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the evidence and from the verdict based upon that evidence ; the evi-
dence that is properly before the court ; the evidence which the court
has decided to receive f What has it to do with the fact that the
court has voted upon the question as to whether it will proceed to
try the cause f

I feel myself embarrassed in presenting authorities to this court to
maintain the position that all questions are to be decided by a major-
ity vote, unless the Constitution or laws or the rules of court and of
legislative bodies expressly prescribe a different rule. It would seem
so familiar to Senators that to quote authorities to sustain it would be
trespassing upon your time ; yet I ask your indulgence while I call to
your minds a few. I do not claim that the vote upon the question of
jnrisdiction is so far beyond the reach of the Senate that it is not sub-
ject to reconsideration at any time during the progress of the trial,
and on that vote of reconsideration every member will exercise his
own opinion in voting on it ; but so long as it remains unrepealed, so
long as it remains the standing order of the Senate, it is binding
upon all.

The rule of decision in all councils and deliberative assembliea—

I read from Cushing's Law and Practice of Legislative Assemblies,
page 167—

whose members are eqnal in point of right is, that the will of the greater number
of those present and voting— the assembly being duly constitntea - is the will of
the whole body.

The Senate act as a body, and not as individuals, when they pass or-
ders or make laws. Tho Supreme Court of the United States nas de-
cided over and over again that when a decision of that court is ren-
dered even by a divided court it has the same force and effect and is
just as binding as if it had received the unanimous vote of that
court. I read from tho opinion delivared by Mr. Justice Field in
the case of Dnrant r». The Essex Company iu 7 Wallace, 113:

The statement which always accompanies a Judgment in such case, tliat it is ren-
dered by a divided court, is only intended to show that there was a division among
the Judges upon the questions of law or fact involved, not that there was any dis-
agreement as to the judgment to bo entered upon snch division. It serves te ex-
plain the absencx) of any opinion In tho cause, and prevents the decision from be-
coming an authority for other cases of like character. But the Judgment is as con-
clusive and binding in every respect upon the parties as if rendered upon the con-
currence of all the Judges upon every question involved in the case.

Therefore I call the attention of the Senate to the fact, that courts
and legislative bodies, when they pass upon questions whether of law
or any legislative proceeding, act as a body^ and when an act has
been passed or a decision made by a constitutional vote, it is the vote
of the body, and no individual member of the body nas a right to
complain, no individual member has a right to set up bis conscience
as af^ainst the law. I will now read a few more sentences from

Hence whatever is rcM^ilarly agreed upon by a ra^rity ef the members of a leg-
islative assembly is a thing " done and passed " by that body. Where the assem-
bly is equally divided, there is, of course, not a majority in favor of the proposition,
wiiich is put to vote, and that proposition is oonsoqiiently decided in the negative.

4L3. The right of tlie majority tons to decide, which is instinctively admitted as
an ultimate tact, is also founded in good reason. In the iirst place, as has already
been remarke<l with reference to electors, the members being supposed equal, it is
at least probable, if not certain, that there will be more knowledge, wisdom, and
virtue in a mi\{onty than in any smaller number ; secondly, there is no other prac-
ticable way by which, in the last resort, any matter can be concluded, in reference
to which there is a diversity of opinion ; thirdly, the supremacy of the minority is
not the dominion of a certain nnmber of the individual members arrayed together
for the purpose of governing the others on all questions and sul](Jecto ; but those
who constitnto the mi^oiity or minority on any one point may change places on
the next question that ai-ises ; and, fourthly, as a council or other organized assem-
bly, consisting of several members, is considered as one person or body, as to all
other persons and bodies, its will can be no other than that which predominates in
it> where there are several disconlant wills among the members.

