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mate effect, whatever his motive might have been, nor can that be in-
quired into.

These views render the other point contained in the resolution of
the Senate in relation to the pleading, immaterial, and I therefore
express no opinion npon it.

in conclusion, I must express my thauks for the indulgence of the
Senate, and my regret that I have been compelled to differ with so
many able Senators whose legal opinions I always respect and with
whom I have generally agreed.

Remarks of Mr, ChriBtianoy on the resolution offered by km May 29, 1876.

The question recurring on the second resolution of Mr. Thurman,
as amended,

Mr. CHRISTIANCY moved to amend the said resolution by strik-
ing out all after the word " resolved^ and in lien thereof inserting:

Whereas the Constitution of the United States provides that no person shall be
convicted on iinpeachment without the concurrence of two.thirds of the members
pn^sent ; and whereas more than one-third of all the members of the Senate have
already pronounced their conviction that they have no right or power to ac^udge
or try a citizen holding no public ofllce or trust when impeached by the House of
Representatives ; aud whereas the respondent, W. W. Belknap, was not when im-
poached an officer, but a private citizen of the United States, and of the State of
Iowa; and whereas said Belknap has, since proceedings of impeachment were com>
mencetl agamst him, been indicted and now awaits trial before a Judicial court
for the same offenses charsed in the articles of impeachment, which indictment is
pursuant to a statute requiring in case of conviction (in addition to fine and im-

Erisonmcnt) an fiction of the utmost Judgment which can foUow impeachment
1 any case, namel)', disqualification ever again to hold office:
Reiolved, That in view of the foregoing facts it is inexpedient to proceed further
in the case.

Mr. CHRISTIANCY. Mr. President, it being now manifest that
considerably more than one-third of the Senators present on this trial
believe there is no jurisdiction in the Senate to try this impeachment,
I think the resolution I have submitted makes the proper disposition
of the case. I do not propose to argue the question at length, but to
state briefly my reasons for this conclusion.
The Constitution declares that —

No person shall be convicted without the concuirence of two-thirds of the mem*
hers present

What is necessary to, and what is included in, the conviction here
alluded to f But one answer can be given to this question, and that
is, every constituent element, both of law and fact, necessary to con-
stitute a valid conviction ; and the flrpt and roost important of nil
these is the jurisdiction of the tribunal before whom the trial is to be
had and the conviction pn^nounced, the right and power to try the
case at all or to declare the conviction. If there be no such juris-
diction, no such power to try, any determination we may make,
any conviction we may pronounce, will be simply orittiim /ti/mw, so
much empty air; for there will be no power t-o swear a witness in
the cause and all testimony of witnesses, though given undiT the
forms of an oath, must be extr^Jndicial, without the sanction of an

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oath, and therefore not evidence which this trihunal have a right to
hear or to act upon. From these considerations it is manifest that
this question of jurisdiction » though a question of law, is inseparably
connected with, and involved in, every question of fact which may
arise in the cause.

It is fallacious, therefore, to say that this, being a mere question of
law, may be determined by a bare majority, and that the only con-
currence of two-thirds required by the Constitution is upon the facts
of the case or those facts and the law which would be applicable to
them on the hypothesis that we have jurisdiction.

AH the questions which can ever arise in any trial are questions of
law, questions of fact, and questions of the application of the law to
the facts ; and these last are mixed questions of law and fact, when
the same person or body which finds the facts also applies the law
to the facts and declares the combined result of both, like a jury in
giving a general verdict.

But there is this difference between a jury and the Senate sitting
as a court of impeachment, that the jury in matters of law are sub-
ject to the instruction of the court presiding over their deliberations
and giving them instructions upon the law which they are bound to
follow ; and in giving their general verdict they find the facts and
apply to them the law as given them by the court. Besides, a jury
have generally a right to decline the application of the law to the
facts by finding^ special verdict setting forth the facts found and
leaving the courrto apply the law.

But m the Senate, on the trial of an impeachment, no such division
of functions as to law and fact can be had. No court or officer pre-
sides over us with power to give instructions upon or to determine
matters of law.

