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tection to the people provided h^ the Constitution itself., and depend-
ing on the high discretion of this constitutional court, a statute pro-
vision, repealable at the will of the Legislature, can never be deemed
an equivalent. A constitutional disqualification intended to bar out
the guilty counselors of the Executive from a return to political power
can only be placed beyond the operation of an Executive pardon
when it is pronounced by the judgment of the Senate. The disquali-
fication provided by statute can only apply to that comparatively
narrow class of offenses which can be so foreseen as to be described
with reasonable certainty in ordinary criminal legislation. Impeach-
ment goes much further.

The whole constitutional theoiy of impeachment proceeds upon
the ^pround that, while conviction for crime may bo safely left to juries
and its punishment to the discretion of inferior courts, the protec-
tion of the American people against the return to office of the guilty
official has been deemed of importance enough to be attained by the
mechanism provided, by the Constitution of an inquest and impeach-
ment by the Representatives of the whole people and a judgment of
the Senate itself. It seems to me a monstrous absurdity to suppose
that this great constitutional remedy of a judgment against the re-
turn to office of a high political official on account of great political
obelises committed at the seat of Government should depend on con-
viction by a jury drawn by the marshal from the office-holding popu-
lation of the District of Columbia on a trial conducted and controlled
by officers of the executive, and on a sentence of a single judge of a
court, however respectable, whose jurisdiction is conhned within a
couple of square leagues.

Besides, there is certainly a grave constitutional difficulty in sup-
porting much of the legislation by which Congress has undertaken
to clothe the national courts with the power of imposing disqualiti-
cation to hold office as a punishment for crime. If it is to operate
as a disqualification to hold those offices whose qualifications are de-
fined by the Constitution, it is liable to the objection of declaring
persons disqualified whom the Constitution declares qualified. If it
is to operate upon persons holding office at the time of their conviction,
it places the power of removal from office in hands where the Consti-
tution has not placed it.

It is further argued that the dan^r of the return to office of per-
sons guilty of great political crimes is a visionary and not a real dan-
ger, because to their restoration to most of the important offices under
the Government the consent of the Senate is necessary. But there
are many to which it is not necessaiy. If the guilty public officer
whose cnmes are not discovered until the expiration of his term of
office or who lays down his office to escape conviction can thereby
avoid sentence, he of course thereby avoids trial, as the very form of
issue which we are now dealing with shows ; neither Senate nor peo-
ple nor President, to whom his claim for new confidence is presented,
can have the advantage of any judicial trial, of any inquest, of any
process for the discovery of concealed evidence, of any responsible
accuser, in determining the question of his former guilt!

It is further suggested, in very influential quarters, that it is the
duty of the executive officer by whom the guilty official has been ap-
pointed to withhold his acceptance of the resignation of such official
until conviction and judgment upon imiieachment can be had. This
suggestion has hardly enough reason in its favor to merit an answer.
In the first place. I deny that the right of any American citizen to lay
down an office depends upon any act of acceptance of any person
whatever. Any exi>licit and formal renunciation of the office by the
official terminates his relation to it without the consent of any person
whatsoever. This was lately held by the House of Bepresentatives
in the case of Whittemore, who resigned his seat in that body without
its consent when the vote on the question of his expulsion was about
to be taken. Does the right of the member of the Cabinet to resign
his place to accept a seat in the Senate depend upon the consent of
the President! Does the right of the members of this body to lay
down their high office, perhaps to assume some other even higher,
if there be any higher, depend upon its will f If this were true, must
the officer guilty of high crimes be left in charge of his office until
the House and the Senate meet and until judgment can be rendered
upon impeachment f Must a defaulting Treasurer of the United
States be left in charge of the whole Treasury until conviction and
Sentence? Should the Secretary of War have been forced to remain
in charge of the War Office until the close of this trial, a charge in
eluding the custody of the documents among the records of his De-
partment upon which his conviction may depend f The power given
by the statute to the President to suspend an officer only exists when
the Senate is not in session. The acceptance of a resignation^ a
mei-e formality, adding no validity whatever to the act. If ^Vpita
not so, it would be an imperative duty whenever the officer in whwS
the power of accepting it is lodged believed in the guilt of the party

