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page 307 : Mitford, pago 183.)

A motion to dismiss, therefore, cannot be entertained, as it does not and cannot
disclose a case of exception ; and if a plea in abatement is put In, it must not only
make out the exception, but point to the particular court to which the case belongs.
A plaintiff in Uw or in equity is not to be driven from court to court bv such pleas.
If a defendant seeks to quash a writ, or dismiss a bill for such cause, he mast give
the plaintiff a better one, and shall never put in a seoond plea to tho jurisdiction of
that court to which he has driven the plaintiff by his plea. ( 1 Vesey. sr., page 203 )

Thero are other classe » of cases where the objection to the |urisdictton is of a
different nature, as on a bill in chancery ; that the sul^ect-matter is cognizable only
by the king in council, and not by any judicial power, (I Vesey, sr., 445;) or that the
parties deiendant cannot be brought before any municipal court on account of their
sovereign character and the nature of the controversy, as 1 Vesey, jr., 37i. 387; 3 Ve-
sey, Jr., 56, 60 ; or in the very common oases which present the question whether the
cause properly belongs to a court of law or equity. To such cases a plea in abate*
ment would not be applicable, because the plaintiff could not sue in an inferior
oourt The obfeotion goes to a denial of any jurisdiction of a municipal court in
one chws of oases, and to the jurisdiction of any oourt of equity or of Uw in the
other ; on which last the court decides according to their legal discretion. An ob-
jection to Jurisdiction on the ground of exemption from the process of tho oourt in
which the suit is brought, or the manner in which a defendant is brought into it,
is wai ved by appearance and pleading to issue. ( 10 Peters, 473 ; Toland v$. Spragiid,
13 Peters, 300.) But when the objection goes to the power of the court over the parties,
or the iubjeet-inatter, the d^endant need not, for he cannot, give the plaintiff a better
writ or bid. Where no inferior court can have iurisdietion of a ease tn law or equity,
the ground of objection is not taken by plea in abatement, as an exception of the given
case, from the otherwise general jurisdiction of the ooort; appearance does not cure
the d^eetqf Judicial power, and itmavbe relied uponbyplea^ answer, demurrer, or at
the trial or heatring, unless it goes to the manner of bringing the defendant into court,
which is waived by submissiou to the process.

As a denial of jurisdiction over the subject-matter of a suit between parties
within the realm, over which and whom the court has power to act, cannot be suc-
cessful in an English court of general Jurisdiction, a motion like the present could
not be sustained consistently with tne principles of its constitution. But as this
court is one of limited and special original Jurisdiction, its action must be confined
to the particular oases, controversies, and parties over which the Constitution aud
laws have authorized it to act; any proceedinie without the limits proscribed is
coram non judiee, and iU action a nullity. (10 Peters, 474; S. P. 4 KuHsell, 415.)
And whetiier the want or eieeess of power is objected by a party, or is apparent to
the court, it must suroesm its action or proceed extrajudicially.


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Consent never confers J orisdiotion to hear and determine a cause,
where the law does not confer the power. (Hurd vs. Tombs, 7 How-
ard, Mississippi, pase 229; Bell vs. Railroad, 4 Smedes & Marshall,
~ap:e 549 ; Leigli v«. Mag^, 1 Scammon, page 249 ; Ex parte Williams,
1 Yerger, page 579 : Green vs. Collins, 6 Iredell, page 139; Bluett vs.
Nichf)ison, 1 Branch, page 384 : Gmn vs. Rogers, 4 Gilman, page 131;
Long vs. Long, 1 Morris, page 381 ; Moran vs. Masterson, 11 B. Mon-
roe, page 17 ; Chapman vs. Morgan, 2 Green, Iowa, page 374 ; State
vs. Bonney, 34 Maine, page 223 ; Winn vs, Freel, 19 Alabama, page
171 : State vs. Cardline, 20 Alabama, paoe 19 ; JefEries vs. Harbin, 20
Alabama, page 387; Field r«. Walker,, sS Alabama, page 155; Dicks
t$. Hatch, 20 Iowa, page 380 ; Wanzer vs. Howland, 10 Wisconsin,
page 8 ; Bureau County vs. Thompson, 39 Illinois, page 566 ; Dodson
vs. Soraggs, 47 Missouri, page 285 ; Garrett vs. Trotter, 65 Missouri.