Every Senator, upon a trial on the merits, acts in the double capac-
ity of judge and juror, and must for himself determine both the law
and the facts and apply the one to the other according to his own
convictions and judgment. And certainly no Senator can be any
more bound by the opinion of any other Senator or any number of
Senators upon a question of law than upon a question of fact. Each
must not only draw his own inference from the evidence, but must
apply that evidence to the law as he understands it to be.

It would therefore be just as absurd, under the constitutional pro-
vision requiring the coucurrence of two-thirds to convict, to hold
that a bare majority have a right to bind the minority upon questions
of law as to hold that they have the right to bind them upon matters
of fact. Propositions of law are as much involved and as. essential
elements in a valid conviction as propositions of fact, and they are.
involved in every step taken on the triaL And if this were not so,
if a bare majority could control the minority upon questions of law
arising upon the trial of an impeachment, such bare majority might
also in many cases establish every element essential to a valid con-
viction in opposition to more than one-third of the Senate.

Let us consider some of the phases of the case and the questions
which must naturally be expected and which usually occur upon a
trial. On a trial upon the factu in the present case questions of the
admissibility and of the materiality of evidence must naturally be
expected to arise and almost unavoidably do arise upon all trials of
the kind. These are questions of law. Now a bare mtgority think
any particular testimony or piece of evidence offered admissible or
material, as the case may be, but more than one-third of the Senate
think it inadmissible or immaterial.

The bare majority, no doubt, may admit the evidence, but, in con-
sidering its effect upon the case, the minority, if they act upon their
own convictions, will of course pay no attention to the evidence or
give it any effect. Will any Senator claim that this minority are
bound to disregard their own convictions as to the effect of such evi-
dence because the majority hold that effect to be different f Are the
minority, I mean, bound thus to yield to the majority when the result
is declared upon the question of guilt or innocence T Would not this
be allowing a bare majority to control as well upon the facts as upon
the law T And would not this effectually fritter away the whole sub-
stance and effect of the provision requiring the concuiTence of two-
thirds to convict f

If, then, the decision of a bare majority in admitting evidence
which the minority think inadmissible or immaterial cannot control
the minority as to the effect of the evidence or bind them to give it
an effect which they do not believe that it has, can or ought such
majority to control such minority upon the question whether any
evidence is admissible, and compel them to give effect to evidence,
all of which they believe inadmissible, because the Senate has no

EDwer to try the case or to administer an oath, and because they be-
ove all the testimony given in the case Is extrajudicial, and that
every witness may testify as he pleases without liability to the pains
and penalties of perjury f

. Is it not manifest that every proposition of law and fact which con-
stitutes a necessary element of a valid conviction must be found and
sustained by the concurrence of two-thirds of nil the members present f
And that if one if those elements, without which the conviction could
not be valid, may be established by less than two-thirds, any other
necessary element — and therefore every other— may be established in
the same way and by the same course of reasoning f And what ele-
ment can be more necessary to a valid conviction than the jurisdic-
tion to try the case and declare the conviction f
Upon any question or any matter not an essential ele meut of a valid

conviction there is no doubt a bare majority may decide ; but upou
any proposition of law or fact without the establishment of which no
valiuconviction could be had, I am compelled to consider any majority
less than two-thirds as no majority in the constitutional sense, and of
no more binding effect than the decision of a minority.

Opiai«a •£ IlKr. 'Whyte*

Delivered May 20, 1876.

Mr. WHYTE. Without entering into an analysis of the pleadings
in this case, or expressing any opinion as to the artistic manner of
their construction, it is sufficient that the broad question is evolved
whether the accused can be tried for offenses alleged to have been
committed while in office, upon an impeachmen^made after he ceased
to be Secaetary of War T

In my view of this case, it is not material to the point in issue to
ascertain at what precise moment of time Mr. Belknap retired from
the War Department. .

