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res|)ect from other citizens, please trace the distinction to the clause
of the Constitution, or to the principle in which it is found.

Mr. MITCHELL. I should like to submit an inquiry at this time,
80 as not to interrupt the managers after they proceed.

The Secretary read the question of Mr. Mitcukll, as follows :

The Constitution provides that when the President of the United
States is trietl on impeachment, the Chief Justice shall preside. Sup-
pose a late Pn^sident were impeached for high crimes and misdemean-
ors committed while President, and presented at the bar of the Senate
for trial, who would preside, the Chief Justice or the President of the'
Senate f

The PRESIDENT pro tempore. The Senate is now ready to hear
the managers. ^

Mr. Manager KNOTT. Mr. President

The PRESIDENT pro tempore. Senators will please give their at-

Mr. Manager KNOTT. When the Senate did me the very great
kindness to a<ljourn yesterday evening, I was suffering intensely from
a very painful affection of the eyes, with which I have been afflicted
for some time. I am sorry to say that I find myself in no better con-
d it ion this morning. By an arran^ment between my colleagues and
the counsel who is to conclude this argument, I ask the privilege of
the Senate to conclude muemarks on Monday, inasmuch as the ar-
gument will not be closea before that time, and that in the mean
time my colleagues who desire to be heard may proceed. If there is
no objection to that arrangement, I hope it will be made, as it would
be a matter of considerable inconvenience for me to go on at this

The PRESIDENT pro tempore. The Chair hears np objection to
that arrangement.

Mr. Manai^er JENKS. Mr. President and Senators, with reference
to the questions which have been submitted by the lionorable Sena-
tors, I will say that if in the course of the discussion of the subject,
as we shall enter upon it and conclude it, they are not answered, we
shall then take them into consideration. They will be considered in
the course of the argument before the managers shall have closed the
discussion. At present I conceive to a great extent they will be dis-
cussed in what 1 shall present in the btSy of my argument.

The resolution on which this discussion is progressing is the fol-
lowing :

That the Senate proceed first to hear and determine the question whether W. W.
Belknap, the respondent, is amenable to trial by impeachment for acts done as Sec-
retary of War. notwithstanding his resignation of said office: and that the man-
agers and counsel in snchnrgnmont discuss the question whether the issues of fact
are material, and whether the matters in support of the Jurisdiction alleged by the
llouse of Representatives in the pleadings subsequent to the articles of^impeach<
ment can be thus alleged if the same are not averred in said articles.

There are two main propositions involved in this resolution ; first,
whether the Senate, notwithstanding the resignati(m of the defend-
ant, can t<ake jurisdiction of this cfkuse ; and, second, whether the facts
surrounding nis resignation are pertinent to be considered with ref-
erence to the effect of that resignation. As a general answer to this,
we would say that any and every case should always be adjudged
upon its own standing, because yon can seldom, if ever, find two cases
that are strictly analogous. You cannot determine the effect of this
resignation without inquiring concerning all the facts and circum-
stances surrounding it. As was stated by the learned counsel for the

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defendant yesterday, the fact %rhether it was colorable or not micbt
he a pertinent question. The fact whether it was bona fide intended
that it should be really an existing resignation or whether it was only
a temporary resort to evade this proceeding, might be a material ques-
tion. Whether it is charged that that is so or not does not affect the
relevancy of the consideration of all the facts attending it ; lAit you
must judge every case upon its own merits, and whatever facts are
essential to arrive at a correct conclusion in that case should be taken
into consideration.