Sage 430 ; Damp vs. Dane, S§ Mississippi, page 419 ; , 2o
iCw Hampshire, ptu^e 232; Jackson vs. Ashton, 8 Peters, page 148;
Dred Scott case, 19 Howard, pa^e 393.)

An objection to the Jurisdiction never comes too late, and cannot
be waived by consent nor forfeited by bad pleading. (Stoughton vs.
Mott, 13 Vermont, page 175 ; Grant vs. Tarns, 7 Monroe, page 218 ;
Able rs. Bloomfield, 6 Texas, i)age 263 ; Smith vs. Dubuque, 1 Clark,
page 492 ; Stearly's Appeal, 3 Grant, Pennsylvania, page 270 ; Ketland
vs. Cassins, 2 Dallas, page 305; United States vs. Bedford Bridge, 1
Woodbury &: Minot, page 401.)

In United States vs. Bedford Bridge, 1 Woodbury &. Minot, 405, on
the trial the defendant's counsel moved to quash the indictment, for
that the court had no jurisdiction. The court said :

And if for that or any other reason it shonld appear to this court a question of
real donbt whether it possesses any Jurisdiction in such a case over tne subject-
matter, it will be its duty not to proceed further in the trial. (2 Gallison. 385.)
Because, being a court of limited Jurisdiction, it cannot transcend ttiose limits,
though the partita make no ot^jection, but is bound itself to pause. (2 Cranch, 125 ;
12 Peters, 719 ; 1 Peters Circuit Court, 36.) A nd in any stage of the case (4 Waah-
ineton Circuit Court, page 84 ; Davison vs. Champlin, 7 Connecticut, page 244 ; Per-
kins vs. Perkins, 7 Connecticut, page 550.)

In Maissonaire vs, KeaUng, 2 Gallison, 245, Story, Justice, says :

I will only add that if I had thought the case not cognizable at common law, the
dronmstance that the objection was not pleaded in abatement would have had no
weight with me. Where the subject-matter is not within the Jurisdiction of the
court the exception may be taken under the general issue.

In the celebrated Dred Scott case, in 19 Howard, 393, the defend-
ant in the court below interposed a plea to the jurisdiction, to which
the plaintiff demurred. The court sustained the demurrer and over-
ruled the plea, and gave judgment that the defendant should answer

The defendant thereupon put in sundry pleas in bar, upon which
issues were' joined ; and at the trial the judgment and vcrdic^ wore
in the defendant's favor. Whereupon the plaintiff brought writ of

In the Supreme Court it was claimed that inasmuch as the judg-
ment in the court below was in favor of the plaintiff, he could not
complain of it in the Supreme Court; and the defendant, by plead-
ing over, had waived it. Disposing of this oljection, the court held
that the question of jurisdiction was not waived by pleading over in
the court below, but was legitimately before the Supreme Court on
the writ of error. And Mr. Justice Curtis, although dissenting from
the opinion of the court on the slavery ciuestion involved in the de-
cision, concurred with the court upon this question, and said, (pages

When that plea was a^udged insufficient the defendant was obliged to answer
over. He had no alternative. He could not stop the further progress of the case
in the circuit court by a writ of error, on which the sufficiency of liis plea to the
jurisdiction could be Uied in this court, because the Judgment on that plea was not
final, and no writ of error would lie. He was forced to plead to the merits. It can-
not be true, then, that he waived the benefit of his plea to the Jurisdiction by an-
swering over. Waiver includes consent Here therewas no consent. And if the
benefit of the plea was finally lost, it must bo not by any waiver, but because the
laws of the United States have not provided any mode of reviewing the decision
of the circuit court on such a pica when that decision is against the defendiuit.
This is not the law. Whether the decision of the circuit court on a plea to the Ju-
risdiction be against the plaintiff or aguinst the defendant, t^e losing party may
have any alleged eiror in law, in ruling such a plea, examined in this court on a
writ of error, when the matter in controversy exceeds tho sum or value of #3,000.
If the decision be u^aiust the plaintiff, and his suit dismissed for want of Jurisdic-
tion, the Judgment is technically final, and he may at once sue out his writ of er-
ror. (Mollan r«. Torrance, SWheaton, 537.) If the decision be against the de-
fendant, though he must answer over and wait for a final Jndraent in the cause,
he may then have his writ of error, and upon it obtain the Judgment of this court
on any question of law apparent on the record touching the Jurisdiction. If this
were not so the condition of the two parties would begrossly unequal. For if a
plea to the Jurisdiction were ruled against the plaintiff he could at once tak/9 his
writ of error and have the ruling reviewed here; while, if the same plea were
ruled against the defendant, he must not only wait for a final Judgment, but oould
in no event have the ruling of the circuit court upon the plea reviewed by this
court. I know of no ground for saying that tho laws of the United States have
thus discriminated between the parties to a suit in its courts.