There are some authorities, English and American, to the effect
that there ai-e certain public offices which cannot be resigned with-
out the consent of the appointing power or of some public board to

which the officer belongs. These cases proceed upon the ground that
the performance of an office to which the subject has been lawfully
called is a duty which he cannot refuse. Wherever that doctrine ex-
tends — that is, wherever in England or America it has been held that
the acceptance of somebody is necessary to a resignation— the citizen
elected or appointed is compellable by nuindamus to take the office
originally even against his wish. But the American law as applied
to offices not municipal or corporate is settled otherwise. (McCrary
on American Law of Elections, page 260 ; People vs. Porter, 6 Califor-
nia, page 2d ; United States vs, Wright, 1 McLean, page 512 : Gates vs,
Delaware County, 12 Iowa, page 405 ; Lewis vs, OG ver, 4 Abbott's
Practice, page 121.)

We are therefore bronghfc inexorably to the alternative that pro-
ceedings for impeachment can be instituted and go on notwithstand-
ing the withdrawal from office of the delinquent, or that the greater
part of a jurisdiction expressly confexved by the Constitution exists
and may be exercised, not at the discretiom of the Senate, but at the
discretion of the accused.

An argument is also drawn from the practice of criminal courts.
It is said that when a judgment is required by statute to be for two
things it cannot be for one of them alone, and that here the judgment
must be by the Constitution either for removal alone or for removal
and disqualification. The practice of criminal courts affords no rule
binding in this Chamber. Undoubtedly, the laws of common lustice
and common reason are of universal authority. Undoubtedly, you
can derive great aid in discovering and applying those rules from the
sages of the law. But beyond these simple precepts of universal ap-
plication, an attempt to entangle this high court, while exercising
its exalted functions, tn the technicalities of criminal practice, is, to
use Burke's comparison, " as if a rabbit that breeds four times a year
should attempt to prescribe the period necessary for the gestation of
an elephant.'^

Sach ooDfined and inapplicable rules wonld be oonTenient indeed to oppreesien,
to extortion, bribery, ana oorraption, bnt minoas to the people, whose protection is
the true object of all tribunals and of all their rvlea.—Burke't report nfeommiUeeto
inspect the Lord's jowtuUs.

Among the narrow, technical, artificial reasons suggested by the
practice of the police court, and of doubtful cogency even there, is
this doctrine. I do not believe that it will beadopted here, or be relied
on by the Senate as the foundation for a determination that where,
in the contemplation of the Constitution, the safety of the statQ en-
titles the people on demand of its representatives to a solemn resolu-
tion of the Senate that a high state offender shall be removed from
office and disqualified to return to it, the power to erect this barrier
is ts^en away because the removal has become impossible. '

But I do not admit that the Constitution requires this doable judg-
ment The judgment is, in either case, for one thing — a larger or a
lesser. It may be for removal simply. It may be for perpetual dis-
qualification simply, which includes removal.

Before dismissing this proposition of the defense, consider exactly
to what it would bring us. The proposition is that no judgment un-
der the Constitution can be rendered by the Senate which does not
remove from his place a person then holding a civil office under the
United States. It applies only to the time judgment is actually pro-
nounced. For all purposes of this argument for the defense, the con-
stitutional remedy is defeated just as much if the offender lay down
his office after the trial, after the opinions of Senators have been made
known, if the resignation be pleaded in arrest of judgment at any
time before Judgment be actually pronounced and enterod.

The defendant's construction of the Constitution, then, must be re-
jected, because it destroys for all practical value the most important
portion of the authority of the Senate sitting as a court of impeach-
ment, namely, the power to pronounce judgment of perpetual disqual-
ification. But — ^and this is the last point! shall have occasion to ad-
dress to the Senate — ^it must also he rejected because it leaves the
power of removal itself almost entirely destroyed.

