United States. Congress.

Congressional record : proceedings and debates of the ... Congress online

. (page 145 of 172)
Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 145 of 172)
Font size
QR-code for this ebook


tions of law in this case which in my opinion are entirely conclusive
of it.

[Without concluding his argument, Mr. Carpenter yielded to Mr.
Sherman for a motion to take a recess. His speech will be published
in full when completed.]

Mr. SHERMAN. If counsel will allow me, I will move that the
court take a recess until half past seven to test the sense of the Sen-
ate.

The PRESIDENT pro tempore. The Senator from Ohio moves that
the Senate sitting for the trial take a recess until half past seven
o'clock.

The motion was not agreed to; there being on a division— ayes 22,
noes 23.

Mr. THURMAN. I move that the Senate sitting for this trial do
now a^oum.

The question being put, there were on a division — ayes 23, noes 25.

Mr. CONKLING. I ask for the yeas and nays on the motion to ad-
journ.

The yeas and nays were ordered ; and being taken, resulted— yeas
33, nays 18 ; as follows :

YEAS— Means. AUiaon, Anthony, Bayard, Booth, BontwoU, Bmce, Cameron of
WiseonainXhxiBtiaiio]^ Clayton, Conkling, Conover, Cngin, Ferry, Frellnghnysen,
Hamilton. Howe, Ingalto, Jonee of Florida, Jones of Nevada, Logan, MoCreery, &lc-
liillan, Mitohell, NonroodLOgleeby, Paddock, Patterson, Banaom, Steventton.xhnr*
man. West, Wlndom, and wnght-413.

NAYS— Messrs. Bogy. Cookcell. Cooper, Davis, Dennis, Edmnnds, Gordon, Har-
vey. Kelly, Keman, McDonald, Merrlmon, Mon-ill, Bandolpb, Kobertaon, Sherman,
Wallaoe. and Wlthers-18.

ABSENT— Messrs. Aloom, Bamnm, Bnmside, Cameron of Pennsylvania, Caper-
ton, Dawes, Dorsey, Eaton, Goldthwaite, Hamlin. Hitchcock, Johnston, Key, Maxey
Morton, Sargent^ SiKilsbnry, Sharon, Spencer, Wadleigh, and Whyte— 21.



So the motion was agreed to ; and (at four o'clock and fifteen min-
utes p. m.) the Senate sitting for the trial of the impeachment ad-
journed.



Wednesday, July 26, 1876.

The PRESIDENT pro tempore. Legislative and executive business
will be suspended and the Senate will proceed to the consideration
of the articles of impeachment exhibited by the House of Represent-
atives against William W. Belknap, late Secretary of War.

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

The PRESIDENT pro tempore. The usual notice will be transmit
ted to the House of Representatives.

Mr. Lord, Mr. Ltnde, Mr. McMahon, Mr. Jrnks, and Mr. Lapham,
of the managers on the part of the House of Representatives, ap-
peared.

The respondent appeared with his counsel, Messrs. Blair and Car-
penter.

The Secretary read the journal of the proceedings of the Senate
sitting yesterday for the trial of the impexMshment.

Mr. PADDOCK. I hardly think there is a quorum of the Senate
present.

The PRESIDENT pro tempore. The roll of the Senate will be called.

Mr. EDMUNDS. Let the Chair count the Senate.

The PRESn)ENT pro tempore^ Rafter a pause.) There is not a quo-
rum present. The Secretary will call the rolL

The Secretary called the roll of the Senat-e, and forty Senators an-
swered to their names.

The PRESIDENT pro tempore. There is a quorum present. The
Journal will stand approved.

Mr. COCKRELL. 1 desire to state that my colleague [Mr. Bogy]
is absent, having been called home by the illness of his daughter.

The PRESIDENT pro tempore. The Senate is now ready to proceed
with the triaL

Mr. CARPENTER resumed and concluded his argument on behalf
of the respondent. It is, in full, as follows :

Mr. President and Senators, we are approaching the termination of
a protracted and painful trial, and the duty of closing the defense
has been intrusted to me. I am to make the last suggestions on
behalf of the respondent, to a tribunal which has his reputation and
honor in its keeping. The importance of the cause to the respond-
ent, and to all those who have heretof^te held and to those who
may hereafter hold any office under the Government of the United
States, from the highest to the lowest, will secure, I doubt not, judi-
cial attention to an argument which must be uninteresting, except
to those who may impose and those who may suffer from the inflic-
tion of the jud^ent and sentence which the House of Representa-
tives of the United States is demanding against the respondent

I know how many and what various cares absorb the attention of
Senators, in the last days of a long session ; and how difficult it is
for Senators to remain in their seats. But I appeal to you, once for
aU, that before you pass judgment upon the respondent, you owe it
to him, to yourselves, and to justice, to put aside other business, and
hear patiently, not only the important points, but even the details of
testimony, upon which his guilt or innocence depends.

