARPENTER. One moment. the replication was bad, the replication good, the plea bad, and the Mr. BLACK. I will ask the gentlemen if they have any objection articles good. We have filed in due course of practice a motion to to state to us what t hey propose to prove by this witness Y vacate that order, and that is the foundation of :ill subsequent pro- Mr. Manager McMAHON. Not hing, except to produce a document ceedings in this cause. It seems to me that that lllotion should be which we expect to prove by another witness. :first disposed of before we come into this trial. It would be a very Mr. BLACK. Mr. President, I presume that the m:mageTI:I intend awkward proceeding if we should spend thre,e or four weeks here, now to call the witnesses :md produce the evidence which they have with the snn riding with the Sirian star, in taking testimony, and the mentioned in their opening. Senate should then finally be convinced that the order which had Mr. Manager McMAHON. The gentlem:m is correct. been made, :md which is the foundation of this proceeding, was erro- Mr. BLACK. We object to any evidence being given in conse- neous and mnst be reversed. quence of the conditio:t in which this case now stands; that is, we I want in this connection to say a few words in the nature of a p,er- stand upon a right which, if it be recognized by the Senate, enables sonal explanation. When I appeared here n.fter that order was pro- ns to exclude all evidence such as that which they have declared nounced in the court, I suggested to the court certain questions their intention of giving. which in my opinion arose upon the order which required consulta- By the Constitution two-thirds of the Senat,e are required to con- tion between the counsel for the defendant before we could determine vict the defendant. One-third voting in his favor express the sense what steps we would take as his counsel. Among other things, I of the Senate; that is, more than one-third voting in his favor are stated my impression to be that in the ca-se of a plea in abatement entitled to have their judgment recorded as the judgment of the Sen- being demurred to, or after replication demurrer being :filed to that, ate upon any fact or any rule of law which is an essential element in the rule that the court could go back through the record was con- any legal conviction which the Senate can pronounce. We make this fined to the particular branch of pleadings out of which the de- objection now not with any intent or desire to indulge in argument, murrer arose; and that the Senate having decided that our demmrer and still less with :tny wish to provoke an argument upon the other to the replication of the Honse was bad, the court were estopped from side. We can hardly expect that a maJority of the Senate will take going back to other parts of the record. A newspaper says-I dit he had wished to draw np such an order as that before. He Q. Do you know whether he discovered who had inspired the writ- said, I think, that there had been some difficulty raised by the judge ing of itf advocate who was acting somewhat as the legal adviser of the War A.. I have DQ means of knowing whether he discovered it or not. Department; that inasmuch as these post-traders were not sutlers, Q. Do you mean to say that you had no conversation with him were not military appointees, and haly with this circularorvaoa.te bisappointment. published to the world was not corrected, although it lay in his breast, V. Post commanders are hereby directed to report to tho War Department any and he knew it. That is the purpose for which we offer it. failure on the part of traders to ftilfill the requirements of this circular. Mr. CARPENTER. You do not prove by anybody that General VI. The provisions of the circular from the .Adjutant-General's Office of June 7, Belknap ever read that testimony to know what it was. The indiO'- 1871, will continue in force except as herein modified. By order of the Secretary of War: nation arose from the fact that he had been talking before a commit- E. D. TOWNSEND, tee when he onght to have gone through directer channels, through Adjutant-General. the Army. Mr. CONKLING. Mr. President, may I inquire, through the Chair, Mr. Manager McMAHON. I suppose it was on that indignation if that is the proper way, whether that is the order re:W. by the mana- that he sent General Hazen to the .Arctic regions. ger who opened the case and commented upon by him t Mr. HOWE. Do I understand that the testimony offered is objected Mr. Manager LYNDE. Yes, sir; it is. tof Q. (By .Mr. Manager McMAHoN:) I understood you to say, General The PRESIDENT pro t(f111.pore. Is there objection to the testimony McDowell, that in conversing with General Belknap you found that of General Hazen being readY The Senator from Ohio objected a few he had heard the statements that Hazen had made and was indignant minutes ago. about them f Mr. SHERMAN. Some testimony has been taken since then, but A. I mentioned to him the fact that General Hazen had stated them it would not change the objection, in my judgment. substantially as I learned from General GARFIELD; then he was indig- The PRESIDENT pro tmnpore. Objection is made. nant that General Hazen should have gone to the committee to make Mr. FRELINGHUYSEN. I shonld like to inquire the object of of- the statements instead of reporting them to him. fering that testimony, whether it is to prove the truth of the facts Mr. :Manager Mc:MAHON. We have no more questions to a.sk. stated in the testimony or not. The PRESIDENT pro tmnpfJre. The witness will be excused. . Mr. Manager McMAHON. By no means. It is to prove that the Mr. LOGAN. Inasmuch as there is no examination on the other facts stated there were substantially communicated to General Bel- side, I wish to a.sk if it is competent for me to put a question to the knap, and, as a public officer, that he had knowledge of the testi- witnessf - · mony as there taken. The PRESIDENT pro tempore. It is. Mr. CONKLING. If I may inquire, Mr. President, I should like to Mr. LOGAN. I desire General McDowell to state, as an officer of do so, is the foundation of that idea the testimony delivered by Gen- the Army, what the rnle wonld be where a discovery was made by an eral McDowell that the Secretary of War alluded to the fact that officer of irregnlarities f What would his duty be in reference to giv- General Hazen had maQ.e statements about this subject which be bad ing information to his superior officer f not made to him f Is that the testimony upon which the Senate is A. I think the ordinary, strict, formal rnle wonld be for him to aslied to vote that the respondent here was charged with a knowl- make a report of it to the staff officer of his next commander. edge of this testimony so a.s to admit it as a declaration made to himf (By Mr. LOGAN:) Mr. Manager HOAR. If I may be permitted to make a sug(J'estion, Q. In that way the report would be sent to the War Department f I understand that General McDowell's testimony is that ~eneral A. Undoubtedly, if it was not within the competency of that im- Belknap said to him that General Hazen ha-d testified in snbsronce to mediate superior to dispose of the case, he wonld refer it to the one the same matters which were contained in the New York Tribune where the authority lodged that had cognizance of the matter. article. Q. (By Mr. Manager .McMAHoN:) That rule would not prevent a Mr. Manager Mc~HON. Yes, he did. military man from giving evidence before a committee if he were sub- Mr. Manager HOAR. Therefore stating to him a knowledge of the prnnaed before that committee to testifY f substance of General Hazen's testimony. Now, if he had that knowl- A. That is a question you can better answer than myself. edge of the substance of General Hazen's testimony, it tends to show Mr. Manager McMAHON. Isimplywan~ed toputthequestion toyou. that he knew that these periodical payments of money which came Mr. CARPENTER. Ask him whether his military duty wonld re- to him from Marsh were payments of money that had come to Mar h quire him or permit him to corre pond with Congress or any mem- from the post-trader. If I am in error·as to the ext nt to which Gen- ber of Congress on the subject before having transmitted intelligence eral McDowell's st atement went, I can be corrected by referring to through the regular military channel. it. In other words, if General .Belknap was receiving once every TRIAL OF WILLIAM w. BELKNAP. I 189 three months a sum of money from Marsh in New York, it is impor- The respondent appeared withhiscounsel,Messrs. Blair, Black, and tant for the Senate to know whether Belknap was informed that those Carpenter. moneys were moneys which were being improperly paid in conse- The Secretary read the journal ofproceedin~s of the Senate sitting quence of this bargain of the post-trader at Fort Sill to Marsh; in yesterday for the trial of the impeachment of William W. Belknap. other words, that ht} knew where the money be was receiving came The PRESIDENT p-1·o tempore. The Senate is now ready to proceed. from. The article in the New York Tribune contains a distinct asser- The managers on the part of the House will continue with their ev- tion of those payments by Evans to Marsh, and, as I understand it, idence in support of the articles of impeachment. the testimony of General Hazen contains in substance the same Mr. CARPENTER. Mr. President, I desire to state that yesterday thing. It is therefore important not as proving the tn1th of anything we cross-examined none of the witnesses and .made no objections to that General Hazen said, but aa proving that the Secretary of War questions propounded by the honorable managers. We had not at was notified that such thing was said at that time. that time been able to have a consultation among ourselves on that Mr. HOWE. I a.sk that the reporter may read the testimony of subject, and had concluded to leave the case entirely in the hands of General McDowell upon that point. the honorable managers. But one day's experience sa.tisfied us that Mr. BOGY. I should like to make an inquiry of the manager who that was a mistake on our part. The method of examination on the has been examining the witness as to the character of the pamphlet part of the honorable managers was not satisfa.ctory to us, and we purporting to contain the testimony of General Hazen, whether it is think it would do injustice to the ca-se to permit it to proceed further an official document, and published by whose authority Y What is in that manner. Our doubt about taking any part in the trial beyond the character of the pamphlet containing that testimony! that of spectators was that it might be considered that by doing so Mr. Manager McMAHON. It is- we might waive or lose rights in the point upon which we rest this House of Representatives Report No. 74, Forty-second Congress, third sesslJ>n. case, namely, that there is no jurisdiction to try; but after an ex- Army staff organization. amination of some authorities upon that subject, and a full consulta- Febr-uary 2, 1873.-0rdered to be printed, and recommitted to the Committee on tion, we have come to the conclusion as counsel that inasmuch as the Military Affairs. Mr. Coburn, from the Committee on Military Aifuirs, made the following report. Senate has made an issue we can waive nothing and forfeit nothing by taking advantage of our right to cross-e;xamine witnesses. We It 1s a public document, published by order of Congress. now ask the indulgence of the Senate to recall General McDowell Mr. BOGY. It is, then, an official document. for the purpose of putting some questions to him in cross-examina- Mr. Manager McMAHON. I so understand. tion. Mr. HOWE. I a8k the reporter to read the testimony for which I Mr. Manager McMAHON. That had better be done at a later stage. have called. There are other witnesses here from a distance ready to testify, who Mr. BOGY. I should like to know if it be an official document con- are anxious to go home. taining testimony taken under oath f Mr. CARPENTER. General McDowell is here from a distance, and Mr. Manager McMAHON. Yes, sir. away from the performance of his oificial duties, and he is very anx· The PRESIDENT pro tempore. The reporter will now read what ions to get through and return to the discharge of his duties. There- has been called. fore, I a-sk the Senate at this po&.t to give us permission to recall The Official Reporter read from his short-hand notes of General Mc- General McDowell for cross-examination. Dowell's testimony, as follows : Mr. Manager McMAHON. Mr. President and Senators, the mana- Question. In the conversation between yon and General Belknap, besides refer- gers certainly object at this particular stage of the case that they ring to this article in the New York Tribune, did yon refer to thefa.cttha.t General shall be interrupted in their course of examination because the gen- Hazen bad testified before the Military Committee¥ Answer. I think that I mentioned the fact that I learned from General GARFIELD tlemen _upon the other side, either for want of consultation or from that General Hazen had done so. I think Genera.J Belknap told me that General overconfidence, declined to cross-examine a particular witness who Hazen had done so and had said substantia.lly the same thing. I think General was upon the stand and discharged fully from attendance upon this Belknap was indignant at General Hazen having done so instead of having come to him. I think he thought he owed it to him to have made this statement to him court except in so far as we requested him to remain another day. persona.lly, instead of going elsew~ere. We have witnesses in attendance who are here at very great. incon- v:enience to themselves; men who occupy responsible positions in The PRESIDENT pro tempore. Objection being made, the Chair banking establishments and other places, who are ready to testify will submit the question to the Senate, Shall this testimony of Gen- and who want to go home. General McDowell can stay until we get eral Hazen be admitted T through at least with them1 I think. I make no objection to the right Mr. BOGY. I call for the yeas and nays. to recall him. We concede it a-s a right. The yeas and nays were ordered ; and being taken, resulted-yeas Mr. CARPENTER. Then we reeall him. 20, nays 31 ; as follows : · Mr. Manager McMAHON. But at the proper time; not now. YEAS-Messrs. Alcorn, Bayard, Bogy, Caperton, Cockrell, Cooper, Davis, Den- The PRESIDENT pro tempore. Counsel for the a~cused ask to have nis, Harvey, Key, McCreery, Maxey, Norwood, Randolph, Sargent, Stevenson, Wallace Whyte, Withers, and Wright-20. the witness, General McDowell, recalled for the purpose of cross-ex- N.A.Y~Messrs. Allison, Anthony, Booth, Bruce, Cameron of Wisconsin, Conk- amination. The Chair will submit the question to the Senate. ling, Cragin, Dawes, Edmunds, Ferry, Frelini}\]f:!~· Hitchcock. Howe, Ingallsii Mr. CONKLING. I inquire, is the request of the counsel to cross- .Tont•s of ~eva.da., Kelly, Kernan, Logan, Me · Merrimon, Mit{lhell, Morri examine the last witness upon the stand, the witness examined yes- of Maine, Morrill of Vermont, Paddock, Patterson, Ransom, Sanlsbury, Sherman, Spencer, Thurman, and Windom-31. terday after whom no other witness has been called f NOT VOTING-Messrs. Barnum, Boutwell, Burnside, Cameron of Pennsyl- Mr. CARPENTER. Yes, sir. vania, Christiancy, Clayton, Conover, Dorsey, Eaton, Goldthwaite, Gordon, Ham- Mr. CONKLING. I did not hear the name. ilton, Hamlin, Johnston, .Tones of Florida, McDonald, Morton, Oglesby, Robertson, Mr. CARPENTER. We ask to recall General McDowell, who was Sharon, Wadleigh, and West-22. on the stand when the Senate adjourned last evening. The PRESIDENT pro tempore. The Senate declines to admit the The PRESIDENT pm tempore. Shall he be recalled f testimony. The question being put, it waa determined in the affirmative. Mr. SHERMAN. I move, if it .is convenient to the parties now, that the court adjourn. Major-GeneraliRw:rn McDOWELL, recalled. Mr. KERNAN. To what hour! The PRESIDENT pro temp(}re. The Chair will state that the wit- Mr. SHERMAN. I should propose eleveno'clockto-morrow. ["0, ness asks the privilege to correct the last statement he made. The no."] Chair hears no objection, and he will make the correction he desires. Mr. KERNAN. That will do. The WITNESS. It was the last question put to me yesterday. In Mr. SARGENT. We may want some time for the appropriation fa~t I did not answer it. bills in the morning. It seems to me that the court had better ad- Mr. Manager McMAHON. Do I understand, General, that you de- journ to twelve o'clock, and give us the hour before that for legisla- sire me to put that question again t tive business. The WITNESS. No; I desire to correct the answer that I made to Mr. SHERMAN. I have no objection to that. it, and to say that it would be the duty of an officer subprenaed be- The PRESIDENT pro tempore. The Senator from Ohio moves fore a committee of Congress to answer such questions as the com- that the Senate sitting for the trial adjourn. mittee might ask him touching the public service of which he had The motion was agreed to; and (at five o'clock and twenty-five knowledge. minutes p.m.) the Senate sitting for the trial of the impeachment adjourned until to-morrow at twelve o'clock. Cross-examined by Mr. CARPENTE.R: Question. Would it be the duty of an officer to volunteer informa- tion by letter or otherwise to members of Congress in regard to abuses connected with the service with which he was a-equainted f A. I do not know of any such duty imposed upon him by the arti- FRIDAY, July 7, 1876. cles. Q. Is it not his duty, on the other hand, to make report of all such The PRESIDENT pro ternpore, (at two o'clock p.m.) The Senate things through the regular military channels f resumes its session in trial. A. That I answered yesterday ; yes. The usual proclamation was made by the Sergeant-at-Arms. Q. When you called on .General Belknap in regard to the alleged Messrs. LoRD, LYNDE, McMAHON, JENKS, LAPHAM, and HoAR, of abuses at Fort Sill, did not General Belknap say to you, "Well, Gen- the managers on the part of the House of Representatives, appeared, eral, yon know what to do; now sit down; you draw an order that and were conducted to the seats assigned them. will correct it f" 190 TRIAL OF WILLIA!i W. BELKNAP. A. I cannot at this day recall the conversations, for there were sev- ment, have not lost a shilling, it is difficult to see what this impeach- eral of them, t.hat took place between the Secretary and myself in ment is for. reference to that subject. I called upon him at his house, then diag- We otler to prove by this witness that the only consequence of a onally opposite the Arlington, and said to him that I had something post-trader residing away from his post would be that he could not to say that concerned the public service and also concerned him per- be controlled by the council of administration or subjected to the in- sonally. After I had disclosed what I had to say, either at that par- fluences of the officers in command. The object of this order was to- ticular time or not long afterward, he substantially said as you have bring the trader under the supervision and influence of the officers at asked. the post. If the question which I put to the witness had been ob- Q. Did be at that time or at any time show the slightest reluctance jected to on the ground that the answer was self-evident, the objec- to make an order which would correct any abuse at Fort Sill T tion would have some force. But here we have upon the stand a. A. No reluctance. The only obstacle that beseemed to have in the soldier of no mean reputation, one who has served from his boyhood way was a question, as I understood him, which he had referred to to the present hour and filled every station from a cadet to a major- the Judge-Advocate-General, and which the Judge-Advocate-General general and performed his duties under every va,riety and contin- had answered, to the effect that there was a difficulty in him as Sec- gency of the public service, and we now offer to put these questions retary of War controlling by military authority the action of these to him and appeal to his experience on the subject in order to show po t-traders. by him that it was immaterial where the trader lived if he sold his Q. Was not the doubt this: Whether it would be legal for the Sec- goods cheap enough. The object of bringing the trader within the retary of War to direct the council of administration to fix the prices post was to subject him to the influence of its officers, and thus to at which the traders should sell t control his prices within the bounds of reason. No otherobjeot could A. That is what I understood; and that is what I think I said sub- be attained. If the soldier did nothavetopayforthebonuswhich the stantially, from the fact that they were not appointed for the Army trader paid to his friend, it made no difference t.o the soldier whether but for emigrants and travelers. the bonus was paid or not. It is for that reason we claim this to be Q. But did not the Secretary of War insist, notwithstanding t.he competent evidence. doubts suggested byth~Judge-Advocate-General, that he would make Mr. BLAIR. Mr. President and Senators, the court will have ob- such an orderT served that the scope of the case on the part of the prosecution here A. I think he yielded to my argument in that matter. is to assume a knowledge on the part of this defendant of the contract Q. And consented that the order should be made, and direct~d you existing between Evans, the tmder, and Marsh, a witness. There is or requested you to draw such an y Caleb P. Marsh. TRIAL Olr WILLIAM W. BELKNAP. 