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and the other was in regard to the question whether the trials of im-
peachments should he had in the Supreme Court or in the Senate. I
do not think the precise question proposed by the Senator from Ohio
was debated in tbe convention at all. The doctrine of kingly im-
munity, I think, was not debated at all. The principal point in de-
bate was whether the power of impeachment snould be conferred in
regard to the President, whose tenure was only for a short term.

Mr. President, the question now pending before this court is not
prejudiced by even the opinion of the House. When the report of
the committee against this respondent was made in the House, tbe
proceedings which followed were not such as to give any weight to
the conclusion which was reached. Having referred on a n>rroer
occasion to the disorder amid which the impeachment of the respond-
ent in this case was carried, I will now refer to what was said by the
Speaker of the House upon the subject.

The Sfbakbb. The Chair is resolved thatthis solemn business shall not proceed
in such diiffraecfid diaorder, and be therefore appeals respectfully and personally
to every member upon this floor to aid him in restoring and maintainUig order.

That was my anthority for saying that these proceedings went on
in the House under a state of things denominated by the Speaker as
** disgraceful disorder.'^ If there be an^ appeal from the Speaker of
the House of Representatives, it certainly is not to the counsel for
Belknap. We are bound by tlie ruling of the Speaker on that ques-

Let me road the remarks of Mr. Hoar in the House, not so long
ago as to have been forgotten by him, in a proceeding which he de-
nominates judicial, a manager, too, on this occasion.

I thank the honorable manager for the suggestion made the other
day that, when the proceeding took place, he was acting judicially,
for that gives the more weight to the opinion he then expressed :

Mr. Hoar. Tbe division of this hour, the committee being unanimous in one
opinion, both republicans and democrats, seems to me to imply the opinion on tbe

fart of the chairman of the committee that it is in some way a political question,
utterly disclaim and repudiate such an idea. No person can be more desirous to
punish any public officer found guilty of a crime like this charged upon tbe late
Secretary of War than the republioan members of the House. I wish simply to call
attention to one matter. The gentleman from North Carolina [Mr. KouBDis] al-
luded to the ftMst of the hasty acceptance of this resignation.

That is, the resignation of Belknap—

This House solemnly determined in the case of Whittemore that the formal act
of resignation by the officer terminates the office, and that any American citisen
can lay down an office held bv him without the consent or acceptance of anybody
whatever ; it is a mere formal matter.

It is more than a matter of form to get into office, but according to
the ruling of the learned judge [Mr. Hoar] it is a mere matter of
form to get out. A mere resignation accomplishes this result.

Now, the gentleman from New York [Mr. Bass] savs he has not investigated the
question whether after the civil office has terminated the officer can be impeached,
out he thinks that the gentleman from North Carolina, [Mr. Robbuvb,] who said
he had not looked at the authorities, as I undsntood him, nas Investigated it more
than any other member of the committee.

Precisely what Mr. Robbins had read, this opinion of Judge Hoar
does not state. I proceed now with the opinion :

Now, Judge Story, after full discussion, lays down the doctrine that it cannot be

We certainly shall not hear from the managers that Judge Story
does not support the position for which we contend.

Now, Judge Story, after full discussion, lavs down the doctrine that it cannot be
done. In England any dtisen can be impeached, and therefore the English case of
Warren Hastings does not apply. In America no man can be impeached but a
civil officer, ana when he ceases to be a civil officer he ceases to be within the lit-
eral construction of the Constitution. In America the only judgment rendered is
removal from office as the principal with the incident of perpetual disqualification
to hold office, and the Constitution provides that the punishment of the offender
shall take pUuse as if the impeachment had been bad by trial before a jury and a

The judge (Mr. Hoar) proceeds :

Now, for these offenses there is provided in the statutes of the United States a
punishment of flue and imprisonment, and perpetual disqualification to hold office.
Now, sir, this man being out of office, and if found guiltv it being impossible t4>got
him back into another, Iprntesttiffainst this hoi haste without even having t ho testi-
mony printed, and determining the question whether it is expedient that all thu ati-
thority of this House shall be exercised, when it is very likely that when thi«t evi-
deufois print4>d i t may be found that t he House may adopt th«» conclusion to whleh th«»
committee have arrived ; but it seems to me unworthy of this great occasiou, and if

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I stand alone, I stand hero to say that this distinguished officer should not be im-
peached in this way under the provions question, without having the evidence in
print on which he is charged, without giving these gentlemen who are sworn to sup-
port the Constitution an opportunity to decide upon tlie question on which such a
Jurist as Jud^ Story has expressed an opinion.

