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I do not find that this proposed order was subse(|nently acted upon.
I only bring it forward as the opinion of a distinguished Senator,
wnicb seemed to receive the acquiescence of the Innate. It would
seem that it was deemed nnnecesary to pass npon the order. I ask,
Seuators, if it be true that the two-thirds vote does not relate to the
final Judgment; if the final Judgment of this tribunal— the great
question so running with the defendant's life — to wit, the qnestion
of disqualification, is to be passed npon by a majority, is it not en-
tirely clear that all preceding legal questions are also to be passed
upon by a majority f

There are other constitntional constructions made by the Senate.
I call attention to the clause of the Constitution relating to treaties:

He shall have power, by and with the advice and consent of the Senate, to make
treaties, providea two-thirds of the Senators present ooncur.-'OonstikUion, article
2, section 3.

I now call the attention of this court to the argument of the coun-
sel who has Just closed. He claims that the word "concur" includes
every proceeding from the commencement of the trial to its close,
with certain exceptions relating to adjournment, &c. Now I propose
to show by senatorial construction that the word "ooncnr" has been
defined by the Senate in regard to a treaty to mean Just exactly what
we claim the word means in regard to impeachment. The Senate
will observe that the words are the same. The language in the one
case is " provided two-thirds of the Senators present concur," and
the words in the other case are "no person shall be convictoil with-
out the concurrence of two-thirds of the members present." What is
the mle of the Senate f Senate Rule No. 38 (Barclay's Digest, pages
247, 248) is:

And on the final miestion to advise and consent to the ratification (of the treaty)
in the form aj^reed to. the eoneurrenceot two-thirds ot the Senators presentjihall be
requisite to determine it in the atfimative ; but aU other motions and questions thereon
shallbe decided by a majority vote.

Is it not clear that this Senate in this regard has held that the
word " concur" simply relates to one vote, and that the final vote,
and that all other questions relating to the treaty or amendments to
the treaty or to any other possible question tha.t may arise in regard
to it, excepting the final, definite, and oonclnsivo vote of ooucurrenoe,
are to be by a majority vote i

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Again, as to constitutional amendments.

The Congrem, whenever tioo-fAi>d# of both Houses shall deem it necessary, shall
propose amendments to thils Constitution. — Ooruftitution^ article 5.

Senate Role 44 provid<

When an amendment to bo proposed' to the Constltation is under consideration,
the concurrence of fico-'/tird* of ilio Senators present shall not be requisite to decide
anv qnestiun lor nmendmcnts, or extending to the merits, being short of the jinal
quesuon. (Barclay's Digest, page *i40.)

The const i tut ion al amendments may come from the "House," hav-
ing received a two-thirds vote there, and yet a majority may change
and amend.

Therefore in all these cases this Senate has held that whenever a
two-thirds vote is required there is but one final vote. Such is the
Constitution ; such is the construction of the Senate.

I call the attention of Senators to Senate Rule 20, the last clause,
Barclay's Digest, page 'ZiS :

When any question may have l>een decided by the Senate in which tioo-thirdt of
the Senators present are necossiry to carry the affirmative, any Senator who votes
on that side which prevailed in tlie question may be at liberty to move for a recon-
sideration ; and amotion for reconjuderation shall be decided by a nuOority of votes.

Applying this rule to this case, say that two- thirds of the Senators
hud voted in favor of jurisdiction or that with entire unanimity this
court had voted in favor of jurisdiction, yet at any time a majority
may reverse the order or judgment. Assume again that this question
had not been raised until after conviction and that this Senate had
unanimously voted that the defendant was guilty of every charge
containeil in 1 ho articles of impeachment ; yet any Senator cotild have
risen in his place and said, ** I doubt our jurisdiction;" and on the
question bemg debated, if a majority of the Senate should find that
the Senate did not have jurisdiction, the proceedings would be re-
versed and the case driven from the court. It is a rule that works both
ways ; and, therefore, the other day when a learned Senator inquired,
" Is each Senator bound by this judgment under all circumstances T"
we answered ** No." Wo simply say that each Senator is bound by
this judgmeut while it stands as the judgment of this court, and the
miijonry which made the judgment can at any time rovei-se it.

