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against Judge Cardozo, within a few years, ou the presentation of his
resignation. The judiciary committee of the house of representa-
tives of that State, composed of persons who will, I understand, be



recognized by some of the managers as among the ablest lawyers of
that State, reported against the power of impeachment of any person
not actually in office. The language of the resolution in Fullers case
(the case referred to) is :

That no person can be impeached who was not at the time of the commission of
tiie allied ofibnse and at the time of the impeachment holding some office under
the laws of the State.

This resolution and the accompanying report form part of the re-
port of the trial of George G. Barnard, page 158.

I have examined all the constitutions of all the States with refer-
once to the provisions therein contained on the subject of impeach-
ment. Wito two exceptions, they correspond in substance with the
national Constitution ; and I nave not learned that any impeachments
against ex-officers have taken place under those constitutions.

Such a proceeding was not considered legal by the court of impeach-
ment in New York, one of the g^eat States, and whose judicial and
legal talent will be recognized as among the foremost in this country.
I am unable to st-ate whether a different construction has beeu given
to this provision in the other States ; but I have not heard of any case
where any party has been prosecuted in any of those States where the
language of their constitutions is similar to that here under consid-
eration. There is a noticeable difference, however, in the constitu-
tions of two of the States, the States of Vermont and Georgia, from
the Constitution of the United States with regard to impeachment,
and I beg leave to call the attention of the court to it.

In that of Georgia, by the eleventh article and fourth section, it is
provided that —

The hoQse of representatiTes has power to impeach all persons who have been
or may be in office.

This provision is contained in the first constitution of Georgia,
which was nearly contemporaneously formed with that of the Uuitea
States.

By the Vermont constitution of 1793, part 2, section 24, it is pro-
vided that —

Every officer is liable to be impeached, either when in office or after his resigna-
tion or removal, for maladministration.

This langruage. occurring in constitutions adopted nearly contem-
poraneously witn the Constitution of the United States, shows that
the langnage under consideration was not deemed sufficient to em-
brace persons who had been in office, and that in order to reach them
it was deemed necessary to use other language.

Mr. SARGENT. I should like to propound a question to the coun-
sel, which I send to the Chair in writing.

The PRESIDENT pro tempore. The question of the Senator from
California will be read.

The Secretary read as follows :

Was the resolntion referred to by counsel for respondent in Barnard's case
adopted t

Mr. BLAIR. It was adopted, I understand, by the house of rep-
resentatives ; and the prosecution against Fuller was abandoned, as
it certainly was in Cardozo's case, wherein an impeachment like
Barnard's, which had been found and was actnally pending before
the senate, was dismissed by the senate when his resignation was
presented.

I wish to add, as matter of contemporaneons construction also, the
language of Luther Martin, who, it is known to the Senate, was a
distinguished member of the convention which formed our Constitu-
tion, and one of the ablest lawyers in onr country. The language
was used in the defense of Judge Chase, who was in office, and thoi'e-
fore the construction which he gave was not necessary to his client.
He said, after quoting this language of the Constitution :

This deariy evinces that no persons bat those who hold offices were liable to



That language will be found in the Annals of Congress for 1805,
page 431.

I have examined every reference to the subject of impeachment
found iu Madison's reports of the debate of the convention, and I
have an abstract of the book so far as it bears upon the subject.
There was considerable controversy in the convention as to the tribunal
before which impeachments should be prosecuted, whether before
the Senate or before the Supreme Court, or whether before a court
composed of judges from the States. A variety of propositions of
that kind were made. There were several plans for a constitution
introduced, all save Patterson's having provisions for the impeach-
ment of the national officers or the Chief Executive. A series of res-
olutions, which embodied provisions to the efifect '* that the Execu-
tive shall be removable on impeachment and conviction for mal-
practice or neglect of duty,'' was reported by the committee of the
whole house on the 20th of July, 1787. Ou that occasion Messrs.
Pinckney and Gouvemeur Morris moved to strike out that part of the
resolution in relation to the Executive, and upon that motion consid-
erable debate occurred, which I will not trouble the Senate with
reading, but will state the general purport.

