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Senate, and thus escape the penalty due to his crimes? I will say
to him, moreover, and through him to that large and respectable class
of my fellow-citizens who need his eminent services in other tribu-
nals, that they may dismiss all fears that if the jurisdiction is sus-
tained in this case impeachments will be so frequent that he will be
employed during the remainder of his natural life defending cases of
that character in this court. I do not know that anybody in the
House of Representatives even suspects that there is to be any other
impeachment during the present Congress than the one here pending.
If the learned counsel knows of any other Cabinet officer who is mak-
ing preparations to flee the wrath to come, who is folding his tents,
like the Arab, to steal quietly away and dodge the jurisdiction, he
has more information I am sure than any gentleman of the House of
which I am an humble member. He will have plenty of leisure from
his duties in this forum to practice law in the Supreme Court, and
you, Senators, will have an abundance of time to transact the ordi-
nary legislative business of the country.

My attention is also called to a question propounded by the hon-
orable Senator from Oregon, [Mr. Mitchell :]

Tho CoDstitntion provides that when tho President of the United States is tried
on impeachment tho Chief Jastico shall preside. Snppoae a late President were
impeached for liigh crimes and misdemeanors oommiited while President, and pre-
sented at the bar of tho Senate for trial, who woold preside, the Chief Justice or
tho President of the Senate t

I suppose if such a case as that were to occur, and the question
should be presented at this bar in a practical shape, there might be
two opinions very plausibly urged. One party might very forcibly
insist that the Chief Justice should preside because the Constitution
says so. The other party might contend that there is no necessity
for that rule, the reason of the rule having ceased, that reason being
that if the Vice-President were to preside it might afford him an op-
I)ortunitv, or at least the temptation, to change the result of the
trial, and thus perhaps place himself in a higher office. As to myself,
while I would not hesit&te one moment tosay, as the venerable John
Quincy Adams did, that his amenability to impeachment goes with
him as one of the responsibilities he took upon himself when he en-
tered that high office to the end of his life, I would be, if a member
of the Senate, perhaps equally as clear that the Chief Justice ought
to preside, according to the letter of the Constitution. But that is
a question of practice and convenience. The Senate would settle
that matter, and from their decision there could be no appeal.
There is another case not provided for, and that is, who shall preside
in case the Vice-President is upon trial t Yet I suppose that no one
would pretend that the Vice-President could not be tried because
that is an open and unsettled question. These are simply matters
that will have to be settled by the Senate when the exigency arises.

Now, Mr. President and Senators, I have said all and perhaps more
than I ought to have said upon the ouestion under discussion. I am
content to leave it with you, perfectly confident that no large num-
ber of right-minded people will accuse the House of Representatives
of being either fools or traitors for sending it here, or denounce you
for cowardice or corruption, decide it as you will. Whatever your
decision ma^ be I trust it will be such as to redound to your own
credit as jurists and statesmen, bs well as to the permanent good of
our common country. *' I have neither action, nor utterance, nor
power of speech to stir men's blood ;'' and if I had, I have no appeal
to make to your passions or your prejudices. I cannot forget that I
stand in the presence of the most exalted tribunal known to the Con-
stitution of my country, sitting to determine one of the gravest
questions ever submitted to a human court ; not for this hour, but
for all time ; not for the weal or woe of this individual accused, but for
aught I know for the good or ill of generations yet unborn. I would
not therefore, if I could, obscure a single ray of the pure, bright,
light of truth and reason in which that question should be viewed.

I would not, if I could, by any undue influence cause tho balance
which should here be poised by the Arm, steady hand of rigid and
impartial justice to change "but in the estimation of a hair.''