In the ^aseof Barnard, which perhaps has already been snfiQciently
referred to, ten members of the court, including three judges of the
court of appeals and seven senators, voted that the court hud no
jurisdiction of certain charges relating to matters which had occurred
before Judge Barnard was elected to the term of office which he was
then holding; and yet every one of those ten members of the court
who voted that the court had no jurisdiction in th.at case over those
questions voted guilty, on the very articles charging the prior offenses,
on the tinal vote, although overruled on the question of jurisdiction
by a majority or more of the court.

At this point allow me to call attention to the order or judgment
of I his court in this case :

It is ordered by the Senate sitting for the trial of the articles of impeachment
preferred by the House of Itepresentatives azninst William W. Belknap, late Sec-
retary of War. that the demurrer of said William W. Rolknap to the replication of
the ifouse of Representatives to the plea to the jurisdiction nled liy said Belknap
be. and the same hereby is, overruled; and, it Imng the opinion of the Senate that
said plea t« itisufficient in law and that uaid articles (^ impeachment are sufficient in
Irtp, it is ther^ore further ordered and adjudged that Mid plea be, and eA" stime hereby
is, overruled and held for naught;" vhich judgment thus pronounced shaU be entered
upon the journal qf t/te Senate sitting as a/oresaid.

I repeat. Senators, this judgment binds every Senator while it is
the judgment of this court. It only binds him while a majority.says
it shall. Assume that two-thirds had voted in favor of jurisdiction,
would it change the opinions or ease the consciences of the non-con-
curring Senators f Would not those learned Senators who on this
question think they ought not to be bound have the same opinion
and have precisely the same view of the case that they have now,
had the vote in favor of jurisdiction been two-thirds instead of a ma-
jority of the Senate t

Allow me to call attention for a few moments to the independent
existence of this court. This court is or^^nized under the Constitu-
tion. It may adjourn from day to day, without reference to the other
House. It may sit when the Congress is not in session. This is es-
tablished by its every-day practice. It has frequently adjourned more
than three days. But, however this may be, it has t he powers of any
other court. Whoever heard of a court being prevented from the
exercise of its fnnctions by a minority t The precedents are all one
way, the authorities are all one way. But assume that the court must
look to the Senate for authority, then the rules hereafter to be re-
ferred to confer the most abundant authority, though the robos are
changed from the legislative to the judicial. I desire to call ;;ho at-
tention of the Senate briefly to some elementary authorities on this
subject :

Every corporate act must be done at a meeting, either of the whole body-politic
or of such select body as may have confided to it by the Constitution the perform-
ance of such act, whiich meeting must be duly convened by proper summons, and
must be held in the usual place of meeting, the question being (in all cases not
expressly provided for by the constitution of the corporation) decided by a ma-
jority of those present at the meeting and voting on the question. Those who
do not choose to vote upon the quoMtion before tiie meeting, or who vote on any
other qusstion. aro considered to vote with the majority of the voters on the real
question, and so of those who aro absent." (Crrant on Corporations, page 54.)

After an election has been properly proposed, whoever has a majority of those
who vote, the assembly being sutficient, is elected, although the mivjofity of the
enlirv assembly altogether abstain from voting ; booauso their presence suffloos to
oonstitute tho elective body, and if they neglect to vote it is their own faalt, and

shall not invalidate the act of others, but be construed an assent to the determina-
tion of the majority of those who do vo.e. And such an olec^ion is valid, though
the majohtyot those whose presence is necessary to thoassemolv protest against
any election at thar time, or oven the election of the individual who has a majoiity
of votes. The onlv manuer in which they can effectually pitsvent. his election is by
voting for some other qualifled person. (Angell ana Ames on Corporations,
page 98.)

That wherever a power of election is vested in a definite number, quorum A and
B aro to be two, the presence only of A and B, and^not their assent, is joquisiie to
make a valid election. (Abbott'sDigest, Law of Corporations, page 505, section 13.
See Ileg. i». Bailiff^, Sec, of Ipswich, 2 Lord Raymond, page 1*23S; Cotton vs. Davis,
1 Strange, page 53.)

