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of the question suggested by the order of the Senate as to whether a
necessary allegation not made in the articles could be supplied in the
subsequent pleadings.

Mr. EDMUNDS. I move that the Senate sitting for this trial take
a recess for thirty minutes.

The motion was not agreed to.

Mr. WHYTE. I move that the Senate sitting as a court take a
recess for fifteen minutes.

The motion was agreed to; and Tat two o'clock and thirty-five min-
utes p. m.) the Senate sitting for the trial of the impeachment took a
recess for fifteen minutes.

The PRESIDENT pro tempore (at two o'clock and fifty minutes p. m.)
resumed the chair.

Mr. SARGENT. I move a call of the Senate, as there is not a quo-
rum present.

The PRESIDENT pro tempore. The call will proceed.

The Secretary called the roll, and 53 Senators were found to be

The PRESIDENT j>ro tempore. The mana^jers on the part of the
House of Representatives will now proceed with the argument. Sen-
ators will please give their attention.

Mr. Manager LORD. Mr. President and Senators, if I had any i)er-
sonal desire in the matter of postponement beyond the wish that this
argument should not bo divided in twain, it was that the managers
might have some more time to condense their positions and authori-
ties : but, as it is. I shall be compelled to read more from books than
I otherwise should. In the first place I desire to call the attention
of this court to some of the positions taken by the learned counsel
who has just addressed you. First, as to the Cardozo case, I think
altogether too much weight has been given to it. It occurred in the
State in which I reside ; and I think that the Senators from that
State will concur with me when I say that the report of the judi-
ciary committee in the assembly of that State was not regarded as at
all conclusive upon the question of jurisdiction.

Then, again, the counsel called your attention to various authori-
ties or suggestions that an impeachment of a citizen or the impeach-
ment in fact of any person might prove ruinous te that person. I
fail to see what that has to do with the question of the jurisdiction
of this Senate, and, therefore, I proceed in the line of my argument
to call your attention to the pleaaings in this case. Before that, how-
ever, as the counsel on the other side did not state precisely the ques-
tions before this court, as I have understood them, I crave leave to
refer to the order tmder which this argument is proceeding :

Ordered. That four maoAgen on the part of the Honse of Reproeentativcs may
be allowed to subtnit argaments apon the question whether the respondent is amen-
able to trial by imi>eachment for acta done as Seoretarv of War, uotwithstandin;;
his resignation of said office, and whether the issues of the fact presented in the
pleadings are materiaL and also whether the matters in support ot the Jurisdiction
alleged by the House of RepresentatiTes in the pleadinzs subsequent to the articles
of impeachment can be thus alleged if the same are not averred in said articles.

For the proper consideration of these questions it is expedient that
at this stage of the case I call your attention precisely to what the
issues are. I do not intend to read the pleadings in full, but only
such parts of them as may be necessary for the understanding of this
point. Article 1 presents as follows :

That William W. Belknap, while he was in offioe as Secretary of War of the
United States of America, to wit, on the 8th day of October, 1870, had the power
and authodtv, under the laws of the United States, as Secretary of War as afore-
said, to appoint aperson to maintain a trading establishment at Fort Sill, a mill-
Ury post of the United States; that said Belknap, as Sccitstarv of War as afore-
said, on the day and year aforesaid, promised to appoint one Caleb V, Marsh to
maintain said trading establishment at said military post

♦ * * * * • •

That thereafter, to wit, on the 10th day of October, 1870. said Belknap, as Secre-
tary of War aforesaid, did, at the instance and request of said Marsh, at the city
of Washington, in the District of Columbia, appohit said John S. Evans to main-
tain said trading establishment at Fort Sill, the militarv post aforesaid, and in con-
sideration of said appointment of said Evans, so made by him as Secretary of War
as aforesaid, the said Belknap did, on or about the 9d day of November. 1870. un-
lawfully and oormptly receive from said Caleb P. Marsh the sum of f 1,500, and that
at divers times thereafter, to wit, on or about the 17th day of January, 1871. and
at or about iha end of each three months during the term of one whole year, the
said William W. Belknap, while still in office as Secretary of War as aforesaid, did
unlawfully receive from said Caleb P. Marsh like sums of $1,500 in consideraUon
of the appointment of the said John S. Evans by him, the said Belknap, as Secro-
tary of War as aforesaid, and in consideration of his permitting said Evans to con-
tinue to maintain the said trading establishment at said military post during that