I know not whether the inexorable pen of history will note the
transactions of this hour, but if it should^ I trust the record will be
in characters imperishable as tho rock-ribbed hills that the Amer-
ican Senate, unbiased by personal or party considerations, uninflu-
enced by private sympathies or popular prejudice, had the sterling
virtue to administer the law. In this sentiment I am sure I meet with
a cordial response in the bosom of the very distinguished counsel who
is to follow me, whose own contribution to the juridical literature
of our country — and he will pardon the impulse which inspires the
utterance — and whose manly, fearless, unbought vindication of the
majesty of that same law have achieved for nim a memorial in the
affectionate veneration of his country more priceless than sculplfured
marble and, I trust, more enduring than monumental brass.

Mr. THURMAN. I should like to know whether the counsel who
is next to speak would prefer a recess to be taken now or at the usual
hour of two o'clock.

Mr. BLACK. I prefer to go on, I think, now.

The PRESIDENT pro tempore. The Senate will now hear tho coun-
sel for the accused close the argument. Senators, please give atten-

Mr. BLACK. Mr. President and Senators I feel tho whole weight
of the responsibility cast upon me by being required to close this
argument. I do not mention this as an excuse for the imperfections
of the argument you are about to hear, but only to ask that if I in
my embarrassment or my haste or my imprudence should happen to
say something which I ought not to utter, you will visit the conse-
quences upon my head. Spare my client ; for he has already suffered
enough for the sins of other people.

Like my friend who has just concluded, I feel absolutely sure that
every member of this great tribunal desires to decide this cause as it
ought to be. It is a supreme necessity that the law should alwavs
be followed by those who have its administration in their hands.
This is particularly true of the fundamental law ] and if there be any
part of the Constitution itself which is more important than another,
it is that portion which marks the dividing line between the powers,
or what our friends call the prerogatives, of the Government on one
hand and the rights of individual citizens upon the other.

You know all this as well as I do. I need not say it. If it were
otherwise; if you were indifferent whether you decide rightly or
wrongly, nothing that I could say would have the effect of waking
you up to a sense of your duty and responsibilities. I shall therefore
come directly and at once to the subject before you without preface
or introduction.

There are three questions which have been raised :

First. General Belknap having relinquished his office by a resigna-
tion which the President accepted before this proceeding against him
began, did he thereby become a private citizen so as to exempt him
from the impeaching power of the House and the jurisdiction of the
Senate t

Second. If his resi^ation would -have that effect as a general rule,
is his right to plead it here gone when the House shows that he re-
signed under apprehension of impeachment and for the purpose of
avoiding it I

Third. C an an officer who is impeached while in office resign in the
midst of the trial and so stop the proceedings ? This is a mere specu-
lative point, not even analogous to any question which actually arises.
It must be perfectly manifest that when we show the total and original
want of jurisdiction over the party we prove nothing from which it fol-
lows that the same party could by his voluntary act defeat a jurisdic-
tion which has ali*eady attached and to which he has submitted him-
self. There being no fact in the case upon which this question can be
raised, it would be improper for you to determine and wrong for mo
to discuss it. If any one interrogates you upon it in your Judicial
capacity, your answer will be, or it ought to be, what Sir Edward
CoKe gave to the king when he assembled the twelve judges and de-
manded to know the determination they would make in a certain
case where the Crown had an interest. Eleven of the judges an-
swered, " We will of course decide as your majesty shall be graciously
pleased to desire;" but the great chief justice stood up and sai(I,
<< When the case arises in the ordinary course of procedure and is de-
bated before me, I shall then endeavor to do what it may seem lit and
proper for a judge to do. Further than that I decline to pledge my-
self." Coke was honored as you will not be honored, by being de-
posed from his office, by being compelled to pay a fine of £10,000,
and persecuted generally during the whole of that reign.

Tins last question, therefore, I shall not trouble you or myself by
discussing. The second needs very little attention. The strain of
the case is upon the first, namely, whether a man who has resigned
his office is to be still accounted a public officer for all the purposes of
an impeachment against him by the House and before the Senate.
On that subject, of course, we have the negative; and I will try to
maintain it if I am able to do so.