A writ of error lies only to the ^nol judgment of the court below,
and such only is the judgment which can be reviewed in the Supreme
Court. But the rendition of every juik^ent is, in itself, an asser-
tion of Jurisdiction. And therefore, although in that case the writ
of error reached nothing but the final judgment, the question of juris-
diction was held to be before the Supreme Court ; and, of course, if
the court below at the time of i-endoring final judgment had been of
opinion that it had no jurisdiction, it would have so decided and dis-
ffllasen the cause. In other words, the erroneous decision in the court

below upon the question of jurisdiction raised by the plea to the
jurisdiction was an inherent defect in the final judgment, which en-
abled the Supreme Court to reverse the judgment upon that ground.

It is thus apparent that the question of jurisdiction never can be
eliminated from the essential elements of the judgment.

This reference to authorities brings me to the question of JoriB*
diction in this cause.

The Constitution provides, that

No person shall be convicted [on Impeaohmentl without the eone w renee of two
thirds of the members present

Concurrence means more than occasional union of minds. The wofd
signifies running along with each other. That is, no person can be con-
victed without the agreement of two-thirds of the members present
upon every point necessary to and included in the conviction.

Now in oraer to a conviction in this case several things are neces-
sary : first, that certain acts have been done or omitted ; second, that
the acts done or omitted amount to treason, bribery, or other high
crimes or misdemeanor, within the provisions of the Constitution ;
and third, that the acts were done or omitted by a person subject to
the inrisdictitm of the Senate to try on impeachment.

The respondent, therefore, cannot bo convicted, unless two-thirds
of the Senators present at tne time of conviction concur in affirming
all these propositions.

I do not propose to argue again the main question, whether im-
peachment can be maintained against a person not in office at the
commencement of the impeachment proceeding. The imperfect ar-
gument I made, prepared in the insufficient time permitted by the
court, I could strengthen in many respects, and support by additional
authorities. But I Know the question has occupied the attention of
the court in consultation, and it would be presumption to suppose
that I could add anything to what has been expressed by the many
learned Senators who have delivered their opinions and given their
votes against such jurisdiction. But I shall submit a few considera-
tions against the idea that any one of the foregoing propositions nec-
essary to conviction, and especially the question of Jurisdiction, can
be determined by less than two-thirds of the Senators present at the
time of the conviction.

It will not be denied that had the respondent seen fit, when first
called to the bar of the Senate, to plead ** not guilty,^ and the trial
had proceeded immediately, every proposition necessary to convic-
tion must have been determined in the final judgment, and that no
Senator would have voted to convict the respondent who did not be-
lieve the Senate had jurisdiction to try him. One Senator might have
believed there was no such jurisdiction, and have been opposed to the
respondent upon all other propositions in the case. Another Senator
might have believed there was jurisdiction to try the case, but that
tho respondent had not committed the acts charged. But certainly
both these Senators would have been compelled to vote against con-
viction ; that is, to vote " not guilty." or, in other words, not guilty
of anything for which the Senate could convict him. Nothing is more
common in the decisions of courts of law than judgments concurred
iu by all the judges, but so concurred in upon difierent and some-
times conflicting grounds. A suit for divorce was recently dismissed
by a court of two indges; one judge holding upon the proofs that
neither the husband nor wife had been guilty of infidelity, and the
other, that both had been. In either case the divorce must be de-
nied ; and, therefore, both judges concurred that the suit should be

But it will be claimed that inasmuch as the pleadings adopted by
the respondent submitted to the court the question of jurisdiction
apart from the question of guilt or innocence of the acts complained
of, and that a uu^jority, but not two-thirds, of the Senate were of
opinion that jurisdiction existed, therefore the question of jurisdic-
tion is eliminated from the matters to be considered at the time of
passing final judgment; and that if more than two-thirds of the
Senators present at the time of final judgment believe that the de-
fendant did commit the acts complained of, although lees than two-
thirds have not jurisdiction to convict him, nevertheless he must be
convicted. In other words, although at the time of final judgment
more than a third of the Senators present believe the Senate has no
jurisdiction of the case— notwithstanding those Senators are under
oath to decide impartially and according to the law—they must sur-
render their conscientious convictions in deference to the opinions of
other Senators expressed upon a former occasion. And assuming that
all the Senators entertain to-day the same opinions before expressed,
this question may be decisive of the case. But I submit, there are
many sufficient reasons against such proposition.

