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agreed upon.

The PRESIDENT pro tempore. The Secretary will now report the
last proposition of the Senator from Vermont and the Chair will rule
upon it.

The Chief Clerk read the last proposition, as follows:

And that the argument be limited to six hours on each side.

The PRESIDENT pro tempore. The Chair understands the Senator
from Vermont proposes that as an amendment to the substitute pro-
posed by the Senator ft*om New York. It is in order. The question
is on the amendment of the Senator from Vermont to the substitute
proposed by the Senator from New York.

Mr. CARPENTER. Mr. President, before that question is put, I de-
sire to say to Senators that, if they will limit us to six hours and give
us a day or two to get ready, that will be time enough ; but if wo are
to prepare arg^ameuts now upon testimony not yet printed and which
will not be printed until to-morrow morning, it seems to me the time
is too short

The PRESIDENT pro tempore. The question is on the amendment
of the Senator from Vermont to the substitute of the Seoator from
New York.

The question being put, there were on a division — ayes 15, noes 29.

So the amendmept to the amendment was rejected.

The PRESIDENT pro tempore. The question recurs on the substi-
tute proposed by the Senator from New York.

The amendment was agreed to.

The PRESIDENT pro tempore. The question recurs on the order as
amended.

The order, as amended, was agreed to.

Mr. CONKLING. I move that the Senate sitting for the trial ad-
journ.

The PRESIDENT pro tempore. Before that, will the Senate allow
the Chair to state that the Chair understands the witnesses on both
sides can be discharged f He makes that announcement so that they
can leave. The Senator from New York moves that the Senate sitting
for this trial do now adjourn.

The motion was agreed to ; and the Senate sitting for the trial of
the impeachment adjourned.



Thursday, July 20, 1876.

The PRESIDENT pro tempore. Legislative and executive business
will now be suspended and the Senate wUl proceed to the considera-
tion of the articles of impeachment exhibited by the House of Repre-
sentatives against William W: Belknap, late Secretary of War.

The usual proclamation was made by the Sergeant-at-Arms.

The PRESIDENT j>ro tempore. The House of Representatives will
be notified as usual.

Messi*s. Lord, Lynde, McMahon, Jenks, and Lapham, of tho
managers on the part of the House of Representatives, appeared and
were conducted to the seats assigned them.

The respondent appeared with his counsel, Mr. Blair and Mr. Black.

Mr. SHERMAN. I move to dispense with the reading of the jour-
nal of yest-erday.

The motion was agreed to.

The PRESIDENT pro tempore. The Senate is now ready ifi pro-
ceed with the trial. The Senate will hear the managers in the open-
ing of the closing argument.

Mr. Manager LORD. Tlie arrangement, Mr. President, is that Mr.
Blair opens on tho part of the defense.

The PRESIDENT pro tempore. The Senate is ready, then, to hear
the counsel on the part of the accused.

Mr. BLACK. Mr. President, I am sorry to announce to you and to
the court that our colleague, who has the laboring-oar of this case in
his hands and upon whose presence more depends than upon any-
thing else I know of, has been taken so sick that it is impossible for
him to be here to-day. It is a thing of the utmost import that a
counselor who to answer an argument should hear it when it is
delivered. I understand that there has been an arrangement made
between tho gentlemen who are to speak on the other side and Mr.
Blair, to which so far as I am concerned I give my full assent upon
certain conditions, that Mr. Blair shall proceed with his argument
first, and we have no objection that he shall make his opening and
that his address shall be heard fully to-day ; but we would greatly
rather, and indeed we think we have a right to hope, that neither of
the managers will insist upon speaking to-day in the absence of Mr.
Carpenter. I suppose Mr. Blair will occupy a very considerable por-
tion if not the whole of this afternoon^ and there will be no consid-
erable inconvenience to anybody in saying that the arguments on the
other side shall open to-morrow, when we have reason to expect that
Mr. Carpenter will be present.

Mr. Manager LORD. Mr. President, we shall have to leave tho
matter with the court in that regard. Wo are prepared to go on,
and the managers are exceedingly desirous to have this case closed ;
the House is desirous to have this case closed; but sickness is a thing
which we cannot contend with, and therefore we have to leave the
matter with the Senate.