Messrs. Pinckney and Morris opposed impeachment altogether, upon
the ground that with the short terms proposed it was unnecessary ;
and that if impeachment was prosecuted, unless the Executive was
not suspended from office pending it, the malpractice and mtsgovem-
ment would go on ; and if he was suspended, the effect would be the



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30



TRIAL OF WILLIAM W. BELKNAP.



same as if be was couvioted. The effect wonld be to put tlM Execu-
tive too mnch in the power of Congi'ess.

Mr. Madison, Colonel Mason, Dr. Franklin, Mr. Davie, and other
leading men in the convention insisted that impeachment was neces-
sary for the protection of the public interests. The debate proceeded
thi-onghont upon the assumption that impeachment would b« directed
against no others than persons then actually holding^ executive power.
Tuere was no provision in the plan of Pinckney or m the plan of Pat-
(ffson, of New Jersey, which were referred to the committee of detail
with the series of resolutions on which this debate occurred, provid-
ing for any Judgment of disqualification ; the convention had not that
subject before them ; it was not a subject for their discussion or con-
sideration. But it was assumed on all sides in the debate referred to
that none but officers would be amenable to impeachment. The com-
mittee on detail, to whom these resolutions were referred, with the
plans of Pinckney and Paterson, when they came to report on the 6th
of August, added the article as an article providing for the punish-
ment of the accused which now stands in tne Constitution, disquali-
fied him from holding office upon impeachment and conviction. In
no part of the debate, from the beginning to end, was that a subject
of discussion. And it has in fact no relation to the subject, which
was simply whether the Executive should be removed by impeach-
ment. It is but au addition to the judgment, which might or might
not be added if impeachment should take place.

The case of Blount, to which I have adverted, determined that the
disc^ualification clause did not enlarge the category of persons subject
to jmpeachment. If the power given to adQuclge disqnalification
coald nave that effect, the effect would be to subject anybody to im-
X>eachmont, and the jurisdiction would be unlimited, which, as before
said, the case of Blount and the whole philosophy of the Govern-
ment negatives.

I call the attention of the Senate to extracts from Judge Story's
Commentaries. In volume 1, section 803, Story says :

It wonld seem to follow that the Senate on the conviction wore bonnd in all
cases to enter a Judgment of removal from ofBce, though it haa a discretion as to
inflicting the punishment of disqualifloation. //, then, there ihutt be a judgment
of removal /rem office, it toottld seem tofoUow that the ConstituiMn eontemvUUed that
we party vku ttiU in ojlee at the time cf impeachment. If he was not, his offense
was still liable to be tned and punished in the ordinary tribunals of justice, and it
might be ari^ed with some force that it would be a vain exercise of authority to

try a delinquent for an impeachable offense when the most im]

which the remedy was given was no longer necessary or '" ' '



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most important object for
attainable. And although



a Judgment of disqualilcation might still be pronounced, the language of the Con
some doubt whether it can be pronounced without being



stitntion may _

coupled with a removal from office. There is also muon force in the remark that



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an impeachment is a proceeding purely of a political nature. It is not so much
designed to punish au offender as to secure the State against gross official misde-
meanors. It touches neither his person nor his property, but simply divests him
of his political capacity.

At section 790 he says :

From this clause it appears that the remedy by impeachment is strictly confined
to civil officers^

That is the point I have been considering—

of the United States, including the President and Yioe-Preeident. In this respect
it differs materially from the law and practice of Great Britain. In that kingdom
all the King's subjects, whether peers or commoners, are impeachable in Parlia-



ment, though it is asserted that commoners cannot now be impeached for capital
offenses, but for misdemeanors only. Such kind of misdee<ls, however, as peou-
liarly iiOnre the commonwealth by the abuse of high offices of trust are the most



U>roper and have been the most usual grounds for this kind of prosecution in Par-
liament. There eeemt a peculiar propriety, in a republican government at Uxut^ in eon-
Jlning the impeaching power to persons holding office. In such a government all the
citisens are equal and ought to have the same security of a mal by Jury for all
crimes and offenses laid to their charge when not holding any official character.