The judgment of disqualification is one method of removal. Wher-
ever the officer has been re-elected or re-appointed, whenever he has
been promoted to a more importxuit office, wherever the evidence of
his crime is not discovered until after the term of office in which it
was committed has expired, or is discovered too late for proceedings of
impeachment, the public are without other redress. Suppose a Presi-
dent corruptly use his office to secure a re-election. Suppose a Vice-
President deal fraudulently with the returns. Suppose a Cabinet
officer is an accomplice in such misconduct of the President, or bo
guilty of bribery just at the close of his term and is re-appointed.
Is there no power reserved by the Constitution either to remove him
or punish him f

The claim practicallv limits the constitutional redress to offenses
committed during the first three years of a presidential term, unless it
be supposed that the President should call an extra session to take
steps for his own impeachment or that of his own counselors.

The impeachment of Andrew Johnson was resolved by the House on
the 24th of February, 1868 ; the final judgment of acquittal was pro-
nounced on the 28th of May, a period of throe months and four days,
precisely correspondiug in length with the short session of Congress
under our present arrangements. This does not include the time oc-
cupied by the House in obtaining the evidence, or in the debates which
C ceded the resolution of impeachment. This present impeachment
been pressed, I think, more rapidly than any other known in our

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bistoiy; yet nine weeks have already expired since it 1>e|^nn. This
fact shows that for any official misdemeanor committed in the lost
year of his office an impeachment and conviction of the President dur-
ing bis term will in most cases be found wholly impracticable. He
may have secured his re-election by unconstitutional or corrupt use of
Itis power, and the people, if he cannot be impeached after his term
expires, are wholly without remedy.

The destruction of the power to impeach carries with it the de-
struction of the power of tne House to make the inquest, leaving the
people wholly dependent for their protection on the executive power
of removal. This power does not extend to all cases. The Executive
may be deaf to charges of guilt against officers in whom he has trusted,
coming to him without authority and tested by no oomi>etent pro-
cesses of investi^tion.

It is said that it is a dangerous construction which leaves the pub-
lic officer exposed to impeachment during his whole natural life. But
if he be guilty and deserve impeachment he ought to be so exposed.
His safety against unjust prosecution or the revival of old political
offenses, which the public peace requires should be buried in oblivion,
is abundant. No impeachment can proceed unless both Houses concur.

The judgment of disqualification is clearly discretionary ; and the
Senate, in my judgment, may refuse even to take up for trial an im-
peachment presented by the House against an officer out of office in
which it is clear that in the exercise of iU discretion it would not
be expedient to impose a judgment on conviction. No impeachment
can proceed unless both Houses concur. No conviction can be had
bnt by two-thirds of the Senate. No judgment of disqualification
except in i ts discretion . When (jolitical passion breaks down all these
barriers there will be little else in the Rei)nblio worth saving.

Impeachment is not likely to be a favorite process with the Senate
or the House. There is no likelihood that we shall ever nnlimber this
olnmsy and bulky monster piece of ordnance to take aim at an ob-
ject £rom which all danger has gone by.

I wish to say a word or two in regard to the other question. I have
dealt<, as it was intended I should deal, chiefly with the main ques-
tion ; but, with regard to the (question presented so well by my honor-
able associate who opened this case, [Mr. Lord,] (and that is, where
the process of impeachment begins and the term of office ceases on
the same day, the law will deem that the resolution of impeachment
was adopted at the first moment of that day,) I will not undertake
to restate and I certainly cannot re-enforce what my distinguished
and able friend so admirably stated upon that subject ; but I desire
simply to say to the Senate that, if they will consult the authorities
citeid by my associate and the authorities cited by counsel for de-
fendant, they will find that the two classes of authorities do not in
the least a>nflict.

The principle is a principle in favor of judicial remedy. Every
judicial remedy will be held to have beg^n, everv judicial process,
whether it be judgment or suit, at that time in the day in which it
was instituted which is necessary for the preservation of the remedy
which it is designed to secure. That is the rule which aU these au-
thorities established, and the authorities where a day was divided
for the very purpose of preserving remedies and preventing their
defeat are those which have been cited by the counsel for the defense.