Mr. BLACK. Are you desirous to do your speaking in the absence
of the gentleman who is to reply to you T

Mr. Manager LORD. No, sir ; we are not desirous to do our speak-
ing in his absence, but we are desirous to have this case proceed. I
think I have said all that fairness requires when I say that we leave
the matter with the court under the statement of the counsel.

Mr. INGALLS. Is there any order asked for, Mr. President f

The PRESIDENT pro tempore. No order is proposed, the Chair un-
derstands.

Mr. BLACK. We ask for something which will enable us to feel
confident that after the conclusion of Mr. Blair's speech there will be
an ac\joumment until to-morrow morning.

The PRESIDENT pro tempore. What is the request of the coun-
sel ? Tho Chair did not hear.

Mr. BLACK. For an order that Mr. Blair proceed now and make
his argument, after which the court shall adjourn until to-morrow
morning, at which time the managers will be heard.

Mr. SHERMAN. Is it in order to say a word on this subject f

Mr. EDMUNDS. It is not in order for Senators to speak.

The PRESIDENT pro tempore. Debate is out of order.

Mr. BAYARD. Mr. President

The PRESIDENT pro tempore. Debate is out of order.

Mr. BAYARD. I suggest that while it is true that the argument
of counsel will be reported, yet it will not be published until the day
after it is spoken, and it is on that day

Mr. EDMIINDS. Is this in order!

The PRESIDENT pro tempore. Debate is not in order.

Mr. ANTHONY. I hope the Senator from Delaware will be allowed
to make a statement.

The P RESIDENT pro tempore. Is there objection to hearing a state-
ment f [Mr. Sherman rose.] The Seuator from Ohio rises for some
puipose. Is there objection f

Mr. INGALLS. I shall object unless the debate is to bo partici-
pated in by whoever desires to speak.

Mr. SHERMAN. I do not wish to speak ; I am willing to vote.
All I wish to say is that there are soventy-two members of the Senate
who are here in great physical debility, and they ought to bo consid-
ered.

Mr. ANTHONY. I hope wo slmll allow short suggestions to bo
made by any Senators. They aid us very much. I hope there will
be no objection.

The PRESIDENT pro tempore. Is there objection to the snggeetion
of the Senator fn)m Khodo Island f



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TRIAL OF WILLIA.M W. BELKNAP.



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Mr. WITHERS. I object.

The PRESIDENT pro tempore. Counsel on the part of the accused
desire that the counsel, Mr. Blair, be permitted to open on the part
of the defense to-day, and that the Senate then adjourn until to-
morrow without any further argument. Senators concurring will
say "ay."

Mr. KERNAN. I ask for a division of the question.

The PRESIDENT pro tempore. There is no question but on the
proposition that there shall be but one argument to-day.

Mr. KERNAN. I withdraw the call.

Mr. HOWE. What is the motion?

The PRESIDENT pro tempore. The motion is that the counsel, Mr«
Blair, be permitted to go on to-day, and that when he concludes the
Senate adjourn until to-morrow on account of the sickness of his asso-
ciate, Mr^Carpenter..

Mr. ANTHONY. I ask as a question of order whether, if that order
is laid on the table and then the counsel so on, the question of ad-
journment cannot be decided when he is miished f

The PRESIDENT pro tempore. Certainly.

Mr. ANTHONY. Then I move to lay the order on the table. Let
the counsel go on, and we can decide whether to adjourn or not when
he has finished.

The PRESIDENT pro tempore. It is proposed to lay the order on
the table.

The motion was agreed to.

The PRESIDENT oro tempore. The counsel will proceed.

Mr. BLAIR Mr. President and Senators, I appeal to the Senate in
now approaching the consideration of this case for its final determina-
tion that the Senate may consider it with the calmness and deliberation
and fairness which are appropriate to so solemn and important an oc-
casion. I should not deem it pro^r to make even so brief an appeal
to the Senate, if on a former occasion when this subject was discussed
I had not felt that the proprieties of the occasion had not been ob-
served by the managers on the part of the House of Representatives.
On that occasion I witnessed a scene in this Senate which, I think,
may be characterized as improper, when a manager, having the close
of the argument, made an appeal to the Senate, pointing to the re-
spondent here as a representative of the abuses which h:^ grown up
In the administration of public trusts during his cai-eer in public life
and asked the Senite to override the question of jurisdiction in order
to make that man a victim of the reaction of the public mind against
the abuses of the day.