41 4. For these reasons tho law of tho mi^iority is universally admitted in all legis-
lative assemblies, unless, in reference to particular cases, persons, or circumstances,
a different rule is prescribed by some puramount authority or is agreed upon before-
hani and cstahlisned by the assembly itself, by which a smaller number is permit-
tod, or a larger nnmber is required, to do some particular act But even in tbeae
cases it is the will of the m^ority that governs, becanse it is by a major veto, in
tho flist instance, that the rule itself is established; or where the nue is estab-
lished by the Constitution or by law^ it derives its authority from the sovereign
power or the people acting in a constitutional manner, which ultimately resolves
itself into the will of the minority. The Constitution of the United States requires
the agreement of two-thirds of each branch to pass a bill, notwithstanding the ob- .
Jections of the Presitleot, and i*lso'allows oue-flfth of the nnmber necessary to a
auornm to require a question to be taken by yeas and nays. There are exaiunlos of
tne establishment by express provision of a rule of decision diflbrent from tne mli-

Mr. EATON. Mr. President, is it proper that I should ask the man-
ager a question f
The PRESIDENT pro tempore.

It hns l>een so ruled by the Senate.

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Mr. EATON. The manager has read from the mnuual of Cnshiog
where he says "a majority present and voting/' Now the Constitu-
tion of the United States says: "And no person shall he convicted
without the concun*enco of two-thirds of the members present;" not
" present aud voting,'' but " present." The question that I desire the
distinguished manager to answer is this : Suppose there be sixty mem-
bers of the court present and but twenty-tive vot^j, is that clause of
the Constitution of the United States satisfied by that vote when it
says that do person shall be convicted without the concurrence of
two-thirds of the members present f

Mr. Manager LYNDE. Mr. President and Senators. I do not know
what steps the Senate under those circumstances would feel itself
called upon to take. I do not know but a Senator can remain in his
scat and refuse to vote upon a question that is legally before the
Senate ; but this I do think, if it is true that the Senate has no mode
of enforcing its rules and requiring every Senator in his seat to vote,
it should consider no person present who does not make himself ap-
pear upon the record as present by his vote. Tliat is the only test
that I know of to ascertain whether a member is present or not. If
he should ^t up and refuse to vote and announce that he is present,
I think he is not present within the meaning of the rules ana within
the construction of the law, for the law supposes that every Senator
present will do his duty and vote. The law presumes every Senator
votes who is present. I know in legislative bodies with which I have
bei^n connected it is frequently said when a question is asked on a
motion for reconsideration whether the party who ma<le the motion
voted with the majority it is answered that there is no record, the
motion is ruled in order. I think that would be the proper rule to
govern all cases where yon are to ascertain what Senators are present.

I will now refer the Senate to an order in the House of Commons
for the purpose of showing how these parliamentary rules have been
construed i n othor bodies. I refer to the Lex Parliamentaiia, page 298 :

April 3, 1604. A rale that ft qneAtlon being once mftde and cftrried in the afflrm-
ativo or negatire cannot be qaeationed a^ain, but mast stand asajadgment of
the Hooae ; the case of Sir Francis Goo<lwvn and Sir John Fortescue.

This was a case where the king claimed that Sir Francis Goodwyn
was not eligible to a position in the Parliament on the ground that
he had been outlawed, and the Hquse of Lords sent down to the
House of Commons to ask a conference on this question ; but the
House of Commons replie<l that the judgment, where the order had
once been made and carried in the affirmative, must stand as the judg-
ment of the house.

I will now ask the attention of the Senate to a reference which I
find in 25 WendelPs Reports to Sidney on Apj^eals and Palmer's Practice
of the House of Lonls. Sidney ou Appals is the book referred to,
aud which 1 cannot find in any of our libraries:

The cases referred to by Sidney on Appeals, and in Palmer's Practice of the
House ot Lotds, which haveoccured since too deliberate Judgment of that tribunal
upon the question of rehearing in January, 1607, will all oe found to be cases of
tljat description.

That is, upon the question of rehearing.

Both those writers consider it as the settled practice of that oonrt—

That is, the House of Lords.

Mr. CHRISTIANCY. I wish to ask the manager what he now reads

Mr. Manager LTNDE.' I now read from 25 Wendell, page 255.

Mr. CONKLING. What is the case?

Mr. Manager LYNDE. The case is The People vs. The Mayor and
Aldermen of New York.

Both those writers consider it as the settled practice of that oonrt, which has
exi.sted for nearly a ceutnry aud a half, that there can be no rehearing or review
of the canse upon the merits, after the minutes of the Judgment hare been settled
and directed to be entenxl. Sydney says, "when the minutes of an order have
been road at the tabic of the House of Lords, it is considered as final and uualter'
able, even upon appeals frum chancery." (Sydney, 34.) And in Bemal m. The Mar-
quis of Duuegal, in 1814, where a mistake In drawing up the order upon an appeal
was corrected, &c.

