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removed f rotr office on impeachment for, and conviction of, treason, bribery, or other
high crimes and misdemeanors.

This language, it is insisted, necessarily implies that the person im-
peached must be in ofiice, because he cannot be removed from oflace
unless he be in office. Tbe reason given for the assumption is strictly
true, and the argument would be good if the sole object of impeach-
ment was to remove an ofiender from office. But just here is to be
found the fallacy, the sophistry, in the argument. It has to assume
as true that which is false in order to make its conclusion appear to
be sound, for it assumes that removal is the only purpose of impeach-
ment. Were this section the only one in the Constitution — that is, if
clauses 6 and 7, section 3, article 1, were not in the Constitution — the
ailment would be plausible, and only plausible. But when we take
all these sections together and construe them as a whole, we find the
conclusion of the respondent in direct conflict with the language in



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TRIAL OF WILLIAM W. BELKNAP.



359



article 1, section 3. For by the latter we find that remoral is not the
sole object of impeachment. It is not the limit of (ho Judgment. It
is but a small portion of the penalty that may be inflicted. The peo-
ple not only declared that a Federal civil officer, a President or Vice-
President, shall be removed on conviction, but they declared he might
be forever thereafter disquaXfied from holding any office of honor,
trnst, or profit under the United States. In construing statutes and
written constitutions it is the solemn dnty of courts to harmonize any
apparently conflicting portions, and not to place a construction on one
part that will annul any other, if it is possible t^ avoid such construc-
tion. To construe section 4, article 2, as respondent's counsel do is
to make void or ineffectual a portion of section 3, article 1. To say
that removal is the sole object of impeachment, is to say that the
clause which provides for disqualification is nugatory or void. Again,
to say that impeachment will not lie unless the offender be in office, is
to say that disqualification can never be ac^ndged unless thcaccused
will consent.

To say that the consent of an offender to impeachment and re-
moval and disqualification is necessary to jurisdiction, is to declare
that the Senate of the United States sitting as a court of impeach-
ment is the only court in Christendom whose jurisdiction, in a crim-
inal case, depends on the volition of the accused. To say that re-
moval is a condition-precedent to disqualification, is to make the con-
sent of every offender in Federal office a condition precedent to im-
peachment ; for he may or may not be impeached, as he may or may
not choose to resign. '

An attempt has been made to evade the conclusion that disqualifi-
cation may be adjudged without removal, by a resort to grammatical
construction. It is said the words "judgment • • * shall not
extend further than to removal and disqualification to hold and en-
joy any office'* necessarily mean that removal must precede disqual-
ification and be a part of the judgment. This, if true, would lead
to a sequence which no one can sanction. It is, that disqualification
must neccssarilv follow removal. For if, as is contended, the con-
junction "and" between the words "removal" and "disqualifica-
lion '' makes the two penalties parts of an indivisible judgment, then
disqualification must be adjudged whenever removal is. This would
lead to this absurd, harsh, cruel, and unjust consequence: that a
jndge who was unfit for his place by reason of intoxication, when im-
peached, must be disqualified forever from holding any other Federal
office. He could not be removed without being also disqualified.

Respondent contends that section 4, article S, is a limitation as to
offenders and offenses ; that no one except the officers therein enum-
erated can be impeached, and only for the crimes therein stated ; and
that only oj{oer«— that is, persons actually holding commissions— can
be impeached. And, as the logic of this position necessarily de-
manded, his counsel went to the extremity of maintainingthat after
impeachment, and at any moment before conviction, the officer could
drop his commission from his hand and escape Indgment of removal
and disqualification and any and all other possible penalty.

