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directed not to proceed against him ; third, when from corrupt mo-
tives the same oraers would be given ; fourth, when, from party bias or
in supposed resistance of it, the same policy of inaction would be
adopted. In all such cases the official offender would go ** nn whipt of
justice'' if by his own will he could defeat impeachment by resi^a-
tion ; and impeachment as a practical remedy for securi^ against
great official crimes would cease to exist.

We have been pressed with the dangers liable to arise from uphold-
ing the jurisdiction. If it be admitt^ that this is a proper element
in the question it must be considered from both points of view. On
the one hand, it is asserted fhat it subjects all the people of the
United States who have held office to the power of impeachment
without limit of time, and that in tlie changes of party it may be-
come an instrument of persecution. But this presupposes that a ma-
jority of the elected Representatives of the people will have become
corrupt and that two-thirds of the Senators will also corruptly and
through perjury lend themselves to such schemes. When such a state
of society is reached, the power of impeachment will be among the
least of evils. On tne other hand, if the jurisdiction in such cases
as the present does not exist, the great remedy (for it is a remedy
rather than a punishment) of impeachment, carefully preserved in the
constitutions of all the States, will be shorn of all its value for the
protection of the people, as declared in the Constitution, against the
return to office of great offenders and against their pardon by a cor-
rupt or misguided Executive. In weighing these suggested dangers
on either side, can we hesitate in our choice f In every aspect of the
case that has been presented to my mind I cannot doubt that the juris-
diction of the Senate is complete.



Opini«a of Mr. IHaxey,

Delivered May 17, 1876.

Mr. MAXEY. William W. Belknap stands charged before the Sen-
ate sitting as a court of impeachment, by articles presented and ex-
hibited by the House of Representatives, with being guilty of high
crimes and misdemeanors committed in office while Secretary of War,
and is specifically charged in said articles with corruptly and unlaw-
fully taking and receiving money while Secretary of War, paid to him
with a view to influence his official action as such Secreta^, and that
be was so influenced in consideration thereof.

The respondent pleads to the jurisdiction of this court, and says
that I'cfore and at the time when the House of Representatives or-
dered 4]ind directed that he should be impeached at the bar of the
Senate and at the time when said articles of impeachment were pre-
sented <ind exhibited against him, he was not, nor has he since been,
nor is he now an officer of the United States, but at said times, is now,
and ever since has been a private* citizen of the United States and of
the State of Iowa.

Without analyzing the pleadings, it is sufficient to say that the
real question before the court is, Has the Senate, sitting as a court
of impeachment, the constitutional jurisdiction to hear and decide
this case? Here is a grave question of constitutional law wo are
called on to determine.

The Honse of BepTeeentatires * * * shall have the sole power of impeach-
ment. (Part of daoae 5, section 2, article 1, Conetitation.)

The Senate shall hare the sole power to try aU impeachments. (Part of daose
6, section 3, article 1, Constitntlon.)

The articles of impeachment were presented by the House. If the
House of Representatives had the constitutional power of impeach-
ment in the case at bar, the Senate undoubtedly has the sole i>ower
to try the impeachment; so that the (question presents itself: Was
the power of the Honse of Representatives constitutionally exercised
in the case at bar T

The Constitution does not in terms define impeachment. What-
ever meaning the word had at the adoption of the Constitution it
has now.

To ascertain this meaning we must ascertain what was understood
and acted on as its meaning by the States which framed and ratified
the Constitution and by the bodies in England— House of Lords and



House of Commons— possessing the sole power to try and the sole
power to impeach ; for from Great Britain we derived not only our
ideas of the common law but our ideas of parliamentary procedure,
our systems of practice and pleadinc^, our maxims and the meaning
of technical words and phrases ; and the meaning of impeachment,
as understood by the framers of the Constitution as derived from our
British ancestors at the adoption of the Constitution, it has to-day,
subject only to the limitations and restrictions of the Constitution.
The procedure is substantially the same as in the British Parliament.
The judgment is restricted.

