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living the proper construction to the defendant's langua^. Accord-
ingly we set up no new matter but we simply re-assign, m regard to
the fact which is left doubtful on the expression of the defendant's
plea, what we said in our original articles ; in other words, we say,
*' We mean to say that yon were a civil officer of the United States
until the 2d of March ; and therefore, that being the meaning of our
original article, your plea presents no legal or proper response." It
is a case therefore of a re-assignment or a re-affirmation of a fact orisd-
nally set forth in a mode in which the meaning of the original alle-
gation cannot be questioned, and saying that therefore, that fact being
considered, the plea of the respondent snows no answer in law. Thus
we have presented to the Senate in substance an issue made here in
this way : a statement of the original articles that the defendant was
a civil officer of the United States down to the 2d day of March, re-
affirmed in the replication ; a statement by the defendant that before
these articles were presented he had ceased to be such civil officer ;
and a statement on the part of the House of Representatives that
that last allegation is no defense to the charge : in other words, a
simple demurrer to what is pleaded and well pleaded in the original
article ; and on such demurrer by the invariable rule of courts ooth
of law and equity the party sustaining the demurrer has the affirm-
ative.

Upon the larger question (setting aside now the pleadings and
taking the substance of the issue upon the question oi Jurisdiction)
the plaintiff always has the affirmative. If the respondent had con-
tented himself with introducing a naked plea of " not guilty," he
conld have availed himself of his objection to the Jurisdiction upon
that plea, and it would have required the judgment of the court to
be given against him or in his favor, withont setting up the fact at all,
because the original articles do not allege that at the time of the pre-
senting of the articles he was a civil officer of the United States.

And it may be proper to say one further word in conclusion. I
understand, in accordance, as was suggested in the very significant
qnestion put I think by the honorable Senator from New York, that
the true rule of pleading in impeachment cases is this : The House
of Representatives present articles setting up the substance of the
transaction on which they rely, not in the form of an indictment or
of a bill in equity or of a civil declaration certain to a certain intent
in general, but setting forth the substance of a transaction. It is not
necessary to give dates. You may say "on or about the time." It
is not necessary to give legal results or intendments. Then the de-
fendant comes m and in his answer either denies the whole matter if
there was no such transaction as is set up, or if there was a transaction
of the kind but an innocent and not a guilty one, with certain dif-
ferent and other circnmstances, he tells the story as he alleges it to
be, setting up at the same time all special suggestions of law or of
defense of fact on which he relies j and the pleadings are made up in
that way by a joinder of issue. I do not think it is in the power of
parties by pleadings of fact such as take place in ordinary courts of
law to compel the Senate to determine, except in its discretion, sev-
eral issues of fact in succession. Suppose an issue of fact were made
np on this question of jurisdiction, is the Senate to be compelled to
lay aside its legislative business and determine that, and then the



defendant answer over, perhaps setting np some other matter strictly
in bar, and have that determined, and so the Senate put to a trial of
half a dozen successive issues of fact t I respectfully submit that
that is not the rule, but that the proper method of pleading is the
one which I have first stated.

Undoubtedly it would have been very proper that the matter set up
in this second replication should have been set up in the original ar-
ticles ; but it is also well settled in matters of impeachment that the
House of Representatives has in its discretion the right at an^ time
to file additional articles if it see fit. It is also true that this new
matter set up in the second replication has been pleaded to without
objection on the part of the defendant ; that it is before the Senate as
an allegation in the cause presented by the authority of the Honse ;
and whether it should or should not have been originally inserted in
the articles becomes now of no consequence.

Mr. CONRLING. Mr. President, I should like under the rule,
through the Chair, to make an inquiry of the manager now on the
floor. I would like to have read from Blount's case, if that was the
case to which the manager referred, or from the case of Chase, if that
was the case to which he referred on Friday, the passage in the report
in which it appears that the Senate held the affirmative to be with
the managers, regardless of the nature of the issue, regardless of the
question whether they were the propounding party in respect of that
particular issue or not.

Mr. Manager HOAR. Mr. President, I desire to express my grati-
tude to the honorable Senator for putting that question, because it
reminds me of what I had meant to say if I was called upon to address
the Senate again this morning.