197 A. On the 16th day of January, 1871, such a check was paid. A. The only sum of any account is the 8th of April, 1874. Q. Now look at the 17th or 18th day of April, 1871. · Q. Howmuchf A. On the 17th day of April, 1871, there was a check for $1,500 A. Two thousand dollars. paid. Q. Are there any sums following it or preceding it of large amount! Q. That is Marsh's check f A. Yes, sir. The deposit immediately preceding it was on the 19th A. Yes, sir. of March. Q. Now on the 24th or 25th of July, see whether a similar check Q. How much t was paid. .A. Nine thousand and-- A. Yes, sir; on the 25th of J nb, 18717 one for 1,500. Q. That we do not care about; it has nothing to do with this mat· Q. Now look at the date of November 10, 1871 7 which is the date ter. Was there any deposit October 9, 1874, or in t.hat neighbor· of one of the certificates presented by :Mr. King. hood t A. On the lOth of November, 1871, there were two checks, amount- A. October 5, 1874. ing to 1,600 ; that is to say, two checks are charged-that is the way Q. Howmuchf we charge them-two checks amounting to 1,600. A. Twenty-nine hundred and ninety-nine dolhrs and fifty-four cents. Q. Was one of them for $1,500 Y Q. Now take May 25, 1875, or about then, immediately before or A. I can tell by looking at the check-book. immediately after. Q. I donotcareforthat; but there were twochecks that amounted A. None. to 1,500' . Q. Now turn to the latter part of October, 1875, or the early part A. Yes, sir. of November, 1875, and see what the total amount of certain drafts Q. They were paid upon that day f was, and give the date. A. They were paid upon that day. A. I find none. Q. Now look at the 14th or 15th of January, 1872. Q. Look then at the 30th of November. A. On the 15th of January, 1872, there was one check for $1,500 A. The account closes the 23d of November, 1875. This transcript ~~ . ends then when the account was balanced. Q. Observe whether either at that point or the previous entry of Q. Look then at the 13th of November. $1,500 there is any entry on your book "paid in for certificate" or A. None. The only large amount is on the 17th, $1,000. anything like that, indicating that it was a check for a certificate. Q. On the 17th of November. A. No, sir; there is nothing in the account to show that. A. Yes, sirj November 17,1875. Q. Now turn to J nne 13, 1872. Mr. Manager McMAHON. We are through with this witness. A. On the 13th of June, 1872, there was one check for $1,500 paid. The PRESIDENT pro tempore. Do counsel desire to ask any ques- Q. Turn to the 2'2d of November, 1872. tions t A. On the 22d day of November, 1872, a check for 1,500 was Mr. CARPENTER. I do not see that the testimony touches the paid. case any way. We have no questions to put. Q. Take June 16, 1873, and see whether a check for $1,500 wa-s pre- The PRESIDENT pro tempore. The witness is excused. sented and paid that day. Mr. CARPENTER. I will a.sk one question of the witness before A. On the 16th of June, 1873, there is a charge of 1,700; but there he goes. (To the witness.) What was it yon held in your hand f is no memorandum here, according to custom, to show whether it was A. A tran cript of Caleb P. Marsh's account from my ledger. one check or two checks. I could tell it by a reference to the check- Q. (By Mr. CARPENTER.) Who made it f book. A. I made it. Q. We may look at that presently. Now, look and see whether Q. Is the ledger here f there is one about November 4,.1873, for 1,500. A. Yes, sir. A. No, sir; there is none. Mr. Manager McMAHON. The books are here, not only the ledger Q. Now, take the lOth of April, 1874. but the check-books. A. On the lOth day of April, 1874, there was one check for $1,500 Mr. CARPENTER. Do not bring them in. paid. Mr. Manager McMAHON. You do not want to see them f Q. Now, turn to the 9th of October, 1874, the date of two of these Mr. CARPENTER. O, no. certificates, and see if there is any entry. Mr. WHYTE. Before the next witness is called, I offer the follow- A. Yes, sir; on the 9th of October, 1874, there was a. check for ing order. $1,500. . The PRESIDENT pro tempm·e. The order will be read. Q. 1.'ake the 24th of May, 1875, and see if a check of 1,500 was paid The Chief Clerk read as follows: that day. Ordtred, That at half past five o'clock p. m. this court ta,k e a recess until half A. It was paid that day. past seven o'clock p. m. Q. Look and see if in the month of December, 1875, there is a check for somewhere in the vicinity of "'900, or between 700 and 900; and Mr. CARPENTER. Mr. President, I want to say to the Senate in if so, gtve us the date. regard to night se sions in this trial, that we have no desire to pro- A. I have only made a transcript of the account up to November long the trial a minute longer than is absolutely necessary. We are 19, 1875. That was the last time we balanced it. not enjoying it to any such extent as to make us anxious to have it Q. Have you there as well the deposit account M the debtor ac- last a day longer than it ought to last. The Senate can see from day count f to day whether we are acting in good faith in this or not; and if they A. I have. find on either side any disposition not to do so, they can then apply Q. Give us the date at which a deposit of $3,000 appears to ha.ve the lash. Every lawyer knows that under the circumstances of this been made by Mr. Marsh, beginning at November 1, 1870. cMe, if we desire in good faith to shorten the trial, the only way to A. November 17 1870, 3,000 was deposited. a-ccomplish that is to give us the time for preparation. Our wit- Q. Now look to about January 17, 1871. nesses are subpcenaed from all parts of the United States; we have A. Jan nary 16, lb'71, 3,000 was deposited. to see them after they get here, find out what they know, what we Q. About Aprill7 or 18, 1871 f can prove by them, and prepare memoranda for examination of wit- A. April12, $3,000 was deposited. nesses. Now I believe that if the court will give us sessions from Q. Now, about July 25, or in that neighborhood f twelve o'clock till five, or from twelve o'clock to four even, and give A. July 17, 1871, $3,000 wa-s deposited. us the evening and the morning for preparation, the trial will be Q. About November 10, 1871 f shortened rather than prolonged. We will, so far as we can accom- A. Three thousand dollars was deposited then. modate, on both sides about admitting facts that are not disputed; Q. About 15th January, 1872f but I do appeal to Senators, and especially to Senators who have A. Twenty-nine hundred and ninety-seven dollars was deposited been lawyers, and to Senators who being lawyers know that there is then. a little more anxiety; a little more waste in the performance of the Q. About the 13th of June, 1872! duty of counsel in an important criminal case than there is in the or- A. On the 31st of May, 18727 $2,997 was deposited. dinary routine of duty in the Senate, to give · us a chance to live Q. Now, take about the 22d of November, 1872. through this trial on our assurance that we will in good faith do every A. No, sir; none there. · thing in our power to make it a.s brief as possible. But to sit all the Q. Any preceding that f afternoon in this heated Chamber, and then come back here at night A. Yes; 24th October, 18727 $3,296.70. and sit till ten or eleven o'clock-and if it is not the purpose to sit Q. Now, say as to the 16th June, 1873, or about that time; that is, as late as that it is hardly worth while to come back in the evening- any time preceding that or immediately following it Y will just break us down before we get through the trial. I am cer- A. I find a deposit on the 9th of June, 1873, of $2,000; and on the tain that if any of us get sick, this cpnrt, like every other court, 2d of J nne, $1,000. would be considerate enough and humane enough to adjourn until Q. Have you any deposits in round three thousand dollars; say we were well. So that I believe that economy of time-and I know about the 4th of November, 1873 f . how important that is to the Senate-will be socnred by giving us A. No, sir. only da:v sessions. Q. How about April10, 1874 t Mr. WHYTE. Mr. President, under the circumstances stated by A. No $3,000 then. the counsel I will withdraw the order. Q. Now torn to the lOth of April, 1874, or in that neighborhood. The PRESIDENT pro tempore. The order is withdrawn. 198 TRIAL OF WILLIAM W. BELKNAP. CHARLEs N. Vrr.AS sworn and examined. Cross-examined by Mr. CARPENTER: By Mr. Manager McMAHON: Q. Did you keep either of these books f Question. Are you acquainted with General Belknapf A. I kept one of them a portion of the time; not the whole time. Q. Did you keep the pay-book 'f Answer. I am. A. Yes, sir; it comes nnde1· the cashier's desk. Q. Where do you reside f Q. Are you so familiar with the handwriting of General Belknap A. In New York. that you could swear to it f Q. What is your occupation f A. I think I am . .A. Cashier of the Fifth Avenue Hotel. Q. How long have you been in the Fifth Avenue Hotel f Re-examined by Mr. Manager McMAHON: A. Nearly four years. Q. At the suggestion of Mr. LAPHAM I wish to ask you whether Q. Rave you been employed there otherwise than as cashier! upon the register General Belknap's name is entered in his own .A. Yes, sir. handwriting f Q. Have you brought the registers of the Fifth Avenue Hotel with A. In some cases it is and in some cases it is not. you of certain dates specified 1 Q. Do you know the handwriting where it is not hist A. Yes, sir; I have. A. Ido. Q. Have you brought with you also the transient ledger-book Q. Whose handwriting was it f showing the accounts of i.n dividuals f A. The clerk's handwriting at the counter at the time he arrived. A. I have. Q. Does your transient ledger-book show the account of each indi- Wn.u.ur H. BARNARD sworn and examined. vidual who arrives by namef By Mr. Manager McMAHON: A. It does. Question. Where do you reside 'f Mr. Manager McMAHON. I desire to state to the Senate that under Answer. In Washington. those specifications which we do not substantiate by an express pack- Q. What is your present occupation f age or a certificate of deposit, we propose to prove that General Bel- A. I am clerk to the receiver of the First National Bank of Wash- knap was in New York City and that the money was paid to him ington. there, with one exception. (To the witness.) Now let us know if Q. How long have you been in the employ of the receiver of the General Belknap was in New York City on t.he 24th and 25th of July, First National Bank of Washington 'f 1871, at the Fifth Avenue Hotel f A. Since the bank failed. A. Our books show that General Belknap arrived at the Fifth Q. What relation did you sustain t.o it prior to its failuref Avenue Hotel on the 24th day of July, 1871, at breakfast, and left on A. I was a clerk in the bank the 26th of July after dinner. Q. For how many years f Q. Now see whether you have any record of his being there on the A. Since 1865. 13th of June, 1872 J Q. Have you the deposit tickets of the First National Bank of Wa h- Mr. BLACK. This is no record. ington so far as they relate to General Belknap and during the ex- Mr. Manager McMAHON. This is merely an abstract taken from istence of the bank 'f the books, which are here. If you desire to see them, you can see A. I have them for 1870, 1871, 1872, and 1873. them. Q. Break now the package of 1872, and see if you have a deposit Mr. BLACK. We do not care. ticket of November 27, 1872, for 2,574.56. l\1r. Manager McMAHON. The books are here, and I have inspected A. Yes, sir ; $'2,574.56. . them myself. Q. Whose handwriting is that deposit +,icket in f The WITNESS. I ha\e no recollection of General Belknap being A. Mr. Belknap's hand writing. there on that date. Q. State what that little ticket is, and by whom it is executed, and Q. (By Mr. Mana~er McMAHON:) On the 13th of June, 1872f for what purpose f A. No record of tna.t. A. A deposit ticket is a ticket that is made out on making a deposit Q. Now take the 22d of November, 1872 f of money in bank. A. I find that General Belknap arrived at dinner the 21st of Novem- Q. Did your bank require the depositor to make it out in his own ber, 1872, and left on the 24th after dinner. handwriting'f Q. Now see whether you have a record of the 16th of June, 1873 f A. No; they did not require it. Mr. CARPENTER. Was the book kept by this witnessf Q. It is done f Mr. Manager McMAHON. The register is not required to be kept A. Somet.imes it is done in that way and sometimes the clerk at the by anybody. General Belknap's signature is on the register. The counter does it. witness speaks now from the register; and the length of time he re- Q. Let me have that ticket. [The witness handed the ticket to mained is determined by the transient ledger. We have here both the manager.] the register and the transient ledger. (To the witness.) The facts Mr. Manager McMAHON. We offer this little paper in evidence. to which I am callin~ your attention you have derived, have you not, I will read it so that the Senate may all hear it: from the register which you have here as well as the transient ledgerf Deposited with the First National Bank by Wm. W. Belknap, Nov. 27, 18"12: The WITNESS. Yes, sir. The register shows his arrival, while the U. S. bank notes . . . . . . . . . . . . . . . . . . . . • . • . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . • . $1, 460 00 transient book shows the time he remained at the hotel on each oc- Checks as follows....................................................... 1, 114 56 casion. Q. (By Mr. Manager McMAHON.) Now turn to June 16, 1873, or 2, 574 56 about the 16th of Juue, 1873. Mr. EDMUNDS. In whose handwriting did the witness say that A. General Belknap arrived June 16, 1873, at dinner, and left on wasf the 18th after dinner. Mr. Manager McMAHON. Be said that was in General Belknap's Mr. Manager McMAHON. I will say to the gentlemen here (as of handwriting. Is not that so, Mr. Barnard f course we do not want any objection made after the witness has The WITNESS. Yes, sir. gone) that his books are here, and this transcript is made from them. [The ticket was handed to the counsel for the defense, examined by If you desire the books, we will bring them in and let you examine them, and returned to the managers.] them. Q. (By Mr. McMAHoN.) Into whose account would that money and Mr. BLACK. It will be rather late to make an obje~tion after you those checks that were deposited pass t have proved the fact in this way, with our consent. A. Pass into the account of General Belknap. · Mr. Manager McMAHON. If you think so we are probably in Q. Did it pass into his account f accord. A. Yes, sir. (To the witness.) When you state in your testimony that Gen- Q. His private account T eral Belknap arrived on a certain date and remained until another A. Yes, sir. time, you mean that he is charged on the books with board at the Q. State how you discovered this ticket. hotel from that first date to the subsequent date f A. I found it in the files of the bank. A. Yes, sir. Q. What led you to look for this ticket f State whether prior to Q. (By Mr. Manager McMAHON.) Where was General Belknap on looking for this ticket you examined his account. the 15th and 16th days of August, 1870 f A. I examined the account on the ledger. A. We have an account with General Belknap dating from the 15th Q. Have you a copy of his ledger account with you f of August, 1870, at tea. and leaving on the 16th of August after A. No, sir; I have not. breakfast. Q. Have you the original ledger at the office f Q. Now see whether General Belknap was at the hotel about the A. Yes, sir. 15th day of September, 1870. Mr. Manager :McMAHON. Shall we produce it, gentlemen 1 A. I am not positive as to that date. We have an account with Mr. CARPENTER. No; make out a statement, and, if you prove him which is closed. it to be correct, it will be all ri ~ote do appoint, him to be Secretary for the De- Washington Oity, October 10, 1870. partment of War, and do authorize and empower him to execute and fulfill the · Sm: Under the provisions of section 22 of the act of July 15, 1870, you are hereby duties of that office according to law, and to have and to hold the said office, with appointed a post;.trader at Fort Sill, Indian Territory, and will be required to as- all the powers, privileges, and emoluments to the same of right appertaining unto sume your duties as such within ninety days from the date of this appointment. him, the said Wm. W. Belknap, subject to the conditions prescribed by law. ' Yon will please report to this Department through the Adjutant-General's Office In testimony whereof I have caused these letters to be made patent and the seal your acceptance or non-acceptance of thil! appointment. of the United States to be hereunto affixed. WM. W. BELKNAP, Given under my band at the city of Washington. the 17th day of March, in the Secretary of War. L J year of our Lord 1873, and of the Independence of the United States of [ · 8 · America the ninety.seventh. Mr. JOHNS. EVANS, Care of C. P. Marsh, Esq., 51 West Thirty-fifth street, New York City. U.S. GRANT. By the Presiflent: Q. (By Mr. Manager McMAHoN.) How long ha.ve you been Adju- HAlrrL'l'ON FISH, tant-General 7 . Secretary oj St.at~. A. I have been in charge of the Department since M:Ych, 1863, holding the commission of Adjutant-General since February, 1009. Mr. CARPENTER, (to Mr. Manager McMAHON.) Do you rely Q. Who was acting and actually Secretary of War from, SillY). July upon all those commissions as ~vidence of character f 1, 1870 up to last March f Mr. Manager McMAHON. As evidence of confidence. I presume A. General William W. Belknap, about those dates. they express confidence. Mr. Manager Mcl\IAHON. We offer these commissions, certified Q. (To the witness.) Have you the original papers relating to the copies. There will be no objection to them. appointment of a post-trader at Fort Sill and the management of that Mr. CARPENTER. Let the Clerk read them so that they may go place. into the record. We want everything printed that is put in evidence. A. Yes, sir; all that are on file. The Chief Clerk read as follows : Q. Have ;y;ou the application of Mr. Marsh dated the 16th day of UNITED STATES OF AMERICA., DEPARTMENT OF STATE. August, 1870 7 A. I have. [Producing letter.] To all to whom these pr~ents shalJ, come, greeting : Mr. Manager McMAHON. Hand it to the Secretary and let him I certify that the document hereunto annexed is a. true copy from the record in read it, if you please. this Department of a commission appointing William W. Bel.l..