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Mr. EDMUNDS. We had better fix it at twelve.

The PRESIDENT pro tempore. The question is on the motion of the
Senator from Tennessee that the Senate sitting in trial do now adjourn.

The motion was aCTeed to: and the Senate sitting for the trial of
the impeachment of W. W. Belknap a^ourned until to-morrow at
half past twelve o'clock.



Friday, May 5, 1876.



The PRESIDENT oro tempore having announced that the time had
arrived fer the consideration of the articles of impeachment asaiust
William W. Belknap, '

The usual proclamation was made by the Sorgeant-at-Arms.

The respondent appeared with his counsel, Mr. Blair, Mr. Black,
and Mr. Carpenter.

The managers on the part of the House of Representatives appeared
in the seats provided for them.

The PRESIDENT pro tempore. The Secretary will give the usnal
notice to the House of Representatives.

The Secretary rood the journal of the proceedings of the Senate
sitting yesterday for the trial of the impeachment of William W.
Belknap.

The PRESIDENT pro tempore. The Senate is now read f to proceed
with the trial. The counsel will now be heard. Senators wUl give
attention.

Mr. CARPENTER. Mr. President and Senators, under the order
made by the court I had hoped and expected that at least two of the
manag^ers would be heard before I should hifTe to address the Senate;
but this seems not to be convenient for them. The only real difficulty
I feel in presenting this case to the Senate is that it requires a more
vivid imagination than I possess to conceive what is to be said or
can be said by the other side.

Briefly, the attitude of the case is this :

The articles of impeachment charge that the respondent, Belknap,
was at one time Secretary of War. and, while holding that office, did
certain things which are declareu by said articles to be high crimes
and misdemeanors.

The respondent pleads to the jurisdiction of the court that, when
this proceeding was commenced, he was not an officer of the United
States, but was a private citizen.

The first replication avers that he was Secretary of War when he
committed the acts complained of, and the respondent has demurred.

A second replication by the House charges that after the acts were
committed the House had commenced an investiflratiou, with a view
to impeachment, and that the respondent, with full knowledge of the
factj resigned his office, with intent to evade impeachment. This
replication has closed in issnes of fact, which are pending for trial.

The court has ordered an argument in regard to the sufficiency of
the plea in abatement, the materiality of the issues of fact, and also
whether the House can support the jurisdiction by matters alleged
in subsequent pleadings, but not alleged in the articles of impeach-
ment.

I shall endeavor to maintain the following propositions :

1. That articles of impeachment cannot be entertained against a
private citizen in any case whatever.

2. That wherever articles of impeachment are exhibited, they must
set forth every fact essential to constitute a high crime or misde-
meanor, and every fact necessary to bring the case within the juris-
diction of the court; and

3. That the issues of fact arising upon the plea in abatement are
immatei-iaU

I. Can proceedings by impeachment be maintained against a pri-
vate citizen f
There are two theories of the Constitution in regard to impeachment.

1. That the provisions which g^ve the House the power to impeach,
and the Senat'C the sole power to try impeachments, confer a power
as broad as that before tnen exercised by the British Parlia-ment in
regard to the persons who may be impeached and the crimes for which
impeachment may be had. And that the provision, '' Judgment in
cases of impeachment shall not extend further than to removal from;
office, and disqualification to hold and enjoy any office," &c., is a
mere limitaiion upon the power to punish ; and that the pi-ovision,
" The President, Vice-President, and all civil officers of the Uniteu
States,shall be removed from office by impeachment, for,'' &c., merely
declares what the puuiuhment shall be, when the person impeached
happens to be such officer.

2. The other theory is, that impeachment, as authorized and regiw
lated by the Constitution, i« onlif a proceeding to remove an unworlhjf
public officer.



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38



TRIAL OF WILLIAM W. BELKNAP.



One or the other of those theories mnst be accepted ; there is no
middle ground. And the importance of jnd^g correctly which is
the proper construction cannot be exaggerated.

If the former theory be adopted, it will follow that every inhab-
itant of the United States, citizen or alien, male or female, may be
impeached for any conduct or transaction which, in the opinion of
the Senate for the time being, may be characterized as a high crime
or misdemeanor.

