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the case.

Here is the testimony of General McDowell :

Mr. Manager HcMahon. I shonld like on answer to this qoestion. (To the
witnees.) If yon had known that the actoal state of circnmstonoes at Fort Sill
was that Evans was really the post- trader, that Marsh had no capital in it, and
that Evans was paying $12,000 a year simply for the privilege of holding it

A. That was aboat what I understood to oe the case.

General Belknap is charged with a falsehood in that he informed
McDowell that Marsh was the poet-trader ; and, when the manager
puts to him the Question ** If yon had known that Marsh was not the
post-trader but that Evans was,'' the witness interrupts him by say-
ing *' That was about what I understood to be the case.'? When Mr.
McMahon tried to assume that he did not know the fact and that if
he had he would have drawn a different order, he stops him and says,
** lliat is what I understood the fact to be : "

Q. (By Mr. Manager McMahon.) IHd yon draw that order for the porpose of
correcting thatf
A. Yes.

Of course it made no difference to the officer or soldier whether his
money went to Evans or Marsh. The only grievance to the soldier
was that he might be charged too much for what he purchased. Mc-
Dowell testifies that the order he drew provided for a council of ad-
ministration to fix the prices of articles to be sold to officers and men:
which corrected the abuse and the only abuse complained ol And
to the question put by me,

Q. Would sot that order have corrected it, if it had been execoted t,

He answered,

I have two or three times said I thought it woold.

Digitized by




We gave in evidence a letter received by the Secretaiy of War from
Lieutenant-General Sheridan in regard to this order. He says :

Chicago, March 29, 1872.

Mt Dear GrnbralBklkkap: I have examined the circular on the snbject of
poet-traders and think very well of it. So far ae the troops are concerned it is es-
pecially fair and just.

It is possible that post-traders may give yon some annoyance by appeals arising
from tne action of councils of administration, but probauly more from the action
of commanding officers. There are so many men in this world whose hair is always

lying in the wrong direction, and who when invested with the slightest aathority
must make it felt, that 1 fear the post-traders will be sending you many appeals.

That is the opinion of General Sheridan of the circnlar issued by the
Secretary, after the interview with McDowell, the circular drawn by
McDowell to correct the only abuse ever mentioned, and Sheridan says,
it is especially fair and just as to the troops, but it may be too severe
on the traders; they will annoy yon about it; but so far as the soldiers
are concerned, this order is especially fair and Just. General McDow-
ell testified that the order of March 25. if executed, would have cor-
rected the abuse. Executed b;^ whom t Why, by the oflBcers at the
post. They were charged with its execution. And here let it be borne
in mind that since the issuance of that order, (March 25, 1872,) no com-
plaint has been heard from any quarter. This prosecution has not
resulted from the present existence of any abuse at Fort Sill. All
that was corrected by the order of March 25, 1872, and no complaint
has since been heard.

I have repeatedly called your attention to the fact that there is no
testimonv establishing guilty intention or corrupt purpose on the
part of the Secretary — no testimony that he knew that the moneys
which were passing through his hands from Marsh came from Evans ;
and I maintain that the whole conduct of the Secretary, between the
publication of the Tribune article and the issuance of the circular
order of March 25, 1872, confirms this theory. His conduct was that
of an honest, and not of a dishonest, man. He was anxious to cor-
rect the abuse, if it existed ; but before interfering, he inquired,
through the regular military channels, whether any abuse calling for
interference actually existed. Had he known the real facts of the
case, the Tribune article would have frightened him into instant ac-
tion. And the fact that, after the publicaticm of that article, he pro-
ceeded in the usual official way to ascertain whether its statements
were true, and that, when he ascertained they were, ho proceeded
promptly and efficiently, proves his integrity in the premises.

This impeachment is the result of a disagreement which happened
between two American ladies sojourning in Paris, several years ago ;
and Marsh, the feeble tool of a woman unable to forgive one who com-
manded more attention than herself, has been pushed forward by his
spiteful wife to wreak revenge upon Mrs. Belknap ; and the Senate
sits here to-day unconsciously executing her purpose.

There is nopretense but that the order of the Secretary of War, of
March 25, 1872, obliterated the last vestige of any alleged abuse
resulting from the contract between Marsh and Evans. There is no
pretense that from that time to this the Secretary of War has not
borne himself commendably in his high office as he had ever before

And now, Senators, looking at the evidence, a iust view of which
I have endeavored to present to yon, let me ask, Upon what can you
rest conviction f

(1.) The respondent stands before you under examination for al-
most seven years* administration of a great Executive Department
of this Government, to which he was appointed for his ability, and
his gallant service for the Union in the field.