-nap to bo Seoret..'U'y of the Department of War, The Chief Clerk read a.s follows : In testimony whereof, I, Hamilton Fish, Secretary of Stat.e of the United States, No. 51 WEsT THIRTY-FIFTJi STREET, have hereunto subscribed my name and caused the seal of the Department of Sta,te Tuesday, 16th A ugu8t, 1870. to be affixed. Done at the city of Washington this 26th d.ay of April, A. D. 1876, and of the In- . MY DEAR Srn: You will remember my application to yon in Washington a few dependence of t-he United States of America. the one hundredth. days since for an Indian tradership. Following your suggestion I wrote to a friend J..sEAL.) H.A.MILTON FISH. in Kansas and yesterday received a reply. My friend advises me t~ apply for l~ort TRIAL OF WILLIAM W. BELKNAP. 201 Sill and Camp Supply. He says also that he is informed that the latter post is to Being personally acquainted with these gentlemen, we cheerfully recommend be abandoned and the supplies concentrated at Fort Sill, but that yon will know them to your consideration, and lmow them to be in every way worthy of the po- the facts in regard to this rumor-if true it will be only worth while to apply for sition. the fort. This post was not mentioned by you aa among those already promised, Very respectfully, and I venture to hope has not been. W. W. SANDERS, I write to you at once, so that in caae it is yet free my application may be filed. Oaptain and Brevet Oolonel, U. S. A. I shall send to Ohio immediately for the recommendations of Senator SHERMAN ORLANDO H. MOORE, and Representative Stevenson, which I can secure without trouble, and as soon as B1·e:vet Lieutenant-Colonel rmd Oaptain Sixth Infantry. received will send a formal application. JAMES POWELL, Please reserve the two posts if ;possible. Oaptain Sixth Infantry, U.S. A. I am, very truly, your obedient servant, W. H. FORWOOD, C. P. M..A.RSll. Assistant Surgeon, U. S. .A., Post St~rgeon. General W. W. BELKNAP. J. T. M9RRI.SON, . P. S.-If these posts have been promised, I shall be much obliged if you will in- Ftrst Lieutenant Tenth Oava:Zry. form me at your earliest convenience. R. H. DAY, First Lieutenant Sixth infantry. Q. (By Mr. Manager McMAHON.) Have yon the recommendations D. S. CRAFT, &C011d Lieutenant SixUllnjant1·y, Brepet Captain U. S . .A. accompanying that application T · S. P. JOCELYN, A.. [Producing paper.] I have one signed by Hon. Job E. Steven- Pi·rst Lieutenant Sixth Infantry. son· member of Congress. A. MACOMB WESTERVIL~. fu. Manager McMAHON. Please hand that to the Secretary and Second Lieutenant Sixth Injant:r-y. GEO. P. SHERWOOD, let him read it. First Lieutenant Sixth Infantry. The Chief Clerk read as follows: WM. R. HARMON, Second Lieutenant Tentll. Oaval1y. TILDEN, STEY.&.~SON, & GOODMAY, R. H. McKAY, A'ITORNEYS AND COUNSELORS AT LAW, .Acting .A8sistant Surgeon, U. S. A. Oincinnati, November 2, 1870. J. WILL MYERS, ·DEAR Sm: I have pleasure in recommending Mr. Caleb P. Marsh for appoint- Second Lietttenant Tenth United States Oavalry. ment as post-trader in the Indian country. He is an old citizen, well qualified, and J;L S. KILBOURNE, a sound republican. .Acting A PY'istant Surgeon, U. S. A. Yours, truly, WM. E. DOYLE, JOB E. STEVENSO~, M. 0. Second Lieutenant Tentk Od1JalT'IJ• Ron. W. W. BELKNAP, ROBERT GRAY, Secretary of War. Oaptain Tenth Oavalry. GEO. ROBINSO~, Mr. Manager McMAHON. We desire to know if that is the only Oaptain Tenth United States Oava.J.ry. recommendation filed by Mr. Marsh 7 A. F. ROCKWELL, BrevP-t Lieutenant-Colonel and Assistant Quartermaster, U. S . .A. Mr. CARPENTER. That was the only one. Mr. Manager McMAHON. That is understood, then. MI·. CONKLING. Were these officers at Fort Sill at the timeT The WITNESS. It is the only one I find. Mr. Manager McMAHON. That is our understanding. We may Q. (By Mr. Manager Mc~IAHON.) Now turn to the application of be incorrect about it. JohnS. Evans. See if there is not a mark across the face of the paper. A.. lProdncing paper.] I have one from JohnS. Evans to Major- The CHIEF CLERK. It is marked on the face : General Grierson dated June 24, 1870, with inclosures from officers, Approved: B. H. Grierson, colonel and brevet major-general U. S. Army, com- recommending him. ~dingpost. Mr. Manager Mc.MA..HON. Please hand that paper to the Secretary and let him read it. Q. (By Mr. Manager McMAHoN.) I should like to know if that The WITNESS. I have also another one dated August 18, 1870, from paper contains anything on it showing the date it was filed at Wash- Mr. Evans. ington T The Chief Clerk read as follows : .A. It is marked, "Received at Adjutant-General's Office July 25, 1870." FORT SILL, L"WIAN TERRITORY, June 24, 1870. Q. That indicates that it was on file in the Department after the Gm."ERAL: I respectfully submit the inclo ed recommendation of the officers of 25th of July, 1870 the garrison for my appointment to the position of post-trader, as provided for in A.. Yes, sir. section 22 of the bill for the re-organization of the Army that has recently passed Congress. Q. How 8oon was it communicated through your office to the Sec- Beli~v_ing my interests to~~ secure f_or some time in the future, I have, under retary of War Y the pnvileaes granted by ongmal pernnt from General Sheridn.n and a recent ap- A.. That does not appear. proval of the same by the succeeding department commander, made extensive im- Q. Did the application of Mr. Marsh pass through your office to the provements a~d large i~vestments at .this post, in view of .which fa-ct I take the liberty of urgmg my claun ~the ~pp~nntment under the eXISting.law relating to Adjutant-General or di(l it go directly to the Secretary of War f post-traders; and should this application meet your favorable conSideration would A.. It went directly to the Secretary of War. It is addressed to him, re~pec~yrequest your approval and recommendation to the proper authorlty for if I remember aright. srud appomtment. I am, general, very respectfully, your obedient servant, Q. Look at the application of C. P. Marsh and see when it did pass JOHN S. EVANS. through your office for the first time. Brevet Major-General B. H. GRIERSON, .A.. I believe you have it. The original passed out of my hands a. OoloneZ Tenth Oavalry, Oommanding Post. moment ago. flndorsement. J Mr. Manager LYNDE. Here is the original. [Handing paper to HEADQUARTERS, FORT SILL, lNDIA..>i TERRITORY, . witness.] Fort Sill, Indian Territory, June 25, 1870. The WITNESS, [examining paper.) There are two dates of receipt The within application of Mr. JohnS. Evans for the position of post-trader at marked on the original application of Mr. Marsh. One, I think, is in this point under the provisions of the twenty-second section of the new Army bill the hand writing of the Secretary of War, "Received August 16, 1870 ;" is hereby approved. .Mr. Evans is gentlemanly, obliging, generous in his dealings, and a universal and the other one is, "Received, Adjutant-General's Office, Septem- favorite, and in every way well fitted for the position. He has expended a much ber 23, 1870." larger amount of money in improvements than both the other traders and he has Q. [By Mr. Manager McMAHoN.] See if you have a letter there constantly kept on hand a very extensive aasortment of goods the only'stock suited from JohnS. Evans, of the date of August 18, 1870, from Philadelphia. to the wants of officers and soldiers of the gaiTison. ·' In cas~ there should be but one trader allowed at this post, in mv judgment he is A.. [Producing paper.] Here it is. much better entitled to the position than any one else, as he attends strictly and Q. To whom is it addressed 7 personally to his business. Neither of the other traders (E. H. Durfee and J. C. A.. It is addressed at the bottom "To the honorable the Secretary Dent) _have ~ver b.een here, ~hey being represented by agents. In view of these of War United States, Washington, D. C." facts, ill coDSideration of the mterests of the troops, and in justice to Mr. Evans, I urgently recommend to the Secretary of War or to the competent authority his . Q. Is there any indorsement on it showing the date when it was appointment. received by the Secretary of War f B. H. GRIER-SO~, A.. No, sir; it was an inclosure in another letter. OoZonel Tenth OavaJ.ry, Brevet Major-6e1U'T'al U: S. A., Oommanding Post. Q. At what time was it received in your office f Q. (By Mr. Manager McMAHON.) Did another inclosure accompany A. September 23, 1870. that, a recommendation of the officers stationed at Fort Sill f Mr. Manager McMAHON. Let the Secretary read that letter, if A.. It did. I handed it to the Secretary. yon please. Mr. Manager McMAHON, (to the Secretary.) Read that next rec- Mr. C.A..RPENTER. That will not do. Is Evans's letter evidence ommendation. against usf The Chief Clerk read as follows : Mr. Manager McMAHON. It waa addressed to the Secretary of War. FORT SILL, h'DIAN TEI:RITORY, - , 1870. Mr. CARPENTER. Does that make it evidence Y To the HON. SECRETARY OF WAR, Washington, D. 0.: . Mr. Manager Mc~IA.HON. It is an application for a post-trader- We, the undersigned, officers of the Army at this post, would most respectfully ship at Fort Sill. recommend Mes rs. John S. Evans and John I . .Fisher, the present :{lOSt-traders .Mr. CARPENTER. I should hate to be tried by every letter which (under the firm name of J . S. Evans & Co.) at this post., for the position of post- I have received. traders under the new act. Mr. Manager McMAHON. Yon would not need to ue tried if you 202 TRIAL OF WILLIAM W. BELKNAP. had been behaving right after the letter was received; but if a man SATURDAY, July 8, 1876. does not behave himself the case is diiferent. Mr. CARPENTER. Let me see what it is. [Examining paper.] The PRESIDENT p1·o tempo1·e. The hqur of twelve o'clock having Very well. arrived, the legislative and executive business of the Senate is sus- Mr. Manager McMAHON. Read that letter, Mr. Secretary. • pended, and the Senate wi1l proceed to the consideration of the articles The Chief Clerk read as follows: of impeachment against Wi]J.iam W. Belknap, late Secretary of War. PHILADELPHIA, PECI."NSYLV.A..."UA, August 18, 1870. The usual proclamation was made by the Sergeant-at-Arms. Sm: I take the liberty of calling your attention to the accompanying recom- The PRESIDENT pro tempore. The Honse of Representatives will mendation by the officers of the garrison at Fort Sill, Indian Territory, with the be notified. indorsement of the commanding officer, General Grierson, for my appointment as Messrs. LYNDE, McMAHON, JE~Ks, LAPHAM, and HoAR, of the man- "tr~er " at said post. Permit me to state, in support of my application, that acting upon the belief that agers on the part of the House of Representatives, appeared and were my wesEint appointment was in conformity with the e.Ai..~ting laws regulating "trad- conducted to the seats aasigned them. ers, and that the same would be of a reasonably _Permanent character, I have, in The Secretary read the journal of proceedings of the Senate sitting good faith, with the view of a satisfactory proVIsion for the prosecution of my yesterday for the trial of the impeachment of William W. Belknap. busine s, and in the interest and convenience of the troops, with care for objects beyond those, leading to personal aggrandizement, made extensive improvements The respondent appeared with his counsel, Messrs. Blair and Car- in buildings, &c., and have made heavy investments of a mercantile character, penter. . amountin~ the aggregate to more than $d0,000. The PRESIDENT pro tempore. The managers will proceed with I beg also to state that I have formed a coparlnersh!P with Mr. E. H. Durfee, the examination of witnesses. now trading at the same place under like authority, and our investments at Fort sm combinr.d aggregete a sum exceeding $125,000. Mr. Manager McMAHON. We were not through with Adjutant- In view, then, of the interests that we have at stake and of the vital importance General Townsend yesterday. If he is present, we should like him of retaining the protection heretofore enjoyed, because, if the same shall be with- to take the stand again. drawn and m the event of our being thrown out of the privileges and protection we now have, our property would become almost valueless, I most respectfully solicit an appointment for Mr. Durfee and myst>lf to continue trading at said mili- E. D. TOWNSEND's examination continued. tary post as a firm under the style of Evans & Durlee, under such regulations and restrictions as may in future govern ''traders." By Mr. Manager McMAHoN: Craving indulgence for thus trespassing upon your time and patience, which Question. I believe the last paper we read yesterday was a letter nothing but threatened injury would have induced, I have the honor to be your from JohnS. Evans, dated at Philadelphia, August 10, 1870. State obedient servant, JOHN S. EVANS. now whether another copy of a recommendation of him by the officers The Hon. SECRETARY OF WAR, U. S., of Fort Sill accompanie{l that letter; we seem to have two copies Washington, D. 0. here in these certified copies . Mr. CARPENTER. I wish to know from tlie managers if they ex- .Answer. I think that the other copy, the one which was read yes- pect to have Mr. Evans here as a witness Y terday, was transmitted from Fort Sill direct, and that the copy which Mr. Manager McM.AHON. Mr. Evans has been under subpama, was not read but which bears, at any rate, many of the same signa- and will be under attachment if he does not put in au appearance. tures as the first did, was transmitted with Evans's Jetter from Phila- Mr. CARPENTER. I have no objection to the letter being re- delphia. ceived with the understanding that if he is not to be here as a wit- Q. Have you that inclosure with you now¥ ness the letter will not be used against us. A. I left the papers yesterday mt,h the reporter to put them in the Mr. Manager McMAHON. We claim it to be evidence, whether he RECORD. comes or does not come. We claim it, independently of his being or [The papers were handed to the witness.] not being here, as an application to the Secretary of War and coming Q. I simply want the recommendation of the officers; it is the one under his knowledge. We make no condition. that has the date ·to it, June 23, 1870. Mr. CARPENTER. We do not propose to be ridden over so easily .A. I have it in my hand. on a point of that kind. Q. Hand it to the Secretary and let him read it. Mr. Manager McM.AHON. I say we make no conditions ; that is A. Yes, sir. all. The Chief Clerk read as follows: Mr. CARPENTER. If Mr. Evans, Mr. Smith, or anybody else can FORT SILL, L'IDIAN TERRITORY. write a letter to l\Ir. Belknap and that letter becomes evidence against June 23, 1870. We, tbe undersi.gned, officers of this ~arrison, having confidence in the ability him, we are in a remarkable state of the law. and business integrity of Mr. John S. Evans, trading at this post under existing Mr. Manager HOAR. I suppose there is no objection to allowing authority. do respectfully recommend and solicit his appointment as post-trader, the counsel to avail himself of the objection hereafter, if Mr. Evans under section 22 of the bill for the reorganization of the Army. ORLANDO H. MOORE, does not come. Captain Sixth lnfantr7J. Mr. CARPENTER. Very well. J.W.WALSH, Mr. Manager HOAR, (to Mr. Manager McMAHON.) That will an- Captain Tenth Oaval:r?J. swer your purpose Y ROBERT GRAY, Captain Tenth Cavalr?J. Mr. Manager McMAHON. That will do. W. F. ROCKWELL, Mr. CARPENTER. It will be received, then, subject to objection, Brevet Lieutenat-Oolonel and AsS'Mtant (/uarterrrulster, U. S. A. which may be made hereafter. . JOHN B. VAN1JE WIELE, The PRESIDENT pro tempore. The letter will be received with that Oaptain Tenth Cavalry, Brevet Major, U. S. A. R.H.PRATT, understanding. First Lieutenant Tenth Oavalry, Brevet Captain, U. S. A. Mr. EDMUNDS. I move that the Senate sitting for this trial take P.L.LEE, a recess until half past seven o'clock. Captain andBrevet Lieutenant-Oolonel, U.S. A. Mr. CARPENTER. Is the motion made With an understanding JAMES POWELL, JR., Oaptain Sixth Infantry. that it is to be a recess of the trial, to go on to-night i GEO. P. SHERWOOD, Mr. EDMUNDS. Ye , sir. First Lieutenant Sixth United States Infantry, Commanding Company E. :Air. CARPENTER. I want to just appeal- WM. E. DOYLE, 1\Ir. EDMUNDS. I submit that on a question of this kind counsel Second Lieutenant Tenth United States OavalnJ. THOS. J. SPENCER, are not entitled to be heard. First Lieutenant Tmth OavalT'IJ, Brevet Oaptain, U.S. A. :Air. CARPENTER. I insist that we are, and I want to argue the THUS. M. WILLEY, question. Lieutenant Sixth Infantry. W. W. SANDERS, The PRESIDENT pro telltpm·e. The Chair overrules the point of Oaptain Sixth lnjantnJ, Brevet Oolonel, U. S. A.. order. GEO. ROBINSON, ~Ir. EDMUNDS. Very good. Captain Tenth Oavalr?J- Mr. CARPENTER. If a Senator can rise here and enter an order. ORVILLE BURKE, Captain Tenth Cavalry. which takes away one of our rj.ghts, or which takes away one of our R.ll. DAY, chances of living long enough to make our rights apparent, he can First Lieutenant Sixth Infantry. enter an order taking them all away, and we cannot be heard upon WM.H.BECK, it. I protest against that. I protest that every order which is to First Lieutenant, R. Q. M., Tenth Oaval;ry. A.. MACOMB wETHERILL, affect us herein thiscansewehave aright to be heard upon . "Strike, Seco'T}d Lieutenant Sixth Infantry. but hear me," is the foundation of all jurisprudence in all civilized lands. Then I want to make an appeal to every Senator who has any Q. (By Mr. Manager McMAHON.) ll.ave you there a letter from John of the "milk of human kindness" in him not to drag us through a S. Evans accepting the position of post-traderf night trial. A. I have two letters. The PRESIDENT pro tempote. The Senator from Vermont moves Q. State why you have two. that the Senate take a recess until half past seven o'clook. A. One of them is addressed direotily to the Secretary of War, who The motion was not agreed to. signed the appointment of Evans. Mr. INGALLS. I move that the Senate sitting as a court do now Q. Are there any marks upon that which indicate that it was rt). adjourn. - ceived by the Secretary of War and from his office transmitted to yours The motion was agreed to; there being on a division-ayes 31, noes A. No, sir. 14; and the Senate sitting for the trial of the impeachment of W. W. Q. How did that paper get into your office or possession f Belknap adjourned until to-morrow at one o'clock. . A. I am unable to say. TRIAL OF WILLIAM W. BELKNAP. 