The Constitution provides —

1. The House of Representatives shall have the sole power of im-
peachment. (Article 1, section 2.)

2. The Senate shall have the sole power to try all impeachments,
and the judgment in such cases shall extend no further than to re-
moval from office and disqualifioatian to hold office.

3. But the party oojivictsd shall be liable to indictment, d;c. (Article
1, section 3.)

4. The President shall have no power to pardon in cases of impeach-
ment. (Article 2, section 2.)

These provisions regulate the accusation, trial, and judgment in
cases of impeachment, but do not determine who shall be subject to
impeachment, beyond the strong inference arising from article 1, sec-
tion 3, clause 7, which provides that the judgment shall not extend
beyond removal from office and diequalificalion to hold offi^se.
But this is settled by article 3, section 4, as follows:
The Proftident, Vioe-President, and all civil officers of the United States aball be
rtmovedfrom ojice on impeachment for and conviction of treason, &o.

There are a few fundamental principles never t-o be lost sight of in
any constitutional discussion. Sovereignty with us resides in the
people. They have delegated to the State govern ments the attributes
of sovereignty so far as deemed consistent with free institutions.
The Constitution of the United States establishes a government with
supreme powers over certain subjects. In other words, the sovereign
powers possessed by the people are distributed between the Federal
and State governments ; and it is well settled by the courts, and con-
ceded by all sound statesmen and good lawyers, that the State gov-
ernments possess all the p^owers consistent with free institutions,
except those which are denied to them by their own or the Federal
Constitution. That, whenever a power is denied to a State, the ob-
jection can be supported only by pointing out a constitutional pro-
hibition. But, on the other hand, the Federal Government possesses
no power not conferred by the Federal Constitution, either by ex-
press words or necessary implication. And by necessajy implication
only such powers are grantc^i as are essential to the execution of the
powers which are expressly granted. And, manifestly, a claim of
jurisdiction in this court, which, if conceded, would suoject forty
millions of people to its power in all matters of high crime or mis-
demeanor, must find support in clear grant in the Constitution, and
is not to be assumed upon forced construction or doubtful implica-
tion.

Bearing these principles in mind, if I can establish that no warrant
is found in the Constitution for impeachment of a private citizen in
any case whatever, this proceeding must fall. To say that a private
citizen may be impeached, but only for crimes committed in some of-
fice formerly held by him, would be to establish a distinction as arbi-
trary and capricious as to say he can only be impeached for crimes
committed by him while he was between thirty and forty years of
age. The question is whether a private citizen can be impeached at
all. If so, he may be impeached for whatever the Senate for the time
being may consider a high crime or misdemeinor, without regard to
the time, place, or circumstance of committing the offense.

I shall endeavor to show, from the text of the Constitution, from
the debates of the convention which framed it, contemporaneous writ-
ings of public men, ox>mmentaries of recognized authority, and the de-
cisions of this court, that the only office wliich impeachment can per-
form is reniowil from office or removal and dlsqnalification, in the dis-
cretion of the court. If I shall succeed in this endeavor, it will follow
that impeacliment can only be brought against one who is an officer
of the United States at the time of impeachment.

I shall first refer to the debates and proceedings of the Constitu-
tional Convention, which will be seen to shed a flood of light upon
this question.

After several plans had been submitted and discussed in Committee
of the Whole, the committee, on the 13th day of June, 1787, reported
to the convention a general scheme of the Constitution, in the form
of resolutions, nineteen in all. Two of these resolutions touch the
subject of impeachment.

The ninth resolution relates to the Executive ;— how he should be
elected, what his powers should be, to be ineligible a second time,
"and to he removable on impeachment and conviction of malpractice or neg-
lect of duty.*'

The thirteenth resolution was in regard to the judiciary, and pro-
posed "that the jurisdiction of the national judiciary shall extend to
all cases which respect the collection of the national revenue, impeach-
ments of any national oj^Ioer«, and questions which involve the national
peace and harmony." (2 Curtis's Constitution, pages 86, 87.)