Bat ftgainst this array of anthorittes, showing that a private citizen
cannot be impeached, the managers say that Belknap was in office at
the time of the impeachment. It is not denied that Belknap resigned,
and his resignation was accepted bv the President, at ten o'clock and
twenty minutes a. m., March 2, 1876 ; nor is it denied that the first
proceedings in the Honse in relation to him took place after three p.
m. of that day. But the managers say that, in legal contemplation,
he was in office at the time of impeachment, because the law will not
notice fractions of a day ; and, second, that he resigned to evade im-
peachment, and therefore was in office for the purpose of impeach-
ment after his resignation was accepted.

Fractions of a day I I did not suppose this case would be deter^
mined on a question of special pleading, or a fiction of law, until I
heard the argument of the learned manager [Mr. Lord] yesterday.
I supposed we could strike through the fog and place our feet upon
the solid rock of jurisdiction. But the managers propose to hola us
by a fiction. They maintain that, although the respondent had re-
signed, and his resignation had been accepted, nevertheless, this
court must decide that he was in office all day, and until after his
impeachment on the afternoon of that day, because this court cannot
distinguish between the forenoon and afternoon of a day.

Suppose a man is sentenced by a criminal court to be hanged at two
p. m. of a certain day ; and suppose the President pardonshim at ten
a. m. of that day. Must he be hanged at two p. m., because the law
knows no fraction of a day t We have heard of men being hanged
' on the gallows ; hanged at the yard-arm ; but we never heard of a
man being handed on the fraction of a day.

Suppose in time of war the colonel of a regiment is relieved from
duty, or his resignation accepted at nine o'clock in the morning, and
at four p. m. of the same aay the regiment is engaged in battle.
Could the colonel be court-martialed because he was not at the head
of his regiment at four o'elock t

But having answered the managers on the substance of their claim
of JurisdicHon, we shall not yield to their fictions.

Broom's Legal Maxims, page 122, says :

It haa indeed been affirmed as a broad general principle that " the truth is always
to prevail against fiction," and hence, although for some purposes the whole assizes
are to be considered as one legal day, " the court is bound. If reoulred for the pur-
pose of doing substantial Justice, to take notice that such legal day consists of sev-
eral natural days, or even of a friction of a day." Evidence may therefore be ad-
duced to show that an assignment of his goods by a felon, boiut/iiu made for a good
consideration, after the commission day of the assizes —

That is the term-
was in truth made before the day on which he wa« tried and convicted, and on
proof of such fact the property wiU be held to have passed by the assignment.

This matter is very fully discussed, exhaustively so, in 12 Common
Bench Reports, at page 55, the case of Whitaker vs, Wisbey. Maulo,
judge, in stating the opinion says :

Thia case has been argued before us in a very learned and elaborate manner.
Every authority which could have the remotest possible bearing upon the subject
has been referred to ; but I must own Uiat I have not throughout entertained the
slightest doubt The action was in trover, to which there was a plea of not pos-
sessed. The plaintiff claimed the goods in question undora deed of assignment exe-
cuted on the ifOth of March. 1851, bv Thomas Whitaker, the phdntiff's brether. It
appeared that Thomas Whitaker, the assignor, and George whitaker, his father,
were trie<l and convicted of felony at the last spring assizes for the county of Cam-
bridge : that the commiSi«ion day of the assizes was the 19th of Mareh ; and that
the trial and conviction of the prisoners took place on the 33d. The substantial
defendanta in this action were the corporation of Cambridge, who claimed as
irrantees of the goods and chattels of felons convict, &o. It was found by the Jury
that the conveyance under which the plaintiff claimed was executed bona fide and
for a valuable consideration ; and he had, no doubt, a good title, unless it was taken
away by the assignor's conviction.