Then in article 3 :

Yet the said Belknap, well knowing these facts, and having the power to remove
said Evans from said position at any time and to appoint some other person to
maintain said trading establishment, but oriminally disregarding his duty as Sec-
retary of War and basely prostituting his high office to his lust for private gain,
did unlawfully and corruptly continue said Evans in said position and permit him
to maintain said establishment at said military post durins all of said timo^ the
great ii\)ury and damage of the officers and soldiers of tne Army of the United
States stationed at said post, as well as of emigrants, freighters, and other citizens
of the United States, agninst public policy, and to the great disgrace and detriment
of the public service. ..^

Whereby the said William W. Belknap was, as Secretary of War as aforesaid,
guilty of high crimes and misdemeanors iu office.

The defendant in this case answered to these articles :
And the said William W. Belknap, &&. says, that before and at the time when
the said House of Representatives ordered and directed that be, the said Belknap,

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should be Impeached at the bar of the Senate, and at the time when the said arti-
cles of impeachment were exhibited and presented a^dost him, the said Belknap
by the said House of Representatives, he, the said Belknap, was not, nor hath he
amoe been, nor is he now, an officer of the United States.

The House of RepreseDtatives daly adoi>ted and filed a general and
special replication. A part of the latter is as follows:

The Hoose of Bepreaentatives of the United States say that the said William
W. Belknap, after the commission of each one of the acts allcf^ in the said arti<
des, was ana continaed to be such officer, as alleged in said articles, until and in-
cluding the Sd day of March, A. D. 1876. and until the House of Representatives,
by its proper committee, had completed its investigation of his official conduct
as such ofacer in r^ard to the matters and things set forth as official misconduct
in the said articles, and the said committee was considering the report it should
make to the House of Representatives upon the same, the said Belknap being at
the time aware of such investigation and of the evidence taken and ot such pro-
posed report

And the House of Representatives further say that, while its said committee was
considering and preparing its said report to the House of Representatives recom-
mending the impeachment of the said William W. Belknap tor the matters and
things set forth in the said articles, the said William W. Belknap, with full knowl-
edge thereof, resigned his position as such officer on the said 2d day of March, A.
D. 1876, with intent to evaide the proceedings of impeachment against him. And
the House of Representatives resolved to impeach the said William W. Belknap
for said matters as in said articles set forth on said 2d day of March, A. D. 1876.

To this replication the defendant rejoins, among other things, that

Chairman of said committee then declared to said Belknap that he, said Cltubb,
ihould' move in the said House of Representatives, upon the statement of said
Marsh, for the impeachment of him, said Belknap, unless the said Belknap should

resign Ids position as Secretarv of war before noon of the next day, to wit, March
tiie 2d, A. D. 1876; and, said Belknap regarding this statement of said Cltmkb,
chairmui as aforesaid, as ui intimation that he, said Belknap, could, by thus re-
signing, avoid the affiiction inseparable from a protracted trial in a forum which
would attract tbo greatest degree of public attention and the humiliation of avail-
ing himself of the defense disclosed in said statement itself which would cast blame
upon said other persons, he yielded to the suggestion made by said Clymbr, dudr-
man as af oresaia.

There is a joinder in demurrer and a surrejoinder by the Honse of
Bepreeentatives, a portion of which surrejoinder I will read :

And the said House of Representatives, as to the first and second subdivisions of
the rejoinder to the second replicati<m of the House of Representative^ to the plea
of tiio.defendant to the said articles of impeachment, wherein the said defouoant
demands trial according to law, the said House of Representatives, in behalf of
themselves and all the people of the United States, do me like.

Now, I call the attention of this court to the fact that in regard to
two of the allegations made in the second replication by the House
the defendant tendered issues and the Honue of Representatives
joined in such issues, and I shall argue to this court and produce au-
thorities presently to show that the defendant, having thus tendered
issues joined in by the House, he cannot go behind them, and cannot
question the right of this tribunal to hear and determine the matters
tbns brought l^fore it.