If this be true, it would seem that the people of the United States,
instead of devising a wise and certain and speedy method of getting
rid of public offenders and remaining rid of them and making exam-
ples of Utem as a terror to evil-doers in hich places, were engaged in
a game of thimblo-rig^ing with the most dangerous of all criminals
and permitting the criminals to play the game. They were careful
to see that ordinary criminals should not escape punishment by evad-
ing the courts through their own volition, but they intentionally of-
fered immunity to state offenders by telling them they cannot bo
impeached unless they consent. Is this a reasonable construction of
section 4, article 2f On the contrary, it is the most strained and un-
wise construction that could possibly be put upon it. The reasonable
view of all these provisions taken together is that section 4, article
2, simply declares and commands that when the President, Vice-Pres-
ident, and all civil officers, &c., are convicted on impeachment, they
shall be removed. They shall not receive any less penalty or sent-
ence.

The wise and patriotic men who framed the Constitution did not
intend to deal thus lightly with high offenders. They had seen to
what depths of degradation and extremities of danger the government
of Great Britain nad been carried and sunk by official corruption.
They had seen public offices sold for a price. They had seen ministers
of the Crown buying legislation as brokers buy stocks in the* open
market. They had seen much more of like character which I have
not time to even capitulate, and they knew that the only sure and
speedy remedy for an evil so great and dangerous to the state is by
impeachment. The danger of executive power and its insidious atl-
vances were known by them, and whether they intended to dally with
or rather to encourage such enormity, we can easily judge by a careful
Ktudy of the few words they uttered on this subject. They provided
that the higher the offender, the greater should be his punishment ; for
in addition to inflicting on an officer the usual penalty visited upon
ciiminals in private life, they provided that he should be carried by the
chosen representatives of the people to the loftiest station in tho gov-
ernment bo had dishonored, thereto be publicly branded in tho forehead
as unworthy of the confidence of his people and then to be tumoil loose
a wanderer, a by- word, and a hissing among, but to be not of, his fellow-
men. To make the proceeding most signal and the penalty most ex
omplary, they declared that for those high offenses no should not be
entitled, as of right, to trial by jury :



Tho trial of all crinuu, except in C29tv ofimpeaehment^ shall be by Jury. (Article
4, section i, cbuso 3.)

And that he should wear his disgrace and shame and outlawry to
the end of his days, they declared that after conviction no pardon, no
reprieve even, could ever reach him. In the face of all this, it is
gravely insisted that impeachment has no object but removal from
office ; that when the offender is out of office justice is appeased and
the right arm of the law is paralyzed ; and that it matters not whether
the office be vacated by self-amotion, or by judgment of this court, or
by executive onler, the result is the same to the law and the people.
The offender is removed, out of office, and cannot be disqualified, can-
not bo impeached, even though as President of the United States he
had committed treason ! This may be law, but it is certainly shock-
ing to common sense.

The cardinal mistake made by thoee who oppose jurisdiction in this
case is, that the power of impeachment must bo strictly construed
for the benefit of the people ; that being a delegated power, nothing
can bo taken except what is expressly and literally granted. In my
opinion, this is a strange rea<ling of the Constitution, and tends to
oppress the people and destroy their rights. Those who oppose juris-
diction treat impeachment by Parliament as if it wore a power of
the Crown— aprerogative of tho king. ^ They cite its abuse and con-
ceal its use. They refuse to see that it is a right and a power of the people
to be brought into action at their will on great occasions and to reach
enormous public cri me. The horrors of power abused in Great Bri tain
are paraded to chill the blood, and the power of impeachment is de-
picted as the greatest oppression of the English people. This is a
perversion of history. The House of Commons alone can impeach
and they are the immediate representatives of the people, and this
power LuEis always been put in action to protect some right of the
people, either infringed, or supposed to be infringed, by some one in
office. Was the danger or the oppression of impeachment one of the
evils from which our fathers fled to the New World f Was it one of
the causes whicb moved them to rebel in 1776 f Is this gigantic power
of omnipotent Parliament enumerated or even referred to by them in
their immortal bill of complaints! Nay, quite the contrary.