I read this for the purpose of showing the binding effects of orders
made by this court.

Mr. MITCHELL. If it will not interrupt the manager, I should
like to ask him a question. The Clerk will read it.

Mr. Manager LYNDE. Certainly.

The PRESIDENT pro tempore. The Clerk will read the question.

The Chief Clerk read as follows :

Suppose t4ie plea in this case had been that of former conviction or
fomii^r acquittal, would it have required a two-third migority to de-
termine the issue; and if the plea were overruled by a mere majority
vote would the Senators voting in the minority be legally bound by
such decision t

Mr. MITCHELL. There is one other Question which follows in
connection with that, which I also ask to have read.

The Chief Clerk read as follows :

What difference is there, if any, between the case just supposed and
the case at bar, in reference to the requisite msgority to determine
^the issue f

Mr. Mana^r LYNDE. Mr. President and Senators, with my view
of this case it makes no difference what that plea may be, if the de-
cision of it does not determine the merits of the case. Any plea which
may be introduced, which must be disposed of preliminary to the vote
on conviction, or vote on the guilt of the party, can be decided by a
m^ortty vote of this hmly, and when so decided it is couolosive upon
the Senate and upon the bo<ly.

Mr. CONKLING. Mr. President, if I do not incommode the man-
ager I should like to ask him a question to understand what he has

Mr. Manager LYNDE. Not at all.

Mr. CONKLING. 1 have understood the manager to argue and to
hold that the presence on this record of an order, sustained by a ma-
jority of the Senate, overruling the plea, constitutes the rule of ac-
tion for every Senator ; and that while that order stands he is bound
by his vote to assert Jurisdiction in this case.

Mr. Manager LYNDE. So I understand.

Mr. CONKLING. I beg to ask the manager a question. Take the
case of a Senator who believes that the remedy by impeachment is
confined to civil officers, that it touches nobody else, that Senator,
under the manager's proposition, would be compelled, as lonj^ as that
order stands, to assert by bis vote the contrary of his belief. But
suppose, when this case comes to be ultimately disposed of some Sen-
ator should s.ty, " Now, let us waive technicalities and let us by gen-
eral consent deem the order vacated ; by unanimous consent, let it be
dropped and expunged," then I understand it would follow that eveiy
Senator would be remitted again to the duty of voting on his oath
as he l>elieves the Constitution to be, merely because by general con-
sent the order meanwhile would have disappeared. Is that the posi-
tion of the manager f

Mr. Manager LYNDE. My position is just this: that every Senator
and every judge is bound by the law and the Constitution as it is con-
strued and interpreted by the proper authorities; and that if a ma-
jority of the Senate have a right to pass ujion the question and settle
the question of jurisdiction, then that qnestion is settled according
to the Constitution, and is binding upon the member, under his oatfi
that be will support the Constitution, and he is not at liberty to set
up his individual views as against the legal construction.

Mr. CONKLING. That being the general principle, I want, if I
can, to make the application exactly righl in my own case. There-
fore I beg the manager to say in answer to my proposition, whether
the rule and its application for which he contends means this: that,
inasmuch as the oraer stands on the record overruling the plea, every
Senator is bound for that reason to so vote as to assert the jurisdiction
of the Senate, whereas the same Senators who disbelieved in the ju-
risdiction, if by the onler or consent of the Senate that onler over-
ruling the plea should be dropped or expunged, would then instantly
be obliged to vote the reverse; that is to say, to vote in accordance
with their own convictions. Is that the application which the man-
ager gives?

Mr. Manager LYNDE. He must vote as the law stands when his
vot.e is given.

Mr. CONKLING. By " the law " the manager there means the order
which has been registered by the court!

Mr. Manager LYNDE. The order which has been registered by the
court so far as that order extends. I would not trace it beyond the
plea, becanse that is all the order applies to. I mean by t hat, that
the Senate are only bound so far as the order extends ; the Senate
has overruled the plea to the jurisdiction and ordered an answer to
the merits, and the issue to be tried is an issue upon the merits.