Of the second portion of this proposition, which is concerning the
collateral facts, I shall say but little, if anything, more than this :
It has been considered by the chairman of the managers ; he has ad-
vanced three or four propositions in support of the view that it is
material to consider all the surrounding facts. One of those proposi-
tions is, that in law there is no fraction of a day. He has cited au-
thorities to establish that ; that was the general rule, that in law
there is no fraction of a day. This being the general rule, an excep-
tion was introduced by the* honorable counsel for the defendant, that
is, that if it be necessary to subserve the purposes of justice, a court
will consider the fractions of a day. Then the matter stands thus :
As a rule, courts will not recognize the fractions of a d^y ; but as an
exception, if it be necessary to subserve the purposes of justice, they
will recognize the fractions of a day. Hence, when the counsel cited
those authorities to show that they would consider it as an exception,
it was essential to show that it was necessary to subserve the pur-
poses of justice to bring his case within the exception. He left off
just where the real contest began : is it necessary to subserve the pur-
poses of justice that this court should recognize the fractions of a day t
It seems to me that there is no necessity in subserving the purposes of
justice, that this court should recognize any fraction of a day. Put
the question in this form : How can it subserve the interests of jus-
tice, when a defendant is charged with having surreptitiously filched
from the pockets of from eight hundred to a thousand men from ten
to twenty-tive cents every day for five years, that that defendant shall
plead this as an excuse that the ends of justice arc subserved by rec-
ognizing the fractious of a day t If he had discussed this, and shown
that this defendant would have been wronged did you not consider
it. he would then have brought his case within the exception ; but,
having failed to do that, he leaves it as my colleague, the chairman, left
it; that is, that the general rule, if the defeu(iant have not brought
himself within the exception^ still exists, and the court will not rec-
ognize the fractions of a day.

With reference to the question of relation, that was not considered
at all by the counsel for the defendant, and we shall leave it as our
chairman has loft it, with you, and enter upon what to us seems to be
the main and material question in this cause, and one in which with
all deference we feel satisfied that the constitutional law sustains
our position. That is, has the Senate sitting as a court of impeach-
ment jurisdiction over a defendant who by his resignation after the
crime committed claims to bo placed beyond its jurisdictional powerf
Jurisdiction is limited in one or more of three ways. It is limited
territorially, or as to place ; it is limited as to subject-matter ; or it is
limited as to person. Territorially, jurisdiction may be waived or
may be conferred. As to subject-matter or as to person, it is .never
too' late to plead it, and it can neither be waived nor conferred at the
will of the parties. Then we will consideqghis in these three aspects.

Territorially, the Benate of the United States has jurisdiction co-ex-
tensive with the earth. Whether the offense be committed in Wash-
ington, London, Bome^ or Pekin does not affect the right to judge
the offender.

As to the character of the offense, it takes cognizance rightfully of
all impeachable offenses. As the plea in this case does not deny the
offense chared in the articles to be impeachable, it is unnecessary to
discuss what constitutes an impeachable offense, except so far as the
question may incidentally arise in determining the persons who are
criminally answerable before this tribunal.

In further illustration of this, we would here state that it does be-
come material to consider what impeachment means, in order to de-
termine how far the jurisdiction of this court extends as to persons.

By the prosecution it is maintained that any person who is or has
been a civil officer of the United States who while in office committed
an impeachable crime is before this court subject to trial and punish-

By the defense it is claimed that, if the criminal resign at or before
the time the proceedings for his punishment are instituted, thereby
tlie jurisdiction of the eonrt is ousted and the criminal as to the pun-
ishment consequent upon impeachment is forever discharged. The
antagonism between these two propositions is what the court by the
defendant's plea and the replicati<m on the part of the House of Rep-
resentatives and the people is called upon to settle. On account of
this issue the case unaer consideration is one of supreme importance.
On the one hand, if a criminal may commit a crime of character so
atrocious that the lives of thousands or the liberties of millions are
endangered or destroyed thereby and by his own act it will condone
the offense, then the power of impeachment granted by the Consti-
tution for the maintenance of official purity is a chimera, the august
tribunal established by the Constitution for its Judgment almost an
idle paceant.