No person can justly be convicted until his triers have patiently
heard, and carefully considered, everything that can be said on his be-
half. •

Reverence of counsel for the bench is the natural result of their
mutual relations. And yet in the excitement of an animated criminal
trial counsel, most distinguished for amiability, are sometimes incited
to make remarks which, after reflection, they sincerely regret. Any
subject viewed from the different stand-points of a judge and an ad-
vocate will present different a^>ects. The advocate, sympathizing
with the distress of his clients, and often seeing far deeper into the
absolute truth of a case than a judge is permitted to see ; knowing
many circumstances of alleviation, and many important exculpatory
facts derived from his client, which cannot be disclosed in a tribunal
where tlie client and his wife are excluded from the witness stand ;
heated with days and nights of anxious toil ; driving to develop the
truth through the Imper&ct statements which can be made by outside
witnesses ; u entitled to some indulgence. The few facts which can be
made known to the judge, are in the mind of the advocate so blended
with, and colored by, other facts incapable of legal proof, that a rul-
ing proper from the Judge's stand-point, is full of disappointment to
the advocate.

And in this, my last appearance before this tribunal, I desire to
apologize for any seemingly disrespectful remark made by me in this
cause. And let me say that in the line of argument which my duty
compels me to pursue to-day, while I shall question the correctness of
some rulings of the court, I shall do so in a respectful manner.

Lawyers are as necessary to the administration of justice as judges.
Chief justice Mamhall, delivering the opinion of the court ovemmng
one of its former decisions, apologized for the error by saying that the
former case had not been argued ojf ooumeel.

Washburn, in his Judicial History of Massachusetts, page 145,
speaking of the trials for witchcraft, says:

For the credit of New England, it wonld be well if oblivion could settle down
over thin period of her anniUB. Bnt the history of that court furnishes a lesson
which onght never to he forgotten. It was a popular txibunal ; there was not a
lawyer concerned in its proceedings. Every rule of evidence by wliich the courto
of common law are governed was abrogated, and judges and Jurors wore left, nn>
trammeled by *' the quibbles of the law^' to follow their own feelings and the popu-
lar will. Human nature may have olianged, and a court equal! 7 popular and equal ly



Digitized by



Google



[email protected]



TRIAL OF WILLIAM W. BELKNAP.



unaoquainted with the mles vhioh govern Indidal prooeedliigs, ml^bt stand against
a strong popolar d^nsion or excitement, shoald such an occasion again oconr, bat
he most disregard the light of experience who could hope to be safe nnder its ad-
ministration. It {» to be oelUoed that abnses as monstroos as the whole prooeedings
of that court, in fact, were, could have been tolerated had there been an enUghUned
bar in Maeeaekueetle whoee eervicee ehotdd have been exerted in /aver qf the aootued I
It was not for the want of leandng or honesty on the part of those who were engaged
in those trials that injustice was done. It was that their habits of thought^ their
entire ignorance of the salutary rules of law, and their want if fsmiUarity with the
process of investigating the merits of Judicial controversies, unfitted them to hold
the scales of Justice witn impartial hands, and to discriminate between- the excited
prejudices of the many, and the truth or falsehood of the charges which they were
caUed upon to examine.

The brightest periods in the history of English Jnrispradenoe have
been those in which counsel have enjoyed the greatest freedom of
speech and the widest range of discussion ; and every era of despot-
ism and tyranny has been marked by attempts of Judges to hrowbeat
lawyers at their bar.

It was my fortune to be a listener for several years to the debates
in this body ; and I could refer to several instances illustrating the
freedom of speech of Senators in debate. I have heard Senators de-
nounce laws passed by a majority of the Senate as having been in-
spired by pa^y spirit, as jprejudicial to the public interests, and in
wanton violation of Uie Constitution. And yet every Senator was
under oath to support the Constitution when he voted for the laws
Uius assailed.