Our Constitution, as I constnfe it, wisely subjects the person guilty
of an impeachable crime or misdemeanor committted while in office,
not only to impeachment for the official crime or misdemeanor com-
mitted while thus in office, but likewise to indictment, trial, judg-
ment, luid punishment according to law for the same crime or misde-
meanor, the same as any other criminal person. The processes are
essentially different, the forums different^ and the objects to be accom-
plished different. The person may be tried, convicted, and judgment
rendered against him oy the court of impeachment for his official
crimes, and yet he may not be indicted, tried, sentenced, and pun-
ished in the ordini^ course of law ; or he may be tried, convicted,
sentenced, and punished in the ordinary course of law, while for his
official crimes he may not be impeached. The two trials have no nec-
essary connection. Each, however, is a trial, when had, for a crim-
inal offense : The one for a grave official crime or misdemeanor com-
mitted in office ; the other for an offense against the ordinary criminal
laws of the land. The one is an extraordinary trial before a court
specially organissed under the Constitution for the very pni*pose of
investigating the official crimes and misdemeanors of which the ac-
cused may stand charged by articles of impeachment, and of deciding
without appeal that very case. When this court of impeachment has
performed its functions in that case, it is dissolved and ceases longer
to be a court. But the same person may, under the Constitution and .
by its special provisions, notwithstanding trial, conviction, and judg-
ment against him by the court of impeachment, be tried, convictea,
sentenced, and punished by a court of competent criminal jurisdiction
organized, not for this particular case^ but for the trial of all offend-
ers within its jurisdiction, and it continues to be such court after the
trial the same as before. An investigation of the nature of the judg-
ment pronounced by the court of impeachment will aid in the eluci-
dation and solution of the question of jurisdiction before the court.

It has been strenuously argued that the jnd^ent of the court of
impeachment, even to the full of the constitutional limit, inflicts no
punishment in the sense and meaning of the Constitution. If this be
correct, it logicall;^ follows that th^ trial before the couiii of impeach-
ment is not a criminal trial; for it would be vain to speak of a court
having criminal jurisdiction shorn of the power to punish. The law
never says or does a vain or useless thing or a foolish thing.

I think this is a grave error.

Judgment in cases of impeachment shall not extend farther than to removal
&om office, and disqoalification to hold and oqjoy any office of honor, trost. or profit
under the United States : hut the party convicted shall nevertheless bo liable and
subject to indictment, tnal, judgment, and punishment according to law. (Article
1, section 3, clause 7, Constitution.) •

We are not left in doubt as to the meaning of the word " convic-
tion," and the common acceptation and the legal definition are sub-
stantially the same.

Webster defines " conviction :"

The act of convicting ; the act of proving, finding, or ai\Judging guilty of an



Bouvier defines "conviction:"

That legal proceeding of record which asoortains the guilt of the party, and upon
which the sentence or Judgment is founded.

Webster defines '^ judgment" thus:

Judgment is the sentence of the law, pronounced by a court or a judge thereof,
upon a matter in issue in any cause before it ; Judicial determination ; decision of a
couit.

Bouvier defines "judgment" thus :

The decision or sentence of the law, given by a court of justice or other compe-
tent tribunal, as the result of proceedings instituted for the redress of an injury.

Now, we have in the clause of the Constitution last quoted the word
"judgment " in respect to impeachment, and the word " convicted,"
" party convicted " in the same connection, and we have the defini-
tion of conviction as that legalproceeding of record which ascertains
the guilt of the party, and upon which the sentence or judgment is
founded ; so that these apt and appropriate words with well-defined
meaning in criminal law are found in the seventh clause of section 3,
article 1, of the Constitution, limiting the extent of the judgment or
sentence on conviction in cases of impeachment, namely, that it
shall not extend further than to removal from office, and disqualifica-
tion to hold and enjoy any office of honor, trust, or profit under the
United States. It is a limitation on the judgment, and in no sense
touches the jurisdiction of the court. The highest punishment to
which the court can go in its judgment is fixed by the Constitution.
All under this, of the same nature as that fixed, is within the discre-
tion of the court. It is entirely discretionary with the court what
shall be the judgment, provided it is of the nature of that set ont in
the Constitution ; and provided it does not go further than the limit
fixed bv the Constitution, always making removal part of the judg-
ment if the party on trial holds a civil office under the United States.