In the first place, the whole system of common-law pleading has
grown out of the experience of the courts and their desire to promote
the speedy termination of suits. And because no judgment can be
rendered in any cause over which the court has not jurisdiction both
of the parties and the subject-matter, and the trial might be fruitless,
it has been ordained that the defendant Bhali first plea<l to the juris-
diction. And where the court has jurisdiction of the subject-matter,
and the want of jurisdiction arises from mere personal privilege of
the defendant — for instance, to be sued in a certain court or in a cer-
tain county — the defendant must plead to the jurisdiction, and waives
his privilege by a general appearance. Next to the plea to the juris-
diction comes tho plea in abatement proper— that, for instance, the


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defendant is sued by a wrong name. Next comes a demurrer, then
pleas in bar. &o. This order of pleading is entirely artificial ; in-
tended merely to promote the convenience of the court and save ex-
pense to the parties.

But, as I have shown from the authorities already read, where the
defect of Jurisdiction does not rest upon personal privilege of the de-
fendant, but concerns the subject-matter, or the power of the court
^ to try a particular class of persons to which the defendant does not
^ belong— even, at the common law, omitting to plead to the jurisdic-
tion, or even a written consent to the jurisdiction, will not authorize
a- court to proceed; and any judgment it may render is absolutely

But in the courts of the United States, which are courts of limited
or special jurisdiction, the record must affirmatively show, and the
fact must be, that the court has jurisdiction, or it can render no judg-
ment. And the objection may be taken at any sta^ of i he proceed-
In^, either on the trial or in arrest of judgment, in both civil and
-^ criminal causes.

To quote from the decision of the Supreme Court in Rhode Island
r«. Massachasetts, 12 Peters, 718:

And whether the want or excess of i>ower is obiected by a party, or is apparent
to the oonrt, it most snrcease its action or proceed extn^ndioially.

Now, to apply these principles to this case, suppose the respondent
had not pleaded to the jurisdiction, but had fllea a stipulation stat-
ing that he was Secretary of War at the time of the impeachment,
and had pleaded in denial of the acts charged ; and the truth had not
come to the knowledge of the court until to-day, after the completion
of the trial, and the court was ready to pronounce judgment, would
not every Senator who believes there is no jurisdiction here, be bound
to treat it as a moot case and dismiss it at once f The authorities I
have read settle this question. Consent cannot confer jurisdiction,
and whenever the defect comes to the mind of the court, "it must sur-
cease its action or proceed extrajitdiciallff,^*

Now, if the respondent could not by written consent confer juris-
diction ; if the respondent desiring a trial upon the question of fact,
could not by filing a false admission of facts necessary to jurisdiction,
either compel or authorize Senators who believe there is no jurisdic-
tion to pass Judgment upon the merits of the case, then I desire to
know how it is to be maintained that by objecting to the jurisdiction
he has imposed that duty or conferred that power T Can an objection
to the junsdiotion of the court confer jurisdiction, while express con-
sent cannot f