_ Mr. CONKLING. From what do you read ?

' Mr. BLAIR. Story's Commentanes on the Constitution. Jndge

Story further says f

To sublect them to impeachment would not only be extremely oppressive imd ex<
pensive, but would endanger their lives and lil>ortios by exposing them against
their wills to persecution for their conduct in exercising their poliucal rights and
privileges. Dear as the trial by jury justly is in civil cases, its value as a protec-
tion aipinst the resentment and violence of rulers and factious in criminal prosecu-
tions makes it inestimable. It is there, and there only, that a citizen in the sympa-
thy, the impartiality, the intelligence, and incorruptible integrity of his fellows
impaneled to try the accusation may indulge a well-founded confluence to sustain
anu cheer him If he should choose to accept office, he would voluntarily incur all
the additional responsibility growing out of it If impeached for his condfuct while
in office, he could not justly complain, since he was placetl in that predicament by
his own choice; and in accepting office he submitted to all the consequences. In-
deed, the moment it was decided that the judgment upon impeachment should be
limited to removal and disqualification from office, it followed as a natural result
that it ought not to reach any but officers of the United States. It seems to have
been the original ol\}ect of the friends of the National Grovenmirat to confine it to
these limits ; for in the original resolutions proposed to the convention and in all
the subsequent proceedings the power was expressly limited to national officers.

I call the attention of this court to this carefully weighed language
of the most authoritative commentator upon our Constitution. I
have already called attention to the proceedings in the convention
upon which he comments, showing plainly that the framers of the
Constitntion never contemplated Vie prosecution of anybody not at
the moment holding office. All the reasons upon which the proceed-
ing was supposed to be necessary were applicable only to a man
who wielded at the moment the power of the Government, when
only it was necessary to put in motion the great power of the. peo-
ple, as organized in the House of Representatives, to bring him to
justice. It is a shocking abuse of power to direct so overwhelming
a force against a private man. It may be deemed by some of small



moment, because it can only effect his disfranchisement^. But the
effect is todishonorhim, aod it issimply tyranny to put this man's honor
in peril by the application of that overwhelming force. The great
authors of England, as well as the great commentator on our Consti-
tution mentioned, ought only to be brought into action to arrest the
wrong-doing of another power in the Government. The arena of
impeachment is in fact a place in which a controversy takes place be-
tween the high powers of the Gk>vemment. The only theory upon
which it can be justified is to enable the people, massed and organized
in their representative houses, to assail their oppressors, armed with
the power of the Executive and the patronag^ and prestige which
that gives them. Do you seek to prostitute that power to the oppres-
sion of a private individual, wasting his means b^ an action that, as
this author says, has invariably ruined every private man who has
been the subject of it in Great Britain. Is this a time, is this a coun-
try, is this a place, which would tolerate such an abuse f If this be
the case, who would be safe that ever held an office t The great offi-
cers of this Government, the heads of Departments, are obliged to-
exercise their powers in a large degree by subordinates. If there is
no limitation upon impeachment to persons holding office when a po-
litical adversary is installed in power, he may assail any man whom
it may be thought necessary to assail for party or personal cause.
We know, and it is one of the saddest commentaries upon poor human
nature, that the subservient sycophant who basks in the smile of
power is ever ready to prostrate himself before any other power which
may succeed, and is ever ready to desert and betray the unsuccessful.