It is not necessary that I should repeat the arguments which you
have already heard from my colleague ; it would be a waste of your
time. I suppose I ought to answer the arguments of the managers ; and
yet there are some things said by them which I cannot reply to. The
honorable manager who spoke last on Saturday made tho most elabo-

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rate and carefully prepared oration that it has ever been my good
f ortone to hear. Or course it excited my admiration, as it did youi-s ;
l>ut it was filled for the most part with the bitterest abuse of the ac-
cused party and of other persons not here but absent and undefended.
I cannot have any objection that that gentleman should play the part
of Cicero in this proceeding ; but I do protest that he has no right to
make an imaginsuy Mark Antony out of General Belknap for the mere

Snrpose of having a subject for his philippic. He not only berated
im as guilty of everything set forth in tne articles, but he goes out
of his way and asserts that the whole country is full of public and
notorious corruption which disg^races her in the eyes of all the world.
Judges, members of Congress, city corporations, and railroad compa-
nies share with one another in the general infamy, and he gives the
scandalous hearsay that the President's intimate friends and com-
panions are tainted with the same base crimes. By his account, it
i<ill be more tolerable in the day of indgment for Soidom and Gomor-
rah than for these cities whose wickedness he has been watching.
Like Lot, his righteous soul has been vexed from day to day by these
iniquities. According to him, all classes of this country are welter-
ing together in one great mass of moral putrefaction. He scoffs at
the argument of my colleague as ^* the leers and the sophistry of the
criminal lawyer." If he were a criminal lawyer, which I suppose by his
sneer that he is not—if indeed he were any lawver at all — and go in a
court of ordinary jurisdiction, upon pretense of discussing questions
of law, and would attack the opposite party with unfounded abuse, and
at the same time give everybody else a lick with the rough side of
hia tongue, he would be gently reminded that he was traveling out of
the record, and if necessary he would be brought back to the point
with rather a sharp turn.

I know not what may be your rule when you.are sitting here in the
exercise of your ordinary function ; but it seems to me that when this
body resolves itself into a judicial tribunal, it ceases to be a proper

f»lace for that kind of oratory which " splits the ears of the ground-
ings " and calls down the claps from the galleries. If the gentleman
desires to show his virtue and the wickedness of other people, let him

fo to the hustings and call his beloved constituents around him.
'here his sonorous periods and his well-poised antitheses would ex-
cite universal admiration ; his friends shout themselves hoarse, and
throw up their caps as if they would hang them on the horns of the
moon. But this question of law is not to oe determined by the vitu-
peration of the managers. It may be that this is not a very good
world. It is generally supposed that there are things in it which need
correction; but the gentleman has no right to throw those things into
the balance here. He may want a victim, as he does no doubt, and
if he cannot get one according to law so much the worse for the law,
lor ho intends to have one anyhow. I think he believes in the maxim
that it is better ninety-nine guilty men should escape than that one
innocent man should suffer: but ne seems to think that more than
ninety-nine have escaped already, and that the turn of the innocent
man has come.

It is not a part of my duty to examine in det>ail the authorities
which have been cited on both sides ; but I shall refer to them in a
somewhat compendious way, merely that they may be recalled to
your memory.

Blount's case has been much spoken of. Why it should be so I am
at some loss to say, except for the purpose of showing that something
can be said on both sides of this question. But that does not ad-
vance us one step in the argument, since this case itself furnishes yon
with a demonstration that a great deal can be said on both sides. My
colleague who opened the case thought that because the judgment
of the courts sustained both the pleas it must be regardea as a de-
cision of the point raised by the second as well as the ^t. As be-
tween the parties that is the technical effect of the record ; but I
cannot conceal from myself that the turning-point of that case was
that Mr. Blount, being a Senator, was not a civil officer and never had
been, and therefore it madfi no sort of difference whether he had re-
signed or was still in office.