(2.) We have shown that he possessed a spotless character from
boyhood to ia69, when he was appointed Secretary of War ; and that
his administration of the War Department has been characterized by
energy, ability and integrity, never questioned save in the single
transaction now under examination.

(3.) And in regard to this transaction we have explained every cir-
cumstance relied upon as evidence of guilt, dispelled every suspicion
suri-ounding it, and we point you, in perfect confidence, to all the
direct testimony in the case, which conclusively and emphatically ac-
quits the respondent.

And it is now, Senators, for yon to say whether you can find guilt
in this transaction, in the face of all the direct evidence bearing upon
it: and

Whether, should you be inclined to condemn this one transaction,
you can say the pnblic safety rei^uires that you should brand the
respondent as a criminal, and dismiss him from your presence in dis-

Which of you would be willing to have your final condition deter-
mined by a particular transaction f Is it not upon the average and
general balance of our lives that we all hope for salvation f The
sun has spots upon its surface. And suppose you find one spot upon
the character of General Belknap, will you upon that one spot ren-
der a judgment of condemnation consigning him to everlasting dis-
grace and iufamyf

I turn now from the testimony to present to you some considera-
tions of law, which, whatever may be your judgment upon the facts,
I deem to be conclusive of this case.

After the articles were exhibited the respondent interposed a plea
to the jurisdiction of the court, upon the ground tliat he was not an of-

ficer of the United States at the time of impeachment. To this plea
there vas a replication, and the respondent demurred. This demurrer
was argued by the managers and by the counsel for respondent, and
submitted to the court. Whereupon, after consideration, the court
made the following order:

It is ordered bythe Senato sitting for the trial of the artit-les uf Impeachment
preferred by theHonse of Representatives against William W. Belknap, lato Seo*
retary of war, that the demorrer of said William W. Bolknap to the replication

- •• XT » « *... — *^ ^V. «... *. *U. .^-..J...:._ -1„., v_ _^^ 3^,.

> Senate

of the House of Boprosentatlves to the plea to the jnrisdiction filed by said Bel-
knap be. and the same hereby is, OTermlod ; and, it being the opinion of the Senate
that said plea is insntliciont In law and that said articles of Impeachment are suf •

ficient in law, it is therefore farther ordered and a^jadced that said plea be, and
the same hereby is, OTermled and held for nanght.

This order precluded us from demurring to the articles of impeach-
ment. We thereupon filed a motion to vacate it, but the motion has
not been argued.

The order proceeded upon the principle that where the party de-
murring must succeed upon the particular point raised b^ his de-
murrer, the court will look back through the record to see if his former
pleadings have been defective, and give judgment against the party
first in fault. But the application of the principle to this case was
erroneous in two particulars ; First, the rule is subiect to the excep-
tion, that where a demurrer is filed to a plea in abatement, or to a
replication to such plea, the court will not look to the declaration to
see whether that be good or bad ; and this case was within the excep-
tion to the rule ; second, it is only where the i^arty demurring must
succeed upon the particular point raised by his demurrer, that the
court looKs back through the record for any purpose. But in this
case the court overruled the demurrer, and therof ore the prior record
was not before the court.

The character of a plea is determined by its prayer and conclusion.
Though it contain matter in bar, yet, if it oonolnde in abatement, it
is a oTea in abatement. And if it contain matter in abatement, but
conclude in bar, it is a plea in bar. ''The conclnsion makes the plea.''
(Shaw V8. Dutcher, 19 Wendell, page 222. See also Thomas V9, Lord, 1
Lord Raymond, pages 356, 357 ; G<Klson V8, Good, 6 Taunton, page 587 ;
Executor, &c., V8, Elmendorf, 10 Johnson, page 49; Kent, justice, in
Jenkins vs. Peporn, 2 Johnsou's Cases, page 313; Bex vs, Shakespeare,
10 East, pajfcs 83-87.)