I perhaps ought to make one single observation, though itis hardly
necessary, in regard to the grave citation to the Senate of the instance
where a person is permitt^ to chang^e his domicile or to go across a
8tat« line for the purpose of instituting a lawsuit, and the attempt
to ext-end the analogies of those rules to the cases where a criminal
undertakes to flee from the penalties of his crime. Suppose a citizen
of the State of New York commit treason ngaiust that State and flee
into New Jersey, will the court be very likely, when he is brought
back for trial, to recognize the doctrine that because he can go over
. to New Jersey to bring a civil lawsuit he is equally protected by
the same logic in going into New Jersey to escape a criminal process
against himself t

I claim, then, to have established that the history of the formation
of the Constitution, the opinions of the best authorities, the letter of
the instrument, and the grand object it was intended to accomplish,
concur in requiring you to overrule this plea to your jurisdiction. To
allow it is to put out of your hands the bridle placed by the Consti-
tntion in the hands of the Senate as a controlling check upon execu-
tive usurpation and executive corruption — the bridle placed in your
hands by those men who looked through all ages, both the past and
the future, in their far-reaching, statesmanlike discretion, not to be
laid down by men with the experience of a single generation. This
judgment will not only determine this (question for all time for the
Senate, but it will speak with an authority not to be disregarded in
the construction of like clauses in the constitutions of more than
thirty American States. Throughout this broad lajid, under national
and State jurisdiction, the great constitutional power of impeach-
ment, the life of public liberty and of public purity^ is to be dwarfed
or maintained! in its fullest and most Ixsneficent vigor as you shall
decide this issue.

I do not stand here, Senators, as the accuser of Mr. Belknap, or as
the advocate of the House of Representatives. I am hero to si>eak for
a right of the American people ; a right which their ancestors secured
to them by their Constitution, and which nothing but their own con-
stitntionxil act can take away. It is that over every public officer.

whether he be tempted to abuse or usurp power or to gain wealth by
corrupt means in office, shall hang the droad of what the Federalist
calls the " awful discretion ^ of the Senate to try him in the presence
of the whole American people and to visit him with the perpetual
infamy of its sentence. For the citizen accused of crime is the grand
jury, and the indictment, and the statute of limitations, and the jury
trill, and the law enacted beforehand. For him is the maxim that
it is better that ten guilty escape than that one innocent perish.
But for the public officer who voluntarily seeks or accepts these vast
trusts, the safety of the whole state demands there shall be a higher
responsibility and another method of punishment.

r have thus, Senators, very imperfectly performed the duty assigned
to me by the House of Representatives. It has been a dull argument
of a dry question of law. Your decision, like every decision affecting
permanently the power and authority of the Senate, is to reach in its
consequences to a period very far distant in the future. But I am
much mistaken if there be not a very deep and present public interest
in this issue.

I said a little while ago that the Constitution had no safeguards to
throw away. You will judge whether the public events of to-day do
not admonish us to look well to all our securities to prevent or power to
punish the great- guilt of corruption in office. We must not confound
idle clamor with public opinion or accept the acousations of scandal
and malice instead of proof. But we shall make a worse mistake if,
because of the multitude of false and groundless charges against men
in high office, we fail to redress substantial grievances or to deal with
cases of actual guilt. The worst evil resulting from the indiscrimi-
nate attack of an unscrupulous press upon men in public station is
not that innocence suffers, but that crime escapes. Let scandal and
malice be encountered by pure and stainless lives. Let corruption and
bribery meet their lawful punishment.