No one, I presume, would deny to counsel who appear in the de-
fense of a citizen on trial at your bar as much freedom of speech as
is permitted to Senators in mutual consultation. Anciently the bath
administered to all the lawyers of England was, "not to present any-
thing false to the court, but to make war for their clients.^ How this
is understood in Euglish courts of justice is illustrated by a scene in
the celebrated trial of the Dean of St. Asaph, in the court of king's
bench, for libel ; in which an eminent Judge, and an advocate not less
eminent, appeared as follows; the Jury returned a verdict, "guilty
of publishing only.''

Mr. EBBBLonL - You find him guilty of publishing only f
A JuBOR. Guilty only of publishing.

And, after considerable altercation, the following scene occurred :

Mr. Justice Bullbr. I will ^ke the verdict as they mean to give it ; it shall
not be altered. Grentlemen, if I understand you right, your venUet is this, you
mean to say guilty of publishing this libel f

A Juror. j7o ; the pamphlet ; we do not decide upon Its being a libel.

Mr. Justice Bullrr. You say he is guilty of publishing the pan^ihlet, and that
the meaning of the innuendoes is as stated m the indictment.

A Juror. Certainly.

Mr. Erskinb. Is the word "only " to stand part of your verdict t

A Juror. Certainly.

Mr. Ersionb. Then I insist it shidl be recorded.

Mr. Justice Bullxr. Then the verdict must be misunderstood; let me under-
stand the jury.

Mr. Erskinb. The jury do understand their verdict

Mr. Justice Bullrr. Sir, I will not be interrupted.

Mr. ERSKUf B. I stand here as an advocate for a brother citizen, and I desire that
the word •*only" may be recorded.

Mr. Justice Bullbr. Sit down, $ir. Remember yowr duty, or I $haU be obUged to
proceed in another manner.

Mr. Erskinb. Your lordship may proceed in what manner you think fit. I know
my duty as vfeli at your lordehitp knowe yourt, 1 thail not alter my oondueL

The name of Erskine stands at the H^ad of the long list of great
English advocates, and to the noble stand made by him against a
wrong- headed court, in this and other libel cases, we owe the present
liber^ of the press ; the jury having the right to decide the law as
well as the fact, and determine whether the matter published is a
libel or not.

I shall have no occasion to transcend or even approach the deter-
mined language there employed ; and I refer to it only to show what
freedom of speech is tolerated in an English court of Justice from an
advocate defending the rights of his client against supposed judicial
encroachment.

The language employed by Liord Brougham, in the trial of Queen
Caroline, is well known. He there places the fealty of an advocate
to his client above the allegiance of the advocate to his king.

But, repeating what I said the other day, I maintain that a motion
to vacate an order made by this court, or a motion for a reheiEkring
upon any question decided by the court, is not only not a contempt
of court, nor an evidence of disrespect, but is a usual and orderly
proceeding in every court exercising original juritdiction; and is as
much a matter of absolute right, as to plead the general issue, or call
a witness on the trial.

Half the criminid cases in England and America are heard on mo-
tions for new trial, upon the ground that the judge at the trial erred
in admitting testimony or instructing the Jury. No one regards such
motion as dSisrespectful to the court. And nothing better indicates
the real eminence of a judge than the patience with which he listens
to aivuments intended to persuade him that he has committed errors.
Nobody ever thought such motion a disrespect to the court. In every
court, English or American, exercising original equitable jurisdiction,
motions lor rehearing are recognised as one of the regular prooeed-
ings in a cause; ana the bill of review for errors of law apparent
upon the record is as well known to the profession and as graciously
received by the courts, as any other bills.

The rules of the Supreme Court of ^Jie United States regulate the
application for rehearmg of causes in that court.

Nor is a petition to be relieved from conviction in case of impeach-
menty for error, a novelty.



In the case of Alice Ferrers, such petition was filed. (Hale's Juris-
diction House of Lords, page 174.)

This case presents an instance of the impeachment of a subject not
in office, nor exercising any franchise known to the law. Alice
Ferrers was the mistress ot Edward III ; a position well known in
the reigns of the festive kinss of England, but never recognized by
law, much less exalted to the dignity of an office. She was impeached ;
simple Alice Ferrers — without title, franchise, or office; was im-
peached for that she had perverted the course of justice ; that she
had taken her seat on the bench with the judges, dictating how they
should decide causes ; and, when she found them perverse, she com-
plained to her royal lover, who found means to bring the judges to
reason. At the April session of Parliament, 1376, the fiftieni year of
the reign of Edward III, she was convicted and banished. A^r her
conviction a statute was enacted at the same session, prohibiting any
woman and, particularly, Alice Ferrers, to pursue causes and actions
in the king's courts, by way of maintenance, and for hire and reward,
on pain of being banished out of the realm. (Lingard's History of
England, volume 3, page 201.^