The plea in this case was a plea to the jurisdiction. It did not con-
clude with prayer, as in bar, for judgment as to the sufficiency of the
articles, but prayed iudgnient *' whether thi$ court can or will take
further cognizance of the said articles of impeachment J*

It was a plea to the jurisdiction, which is a plea in abatement ;
that is, a plea intended to stop the proceeding, without reference
to tho merits ; a plea which prayed, not the judgment of the coui*t as
to the sufficiency in law of the articles, bnt as to the jurisdiction of
the court to pass npon the question of their sufficiency in law, or
any other question in the case.

Stephen's Pleading, page 144, speaking of the rule that the court
on demurrer will look back through the record, says :

It is, however, sabject to the following exceptions : First. If the plaintiff de-
mnr to b plea in abatement^ and tho court decide against tho plea, they will give
judgment of respondeat ouster, without regard to any defect in the declaration.

1 Shower's Reports, 91 :

Memorandum. In the case of Ch«.mber8 m. Garrett, this term. Holt, chief Jus-
tice, refused to permit me to urge or argue any exception to a declaration npon a
demurrer to a plea in abatement.

In Hastrop vs, Hastings, 1 Salkeld, 213, it was held :
The defendant shall not take advantage of mistakes in the declaration npon a
plea in abatement ; but if he would do tliat he must demur to the declaration.

In Bnllythorp rs. Turner, Willes*s Reports, 478, the conrt say:
It has been holdon that in a plea in abatement yon cannot oblect to any defect in
the declaration ; and so is the case of Hastrop vt, Hastings, Salkeld, 812.

In Davies vs. Penton, 6 Bamewall and CresweU, 222, Abbott, chief
justice, says :

Then as to the other point, it is said that the plaintif, npon certain points of the
record, has eet/orth his bankruptcy, and that as it appears upon the whole record
that his assignees are entitled to the benefit of the contract stated in the declara-
tion, tho plomt iff cannot have Judgment upon his demurrer. But in considering
what Judgment we are to pronounce upon this demurrer, we are bound to loolc
otily to that part of tho record upon tshi'^h the demurrer arises, tmd not at the other
collateral parts. of therecord not connected vrith iL

Bayley, J., said :

As to the other points in arguing the question whether the defendant or the plaintiff
is entitled tojndgment upon this demurrer, neither of them has a right to nave re-
course to any parts of the reo<M^ not connected with that upon which the demurrer

Holroyd, J., said :

I entirely agree with my brother Bayley that the defendant cannot claim in aid
the other parts of the record to show that the plaintiff is not entitled to Judgment
upon the demurrer.

In Shaw, vs, Dutcher, 19 Wendell, 223, Cowen, J., delivering the
unanimous opinion of the court, said :

Bnt it is said the declaration is bad ; the plaintiff was first in tnnlt, and cannot
therefore make an available objection to the plea. Such is the scneral rule, but a
demurrer to a pea in abatement is an exertion. ♦ * * The same general doc-
tiino i8 again repeated by Sutroycho in a note to Ronth vs. Woddell. volume 3, 1067.
HaHtr«»p rs. Hastings. 1 Salkeld, 913, reongnized in BiUlylhrop vs. Turner, Willes,
•478, U a direct aiyudicatiuu on the same point. Chfford vs. Corry, 1 Massachusetts.
500, same point. The rtiUi is recognized in many books of reference, and I do not find
that H is quest oned by any. (Corayu's Digest, Abatement I, 14 ; Sti*i>lien'H Plead-
ing, 163, first American edition ; 1 Cliitty*s Pleading, 405 ; Bacon's Abridgment, titie

Digitized by




Abatement, P.) Bacon's Abrid^^ent, as we have citM it at Tolame 1, paj^e 29,
American edition of 1813, adds an a reason, what is material to the main distinction
wo have been considerini; in those words, '*as nothing bnt the wiit is then in ques-
tion. Jot nothing else is pleaded to."

In Ellis 179. Ellis, 4 Rhode Island, 122, which was demurrer to plea
in abatement, tlio court say:

We hare not looked into the declaration to see whether it be fanlty in this par-
ticular or not; nor are toe entitled, upon this demurrer, to look at the declaration
for the purpose of considerins its detects. It is well settled that a demurrer to a
plea in abatement does not look back to a fault in the declaration, ainoe nothing but
the writ is then in question." (1 Saunders, poso 285, n. o; 1 Chitty's Pleading,
pages 457, 647, and cases cited, tlurd American editiou.)