If the mere dicta of counsel can be considered a thing of value, then
why did not our friends on the other side take some notice of the
cj)inion expressed by Luther Martin on the impeachment of Jndgo
Chase t He was at that time the acknowledged head of the American
bar, and declared it to be his unqualified judgment (which was not
contradicted by anybody there^ that a person sSter going out of office
was not liable to impeachment for anything done while he was in. Dis-
tinguished members of this court, many of them on the most im-
portant occasion of their lives, the impeachment of President Johnson,
expressed that doctrine deliberately, simply, and plainly. The manag-
ers ignore that authority, and think it amounts to very little in compari-
son of what the counsel on the one side said in Blount's case in face
of a flat contradiction from the other side. They do introduce one
Return pronounced in another place, and they make much of it. The
manager from Massachusetts cited John Qumcy Adams, and coupled
the citation with as lofty a eulogy as one man can make upon another.
I, of course, do not detract from the merits of that distinguished man.
He must have had some attractive qualities, since he was considered
by a very large number of his countrymen fit to be set up as a candi-
date for President against him who was then the foremost man of all
this world. But the public history of Mr. Adams shows that he of
all men that ever lived was the least reliable upon a question of law.
He was too fond of personal controversy to care which side he took.

It appears from the citation itself that the general opinion of the
House as expressed by other members was that the power of impeach-
ment applied only to persons actually in office. Mr. Adams of course
opposed what everybody else believed to be true. Nothing indeed
would have given him greater pleasure than to be impeached. It
would have given him an opportunity to come over here and lay
about him right and left. His organ of combativeness was always
in a state of chronic inflammation. He enjoyed nothing so much as
he did the certaminis gaudia — the rapture of the strife. That was
the strongest passion of his qature. He tried to provoke a motion for
his own expulsion from the House, and that failing, he presented a
petition from some outside enemy to expel himself.

Another authority from the House of Representatives is cited by
one of my colleagues. But I confess I do not cUirn much by it. The
honorable manager who argues questions of jurisdiction in the form
of philippics against the accused, declared when this question was
first mooted that the House had no power and the Senate no jurisdic-
tion. We would regard that decision as very important if it had not
been reversed by the same high authority that made it.

It would be a great prop to our argument if he who put it under us
had not afterward knocked it away. But he had a right to change
his opinion. No man is bound to uve and die by the notion he may
take when a question like this is first presented to his mind, and no one
here or anywhere has a right to say that the change was not a con-
scientious one, or that he professes any opinions now which he does
not honestly and sincerely entertain. It is true that the change oc-
curred under circumstances of excitement and political terrorism not
very conducive to the formation of a sound judgment. He was sur-
rounded by a conflagration of auger and animosity. Paley was right
when he said that he must be either more or less than a man who re-
fuses to kindle in the general blaze. It is some honor to that gentle-
man that he was the last one to take fire, though when he did begin
to bum he proved to be rather more combustible than any of the rest.
[Laughter and applause in the galleries.]

Mr. DAVIS. I call attention to the disorder in the galleries.

The PRESIDENT pro tempore. The Chair will f ormafly remind the
occupants of the galleries that applause, either for or against, is out
of oraer. He trusts that due deference will be paid to the Senate ;
otherwise, the Chair will be compelled to vacate the galleries.

Mr. BLACK. We usually expect to find something on subjects of
this kind in the Federalist, showing what was in the minds of those
who urged the adoption of the Constitution upon the States and the
people ; and we do find a little there, not very much. Hamilton says
m one of his papers that this power of impeachment ^es an ** awful
discretion" to tne Senate, and calls the power in the House of Repre-
sentatives *^ a national inc^uest upon the public men of the country ;"
from which the inference is a perfectly fair one that he did not think
the House of Representatives could throw its drag-net over the whole
country and draw in every man, whether he was a public officer or a
private citizen, provided he had once held an office. There is no way
that I can conceive of in which they can make out that Hamilton was
wrong about that or that his remarks cover a case like this except in
the way taken by the chairman of the managers when he laid down
the broad doctrine that once an officer always an officer. But that
cannot be possibly true. When the gentleman [Mr. Lord] crossed
the bar and told me, with a severe countenance, that I was still a
public officer, it did not alarm me in the least, because I had a perfect
mward consciousness that I was not and had not been for fifteen
years in the public service. I was and I am a private citizen, clothed
with all the immunities and privileges of a private citizen ; and, what
is njiore, I can assure the gentleman that there is a fair prospect that
I shall, if I live, continue to enjoy that inestimable blessing for a good
while to come.