I have already said that the vital question to the defendant is the
question of guilt or innocence. All legal questions therefore may,
without injustice to him, be decided by a nugority. Any fact in-
volving jurisdiction must present a legal question, and there is no
rer.sou in the law or in common sense why a jurisdictional question
should not Ije decided by a majority. 1 affirm that the Constitution,
in its tender regard for tho accused person, had no thought of any
legal ouestion. A jury must be unanimous in this country ; in Scotr-
land three-fourths are rcquii'ed ; and those who made the Constitu-
tion thought that to allow a mere majority of the Senate to convict
on a question involving a man's character, iuid sending him down per-
haps with infamy to the future, would be ui^iust ; and therefore a
two-thirds vote was required on that question, and on that question

Perhaps the most important legal question the defendant could have
presented on this trial was his own comi)etency as a witness and that
of his wife ; and yet it is conceded that this question could have been
settled against the defendant by a majority vote.

Assume that the question of jurisdiction had turned on the preced-
ence of a judicial act, (not any act, as erroneously assumed by a SenatOTf)
which precedence is sustained by all English and American author-
ities, would the question of fact whether the resignation was on the
same day, on which fact the iurisdiction would turn, require a two-
thirds voteT Or, had jurisdiction been held on the priority of the pro-
ceedings of the House, would the fact have had to be settled by a two-
thirds votef Or, had it turned on tho defendant's resignation to
evade impeachment, would tho jurisdictional fsict require a similar
vote ? Is it not clear that both the Constitution and the reason there-
for concur in sustaining the position that the I wo-thirds vote of the
Constitution is only required on tho questions involving the truth of
the charge and the character of the accused t I call the attention of Sen-
ators to Rule 1(5 of the Senate, Brightly's Digest, page 237 :

When the yeas and nays shall be calleil for by one-fifth of the Senators present,
each Scnator'called wpon shall, unless for special reasons he be excused b*t the Senate,
declare openly, and without debate, his assent or dissent to tho quesdon.

Also to tho Senat.o riJo for the court of impeachment :

YI. The Senate shall hare power to compel the attendance of witnesses: to enforce
obedience tots orders, mandates, writs precepts, and Jadgmeuts: to preserve order,
and to punish in a summary way contempts of. and ilisobcdience to, its authority,
orders, maud.ates, writs, precepts, or judgments ; and to maJceaU lawful orders, rules,
and regui,ntions which it may dsem essential or conducive to the ends of justice. And
the Sergeant-at-Arms. under the direction of the Senate, may employ such aid and
assistance as may be necessary to enforce, execute, and carry into effect the lawful
orders, mandates, writs, and precepts of the Senate

We show the power of the Senate. It is not for us to point the
mode of its exercise. We believe the Senate wiU act pursuant to the
oath prescribed by Rule 24 :

Form of oath to be administered to the members of the Senate sitting in the trial
of impeachments:

I solemnlv swear (or affirm, as the case may be) that in all things appertain-
ing to the tiial of the impeachment of , now pending, I wiU do Impar-
tial justice according to tho Constitution and laws : So help me (>od.

In May on Parliamentary Law we find the following suggestion,
which may possibly be of some benefit, in one contingency, to the
Senate :

The vote of the Lord on the woolsack or in the chair is taken first in the house.
(May's Law of Parliament, page 337.)

In the Upper House. Lonls who desire to avoid voting may withdraw to the
woolsacks, where they are not strictly within tho house and are not therefore
counted in the division. (May's Law or Parliament, page 343.)

The woolsack, indeed, is not strictly within tho liouse, for the Lords may not
speak from that part of the chamber; and if they sit there during a division, their
votes are not reckoned. (Ibid, page 317.)

This is all. Senators, that the managers deem it necessary to say
upon the questions of law which are presented to you.

Mr. CONKLING. Will it interrupt the manager, as he has con-
cluded on this point, to ask him a question f

Mr. Manager LORD. Not at all.