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92



TRIAL OP WILLIAM W. BELKNAP.



But I am not confined to the words " conviction " and " jndffment ''
in Bapport of the position which I have advanced, namely, that this
is a tnal for a criminal offense, an official crime, by a constitutional
conrt with si>ecial criminal Jurisdiction, namely, the Senate sitting
as a court of impeachment, authorized by the Constitution to hear
and pronounce Judgment upon conviction.

In further support of this view I quote the following clause of the
Constitution :

The Predflent • * * shall have power to grant reprieres and pardons for
offenses against the Unite d States, except in cases of impeachment. (Part of
clanse 1, section 3, artide 9, Constitation.) •

In this connection I make the following extract from a decision of
the Supreme Court of the United States defining '* pardon ; " namely :

Pardon is an act of grace proceeding from the power introsted with the execution
of Jhe laws which exempts the individual from the punishment which the law in-
flicts for a crime he has committed, (7 Peters, page 150, the passage quoted on
page 100.

The position that Judgment in cases of imi>eachment inflicts no pun-
ishment is conclusively overthrown by the passage which I have Just
ouoted from United States vs, Wilson, in which the opinion was de-
bvered by Chief Justice Marshall.

Analyze the clanse of the Constitution last quoted in the light of
the above opinion of the Supreme Court, and by substitutiuff for
" pardon'' its meaning as defined by Chief Justice if arshall, speiudng
for the court, and we have :

The President shall have power to erant renrieves and exempt an indiridnal
from the punishment which the law inmcts for the crime he has committed, except
that in cases of impeachment he shall not have the power to exempt an inciividual
from the punishment which the law inflicts for the crime he has committed.

So that we have the apt and appropriate words of the criminal law,
"judgment" or "sentence," " conviction," " nardon," "punishment,"
" crime." " punishment," which the law " inflicts," Ac, for " crime,"
all nsea in respect to impeachment.

The conclusion to my mind is irresistible that this must be held a
trial for a criminal offense — an official crime ; that this conrt is a
court of special criminal Jurisdiction, with the power to inflict pun-
ishment upon conviction and Judgment, the extreme penalty or limit
of the Judgment consequent upon conviction being fixed by the Con-
stitution, beyond whicn the court cannot go.

If this be correct, and if there be nothme in the Constitution to
the contrary, and there is not, then the Jurudiction of this conrt to
hear, tiy, acquit, or convict, and pronounce Judgment of acquittal or
conviction according to the facts, attached instantly upon the alleged
commission of the crimes and misdemeanors imputed to the defend-
ant in the articles of impeachment.

The question of guilt or innocence has nothing whatever to do with
the question of Jurisdiction. If the House of Representatives had the
power to impeach upon the facts averred in the ar icles, this court
has Jurisdiction to try. And this Jurisdiction attaches in this court
according to the facts averred in the articles of impeachment, pre-
cisely as Jurisdiction attaches instantly to a court oi criminal juris-
diction according to the facts averred in the indictment. Jurisdic-
tion in both cases may lie dormant for want of discovery; but, for all
that, it exists, and the beginning of proceedings is simply setting in
action a pre-existing Jurisdiction. The Jurisdiction of an ordinary
criminal court may uso lie dormant for want of indictment, precisely
as the Jurisdiction of this court may lie dormant for want of articles
of impeachment : nevertheless Jurisdiction in each case vest« upon the
comimssion of tne offense. Jurisdiction once attached cannot be
divested by the act of the party inculpated so long as he may live.
The position of Blr. Rawle, that impeachment will lie against a per-
son " who is or has been " an officer of the United States, for a high
crime or misdemeanor committed while in office, is, in my Judgment,
correct and consonant with the great purposes sought to be accom-
plished by this grant of power in the Constitntion.