My own public life has been a very brief and insijniificant one, ex-
tending little bevond the duration of a single teny of senatorial office.
But in that brief period I have seen five judges of a high court of the
United States driven from office by threats of impeaonment for cor-
niption or maladministration. I have heard the taunt, from friend-
liest lips, that when the United States presented herself in the East
to take part with the civilized world in generous competition in the
arts of life, the only product of her institutions in which she sur-
passed all others beyond question was her corruption. I have seen
m the State in the Union foremost in power and wealth four judges
of her courts impeached for corruption, and the political administra-
tion of her chief city become a disgrace and a by- word throughout
the world. I have seen the chairman of the Committee on MiBtary
Affairs in the House, now a distinguished member of this court, rise
in his place and demand the expulsion of four of his associates for
making sale of their official privilege of selecting the youths to be
educated at our great military school. When the greatest railroad of
the world, binding together the continent and uniting the two ^reat
seas which wash our shores, was finished, I have seen our national
triumph and exultation turned to bitterness and shame by the unani-
mous reports of three committees of Congress — two of the House and
one here — ^that eveiy step of that mighty enterprise had been taken
in fraud. I have heard in highest places the shameless doctrine
avowed by men grown old in public office that the true way by which
power should be gained in the Republic is to bribe the people with
the offices created for their service, and the true end for which it
should be used when gained is the promotion of selfish ambition and
the gratification of personal revenge. I have heard that suspicion
haunts the footsteps of the trusted companions of the President.

These things have passed into history. The Hallam or the Tacitus
or the Sisraondi or the Maoaulay who writes the annals of our time
will record them with his inexorable pen. And now, when a high
Cabinet officer, the constitutional ad viser of the Executive, flees from
office before charges of corruption, shall the historian add that the
Senate treated the demand of the jieople for its judgment of condem-
nation as a farce and laid down its high functions before the sophistries
and jeers of the criminal lawyer f Shall he speculate about tne petty
political calculations as to the effect on one party or the other which in-
duce<l his judges to connive at the escape of the great public criminal T
Or, on tiie other hand, shall he close the chapter by narrating how these
things were detected, reformed, and punished by constitutioual proc-
esses which the wisdom of our fathers devised for us, and the virtue
and purity of the people found their vindication in the justice of the
Senate t

Mr. EDMUNDS. I move that the Senate sitting for this trial ad-

Mr. SHERMAN. I ask the Senator whether we had not better fix
the hour on Monday a little earlier T

Mr. EDMUNDS. It is twelve o'clock by the rules. I will yield to
a motion to a4joum to eleven o'clock on Monday. I withdraw my
motion for that purpose.

Mr. SHERMAN. I should prefer to say ten o'clock, so as to cer-
tainly avoid a night session ; but in order to give counsel ample time
on both sides, I will say eleven o'clock.

The PRESIDENT pro tempore. The Senator from Ohio moves that
the Senate sitting for this trial adjourn until Monday at eleven o'clock.

The motion was agreed to ; and the Senate sitting for the trial of
imx>eachment adjourned to Monday next at eleven oxlock a. m.

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Monday, Ma/y 8, 1876.

The PRESIDENT pro tempore^ (at eleven o'clock, a. m ) The Sen-
ate sitting for the trial of the articles of impeachment against Will-
iam W. Belknap, pursuant to adjournment, now resumes its session.
The Sergeant-at-Arms will make proclamation.

The usual proclamation was made l)y the Sergeant-at-Arms.

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

The respondent appeared with his counsel, Messrs. Blair, Black, and

The PRESIDENT pro tempore. The Secretary will notify the House
that the Senate is ready to proceed with the trial.

Mr. MERRIMON. I move a call of the Senate.

The PRESIDENT iwo tempore. The Senator from North Carolina
moves a call of the Senate. The Chair hears no objection, and the
roll-call will proceed.

The Chief Clerk called the roll, and thirty-nine Senators answered
to their names.

The Secretary read the Journal of the proceedings of the Senate sit-
ting on Saturday last for the trial of the impeachment of William
W. Belknap.

The PRESIDENT. pro tempore. The Senate is now ready to hear
the managers. Senators will please give their attention.

Mr. Manager KNOTT. Mr. President, if the court please, in resum-
ing the remarks which it has devolved upon me to submit upon the
question under discussion, I need not promise the court that I shall be

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 31 of 172)