Our rebel fathers made no complaints against English law. They
did not condemn impeachment. They said nothing of danger to the
people by abuse of the arbitrary power of Parliament in trials by
impeachment. On the contrary, the Declaration of Independence is
the noblest eulogy on British law to be found in the English lan-
guage. Every paragraph is a protest against the king and his serv-
flo tools for the abuse of law. They wero content with tho law, but
rebellions against those appointed to administer the law. And when
the seven-years struggle was over, they 04}te8ted their admiration for
and satisfaction wiUi the laws of the kingdom' against which they
had rebelled, by incorporating the common law and the law of im-
peachment into their respective State constitutions. The Stat« of
Georgia adopt-ed by ordinance the common law of Groat Britain in
gross, and such of her statute law as was adapted to her form and
spirit of government, and invested her Legislature with the power
of Impeachment without any other definition than the word itself
brought with it from its residence in Parliament. And when after-
ward, in 1787, the same people who had made trial by impeachment
a part of the organic law of their several States adopted the Federal
Constitution, they again collectively attested their purpose not to
abandon this sacred right of defense against executive power, by im-
bedding it in that instrument. This they did when the most mem-
orable trial by impeachment in all history — that of Warren Hast-
ings—was in progress. He had laid aside his commission as governor-
general of India, was a private subject of the Crown, though princely
m the rich spoils of the East. With this notable instance of the
power of Parliament exerted against a private subject and with many
more of anterior date known to them, those wise statesmen, jealous
of personal liberty and private property and the pursuit of happiness,
ingrafted impeachment on the Constitution.

They were familiar with all English history and knew all tho
abuses of power as well as we do. They knew that the struggle for
human freedom has always been in all ages and all countries between
rulers and the ruled, between the many out of office and the few in
office, between subjects and the king, and that this warfare had con-
tinued almost without cessation in Great Britain for a thousand
years. They knew that executive power is ever aggressive on the
rights of the people, and that impeachment in Parliament was the
speediest and most effectual means of deliverance. And, finally, they
knew that impeachment was one of the dearest rights of a free peo-
ple, one of the strongest safeguards against corrupt government, and
with a full knowleclgeof what crimes had been committed by an
omnipotent Parliament, when, at long intervals, the people acting
through the Commons, solemnly determined that " the awful discre-
tion" inherent to impeachment was alone commensurate to and suffi-
cient for official crime, and with a like knowledge of tho necessity
for such protection for the people against official corruption, tho
people of tho United States determined that this right should be as
secure and lasting as the Constitution itself. They constructed it as
a forti*es8 of defense against the Federal Executive. They intended
it to be in tho naturoof a reserveil right, for unless it had been provide<l
for in the Constitution it is clear that the Executive of the Govei*n-
ment would have been placecl beyond the power of removal or dis-
qualification, and the people would have been unable to reach otlicial



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360



TRIAL OF WILLIAM W. BELKNAP.



cbrraptioD except throuch. the elective franchise, or to pojiish official
criminals except by trial by jury. And they hold it in reserve to be
used, as Hercnles used the river Peneus, in cleaning the incrusted cor-
mption of Federal office when all other means may prove unavailing.
And what is impeachment as it stands in the Constitution f With
all the light of its history in England to guide them, with their
knowledge that impeachment is to protect the people, and not to favor
officers, and having committ>ed its employment to their immediate
representatives, what limit did they set, if any, on the impeachment
in Parliament at which they were looking when they adopted it into
our organic law f If they had said Congress shall have the sole power
of pardon and stopped, who would say they had set any limit to it t
If they had given that power to Congress, except in cases of convic-
tion on impeachment, who would say that any limit was set to the
power except in the single instance of conviction on impeachment t
80, if the sole power to impeach and the power to try all impeach-
ments had been all on the subject, who would maintain that all power
of impeachment, as understood and practiced in Great Britain, had
not been conferred f

But, after conferring the power on the Honse to impeach withont
limitation, and the Senate to try all impeachments, they set certain
limits so as to modify and curtail the power as exercised in Parliar
ment. Let us see what those limits are.