The debates in the convention have been carefully eviscerated by
my two colleagues, and it would be gilding refined gold for me to go
over the argument which they have made. Suffice it to say that there
is not in the whole of them a single trace to be found of any such
notion as that which is now urged by the managers.

There is no contemporaneous exposition of the Constitution which
favors their view. The debates in the State con ventions which adopted
the Constitution I would have thought might contain something
upon this subject. Perhaps ihey have not been very fully examined.
But there is one remark made by Gtovemor Johnstone, of North Car-
olina, a man whose blood and judgment were so well commingled
that liis opinion desei'ves great attention ; a simple statement of his
own views on this subject that is most impressive and most direct.
Among all the old writers on this subject nothing is clearer, more
impressive, or more direct than what he says ; and hero it is :

I never thoaght that impeaohmenta extended to any but oflScere of th«) United.
States. When yon look at the jadgmont to bo given on impeachments, you will Heo
that the pnnlshment goes no farther than to remove and ulsqaalify civil oiHcorB of
the United States who shall, on impeachment, bo convicted of high misdemeanors.
Removal from oflBoo is the punishment, to which is added f atnro disgualiflcatiou.
How could a man bo removed from office who had no office? — Fourth volume EL-
lioVt DcbaUt^ page 35.

Three distinguished jurist-s of this country have written elaborate
books on the Constitution : Rawle, Ser^eantj and Story. Sergeant
says absolutely nothing about this question ; it does not seem over to
have been raised in his mind. Rawle says what is the saniea^ noth-
ing. In describing who are subject to iuipeachment ho sa^ys it applies
to officers or those who have been in office. If ho had said it applies

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to officers and all those who have held office heretofore it would have
been something in their favor ; but the grammatical construction of
the sentence shows that he intended to oe as indefinite as possible.
But Story is outsiK)ken and plain ; you cannot doubt what he says.
It applies, in his judgment, only to persons in the actual possession
of offices.

We have, then, to support our view all the jurists, statesmen, and
text-writei^ except the counsel on one side of the Blount case and
John Quincy Adams, whose spirit of universal contradiction drove
him to the other side. Such also has been the uniform practice. We
have had several great ]>olitical revolutions in this country, when the
party previously occujjyinjyf the seats of power have been ariven out
with the wrath of their victorious enemies burning after them. As
they came in they were not sparing of their charges. Treason, cor-
ruption, and other crimes and misdemeanors were freely asserted.
Yet it does not appear to have ever entered into the head of any one
that the party coming in could subject their displaced opponents to
the power of impeachment. It is impossible to account for this with-
out supposing a universal opinion that no such power existed.

That 18 not all. There have been a great many particular cases in
which it was thought desirable to remove judges, who could be re-
moved in no other way. Investigations have been commenced in the
House of Representatives for that purpose ; and whenever a judcie,
pending the investigation, has resigned his office, the prosecution
was dropped.

Most of the States have provisions in their constitutions either ex-
actly like that in the Constitution of the United States or so nearly
resembling it that a construction of one is a construction of the other;
and this is notably true of Pennsylvania and New York.

In the former State, while instances have been numerous in which
impeachments were threatened or investigations begun with intent
to impeach, a resignation of the obnoxious officer always stopped the
proceeding. I think I know that this practice was founded in a be-
lief universal among judges, lawyers, legislators, and every class of
public men, that the power did not belong to any branch of the Gov-
ernment after the party accused went out of office. In New York the
power was not only never claimed, but it was expressly and most em-
phatically disclaimed on several memorable occasions. It was admit-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 34 of 172)