The next year, 1377, was celebrated in England as a year of jdbilee.
At the session of Farliament which commenced early in 1^7, the
Commons presented to the king a petition, reciting that many persons
had been mipeached in the next preceding Farliament, wilSiont due
process, &.C., and praying that they might be restored to their former
estates, dignities, and other things. The king then demanded to
know if their request was made for all that had been impeached ; and
the speaker replied that their request was for all. The king then
told them they must present specific requests naming the persons to
be relieved and the reasons.

Among other petitions presented was one for Alice Ferrers; setting
forth that she had been by untrue suggestion, and undue process in
the last Farliament, foreclosed of the common liberty which every
liege subject of the King, a$ well men a$ women, ought freely to ei^oy,
unless they be convict of a crime, for which they are to forfeit it;
that therefore it would please its majesty, for the love of God and
right justice to have consideration, that the said Alice was never pres-
ent in Farliament, nor duly admitted to answer anything for wnich
she was adjudged ; and for this cause to reverae the judgment, and
cause ''her to be restored entirely to her former estate; the said
judgment, or any prohibition made against the said Alice in the same
Farliament notwithstanding.'*

The king pardoned her and she returned to her former relations
with him ; faithf uUy attending him in his last illness, until the morn-
ing of his death, when she stole his jewelry and ran away.

But Dame Alice continued her crooked political practices, and in
the first session of Farliament, Richard 11, 1377, she was again im-
peached: a^ain convicted, and banished the realm. At a subiBequent
session, 2 Richard II, she filed in Farliament a petition for reversal of
the second conviction, for error. The new king, who seems to have
felt some tenderness for her, licensed counsel to appear for her and
prosecute the petition. But the Lords, upon consideration of the pe-
titiouj answerod, that the king could accomplish the same end by
granting a pardon.

Farliament, in the fullness of its power, has repeatedly reversed
convictions had in former Farliaments, restoring to the heirs forfeited
estates, though 'it could not recall the beheiMed defendants. And
petitions for such reversals have been repeatedly filed ; and Farlia-
ment has always considered them.

In defense of the practice of rehearing, and illustrating its efficacy,
I will refer to an instance in which a judgmenf— not rendered by a
human tribunal against an individual, but by the Almighty against
a whole people — was reversed on re-argument. The case is recorded
in Exodus, xxxii. 7-14. I am Justified m referring to precedents con-
cerning the Jews, because the manager, who opened this case, has
sought to convict the respondent, not for a violation of the statutes
of the United States, but of one of the commandments to the Jews—
'* Thou shalt not accept gifts, for gifts blind the eyes of the wise, and
change the words of the just." And the ar^gpment of the manager,
remarkable for its bigotry and want of charity, might more appro-
priately have been delivered to a congregation of Fharisees.

It was after Aaron had directed the people to mold a golden calf,
and the people rising in the morning had offered before it holocausts
and peace- victims, and, after sitting down to eat and drink, had risen
up to play.
And the Lord said unto Moses, (To, get thee down.

Moses had been presenting the case of Israel and the Lord had heard
enough of it.

6^0, get thee down ; for thy people, which thou bron^teet oat of the land of Bgypt,
hare corrupted themselvea ;

8. They have turned aside quickly out of the way which I commanded them: they
hare maue them^ molten calf, and have worshiped it. and have sacrificed there-
unto, and 8ai<l, These be thy gods, O Israel, which have brought thee up out of tho
land of Egypt

9. And Uie Lord said unto Moses, I hare seen this people, and, behdd, it is a
stiff-necked people :

10. Kow therefore let me alone, that my wrath may wax hot against them, and
that I may consume them : and I will make of thee a great nation.

But Moses persisted!

11. And Moses besought the Lord his God, and said, Lonl, why doth thy wrath
wax hot against thy people, which thou hast brought forth out of the land of Egypt
with great power, and with a mighty hand f



Digitized by



Google



TRIAL OF WILLIAM W. BELKNAP.



321



19. Wherefore nhonld tbe Egyptiftns speak, and say, For mxJiehi^ did he bring
them oat, to i*\t\,y tbem in tbe monntains. and to consn'me tbom from tb» face of tbe
earth f Tam from thy fierce wrath, and repent of this evil a^icainst thy people.