Then there are four special rejoinders which the defendant made.
One of them I have read to this court. In regard to each of the other
three not read, the Honse of Representatives tendered an issue to be
tried by this court ; and what does the defendant do t Does he say
that these matters are improperly before this court f Does he say that
any injury will result to him in having these facte fully and fairly and
truthfully investigated by this tribunal T Not at all. So far from it,
with great formality he tenders a aimUiter in the following words :

And the said Belknap, as to the surrejoinders of said House of Representatives
to the third, fourth, fifth, and sixth rejoinders of the said Belknap to the second
replication of said House of Representatives above pleaded, whereof said House
of Representati%'e8 have demanded trial, the said Be&nap doth the like.

We say that they are estopped upon every principle known to legal
proceedings, known to the trial of oases in court, from attempting
now to evade these issues. It was very proper on the part of this
tribimal to raise this question, if it saw lit; but I apprenend, when
the authorities are reviewed upon this point, it will be seen that it
was too late for anybodj^ to raise this question. Of course any ques-
tion involving the junsdiotion of this court may be raised at any
time ; but on questions which do not involve itti jarisdiction, but only
facte pertaining thereto, no matter in what form of pleading these
facte get before it, it is too late, when hoth parties have so tendered
issues to be tried by this tribunal, for the defendant or for any mem-
ber of this court to prevent such trial; and this I shall show abun-
dantly by the authorities. If otherwise this tribunal, the most august
in the laud, supposed above all others capable of reaching to the
direct truth regardless of forms and ceremonies, has not the power of
a court of a justice of the peace; for I affirm that on the other side
not one authority can be found, in the whole range of authorities,
showing that when issues are joined on questions of fact before the
most inferior court it has not the power to try and determine them ;
and therefore the question amounte to this : Has this tribunal less
authority than the most inferior court in the United States, or in any
other land f

The first authority I introduce upon this point affirms this doctrine,
that the plaintiff in his replication may introduce new matter to for-
tify his declaration. Now what is the question before this court T The
very resolution gives us the victory m this regard ; it assumes that
such facte are in aid of a pertinent question before this court in sup-
port of its jurisdiction. I admit we could allege no new offense m
this wav ; we could tender no new or distinct issue upon the merits
as to the crime or misdemeanor which this defendant committed ;
but the question which he raises is a dilatory one, it is not one relating
at all to his guilt or his innocence. It is a question of jurisdiction.

He raises that question and affirms certain facte relating thereto ; and
we, in aid of that jurisdiction, bring in certain other facte relating
thereto. This is the tme statement of the case ; we did what we
have done in aid of the jurisdiction, and this the pleader may always

It was decided in Hallett vs, SUdell, 11 Johnson's Reporto, page 55,
and has been in other oases, that —

A plaintiff in his replication may introduce new matter to explain and fortify
his declaration.

I choose to read this to the court from the case in order that noth-
ing may bo taken upon what I have said, because while of course I
intend to state thin^ correctly, yet one may be mistaken in attempt-
ing to state the precise language from a book :

A. plaintiff in his replication may introduce now matter to explain and fortifvhis
declaration; and where such new matter is introduced, he may conclude wfth a
verification. (11 Johnson's Reports, page 55, tupra.)

I also call the attention of the court to Gould's Pleadings, chapter
3, section 170, page 142. This relates to a point which the counsel
suggested, and that is that in these pleadings we use the term " late
Secretary of War.'' I shall show presently in this argument that this
is utterly immaterial in any view of the case. We had the right to
state the precise fact, and if it appears, »s I think it most abundantly
will, that the law flakes no notice of fractions of a day and that by
well-settled principles and a long and unbroken series of decisions
he should have resigned the day before he was impeached in order to
escape the penalty of bis crime, yet I want to show to this court at
the outset that the word " late " makes no possible difference in deal-
ing with the facte and questions of this case. It is but surplusage,
though perhaps in one view a proper allegation. If mere surplusage,
this is the law :

Stirpluaage, by which is meant matter that is altogether superfluous and useless,
does not in general vitiate the pleadings, even in point of form, the maxim being
utiU per inxUUe non vitiatur. (Gould's Pleadings, cnaptw 3, section 170.)