On the other hand, if after the commission of an impeaohable
offense no life of purity, no years of penitent grief, no deeds of pa-

triotic devotion, can efface the stain, but the citizen must be forever
at the mercy of the prosecuting tribunal, until only in the rest of the
grave oblivion is found, then official life is truly one of grave respon-
sibility. To determine this contention no authority except the Con-
stitution can be adduced. Other courts, like the planets, may shed
their reflected light of precedent ; the musty volumes of historic lore
may afford analogies ; abjudications of similar tribunals may suggest

Earallels ; but from no source except the Constitution, illuminated
y the sunlight of reason, can the command come: Thus shall tlus
judgment be rendered.

In the second section of the first article of the Constitution it is
provided that —

The House of Bepresentatiyes * * * ahall have the aole power of impeach-

If the word " sole," which only qualifies the power by preventing
any other person or branch of the Government fnom exercising it were
left out, the clause would read :

The Honae of BepresentAtiyee tkaU have the power of impeaohment.

It is not a possible grant of power, but an absolute one. If this clause
had declared ''the House of Representatives may have the power''
it would indicate agrant that mightexist or might not, dependent ux)on
some contingency outside of the Constitution, such as the willingness
of the Senate to entertain the impeachment, or the willingness of the
defendant to be impeached, or many other contingencies that might be
imagined ; but the people In the oivanio law have said the power ihall
exist. Whatever that i)ower may be is granted, not in pai-t, not with
qualification, but in full plenitude, as the words signified at the time of
the formation of the Constitution, unless by some succeeding article
in the fundamental law that power is restricted. What the power of
impeachment consisted in will be considered as further progression is
made in the argument.

The present Inquiry will be, are there any restricting or limiting
clauses in the Constitution which take away any portion of that which
has been considered.

In the third section of the first article the court is constituted be-
fore which the power of the House of Eepresentatives shall be exer-
cised in the following words :

The Senate shall have the sole power to try all impeachments. When sitting for
that purposo, they shall be on oatn or affirmation. W hen the President of the United
States is tried, the Chief Justice sbiUl preside : and no person shall be conyicted
withont the concarrence of two-thirds ot the members present Judgment in cases
of impeachment shall not extend further than to removal from office, and disqual-
ification to hold and ei^oy any office of honor, trust, or profit under the United States;
but the party conyicted shall nevertheless be liable and sal^ectto indictment, trial,
judgment, and punislimentt according to law.

The first clause of this portion of the third section, ** the Senate shall
have solo power to try all impeachments,'' is the constitutional grant
of jurisdiction to this honorable court. Whatever or whoever is em-
braced in this grant may rightfully be called to answer at this bar.
In itself it is manifestly co-extensive with the power to impeach. And,
in that *' all impeachments " are expressly included in the grant, it
would seem to forbid that some who have committed impeachable
crimes could, by their own act or the act of any earthly power, place
themselves without the pale of this comprehensive declaration.

In addition to this ^pint of jurisdiction, the clause contains the
general rule of practice in this court: the judgment it may pronounce
and a limitation on the effect of that judgment. It will not be main-
tained that the second part which relates to the rule of practice
limits the generality of the grant. If any limitation is therein con-
tained, it must be found either in that which relates to the judgment
or in the limitation on the effect of that judgment. Does this lan-
guage, ''Judgment in cases of impeachment shall not extend further
than to removal from office and disqualification to hold and enjoy any
office of honor, trust, or profit under the United States," limit the
general jurisdiction contained in the first part of the clause which
includes **all impeaehmenUt " To effect this result it must operate as
an exception out of the previously-granted power, in that its pro-
visions are so contradictory that both cannot stand together.

It is not contradictory of the extent of the grant so as to forbid the
impeachment of one who at the time of trial or judgment held no of-
fice, as it only fixes the utmost limit to which the punishment may
extend. It does not require that the criminal shall be removed from
office, but, if the circumstances and criminality Justify, the judgment
may include a removal from office. If he be not in office that por-
tion of the judgment cannot be inflicted, but still whatever judgment
the circumstances warrant, not exceeding full discjualification, may
be imposed. Ho may be reprimanded ; he may be disqualified to hold
a judicial office, or a militaiy office only, or all offices, as may seem
just. This clause finds a striking parallel in most of the penal stat-
utes, which empower courts to impose a penalty of fine or imprison-
ment not beyond a given limit, or both, or either, in which case any
part of the penalty may be inflicted.