In Clifford va. Cony, 1 Massachusetts, 500, Wilde, J., said:

We do not take notice of defects in the declaration upon a demurrer to a plea in

In Price r«. Railroad Company, 18 Indiana, 139, the court say:

There was. it may be observed, no demurrer to the complaint: and demurrers to
answere in abatement do not reach back to the complaint. (Snaw vs. Dutcher, 19
Wendell, 216. Answers in abatement are not addressed to the complaint)

In Ryan vs. May, 14 Illinois, 49 :

The general rule, that a demurrer must be carried back and sustained to the first
defective pleading, does not apply so as to carry it behind a pica in abatement If
the pica is bad the Judgment must be respondeat ouster. A demurrer to one plead-
ing cannot be carried iMtck to another to which It did not profess to be an answer,
and with which it had no connection.

To the same effect see Hunter r«. Belgen, 39 Illinois, 367 ; Knott w.
Clements, 13 Arkansas, 335; Crawford vh, Slade, 9 Alabama, 887 ; Dean
V8. Boyd, 9 Dana, Kentucky, 169.

In Dearborn vs. Kent, 14 Wendell, 187, there was a plea in bar, a
replication, and demurrer. The court, by Savage, Chief Justice, after
holding the replication good^ say :

The defendant seeks to attack the declaration, but that he cannot do. The
pleading deniurred to, beine declared good, the demurrer was not well taken, and
can be of no service to the defendant. If ho thought the declaration bad, ho might
have demurred to it before he plead ; not having dono so, ho cannot reach it by de-
marring to the rei>lication. It was formerly the practice, and <« noto, to attack
J previous pleadings in certain eaeet; for example, hod these replications been ad-
ndged txuL, it would have been competent for the plaiotifT to have shown that the
pleas were bad, and then the defendant might have shown tho dedai ation was
Dad ; but the replication being adjudged good, the investigation Hops ther:

Other authorities mi^ht be cited, but those referred to are sufficient
to settle the question, if authorities can settle it ; if not, more would
be useless.

In this case, the demurrer to the replication havinff been overruled,
the snfQciencv of the plea in abatement was not before the court.
And even had the demurrer to the replication been held good, the
court could have gone no further back than to the plea. Conse-
quently it was not open to us, on the argument of this demurrer, to
attack the sufficiency in law of the articles of imx>eachment ; and
their sufficiency, not being questione<l by our demurrer, was not be-
fore the court.

It is, therefore, respectfully submitted that, in strictness, the de-
fendant is entitled to a vacation of tho order, and an order declaring
the present proceedings to be a mistrial. 1 have no doubt that in
case on indictment in the courts of law, under circumstances like
these, a trial would be set aside, and the party be restored to his right
to plead, as though such proceedings had not been.

It is well settl^ that the courts of the United States can exercise
no common-law criminal Jurisdiction. The United States has never
adopted the common law. Most of the States have, with certain mod-
ifications, adopted the common law. By the Judiciary act of 1789, it
is provided that the laws of the several States sbaU be the rule of de-
cision of the Federal courts sitting in such States. Thus the Federal
court sitting in Maryland will follow not only the statutory but such
of the common law as the Stat« of Maryland has adopted and made
her own. So in the State of Wisconsin ; and so in other Statues. So
that the Federal courts decide questions resting in tho common law
of each State as such States have adopted the same. But the United
States has never for itself adopted the common law. Consequently
offenses at the common law merely cannot be tried and punished by
any Federal court. Every offense which a Federal court has jurisdic-
tion to try and punish must be a statutory offense ; that is, it must be
defined and the punishment fixed by an act of Congress.

It is well-settled law that every statutory offense must be described
in an indictment according to the words of the statute deecribingthe
offense. (1 Wharton's Criminal Law, page 365, and cases cited ; Feo-
ple V8, Allen, 5 Davis, page 79 ; Commonwealth vs. Hampton, 3 Grat-
tan, page 590.)

Not one of the articles of impeachment charges that the respondent
received money with the intent to have his mind influenced thereby in
the determination of any question pending before him or which could
be brought before him as Secretary of War.

A demurrer to these articles might safely have been interposed, but
for the reason that the court, in response to the argument upon the
demurrer to the replication to the plea in abatement^ declarod that
the articles were sufficient in law. This question had not been argued
on either side of this case, and was not before the court on the de-
murrer submitted.