Whatever may be said as to the al)stract question whether private
persons, that is persons who have never been in office, may l>e im-
peached, from a careful examination of the cases in the British Par-
liament, from whose parliamentary law we have drawn the principles
relating to impeachment, it is clear that except in few and rare in-
stances prosecution by impeachment has by a long line of precedents
been contiued to offenses of an official character, and as against p(*r-
sons as well in office as those who have vacated their offices. I hold
the opinion, therefore, that any person charged with the commission
of crime while in office can be impeached after he has ceased to be
an officer, whetherby expiration of his official termorby voluntary res-

I believe there is no limitation as to the time when prosecution for
impeachable offenses can be had, save in the sound discretion of the
House of Representatives.

Impeachment as a known method of procedure is ingrafted upon
our Constitution. As it was understood and exercised at the period
when the organic law was framed, subject only to the limitations set
forth distinctly in the Constitution, so it is now to be exercised. In
the language of Professor Dwight, the Constitution '^assumes the
existence of this mode of trial in the law and silently points us to Eng-
lish precedents for knowledge of details.'' Mr. Webster, also, when
defending Judge Prescott, and speaking of a clause in the constitution
of Massachusetts similar to that in the Federal Constitution, said :

The CoDstitntion has given this body {the Senate] the power of trying impeach-
ments without defining what an impeachment is, and, therefore, neceitsarHy Intro*
dncing with the term itself its osoal and reoelved definition and character and inci-
dents which bsltog to it.

Whenever foreign statutes are adopted into our legislation, the
known and settled construction of those statutes by courts of law has
been considered as silently incorjmrated into the acts.

So of impeachment; as it was regulated by the parliamentary law
of England, so it is to be understood, with its specihc limitations, how-
ever, as part of the constitutional law of our country'.

The framers of the Constitution knew impeachment to be the
mode of accusation and trial of '' statesmen for misdemeanors in the
administration of government." They knew that as early as the reign
of Eldward I the power of parliamentary impeachment had been ex-
erted, and that judges convicted of exactions had been sentenced to
severe penalties by the House of Lords ; that during the reign of
Hichard II and under that of Heniy VIII loi-d chancellors and arch-
bishops and chief justices had fallen under a like condemnation ;
that under King James I Lord Chancellor Bacon had been the sub-
ject of impeachment, and Lord Finch and others had suffered during
the reign of Charles I; that under Charles II chief iastices of the
King's Bench and Common pleas and barons of the Exchequer had
been impeached by the Commons for various great official crimes.

Thus they had before them from various epochs of English history
many instances of parliamentary impeachment.

It would indeed belittle Madison and Hamilton, Sherman and
Pinokney, and the other intellectual giants of that great council to
suppose they did not understand in all its scope the power of im-
peachment, which they were then importing into our federal form of
government. Some of them had access to Corayn's Digest, Bacon's
and Viner's Abridgments, Rushworth's Historical Collections, and
Selden's Judicature of Parliament, and HowelPs State Trials ; and
Pincknoy had, indeed, sat at the feet of Gamaliel, for he had
listened at Oxford to the splendid law lectures of Blackstone, which
now as his Commentaries, more than a century after their delivery,
are to be found in the hands of every law student in our land. They
knew, also, that in this method of criminal procedure, since the time
of Edward III, the House of Commons accused pnd the House of
Lords tried. So they gave the sole i)ower of impeachment to the
House of Representatives and the sole power of trial to the Senate.
Thus the trial by impeachment, without specially defining it, was
adopted from analogy to the English constitution.

The makers of the Federal Constitution gave this power of trial by
impeachment to the two Houses, as above stated, in all its plenitude,
and then by Bul>sequent special limitations restricted it in its detaila

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-wherever they intended ite power to he restrained. The power itaelf
they never Intended to curtail; for, when they added "high crimes
and misdemeanorB" to treason and hril>ery, Colonel Mason remarked:

As bills of atUUnder, which have saved the Britinh oonstitntion, are forbidden^
it is the more necessary to extend the power of impeachment.— ifodiMm Plap«rt,
volume 3, page Vctd.