Under a similar constitutional power the senate of Pennsylvania, in
the trial of Judge Addison, who had l>een impeached for an impeach-
able crime in the discharge of a judicial oflace, sentenced him only
that he should not exercise under the Commonwealth of Pennsyl-
vania a judicial office during the term of his life. A strong and very
convincing argument was made in that case that the senSeuce need
not and shoula not go so far, but should only extend under the cir-
cumstances of the case to mere reprimand; and it seemed to be con-
ceded that under this clause a mere reprimand might have been given.

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and nothing further. So there are any number of punishments that
may be inflicted upon a defendant independently of that of removal
from office, still comiuK under the clause of disqualification to hold
An office.

And herein I would also notice this distinction, that the power to
disqualify from holding office does not, per «c, involve the necessity
to remove from office, because your sentence may not be that he shall
be disqualified from holding the particular office he is then enjoying ;
but he may be disqualified from holding some other office, or some
other sentence that the court ma^ see proper to inflict. That, then,
is not a correct construction of this clause of the Constitution which
Bays that disqualification necessarily involves removal from office,
because you need not give full disqualification, but only partial, as
your judgment. It is hence relieved from that notice taken by Judge
Story and to some extent conceded by others in their discussions of
this question.

Hence it does not seem to contravene the general grant of power.
The last part of this clause, which says, " but the party convicted
shall nevertheless be liable and su^oct to indictment, trial, judgment,
oud punishment according to law,'^ only guards against the pleading
of this offidalpuniskmeni tor official or impeachable crime as a defense in
the courts of law, and has no significance as a limitation of the power
of the court of impeachment.

The only remaining provision in the Constitution which requires
consideration in this stage of the inquiry is the fourth section of the
second article, which is:

Tb« PrMideot, Viee-PreMAent, and all civil officers of the United Stated, shftU be
removed from otlice on impeachment for, and conviction of, treason, bribery, or
other high crimes and misdemeanors.

Prior to the introduction of this section, the power of this court had
been declared to include **all impeachmenU" The mode of practice
had been in a general wa^ established ; it-s judgment had received its
limitations and qualifications ; the subject of the tribunal for impeach-
ment had been fuliy considered and finished. The second article, which
embraces the executive department of the Government, was then
taken up. The subject under consideration in this article in the
minds of the constituent delegates did not include the iurisdiction of
any court. They were providing a mode by which the several offi-
cers included in this department of the Government they then had
under consideration, in case their longer continuance in office should
endanper the Republic, should be removed. If this section were in-
tended aa a definition of the powers of the court of impeachment,
either as to the persons on whom these powers should be exercised or
the crimes of which it should take cognizance, the location is truly
remarkable. The naturalist would not be more surprised to find the
orange or palmetto-tree growing in full luxuriance in Greenland than
the constitutional commentator would be to find a section with such
an object among the powers and duties of the Executive. It is truly
thus located a rare exotic. Judge Story remarks :

By some strange inadvertence this part of the Constitution has been taken from
its natural connection, and with no great propriety arranged under the head wliich
embraces the organisation and rights and duties of the executive department —
atoryB Commentaries, volume 1, section 768.

We maintain that there is no njii«location ; it is not thrown out of
its regular order. The character of those who gave language to this
voice of the people, the Constitution, was so high, that it can scarcely
be conceived that they would be guilty of so illogical a thin^ as to
finish a court of impeachment, then step clear out of the judiciary,
Btep outiude of the duties of the Senate, step outside of the duties of
the court, and then distinctly in a separate clause define the powers
of a court which they had already fully delined ; because we maintain
that impeachment itself is a complete definition of those powers, and
a definition that in itself is amply sufficient for a limitation of juris-
diction and for the conferring of the ample powers of the grant.