In the Virginia convention called to consider the Constitntion of
the United States, Mr. Madison, while discussing the treaty-making
IM>wer, referring to the President, said :

• * » Ifheshouldseduoeapartof the Senate to a participation in his crimes,
those who were not seduced would pronounce sentence against him; and there is
this supplementary security, that he may be convicted and punished afterward,
when otner members come into the Senate. one.third being excluded every seoond
year; so that there is a twofold security— the security of impeachment and con



tion, second edition, volume 3, page 516.

It follows for the reasons given, if they be sound, that the plea to
the Jurisdiction should be overruled.

Second:

Bach House may detennine the rules of ita proceedings. (Part of clause 9, section
5, article 1, Constitntion.)

The House of Representatives, under this warrant of the Constitu-
tion, and in order to facilitate and expedite busii^ess, has subdivided
itself into many committees, and among others a Committee on Ex-
penditures in the War Department. This committee, as appears by
the defendant's pleas, had this matter under investigation while he
was Secretary of War, with the defendant before them in person ;
had examined a witness, and were proceeding to investigate the mat-
ters charged against the defendant. It is true the defendant in the
Bome plea says that said oommittce had no authority from the House



of Representatives to investigate the charges against him, but I ap-
prehend this does not change the fact, nor the ratification of the
action of the committee by the House, nor the constitutional power
of the committee derived through the House. In my Judi;raetit the
proceedings begun, had their origin constitutionally, before that
committee.

Resolutions ordering articles of imx>eachment was another step, and
still another was taken by presenting and exhibiting articles of im-
peachment against the defendant at the bar of the Sena^ If, then,
the more circumscribed view is t-aken (to which I do not give my
assent) that Jurisdiction attached by the beginning of proceedings, it
attached when the investigation began before the committee, (of
which defendant had notice and appeared,) culminating in articles of
impeachment : and jurisdiction, having vested, could not be divested
by the act of the derendant, and thererore the plea to the Jurisdiction
should be overruled.

Third. I think it entirely immaterial whether the ppty against
whom articles of impeachment may be presented is in office or not at
the time they are found and exhibited.

The essential point is, Was he an officer of the United States at the
time the imputed crimes and misdemeanors set forth in the articles
are therein charged to have been committed by him as such officer f
If yea, the juriMliction of the court of imi>eachment instantly at-
tached and became vested by reason of the alleged commission of the
high crimes and misdemeanors in office, precisely as the Jurisdiction
of the criminal court instantly attached and became vested by the al-
leged commission of the crimes and misdemeanors against the law of
the land, considering him the same as any other criminal person. Both
jurisdictions spring out of the same %cts. There is no reason why
one Jurisdiction should attach before the other ; nor is there any more
reason why one Jurisdiction should be divested by the act of the party
more than the other. The admission of such doctrine renders the Con-
stitution in this regard a dead letter. Now we know that the incul-
pated party cannot divest the Jurisdiction of the ordinary court of
criminal Jurisdiction by his own act, neither can he divest the court
of impeachment of Jurisdiction of his official crimes by his own act.

The Blount case, (2 Annals of Congress,) to which reference has so
frequently been made, settles nothing in respect to this point. It
simply determines, and properly, that a Senator is not a -civil officer
of the United States, and therefore not impeachable, and this doubt-
less because his title and commission come from a State, and not from
the United States. This exposition, in my Judgment, is consonant
with right and reason. Not only so ; it is the recognized doctrine in
England, to which we must look in the absence of a definition of im-
peachment in the Constitution, and of authoritative precedents in
our own country.

The Constitution refers to impeachment without deflnin^r it. It assumes its ex.



istence, and silently points to Enctlish precedents for knowledge of dotalL (Pro<
f essor Dwight in sixth American Law Register, paf;o 357.)