Here, manifestly, impeachment is regarded as a proceeding lor the
removal of a public officer. The niutli resolution declares that the
President shall be removable on impeachment ; and the thirteenth,
which relates to the exercise of the power to try ini))eachments, is con-
fined to "imx>eachmeuts of any national officers."



Again, the ninth resolution proposes the removal of the President
" on impeachment and conviction of malpractice or neglect of duty."
That is, that the President should only bo impeached while in office,
because the object of impeachment was to remove him. In the thir-
teenth resolution the power is to try ** impeachments of any national
officers ; " not impeachment for misconduct in office, but impeach-
ments of national officers.

These resolutions exclude the idea that impeachment was intended
to reach any one not in office, because it is manifest that the power to
impeach could not extend beyond the power to try impeacnments ;
and this was confined to impeachment of officers.

On the 20th of July, the ninth resolution was considered by the
convention ; and the subject of impeachment was discussed quite at
length. Mr. Pinckney and Mr. Morris moved to strike out the clause
subjecting the President to removal by impeachment.

Mr. Pinckney observed he ought not to be impeached while in
office.

Mr. DAvni. If he be not impeachable -while in office, he will spare no eflbrts or
means whatever to i^et himself re-elected. He considered this as an essentia se-
cnrity for the good behavior of the Execative.

Mr. Wilson concurred in the necessity of making the Executive im-
peachable while in office.

Mr. MoBRis. He can <1o no criminal act withont coadjutors, -who mav be pan-
isheiL * * * Is the impeachment to snspend his functions f If it is not, the
mischief -will go on. If it is, the impeachment will be nearly equivalent to a dis-
placement, and -will render the Executive dependent on those who are to impeach.

Dr. Franklin was for retaining the clause as favorable to the Ex-
ecutive, upon the ground that, if not removable by impeachment,
recourse would be had to assassination, by which he would not only
be deprived of his life, but of all opportunity to vindicate bis char-
acter.

Mr. Madison thought impeachment necessary to defend the com-
munity against the incapacity, negligence, or perfidy of the Chief
Magistrate.

Mr. Gerry urged the necessity of impeaohments. A good magistrate
will not fear them ; a bad one ought to be kept in fear of them.

Mr. King maintained that only those officers who held during good
behavior ought to be impeached.

Mr. Randolph was in favor of impeachments as a check upon the
Executive ; especiaUy in time of war, when the military force, and in
some respects the public money, will be in his hands. Should no reg-
ular punishment be provided, it will be irregularly inflicted by tu-
mults and insurrections.

Dr. Franklin cited the bad conduct of the Dutch Stadtholder and
the evil which resulted from his not being ironeachable.

Mr. King remarked that the case of the Staatholder was not appli-
cable. He held his place for life, and was not periodically elected.
In the former case impeachments are proper to secure good behavior.
In the latter they are necessary.

Mr. Morris, at the conclusion of the debate, said that his views had
been changed by the discussion. The Executive ought to be i mpeach-
able. He should be punished not as a man, but as an officer, and pun-
ished only by degradation from his office.

And on the question, '* Shall the Executive be removable on im-
peachment," the vote by States was— yeas 8, nays 2.

This was the principal debate in the convention upon this subject,
and shows conclusively that no member of the convention entertained
the idea that impeachments should be employed against any but
public officers.

On the 6th of August the committee of detail reported their first
draught of the Constitution. It provided, (article 4, section 6:)

The House of Bepreeentatives shall have the sole power of impeachment

Article 10, section 2, provided :

He [the President] shall be removed from his office on impeachment by the House
of Repn^eentatiTes, and conviction, in the Supreme Courts of treason, bribery, or
corruption.

Article 11, section 3, extended thejurisdiotion of the Supreme Court
to ** the trial of impeachments of officers of the United States." And
section 5, article 11, contained the provision as to punishment, as it
now stands in the Constitution.

This draught of the Constitution clearly confines impeachment to
^* officers of the United States;" because the power to try impeach-
ments is so confined.

August 31, such parts of the Constitution as had been postponed,
and such parts of reports as had not been acted on, were referred to
a committee of eleven. This committee, on the 4th day of Septem-
ber, made a partial report, in which they recommended that the latter
part of section 2, article 10, should read as follows :

He [the President] shall bo removed from his office on impeachment by the House
of Ilcpresentatiroa, and conviction by the Senats^ for CrMMon or bribery.