First. Parliament has unlimited control, and on conviction can in-
flict any imaginable and capricious punishment. It can hang, draw,
quarter, banish, imprison, nne, sequcst'Cr, remove, disqualify, and all
tnis and more, by its own sentence. But in this our Constitution has
made two great changes.

First. It divides the jurisdiction for punishment between the Senato
and the common-law courts. It takes away the discretionary power
of Parliament to punish, which was and is so terrible. It limits the
power of the Senate to removal or disqualification, or to the inflic-
tion of any sentence of less consequence than removal or disnualifi-
oation. And it takes away all discretion as to any other punisnment
by saying that such punishment shall be inflicted according to law.
Thus the Jurisdiction of Parliament is divided between the Senate
and the courts ; but the discretion of Parliament is taken away from
the Senfte and the punishment made certain. The offender knows
the most he may receive on conviction before either the Senate or the
courts.

Second. They limited the danger to the accused by requiring the
concurrence of two-thirds of the Senators present to convict, whereas
a majority only was sufficient in the House of Lords.

Third. They limited the disqualification to hold office to any office
under the United States, and thus left the party convicted still qual-
ified to hold office under any State.

Fourth. They limited the right of the Vice-President to preside
over the Senate by placing the Chief Justice in his seat when the
President is tried ; thus showing their purpose to insure Justice to the
accused by delmrring ambition from the court of impeachment.

As the power of impeachment wt>uld have been as general as that of
the British Parliament, had it not been restricted, it must follow
that the defendant in this case must show that the restrictions named
in the Constitution cover and protect him. He must show either that
the jurisdiction of impeachment by Parliament does not extend to one
out of office by resignation, or that our Constitution limits jurisdiction
to those in office. The former he cannot show. The law, the prece-
dents, and practice are all against that theory. Are there any words
in the Constitution which will bear this construction f It is not pre-
tended that there areanjr words expressly so declaring.

Let us not forget that impeachment is intended to purify the state,
to rid the Oovemment of corruption in high places, and In no sense
to favor offenders, and that the only mercy intended to be shown to
the guilty has been provided for by the express limitations named
above, to wit, that two-thirds should convict, and that judgment
shall not extend beyond removal and disqualification. Let us not
forget that our fathers labored to protect the people, for thoy knew
that those in power need no protection.

At this late day shall their children declare that their labor was in
vain ; that their declaration of the power of imi>eachment is an idle
thre.at ; that they left the word impeachment undefined and inde-
finable ; that they equivocated with criminals by employing such
doubtful words as to invite them to seek safety by resigning their
commissions ; that they left the people no protection against high
crimes and misdemeanors except by the enactment of a penal code,
which would perpetually tax the ingenuity of man to frame in order
to meet the innumerable methods which the counter-ingenuity of
corrupt officials can devise in committing acts dangerous to the state
and the safety and liberty of the people ; that a President who has
levietl war against his country can nold his seat, witnessing his trial
by impeachment with indifference, and Just at the moment of convic-
tion announce his resi^ation and avoicl any and all visitation except
such as miffht be inflicted on the private citizen who had joined in
his treason T Shall we, by thus construing the Constitution, encour-
age corruption in high places t For one I will not, and for the rea-
sons I have given I hold that the Senate has jurisdiction to try the
respondent.

I am of opinion, farther, that the allegations made in the fi.ve seve-
ral articles of impeachment have been sustained by the evidence, and
that the respondent is guilty of each and all of the charges.



Opinion •f Mr. Sterensoa.

Mr. STEVENSON. Mr. President, I desire very briefly to state my
opinion on the pending preliminary question and the grounds upon
which it rests.

William W. Belknap was impeached by the House of Representa-
tives en the 2d day of March, 1876, for alleged bribery and corrup-
tion charged to have been committed by him while Secretary of War.

The resolution for his impeachment was passed upon the recom-
mendation of a regular committee of the House, after a thorongh in-
vestigation of the charges and the examination of several witnesses
in support of their truth, at which Belknap was present and of which
he had due notice.