203 Mr. CARPENTER. What is the date of the letter you speak of, Immediately upon being informed by Mr. Evans that he was prepared to enter gentlemen! upon the duties of trader, Mr. Walker was notified to close his store and remove his stock, &c., from the military reservation without delay. (Copy of letter here- Mr. Manager Mc?!IAHON. Let the Secretary read it. with inclosed.) · · The WITNESS. I will hand it to the Secretary. Mr. Walker, fulling to sell his goods to Mr. Evans, was given a reasonable time The Chief Clerk read as follows: to obtain the necessary transportation to remove his property, which arrangement FORT SILL, INDIAN TERRITORY, was perfectly satisfactory to Mr. Evans, as be informed me then and since. The Novemher 10, 1870. goods, bnildini!S, &c., were all removed about the 1st of January. Very respectfnlly, your obedient servant, Sm: I have the honor to acknowledge the receipt of your letter of October 10, B. H. GRIERSON, 1870, appointing me post-trader at this post under section 2'2 of act of July 15, 1870. Oolonel Tenth CavalnJ, c01nmanding. I have the honor to report that I accept the position of post-tra.Uer under that To the ADJUTA."\T·GENERAL, United States Army, act. lVashinglon, District of Oolumbia. I am, sir, very respectfully, your obedient servant, JOHN S. EVANS. Q. (By Mr. Manager McMAHoN.) Have you the inclosure that ac- Hon. WILLIAM W. BELKNAP. companied that letter, being the order of Grierson to those parties f Secretary of War, Washington Oity, D. a. A. I have that, dated November 20, 1871, addressed to J. C. Dent & Q. (By Mr. Manager ~~cMAHO:N.) A letter like that being addressed Co., traders. to the Secretary of War would go to him and be opened lJy him before Q. That is another letter, I suspect; look again. it came into your office, would it not f A. Perhaps I can explain why this comes as an inclosure to the let- A. That depends upon the address upon the envelope. . ter of. General Grierson. · Q. What marks are on that indicating that it was received by you, Q. Give any explanation. if any, and when it was received by you f 1\Ir. CARPENTER. What is the inclosure f A. The usual office marks are indorsed. Mr. Manager McMAHON. The inclosure of a letter that seems to Reed. A. G. 0., C. B.- be dated some months afterward. It may be a copy of the paper which means" commission branch," where these letters are filed- that he had isRued to the other parties. Nov. 25, 1870. Mr. CARPENTER. Let me see it. Q. (By Mr. CARPENTER.) November 10 was the date; and when Mr. Manager McMAHON. We lay no stress on it. was it filed! Mr. CARPENTER. Then it goes out. A. Filed in the Adjutant-General's Office November 25, 1870. Mr. Manager McMAHON. ThE.\ General desires to make an expla- Q. (By Mr. 1\IcMAHON.) Now pass to the other formal acceptance nation in regard to it. I do not know what it is. and give the date of that, and then hand it to the Secretary and let Mr. CARPENTER. There must be a mjstake of a year undoubt- him read it. edly aB to the date. It should be 1870 insteacl of 1871. Q. It is dated, ''Fort Sill, Indian Territory, December 1, 1870." The WlTNESS. It must be a mistake in the year in the copy. The Chief Clerk read as follows: Q. (By Mr. Manager McMA.Ho:N.) Look a.t your indorsement up- FORT Sn.L, INDIAN TERRITORY, on it. December 1, 1870. A. Supposing it to be a mistake, the e:xpl11>nation is very clear. To the Adjutant-General United States Army, Washington,· D. a. Mr. CARPENTER. The letter inclosed should be 1870. Sm: I have the honor to state that having been appointed trader at this post by Mr. Manager McMAHON. I think so. (To the witness.) State the Secretary of War, that I accept the same. whether you have an indorsement on this letter as to the dat-e at I am, sir, very respectfully, your obedient serv:mt, which you received it. That is, the letter dated November 20, 1871. .TOHN S. EVANS. Is there not an indorsement" Received in Washington March 13, 1871, Q. (By Mr. Manager McMAHON.) Do yon know how two letters and submitted to Secretary of War J" came to be written by Mr. Evans accepting this position! A. That was an indorsement of the War Department. A. I suppose from the terms of the letter of appointment. The Q. (By 1\Ir. Manager McMAHO:N.) Now read the letter and then letter of appointment recites the act under which the appointment read the. indorsements on both tJ:10se letters. is made, and is signed by the Secretary of War. The last clause says: A. This letter of Colonel Grierson of February 26 is marked: You will please report to the Department, through the Adjutant-General's Office, "Received at the Adjutant-General's Office March 11, 1871." An in- your acceptance or non-acceptance of this appointment. dorsement dated March 13, 1871, by the Adjutant-General submits it Q. Have you any means of knowing whether that first letter which to the Secretary of W nr. The War Department stamp shows it to was directed to "Hon. W. W. Belknap" pa sed through the War De- have been received there the same date, March 13,1871. partment proper, through his office, before it came into your office 1 Q. How about the inclosed letter or order Y A. 1\o, sir; I have not. A. At tb.e same time that the appointment was made for the trader Q. Have you an order before you of the date of the 14th of Jan- signed by the Secretary of War, that letter was addressed to the com- uary, 1871, communicated through yon to the commanding officer at manding officer at Fort Sill by the Adjutant-Genera.], in which occur Fort Sill, to remove all the traders from the post except Mr. J. S. these words : Evans! A s soon as Mr. Evans shall be prepared to enter upon the discharge of his duti es, A. I have. you will cause the removal from the military reservation at Fort Sill, In dun Ter- Q. From where did that order come to you f ritory, of all .traders not holding ~ letter of appointment from the Secret.try of War A. It came in the handwriting of the Secre:tary of War, signed under said act. with his initials, in an envelope addres ed to me. That was the printed form addressed to all commanding officers Q. Please hand it to the Secretary and let him read it. · when appointments were made at posts of post-traders. Supposing, A.. I will. then, the date of the order inclosed in Colonel Grierson's letter to be The Chief Clerk read as follows : a mistake for November 20, 1870, this order would be a compliance A. G.: with the instructions from the Adjutant-General. Commanding officer at Fort Sill to be notified to remove all traders from that Q. Now we will turn back to your order issued under the instruc- post except Mr. J. S. Evans, who was appointed by Secretary of War under act tions of the Secretary of War Qn the 14th of January, 1871; and I .fnly 15, 1810. I understand that Mr. Walker still remains there with stock of goods. ask you whether that was a general order issued to all post-traders or W.W.B. officers commanding at posts, or a special order sent to Jl'ort Sill alone Y .TANUARY 14, 1871. A. That particular order referred solely to Fort Sill. Q. (By Mr. Manager McMAHON.) Upon what date did you commu- Mr. CARPENTER. What is that orderf nicate those instructions to the commanding officer at Fort Sill! Mr. Manager McMAHON. That is the order commanding him to A. Upon the 17th of January, 1871. remove all post-traders except JohnS. Evans. Q. Now, before proceeding to any other documentary proof, I will (To the witness.) Do you know of any similar order having been ask you if there is any record in your department of a. letter from issued to any other specific post f any person stating that Mr. Walker wa-s still tht>-.re with his stock of A. I do not recall any other; there may have been. goods! Q. (By Mr. Manager McMAHON.) That question was put to you, A. I have a letter from Colonel Grierson, the commanding officer of was it not, by the Judiciary Committee and called to your attention the post, dated February 26, 1871. at that timet Q. That, however, is subsequent. The order that you havejustread Mr. CARPENTER. That is immaterial. was dated the 14th of January, 1871, and the letter of General Grier- Mr. Manager McMAHON. It may have refreshed his recollection; son is dated February 26, 1871. I speak of a letter prior to the issu- that is all. ing of that order. The WITNESS. I do not remember. A. I find no such letter. Colonel Grierson, in the letter of Febru- Q. (By Mr. Manager Mc::i\!AHoN.) You have no recollection of any ary 26, acknowledges the receipt of the letter of the 17th of January. similar order Y Q. In this connection, hand it to the Secretary and let him read A. No, siT. that. M:r. Manager McMAHON. Read the letter, Mr. .Secretary, ad- A. Yes, sir. dre · ed to J. C. Dent & Co. The Chief Clerk read as follows : The Chief Clerk read as follows : IlRADQUARTBRS, FORT SU.L, INDIAN TERRITORY, HEADQ UARTERS FORT SILL, INDIAN T ERRITORY, FelJrua:ry 26, 1 71. November 20, 113ll. Sm: I have the honor to acknowledge the receipt of communication of January Sms: JohnS. Evan!'! havin~ been appointed post-trader at Fort Sill, Ind~an Ter- 17, 1871, relative to the removal of all traders from this reservation other than ritory, antl having notified this office that be is prepared to enter upon the discharge J. S. Evans, who has been appoi?ted by the Secretary of War. of his duties, you will immediately close your store and as soon as possible remove 204 TRIAL OF WILLIAM W. BELKNAP. your goods from the military reservation, unless yon ha\e. an appolntment from Mr. Manager McM.A.HON. We withdraw the question. (To the the Secretary of War to trade at this post nnderthe provisions of section 22 of the witness.) See wheth&r you have a correspondence that passed in act of July 15, 1870. No notice of snob appointment has been received at this of- fico, and I am directed by instructions from the Secretary of War to oa.nse there- part through the Depanment of Justice in regard to charges against moval from the military reserve of all traders not authorized by him. John S. Evans which were submitted to the Secretary of War; and, By order of Colonel B. H. Grierson. if so, give us that entire correBpondence. WM. H. BECK, A. I have a lett~r dl.tted October 28, 1871, from the Solicitor of the J.ilr11t Lieutenant, Regimental Quartermaster Tenth Cavalry, Post .Adjutant. J. C. DEXT & Co., Traders. Treasury, transnrltti,ng copies of papers charging Evans & Co. and Official: other parties with introducing spirituous liquors in the Indian J. WILL MYERS, country. Second Lieutenant Tenth CavalnJ, Post .Adjutant. Mr. Manager McMAHON, Please hand it to the Secretary, and he Q. (By Mr. :Manager McMAHoN.) Have you now with you a gen- will read it in detail. eral order issued from the War Department of the 7th of June, 1tl71, Mr. CARPENTER. Let me ask what is the object of offering this or circular of instructions defining the status of post-traders t letter t A. I have. Mr. Manager McMAHON. It contains certain facts. Q. Please hand that to the Secretary and let it be read. .Mr. CARPENTER. The letter is no evidence of facts, and there A. I have the manuscript and also the printed copy in this docu- is nothing in the articles about whisky regulations. ment. 1\fr. Manager McM.A.RON. It is a letter which was submitted to Q. In whose handwriting is the manuscript! the Secretary of War, upon which he wrot-e a letter, which we have A. My impression is that it is in the handwriting of :Mr. H. T. here as well. Crosby, who was a clerk in the War Department. It is signed by the Mr. Manager JENKS. It is introdnct.ory to the next let.ter. Secretary of War. Mr. CARPENTER. Then let us hear the next letter first. lli. Manager McMAHON. Read it, Mr. Secretary. Mr. Manager McMAHON. If you come over here, we will show it The Chief Clerk read as follows : to you. [Handing a letter to the counsel.] WAR DEPARTME~'T. Mr. C.ADPENTER, [examining the letter.] I object to all that Washinoton Oity, June 7, 18TI. proof. It does not go, so far as I can ascertain, to sustain any charge Let the following be issued as a oiroula.r of instructions defining the status of made in these articles at all, nor is it evidence of anything necessary post-traders, a. copy to each commanding officer and trader. for them to prove so far as I can see. They certainly do not state any Post-tr •.ders appointed under the authority givon by the act of July 1:5,1870, will be furnished with a letter of appointment from the Secretary of War, indicating reason why this should be received. One of the managers says he the post to which they are appointed. wants to prove by it that Evans was there acting as post-trader and Th<:q are not subject to the rules prescribed in article 25, or paragraphs 1~6 and that Belknap lmew it. As they have shown the fact that Belknap 197 Army Regulations, 1863, in regard to sutlers, that office having been abolished by appointed him, it is pretty good evidence that he knew that Evans law. No tax or burden in any shape will be imposed upon them, nor will they be was appointed. There is no question made here that Belknap did not allowed the privilege of the pay table. . know that be was tho po t-trader thero; not the slightest. They will be permitted to erect buildings for the purpose of carrying on their lli. Manager Mc~:lAHON. Mr. Pre ident and Senators, the letters business, upon such part of the militllry resermtion or post to which tboy may be which we now offer by way of introduction to sub equent letters assi~ed a the commanding officer may direct, such buildings to be within oon- vement reach of the garrison. are letters which make certain specific charges against the post-trader, They will be allowed the exclusive privilege of trade upon the military reserve John S. Evans. The theory of this prosecution is, and up to this to which they are appointed, and no other person will be allowed to trade, peddle, point tolerably well sustained, that John S. Evans was appointed or sell goods, by sample or otherwise, within the limit,r; of the reserve. They are under military protection and control as camp-followers. through the influence of Caleb P. Marsh and in pursuance of a cor- Commanding officers will report to the War Department any breach of military rupt bargain between them, the profits of wmch were equally divided tel!Ulation or any misconduct on the part of traders. between .Marsh and the Secretary of War. That the Secretary of War All previous instructions in regard to post-traders are hereby revoked. did actually and personally receive his share of tho fruits of this ar- WM. W. BELKNAP, Secretary of War. rangement, no man who has any regard for testimony can doubt. The Q. (By Mr. Manager :McMAHON.) Look at the book I hand you, great question for this tribunal is whether he received it knowingly, a.nd see if the sections marked are the two sections of the .Articles of under such circumstance~ that any officer of honesty and integrity War allnded to in that order Y ought to have known where this money was comin~ from. A. [Examining book.] Those are the sections. The particular point., therefore, to he investigated is the conduct Mr. Manager McMAHON. Mr. Secretary, please read those two of the Secretary of War. Whenever this particular post-trader is af- sections. fected, from whom he is receiving his gains, the p:1rticular point is 1\fr. CARPENTER. Are they sections of the Statutes 1 to discover how the Secretary of War acts. What he may say is very Mr. Manager McMAHON. They are sections of the Army Regul~ direct and positive te timony, but it is not any more direct and posi- tions. tive than what he may do. The gentleman says that they have ad- The Chief Clerk read as follows: mitted that the Secretary of War knew that JohnS. Evan waspo t- trader at this point-a very extraordinary admission to make! 196. The post council shall prescribe the quantit.y and kind of clothing, small Mr. CARPENTER. No, I did not admit it; you proved it without equipments, and soldiers' necessaries, groceries, and all articles which the sutlers maybe required to keep on baud; examine the sutler's books and papers, and fix objectiou. · the tariff of prices of the said gol)ds or commodities; inspect the sutler's weights :Mr. Manager Mc~IAHON. If we ha>e proved it by one witness, and measures; fix the laundress's charges, and make regulations for the post there is no law against our proving it by another. If we have proved schooL it in a manner which does not bring conviction home to the gentle- 197. Pnrsuanttothethirtietharticleofwarcommanclingofficersreviewingthepro- ceedings oftheoounoilof administration will scrutinize tho tariff of prices proposed man, it ought to satisfy him that we may introduce the letter of the by them, and take care that the stores actually furnished by the sutler correspond Secretary of War. to the quality prescribed. . Mr. CARPENTER. Yon have proved by the only testimony which Q. (By Mr. Manager Mc1riAHON.) General, I will ask you whether can prove it, to wit, the record of his appointment, that he was ap- the effect of this circular of instructions was to prevent the council pointed. After yon have proved the record of a judgment in a court of administration or any person from interfering with the prices that of record, you cannot call witnesses to prove_that the judgment was sutlers or post-traders might charge¥ rendered, because that is cumulative. You have introduced eon- Mr. CARPENTER. That will not do. It is self-evident on its face. elusive evidence, and I have said to you that we do not deny it; we Mr. Manager McMAHON. We withdraw the question. (To the make no point upon it. Of course the Secretary knew that Evans witness.) After the repeal of these two sections, 196 and 197, were was post-trader. there any other statutes or articles of war that permitted the prices Mr. Man:tger 1\fcMAHON. We have introduced conclusive evidence which a trader might charge to be regulated by any person except that JohnS. Evans was in fact the post-trader, but whether the Sec- himself! retary of War had forgotten the fact in the multitude of his different Mr. CARPENTER. That will not do. appointments is another important fact in this ca-se which we propose Mr. Manager McMAHON. I ask if there were any other regul~ to show had not occurred; that he had not forgotten that JohnS. tions. That is proper. Evans wa-s the post.trader, but on the contrary that he was receiving Mr. CARPENTER. You call upon the witnessto construe the reg- testimony as to Johil S. Evans's goo9. character, supporting and sus- ulations. It is manifest that you cannot ask the witness to construe a tainin~ John S. Evans all along. Then if the gentlemen desire to see statute which you hand to him. You cannot ask him if there is any the full force of what we claimfrom it, we propose toshowthatwhen statute which ha-s such an effect. the New York Tribune article was published statements were therein lli. .Manager McMAHON. The point we desire to get before the made in regard to this particular matter and its status exactly given. Senate is this: We do not ask a construction of sections 196 and 197, Then we come to tlte order to which the gentleman baa alluded so but we ask theAdjutant-General as a matter Of fact whether, if these frequently as a triumphant vindication of his client. The order ex- articles are repealed, there are any other articles of war or statutes- culpating his client, by some singular and extr-aordinary coincidence, we do not care about the statutes, but any other articles of war- bound to it every other post-trader in the country except JohnS. which impose any restraint whatever upon a. post-trader in regard Evans, and did not affect Caleb P. Marsh in the slightest degree in to the prices he may charge for goods. the relations between Marsh and Evan , except, as we shall prove Mr. BLAIR. It is obviously a question of law. hereafter, that the amount of contribution paid by Marsh to Evans Mr. CARPENTER. If you called the JndgeAdvocate-General,you was diminished by one-half, and the amount, of course, that went to would get uearer to it ; but I should object to it then. The Army the Secretary of War was correspondingly diminished, and that was regulation& are statutes themselves. by rca-son of :tllowing a council of administration to fix the prices. TRIAL OF WILLIAM W. BELKNAP. 