Mr. CONKLING. Suppose on a trial of impeachment the objoction
should be interposed that the acts alleged are not in law impeachable.
We shall all agree that they must be impeachable to be the subject
of imneachment ; indictable to be the subject of indictment. Sup-
pose tlie point is raised that the acts charged in the articles are not
in law impeachable and the tribunal proceeds in the first instance to
consider that question. A majority, less than two-thirds vote that
the acts charged are in law impeachable, that drunkenness, if that
be the charge, is impeachable although no statute denounces drunk-
enness as a crime. My question is whether, in the opinion of the man-
agers, the minority in tbat case would be bound by that as matter
of law, so that on the fin<il vote, although each man in the minority
might on bis conscience believe that those acts are not in law im-
peachable, he would nevertheless be under obligation to vote in the
language of Rule )li that the articles are sustamed f

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Mr. Manager LORD. If I nnderstand the Senator, I answer him in
this way : It this conrt settles that a particular offense is impeach-
able, however it may differ with the opinion of an individual Senator
when he is called upon to vote on the question of guilty or not guilty
on the act of drunkenness, to use the Senator's illustration, his only
duty is to vote aofi way or the other, or, if he chooses, perhaps, not
vote at all. What the managers claim is that this word *' con viction "
only refers to a solitary point in the case, and that is to the time
when Senators are called upon to say, ''Is tne defendant guilty or not
guilty q| the offense or offenses charged in the articles of impeach-

Mr. CONKLING. Then, if I may a step further nnderstand the
manager, the argument is that a Senator who votes whether an arti-
cle is sustained or not simply votes upon the question whether in fact
the person named did that act, and if he finds that he did his vote
must be in the affirmative, or guilty, although he may believe on his
oath, first that the act, if done, is not impeachable, aud second that
the person who did it is not himself the subject of impeachment.

Mr. Manager LORD. If the learned Senator will allow me to cor-
rect his language a little in regard to his opening, he says " on the
question is the article to be sustained."

Mr. CONKLING. That is what the rule is.
J^ Mr. Manager LORD. The Constitution is that two-thirds shall
concur in the conviction ; and our position is, ri^ht or wrong, that
all legal questions are to be settled by a majority. Whether the
Senate has Jurisdiction is a question to be settled by the mt^ority.
Whether drunkenness is an impeachable offense or not is a question
to be settled by the minority. That m^ority, as I had occasion to
say when t|ie learned Senator was out, may be reversed at any time.
It is not a matter that binds the Senator or any Senator except while
it remains the J udgment of the Senate^; and if the Senators should go on
and unanimously find a man guilty of an offense^ the question of Ju-
risdiction may be raised after that and the whole matter dismissed
from the tribunal by a mere majority vote. Therefore, I answer the
Senator that in my view of the Constitution the Senator or any other
Senator^has nothing to do when he comes to vote except to say *' Is the
person guilty or not guilty of the offense charged in the articles of im-
peachmentf " Whether in his Judgment that offense is impeachable or
not is a question, in our Judgment, with which he has profoundly
nothing to do, because the Constitution simply ptoints him to one
thing, and that is, was the defendant, taking the illustration given
. by the learned Senator, drunk or not f

It has been suggested by an associate manager, which is true, that
when the Senate comes to act upon the question of its former order
and undertakes to reverse its action, it must act upon that question
alone, and not complicate it with the consideration of the facts in-
volved in the articles of impeachment.

Much more might be said on this question relating to the two-
thirds vote, but enough has been said to show the views of the man-
agers. I do not propose in the least to reconsider the arguments
\niich have been made relating to the question of Jurisdiction^ but
submit the law questions of the case with the observations which I
have made and with the arguments which have hitherto been pre-

I desire to call the attention of Senators during the remaining
part of my argument to the questions of fact, avoiding as far as pos-
sible what has been already so ably said ; and yet in order to get
through the case nnderstandingly, I must in some degree refer to
what has been already stated.

The first question, and which is rather a question of law than of
fact, is, What is bribeiv t Do these articles charge bribery f What is
the essence of bribery T Is it not anything givon to an officer to in-
fluence his Judicial, his legislative, or his official conduct t If yon
find that a man has received anything from a third person to in-
fluence and which has influenced his conduct, this is bribery ; and,
as was well said the other day, it is bribery although the person who
receives the bribe makes up his mind that it shallnot influence his
Judgment. That does not make a particle of difference. The law is
wiser than any individual. A person may through a long series of
years as a Judge receive a thousand dollars a year from a particular
suitor in the court, and every time he receives it he may make up his
mind that it shall not influence his Judgment. On bended knee, if
the hypocrite can kneel before God, it may be his morning and even-
ing orison that the thousand dolliurs may not influence his Judgment.
And yet if he receives that money under such circumstances and then

Eroceeds to Judgment, the law denounces it as bribery although in
is heart of hearts he may believe that he has not been inliuenced at
all by the bribe.