Then he proceeds to consider the authorities, and affirms the doc-
trine to be found in the syllabus, which I will read :

An assisnment of a felon's goods, bona fUU made for a good consideration, after
the commission-day of the assizes, but before the day upon which he was actually
tried and convicted, will pass the property.

The particular point decided is of no consequence, but it contains
an examination and discussion of all the modem cases on the subject.
The question came before Judge Story, (2 Story's Reports, 571,) a case
remarkable for the clear manner in which the question was presented
to the court. The syllabus of the case is this :

The doctrine, that, in law, there is no fraction of a day. is a mere legal fiction, and
is true only in respect to oases where it will promote right and Justice.

By the Constitution of the United States, every bill takee eflbct as a law, from the
time when it is approved by the President, and then its effect is prospective and
not retrospective.

A petition for the benefit of the bankinpt act was filed In the district court on
the 3d day of Mnreh. 1(^4.1, about noon ; the act of the 3d of Mareh, 1843. repealing
the bankrupt act. passed Congress, and was approved by the President, late in the
evening of the same day. Held, that the court had iurisdiction of the petition at
the time when it was fifed and acted upon, and that it had full Jurisdiction to enter-
tain all proceedings thereon, to the close thereof, according to the provisions of the
bankrupt act.

I should say here that the repealing act saved all cases and permit-
ted them to proceed to final termination, which were commenced be-

fore the repeal of the act. This petition was filed about noon. The
act was not repealed till late in the evening, and Judge Story held
that he would take notice of the fraction of a day, and sustained the
proceeding— the jurisdiction of the court. This decision contains a
full examination of all the authorities on the question.

II. I come now to the question of the materiality of the issues of
fact Joined in this case upon pleadings subsequent to the articles of
impeachment ; or, to state the question in different terms, if a private
citizen cannot be impeached for offenses committed in an office pre-
viously held by him, or during the time he held a public office, can he
bo amenable to impeachment, provided he resigned the office for the
purpose of evading Impeachment t

In general, it may be said that the legal effect of an act which one
has a right to perform, and does perform, cannot be affected by the
motive which induced its performance. The respondent was Secre-
tary of War, and on the 2a day of March, 1876, at 10.20 a. m., he re-
signed, and the President accepted his resignation. It will be con-
ceded that from that moment he was out of the office and became a
private citizen. The consequences which result from his leaving the
office and becoming a private citizen attach absolutely to the resigna-
tion and acceptance. Whether he resigned because he was weary of
the office, dissatisfied with the compensation, or because he no longer
wished to perform the duties and meet the responsibilities and incur
the liabilities incident to a public officer, is immaterial as regards the
effect or consequence of his resignation. If, as I have endeavored to
show, no one who is a private citizen can be subject to impeachment,
then the only material question is whether or not Belknap ceased to
be Secretary of War on the 2d of March, at 10.20 in the forenoon, and
became a private citizen. If the resignation was only pretended, not
actual, if what took place between him and the President was a mere
sham and did not vacate the office of Secretary of War, then of course
he remained Secretary of War and subject to impeachment ; and if
this court should sustain jurisdiotion upon the ground that what took
place did not vacate the office, and on the final trial should acq^uit
Belknap of these charges, it would follow that Belknap, never havinj;
ceased to be S^retary of War and being acquitted of the charges, is
Secretary of War still, and he must be re-instated in the office. This
is a reductio ad aheurdum. For, proceeding upon the lesignacion as a
fact, the President has nominated and the Senate confirmed Mr. Taft
as successor to an office rendered vacant by Belknap's resignation.