The object of such an appeal when the Senate had under consider-
ation a question of constitutional law could bo no other than to con-
strain the decision of the Senate, then sitting as a legal tribunal to
decide an abstract question of constitutional law, by bringing to bear
upon the body the aroused popular feeling against great and acknowl-
edged abuses. The appeal of the manager was responded to by loud
applause from the galleries. And the response was certainly as proper
as the appeal of tue manager ; and that scene, which I thiuK will
hereafter be remembered with shame, was only characteristic of the
spirit which has been evinced throughout by the prosecution.

The questions now to be considered are purely questions of law and
evidence, and ought to be approached, I think, with deliberation and
calmness and f re^ from the passions of the outside world and of the
political campaign which is in prc^^ress, and the respondent's counsel
nave studiously observed that rule and have endeavored to present
nothing for the consideration of this body but what arises on tne evi-
dence and the law.

The questions are :

First, whether the order dismissing the impeachment on the ground
that more than one-third of the Senate have voted against the juris-
diction shall be granted ;

Second, wheth^ the question of jurisdiction be not involved in
the plea of " not guilty " ordered by the majority of the Senate to be
entered for the respondent;

Third, whether the facts alleged in the articles are proved ; and

Fourth, whether the evidence established any improper conduct
on the part of the respondent.

The two first questions will be discussed by me together, and after-
ward the last two. As there can be no valid decision of any question
of law or fact by a tribunal which has no power to decide it, it fol-
lows of necessity that the question of the power to give a judgment
is involved in giving any valid judgment, and also that it requires
the same authority to determine the question of power which is re-
quired to give the judgment, because the judgment itself is a formal
and solemn assertion of the power to give it.

These are self-evident propositions, and the only difficulty I appre-
hend in applying them here and disposing of this case upon the re-
**f corded vote of the Senate which demonstrates that the body cannot
convict the respondent by the requisite two-thirds vote, arises from
the attempt to evade meeting this plain proposition by a dexterous
application to this special tribunal of the rule of practice which pre-
vails in courts of general jurisdiction in regard to the time and man-
ner of presenting and disposing of questions of jurisdiction. And be-
cause in courts of general jurisdiction the question of jurisdiction
must be raised by plea in abatement, and when so raised and acted
upon by the court by judgment on that plea the question is liually
disposed of, it is argued that this is equally true of the action of this
coorton the plea to the jurisdiction filed in this case, and by insisting



it requires but a majority to decide the c^uestion of the jurisdiction
at that stage of the proceeding, because it is only on the final ques-
tion of conviction that a larger number is required.

But this reasoning overlooks the well-settled principle that a dif-
ferent rule prevails in courts of general jurisdiction from that which
prevails in courts of limited or special jurisdiction in regard to the
time and manner and effect of making the question of jurisdiction.
In courts of limited and special jurisdiction the question of power
continues to the end and cannot be waived. In such tribunals it
enters into and forms a part of and is formally and soleomly asserted
in any judgment which may be given, and therefore it necessarily i^
follows, when it is ascertained by the recorded vote of the Senate that
the requisite number of the. Senate to give its judgment of convic-
tion cannot be had, the proceeding ought to be dismi^ed, just as a bill
in equity is dismissed when it is ascertained at conference that the
number of judges required to sustain jurisdiction to administer the
relief prayed for cannot be had. This proposition is well settled by
decisions of the Supreme Court of the United States in the case of
Rhode Island ve. Massachusetts, 12 Peters, page 718, and by the Dred
Scott case, 19 Howard, pages 473 and 564.

Mr. Justice Daniel's decision in the Dred Scott case quotes, page
473, 19 Howard, the passage I now read from the decisions in 12
Peters:

The question is whether on the case before a oonrn their action is jadicial or
extn^adidAl, with or withont the anthority of law to render a jadgmeot or de.
cree upon the rights of the litigant parties.

