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President might put him back again, and that contest would be a
fruitless one. It was for such cases as that, as I have in my opening
argument endeavored to explain, that impeachment appliecl, tnat is,
only to cases of controversy between the great public bodies, the
Executive and his appointees on the one hand, and the House repre-
senting the people on the other; and that it would be applicable



only to such cases. It could not be carried out in such oases without
the power of the Senate to put in the disqualification, because if he
were eject'Cd from an office, he might be put back the next day by the
President. Therefore I have always supposed it was a thing eniirely
discretionary according to the aggravation of the offense and accord-
ing to the judgment of the Senate for the time being as to the of-
fender. But I have not considered whether it required any greater
vote to impose the sentence than to adjudge the conviction ; but I
suppose as a matter of first impression that it would not, that the
two things go together. I do not see that it has any particular bear-
ing on the case now before the court. I do not see the bearing of the
question 'upon the case at bar at all. It seems to me, as I have en-
deavored to explain in this argument and in the other, that the
whole reach of this proceeding is against an ofi'ender in office, and
that the reason of the thing ceases when he is out of office before
proceedings commence.

Mr. INGALLS. Mr. President, I move that the Senate sitting in
the trial do now adjourn.

The motion was not agreed to.

Mr. BLACK. Mr. President, I do not like to make any appeal to
the mere mercy of the Senate ; but certainly it seems like a hs^ship
that the case should be pressed on in the absence of the counsel who
is to answer the arguments that will be made this afternoon, if they
are made. I therefore ask very earnestly that there shall be no objeo-
tlou made — and I am very much surprised that there should be any —
to a continuance of the cause until to-morrow simply that Mr. Car-

E enter, who is absent on account of illness which wholly disables
im from being here, shall be present in order that he mav, by hear-
ing the arguments of the other side, qualify himself to reply to them.
It IS impossible for me to do it because the duty of replying mainly
to the arguments which the gentlemen will deliver on the part of the
House of Representatives this afternoon, if they go on at all, has been
assigned to him and not to me. It is almost as bad as refusing to a
man the privilege of being heard by his counsel altogether.

Mr. CONKLING. May I inquire of the counsel who is now ad-
dressing the Senate, inasmuch as the argument made to-da^ will be
in print by an hour in the morning as early as that when his associ-
ate will be up. thus giving him opportunity to peruse and mark it
in print, whether the whole object which ho seeks will not be ob-
tained substantially as well as if we go over until to-morrow and lose
the rest of !ihis day f

Mr. BLACK. I think not. There is no certainty that the argu-
ment will be printed to-morrow.

Mr. CONKLING. That occurred to me, and I should like to know
from the managers, if we may know that, whether the argument
which will be made this afternoon will be in print in the morning.
If it should be delivered and withheld for revision, and a reply re-
quired from counsel who is not to hear the delivery of the argument,
that would be veiv awkward certainly.

Mr. Manager LORD. I will answer the Senator that Mr. Lap-
ham who is expected to make the next argument on behalf of the
managers went home indisposed. I have now sent for him. I pre-
sume that whatever he says on the subject will not need revision. If
Mr. Lapham is not able, then Mr. Lyndb will have to go on, if the
Senate does not acyourn.

Mr. CONKLING. Will his argument be printed in the morning f

Mr. Manager LYNDE. I should prefer not to go on, as I intended
merely to speak on a single point of law, and not comment upon the
testimony ; and, aa an arrangement was made yesterday as to the
order of the argument, I did not come here to-day prepared to make
my argument.

Mr. Manager LORD. Mr. President, I will say again that I have
sent for Mr. Lapham. He lives very near by, and he may be able to
go on to-day.

Mr. INGALLS. Has Mr. Lapham retired from the Capitol, being
unable to remain f

Mr. Manager LORD. He went home about an hour ago ; but still,
I think he may be able to go on. I thought when he went away that
Mr. Ltnde would take his place. I find now that Mr. Ltnde would
prefer to go on in the morning, and I have sent for Mr. Lapham.

Mr. ANTHONY. I should hke to ask counsel for the defense if Mr.
Carpenter's indisposition is such that it is probable he will be unable
to appear to-morrow f

Ml*. BLACK. I think he will be here then. He is very sick now,
but it is a sort of sickness that he is very likely to recover from by
to-morrow morning.