How eager are many who were obsequious enough to the defend-
ant within the year now to rush forward to aid in his destruction I
How they press forward to make their peace with his enemies now
installed in office! How easy it would be for experts in the great
Departments to suppress part of the truth and discolor what may bo
preserved, so as to pervert an honorable act to the destruction of men
who may have held positions in them. If this court is to bo opened
to the persecution and prosecution of private men, and party passion
and personal hate are to be invited to set themselves here upon pri-
vate men because they may have been obnoxious officers, we have not
yet passed by the days of tyranny. Man's nature has not changed.
It is only by the limitations of constitutions and powers that a hmit
and a check can be put upon his malignant passions. If this Senate
can be tempted to break down in moments like this the wise limita-
tions which our great fathers put upon this sort of prosecution, they
will have found an easy way to the oppression of the innocent by the
hand of power.

From the remarks to which I have called the attention of the Sen-
ate it will be seen that a large body of the ablest men who sat in this
convention were opposed to impeachment altogether, seeing in it a
machinery of oppression. What did they suggest as a means and a
sufficient means to meet the evil of abuse and corruption in office f
Short terms of office, in order to let the people pass upon these sup-
posed delinquents. That was the theory of Gouvemeur Morris, Charles
Pinckney J and many other able men in the convention which formed
the Constitution. Their hand is seen in the provisions which limit
this prosecution to x)ersons in office. It was intended to permit those
who were not willing to stand the brunt of party excitement for the
moment to retire and wait for more auspicious seasons to vindicate
themselves before the people.

When Andrew Johnson was being pursued here and when articles
were found against him it was not for any crime ; it was because he
honestly adhered to the law and the Constitution as delivered by the
fathers of the Grovemment.

Suppose that he had chosen to retire and appeal to the people
against the Senate and say, *' I am adhering to tlie Constitution and
my habitual enemies are seeking to overthrow it, and desire to sac-
rifice me because I oppose them ;" could the Senate have gone on
and disqualified him from holding office and thus taken away his
power of appeal to the people, and thus have frustrated the design of
the framers of the Constitution that a man might retire when faction
triumphed and appeal to the patriotism of the people. The views
of constitutional power which he then adhered to are believed to be
sound by a great portion of the people, (and yet they were regarded
as sufficient to justify his impeachment by almost the reciuisite num-
ber of Senators to convict and disqualify him.) I think it a fair con-
struction of the Constitution that he miffht have resigned pending
the impeachment, and thus have escaped liability to it, and been in a
condition to make an appeal to the people, which Pinckney and Mor-
ris believed to be the safer tribunal, and hence the form of language
adopted, and which admits of this action as not inadvertently adopted.
The gap was purposely left open. We are not arguing now any-
thing except in reply to what is asserted here as a reasoning.

It IS argued that if a resignation should be permitted under such
circumstances the people would be defrauded out of their rights to
have the offender disqualified. The argument is that as the party
ought to escape, the law does not prevent it. But this does not follow.
It might be the common case of a casus omissus. But I contend that it
is not a casus omissus^ and point to the debates to show that it was never
contemplated that any but persons holding office should be impeached,
and also to show that, so far from being a fraud upon the jurisdiction
of the Senate to resign pending an impeachment, those debates show
that an influential part of tho convention was opposed to impeach-
ment altogether, and thought tho better way was an appeal to tho



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TRIAL OF WILLIAM W. BELKNAP.



31



people by the accused party; and it is, therefore, consistent with the
views of all sides in the convention that a way of escane by resigna-
tion should be left to an accused officer in order to enable him to have
his day when a more auspicious period for a fair and just judgment
could be had upon his case, while effecting the only object contem-
plated, namely, the removal of the officer. No evil or abuse can result
from ine resignation. It is a purely imaginarv ill which can arise
from withholding the hand that would disfranchise a citizen and dis-
able him from vindicating himself in a calmer moment.

As Jud^e Story says, from beginning to end of the debates on the
Constitution there was no proposition considei-ed but one of removal,
and when the resolutions reported by the committee of the whole and
the plans of Pinckney and Patterson, neither of which contained any
provision for disqualification, were on 20th of July sent to the com-
mittee of detail, and that committee reported the disqualifying clause
as the judgment to be rendered, they did not intend to disregard the
known will of all sides of the house and report a provision inconsist-
ent with their declared wishes. The committee of detail knew that the
convention did not contemplate any one not actually in office. Hence
the disqualifying clause was not intended to give any such power.
That was the limitation which the whole debate snows was in the mind
of every member of the convention. Hence you are not now asked to
eontravene the ideas of the framers of the Constitution in dismissing
this proceeding.