The principle that the consequences of an act legally performed
attach to its importance, without regard to the motives which in-
duced it, is settled by the Supreme Court in McDonald r«. Smalley
and others, 1 Peters, 320. The Constitution and laws give the Fed-
eral courts jurisdiction over controversies between citizens of differ-
ent States. McArthur, a citizen of Ohio, claimed title to a piece of
land in that State which was also claimed by other citizens uf that
St'ate. Owing to a conflict of decisions between the State courts of
Obio and the circuit court of the United States for that district, Mc-
Arthur^s title would have been held void by the State courts and
valid in the United States court. And McArthur, to evade the juris-
diction of the State courts, conveyed the land to McDonald, a citizen
of Alabama, for a stipulated price, and received pai^meut. Suit was
brought by McDonald in the Federal court for Ohio, and the juris-
diction of the court was contested, and denied by that court, upon
the ground that the motive for the conveyance was to give the grantee
a 8tatM in the Federal court. The case was brought to the Supreme
Court, where Marshall, C. J., delivered the opinion. He says:

The single inouiry must be whether the oonreyanoe from HcArthur to McDon-
aid was real or nctitions. * * * The testimony shows, we think, a sale and con-
veyance to the plaintiff which was binding on both parties. * * * The motives
which induced nim [McArthur] to make th9 contract, whether Justiflable or cen-
surable, can have no influence on its validity. They wore such as had sufficient
influence with himself, and ho had a right to act upon theuL

And the court held that jurisdiction attached after the conveyance,
without regard to the motives which induced the conveyance. This
principle was repeated in Smith ra. Camochan, 7 Howard, page W8,

Suppose two citizens of the same State are involved in an impor-
tant controversy, and one of them, for the purpose of suing the other
in a Federal court, removes t-o another State, and commences suit in
the Federal court of the State from which he removed, is it not man-
ifest that the only question which could affect the jurisdiction would
be whether his removal was real or only colorable t If he had in fact
become a citizen of the other State, his right to sue in the Federal
court could not be questioned. If, on the^ontrary, he had only pre-
tended to remove, and had not actually removed, then he would remain
a citizen of the former State, and be incapable of invoking Federal
jurisdiction. Many years ago one of the nonorable managers, [Mr.
Lynde,] then a patriarch, and myself, a neophyte in the profession, in
our own State, were retained for a client in a controversy with a rail-
road company o€ that State. Under professional advice, the sound-
ness of which, I believe, never was questioned, he removed to Illinois,
and commenced and successfully prosecuted his suit in the Federal
court for Wisconsin. His removal was actual, and nobody denied the
consequence of his citizenship in Illinois, although everybody knew
that he had acquired that citizenship in order to enjoy the benefit
which it conferred upon him to sue in the Federal court for Wisconsin.

So in this case, Belknap having actually resigned, and his resig-
nation having been accepted, so as to vacate the office, as matter

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of fact ; having laid aside his official character, and resumed that of
a private citizen, is entitled to enpoy all the rights, privileges, and
immunities pertaining to private citizenship ; not the least of Tvhich,
I reckon, is exemption from the criminal jurisdiction of this court.
And heuc^ it follows that the issnes of fact joined in this cause, as to
-whether or not he resigned, and resumed the character of a private
citizen for the purpose of enjoying the immunity belonging to it, are
immaterial to the proper determination of this cause.

HI. Can the House of Representatives support the jurisdiction of
this court by new matter alleged in its pleadings subsequent to the
articles of impeachment t

This coort can only acquire Jurisdiction, in a proceeding of im-
peachment, by articles presented by the House, showing a case of
impeachable criminality; that is, a case where the act complained of
is impeachable, and the actor subject to impeachment. In other
words, the articles must be such as to require no aid from subsequent
pleadings. In this case the articles describe the respondent as " late
Secretary of War." Within the strictness of allegation required by
common law criminal courts such descriptio persons would not be
eqnivalent to an allegation that he was no longer in that office.
Therefore, and to meet the view sometimes entertained that a citizen
holding one office may be impeached for misconduct in another, we
interpMed the plea to the jurisdiction, stating affirmatively that, at
the time of impeachment, the respondent was not any officer of the
United States. He was impeached at the bar of the Senate — if formal
announcement that articles would be presented against him is an im-
peachment — on the 2d day of March, A. D. 1876. Some of the articles
charge that he continued to be Secretary of War to or until (I forget
which) the 2d day of March. This excludes the 2d day of March
from his holding office ; therefore, if we are right in contending that
only a person holding office can be impeached, the articles tail to
show a case within jurisdiction.