It has been decided in Shook vs. Falton, 4 Cowen's Reports, page
424, that where two pleas were pleaded, neither of which was a de-
fense standing alone, though both joined together would be a defense,
yet if the plaintiff replied it cured the difficulty. What was the sit-
uation in that case, decided in the supreme court of the State of New
York under the old r4g\mef As the pleas put in separately did not
amount to a defense, the plaintiff could have demurred or coald have
made a motion to stiike out, and yet instead of this he joined issue and
cured tbe difficulty. When I show to this court, as I shall presently,
that on accoimt of ite high position and of the magnitude of the
questions which it has to decide, the ordinary rules of pleading do not
control it, then do not these cases from the common-law courte show
that this question of the form of pleading facte is one of no conse-
quence in this tribunal, having nothing to do with the question of
jurisdiction or with the real merite of the caset

The defendant in this case saw fit to raise the question of jurisdic-
tion, a jurisdiction which would be assumed, because this court, by
the Constitution of the land, is the conrt for the trial of impeach-
mente ; and therefore we were not compelled to allege ill the articles
that it had jurisdiction. It would have been entirely surplusage,
at least entirely unnecessary, to do so j and when the defendant stops
in and says this court has no jurisdiction on account of some fact per-
sonal to himself or otherwise, we have the right to do as we did do in
our second replication, state facte in aid of the jurisdiction, which
would be assumed, as before stated, until called in question.

On the qnestion of pleadings in this court I call attention in the
first place to Rawle on the Constitution, page 205, and the chapter on
impeachmente, in which he says :

Articles of impeachment need not be drawn up with the precision and strictness
of indictments. They must, however, bo distinct and intelligible. No'ono Is bound
to answer to a charge so obscure and ambiguous that it cannot be understood. Ad-
ditional articles may be exhibited perhaps at any stage of the prosecution, certainly
before the defendant has put in his answer or plea.

Now you will see, Senators,'one reason why I read the pleadings in
this case. Is there anything in these pleadings that is not distinct
and intelligible f Is there anything so obscure and ambiguous that
the defendant and his learned counsel did not understand the allega-
tions T Could the English language more correctly charge the brib-
ery and crimes which this man, if these articles are tme, has commit-
ted, than has been done in these articles ? And are not all the facte,
whether in the articles or in the replication or in the surrejoinder,
distinctly and fairly before this tribunal T And is this tribunal; in
the presence of this nation and of the world, to refuse to decide these
fact€ on the ground that the pleadings are not formal, when all of tbe
parties are l^fore it and have voluntarily waived all technical ob-
jections which might have been taken before joining issue T

Is this the tribunal to shelter itself behind such a technicality t I
apprehend not.

I call attention next to 1 Story's Commentaries on the Constitu-
tion, $808:

^ 8(^. The articles thus exhibited need not, and indeed do not, pursue the strict
form and accuracy of an indictment. They are sometimes quite general in the
form of the allegation : but always contain, or ought to contain, so much certainty
as to enable tho party to put himself upon the proper defense, and also, in case of
an acquittal to avail himself of it as a bar to another impeachment Additional
articles may be exhibited perhaps at any stage of the prosecution.

In regard to the question of additional articles, I will say there
never have been articles of impeachment drawn, so far as I have

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been able to discover — and I presame the researches of the connsel
on the other side has resulted m the same conclasion — without the res-
ervation of the rieht to present such fnrthtr articles as the House of
Common^ or the Hoose of Representatives might see fit to present.
I assume^ therefore, in this case that it will be held by the Senate that
unquestionably we might have presented further articles; and there-
fore, even if we had stated another offense, the matter would—if is-
sue had been taken — ^have been before this conii;. If we had charged
upon him a violation of duty in regard to some other post-tradership,
if we bad charged in the replication any other hi^h crime or misde-
meanor, and he, instead of objecting, had Joined issue, that question
^onld DO faifly before this court, Just as much as though presented
by additional articles. But we are not in this position, and need not
go to this length, because, I repeat, our position is that, he having
challenged the Jurisdiction of this court, we had the right to state
any fact in aid of that Jurisdiction. This principle is as old as the
common law. It is not a departure ; it is not a new assignment, as
the learned counsel suggestea; it has no relation to a departure ; it
has no relation to a new assignment. It is simply the statement of
facts, which could always have been stated in all the ages of the
common l%w, in aid of a fact alleged in the original articles, and
which the other side disputes.