The committee explained the reason for giving the power to try im-
peachmente to the Senate, instead of the Supreme Court, to be that
the judges would be appointed by the President, and therefore ought
not to try him on impeachment.

On the 8th of September the report was considered, and the provis-
ion as to impeachment of the President was amended, on motion of
Colonel Mason, by adding after the word " bribery " the wonls " other
high crimes and misdemeanors against the state." And for the word
*' .state " the words " United States " were substituted, to avoid am-
biguity.



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TRIAL OF WILLIAM W. BELKNAP.



39



Colonel Mason's first motion was, to insert after the word ** bribery "
the words " or raaladroinistration."

Mr. Madison objected to this term which, he said, was so vague that
the Pre«ideni's t«nnre wonld be during the pleasure of the Senate.

Mr. MORBiB. It will not be put in force, and can do no harm. An election of
every foaryeura wUlpw*event maladministration.

Colonel Mason then withdrew " maladministration,'' and substi-
tnted '' other high crimes and misdemeanors."

It is evident from this that the term *'high crimes and misde-
nieanoro '^ was used in the sense of official misconduct amounting to
crime or misdemeanor. The phrase was substituted for ** maladmin-
istrat ion " only because that word was too vague and general.

Aft«r this, on motion, and without debate, the following, " The
Vice-President, and other civil officers of the United States, shall be
nunoved from office on impeachment and conviction as aforesaid,"
was added to the clause on the subject of impeachments.

This left the provision of the Constitution as follows :

He (the President] shall be removed from bia office on impeachment by the Honse
of RepTeepntattvee and conviction by the Senate, for treaaon, briborj, and other
high crimes and misdemeanors against the United States. The Vice-President,
and other civil officers of the United States, shall be removed fi'om office on im-
peachment and conviction as aforesaid.

In this condition the matter went to the committee on style and
arrangement. This committee made its report on the 12th day of Sep-
teml>er, and their draught contained the provisions as finally adopted,
except that the words '^ or affirmation " were subsequently a<lded to
the requirement that Senators should be *' on oath" in the trial.

It is thus seen that not a word was uttered by any member of the
convention, and nothing appears in its proceedings, giving the slight-
est support to the theory that impeachment extends to any but those
who are holding office at the time of impeachment. It is manifest
that impeachment was intended as a method of removal from office,
fuid that the cause for removal from office should be official miscon-
duct.

These proceedings of the convention show conclusively that the
framersoi the Constitution intended to provide only for the impeach-
ment of those holding office, for misconduct in such office. And, if
the Constitution reaches private citizens, it is certain that it was not
intended to do so, and its framers failed to employ language to secure
the cud they had in view. Such charge has never yet been made,
und cannot be maintained, against those illustrious statesmen.

The only proper rule of construction, whether applied to a consti-
tution, a statute, or a contract^ is to ascertain the intention of those
who made it ; and, when such intention is ascertained, it must be car-
ried into efiect.

Upon no other principle can the jurisdiction of this court be main-
tained in any case whatever. If we are to consider the mere language,
apart from the intention of those who framed the Constitution and
the amendments, it is demonstrable that impeachment will not lie
even against a public officer for any act which falls within treason,
bribery, or other high crime or misdemeanor, created or defined by
any statute, or known to the common law. This is a startling prop-
osition, but clearly tenable upon construction of the language of the
Constitution and amendments, apart from the known intention of
those who framed and adopted them.

It is well known that the Constitution was not acceptable to many
of the States which ratified it ; and that it was ratified with the ox-
nect4ition that it would be immediately amended. And several of the
States, at the time of ratification, suggested amendments intended to
limit, and more carefully define, the powers of the General Govern-
ment. In accordance with this expectation the first Congress under
the Constitution proposed several amendments, which were ratified by
tbo States, materially changing the Constitution. But these amend-
ments have generally been regarded as though they had been con-
tained in the original instrument. Everybody understands that the
thirteenth, fourteenth, and fifteenth amendments have wrought ma-
terial changes. They were intended so to do, and are construed ac-
cordingly. And yet it is manifest that the first eleven amendments
fail within the same canons of judicial construction ; and that each
must be considered as repealing any provision of the original instru-
ment with which, when properly consti'ued, it conflicts.