205 Now, I think that this testimony is clearly competent in every view War, considered by him, and letters addressed by him in answer to which can be taken of it. the complaints therein made. Mr. BLAIR. I propose to ask the gentleman whether in point of A. I can only judge by the marks on the papers and by copies of fact, and speaking candidly as a gentleman occupying his position letters which were sent to my office for file in connection with the before the Senate ought to speak, his only object in introducing this subject. I have no personal knowledge of the matter. paper is to show that John S. Evans was at that time the post- Q. Have you a letter there from the Secretary of War, signed by trader! him personally, in regard to these matters; and have you also a let· Mr. Manager McMAHON. A sufficient answer to that is, that if it ter there adchessed by the Secretary of War, in consequence of these is competent for that purpose, it is competent; bnt I will go further, letters, to J. S. Evans, post-trader at Fort SillY and say that I want to show not only that M]:. Belknap knew he was A. I do not know that I understand the :first quest4on. the post-trader, but that he made inquiries into his business standing Q. The first question is whether these letters were not submitted to and fixed his status in his mind as a good business man; and I sup- the Secretary of War and responded to by him in a subsequent letter. pose he had good reason, from his stand-point, to think so. A. That I have replied to; but I refer to the question just previous Mr. BLAIR. Then, Mr. President, the gent.Jeman now says it is to the last one. admitted that the ostensible object for which lle offers this proof is Q. Well, did he reply to these letters T And, if so, give us the dates. not his real object at all; that he has some ulterior object in offering A. [Producing papers.] I have copies of letters which were sent this proof which he has not the candor to state to this court. to me for file. Mr. Manager McMAHON. I deny the imputation; it is not true; Q. Of what date f but I do not mean to be rude a.bout it. A. This copy says "Nov. 18, 1871, to Col B. H. Grierson, command· Mr. BLAIR. Mr. President., the gentleman has not stated any ing Fort Sill." otiler object. He gets up here and tells the Senate that his object Q. One moment. That may not be the one. There is one to the in offering this proof is to show that it was known to the Se~retary Solicitor of the Treasury November 8, 1871. of War that JohnS. Evans was the trader at Fort Sill, a fact that is A. I have two to the Solicitor of the Treasury, one dated Novem- not denied, a fact that is proved by other testimony, which is not a ber 2, 1871, and the other November 8, 1871. matter at all that we contemplate denying or controverting. This Q. Signed by the Secretary of WarY is the only object which be has at;signed to this body as a motive for A. These are copies signed with his initials. I do not mean to say introducing this paper. We say that until something legitimate in that they are signed by his own initials, but signed as copies with his reference to the issues here before this body is assigned for introduc.- initials attached. ing this evidence, it is wholly immaterial and irrelevant to the issue Q. But they are official copies filed in your office t before the body; and we hope it will bo excluded until some reason Mr. CARPENTER. What does the witness understand by "official is given for its introduction. copies f" Would he call any copy filed in the office au official copy t Mr. KERNAN. The manager will please tell us from whom the Mr. Manager McMAHON, (to the witness.) State what you call letter is which he now offers and who answers it. We do not under- an official copy there. stand it here. · Mr. CARPENTER. He bas not called it an official copy. Mr. Manager McMAHON. The letters a.re addressed by the regu- Q. (By 111r. Manager McMAHoN.) Take the letter of November 8, lar United States ~uthorities in the Indian Territory to the Depart- 1871. ment of Justice, and are communicated to the Secretary of War and A. TheletterofNovember8, 1871,is dated "War Department"-- by him answered. Q. Let me see the paper itself. [Examining letter.] That was the I want to put this question to the honorable counsel: Do you con- paper that was filed in your office f tend that in view of the issue joined between us in this case the con- A. Yes, sir. duct of the Secretary of War to John S. Evans and everything that Q. Whose handwriting is that paper in f throws light upon their dealings with each other is not competent in A. I do not recognize the handwriting. this case f . Q. How did it come into your office and from whom f .Mr. BLAIR. If the gentleman means to state to this body that A. If I had the other papers, I could tell. [Mr. CARPE~~R handed his object is to show by this paper that the Secretary of War did the papers t.o witness.] They came at the same time that the papers in any way by his conduct in that matter show favor to John S. from Mr. Banfield came and were inclosed with t.hem, having the Evan , and that this is proof material to the issue, then let him say same office-mark. so, and we shall prepare to controvert that subject and show that it Q. Being the complete correspondence upon that subject¥ i not material in that aspect; but the whole body will see that that A. Yes, sir. is not the avowal of the gentleman at all. He gets up here and asks Q. Were they filed by you, and have they been filed and kept by you the introduction of a paper as evidence to prove a fact utterly with- as copies of the correspondence and the record f out any consequence at all, and keeps in reservation the real object A. They have been. that he has in view. I say that is not the proper way to conduct this Q. That letter of General Belknap you will :lind refers at the be· ca-se, and I think the Senate, :lS well as the parties here, have a right ginning "In further response to your lett-er of the 28th ultimo." to have candid and fair and round dealing. The gentleman has not That seems to be in reply, does it not, to the letter of the Solicitor of yet explained the object which we a8ked him to givens clearly and the Treasury dated October 28, 1871 Y precisely when he rose and presented the paper. Let him do so, and A. Itdoes. then we shall ee whether it is legitimate in that aspect of the case. Mr. Manager McMAHON. We now offer all these papers in evi- The PRESIDENT pro tempore. The Chair will submit the question dence. to the Senate. Shall these letters be admitted f Mr. CARPENTER. The court has already ruled them in. I do not The question was determined in the affirmative. suppose we could prevent it now. The PRESIDENT pro tempore. The managers will proceed. Mr. Manager McMAHON. Let them be read. Mr. Manager McMAHON, (to the witness.) General, refer to the Mr. CARPENTER. Yes, let them all be read. letter of October 28, 1871; state what it is and then hand it to the The Chief Clerk read the papers received in evidence, as follows: Secretary, if you please, to be read. DEPARTME..I.-yr OF JUSi'ICE, Mr. CARPENT~R. Tell us whose letter it is. OFFICE OF THE SoLICITOR OF THE TREASURY, Mr. Manager McMAHON. It is a letter to E. C. Banfield, Solicitor Washington. D. 0., October 28, 1871. of the Treasury. Sm: I herewith transmit copies of letters received at this office from J. H. 'rhe WIT~'ESS. It is a letter sent to the Adjutant-General's Office Huckleberry, United States attorney, western district of Arkansas, chargin~ for file, signed E. C. Banfield, Solicitor of the Treasury, addressed to Evans & Co. and other parties with introducing spirituous liquors, wines, ami ale inro the Indian country. Ron. W. \V. Belknap, Secretary of War, and dated "Department of Please inform me whether the parties referred to in these letters have been Justice, Office of the Solicitor of the Treasury, Washington, District authorized by your department to introduce liqnor into the Indian country as con· of Columbia, October 28, 1871," with two inclosures dated "Clerk's tern plated in section 1, act of March 15, 1864. (13 Statutes, pa~e 29.) office; United Stat.es court for the western district of Arkansas, Fort In view of the numerous complaints made in relation to this matter, permit me to call your attention to the power vested by this act in a commanding officer of a Smith, Arkansas, October 18, 1871, to Ron. E. C. Banfield, Solicitor of military post in relation to the seizure of spirituous liquors or wines unlawfully the Treasury," and signed by ''J. H. Huckleberry, United States at- introduced into the Indian country. torney." Another inclosure of the same date, to "Hon. E. C. Banfield, I am, very respectfully, Solicitor of theTreasury,"isalsosigned by "J. H. Huckleberry, United E. C. BANFIELD, Solicitor of the Treas'l£ry, S ~a~s attorney." Both inclosures purport by the signatures to be Hon. W. W. BELIL~AP, cop1es. Secretary of War. Q. (By Mr. CARPENTER.) Do you know anything about whose hand writing they are in f Mr. l\Ianager 1\IcMAHON. Now read the inclosure of October 18, A. No, sir. 1b'71. 1\-Ir. CARPENTER. I object to the papers 01l that ground. The Chief Clerk read as follows : Q. (By Mr. Manager McMAHoN.) l>o they purport to be official CLERK's OFFICE, UNITED STATES CoURT copies sent to the Secretary of War and submitted to him f FOR WESTER.~ DISTillCT OF ARKA..'\SAB, A. Yes, sir; the two inclosures purport to be copies, and there is Fort Smith, Arkansas, October 18, 1871. what seems to be an original letter from the Solicitor of the Treasury Sm: What. right has E'ans & Co., at Fort Sill. to introduce wine and ale into the to the Secretary of \V ar. Indian country ~ I am informed by r eliable authority that some tifty thousand dol· lar 'worth of this kind of spirituous liquors were introduced by the .·aid firm, they Q. State whether these papers were delivered to the Secretary of claiming that they had permission to introduce the !"aid spirituous liquors. li 206 TRIAL OF WILLIAM W. BELKNAP. they nre nuthorized to introduce the same, please furnish me with a. copy of their .A. • .A.bout that same time. permit, in order to see whether or not ihe same has been violated in nny particular. Very respectfully, Q. Was it possible to have received any communication by the Sec- . J. H. HUCKLEBERRY, retary of War from Fort Sill between the 28th of October and the 8th United States AUorney. day of November Y Hon. E. C. BANFIELD, .A. It might have been received by telegraph. Solicitor of the Treasury. Q. Are any such telegrams on record in the office 7 Mr. WRIGHT. Mr. President, may I be allowed to submit an in- .A. Not in my possession. quiry to the managers and also to the counsel as to whether there is Q. Did you make search for all the official documents relating to any necessity that these pn.pers shall all be read, and whether it would the Fort Sill matter on the request of the Judiciary Committee of the not be sufficient that they be banded to the reporter without read- House of Representatives Y mg them at this timet , A. Yes, sir; I did. Mr. Manager McMAHON. We have no objection to that being Q. Did you find any letters on file or any statements from any done. friends of J. S. Evans & Co. in regard to the introduction of liquors at :Mr. CARPENTER. I do not understand that it would be a. proper Fort Sill, or any of those charges that were made in this matterY way to try the case to proceed without reading the testimony. The Did you find a,ny letters, or statements, or telegrams ou file Y only chance we have got to compel anybody to listen to it is to have .A.. No, sir. it read on the trial. Q. Now have you a letter of the date of 2d of November, 1871, Mr. WRIGHT. My inquiry was this: when it is a,greed that n. pa- signed by the Secreta,ry of War and directed to John S. Evans Y .And, per is arlmissible in evidence, if it may not be regarded a-s read with- if so, hand that to the Secretary to be read. out taking up the time in reading it. Of course any question as to .A.. I have no such letter. the admissibility of a. paper ca,n be raised. Q. We have a. copy of it. You had better look tlirough your pa- :.Mr. CARPENTER. If the managers will concede the correspond- pers. ing presumption that the papers do not do us any h:1rm, we shall not Mr. CARPENTER We will loan yon our copy. have any objection; but if they claim that these papers n.re injurious Mr. Manager McMAHON. You have a copy t I thought yon said to us, we want to have them read fer the purpose of letting the Sen- a while ago you had not these letters that we were introducing. ate see right on the spot that they are not. No lawyer would try a Mr. CARPENTER. 0, no. case in a court of record in such a way as that. We have not seen Mr. Manager McMAHON. Yes, you did. You forget yourself. these papers; we do not know what they are. We want to hear them Mr. CARPENTER. No, I do not forget myself. The general prop- as we go on for t.L.e purpose of cross-examining the witness on them osition was made by the Senator from Iowa, that we should consider if n ecessa.ry. all these papers and letters as read. This pl1rticolar letter I happen Mr. WRIGHT. Of course I understand the counsel have t~at right; to have a copy of. but I suggest whether we might not sa,ve time by dispensing with 1t1r. Manager McMAHON. You had the Banfield letters. their reading. Mr. CARPENTER. The proposition was not to admit the Banfield :hfr. CARPENTER. Undoubtedly itwouldsave time; but it would letters, but all letters and documents. not save our rights. We maycross-ex::urune or else not having beard Q. (By Mr. Manager McMAHON.) Have you found that letter t these papers let the witness leave the sta,nd, and then they might .A. I have not. It may have been filed in the Department, and not slide in a bushel of papers. That would not be :1 proper way to con- in my possession. duct the case. Q. You furnished us with a certified copy and gentlemen on the The PRESIDENT pro tempore. The ma,nagers will proceed. other side also have one. Look over this copy and see where it may :hfr. Manager McMAHON. Mr. Secretary, you will read the second have come from. letter of Octouer 18, 1871. .A. (Examining.) It has evidently been furnished from the Adju taut- The Chief Clerk read as follows : General's Office. I do not know why it is not among the papers I have. CLERKS' OFFICE, U:NITED STATES COURT Mr. Manager McMAHON. We will read the certified copy. That FOR WESTER."V DISTRICT OF ARKANSAS, is evidence in itself. I send it to the Secretary to be read. Fort Sm.itA, Arkansas, October 18, 1871. The Chief Clerk read as follows : Sm : Frequent complaints are made of late in reference to spirituous liquors WAR DEPARTMIDi"T, being introduced into the Indian country by tho Missouri, Kansas and Texas Rail· WtUhington Oity, Novlmlber 2, 1871. road. Now, have they received nny authority to introduce said liquor , and, if so, SIR: Tho attention of this Department having been called to the fact that spir- under what r~~ulations 1 S•·cond. Certain white men claim the nght of furnish- ituous liquors have been taken into the Indian country without the authority of ing goods to weir men on tlult railroad without a. license from agent (subagent) this Department and against the express prohibition of law by certain parties, I oflildian affairs. Rave they that right, and, if not what advice would you give~ have the honor to request that you will inform me whether your firm has caiTied And also if the railroad bas not permission to introduce spirituous liquors, would liquors into that country to the value of $50,000 or any less sum previous to Octo- you advise that the same be seized and an information filed against them 1 Please ber 30, 1871; aud, if so, by what authority they were introduced there. answer the above questions a~ soon ru:1 possible. Very respectfully, your obedient servant, Very truly, WM. W. BELKNAP, J. H. HUCKLEBERRY, Secretary of lVar. United States AUorne-y. J. S. EV.L"'(S, Esq., Hou. E. C. BLWIELD, Post-Trad.er, Fort Sill, Indian Territory. Solicitor of the Treasury. :hfr. Manager McMAHON. \Ve have already offered in evidence, I Mr. Manager Mcl\f.ARON. Now let the Secretary read the two let- believe, the letter to Colonel Grierson at Fort Sill, dated the 17th day ters of General Belknap, the first dated November 2, 1871, to the So- of February, 1872. licitor of the Treasury, and the second dated November 8, 1871. The WITNESS. I have tha,t letter, but I have not testified to it. The Chief Clerk read as follows: :hfr. Mana,ger McMAHON. But it haB been put in evidence, I be- WAR DEP ARTl\IE~""T, Washington OiJy, November 2, 18TI. lieve. We will offer in this connection at any rate (for we have not SIR: I have the honor to reply to your letter of the 28th ultimo on the subject the RECORD here to show it) the letter of the Secretary of War, of date of the illegal introduction of spirituous liquors, &c., into the Indian COUll try by February 17, 1872, addressed to General Grierson, commanding officer Evans & Co., and other parties, that previous to the 28th ultimo, on which date at Fort Sill. It need not be read, a-s I am sure it is in the RECORD, but Evans, po t-trader at Fort Sill, was nuthorized to take to that post monthly ten we want the reply of General Grierson to that letter. Give us the date gnllous of brandy and ten gallons of whisky for the use of the officers there, no of that letter and state what it is. permit had been given him or the other parties referred to to introduce any liquors mto that COUll try. · The WITNESS. It is dated "Headquarters, Fort Sill, Indian Terri- Very respectfully, &c., tory, February 28, 1872," addressed to ".Adjutant-General United States W.W.B .