But I care not to discuss these questions in their elementary char-
acter. I sa^ to you, Senators, that if under the circumstances of this
case as detailed to you b^ the evidence you can find that William W.
Belknap, late Secretary of War, did not receive money during these
long years for the purpose of influencing his official action, then let
• him go free. If in the eyes of this nation, if in the eyes of the world,
if in view of far-reaching history, this Senate dares take the responsi-
bility of saying that during these long years the defendant received
these sums of money and continued these men in office under these
circumstances with pure motives— if they can say that these sums
were all mere gifts, disassociated from anything like a bribe, let
them say it and see what history will say of the verdict.

22 I

Now, if Senators please, in regard to the main transaction there is
a great divers^ence between the learned counsel. The learned coun-
sel [Mr. Black] assumes on the whole that there was a gift, and he
froceeds to Justify it by various other gifts. The learned counsel^
Mr. Carpenter] proceeds on the theory that it was the property of
the wife as the defendant supposed. Passing along we shall dwell
somewhat upon each of these theories. In the first place, what is the
brief history of the case f We have to say that the details of *the orig-
inal transaction are very much in the dark. Fraud always goes in the
dark. Who wants to publish crime in daylight f What serpent in
the grass rears its head vnless it is compelled to strike f

In the first place, I call the attention of Senators to the fact (what-
ever weight it may have is for you to say) that the defendant in this
action was the first to suggest this change of the law. Give this cir-
cumstance what consideration it deserves and nevertheless it is a fact
in the case that the law, which before gave the appointment of these
post-traderships to certain military commanders, was changed by a
bill which originated in this Senate on the motion of a Senator who
then and there stated that he acted at the request of the Secretary
of War. Therefore we find this Secretary placing beneath his feet
the foundation on which this fraud was afterward perpetrated.

Mr. BLAIR. Mr. President and Senators, I do not recollect any
such evidence being introduced.

Mr. Manager LOuD. It is in history : It is the record of the Sen-
ate. If the learned gentleman will look at the record of the Senate
he will find it occurred on this floor. I apprehend that notwithstand-
ing Senators have on their judicial robes they can look back to the
records of the Senate, for it is still the Senate. I say it is recorded
in this Senate.

Mr. Manager JENES. Crosby swore to it.

Mr. Manager LORD. I also understood that Mr. Crosby swore to
it. I was not present all the time that the testimony was taken ; and
therefore I throw myself upon the right to refer to the fact also be-
cause it is a part of the records of this body.

Mr. EDMUNDS. May I ask the manager a question f Does he
claim that the st-atement in the Record of what a Senator said, or
what a Senator in fact did say, is evidence of the charge that Mr.
Belknap knew that the Senator was stating the matter correctly t

Mr. Manager LORD. Perhaps I shall have to answer the Senator,
not directly legal evidence. I had assumed that what was part of
the recoids of the Senate and had been for years uncontradicted
would be received here. Then if the Senator is right, and I submit
to his view not only because he is a member of the court but because on
reflection I think he is right, I refer to the testimony of Mr. Crosby. |I
nnderstand my colleagues to say that Mr. Crosbv did state that this
order was proposed at the suggestion of Mr. Belknap.

Mr. BLAIR. I do not recoUeot any such statement in the record.

Mr. Manager McMAHON. I will read it to the counsel.

Mr. EDMUNDS. On what page?

Mr. Manager McMAHON. On page 207 of the trial Recobd, in the
examination of Crosby.

Mr. Manager McMahon. I -will pnt the qneetioii In thia way. (To the wit*
neas.) Did he not take an interest in the passage of the law changing the appoint-
ment of post-traders as it did f

A. I suppose he did.

Q. (By Mr. Manager McMahon.) Do von not know that he did f

A. I have not mach reoollection abont it

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 153 of 172)