Let us rnru now to the fifth and sixth ameodmcnts, and consider
their language, without regard to the intention with which, and the
objects for which, they were adopted.

The original Constitution provides in words, that officers of the
United Scutes may be impeached by the House and tried by the Sen-
ate, for treason^ bribery, or any other high crime or misdemeanor ; and
t bat, too, without regard to whether such ofiense was committed in an
office b}' misuse of its functions, or while holding an office, the offense
not being connected with the office ; or committed at any time even
previous to holding an office. And that the officer, after being trie4
by the Senate, and punished to the extent of removal, or removal and
disqualification, may be indicted, tried, and punished by the ordinary
conr»s of law for the same ofieuse. That is, he may be twice tried
and twice punished for the same oflenso.

The fifth and sixth amendments of the Constitution ai'e as follows :
AimcLB V.

So person shall be held to answer for a capital, or otherwino infamonx crime,
nuIt*<M on a prt^seutiuunt or iitdictmont of a grand Jury, except in casus arinin^; in
the land or nn\*al forces, or in the militia, when in actual service in time of war or



Gnbllc danger : nor shall any person be sob^cct for the same offense to l»e twice pnt
1 Jeopardy of life or limb : nor shall l>e compelled in any oriralmtl cim* to !>» a wit-
ness ajrainnt himself, nor lie deprived of life. lll>erty, or property, without dun proc-
ess of law; nor shall private property be taken for puoliAj use, without Just com-
Iiensation.

Abticlk VI.
In all criminal prosecations. the accused shall ei^oy the rl|;ht to a speedy and
public trial, hy an impartial Jury of the State and district whof-ein the crime Kh.iU
onve been ooinmitted, which d'strict shall have been previously ascertalueil by
law, and to be informed of the nature and cause of the accusation : to beconfrontflil
with the witnesses a^inst him; to have compulsory process for obtaining wit-
in his favor, and to have tlie assistanoe oi counsel for his defense.



"No person" — persons include every inhabitant of the United
States, citizen or alien, male or female, in office or not — " shall he
held to answer for a capital or otherwise infamous crime, unless upon
presentment or indictment of a grand jury, except in cases arising
in the land or naval forces, &,o.; nor shall any person be subject for
the same ofifense to be twice put in jeopardy, &c. * * * In all
criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial by an impartial jury," &c.

The respondent in this case is held to answer for an infamous crime,
without presentment or indictment of a grand jury ; and his case
did not arise in the land or naval forces, within the meaning of the
Constitution, even conceding him to have been in office at the time
of the impeachment. The Secretary of War is a civil, not a military,
officer. An impeachment is a criminal prosecution, and this trial is a
trial for crime. This is established by article 3, section 2, as follows :

The trial of all crimes, exeeptin ca»e» qf impeachment, shall be by Jury.

It cannot be denied that rhe fifth and sixth amendments, construed
according to the plain import of the language employed, is in con-
flict with and repeals the provisions of the original Constitution in
relation to impeachment. The crime of bribery, which these articles
are intended to charge, is made an indictable offense by the statutes
of the United States. And, if this court shall hold that only the lan-
guage shall be considered in construing the original Constiturion, the
same rnle must be applied to these amendments, and the power of
impeachment is abolished. There would be no escape from this re-
sult, under these amendments; but that we know as m.itter of his-
tory they were not so intended.

If I could show that it was objected to the ratification of the Con-
stitution that the power of impeachment ought not to exist ; that an
officer of the United States ought not to be liable to be twice put
in jeopardy before different tribunals ; if I could read the debates in
Congress when these amendments were proposed, showing that fth-
was intended to abolish impeachment, no one would deny that the
language of the amen Iments was a<leqnat« to the purpose. And rhe
only possible answer to the proposition that impeachment is alM>l-
ished by the amendments, is that they were not designed to produce



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