Mr. CONKLING. Now expunge the order, and then what would be
the duty of Senators f

Mr. Manager LYNDE. If there is no plea to the jurisdiction in
this case-: —

Mr. CONKLING. I beg pardon ; take the plea just as is. Expunge
the order overruling that plea ; let it be done by unanimous consent.
It is obliterated. What I ask the manager then, in his view of the
law, is the duty of a Senator like myself, who disbelieves utterly in
the notion that the remedy of impeachment touches anybody but a
civil officer t What is his duty then f

Mr. Manager LYNDE. My answer to that would be that the plea
standing to the jurisdiction of the court, if the Senator believed that
the court had no jurisdiction he would then vote for the dismissal of
the impeachment, and if the vote upon the guilt of the accused
should be first taken and the Senate should convict, then the qnes-
tion would properlv arise on a motion in arrest of judgment, and
would come properly before the Senate.

Mr. CONKLING. Now the manager comes to the onljr remaining
inquiry which I wish to put, and it was part of my original inquiry.
Suppose in place of a special direction of the Senate, by which the
jurisdictional question was presented as a preliminary q aestion, the
trial had proceeded until now, that remaining then as it is now one
of the elements in the case, would it or wouldlt not, in the judgment
of the manager and upoi^ the law as he understands it, be the duty
of anv Senator to vote to maintain a jurisdiction which on his oath
he believes does not and cannot exist f

Mr. Manager LYNDE. The qnestion should be raised by the par-
ties before the final hearing of the case. If not raised, it is true the
court or any Senator would have a right to raise the question and have
it disposed of ; but I think it should be disposed of as a separate
question by the Senate in any event.

Mr. CONKLING. But if it came simply on the general vote in the
end, what would the law be, as the manager understands itf

Mr. Manager LYNDE. I must answer the Senator that I never
heard of such a case. I never -knew of a case of that kind, where
the question was not raised before the final hearing, or suhsi^uently
by a motion in arrest of judgment; and in those cases a nu^onty set-
tle the question ; it becomes the ortler of the court.

Digitized by




Mr. CONK LING. Is it, then, the opinion of the manager, and the
law as he asi^ertains it to be upon investigation, that if toe question
were now first presented on a plea of not guilty, and the presiding
officer propounded to me the question : " How say you, Mr. Senator,
is the respondent gnilty or not gnilty f " and I made answer that he
is guilty without in that verdict or vote including the element of
jurisdiction, that I could so answer if I believed that I had no more
right to pronounce upon him than the Senate to pronounce upon the
honorable manager now upon the floor f Is that the view of the
manager f

Mr. Manager LYNDE. Mr. President and Senators, in response to
the questions propounded by the Senator from New York, I will an-
swer that if he votes at all, if he entertains jui-isdiction by partici-
pating in the trial of the cause, jf he feels that he has a right to try
the case, and thereby entertains jurisdiction, then he is bound to vote
as to the guilt of the party ni>on the articles presented ; that he can-
not try the cause and at Ibe same time insist that he has no right to
try the cause, and thereby avoid a vote upon the issue loined upon
the guilt of the accused. *If I may be pardoned, I would ask of the
Senator, or any other Senator on this floor if they have ever known
a judge to refuse to participate in the trial of a cause v/here the other
judges sitting with him upon the bench had overruled him upon a
preliminary question ; and that is aU there is of this matter. The
very first question in the case naturally to decide is as to whether the
Senate can try this case. It is purely preliminary, entirely independ-
ent of the merits, involving no question of guilt, but barely whether
the Senate has a right under the Constitution to try the cause.
When that preliminary question is disposed of, which according to
the decisions of the courts and according to the rules laid down in
Cushiug which I have read to the Senate is a question to be deter-
mined by tbe ms^ority, it is conclusive and binding in that case until

Mr. McMillan, win the manager allow me to ask him whether
I understand him correctly to say tlmt the question of jurisdiction in
a trial of this kiud Is a preliminary question f

Mr. Manager LYNDE. Yes, sir.

Mr. McMillan. One that cannot be raised at any other stage of
the casef

Mr. Manager LYNDE. No ; the Senator did not understand me in
that way. It can be raised at au^ time, even after conviction.