Upon the day of his Impeachment, at ten o'clock and twenty min-
utes, after the report of the committee had been agreed upon, but
before the meeting of the House, the respondent resigned the office of
Secretary of War, which was immediately accepted by the President
of the lliiited States. The House of Representatives subsequently ap-
point<ed its managers and laid before the Senate articles of impeach-
ment, which set out with great precision the time, place, and circum-
stances under which the specific acts of bribery and corruption are
charged to have been committed.

The respondent appears in person and by counsel. He does not
deny the commission of the alleged offenses nor that they were im-
peachable crimes. He pleads that at and before the passage of the
resolntion for his impeachment he was not Secretary of War, and
neither then nor at any time since has he held any official position
under the Government of the United States, and he therefore denies
the jurisdiction of this court.

To this plea the House of Representatives filed two replications :

The first, traversing the facts of the plea by way of demnrrer.

The second, a special replication, setting up certain facts tending
to inipngn the validity of the resignation of the accused and going
to show that it was not made in good faith.

Respondent rejoined, demurring to the second replication of the
House of Representatives,* and for further rejoinder denies the truth
of the facts set up in the second replication and relies upon others
in avoidance of the charge that his resignation was colorable. To
this rejoinder there was a surrejoinder.

The conclusion which I have reached renders it wholly unneces-
sary for me to consider the question of fact presented by the repli-
cation or the rejoinder.

Assuming as I do, that the resignation of the accused was a legally
accomplished fact before the resolution for his impeachment was
passed, the question occurs: What legal effect did the voluntary res-
ignation of the respondent have upon the constitutional power of the
House to impeach or upon that of the Senate to try said impeachment f

This is a simple question of law ; one, wholly of first impression,
unsupported by precedent or direct authority : its solution lies, as I
conceive, in an extremely narrow compass. The importance of it«
right adjudication cannot however be overst-ated either in its personal
effect upon the accused, or in its far wider influence as a valid and
binding construction of the Constitution, upon the safety, rights, and
interests of the whole people of the United States, in whose name
this impeachment was instituted and on whose behalf it is now bi .og
prosecuted.

The jurisdictional power of this court rests upon the proper con-
struction of a few provisions of the Constitution, which it is better
that I should group together and quote literally, in the order in which
the> are found in that instrument.

The Constitution, article 1, section 2, declares that —

The House of Beprcsentatives * * * shall hftvc the sole power of Impeachmeot

The sixth clause of the third section of article 1 declares :

The Senate shall have the sole power to try all impeachments. When sitting for
that purpose, they shall be on oath or afBrrootion. When tho President of the
United States is tried, tho Chief Justice shall preside : and no person shall be con-
victed withont the concnrrence of two-thirds of tho members present.

Judgment in cases of impeachment shall not extend further than to removal from
office, and disqnaliflcation to hold and epjoy any office of honor, trust, or profit noder
the United Stotes ; but tho party convicted shall nevertheless be liable and 8at^)eot
to indictment, trial, Judgment, and punishment, according to law.

By section 4, article 2, the Constitution provides :

The President, Vice-President and all civfl officers of the Unitod States, shall be

removed from office on impeachment for, and conviction of, treason, bribery, or

other high crimes and misdemeanors.

The third clause of section 2, article 3, provides that —
The trial of all crimes, except in cases of impeachment, shall be by Jury.
The latter part of clause 1, section 2, article 2, declares :
Tho President • * * shall have power to grant reprieves and pardons for of-
fenses against the United States, except in cases of impeachment.

Tho clauses quoted contain every provision upon the subject of im-
peachment which is to be found in the Constitution.

That instrument created a free government of limited and enumer-
ated powers. Within the scope of its delegated authoritv, the Con-
stitution and the enactments made in pursuance thereof, become the
supreme law of the land. The Government acts alike upon the in-
dividual members of the body-politic, not less than upon the varied
classes of officials who constitute its oi^anization.

The power requisite to enforce obedience to its lawful mandates
not loss than the means to prevent any violation of , its express pro-



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 162 of 172)