Mr. Manager LORD. You think he will be here f

Mr. BLACK. I do think he will be here.

Mr. CONKLING. I suggest that it might facilitate the determina-
tion of this matter if the Senate sitting for the trial were to take a
recess of ten minutes. When Mr. Lapham gets here these gentlemen
can confer.

The PRESIDENT pro tempore. The Senator from New York moves
a recess of ten minutes.

The motion was agreed to; and (at three o'clock p. m.) the Senate
sitting for the trial of the impeachment took a recess for ten minutes.

After the expiration of the recess—

The PRESIDENT pro tempore. The Senate resumes the trial session.

Mr. Manager LORD. I will say that I have sent for Mr. Lapham,
and expect him here every moment. The messenger I sent has not



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TRIAL OF WILLIAM W. BELKNAP.



295



retained. He liyos at 407 East Capitol street, which I nnderstand is
not very far f ronr here. If the Senate will wait two or three minutes
he will verv likely be here.

Mr. CONKLING. Bv way of preventing the Senate from being
without business, I ask that the trial may be suspended aud that
the bill which I just now reported aud in which the Senator from
Maine [Mr. Hamlin] is very much interested may be taken up and
acted npon.

The PRESIDENT pro tempore. The Senator from New York asks
that the trial session be suspended for the purpose of considering leg-
islative business. Is there objection f

Mr. OGLESBY. I understood that the court, or the Senate sitting
in the trial, had taken a recess for ten minutes.

The PRESIDENT pro tempore. The Senator is correct.

Mr. OGLESBY. And that the President of the Senate had an-
nounced that the recess had expired and that the court would pro-
ceed with the case. Now, if the managers and counsel are not pre-
pared to go on and the court is ready to hear them, let us conclude
the argument and let the court take the case. I do not know that
the Senate should be delayed day after day or hour after hour sitting
here patiently waiting to hear evidence and hear argument, willing
to hear counsel, willing to be enlightened by them, and if after the
admonition the counsel and managers have received they are not
ready to go on, I think it no more than prudent that the court should
admonish the counsel and managers both that it is ready to take
charge of the case without any fmiiher elucidation.

Mr. CONKLING. Will the Senator allow me to inquire of him, did
he hear one of the managers state that a messenger had gone to a
house near by to recall one of the managers who left here a short
time ago not feeling well, and that they expected him here moment-
arily f

Mr. OGLESBY. If the Senator from New York will permit me to
reply, I will say that I did hear that statement.

Mr. INGALLS. Mr. President, may I rise to a point of order f

The PRESIDENT j)rotemj>ore. The Senator from Kansas rises to a
point of order.

Mr. INGALLS. Is the Senate in trial session or legislative session f

The PRESIDENT pro tempore. In legislative session.

Mr. INGALLS. What, then, is the question before the Senate f

The PRESIDENT pro tempore. The consideration of the bill asked
for by the Senator from New York.

Mr. ALLISON. I have no objection to the consideration of that
bill.

Mr. OGLESBY. I asked the presiding officer of this body if the ten
minutes had not expired, and before I made a remark I understood
the President to say that the court was now ready to proceed with
the trial.

The PRESIDENT pro tempore. The Senator is right in that the
Chair stated that the Senator was correct in regard to the recess.
Since the recess, however, by unanimous consent the business of the
trial was sutspended for the purpose of considering the bill which the
Senator from New York reported.

Mr. OGLESBY. To which I rose to object.

The PRESIDENT pro tempore. The Chair did not hear the objec-
tion. The Senator rose and the Chair recognized him on the biU as
he supposed, no objection being made to its consideration.

Mr. OGLESBY. I object now.

The PRESIDENT i»rotomi>or6. The objection is now too late. The
bill will be read.

Mr. EDMUNDS. Mr. President, I rise to a point of senatorial cour-
tesy. If the Senator from Illinois states that he rose to object, accord-
ing to the universal usage in this body he is entitled to do it.

The PRESIDENT pro tempore. The Chair did not understand the
Senator to state that he objected before the bill was ti^en up.