Blount's case was the case to which I referred. In the haste of re-
plying to the learned counsel I used the phrase, " the rule settled by
itself for the Senate in the first case which came before them." In
point of fact, it appears upon the report that the order of proceeding
was settled by the four distinguished counsellors who took part in it
by an agreement, and there is no vote or other express action of the
Senate to be found ; and it was my purpose, on the suggestion of one
of my honored associates, to have made that explanation to the Senate
at this time, bn t i t passed from my mind. But Blount's case seems to me
to be a very significant and important authority, for it is not credible
that those four lawyers, four as able lawyers as the bar of the United
States afforded at that time, Mr. Jared Ingersoll, Mr. Bayard, Mr.
Harper, and Mr. Dallas, would have conceded so important an advan-
taj^e to the managers on the part of the Honse of Representatives
without any equivalent, unless they had understood the practice to
be so.

Mr. CONKLING. That was a demurrer by the House, though.

Mr. Manager HOAR. That was a demurrer by the House to a plea
on the qnestion of jurisdiction, so that the Senate, and the Senate
without any objection, allowed the practice as settled by the counsel
among themselves to be adopted and acted on. It is not, however,
strictly accurate to say that the Senate settled the practice.

Mr. EDMUNDS. May I ask (through the Chair) the manager whether
the House in the Blount case^ being the demurring party, were not en-
titled on ordinary judicial pnnciples and practice to go forward with-
out relying upon their privilege T

Mr. Manager HOAR. Undoubtedly. Our replication is a copy of
the Blount replication.

Mr. McDonald. I was about to ask if the replication is not a
copy of what is termed the demurrer in that case t

Mr. Manager HOAR. It is.

Mr. EDMUNDS. I ask the manager to read the replication in the
Blonnt case and the replication in this case.

Mr. Manager HOAR. I have not here the Blonnt case.

Mr. COCKRELL. I can furnish the managers with the case if they
desire it. [Sending a book to the managers. J

Mr. LOGAN. Before the manager reads that, I desire to ask a qnes-
tion merely to have him give his comments in reference to it. The
replication on the part of the House to the first plea of the respond-
ent is claimed by the managers to be a demurrer. Then there is a
demurrer by the respondent, and the managers follow with their
Joinder in demurrer to the demurrer of the respondent. I ask whether
by that ioinder in demurrer to the respondent thev do not waive that
which they claim to be their demurrer in the replication to the first
plea of the respondent t I should like to hear the manager on that
point.

Mr. Manager HOAR. I am not sure that I oorrectly apprehend the
force of the qnestion of the honorable Senator from Illinois ; but if I
do. with all due respect, I can express m^ opinion by saying that it
reiers rather to what the successive steps in the pleading are labeled
by the parties, than to what they really amount to. The substance
of this issue is this : The House of Representatives say the defend-
ant did certain acts as Secretary of War, and remained Secretary of
War until the 2d day of March. The defendant replies, " I was not
Secretary of War when you presented your articles, or before," leaving
it ambiguous whether he means never before, or that there was a time
before when he did not hold the office. In order not to be entangled
by that ambiguity, the House of Representatives say, "We mean to
assert, as we said before, that you were Secretary of War down to the
2d day of March ; and the fact that you have gone out since (which is
the only fact, as we understand the pleadings, now newly set up by
you) is not a sufficient answer to our original article."



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24



TRIAL OF WILLIAM W. BELKNAP.



Mr. LOGAN. The question I asked, though, if I can make myself
understood, is merely this, boiled down to a point, whether the man-
agers, by Joininff in demnrrer to the demun'er of the respondent to the
replication of the managers, do not then make the issue on that de-
mnrrer, and waive what they claim as a demurrer on their part to
the plea of the respondent t

Mr. Manager HOAR. I do not ao understand. I understand that
the question which the Senate ought to determine is this — this is the
substance of the whole thing : Is the fact newly affirmed, and first
affirmed by this respondent, to wit, tho fact that he had ceased to
be Secretary of War when these articles were presented, a sufficient
answer to tne charge? You cannot escape that simple proposition.
That is what you have got to try : Is the fact newly set up by the de-
fendant, that ae had ceased to be Secretary of War when these arti-
cles were presented, a sufficient answer to this charge t He sets that
up and the Houso of Bepresentatives say that is no sufficient an-
swer ; and that is a demurrer in substance and in fact ; and on the
<]uestion whether a fact so set up by my antagonist newly, for the
hrst time in the case, is a sufficient answer to what I have 8<nd, I am
always entitled to the opening and close.