And it is remarkahle if trne, as asserted, (and from the similarity
in the two instraments the assumption seems to he well foande<l,)
that the impeachment clauses in article 1 of our Constitution were
taken from the constitution of New York of 1777^ drawn hy John Jay;
that the word " officers" in the latter constitution is omitted in the
Federal Constitution. If the New York constitution was intended to
operate only on officers while in office, it is clear that the change in
tlio words in the Federal Constitution hy which "person" or "party"
is substituted for "officer" was intended to give the power of im-
peachment wider scope and to cover the cases of those who had gone
out of office after the commission of offenses as well as those who were
in office at the time of impeachment.

The difference between the two Constitutions is thus shown :

OonttUtUUm^ifthe Ufdted Statet :

The Honse of Representatives shall
have the sole power of impeachment. *
* * No penon shall be convicted with-
out the eoncurreno$ qf two-thirda qf the
membera prettnL

Na%o York contdbitUm^ 1777 .*

The power of impeaching all ojfieera of
the State for venal and cormpt oondnct
in theirrespectiveoflloes [shall | be vested
in the rtpreaanlativeM 6/ the people in <uh
temb^f. * * * No iodsment of the
said coart shall be valid unless it shall be
c M » M twt to hy two-thirdM* part o/themem-
bera tMen preeent^ Je.

It is clear that it was " persons " who were to be convicted, and not
" officers " qua officers, at the period of conviction ; thus including ex-
officers as well as incumbents of offices.

The f ramers of the Federal Coustitution also took in to view the impro-
priety of allowing the Vice-President to preside over the Senate during
the trial of the President upon articles of impeachment, and so they
provided that the Chief Justice of the Supreme Court should act as pre-
siding officer of the Senate during such trial. In the interest of the
accu^, under the strong legal presumption of innocence, and to pro-
teet against passion, it is seen they required two-thirds of the mem-
bers present in the Senate to convict. They knew, also, that such
was th^ high authority claimed for the court of Parliament that
the House of Commons, in the reign of Charles II, in the case of the
Earl of Danby, insisted that no pardon under the great seal should
be plendable to an impeachment by the Commons of Great Britain,
and this was finally enacted into statute law by 12 and 13 William
III, chapter 2.

And so they provided that no pardon of the President should be
either pleailable in cases of impeachment or operative after sentence.

They knew the unlimited power of the House of Lords to impose
every kind of punishment unon the convicted, and remembering the
extreme penalties which had been inflicted, and notably in the case
of Lord Chancellor Bacon, who, notwithstanding his high dignity and
great personal qualifications, on conviction had been fined £40,000,
was ordered to be imprisoned in the tower during the king's pleasure,
to lie forever incapable of holding any office, place, or employment,
and never again to sit in Parliament, or come within the verge of the
court, they put a limitation on the judgment to be pronounced by
the Senate, and put maximum bounds to its sentence in removal fipom
office and disoualification in the future; but they left the courts of
justice to vindicate the majesty of the law by indictment and crim-
inal sentence as in other cases of infraction of the laws.

They were not ignorant that in England, although it was claimed
that all subjects were liable to impeachment, yet in rare instances, as
I said before, had the power been exerted in any case of offense which
was not official crime or the breach of public trust ; so they left im-
peachment where they found it in English practice and hedged about
private persons with trial for crime by jury ; and the people in the
States amplified this protection by fuller and clearer guarantees to
. accused private persons by the fifth and sixth articles of the amend-
ments to the Constitution. They knew that in England officers who
had been guilty of offenses while in office were impeachable after
they left office.

They had in mind that Lord Chancellor Somers had been impeached
after he was out of office.

They surely were aware of the case of Lord Chancellor Macclesfield
who iu 1724 was in the zenith of his worldly success; yet they had
seen that, shortly after t-he bufsting of the South Sea bubble, the
storm of indignation arose and he was compelled to resign his office.
They knew full well that, after his resignation, in January, 1725, pro-
ceedings were originated in the House of Commons, and subsequently,
after a strong speech from Sir Geoige Oxenden, the Earl of Maccles-
field was impeached. They had immediately before their eyes the
case of Warren Hastings. They knew that he had left India in June,
1785, having surrendered the keys of office. He returned to England,
where he was joyfully received by his friends.