• Army, Washington, D. C.," and it begins: Secretary of War. The Soucrron of the Treasury Departme·nt. Srn: I have the honor to adrnowledp;e the receipt of your letter dated Februnry 17, 1872, relative to the post-trader at this post. . WAR DEPARTME~iT, November 8,1871. Sm: In further response to your letter of the 2Bth ultimo on the subject of the It is signed " B. H. Grierson." alleged illegal introduction of liquors, &c., into the Indian country by certain per- Q. (By Mr. Manager McMAHoN.) That is not the whole of it f sons, among others Evans & Co., of Fort Sill, I have the honor to inform you that .A. No, sir. Mr. John !::i. Evans, post-trader at Fort Sill, through his friends, denies having taken liquor into the Indian COUll try without authonty. Mr. Evans was appointed Q. Let the Secretary read the whole letter. to the post-tradership on October 10, 1870, and holds it in his own name and not in The Chief Clerk read as follows: that of Evans & Co. and no complaint has ever been made against him by the mil- HEADQUARTERS, FORT SILL, INDIAN TERRITORY, itary authorities at Fort Sill, he having been regarded a. good and law-abiiling busi- Feb1-uary 28, 1872. ness man . ADJUTANT-GE~i'ERAL, U:r-.TrED STATES AIDIY, I therefore reguest that no proceedings be commenced against him without a. Washington, D. 0 . . thorough investigation of the charges that he has been engaged in such practice~ shows they were well founded. Sm: I have the honor to acknowledge the receipt of your letter dated February Very respectfully, &c., 17, 1872. relative to the post-tracler at this post. W. W. BELKNAP, I understand J. S. Evans's chamoter as a business man is good, and be has here- Secretary of War. tofora given j!;eneml satisfaction; but Mr. Evans is absent, and has been for some To the SouciTOR of the Treasury. months~ and has associated with him J. J. Fisher, now also absent, who bas had control JJf the establi hment and who claims to have the great-er pecuniary intere t Q. (By ~fr. Manager McMAHO~.) How long does it take a letter to in the business, (the business being conducted, however, under the name of J. S. go :from the city of Washington to Fort Sill Evans.) Repeat-ed complaints have been made to me of the exorhitant prices :lt which goods were. old by them, and when I have represented the matter to tho firm A. I think about seven days. I am not quite sure about the time. the.v replied that they were obliged to pay 12,000 yearly (to a Mr. Marsh, of New Q. About lww long does it take a person to travel' York City, who they represent was first appointed post-trader by the Secretary of TRIAL OF WILLIA~i W. BELKNAP. 207 Wnr) for their permit U> trade, and necessarily had U> charge high prices for their Mr. Manager McMAHON. He has a right to anRwer. He has in- goods on that account. I have repeatedly urged them to represent this matter in spected them. Do yon make objection 1 writing to me, in order that I mi~ht lay the matter before the proper authority to r lieve the command of this buruen, upon whom it evidently falls; but they de- :Mr. CARPENTER. No. clined to do so, stating that they feared their permit to trnde would be takeu from Mr. Manager Mc~IAHON. Very well. (To the witness.) I un- them. derstand you to say that you had examined the records for all the As the prices could not be regulated by a council of administration, the trader papers relating to the Fort Sill matterY not being a sutler, it bas been contemplated by some of the otlicm-s of the garrison to represent this matter, without reference to J. S. Evans, through the propf'r mil· A. Yes, sir. itary channels, but as it was claimed that the authority for the tradership emn.- Q. (By Mr. Manager McMAHON.) Did you find any order for an in- nated from the Secretary of War it was feared that that course might be construed vestigation into the fact that Evans was paying Marsh 12,000 a as taldng exception to the action of superior authority. year for the privilege of being the post-trader at that post f The prices are considerably higher since his appomtment by the Secretary of War than previously, and he has undoubtedly taken advantage of his position as Mr. CARPENTER. That question I object to. sole trader in ch~>rging these exorbitant prices, giving the reasons abo\e quoted, Mr. Manager McMA.HON. Well, let us have the reason. stating that he could not, under the circumstances, sell goods at lower prices. Mr. CARPENTER. The reason is that the witness himself says It bas also been reported to me that be cbar17es eulist~d men greater prices for he knows nothing about that subject. He has not found anything, the same articles than he does officers, an~l, at all events, it is very evident that the officers an(l men of this garrison have to pay most of the 12,000 yearly, re- would not know what t9 look for, would not know when he found ferred to above, they being the consumers of the largest portion of the stores. something whether it referred to it or nbt, for he knows nothing I feel that a great wrong bas been done to this command in being obliged to pay about the subject. this enormous amount of money under any circumstances, tho largest portion uf Mr. Manager Md.fAHON. Mr. President, it seems to me a very w bich, at least, ha been taken from the officers and enlisted men of this po t, nearly all the money of the latter mentioned f,!Oing to the trader. The responsible party peculiar point indeed that we should be compelled to put in the for this great injustice should be held responsible and be obliged to refund the entire records of the War Department and have each individual Sen- monev. ator or the counsel go over those records for the purpose of investigat- If j_ S. Evans has not paid this exorbitant price for permission ro trade, as stated ing whether these were all the papers that are there. I do not under- • by him, his goods should be seized and sold for the benefit of the post fund. In order to insure a. healthy competition, to rednce the price of goods, and tore- stand that to be the law at all. lieve the officers and soldiers of this l!arri on from this imposition, I recommend that Mr. CA.RPENTER. If that is what you ask, we withdraw the at least three {3) trade1-s be appointoo. and t.hnt those appointments be made upon objection. the recommendation of the officers of the post; that each trader be known to be in- Mr. Manager McMAHON. All right. (To the witness.) Now, Gen- terested only in his own house, and that thevbe obli~ed to keep such articles as l\re required for the use of officers and enlisted men of the Army, and ro sell them eral, I will renew the question whether after having made search for at moderate prices. • all the papers relating to Fort Sill you find any order or any commu- The trader complies with circular of A.. G. 0. issued June 7, 1871, as far as I am nication in any way bearing upon the correction of this payment of :~.ware. The buildin~s. {store, &c.) however, are not convenient ro the present garrison, a subsidy of $12,000 by Evans to l\Iarsh in New York f ha.ving- been built at the time when the command was in camp. A. No, sir. Very respectfully, your obedient servant, Q. (By Mr. MamLJer McMAHoN.) Nothing of that sort f "B. H. GRIERSON, A. Nothing. Colonel Tenth Cavalry, Com1nanding. Q. (By Mr. CARPENTER.) Nor of the subsidy itself f Q. (ByMr.Mana~erMcMAHON.) Did thatletterpaEsintothehnads A. Nor of the subsidy itself. of the Secretary of War f Q. (By Mr. Manager McMAHoN.) Is there any other order in the A. It first came to the Adjutant-General ; on the 9th of March, 1872, War Department that was issued upon the basis of this Grierson lei-ter was re~rded in the Adjutant-General's Office. except the order of the 25th of March, 1872 T Q. Look at the marks and see whether it passed into the hands of A. I think that question goes a little further than my testimony. the Secretary of War. I have no positive knowledge of what the basis of this circular was. A. It was submitted to the Secretary of War by indorsement of 11th The papers of the •post-trader business are con£ded to my office for March, 1872. custody. The tnmsactions are seldom between the Adjutant-General Q. State whether in pursuance of that letter of Genm-al Grierson and the post-trader, except so far as they relate to the military rela- the Secretary of War took any action, and what that action was. tions of the trader to the post. Therefore I am not able to say any- A. I know of no reason why a circular of March 2.5, 1872, in rela- thing about that Grierson letter being the basis of any instructions. tion to post-traders was issued, unless it was in consequence of that Q. The question I ask is, is there any other order upon this ques- letter of Colonel Grierson; but I have no positive information on tion of post-tradership except this order of March 25, 1872 f that point. 1\fr. CARPENTER. He read another one himself yesterday. Q. I ask you whether yon remember the fact, independent of what Mr. Manager McMAHON. Not after tbe Grierson letter. That was you have"heard, that General Hazen had also testified to certain facts in J nne, 1871.· The Grierson let.ter is March, 1872. before the Military Committee three days prior to the order of March25. The WITNESS. Do you mean subsequent to t.he letter f A. I do not know anything about that. Q. (By Mr. Manager McMAHON.) Subsequent to the re.ceipt of the Mr. CARPENTER. Allow him in that connection to explain the Grierson letter, in March, 18i2. whole subject, from the letter to which this is a reply and the letter A. There is a circular dated June7, 1875, which confirms, with one from the Secretary of War showing that as soon as he gets notice of !"light alteration, the circular of March 25, Hl72, and a former circu- that thing he writes to Grierson for the facts; Grierson writes back ; lar of J nne 7, 1871. the letter gets here on the 9th of March, and this order, correcting Mr. Manager McMAHON. JllStlettheSecretaryreadit. We want the whole subject, is issued. . all the orders on the question. Mr. Manager HOAR. We do not know of any order correcting the The Chief Clerk read as follows : whole subject. fCircular.] 1\Ir. CARPENTj:R. One side of a correspondence does not show the WAR DEPARTMENT, AnJUTA."'iT·GENERAL'S OFFICE. matter fully. Wa-shington, Jv:M 7, 1875. Q. (By Mr. Manager McMAHoN.) What the gentleman calls for, I The following instructions, defining the status and for the government of post- understand, is some letter of the Secretary of War to you in response traders, are promulgated for the guidance of all concerned: 1. PoRt-traders appointed nnder the authority given by the act of July 15, 1870, to the submission to yon of this letter. will be furnished with a letter of appointment from the Secretary of War, intlicat- A. I hold in my hand a copy of a letter which is designated as the ing the post t~ which they are appointed. letter of February 17, 1872. II. They are not subject to the rules prescribed in article 25, or para~phl'l 196 :Mr. Manager McMAHON. That is the letter which we gave them and 197, Army Regulations, h!63, in regard to sutlers, that office having oeen abol• isbed b:v law. and they waived the reading of. III. They will be permitted to erect buildings for the purpose of carrying on The WIT:Z'Ii'ESS. :My letter to the commanding officer at Fort Sill is their business, upon such part of the military reservation or post to which they may dated 19th February. be a signed as the commanding officer may direct, suoh buildings to be within con- • Mr. Manager McMAHON. It was read tn connection with the venient reach of the ~anison. • IV. Thev will be allowed the exclusive privilege of trade upon the military re- Tribune article. We have no objection to its going in again. serve to which the:v are appointed, and no other person will be allowed to trade, Mr. CARPENTER. If it is in once, that is enough. I do not un- peddle, or sell goods, by sample or otherwise, within the limits of the reserve. This derst:md that it is. paragraph, bowev~r. is not intended to prohibit the sale by producers of fresh fruits Mr. Manager HOAR. It has been read already by Mr. LYl\'DE in and 'egetables, by permission of the post-commander. V. They are under military protection and control as camp-followers. the opening in that connection. VI. The council of administration at a post where there is a post-trader will, Mr. Manager LAPHAM. It has been put in evidence since. from time ro time, examine the post-trader's goods and invoices, or bills of sale; Q. (By Mr. Manager McMAHON.) The order that we are referring and will, subject to the approval of the post-commander, establish the rates and to now in this connection is the order of the 25th of March, 1872, as to prices (which should be fair and reasonable) at which the goods shall be sold. A. copy of the 1ist thus established will be kept posted in the trader's store. Should which you say that you know no reason why it should not have been the po t-trader feel himself aggrieved by the action of the council of administra- based upon the letter of General Grierson. Now I will ask you tion, he may appeal therefrom through the post-commander to the War Depart- whether any action was taken, to your know ledge, by the Secretary of ment. War to correct the payment of a tribute by Eva,ns to Marsh T VII. In determinina the rate of profit to be all owe(}, the council will consider not only the prime cost, ~ight, and other charges, but also the fact that while the A. I know nothing about any payment whatever of that sort. trader pays no tax or contribution of an7. kind to the post fund for his exclusive Q. Do the records of your Department show any inquiry into the privileges he has no lien on the soldiers pay, and is without the securit;y in this matter as to whether Evans was paying the tribute f respect once enjoyed by the sutlers of the Army. Mr. CARPENTER. That we object to. You had better bring the VITI. Post-traders will actually carry on the business themselve~. and will hab- itually reside at the station to which they are appointed. They will not farm out, records. sublet, transfer,. sell, or assign the business to others. 208 TRIAL OF WILLIAM W. BELKNAP. IX. Post-commanders will report to the War Department any misconduct, breach of. If it be intended in the spirit of a justice's court practice to pile of military regulations, or failure to fulfill the requirements of this circular on the up testimony here so that it will seem to be a large volume without part of traders. X. All previous instructions in regard to post-traders not in conformity with the any regard to what it is, then I see the importance of it; but the New terms of this circular are hereb:v revoked. York newspapers could be embodied with just as great effect. But By order of the Secretary of \Var: no lawyer, I presume, will undertake to say, cel'tainly none has said, E. D. TOWNSEJI.TD, that that is at all material to any issue in this case Ol' that it tends A~utant-eeneral. to prove or disprove anything that is in the case. The WITNESS. There is also a general order dated "War Depart- :Mr. Manager McMAHON. Mr. President, I fail to see the justice ment, Adjutant-General's Office, Washington, D. C., October 12, 1B72," of the application of the gentleman's remark in regard to a justice's promulgating for the information and guidance of all concerned a court. letter from the Department of Jnstice da,ted Washington, October 3, Mr. CARPENTER. I speak of that not disrespectfully to counsel, 1872, to Ron. William W. Belknap, Secretary of War, giving an opinion but because that is the court I am most familiar with. on certain questions relating to post-traders which had been pro- Mr. :Manager McMAHON. I accept the apology. Now, I made the pounded to him. statement in perfect good faith and I offered the order in the most Mr. Manager McMAHON. Let it be given to the Secretary. We perfect good faith. It may be that my leual learning is limited; I want them all in. It need not be read unless the gentlemen on the concede that fact, but yet I think that I did imbibe enough in the other side desire it. course of a short practice to know that it was just as important, if Mr. CARPENTER. We have not seen it. We have no copy. you wanted to prove what a man had not done, to prove exactly what .Mr. Manager LYNDE. It merely relates to the right of post-tra- he had done and that it was all that he had done. When I offered ders to remove buildings. this I said it did not bear on the particular transaction which we .Mr. CARPENTER. If you do not want it in, we do not. had in hand, that we did not claim that it did, that we did not want Mr. Manager McMAHON. We want it in the record. it read; but the gentleman who was looking for light insisted that Mr. CARPENTER. If it goes in the record, let it be read. it should be reacl. I agreed that it should simply be printed in the The Chief Clerk read a.s follows: record, and it ought to have gone into the record, because this honor- WAR D&PARTMR.."T, ADJUTANT-GENERAL's OFFicE, able body ought to know and to be informed of every particular order Washington, October 12, 1872. in regard to post-traders that may have been issued by Mr. Belknap; General Orders No. 89. for suppose we had only put in-one or two, and had not proven to this The opinion of the Acting Attorney-General upon the following questions is pub- court that those were all the orders tha1i were issued t Then it seems lished for the information and gnidallce of all concerned : "DEPARTM:ID\'T OF JUSTICE, to me that we should have been derelict in our duty as managers on " W ushington, October 3, 1872. the part of the House of Representatives. "Sm: I have duly considered the questions which you ask the Attorney-General I say we offered it in good faith, with no disrespect to counsel, and, in your letter of the 11th instant, and which are a-s follows: certainly, we did not intend to insult the court. •i 'Where persons such as po t.traders, contra{)tors, and others have been allowed The PRESIDENT p1·o t~rnpore. The Chair will submit to the Sen- by proper authority to erect buildings to facilitate thelr business upon a military ate the question whether this letter shall be admitted. · reserve, With no restriction aa to the term during which they shall be allowed to remain- The question was uecided in the affirmative. " 1. A.re such buildings, after the removal of the trader, contractor, or other per- Q. (By 1\Ir. Manager McMAHON.) Now, General Townsend, have son from the reserve, still his personal estate, and as such has he the right to ilis- you given us all the orders in regard to post-traders f po e of them by rent, lease, or sale to other persons? A. I am satisfied I have given yorl all the orders that hav~ passed "2. DoE's not such property -become part of the realty after the a.ppoi'btment of a trader is revoked or a contract~r has fulfilled his contract, or any event happens through the Adjutant-General's office. which dis olves their business connection with the reserve Y Q. Do they generally pas through your office T "By the order of the Secretary of War of June 17, IBTI, ta copy of which you in- A. Such orders as those do. close to me,) it is provided that 'post-traders appointed under liie authority given Q. How long was John S. Evans post-trader-up to what date 7 by the act of July 15, 1870, will be furnished with a letter of appointment from the Secretary of War, inilicating the post to which they are appointed.' A. His appointment was revoked on the 6th of March, 1876. " They will be permitted to erect buildings for the purpose of carrying on their