Mr. MITCHELL. Mr. President, I should like to make an inquiry
of the manager which I send to the Chair.

The PR£1^D£NT pro tempore. The Senator from Oregon propoimds
an inquiry which will be read.

The Chief Clerk read as follows:

Does the doctrine of the law that the plaintiff may introduce new
matter to explain and fortify the position taken in the declaration
apply in criminal cases t

Mr. Manager LORD. It applies in cases of impeachment. This is
partly a civU and partlv a criminal proceeding. In all the modes of
procedure, this is a civil proceeding. In regard t<o the attitude of the
defendant and the punishment to be pronounced upon him, it may be
called a criminal proceeding; and perhaps I concede too much in sav-
ing this, because some writers have gone so far as to affirm that m
no sense is the removal and disqualification directed and allowed by
the Constitution a punishment ; they say these sentences simply pro-
tect the people a^inst themselves and against a bad and corrupt
officer after be is impeached ; the Constitution thrusts such a one out
of his office upon his conviction; and when he has been guilty of
crimes and misdemeanors which show that he is polluted, that he is
intrinsically dishonest, the Constitution permits the Senate to say
that ho shall be forever disqualified. Therefore we might say that
this is not a criminal proceedinf^ either in the sense of trial or of pun-
ishment; but inasmuch as rephcations and rejoinders and surrejoin-
ders are allowed, so far it is a civil proceeding. Who ever heard of
-a replication or a rejoinder or a surrejoinder or a «{i)itZi<^ under an
indictment t Therefore we are not to be brought within that narrow
range ; no legal right is to be crushed out of this case ; the defendant
i8 not to be permitted to eseape because in some of its analogies this
may be regarded as a criminal proceeding. I affirm in regara to the
pleadings that in all respects it is a civil proceeding, and more than
that^ that there is far more latitude, as I shall presently show, in tiiis
court than there is in any lower court in regard to pleading.

I call the attention of the court now to the report of a committee
of the British House of Commons, a learned and intelligent commit-
tee, a commitFtee which has made a report that will ^o down with the
ages, and I t^prehend be received as the law on this subject so long
as civilization exists. I call attention to Burke's Works, seventh vol-
nme, page 490, where the committee consider the '* rules of pleading in
coorta of impeachment." I never have heard yet of any rule as to
pleadings in a criminal court besides the indictment and the plea.
Sometimes a defendant puts in what we cal I a special plea. If a q ues-
tion of Jurisdiction is raised, it is usually raised ore tenue. But what
are the rules of pleading in this court t Such committee say :

Yoar committee do not And that any roles of pleadhie, as observed in the in-
ferior conrta, have ever obtained in the proceedings of the High ooart of Parliament,
in a caase or matter in which the whole procedure has been within their original
torisdiction. Nor does vonr committee nnd that any demnrrer or exooption as of
nine or erroneons pleading hath been over admitted to any impeachment in Par-
liament as not coming witnm the form of the pleading.

The members of this court know the distinguished ohmracter of Mr.
Walpole not only as a lawyer, but as a statesman.
Mr. Walpole said—
Page 497—

*' Tbofle learned gentlemen (Lord Wintonn's ooonsel) seem to forget in what court
they are. They nave taken np so much of yoar lordships' time In quoting of au-
thorities and using arguments to show your lordships wliat would quash an indict-
meut in the oonrts boiow, that they soem to forget tnoy are now in a court of Par-
liament, and on an impeachment of the Commons of Great Britain."

And page 501 —

A great writer on the criminal law, Justice Foster, in one of hts discourses, fully

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 16 of 172)