Mr.MAXEY. Mr. President

Mr. Manager HOAR. I desire the honorable Senator to remember
that I have been quite led aw^^y from the previous request of the
honorable Senator from New York.

Mr. MAXRY. I should be glad to call the mana^r's attention to
one point. The plea in response to the articles of impeachment de-
clares tliat before and at the time of the beginning of tne proceedings
for impeachment — that is in substance what it is— the respondent was
not an officer of the United States. The managers in their reply to
that, in their first replication, neither affirm nor deny that fact, btt
they go on to sav that that plea is not good and sufficient in law, be-
cause tbe^ sav that at the tune of the commission of the offenses as
set forth in the articles of impeachment ho was such officer. That
is the substance of that. Now it is claimed by the managers that
that is in substance a general demurrer to the defendant's plea.
Various other pleadings go on. The defendant then comes in and de-
murs to that first subdivision of the House's replication. To that
demurrer of the defendant the managers or the House put in a simiU-
ier, join in demurrer. Now, I am like my friend from Illinois ^ I wish
to understand if the effect of that in law would not be, by Joining in
the defendant's demurrer, to waive the House's demnrrer t I should
be glad to hear what they have to say on that point, if that is not
the effect of the nleading, if joinder in the defendant's demurrer is
not a waiving and aban<u>nment of the first demurrer.

Mr. Manager HOAR. I should be constraided, I think, to answer
by saying that I do not think that would be good practice, and a
court of law would order those pleadings to be reformed and the
matter to stop at the first demurrer and everything else to be stricken
out. But at any rate— —

Mr. MAXEY. I will state in addition, Mr. President, that so far
as concerns the demurrer, which is joined, of the defendant, that de-
murrer does contain an offer to verify, which is unusual also in a
^demurrer, I think. Still having joined in that, I ask whether that
oinder does not waive the demurrer of the managers t

Mr. Manager HOAR. I do not so understand.

Mr. SARGENT. I rise to a point of order.

The PRESIDENT pro tempore. The Senator will state his point of
order.

Mr. SARGENT. Rule 18 provides :

If » Senator wishes » qaeetioa to be pnt to a witness, or to offer a motion or
order— except a motion to a«yoam— it sliali be reduced to writing and pnt by the
presiding omoer.

The PRESIDENT pro tempore. The Chair formerly ruled that de-
bat<e was out of order; but ue does not consider tho manager a wit-
ness in the case. Senators asked unanimous consent to put (]^uestion6
to the manager to draw out information on the subject which he is
discussing, and by unanimous consent the Chair allowed it.

Mr. SARGENT. I can see that if we indulge in questioning coun-
sel on the respective sides at any length a great deal of time will be
consumed, and perhaps the result will be much more unsatisfactory
than even if we allowed general debate. I think I shall feel called
upon hereafter to insist that it be not allowed.

The PRESIDENT pro tempore. If the Senator objects, the Chair
will rule it out of order.

Mr. Manager HOAR. Mr. President and Senators, I have simply
one thing to say in conclusion, and that merely a summing up of
what has been already said. The substance of this whole matter,
stripped of its form, is an affirmation by the party presenting articles
of impeachment to the Senate that the Senate has the jurisdiction,
and on that matter the House always has the affirmative and the
right to reply. No plea was neoessarv of any kind to raise it. It is
involved in the final determination of the issue.

In the next place, upon the pleadings as they stand the affirmativo
of the issue made up still rests upon tne House of Representatives.

Mr. EDMUNDS. Mr. President, I sent a question in writing to the
Chair which I ask that the Chair may have read to the managers.

The PRESIDENT pro tempore. The Senator from Vermont pro-
poses a question whicn will be read.

The Chief Clerk ^:ead as follows :

TViU the manaj^rs read the replication in Blonnt's case ?



Mr. Manager HOAR. Will the honorable Senator allow me to ask
the Secretary to read it t

Mr. EDMUNDS. Certainly.