And I think it would have been safe for us to demur to the arti-
cles. But not wishing to take risks upon a technical construction, we
thought it safer to plead affirmatively the fact that the respondent
was not holding any office at the time of impeachment. Undoubt-
edly, to any plea of tl^e respondent in confession and avoidance of
the articles, the prosecution might have replind in confession and
avoidance ; but not so to a plea which, in substance, is a denial of .
any fact which should have been stated in the articles, to show juris-
diction. If the articles themselves are deficient in not stating any
fact necessary to entire jurisdiction, jurisdiction of the offense and
the offender, then this court never acquired jurisdiction.

It results from the fact that this court has only a special jurisdic-
tion, that the first pleading must show a case within the Jurisdiction.
This was held with regara to jurisdiction of circuit courts of the
United States in Brown t>«. Keene, 8 Peters, 112 ; Jackson r«. Ashton,
8 Peters, 148; Hodgson vs. Bowerbank, 5 Cranch, 303; Moseman r».
Higginson, 4 Dallas, 12 ; and Jackson V9, Twentyman, 2 Peters, 13G.

The honorable manager [Mr. Lord] yesterday referred us to two
cases,— 2 Chitty's Repori«, 367, and 2 Maulo & Selwyn, 75. These
-were actios of quo icarrantOj that is, civil suits to try the title to an
office, to ^ followed by a Judgment for damages and costs. The
court held, what everybody would concede, that resignation did not
preclude final judgment.

One Senator at least. Senator Howe, will remember a somewhat re-
markable case of this kind in our own State, where he happened to
he on the winning, and myself on the losing, side. I refer to the case
State on the relation of Bashford vs. Barstow. In this case, after the
court had declared its jurisdiction, the attorney-general came into
court, and filed a discontinuance.

But the court held that the case was really a civil cause, in favor of
the relator, against Barstow, who was in possession of the office ; that
the State had no interest in the question, and was only a formal party.

The learned manager also asserted that in a criminal cause there
conld be no such thing as a replication and rejoinder. If ho will take
the trouble to examine Wentworth's Pleadings he will find that he is
in error ; and if he wHl examine Archbold's Criminal Pleadings, he
will find the very forms from which we have drawn our pleiidings
Bubsequent to the plea in abatement.

Senators, I have performed my duty in the argument of this Ques-
tion ; and have but to thank you for the patient attention you have
given me. I consider this the most important question ever submitted
to a court in the United States. If we would avoid the convulsions
which disturb and disgrace South American republics, this jurisdic-
tion must be denied.

If, in the revolutions which occur in politics, an administration is
not only to be driven from power, but subjected to impeachment; if
political overthrow is to be followed by criminal convictions and
political disfranchisement, at the hands of an incoming administra-
tion, which is to take it« course in office, and in turn to be subjected
to like disgrace and condemnation, it will not bo long until impeach-
ments, instead of being the nation^s great effort to punish enormous
offeuders in the interests of the people, will be degraded, and only
perform the office of the guillotine upon displaced statesmen.

The PRESIDENT pro tempore. The managers will proceed. Sen-
ators will please give their attention.

Mr. Manager KNOTT. If the court please, Mr. President, in a gov-
ernment instituted by a fi-ee people for the preservation of their own

liberties, the protection of their own interests, and the promotion of
their own prosperity, it is certainly a matter of paramount conse-
quence that the amplest possible provision should be made for secur-
ing the purity and efficiency of its administration, not only by the
prompt removal of those who may be guilty of criminal misconduct
in office, but if necessary by signalizing their infamy, as Mr.. Hamil-
ton felicitously expresses it in one of his essays in the Federalist,
*' by a perpetual ostracism from the esteem, and confidence, and hon-
ors, and the emoluments of their country.''

So far as the executive and judicial departments of our own (Gov-
ernment are concerned, it is evident that the framers of our Feder^
Constitution intended to accomplish this important end through the
various provisions relating to tne subject of impeachment contained
in that mstrnment ; and the I'eal question now under consideration
is whether they failed to accomplish that object or not ; whether the
means devised by them for that purpose are sufficient to enable the

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 22 of 172)