13. Remember Abraham, Isaac, and Israel, thy servants, to whom then s wearest by
thineown self, and saidstanto them, I will multiply your seed as the stars of heaven,
and all this land that I have spoken of will I give'auto your seed, and they shall
inherit it lorever.

14. And the Lord repented of the evil which he thoaght to do unto his people.

Thus it appears that the judgment of the Almighty was reoansid-
eredf and upon the re-argument of Moses was reversed.

Supported, Senators, by such precedents, I shall undertake to «^oir,
that tne order passed by the court, declaring tbe articles of impeach-
ment to be sufficient in law, was erroneous ; and that the respondent
was thereby deprived of the right of demurring thereto.

Before coming to that, however, let me consider some otber ques-
tions arising in this case.

And, first of all, who is this respondent f —

It will not be pretended that there is any direct evidence of his
guilt. The most that can be claimed is, that the evidence establishes
certain facts or circimistances from which, perhaps, you may deduce
the faet of guilt.

It is a weU-settled principle of law, and a cherished maxim of re-
ligion, that when any fact is susceptible of two constructions, when
any circumstance is reconcilable as well with the theory of inno-
cence as with that of guilt, then such fact or circumstance is worth-
less to establish guilt. Legal presumption, equally with Christian
charity, turns the even scales in favor of innocence. And in a
case resnng upon circumstantial evidence — where the fact of guilt
is only an inference from other clearly established facts— the former
character of the defendant, ^ood or bad, is an important element.

A professional thief, escaping from the Five Points of New York,
and charged with shoplifting m the city of Washington, would be
convicted upon very slight evidence ; because he would be presumed
to be plying his vocation ; while tlie same charge, made against a
bishop of the church, could only be sustained by overwhelming proof. —
In the first case the inclination of the jury would be to find the de-
fendant guilty ; in the latter, to demand irresistible testimony to over-
come the presumption of innocence. In the one case, a single witness
might suffice ; in the other, a cloud of witnesses might be disbelieved.

This presumption of law is a result of human experience. It is rare,
indeed, that a man reaches the meridian of life, possessing the confi-
dence of his associates ; and then, anon a sudden impulse, plunges
headlong into the depths of vice and infamy. And it is still more
rare, that from the depths of infamy and vice a mortal with one re-
bound can regain the upper air, and pursue a course of Integriry and
honor. And yet, if Belknap be guilty, he has performed this two-
fold miracle.

Mr. Clymer*8 investigating committee, when they had found, as
they thought, one act of corruption in the Secretary of War, in the
second year of his term, naturally concluded that innumerable other
instances of corruption would be found in his long administration.
Their logic was sound. So they have searched, examined and inves-
tigated the transactions of every branch and Bureau of the War De-
partment^rom Belknap's appointment down t-o the hour of his resig-
nation. They have inquired into the expenses of his domestic life :
have consulted his tailor, his butcher, and his grocer ; investigated
bis bank account ; and h^ve pursued him in ways and by means never
before resorted to. Yet the result is, that, except the matter under
consideration, there is not a transaction in his entire administration
upon which tney can found even a censure.

If Belknap be guilty of the ofiense charged, then, by all the laws
of probability, he had been led to it, his conscience stifled and his
heart hardened by the perpetration of lesser villainies. It is from
small pilferlngs and petty offenses that criminals advance, step by
step, to the commission of crimes that shock the sense of a nation.

And if Belknap had become, as the managers claim, so debased, so
regardless of the common maxims of honesty, as to pollute his hand
with a bribe from Marsh, in 1870, it is impossible that he could sub-
sequently have turned away from far better opportunities for corrupt
aggrandizement.

£i the single transaction of the sale of arfns to France, Belknap
might easily have made a million of dollars ; and you will remember
how certain Senators, full of suspicion and empty of charity, pro-
fessed to believe that because he had the opportunity he must have
improved it. An investigation by a select committee was ordered,
and, after a searching and rigid inquiry, the committee, consisting oi
democrats and republicans, unanimously exonerated this respondent
from any criminality in that transaction. That protracted investiga-
tion left no shadow upon his fair fame.

To suppose, then, that this respondent from a long and honorable
career, pursued unfalteringly to the year 1870, turned suddenly upon
all the pledges of his past life, became oblivious o$ all his domestic,
social, and official obligations,, and fell into the depths of moral de-
pravity; that he rose thence, and casting aside all the corruption <f



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 145 of 172)