Such a mislocation of this section is not conclusive that it is not a
new jurisdictional clause, but is sufficient to excite inquiry and sug-
gest a doubt. To sustain the plea to the jurisdiction in this case, this
clause must be construed —

First. To limit the grant of power to try " all impeachments " to
impeachments against civil officers; and to this I would call your
special attention, because that is all we propose to discuss especially.

Second. To such civil officers as shall at the date of and during the
trial choose to continue in office and abide the judgment of the court.
I say " during the trial," because if it be true that the removal from
office is the reason why this is a jurisdictional grant, the person im-
peached might, after you had gone through all the formalities of trial,
then resign and bid yon defiance and say, '^ You cannot remove me
from office; having no power to execute, you have no power to judge."
As we progress further in the argument, we shall show that this is in
opposition to every recognized, principle of law that has ever been
adopted in other judicatures.

Third. To change that clause of section 3 of article 1 so that in-
stead of leaving a discretion in the court as to the extent of the pun-
ishment, it wilirequire that in all cases of impeachments, on convic-
tion the defendant impeached must be removed from office. To this
I would call your attention also^ that the clause which conferred the
power upon the court clearly intended that there should be a discre-
tion in this court, at least in some cases ; and if there is a discretion
ID some oases to l>e left to this court, this clause cannot be a defini-
tion of the power of impeachment.

i I

Another assumption must follow, that all impeachments should be
limited to ^* treason, bribery, and other high crimes and misdemean-
ors," or all the prior assumptions are vain ; for if judgment of i-e-
movil from office be not such a necessary and indispensable part of
the judgment as to oust the Jurisdiction of the court m case it cannot
be rendered, still this section would leave the defendant liable to trial
and judgment by this tribunal. None of these postulates would be
granted ; but, on the contrary^ the better reason would as to each, it is
claimed, on careful examination be found to be in the negative. But
to enter fully into the discussion of each would require a more full
treatise on the subiect of parliamentary impeachment than either the
time or the necessities of this trial would permit or require. Hence,
except as they may incidentally occur in the consideration of the
second, no further notice will formally be taken of any of them.

The defendant was a civil officer of the United States at the time
of the commission of all the alleged crimes charged in the articles.
If his case be not included in the general jurisdictional clause grant-
ing the Senate power to try all impeachments, it must be because this
section is to operate as on exception out of the general power, in that
he is not now an officer of the United States, or as a proviso qualify-
ing it in such a way that it should be construed to read, '< the Senate
shall have power to try all impeachments, provided at the time of
trial the accused shall continue in office," or it must be a particular
clause repugnant to the generality of the grant. It need not be con-
sidered whether it be an exception or proviso, as its collocation for-
bids such a construction.

The only debatable ground is the question whether this clause is
repugnant to the general grant. The first power is that which is
placMl in the House of Representatives, which shall have " the sole
power of impeachment." This clause leaves it discretionary with the
House whether all impeachments shall be prosecuted or not, implying,
if the offense be trivial, the ott'ender insignificant, or the crime of rare
occurrence, the discretion will not be exercised. On the other hand,
if the offense be heinous, the offender conspicuous, and the crime
common ai?d polluting to the administration of government, this
tribunal shall be invoked to restore safety and purity.

The word " sole" forbids any private person to start the machinery
of impeachment and denies to all the world the right to legally dis-

C' e the propriety of the prosecution, if an impeachable crime has
n committed, after the House shall have determined upon insti-
tuting proceedings.

I should call your attention to this: that as the people have seen
proper to confer upon the House of Representatives the right to prose-
cute impeachment-s, and as that power must be conferred upon some-
body, they have assumed that the House will not exercise this dis-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 24 of 172)