A motion to dismiss a canse pending in the coni'ts of the United States is not
analogous to a plea to the Jarisuiction of a court of common law or equity in £n-

glancT; there the superior courts have a general iurisdiotion over all persons with*
1 the realm and all causes of action between them. It depends on the subject-
matter, whether the Inrisdictiou shall be exercised by a court of law or equity ; but
that court, to which it appropriately belongs, can act Judicially upon the party and
the subject of the suH, unless it sliall bo made apparent to the court that the Judi-
cial determination of the case has been withdrawn from the court of general Juris-
diction to an inferior and limited one. liua neceamry presumption that the court
qf general juriedietum ean act upon the given cote when nothing appeare to the con-
trary f henne hoe ariaen the rule that the party claiming an exemption from ite proeeee
must eet otU the reaeons by a tpedal plea in abatement, and ehovo that eome ir^ferior
court cflavj or equity ha» the exdurive coonizanee of the case ,• otherwiee the euperior
court fMui proceed in virtue of itt general jurisdiction,

A motion to dismiss, therefore, cannot be entertained, as it does not and cannot
disclose a case of exception ; and if a plea in abatement it put in, it mutt not only
mtUce out the exception^ buX poiiU to the particular court to which the case belongs.

As there was no such pointing to any pariiculnr court other than
this to which this case belonged, in the plea in abatement which we
filed, it was no plea in abatement at all. It lacked an indispensable
averment to make it a plea in abatement.

There are other classes of cases where the objection to the Jurisdiction is of a
different nature, as oua bill in chancery, that the sultject-matter is cognisable only
by the king in council, and not by any ludicial power, or that the parties defenu-
ant cannot be brought before any municipal court, on account of their sovereign
character uid the nature of the controversy : or in the very common cases which
present the question whether the cause properly belongs to a court of law or equity.
To such cases a pica in abatement would not be applicable^ because the plaintiff cotad
not sue in an inferior court.

Hence, as the plaintiff in this case could only sue in this court, no
plea in abatement would be applicable.

Tlie ol](}cction goes to a denial of any Jurisdiction of a municipal court ia one
class of oases, and to the Jurisdiction of noy court of equity or of law in the other ;
on which last, the court decides according to their legal discretion. An ol\jection
to Jurisdiction, on the ground of exemption from the process of the court in which
the suit is brought, or the manner in which a defendant is brought into it, is waived
by appearance and pleading to issue, but when the objection goes to the power of the
court over the parties, or the subject-matter, the d^etMant need not for he cannot give
the plaintiff a better u»rit or bilL Where no inferior court can have jurisdiction of a
case in law or equity, the ground of the objection is not taken by pUa in abatement, <ts
an exertion of the given ease, from the otherwise general mrisdietion of the court ; ap-
pearance does not cure t he defect of iudicial power, and it may be relied on by plea,
answer, demurrer, or at the trial or bearing, unless it goes to the manner of bring-
ing the defendant into court, which is waived by submission to the process.

As a denial of Jurisdiction over the subiJect-matter of a suit between parties
within the realm, over wliich and whom the court has power to act, cannot do suc-
cessful in an English court of general Jurisdiction, a motion like the present could
not bo sustained consistently with the principles of its constitution. But as this
court is one of limited and special original Jurisdiction—

And certainly the court of impeachment is one of limited and of
special jurisdiction —

its action must he confined to the particular cases, controversies, and parties
over which the Constitution and laws have authorized it to act; any proceedin;'
without the limits prescribed is coram non iudice, and its action a nullity. And
whether the want or excess qf power is objected by aparty^ or is apparent to the court—

At any stage of the proceedings —
it must surcease its action, or proceed extn^udidally.

In the opinion of the court in the case of Dred Scott r». Sanford the
court said :

Before we speak of the pleas in bar, it will be proper to dispose of the questions
which have ansen on the plea in abatement.

That plea denies the right of the plaintiff to sue in a court of the United States
for the reasons therein stated.

If the Question raised by it is legally before us, and the court should be of opin-
ion that the facts stated in ii dis(^ualify the plaintiff from becoming acitizen in the
sense in which that word is used m the Constitution of the United States, then the
iudgment of the circuit court is erroneous and must be reversed.

It is suggested, however, that this plea is not before us, and thatas the Judgment
in the court below on this plea was in favor of the plaintiff, he does not seek to re-
verse it or bring it before the court for revision by his writ of error, and also that
the defendant waived this defense by pleading over, and thereby admitted the Juris-
diction of the court

But, in making this ol]^ection, we think the peculiar and limited Jurisdiction of



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288



TRIAL OF WILLIAM W. BELKNAP.



ooorts of the TTnitod States has not been adverted to. This pecnliar and limited
Jaiisdiotion has made it Deceesarv in these coarts to adopt dimrent rules and prin-
ciples of pleading, so far as Jonsdiction is concerned, from those which regulate
courts of coromoniaw in Endand and in the different States of the Union which have
adopted the common-law nues.