Q. Upon what day dicl General Belknap resign f business upon such part of the military reservation or post to which they may be A. I think it was the 2d of March, 1876. assi~neu as the commanding officer may direct~ such buildings to be within {)On- vement reach of the garrison. Q. Have yon any knowledge of any letter or special order issued by "They will be allowed the exclusive privilege of trade upon the military reserve the Secretary of War in response to the letter of General Grierson- to which they are appointed, and no other person will be allowed to trade, peddle, any communication, I mean, directly with General Grierson f or sell goods by sample, or otherwise, withm thelimits of there erve. A. No, sir. "They- are under military protection and control as camp-followers. Q. Would your office be the proper channel through which such 3 "Builuings erected by post-traders on a military reserve, in conformity to this oraer, are erected for the mutual benefit of tho Government and the trader, and are letter would pass, the official letter from General Grierson having not to be regarded as buildings would be erected by trespassers, or even by tenants passed through your office to the Secretary of WarT under leases, in which no provision is made th~[refor; but they are erected. under a. A. It wonlu generally. It might in the discretion of the Secretary license from the Government and for the mutual benefit of both parties. Under these circumst-ances I am of opinion that by the proper construction of the license of War be communicated by him to Colonel Grierson without my the e buildings were not in tended to become a part of the realty after their erec- kno"\\ledge. tion; but were to continue the property of the traders, and, lest tberefore when a Q. Is that usnal f trader is removed from his post, I have no ~oubt that he bas a right to remove the A. It is not usual, though it is sometimes done. building from the place where it was erected; and that when removed he can dis- pose of the materials as his own property. But it is very clear that the license to Q. Were you familiar with the business habits of .M.r. Belknap when erect such buildings is a pw·ely pert~onal one, and is granted for one purpose only. he was Secretary of War Y Therefore, under such licenses, the person so erecting the building would ha.ve no A. Yes, sir. right to rent or lease the same or even to sell it to another post-trader without per- . Q. What was his habit in regard to inspecting &ll documents that mission of the military authorities, but his rights are confined solely to that of removing the buildinp; from the reserve. Undoubtedly the property in such a were signed by him as Secretary of War and being personally cogni- building might, with the approval of the commanding officer, be tra.nsierred fo an- zant of the contents of the letters which he signed 7 other post-trader, and such permission would have the same force as a license to a. Mr. CARPENTER. Mr. President: I want to know, but I shall not new post-trader to erect such a building at that spot. press it to a vote, if the managers of the House of Representatives '·I return you the papers iuclo ed. " I have the honor to be, sir, your very obeilient servant, here in this trial claim that they can carry knowledge of any particu- "CLEMENT HUGH HILL, lar document to Mr. Belknap by offering to prove that it was his gen- ''Acting Attorlu!.y-General. eral habit to read everything. "llon. WILLIAM W. BELKNAP. Mr. Manager McMAHON. I think so. "Secretary of War.'' Mr. CARPENTER. That would be evidence that he read the spe- Mr. CARPENTER. I want to ask the mana.g er what possible effect cific document 7 that can have in this case, what it proves or disproves, corroborates Mr. Manager McMAHON. It would not be positive andconclusi\"8 or draws into suspicion f evidence. Mr. Manager McMAHON. Having been read, I suppose it is mere Mr. CARPENTER. Is it any evidencef matter of argument now. • Mr. Manager Mc~IAHDN. Yes, sir. Mr. CARPENTER. I object to this being considered as evidence Mr. CARPENTER. Then go ahead. tmless somebody can see something that is important in connection Mr. Manager HOAR. This is a document signed by him that the with it. I cannot see the slightest relevance. inquiry relates to. Mr. Manager McMAHON. At the request of the gentleman, I will Mr. CARPENTER. Would no·t that document _signed by him be state the purpose and object of it t.o the Senate. We have a-sked the the highest evidence f Adjutant-General for a copy of every order that has been issued Mr. Manager HOAR. Certainly. since the Grierson complaint in regard to post-traders for the purpose Air. CARPENTER. Would it not be the only evidence, for the rea- of proving a negative, but a very important negative in this ca-se, son that it is competent! and that is for the purpose of proving that every order that the Sec- :M.r. Manager HOAR. No. retary of War issued, by a coincidence of good luck, failed to hit the Mr. Manager Mc-MAHON. Not necessarily. Many a man signa a case of Marsh and Evans. paper t.h at he does not read. Mr. CARPENTER. Well, Mr. President; it strikes me that that is Mr. CARPENTER. .Ai3 far as I have ever read on the subject of evi- tritlingwith this court and not very respectful to counsel on the other dence, a document signed by a party is the only evidence, because it side. That that circular has any possible bearing upon this case does is the best evi!lence; and if yon have got such a signeu document, it not appear from anything that the managers are willing to inform us seems to me that is the best evidence. TRIAL OF WILLI~M W. BELKNAP. 209 Mr. Manager McMAHON. It is true be is to be affected by the con- This seems to the board a necessary mea8ure to secure the soldier from extortion tents of that letter; but when you come to the question of actual on th~ part of the traders. Very respectfully, your obedient servant, knowledge, a man may have signed a paper the legal consequences of R. B. MARCY. w bich he may suffer, and yet be may not actually have been informed Inspector-General. United State& .Army, Pruident of the Board. of the contents of the letter. General J. HOLT, Mr. CARPENTER. We do not object. The managers think it Judge-.Advocate-GerwraJ., United State& .Arm-y. proper. Official copy. Mr. Manager McMAHON. We do. W. M. DUJ..TN, Mr. CARPENTER. Go ahead. Judge-.Advocate-GtneraJ.. The WITNES8. Very few of the documents I ever presented to the Secretary of War were for his signatpre. I cannot, therefore, say W .AR DEPARTliiENT, BUREAU OF MILITARY JUSTICE, what was his general custom on the subject of signing letters with- March 16, 1872. Brevet Major-General R. B. MARCY, out inspecting them. Inspector-General., U. 8 . .A. Q. (By Mr. Manager McMAHoN.) Had you any personal conversa- GENERAL: I have to reply as follows to your communication of yesterday: tion with the Secretary of War in relation to this Grierson letter Y The existing law in regard to post-traders specifies the purpose for which they A. No, sir. are authorized, namely, "for the accommodationz" not of soldiers, but "of emi- Q. Ha4 you in regard to the New York Tribune article! grants, frei~hters, and other citizena." The origmal statute on the subject, the joint resolution of March 30, 1867, which the present act bas repealed, was similarly A. No, sir. expressed. Taking into consideration with such provision the abolition, almost Cross-examined by Mr. CARPENTER: cotemporanoous with the first enactment, of the office of sutler, and the conclu- sion seems ne.cessarily to follow that Cong-ress in authorizing post-traders did not Q. I want to call your attention to the copies of the Stevenson let- intend to substitute them for sutlers nor contemplate that they would as S'UCh any connection with the bu iness of supplying goods to soldiers. In this ter and of the Marsh letter of August 16, read yesterday. Look at have view, to establish regulations by which traders shall be required to furnish certain those and see from th~ir marks what was done with them by the articles for sale to soldiers and to affix certain prices thereto would in my opinion Secretarv. be beyond the province of the Secretary. If in the absence of some such regula.. A. There are in pencil-marks: apparently in the hand of the Secre- tion the enlisted men of the Army are in danger of being overreached in their deal- ings with this class of persons, this re ult must be charged to the defective state tary of War, the words: " Answered August 16; file ; official," in- of the law ou the subjeot, which can be remedied only by additional legislation. dorsed upon the letter of C. P. Marsh of.Au~st 16, H:!70. The fact, it may be added, that the law places traders "under protection and Q. Now look at the other. military control as camp-followers" does not, in my opinion, affect the above con- A. There are two words marked in red ink upon the letter of recom- clusion. Such control, if exercised at all, could certainly not be exercised as to im- pose upon the trader a character or obligation not contemplated by the terms of the mendation by Mf. Stevenson uf Caleb P. Marsh, "Adjutant-General." statute. That signifies that the letter was sent to the Adjutant-General for I remain, general, very respectfully, your obedient servant, file. J. HOLT, Q. Then these letters which were yesterday read in evidence, of Judge-Advocate-General.. Marsh and of Stevenson, were both, by direction of the Secretary of Q. (By Mr. CARPE~"'TER.) What wa-s the date of the letter written War, put upon the files of the Department in the general course of by General Grierson making complaint of the condition of things at business f Fort Sill t A. I cannot say so certainly about the recommendation of Mr. Ste- A. February 28, 1872. venson, because there is nothing to indicate that it was by his direc- Mr. CARPENTER. March 15, 1872, is the date of the letter to the tion that it was made official. Judge-Advocate-General inquiring as to the authority of the Secre- Q. But the Marsh letter you say bears his order f tary of "'War to make this regulation a,.., to prices, and March 16 was A. Bears his order, apparently in his own handwriting. the date of the letter in reply, and March 25 was the date of the or- Q. To make it official Y der which stopped it. A. "File; official," are the words. Mr. Mauager LAPHAM. And the order is directly adverse to the Q. They meant that it should be put on the records of the Depart- opinion. menU Mr. CARPENTER. Yes, sir. The Secretary of War was so anxious A. Yes, sir. · to correct any abuse there that he took the responsibility of revers- Q. What was the first order issued by the Department, as far aa you ing his subordinat-e officer's opiJ?.ion and issued the order. If you had know, in regard to fixing the prices at which goods should be sold by impeached us for that, that would have been another thing. post-traders after the act of July 15, 1870, took effe_c t! The managers have read the letter from Banfield to the Secretary A. The circular of March 25, 1872. of War and the Secretary of War's reply. So, of course, I do uot Q. Now look at those documents, [banding a bundle of papers,] and wish to put those in at this point; but the other letters which were see if they are correct. written by the Secretary of War immediately aft-er that, making the A. These documents do not come from my office, and I do not know investigation, I wish to have read at this point. I ask the Secretary anything about them. to read what I send to the desk. Q. Do you know something about that T [Pointing to the first page The Chief Clerk read as follows : of the bundle of papers.] W .AR DEPAR'niEh'T, A. I do. Washington Oity, NoveTT.ber 18, 1871. Q. What is it! Sm : Charges have been made t~ this Deparf,ment against Evans & Co., (which A. This is the seal of the War Department and the signature of the is presumed to mean JohnS. Evans,) of FortS~ of introducing and selling liquor in the Indian Territory. I desire that you report to me us early as practicable as present Secretary of War. · to thP. truth of these charges, and what quantities have been shipped by !!aid Evans, Q. Did you hear the testimony of General McDowell yesterday f antl whether such shipments have or have not been in accordance with your orders. A. Not perfectly. Your report will be addresseU.to me personally. Mr. CARPENTER. General McDowell st.ated in substance that Very respectfully, your obedient servant, W.M:. W. BELKNAP, when he spoke to Mr. Belknap in regard to issuing that order of March Secretary of War. 25, 1872, Mr. Belknap said to him that there had been trouble about Colonel B. H. GRIERSON, the authority of the Secretary of War: and that that had caused Commanding Fort Sill, Indian Territory. delay in regard to the matter. Now, in this connection I want to offer as evidence the communication to the Judge-Advocate-General WAR DEPARTME.NT, and his answer on that question. Washington Oity, December 5, 1871. Mr. Manager McMAHON. Let us see that first. DEAR GENERAL: John S. Evans, post-trader at Fort Sill, Intlian Territory, baa been chargetl with conveying spirituous liquors into the Indian Territorv and sell- Mr. CARPENTER. Certainly. [Handing papers to the managers.l ing them without competent authority. On the 18th ultimo h~ showed"me a per- Mr. Manager McMAHON, (after examining.) All right. mit to sell liquors at Fort Sill which passed through your headquarters, and alleged Mr. CARPENTER. I ask the Sem·etary to read the papers which that all those sold by him nad been under that authority anrl in accordance witllits I hand to him. terms. I will thank yon to inform me whether this permit was correct. The in· formation I have is that Mr. Evans is a reliable and law-abiding man. Please ad- The Chief Clerk read as follows : dress your answer to me direct and at your early convenience. UNITED STATES OF AlfERICA, WAR DEPARTMENT, Very truly, yours, Washington City, July 13, 1876. W. W. BELKNAP Sectetary of War. Pursuant to !!ection 882 of the Revised Statutes, I hereby certify that the annexed Lieutenant-General P. H. SHERIDAN, are true copies from the records of this Department. United State& .Army. In witness whereof I have hereunto set my hand and caused the seal of the War Department to be affixed on the day and year first above written. (NOTE, (in red ink.) War Department books do not show reply from General [sEAL.j J.D. CAMERON, Sheridan.J Secretary of War. (Personal.] FOUT SILL, INDIAN TERRITORY, December 8, 1871. BOARD FOR THE REVIBION OB THE ARMY REGULATIONS. W ASHJNGTON, D. C., Ma.rch 15, 1872. Sm: Respectfully referring to your letter of the 18th ultimo, I have the honor to report that more ale, wine, and porter was intl'oduced by JohnS. .Evans than was GENERAL : Will you oblige this board by giving a.n expression of opinion a.s to contemplated by me in my indorsement of July (August) 2·!, 1871; bnt it was done whether there is anything in the act of Congress approved J ula!,~~~f~O, which by the authority of the officer temporarily in command of the post while I was ab- lo~ally debars the Secretary of War from o.rdering councils of a · · tration to sent in the field. affix a. tariff of prices upon goods that post-traders are to sell to troops, and desig. I do not think that the post-trader has strictly complied with the provision!! of na.tiug the articles that thoee tmders sfuill keep for sale to the troops¥ my indorsement referred to, yet I believe it wa.s not his intention to VIolate the~ 14 I 210 TRIA.L OF WILLIAM W. BELKNAP. strictions imposed therein. As to the amount introduced, I respectfully refer yon The WITNESS. I read some time ago an extract from a circular to tbe report of .Tohn S. Evans, also to a copy of the indorsement authorizing the which was sent to the commanding officers of all posts at which introduction, herewith inclosed. Very respectfully, your obedient seryant, traders were appointed·. B H. GRIERSON, Mr. CARPENTER. Now read that again. Co!onel Tenth United States Cavalry, Commanding. The WITNESS. After announcing the appointment of certain indi- Hon. W. W. BELKNAP, -viduals as post-traders, the order proceeded: "As soon a-s Mr. -· - - Secretary of War, Wa-shington, D, (}. shall be prepared to enter u~o~ the discharge of his duties, yon will cause thA removal from tbemilxtaryreservation at---of all traders fCopy from post records.] not holding a letter of appointment from the Secretary of War under FORT SILL, INDIAN TERRITORY, said act," being the act referred to in the first part of the circular. August 22, 1871. .Tohn S. Evans & Co., post-traders, request, in aecordance with the permission Q. (By Mr. CARPENTER.) Was that sent to the posts f from division headquarters, permi.~ion, under the direction of the commanding . A. Yes, sir. Whenever a post-trader was appointed the command- officer, to purchase and have deliv~red for sale at'\his post forty cases imperial wines, in~ officer was notified of his appointment in that form. thirty cases Cataw!>a wines, thirty ca.ses. still wines, and fifty barrels bottled ales; Q. It was sent in the Fort Sill case a-s it waa sent in all the other states that the increased amount ordered beyond what is needed for immediate cases t supply is made to prevent great loss which would ooour by breakage from frost in transporting in cold weather. A. Yes, sir. IIEADQUARTERS FORT SILL, INDIAN TERRITORY, Q. At any other post in the United States, if the Secretary had August 23, 1871. been informed that the old trader would not retire, would !here not Respectfully returned. The permission herein requested is hereby -~-anted un- have been an order issued to the commander of the post to put him der the authority given by the commanding general of the .Military Division of the outf Missouri. A. I do not know. By order of Majar-General J. M. Schofield. S. L. WOODWARD, Q. What do you believe about it f First Lieutenant Tenth Cavalry, Adjutant. • Mr. Manager McMAHON. I object to the question. Offir.ial copy : Mr. CARPENTER. I congratulate the gentleman on gettin~ back WM. H. BECK, to regular testimony. (To the witness.) After the resignatiOn of First Lieutenant, RegimentaJ, Quartermaster Tenth Cavalry, Post-Adjutant. General Belknap as Secretary of War, was Mr. Evans removed as FORT SILL, INDIAN TERRITORY, post-trader at Fort Sill f December 2. 1871. A. An order was sent to remove him, dated the 6th of Maroh, 1876. Sm: In reply to your inquiries of this date, relative to the introduction and sale Mr. CARPENTER. Read that order, if you have it here. of ale and wine, we respectfully submit the following statement: The witness read as follows: · • First. We have introduced ale and wine t.o the amount of f1,060. LTelegram.] Second. We have sold it to officers, in ~rson and on their orders, and in small quantities, by permission, to troops and mvillan emp:oy6s. WAR DEPARTMENT, ADJUTANT-GENERAL's OFFICE, Third. We have now on band ale and wine to tte amount of f300, Washington, March. 6, 1876. Fourth. We have been governed in the sale of the ale and wine referred to by Lieutenant-General SHERIDAN, Commanding, Ohicago: the provisions of the indorsement of the commanding officer Fort Sill, Inilian Ter- The President directs yon notify Evans, post-trader Fort Sill, that his appoint. ritory, dated July 22, 1871. mentis revoked. He will be permitted to remain and sell goods at prices fixed by Very respectfully, your obedient servant, council of administration till appointment of successor. The President drsires .T. S. EVANS & CO. von t.o direct council of administration to meet, and to recommend to Secretary Lieut. WH. H. BF..CK, 'war, through military channels, suitable person for trader. ·Letter bv mail. Tenth Cavalry, Post-Adjutant. E. D. TOWNSEND, Adjt.