Mr. OGLESBY. I rose and addressed the President of the Senate,
if the President will allow me to so remark, by asking the Chair one
or two questions. The Chair replied to me in such manner as to
leave no doubt upon my mind that we were now in trial session. After
that and the motion had been made by the Senator from New York,
as I understood from the President that the court was sitting, I did
not offer an objection to the Senator's bill, but I took the liberty to
make the remarks that I did. The Senate is sitting here patiently in
this heated weather ready to go on with this trial. We are perfectly
willing to hear counsel and managers, but they ought to be ready with-
out asking a moment's longer delay.

The PRESIDENT pro tempore. The Chair will state to the Senator
from Illinois that the Chair recognized the Senator from New York,
and put the question to the Senate, to which no objection was made,
of suspending the business in trial session for the purpose of consid-
ering the bin which the Senator from New York suggested. The
Chair stated that the bill was before the Senate, and t>hen the Sen-
ator from Illinois rose, as the Chair supposed, to address the Senate
on the bill. The Senator now states that he supposed the Senate was
in trial session, and on that he would ha^o a right to object to the
consideration of the bill.

Mr. CONKLING. The honorable Sk ^ator from Illinois in the course
of his very eloquent remarks has said that he did not object to this
bill in which the venerable Senator fmm Maine was so much inter-
ested. The Senator from Illinois need not have made that remark ;
because, knowing him as I do, I know that he i«''"*apable of making



such an objection. He did not object to it ; he will not object to it.
It is a little bill to change the name of a little fishing-vessel. The*
papers are all complete ; there are full certificates which tho Senator
from Maine, unlike some other Senators whom I might refer to but I
do not, alwavs takes the pains to have, the official certificates and
the full proof in these somewhat vexatious cases. He has taken the
trouble to have all that now. He wants this little bill passed. It is
a matter of accommodation to him and to his constituents. It would
have taken about one-quarter the time which I have misexpended
myself now in addressing the Senate. As I know the Senator from
Illinois will not object to it, I ask now that this lilj^le bill may be
taken up and passed in the absence of the Senator from Maine, so
that, when he comes back, he may be rejoiced to know that the Sen-
ate has done that little act of courtesy to him in his absence.

Tho PRESIDENT pro tempore. The Chair reminds the Senator
from New York that debate is out of order. The Senate is in trial
session.

Mr. OGLESBY. Do I nnderstand the Chair to decide that we are
now in trial session f

The PRESIDENT pro tempore. In consequence of the objection of
tho Senator from Illinois ; and therefore debate is not in order.

Mr. CONKLING. The Senator from Illinois will withdraw that
objection.

Mr. OGLESBY. I should be perfectly willing to accommodate the
appeal of the Senator from New York.

The PRESIDENT pro tempore. The Chair reminds Senators that
debate is not in order.

Mr. OGLESBY. Could I have permission to withdraw my objec-
tion?

The PRESIDENT pro tempore. The Senator can withdraw his ob •
jection.

Mr. OGLESBY. I was going to reply to the honorable Senator from
New York that, under his touching appeal, with that rotund and irre-
sistible elo<iuence that overwhelms every man to whom it is addressed,
I would withdraw my objection if I felt that I should be supported
by the Senate; but, as I see the Senate is determined to proceed with
this trial, I shall have to stand on my objection. [Laughter.]

Mr. Manager LORD. Mr. President, I would state that Mr. Lap-
ham is not able to come, and Mr. Lyndb will proceed with his argu-
ment.

Mr. Manager LYNDE. Mr. President and Senators, I feel great
delicacy in addressing the Senate at this time because of the arrange-
ment which had been made between counsel for the argument of this
case, that arrangement being that Mr. Blair should open the argument
and should be followed by Mr. Lapham who would address the Senate

Xn the evidence in the case and such points of law as he saw fit to
ress them on, and that I should be called on to address the Senate
on one single point of law ; and in fact I did not know that I should
be called on to address the Senate on that question of law imtil yes-
tenlay afternoon. Under these circumstances, as I am not to address
the Senate upon the facts, (for I have made no compilation of the
evidence in this case,) it is peculiarly embarrassing to me, inasmuch
as the counsel on the other side have already addressed the Senate
upon the facts, and the counsel who is to follow on the other side
will undoubtedly ask the Senate that some of the managers shall ad-
dress the Senate on the facts before he shall be called upon to reply.
I do not feel. Senators, that we are at all to blame for not being able
to proceed in the regular order of argument this afternoon. It is
owing to the fact that one of the managers after spending two or
three hours in this court has gone home sick, and that is an event
over which neither Senate or managers have any control. It is
usually considered a sufficient reason for giving some indnlgence to
counsel even in the midst of the most important cases, but as a con-
tinuation of this argument is insisted npon, I will say to the Senate all
that I have to say npon this case and will occupy but a very short
time.