Mr. McMillan. Then must it not be passed upon at the time it
is raised f

Mr. Manager LYNDE. Certainly ; but it must be passed upon as
an independent question which a m^ority can determine. Parties
sometimes ma^ waive the question of jnrisdiction ; but as a general
rule the question of jnrisdiction can be raised at anytime during the
progress of the cause.

So rigid have the courts been in the construction of the rule that a
majority shall govern, that when in the State of New Jersey a law
was passed providing that no judgment of the supreme court shall
be reversed by the court of appeals unless a majority of all the mem-
bers elected shall concur in such reversal, the highest court in the
State declared the law unoonstitutionaL (Clapp vs, Ely, 3 Dutcher*s
Reports, 622 ; F. F. Frelinghuysen and C. Parker for plaintiflis in er-
ror, Runyon and Bradley for defendants.) The syllabus reads:

A law which provides that no Jadcmeut of the sapreme oonrt shall be reversed
by this coarts unless a majority of those members of the court who are competent
to sit on the hearing and decision of the cose shall concur in such reversal, is un-

But even if such law were constitutional, if a mi^oritv of the Judzes who are
competent to sit m the cause, when it is decided, concur m reversal, wo Judgment
should be reversed.

Mr. President and Senators, I have presented my views on this sub-
ject as fully as I care to present them. I have not presented to the
Senate all of the authorities that I intended to refer to, but being forced
to argue this question this afternoon, I have not l>een able to arrange
the authorities so that I could refer to them readily. Therefore will
not trespass further upon the time of the Senate.

Mr. SHERMAN. I move that the court acljoum.

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

Friday, July 21, 1876.

The PRESIDENT pro tempore, Le^^islative and executive business
will bo suspended, and the Senate will proceed to the consideration
of the articles of impeachment exhibited against William W. Belknap,
late Secretaiy of War, by the House of Representatives.

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

The PRESIDENT pro tempore. The House of Representatives will
be duly notified.

Messrs. Lord, Lynde, and McMahon, of the managers on the part
of the Honso of Representatives, appeared and were conducted to the
seats assigned them.

The respondent appeared with his counsel, Mr. Black.

The Secretary proceeded to read the journal of the proceedings of
the Senate sitting yesterday for the trial of the impeachment of
WUliam W. Belknap.

Mr. SHERMAN. I move that the reading of the journal be dis*
pensed with.

Mr. CONKLING. I think the reading of the journal had better
continue until the counsel or the managers who are to address the
Senate come in. The manager, Mr. Lapham, who is to address the
Senate is not here. If objection is made to doing anything except
proceeding with this trial, I think we may as well read the journal
until the manager comes in who is to address the Senate.

The PRESIDENT pro tempore. The Secretary will resume the read-

The Secretary concluded the reading of the journal. ^

The PRESIDENT pro tempore. The Senate is ready to procecMl with
the trial.

Mr. BLACK. Mr. President, it is my duty to myself, to my col-
league, to my client, to the court to encounter any misapprehension
that may be necessary, but at all eventtf to lay before the Senate an
affidavit from the physician of Mr. Carpenter showing what his con-
dition is. If be is so sick as to make it absolutely impossible for him
to come in now, then we are asking you for a postponement, an inter-
mission in this argument upon grounds which I think have never
been refused. To say that the counsel whose business and duty it is
to make the concluding argument shall not have the indulgence that
is asked for in this case in order that he may be here while the argu-
ment is proceeding upon the other side, is a kind of, I would say
harshness, but I am sure it is not me.\nt in that way. The Senate are
tired, as we are, and everybody desires to get through with this busi-
ness as soon as possible ; but it certainly is asking no more than would
be granted in any case, no matter whether great or small, pending
before any tribunal. I ask that this cause be postponed until the
time mentioned in this affidavit as being the time when Mr. Carpen-
ter will be able to be present, to wit, next Monday.

The PRESIDENT pro tempore. The Secretary will read the paper
for information.

United States Senate sitting as a court of impeachment.
The Unitbd States

WiLUAM W. Belknap. [

DiBTBicT OF Columbia, Oounty of Washinffton^ at. :

Personally appeared before me D. W. Bliss, who, being sworn according to law,
says that be has been the family physician of Matt H. Carpenter for seven years

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 134 of 172)