In these last-mentioned courts, where their character and rank are analogous to
that of a circuit court of the United States ; in other words, where they are what
the law tonus conrto of general Jurisdiction, they are presumed to have Jurisdic-
tion, unless the contrary appears. No averment in the pleadings of the plaintiff is
necessary in order to give Jurisdiction. If the defendant ol^eoto to it he must
plead it specially, and unless the fact on which he relies is found to be true by a
Jury, or admitteid to be true by the plaintiff, the Jurisdiction cannot l>e disputed in
an appellate court.

Now, it is not necessary to inquire whether in courts of that description a party
who pleads over in bar, when a plea to the Jurisdiction has been ruled against liim,
does or does not waive his plea; nor whether upon a Judgment in his favor on the

Ideas in bar, and a writ of error brought by the plaintifl^ the question upon a plea
n abatement would be open for revision in the appellate court. Cases that may
have been decided in sucn courts, or rules that may have been laid down by com-
mon-law pleaders, can have no influence in the decision in this court Because,
under the Constitution and laws of the United States, the rules which govern the
pleadings in Ite courto in questions of Jurisdiction stand on different principles and
are regulated by difforent laws.

This difibrenoe arises, as we have said, from the peculiar character of the Gov-
ernment of the United States. For although it is sovereign and supreme in its ap-
propriate sphere of action, yet it does not possess all the powers which usually be-
long to the sovereignty of a nation. Certain specified powers, enumerated in the
Constitution, have oeen conferred upon it ; and neither the legislative, executive,
nor Judicial department of the Government can lawfully exercise any authority
beyond the limits marked out by the Constitution. And in regulating the judicial
depardnent, the cases in which the courts of the United States shall nave Jurisdic-
tion are particularly and specifically enumerated and defined ; and they are not 9u-
tiiorized to take oonDizance of any case which does not come within the description
therein specified, tience, when a plaintiff sues in a court of the United Statrs, it
is neoesjMuy that he should show in his pleadings that the suit he brings is within
the Juri^ction of the court, and that he is entfUed to sue there. And if he omits
to do this, and should, by any oversight of the circuit court, obtain a Judgment in
his favor, the Judgment would be reversed in the appellate oourt for want of Juris-
diction in the court l>e1ow. The Jurisdiction would not be presumed, as in the case
of a oommon-law English or State court, unless the contrary appeared. But the
record, when it comes before the appellate court, must show affirmatiyely that the
inferior court had authority, under the Constitution, to hear and determine the case.
And if the plaintiff daims a right to sue in a circuit court of the United States, un-
der that provision of the Consutution which gives Jurisdiction in controversies l>e-
tween ciuzens of different States, he must distinctly aver in his pleading that they
are citixons of different States ; and he cannot maintain his suit without showing
that fact in the pleadiogs.

This point was decided in the case of Bingham vs. Cabot, (in 3 Dallas, 382,) and
ever since adhered to by the oourt And in Jackson V9. Ashton, (6 Peters, 148,) it
was held that the objection to which it was open could not be waived by the oppo-
site party, because consent of parties could not ^ve Jurisdiction.

It IS needless to accumulate cases on this subject. Those alreadv referred to
and the oases of Capron v». Van Noorden (in S Oanch, 136) and Montalet vt. Mur-
ray (4 Cranch, 40) are suflElcient to show the rule of which we have spoken. The
case of Capron vt. Van Noorden strikingly illustrates the difference l>etween a
oommon-law court and a court of the Unitoa States.

Mr. Jastioe Cartis delivered a dissenting opinion from the court
in that ease, bat ooncorred with the court in holding that when a
party pleaded over after his plea to the jurisdiction had been over-
ruled by a court of limited jurisdiction the question of jurisdiction
was not waived. I will read a feW passages from his opinion to show
the court his Tiews on this point :

The part of the Judicial {Mwer of the United States conferred by Congress on
the circuit courto being limited to certain described cases and controversies, the

Question whether a particular case is within the cognizance of a circuit court may
e raised by a plea to the Jurisdiction of such court When that question has been



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