The only point to which I intended to call the attention of the Sen-
ate is as to the effect of the vote npon the question of jurisdiction npon
the final vote which will be taken on conviction. I do not proposo
to enter into an argument on the qnestion which was argued here by
the Senate for some thirty days as to the ^jurisdiction of this court.
I take it that question has been as fully discussed as would be of ad-
vantage in this case, and that every Senator is fully satisfied in his
own mind ; but I am not advised that the other question, which I
now present, has received the consideration of tho Senate.

The question was asked this afternoon by one of the Senators as to ^
what was included in the word " conviction." When that question
is answered it seems to me that it disposes entirely of the effect of
this vote. If the word " conviction " embraces every step and every
proceeding in the cause from the beginning to the end, every step that
becomes necessary in the conrse of the trial of this cause, then there
must be a concurrence of two-thirds of the Senators present. If,
however, it includes nothing more than the vote on the qnestion of
guilt of the accused, whether the allegat'ons in the articles of im-
I>eachment are sustained by the evidence in the case, then all other
questions can be determined by a minority vote.

The qnestion of jurisdiction may be raised in different forms. In
the case of Judge Barnard it was raised upon a plea that acts which
were performed crimes committed by that jnd^e during a previous
\^v\r* of his service, were not proper subjects of impeachment. What



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296



TRIAL OF WILLIAM W. BELKNAP.



^does that mean but that the oonrt had no inrisdiction of the allega-
*tioD6 in tboae articles of impeachment, and tnerefore could not proceed
with the trial of that cause f On that plea, which was presented to
the court, the vote stood 9 against the Jurisdiction of the oonrt, against
the validity of the articles, and 23 in favor of their validity. Amons
the eminent lawyers and judges who participated in that trial and
who voted upon this question I find that Chief Jud|^ Church, Judses
Folger and Rapallo, Senators Foster, Harrower, Lewis, Lord, Murphy,
anil O'Brien voted against those articles of impeachment, against the
court taking jurisdiction of those articles for the reason the onense was
committed m a prior term from the one in which he was then serving ;
and yet those judges after that question had been decided, every one
of them, voted in favor of sustaining the articles, those very articles,
upon the final vote. What then becomes of this pretense that a Sen-
ator sitting as a jndge or sitting in the trial of an impeachment case,
when be feels that the Senate has no jurisdiction over the articles pre-
sented and that question has once been decided by the tribunal, nas
still a right to set up his own of>inion against the decision of the court
and refuse to vote upon the articles presented t I see no reason, Sen-
ators, why after a question is decided according to law, according to
the practice of courts, the decision is not binding upon every party
who has any act to perform in carrying out the a^udioatlon of that
court.

On the subject of conviction I would ask the indulgence of the Sen-
ate to read from Story on the Constitution, $ 811 :

When the answer is prepared and given in, the next regnlar proceeding is for
the Honse of Representativee to filo a replication to the answer iii writing, in snb>
stance denying the truth and validity of the dofeuse stated in the answer and aver-
ring the truth and sufficiency of the char«;es and the readiness of the Honse to
prove them at such convenient time and place as shall be appointed for that pur-
pose by the Senate. A time Is then assigned for the trial, and the Senate, at that
period or l>efore, adjust the preliminaries and other proceedings proper to be liad
Wore and at the trial by fixed regulations, which are made known to tlie House
of Representatives and to the party accused. On the day appointed for the trial
the Honse of Representatives appear at the bar of the Senato, either in a body or
by the managers seleoted for that purpose, to proceed with the trial. Process to
compel the lutendance of witnesses is previously issued at the request of either
party by order of the Senate ; and at the lime and place appointod they are bound
to appear and .give testimony. On the dav of trial, the parties being ready, the
managers to eondnct the prosecution open it on behalf of too Honse of Renresenta.
tivcs, one or more of them delivering an explanatory speech, either of tne whole
charges or of one or more of t hem. The proceetlings are then conducted substan-
tially as they are upon common Indicial trials, as to the admission or reiection ot
testfmoDy. the examination and cross-examination of witnesses, the rules of evi-
dence, and the local doctrines as to crimes and misdemeanors. When the whole
evidence lias been gone through, and parties on each side have been fully heard,
the Sena' o then proceed to t be consideration of the case. If any debates arise they
are conducted in secret ; if none arise, or after they are ended, a day is assigned
for a final public decision, by yeas and nays, upon cai.'h separate charge in the ar-
ticles of impeachment. When the court is assembled for this purpose, Qie question
is prnpouufled to each member of the Senate by name' by the ^resident of tho Sen-
ate, iu the following manner, upon each article, the same being first road by the