Amongtho numerous English precedents which mi^ht be cited the
cases of Warren Hastings and Viscount Melville are m point. Both
had resigned their offices ; Melville while the subject-matter of his
delinquencies was under discussion, Hastings before proceedings had
begun. Hastings's trial was pending and had drawn to it unusual
attention and interest in Europe and America at the very time the
constitutional convention was in session. The debates in the conven-
tion on the question of the removability and disqualification by im-
peachment of the President throw much light on this subject. The
question there was not whether the Executive should be impeachable,
but whether he should be impeachable while in office. It seems not
to have been doubted that he could be impeached after his term ex-
pired. We must conclude that the framers of the Constitution had
the English precedente before them and had full knowledge that in
England the power of impeachment not only existed but was acted
on of impeaching persons after they had gone out of office as well as
while in office for crimes and misdemeanors committed in office. The
conclusion is irresistible that they jiccented the word impeachment
with its well-understood and recognized meaning, limiting only the
power of the conrt in its Judgment to removal and disqualification
and commanding remove on conviction where the impeached party
was a civil officer of the United States. The power of impeachment
beiuff restricted in the matter of Judgment^ and not otherwise, ac-
cordmg to all recognized rules of construction, no other restriction,
modification, or qualification was designed or made.

The trial by impeachment was, m my judgment, designed by the
Constitution to be a trial for official crime. The punishment is apt
and appropriate to official crime : removal from office and perpetual
disqualification. Removal from office relatively to perpetual dis-
qualification is a trifling matter. It is done almost every day, some-
times with, sometimes without, cause, and does not have perceptible
influence on the politicial or social standing of the officer removed
where trial is not had ; but the man under sentence of perpetual dis-
qualification to hold any office of honor, trust, or profit under the
United States is as completely ostracised from his fellows as the Man
in the Iron Mask was isolated in his lonely cell. The felon may be
pardoned ; the man disanalified by the judgment of the court of im-
peachment never. We know not what is the unpardonable sin which
excludes its perpetrator from all hope of entering the portals of
heaven, but tuis we do know, that a man who stands convicted of
high crimes and misdemeanors committed while in office, and is sent-



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TEIAL OF WILLIAM W. BELKNAP.



93



enced by the conrt of impeachment to perpetual disqaalifioation, is.
held by publio opinion to be a living, moving infamy, a moral leper,
Hhanned by his fellow-man and without hope of pardon this side the
grave.

And this supreme punishment is, in my judgment, inflicted not only
to get rid of a bad man in office, not only to prevent that man ever
being restored to office, but chiefly, by fearful example, to teach M
men that American institutions and the perpetuation of free soveru-
ment. of the people, by the people, and for the people, demand purity
in office. It says to all the world, in fearful langnagCj that he who
obtains office, however exalted be his social and political station,
and who betrays his sacred trust by the commission of official crime,
and upon fair trial is found guilty and sentenced by this court to
perpetual disqualification, unlike the ordinary felon, is beyond
pardon, because he has betrayed, to the hurt of all the people, a gnreat
trust. It teaches all men that the public offices of the land, to which
the humblest citizen may aspire, are forever closed against him, be-
cause he has been weighed in the balance and found wanting. The
Constitution intrusts tnis fearful power to no ordinary tribunS. The
character of this aneust court gives emphasis to the positions I have
presented. Two embassadors nom every State in this Federal Union
of co-equal States make up this august court, and it is not reason-
able and in consonance with human action that they vdll close the
eates forever to political preferment against an American citizen un-
leaa they can and ought in truth ana conscience to pronounce this

I have not discussed section 4, article 2, of the Constitution, to wit:
The President Yioe-PresideDt sod all civil oiBoera of the United States, shall be

removed from office on Impeachment for, and oonriotlon of, treason, bribery, or

other high crimes and misdemeanors.

This section, in my judgment, does not touch the question of Juris-
diction, nor the power of the court as to its judgment save as herein-
after stated. The jurisdiction is ample and unrestrioted by a former
clause:

The Senate shall have the sole power to try all impeachments.

The number of the court necessary to convict is also set out in a
former clause :

And no person shaU be convicted withoat the concnrrenoe of two>thirds of the
members present.

The nature and extent of the judgment is previously set out.

Judgment in cases of impeachment shall not extend farther than to removal from
office, and disqualification to hold and enjoy any office of honor, trost or profit
under the United States.

The fact that a party convicted by the court of impeachment can-
not plead this conviction in bar to a prosecution by indictment is also
set out

Bat the party convicted shall nevertheless be liable and sabject to indictment,



Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 44 of 172)