I pass now to the second branch of the question presented by the
order of the Senate, and that is on the materiality of the allegations
of the second replication and of our rejoinder. We did not regard
the replication as tendering a material issue, and for that reason we
might, and perhajM ought to have, demurred; but having, as we
believed, a conclusive answer to it in the rejoinder which we made,
we chose that course, preferrinj^ that in this maneuvering for position —
that is all it amounts to— our fnends on the other side shonldnot have
the advantage of us.

It needs no argument to show that if only persons holding office are
amenable to impeachment it must be charged in the articles that they
hold office ; anu describing the defendant as "late Secretary of War^
does not bring him within the description of persons given in the Con-
stitution as amenable to impeachment. It would not be sufficient for
them to have alleged that <' the defendant does not now hold office,
but was an officer at one time, and resigned in order to avoid impeach-
ment.^ That would not have been sufficient certainly, for, if so, an
ordinary court of justice might entertain jurisdiction of a person who
had not been served with process upon an allegation that the defend-
ant, hearing that it was intended to serve process upon him, had incon-
tinently taken himself out of the jurisdiction of the court. There Is
no imaginable difference between the cases. We heard that they in-
tended to impeach us, and, as the Constitution limited the prosecution
to persons in office, we stepped over the line, just as a citizen of the
United States who happens to be in New York, and learns that some-
body there wants to serve him with a writ, betakes himself to New
Jersey.

A man has a right to avoid law-suits. The defendant here had a
right, however innocent he mi^ht have been, to avoid the ruin which
the law-books tell him attend invariably the prosecution of a private
person by this overwhelming power. No sensible man, unless he had
ample means, would undertake a conflict of that sort if he could avoid
it and character enough to stand before the couutrv to justify his ac-
tion. But the Supreme Court of the United States have settled again
and again an analogous question, that a man residing in one State
may convey his property to persons outside of it to give a court juris-
diction, provideu he does it m cood faith. That principle was decided
in the case of McDonald r«. Smalley, 1 Peters, 120 ; also Smith V8,
Kemochen, 7 Howard, 196 ; Jones v«. Lee, 18 Howard, 76 ; Briggs v«.
French, 2 Sumner, 252.

The court also holds in those cases that a man may chan^ his resi-
dence from a State in order to assert his title to property within that
State in the Federal courts against persous holding it adve^8elJ^ pro-
vided he changes his residence in good faith. Does anybody doubt
that we resigned in good faith t Does anybody suppose or suspect
that the defendant's was a colorable resignation ; that he is to be re-
stored to office when this prosecution ceases t Certainly not. And
therefore the case corresponds entirely in principle to the decision I
have cited. If jurisdiction may be obtained by the voluntary act of
a party done in good faith, no reason can be suggesteil why a jurisdic-
tion may not be avoided by a voluntary act done also in good faith.
We were inclined to demur to the original pleading, and the original
pleading is defective in the point that I have already brought to the
attention of the court in not describing this defendant as one subject
to impeachment, and in describing him in fact as a person who is not
sabject to impeachment, because it says that he was '' late Secretary
of War."

On the third question which is presented for consideration by the
order of the Senate I think little need be said. They cannot amend
their articles by a new assignment in a replication. Nobody ever
heard of an amendment of an indictment ; and I may add that the
court in the case of Barnard held that articles- of impeachment were
not amendable. I could, by looking over the books, perhaps find
some accidental decision of a refusal of a court to allow an indictment
to be amended. Indictments are quashed for defects which could bo
amended at any stage of a civil action as of course, and a new indict-



ment must be found before further proceedings can be had. This^
with the decision in the case of Barnard, at page 192, volume 1, that
there could be no amendment of articles of impeachment, will dispose



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 15 of 172)