Secretary of the Senato : " Mr. , how any yon, is the respondent guiltyor not

guilty of a high crime and misdemeanor, as charged in the article of im-
peachment'" Whertnipon the member rises in his place and answers guilty or
not guilty as his opinion is. If upon no article two-thinls of the Senato decide that
the party is gnilty. he is then entitled to an acquittal, and is declared accoidlngly
to be acquitted by the President of the Senate. If he is convicted of all or any of
the articles, the Senato then proceed to fix and declare the proper punishmenL

It is very apparent that this great commentator on the Constitu-
tion construed the word " conviction" as applying to the vote upon
the articles of impeachment. That is the only vote which tho Con-
stitution requires should be taken by yeas and nays. But it is impos-
sible. Senators, for me to nnderstand how this question as to whether
the Senate will try the cause and have a right to try the cause should
in an^y manner be complicated with the question of conviction. It
certainly cannot be complicated with it any more than the admission
of evidence ; the question as to whether evidence is admissible in the
trial of the cause where an objection is made ; and yet who has ever
supposed that it required two-thirds of the Senate to admit testi-
mony which was offered in the trial of an impeachment case f And
if the Senate does admit the evidence, if a majority have a right to
pass upon the <]^neetion as to what is le^al evidence and what testi-
mony IS admissible in the case, that decision must be binding upon
the court and every member of it. No member has a right to say tnat
the majority of the Senate can admit the evidence and yet he have a
risht to exclude it.

In the impeachment case of Andrew Johnson, lately tried before
this Senate, in fifteen oases where the yeas and nays were called on
the admission of evidence there were less than two-thirds voting for
the admission, and yet that evidence was received. Of nine cases
where the yeas and nays were called and the evidence was rejected
there were five or six where it was rejected by less than a two-thirds
vote.
X" It is a new idea that a judge upon the bench is not bound by legal
decisions in the same case ; tnat a judge upon the bench is not bound
to regard the law of the case when it is settled ; and if it is true that
this question can be passed upon by a minority vote, the decision is
binding upon the judge as well as upon the party.

I will now read on the subject of the definition of " conviction,"
from a small work called The Cabinet Lawyer, from pages 62 and 63:

When the case for the nrosecntion is closed, the prisoner or his counsel addresses
the Jury and examines witnesses for the defense, to which the prosecuting counsel
has the right of addressing the Jnry In reply, if witnesses have been called for the
defense, except for the purpose of proving the prisoner's character,- for. if the de-
fense rests entirely on character and cross-examination of prosecutor's witnesses,
t)ie prisoner or his coqnsel has the last word, and no reply is allowed to the open-



ing counsel. The evidence on both sides being dosed, the Judge sums up, as in
civil causes, and the Jnry deliberate on their venlict, and until a verdict be given
they cannot be discharged. If they find the prisoner not guilty, he is liberated ; but
if they find him guilty, he Lb said to be convicted of the crime whereof he stands
indicted.

I also refer the Senate to Bouvier's Law Dictionary, twelfth edi-
tion, title •* Conviction,'' for the legal definition of this word, which
reads as follows :

Conviction, (Lat conwj<w); from «m, with, wnccre, to bind.) In practice. That
legal proceeding of record which ascertains the guilt of the party and upon which
the sentenoe or judgment is founded.

" Which ascertains the guilt of the party." What is it that ascer-
tains the guilt of the party on these articles of impeachment as they
are presented to the Senate f Is not that ascertained entirely from



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