The PRESIDENT pro tempore. The Secretary will read the repli-
cation called for.

The Chief Clerk read as follows:

The replication ot the Honse of BepresentatiTes of the United States, in their own
behalf and also in the name of the people of the United States, to the plea of
William Blount to the Jurisdiction of the Senate of the United States to try the
articles of impeachment exhibited by them Uvthe Senate against the said Will-
iam Blonnt :

The Honse ot Bepresentatives of the United States, prosecuting, on behalf of
themselves and the people of the United States, the anicles of impeachment ex-
hibited by them to the Senate of the United States against the said William Blount,
reply to the plea of the said William Blount, and say that the matters alle^iefl in
the said plea are not sufficient to exempt the said William Blonnt from answf*ring
the said articles of impeachment, becaose they say that by the Constitution of the
United States the House of Bepresentatives had power to prefer the said ar-
ticles of impeachment and that the Senate have full and the sole power to try the
same. Wherefore they demand that the plea aforesaid of the said w illiam Blount
be not allowed, but that the said William Blount be compelled to answer tho said
articles of impeachment.

Mr. McDonald. I would ask that the plea to the jurisdiction, to
which the replication of the House was filed, he also read.
The Chief Clerk read as follows :

Ukttbd States ) ^pon impeachment of the Honse of Bepresentatives of the
WujJAii Blount. J United States, of high crimes and misdemeanors.

In Senate of the United States,

December 24, 1798.
The afbresaid William Blount, saving and reserving to himself all exceptions to
the imperfections and uncertainty of the articles of impeachment, by Jared Inger-
soil and A. J. Dallas, his attorneys, comes and defends the force and injury, and
says that he, to the said articles of impeachment preferred against him by the
House of Bepresentatives of the United States, ought not to be compelled to answer,
because he says that the eighth article of certain amendments of the Constitution
of the United States, having been ratified by nine States, after the same was, in a
constitutional manner, proposed to the consideration of the several States in the
Union, is of equal obligation with the original Constitution and now forms a put
thereof, and that by tho same article it is declared and provided that " in all crimi-
nal prosecutions the accused shall ei^oy tho right to a speedy and public trial by
an impartial jnrv of the State and district wherein the crime shall nave been com*
mitteiL which district shall have been previously ascertained by law, and to be in*
formed of tho nature and cause of tho accusation, to be confronted with the wit*
ncsses against him, to have compulsory process for obtaining witnesses in his fa*
vor. and to have the assistance of counsel for his defense."



That proceedings by impeachment are provided and jtermitted by the Constitu-
of tne United States only on charges of bribery, treason, and otnerhich crimes



Uon



and misdemeanors alleged to have bt^n committed by the President, v7oe-Presi>
dent, and other civil officers of the United States, in the execution of their offices
held under the United States, as appears by the fourth section of tho second article
and by tlie seventh clause of the thurd section of the first article and ot^er articles
and clauses contained in the Constitution of the United States.

That, although true it is that he, the said William Blonnt. was a Senator of the
United States from the State of Tennessee at the several periods in the said artfcles
of impeachment referred to, yet that he, the said William, is not twio a Senator and
is not nor was at the several periods so as aforesaid referred to an officer of the
United States : nor is he, the said William, in and by the said articles charged with
ha\ing committed any crime or misdemeanor in tne execution of any civil office
held under the United States, or with any malconduct in civil ofiice or abuse of
any public trust in the execution thereof.

That Uie courts of common law of a criminal JnrLsdiotion of the States wherein
the offenses in the said artides recited are said to have been committed, as well as
those of the United States, are competent to the cognisance, prosecntiun, and pun-
ishment of the said crimes and misdemeanors, if the same nave been perpetrated,
as is suggested and charged by the said articles, which, however, he utterly denies.
All which the said William is ready to verify and prays Judgment whether this
high court will have further cognisance of thiiB suit and of the said impeachment,
anu whether he. the said William, to the said articles of impeachment, so as afore*
said preferred by the House of Bepresentatives of the United States, ought to be
o<Hnpelled to answer.

JABED INOEBSOLL.
A. J. DALLAS.