-General. WAR DEPARTME?i'T, December 22, 1872. The WITNESS. There was also a letter sent throngh'the mail in the SIR: I have the honor to invite your attention to the inclosed copies of letters just following terms: received by me in relation to the sale of spirituous liquors by JohnS. Evans, post- WAR DEPA.RTMENT, ADJUTANT GE!<.'"ERAL's OFFICE, trader at Fort Sill, and particularly to the letter of Colonel Benjamin H. Giierson, WtUhinoton, March 6, 1876. which satisfies me that Mr. Evans had military authority for tbe sales of liquors which he has made. SIR : I have to inform you that your appointment as post-trader at Fort Sill, In· Very respectfully, &c., dian Territory, has been revoked by direction of the President. W. W. BELKNAP, Respectfully, Secretary of War. E. D. TOWNSEND, To the SoLICITOR of the Treasury. Adjutant-General. Mr. JOHNs. EVANS, Q. (By Mr. CARPENTER.) General Townsend, have you the circular Fo1·t SiU, Indian Territory. of June 7, 1871 f (Throu~h the Lieut-enant-General commanding Military Division of the Missouri, A. Yes, sir. Chicago, illinois.) Q. Plea-se read the clause of that circular which is marked in the There is also a letter addressed to General Sheridan upon the same copy I hand you. point. A. "Commanding officers will report to the W a.r Department any Q. (By Mr. CARPENTER.) 'Vas a circular issued of which that is breach of military regulation or any misconduct on the part of trad- one of the printed blanka, [handing a paper;] and, if so, at about ers." what timet · Q. Under that circular was it the duty o£ Colonel G;rierson, if he Mr. Manager LYNDE. What is the date of the circular! knew of any impropriety existing at the post on the part of the trad- Mr. CARPENTER. March 7, 1876. ers to report it to the Department T Mr. Mana~er JENKS. What is its relevancy T A. .A.t any time after the receipt of the circular it was his duty. Mr. CARPENTER. 'l'o show that the order was issued and to Q. This circular was issued June 7, 1871, and the date of his letter show the proceedings under it. is .February 28, 1872. Mr. Manager JENKS. What has that to do with this case f A. Yes, sir. Mr. CARPENTER. I think it will acquit Mr. Belknap. Q. So that he must probably have received this circular before that Mr. Manager HOAR. That was a.fte:r he went out f letter was written. Let me see t.he Grierson letter. [The witness Mr. Manager JENKS. Yes; be went out on the 2d. of March. I · handed the letter to the counsel.] Yon have read a letter or order from object to it as irrelevant. the Secretary of War directing the other traders at Fort Sill, after Mr. CARPENTER. We offer this circular in evidence. the appointment of Mr. Evans, to be removed; have you not f Mr. Manager LYNDE. We object to the introduction of that cir- A. Yes, sir. cular in evidence. It bears date, I think, 7th of March, after the Q. Was that the course pursued with all the posts after the act giv- resignation of Mr. Belknap, and has nothing whatever to do with the ing the power to the Secretary of War to make the appointments f case now before the court so far aa we can see. . Mr. Manager HOAR. Be good enough to repeat your question, Mr. Mr. CARPENTER. The testimony which we offer is that on the Carpenter. 7th of March, 1876, a general circular order was issued to every post Mr. CARPENTER. I cannot. in the Umted States directing the officers to examine whether the post- Mr. Manager HOAR. The substance-- traders were satisfad.ory; and, if not, to state that fact or to have Mr. CARPENTER. I want to prove that the same thing precisely them removed ; and that in pursuance of the order, at Fort Sill on the that was done at Fort Sill was done everywhere by a general order; 11th of April, 1876, there was a meeting of the officers and every one and that there iB but one exception in the United States, and that iB of. them recommended the re-appointment of Mr. Evans. in Texas, where there is more than one trader. A word further as to the relevancy of this testimony. The articles Mr. Manager McMAHON. But no special order was issued to any charge that Mr. Belknap received money in consideration that he post except this one; would not remove Mr. Evans. Madison said in the convention which 1\!r. CARPENTER. Because nobody resisted it in the ot-h er cases. framed the Constitution that the removal of a good officer without · Here the man did not go when he was ordered, and therefore a &J>e- cause would be impeachable. We want to see if we can be impeached cial order was issued that he should go. In the other ca.Ees they went for not doing what Madison said would be impeachable. We wa.nt by mere obedience to the order, and there were more traders at this to show that this man had the confidence of all the officers at the post than at any other in the United States when the order was issued. post; that there never was any reaaon for removing him; and that Mr. Manager LAPHAM. That shows the great value of the post. Mr. Belknap would have been in the wrong if he had removed him Mr. CARPENTER. That Ui not our fault. We did not make the at any time. . post. Mr. Mannger LYNDE. Mr. President and Senators, it ifeems that \ 11RIAL OF WII.JLIAM W. BELKNAP. 211 this investiga.tion was not had until Mr. Belknap had sent in his res- argument. The fact that this man was to be ruined by the appoint- ignation and vacated the office of Secretary of War. Ho had made ment of Caleb P. Marsh, who had no recommendation on file when ap- the appointment previously, it is true, on the recommendation. of the pointed, was overlooked, and JohnS. Evans was put in not because officers at Fort Sill, when he was Secretary of War; but he refused to he had the recommeudation of every officer at the post, but in spite make it until :Mr. Marsh t.hrew in his internst :md influence with the of that fact, simply because Mr. Marsh went in and said, as we may Secretary of War, who had informed .Mr. Evans that he had already prove on our side, that he should be retained. promised this appointment to Mr. Marsh. That the officers at. Fort Mr. BLAIR. Does not the gentleman see that this is arguing the Sill found no fault with Mr. Evans and excused him of the high case t . I put it to the gentleman if it is fair to get up here and repeat charges which he made for the goods which he sold to the officers and ding-dong all the time the facts claimed by tha other side before and soldiers on the ground that he was paying $12,000 a year bonus the Senate upon the mere question of the admissibility of a piece of . we are informed by the letters of the commamling officers at the post testimony as t.ending to show our theory of the case t aml by the other evidence we have introduced in the trial. There- Mr. Manager McMAHON. It is impossible, Mr. President, to argue fore that these same officer~ should, subsequent to the resignation of the admissibility of any particular piece of evidence without in some the Secretary of War, when this matter was under investigation and degree trenching npon the merits of the CMe; and I think I am ex- when Mr. Evans was no longer called upon to pay this bonus of cusable in doing that when I have to deal with gentlemen who are so $12,000, have sufficient confidence in his integrity to recommend his apt and expert in themselves. continuance in· that position, makes nothing in favor of the accused To come back to the point I was arguing when interrupted, they in this case. We therefore claim that it has no pertinency to the claim that JohnS. Evans ought not to have been removed and was issue before the Senat~, and a~k that it may be excluded. not removed, because he wa-s a good officer, and they want to prove Mr. CARPENTER. If the other side do not claim that there was that by a subsequent statement, whereas until Caleb P. Marsh told any excuse whatever at any time for the removal of .Mr. Evans by the Secretary of War " put my man Evans in," Evans could not the Secretary of War, that is one thing. They charge in the articles go in. of impeachment that we received money in co11sideration that we Mr. CARPENTER. That is not the question. The question is would not remove him. We have already shown by letters from the whether he was a fit man to be in, uot how he got in. · very officers at the post, when they were interrogated officially by Mr. Manager McMAHON. Then the theory of the gentleman is Belknap, that he was a good trader, an honest man, &c. We now very much this, in politics, in ethics, and in law, that if you appoint propose tO show that the President, knowing nothing about this a fit man for a corrupt consideration, it is all right. thing, but the storm being raised, removed him at oncE\, and ordered Mr. BLAIR. That is the old story. the council of administration to recommend a man, and that they Mr. Manager McMAHON. I know it is the old story, and we are unanimously recommend him for re-appointment. It seems to me going to try the case on the old story until we get through with it. that if the order to the post-trader about his house and permission to If these gentlemen are to be called and sworn, and will express therr take it away when he left the service is evidence on any issue in this opinion here and be liable to be cross-examined if there is anything case, this is relevant as bearing on one of the express allegations of of importance, very well; but this mere paper is nothing. the articles themselves. Mr. CARPENTER. It is an official paper coming from the office Mr. BLAIR. Mr. President and Senators, the court will observe of the Secretary of War. that there are two theories here ; one by the prosecution and mJe by :M:r. Manager McMAHON. But not an official opinion. the defense, and they recur at every stage of this case. Yesterday we Mr. CARPENTER. It is as much official as the letters which you had this battle with the managers, they assuming that we knew of have had read from the district attorneys in Missouri, or Arkansas, these arrangements, of the existence of this contract, and were receiv- or some other place. ing knowingly this money. Of course they think that theory is Mr. ED~1UNDS. I shouldlike toasktbedat~of the circular which trne, and of course they think there is no other theory in the case. is now offered. But there is another which we mean to make good to this "c ourt, and The PRESIDENT pro tempore. The witness will state the date of it is' that we knew nothing of the consideration whatever; that this the circular. appointment was made in perfect good faith ; that so far as we knew The WITNESS. The 7th of March, lt!76. the law was being executed, and when failure of its execution was The PRESIDENT pro tempore. The question is, Shall the circular called to onr attention we got the advice of our officers, those who be admitted f were most familiar with this case, and got their remedies and applied The question was determined in the negative. them. They would think the argument to be on their side that Mr. CARPENTER. We now offer the recommendation. we ought to have immediately removed this man, broken up his es- Mr. Manager McMAHON. We object to that of course on the tablishment, and turned him out, as the President did when the fact same ground, thc~t it is a recommendation subsequent to March 2, was finally brought to his attention and it waB published that this 1876. Am I correct! contract existed. Let the Senate assume, as we infer they will as- Mr. CARPENTER~ I understand so. I want to have taken down sume, that the Secretary of War knew nothing of this transaction in the record so that I can refer to it. perhaps hereafter, if necessary in between these other parties; and that this man executed his duties the argument of the case, the fact that we offer here to show that the faithfully. That he did execute them faithfully and that he was a President issued a circular requiring the council of administration good officer, we think is provedoy the unanimous recommendation at every post to examine into the competency of the traders then in of the officers and soldiers at this post. We want now to show to place and to recommend the removal of such as ought not to hold the court that this officer, notwithstanding all the charges which the place; that in consequence of that order of the President, on the were made, was recognized as a good and proper officer, and did his 11th of April, 1876, the council of administration at Fort Sill held its duty so satisfactorily that every officer at the post recommended his regular meeting under that circular and recommended this man re-appointment. We think this competent proof. We think this Evans, and that he was also recommended by all the officers at the proper to go before the Senate as a circumstance to weigh in their post at the time. judgment upon this case. · Mr. BLAIR. Does the Chair overrule our question f Mr. Manager Mc.MAHON. Mr. President and Senators, the propo- The PRESIDENT pro tentpore. On the same principle decided by sition under discussionis the admission of a recommendation of the the Senate, the Chair sustains the objection, thb paper being subse- post-trader who was maintained in office by the Secreta:-y of War quent t.o the resignation of the Secretary of War. under, as we claim, a corrupt arrangement, of which he was cogni- Mr. BLAIR. But it is a piece of evidence. zant. The recommendation is signed by these parties after the whole The PRESIDEl\TT pro temp01·e. The Chair so understood it, but de- matte1· had been exposed to the world, after the Secretary of War had cided it on the principle that it was subsequent to the date of resig- gone out of office, and after, as has been well stated, Mr. Evans was nation, and on that the Chair ruled. The Chair will, however, sub- 1·elieved of that incubus which made him at one time an undesirable mit the question to the Senate, if desired, Shall this paper be admitted T man at the post. Th~ inference that bas been drawn surprises me. Mr. LOG A...~. What is the paper t I am only more surprised by one thing in the arguments on the other The PRESIDENT pro tempo,.e. Tho witness will give the date. side, and that is the serene confidence in the innocence of his cli- The WITNESS. "Proceedings of the council of administration con- ent as uniformly exhibited by my friend to the right (Mr. Blair) when vened at Fort Sill 7th March, 1876." The council convened on the 8th he gets up to say anything in regard to this case. John S. Evans, say of March pursuant t.o an order of the day previous. these gentlemen, was a good officer, and therefore .Mr. Belknap ought The PRESIDENT pm tempore. Shall this paper be received T never to have removed him. We never asked General Belknap t.o re- The qu{\Stion was determined in the negative. move him. But what are the facts T These same officers, or others Mr. ED~IUNDS. If the examination of this witness is to continue who stood in the same position and had the same confidence of the much longer, I ask leave to move that the Senate take a recess for country, recommended John S. Evans unanimously in 1870 for this fifteen mmutes in order that the counsel and witness may rest from post. Those papers were laid before the Secretary of War, and what their labor during that time. (To Mr. Carpenter.) Will you want do we find Y The unaninlous recommendation of every man who knew the witness much longer f . John S. Evans was overlooked. The fact that John S. Evans had in- Mr. CARPENTER. 0, yes, we shall want him for an hour longer1 vested one hUlldred and twenty-five thousand dollars worth of prop- or more. 1 erty there was overlooked. Mr. EDMUNDS. I move that we take a recess for fifteen minutes~ Mr. CARPENTER. That is summing up the case, and has nothing The motion waM agreed to; ·a ud a recess of fifteen minutes was taken. to do with this particular question. The Senate sitting for the trial of the impeachment re-assembled Mr. Manager McMAHON. I beg your pardon; I am answering your at three o'clock p. m. 212 TRIAL OF WILLIAM W. BELKNAP. E. D. TOWNSEND's.cross-examination continued. the sentence of the court-martial dismissing the officer from the serv- ice, which was accordingly done. By Mr. CARPE~ER : Mr. CARPENTER. And that be also showed this letter to the Question. Do you know Captain George T. Robinson, who waa in President at the t.ime. the Tenth Cavalry! Mr. Manager HOAR. That does not strengthen the offer any. Answer. I know there wa.s such an officer in the Tenth Cavalry. Now, it seems to me a statement of that offer is enough to show its Q. Was be at some time court-martialed f total immateriality to the ca-se. It is not necessary to argue it. A. Yes, sir. The PRESIDENT pro tenipore. The Chair will submit the question Q. Have you here the proceedings of his trial f to the Senate, Shall this paper be admitt,ed T A. I have not the proceed.irigs; I have a copy of the order promul- 1\Ir. HOWE called for the yeas and nays, and they were ordered. gating them. It does not include the testimony, but only the findings. l\Ir. MITCHELL. Before the vote is taken I should like to inqnire Q. You may state, if there is no objection to that form, what the from the counsel for the defense if they are able to state when this finding of the court was. letter was filed in the Department f Mr. Mana.ger LYNDE. We object. Mr. CAUPENTER. Mr. President, I understand General Town- Mr. Manager HOAR. We do not object to the form; we object to send can state all about that. We understand that it was filed about the substance. the time of the receipt of it and about the time it waa acted upon. Mr. CARPENTER. To the document then f Mr. Manager McMAHON. It never was in his office. It came from Mr. .Manager LYNDE. We object to that. General Dunn's office. Mr. Manager HOAR. We do not object to the form but to the sub- Mr. CARPENTER. Its being in the Adjutant-General's Office is of stance of the fact you propose to prove. no cc;msequence. The point about it is, that this man had been tried Mr. CARPENTER. Let us hear what the objection is. by a court-martial; the finding of the court had been sent on to Mr. Mana.ger LYNDE. For what.purpose is it sought to introduce Washington for approval and was pending for approval by the War this evidence! Department at the time. Mr. CARPENTER. We offer it for this purpose: This man Robin- Mr. MERRIMON. What time f son waa, as I understand, court-martialed and sentenced by the court Mr. CARPENTER. In April, 1875, or about that time. While that to be dismissed the service. He was at the Saint Louis barracks at was pending there, this man writes a letter-it is an oracular kind of t.be time; and after the finding by the court was sent on to Wa-sh- letter; it is a blackmailing letter evidently, aa the letter will show ington to be approved by the Secretary of War he wrote a letter to when read-setting forth that he is informed of irregularit·ies in the. Secretary substantially stating the allegations which are now regard to the tradership at Fort Sill and some coimection of the Sec- mude in these articles and by the testimony offered bythe managers, -retary of War with it, and then he informs the Secretary that if he and C