And in strictness the respondent is entitled to an order vacating
the order of the court holding the articles sufficient in law ; and de-
claring this to be a mistrial. And I have no doubt that in case on

indictment in a court of law under similar circumstances tho trial
would be declared a mistrial, and the defendant be remitted to the
right to plead anew to the indictment.

I neither ask nor expect such order in tly|^ase. Because we are
entitled to object here to the articles of imp^Schment ; and have here
the full advantage of their insufficiency.

I come now to the question of the jurisdiction of the court over this

Jurisdiction is the vital element of every judicial proceeding. And
where jurisdiction is wanting, no matter now high the magistrate
or dignified the tribunal, the judgment rendered is an absolute nullity.
Jurisdiction must exist, too, at the commencement of the proceeding,
continue through its progress, and remain at its termination. There-
fore it is never too late, during the pendency of a cause, to raise the
objection that the court has no Jurisdiction.

United States vs. Arredondo, 6 Peters, 709 :

The power to hoar and determine a cause is jurisdiction ; it is eoram judiee when*
ever a case is presented to bring this power Into action. If the petitioner states
such a case in nis petition that on a demurrer the court would render a judgment
in his favor, it is an undoubted case of Jurisdiction, whether on an Miswer denying
and putting in issue the allegations of the petition, the petitioner makes out his
case [or not ] is the exercise of jurisdiction conferred by the filing of a petition
containing all the requisites, and in the manner prescribed by law.

Voorhies vs. Bank, 10 Peters, 474 :

Speaking of decisions of the Supreme Court, the court say:

If not warranted by the Constitution or laws of the land our most solemn pro-
ceeding can confer no right which is denied to any judicial act under oolor of law,
which can propcrl v^bare been deemed to have been done eoram nonjudioe ; that is,
bypersons assuming the Judicial function in a ffiven cose without lawful authority.

The line which separates error in judgment from tho usurpation of power is very
definite, and fs precisely that which denotes the cascA where a judgment or decree
is reversible only by an appellate court, or may be declared a nnllity collaterally
when it is ofibred in evidence in an action concerning the matter a4indicated, or
purporting to have been so. In the one case it is a record importing absolute vor*
it3' ; in the other mere waste paper : there can be no middle character assigned to
Judicial proceedings which are reversible for error. Such is their effect between
the parties to tho suit, and such are the immunities which the law affords to a plaint-
iff who has obtained an erroneous judgment or execution.

In Rhode Island vs. Massachusetts, 12 Peters, 718, the court say :

However late this objection [to the Jurisdictioni luis been made, or may be made
in any cause. In an inferior or appellate court of the United States, it must be con«
sldered and decided before any court can move one further step in the cause, as
any movement Ih necessarily the exercise of jurisdiction. Jurisdiction is the power
to hear and determine the subject-matter in controversy between parties to a suit,
to a(\judicate or exercise any judicial power over them. The ouestiou is whether,
on tho case beforo a court, their action is judicial or extn^iudiclal. with or without
the authority of law, to render a judgment or decree upon the rights of the litigant
parties. If the law confers the power to render a judgment or decree, then the
court has Jurisdiction. What shall be a(Hud{i^d or decreed between the parties,
aud with which is the riffht of the case, is Judicial action, by hearing and detormin'
ing it (6 Peters, page 709 ; 4 Russell, page -415 ; 3 Peters, pages 20-37 )

A motion to dismiss a cause pending in the courts of the united States is not
analogous to a plea to tho jurisdiction of the court of common law or equity in En-
gland. There the superior courts have a general Jurisdiction over all persons
within the realm, and all causes of action between them. It depends on the sub-
ject-matter whether the jurisdiction shall be exercised by a court of law or equity ;
but that court to which it appropriately belongs can act judicially upon the party
and the subtect of the suit, unless it shall be made apparent to the court that tho
Judicial determination of the case has been withdrawn from the court of general
Jurisdiction to an inferior and limited one. It is a necessary presumption that the
court of generaljnrisdiction can act upon the given case, when notluug appears to
the contrary. Hence has arisen the rule that the party oUiming an exemption
from its process must set out the reasons by a special plea in alKvtement, and show
that some inferior court of law or equity has the exclusive oognlxonce of tho oase ;
otherwise, the superior court must proceed in virtue of its general jurisdiction.
This role prevails both at law and in equity. (1 Vesey, sr., pagea04 1 a Veeey, sr.,

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 150 of 172)