On the 10th of May, 1786, Mr. Burke accused him at the bar of the
House of Lords in the name of the Commons of England. Prelim-
inary proceedings were conducted during the session of Parliament

in 1787, and this case, as we have seen, was referred to on the 8th day
of September, 1787, by Colonel Mason, when the clause relating to
the removal of the President oh impeachment and conviction for
treason and bribery was under consideration *in the convention, as
will be seen by reference to the Madison Papers, volume 3, page 1528.
He said, ^^ Treason, as defined in the Constitution, will not reach many
great and dangerous offenses. Hastings is not guilty of treason.''

This case was thus fresh before them ; and having placed several
limitations on the matter of impeachment, they were silent on this im-
portant point, and made no ouestion of the right to impeach a party
guilty of official crime after ne had ceased to oe an officer. Besides,
the objection of Mr. Pinckney, that the President ought not to be
impeachable while in office is the only proposition for any limitation
of the time when an offender was to be impeachable : and this is the
very converse of the theory that he was impeachable after ho hiid
vacated his office.

Giving due weight to the adverse argument based on the expedi-
ency of trying a roan for official crime after he is out of office and
the danger of partisan impeachments, yet, under the sense of duty
which impels me to decide this question judicially, I can come to no
other conclusion than that, as there is no limitation to the ])uni8h-
ment of crime except by express st-atutory enactment — and there is
none in the Constitution as to the time when impeachments will lie —
its f ramers meant, as Mr. Rawle has expres^bd it, thaf persons liable
to impeachment are those who *are or have been in public office.'"
And I adopt this language of John Quinoy Adams, as quoted by Mr.
Manager Hoar:

I hold, therefore, that every President of the United States, every Secretary of
State, every oflicer impea(;hable bv the laws of the coon try, is liable twenty years
after his omce expired as he is while he continues in office.

And this very doctrine will do as much as any one principle can to
restore the purity of our Government and elevate the standard of
official qualification.

The fourth section of the second article of the Constitution has, in
my judgment, nothing whatever to do with the matter of jurisdiction
in cases of impeachment. That had been granted already. On the
contrary, this was a clause, absolutely mandatory in its character,
for the removal of officers wno were in office at the time of their im-
peachment and conviction. It was solely to accomplish the removal
of the convicted officers ; and this is clear from the fact that when it
was first inserted in the Constitution (then limited as it was to the
Chief Magistrate) it is called, as will be seen on page 1434 of the third
volume Madison Papers, " the clause for the removal of the President
on impeachment," &.c.

It was a limitation upon the official term of a person who, as Presi-
dent, had been impeached and convicted of '* treason, bribery, or
other high crimes and misdemeanors," but not a limitation on the
power of impeachment. It was inserted in the article of the Consti-
tution defining the Executive department, as indicating how the offi-
cial term of four years for the President could be cut short, and the
insertion of " Vice-President and all civil officers of the United States"
was an afterthought, in no way changing or modifying the purpose
for which this clause was originally inserted in the Constitution. That
purpose was to compel the Senate on impeachment and conviction of
the '* President, Vice-President and all civil officers of the Uniteil
States," for treason, &c., to remove them. The language is, they
" shall be removed from office."

The lansnage is imperative ; it leaves yon no discretion ; yon cannot stop short
of removal from office ; you cannot exceed it.

The clause was inserted for this specific purpose ; to accomplish
nothing more; to leave you in such case power to do nothing lees.

Much stress has been laid upon the case of Senator Blount. (Whar-
ton's State Trials 200,) as establishing the doctrine that none out civil
officers can be impeached, that is, persons in office at the time of im-
i>eachment ; but I can draw no such conclusion from that case. All
that was decided therein in point of law was that a Senator is not a
civil officer of the United States and cannot be impeached. The party
impeachable must have been an officer of the United States in real-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 51 of 172)