Of course these considerations are addressed to those Senators who
still believe there is no jurisdiction to try and determine this case,
and who are now invited to surrender their own convictions and vote
according to the convictions of other Senators. If there was no ju-
risdiction when that plea waa filed, there is none to-day, and there
cannot be without an amendment of the Constitution. A mi\jority
of the Senate cannot change the Constitution, nor can a majority of
the Senate relieve any Senator from the obligations of his oath as a
Senator to support the Constitution, nor from the obligations of his
oath as a judge in this case, to decide impartially and according to
law. The decision of the Supreme Court in the Dred Scott case,
wliich upon this point was unanimous, and enforced by Judge Curtis
in even stronger terms than those employed by the Chief Justice in
delivering the opinion of the court ; sustained by reason and an un-
broken current of authorities ; is conclusive upon this subject, and
settles the law for all the judicial courts of the United States. The
defendant's objectiion in the court below was overruled there, but the
judgment was in his favor on the merits, and he could not prosecute
a writ of error. The decision on the question of jurisdiction was in
favor of the plainti£f ; therefore he could not obiect to it, and did not.
But the writ of error brought the whole record before the Supreme
Court, and it showed the facts upon which the question of jurisdic-
tion depended in the court below. And the court held, and Judge
Curtis, who dissented upon other parts of the case, concurred in hold-
ing, that the jurisdictional question was presented to the Supreme
Court, and must be determined. The court held that there was no
jurisdiction. Judge Curtis held that there was. But both held that
if there was no jurisdiction in the court below, it was fatal to the
judgment, even had neither party raised the objection.

The principle of the decision is this, that whenever it is discovered
in any cause pending in the courts of the United States, original or
appellate, that there is no jurisdiction, the suit must stop, and any
order or judgment rendered must fall to the ground.

If there were an appellate tribunal which could review the pro-
ceedings of this court in this cause— and if this court, having decided
erroneously on the plea to the jurisdiction, should proceed and render
final judgment against the respondent—this case would be on all fours
with the Dred Scott case in this particular ; and the appeUate court
would, under the authority of the Dred Scott case, reverse the final
judgment because of the erroneous decision on the question of juris-

It cannot be maintained, I submit, that judges of this court are
authorized to consent, or excusable for consenting, to an erroneous
judgment, because no tribunal can review the proceedings here. On
the contrary, this is one of the strongest reasons that can bo urged
why everv judge of this court should do everything in his power to
prevent the rendition of a judgment tainted with remediless error.


The decision in the Dred Scett case has never been popular so far
AS it invalidated the great ordinance of freedom; and in that respect
was reversed by the fourteenth amendment of the Constitution. But
so far as it declared the principle in regard to jurisdiction, it has never
been doubted or questioned, is authority to-day in all the courts of
the United States, and enunciates a principle observed in all courts,
£nglish and American.

The authorities cited show clearly that the question of Jurisdiction
is a pertinent, pending, vital question down to and including the last
act performed in any Judicial proceeding. But this is not all. It con-
tinues after final judgment, and may be raised in any other court or
place where the judgment is sought to be enforced. There is no dif-
ference in this respect between the courts of superior and inferior

In Voorhies vs. Bank, 10 Peters, 474, the court, speaking of their
own judgments, say :

If not warranted by the Constitation or laws of the land, otir most solemn pro-
eee<1ing can confer no right which is denied to any Jadlcial act nnder color of law
which can properly have been deemed to have been done coram tumjudiee ; that is,
by persons assuming the judicial function in a given case without lawful authority.

And the court declared that in this respect there was no difference
between its judgments and those of a county court or justice of the

In support of the general proposition that the judgment of the high-
est court, if rendered without jurisdiction, is a nullity, and may be
declared so by any court where the same may be sought to be enforced
or be brought collaterally into question, I cite as Allows: Enowles
vs, Gas-Liffht Company, 19 Wallace, 58 ; Williamson vs. Berry, 8 How-
ard, 498 ; Wilcox vs, Jackson, 13 Peters, 499 ; Schrivner's Lessee vs,
Lynn, 2 Howard, 99 ; Lessee of Hickey vs, Stewart, 3 Howard, 750 ; Star-
buck vs, Murray, 5 Wendell, 48.

From this it follows that should this court entertain jurisdiction in
this case, and pronounce judgment of disability, such judgment would
not be respected by the judicial tribunals, should they be of opinion
that this court had no such jurisdiction.

Should General Belknap return to Iowa and be elected to the House
of Representatives, that House being the exclusive judge of the qual-
ification and election of its own members, might be called upon to
pass upon the question of his eligibility. And if, in the opinion of
the then House, this court had no jurisdiction, it would be the duty
of the House to disregard the judgment of disqualification and seat
General Belknap. Or should the Postmaster-General appoint him as
postmaster in a case not requiring the advice and consent of the Sen-
ate ; or should a judicial couit appoint him as clerk, aifd a ^uo war-
ranto eihould be prosecuted to oust him, on the ground of ineligibility
imposed by the judgment of this court in this cause, such Judgment

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 151 of 172)