Mr. Manager HOAR. I now ask the Secretary to read, as was re-
qneeted hy the Senator from New York, the first plea in the present
case.

Mr. CHRISTIANCT. I wish to submit a question in writing.

The PRESIDENT pro tempore. The manager has desired to have
a plea read before any other business is transacted. It will be first
read.

The Chief Clerk read as follows :

In the Senate trl the United States sitting as a court of impeachment
The UnrrEO States or Ambbica)
vs. }

WiLUAM W. Belknaf. >

The replication of the Honse of Bepresentatives of the United States, in their own

behau and also in the name of the people of the United States, to the plea of

William W. Bellcnap to the articles of impeachment exhibited by them to the

Senate against the said William W. Belknap.

The House of Bepresentatives of the United States, prosecuting, on behalf of
themselves and tho people of the United States, the articles of impeachment ex-
hibited by them to the Senate of the United Stetes against said William W. Bel-
knap, reply to the plea of said William W. Belknap, and say that tho matters
alleged in the said plea are not suflioient to exempt tho said William W. Belknap
from answering the said articles of impeachment, because they say that at the
time all tho acts charged in said articles of impeachment wore done and committed,
and thence continuously done to the 2d day of March, A. D. 1A76, the said William
W. Belknap was Secretary of War of the United States, as in said articles of im-
peachment averred, and therefore that, by the Constitution of the United States,
the House of Bepresentatives had power to prefer the articles of impeachment and
the Senate have lull and the sole power to try the same. Wherefore they demand
that the plea aforesaid of the said William w. Belknap bo not allowed, but that
the said William W. Belknap be required to answer the said artic*es of imi»each-
mmi.



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TRIAL OF WILLIAM W. BELKNAP.



25



Mr. Mana^r HOAR. It will be seen that the only allegation of
fact there ib a statement that the fact is as the original articles
ftverred.

Mr. CEIRISTIANCY. I now ask that my question be read.

The PRESIDENT pro tempore. The Senator from Michigan pro-
poses a question which will be read.

The Chief Clerk read as follows :

1. If, M the manacen oontend, the first reply to the plea is a re^wsignment of
matters of fact, can it be at the same time a domarrer t

3. Is it claimed that the second replication is also a demurrer t

3. Are not the commencement and conclusion or prayer of the second replication
the some as in the first f

Mr. Manager HOAR. I do not understand, Mr. President and Sen-
ators, that the second replication is also a demurrer. I do understand
that where a plea is ambiguous and the reply contains a re-ossignment
of a matter of fact affirmed in the original charge it can be at the
same time a demurrer. I answer, therefore, the Urst proposition of
the honorable Senator very confidently in the affirmative.

In regard to the commencement and conclusion or prayer of the
second replication being or not the same as the first, I cannot, without
a little examination, answer. The honorable Senator can answer it
for himself ; but I do not understand that this is a question of prayer,
or of conclusion, or of labels, or of formalities. It is a question of
what is the substance of the issne, no matter what is put on the back
of the paper or foot of a paper which makes up the issue. Tbe sub-
stance of this issue is that the House of Representatives now have
upon them the burden of satisfying the Senate that it has jurisdiction
oTer this ofiense and that the matters of fact alleged by the defend-
ant in opposition to that jurisdiction are immaterial. That is the
sobstance of a demurrer, and entitles us, as matter of substance, to
the reply.

Mr. CARPENTER. Mr. President

Mr. EDMUNDS. Before the counsel proceeds I ask leave to sub-
mit one other question to the manager.

The PRESIDENT pro Umpore. The inquiry of the Senator from
Vermont will be read.

The Chief Clerk read as follows :

Is there any allegation in the artidee that Mr. Belknap tras Secretary of War
down to the 9d day of March, 1876 )

Mr. Manager HOAR. That would require a discussion of tbe ques-
tion wbother the meaning of the phrase ** down to a day '' and the
meaning of the phrase ** until a day '' is the same. Tbe honorable
Senator from Vermont can answer as well as I can. The third article
alleges that the " said William W. Belknap continued in office as such
Secretary of War until the 2d day of Mareh, 1876,^ and the fifth arti-
cle alleges that " from the 10th dav of October, in the year 1870,
* * • continuously to the 2d day of Mareh, 1876," he held the office.



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