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not imdertake to say or predict; but a mere glance at the point con-
vinces my mind that disqualification from hcudinj; office in tsMt is no
penalty, because either the removal from office by impeachment, or
the resignation of office to avoid impeachment, is m itMtlf an eternal
barrier to the person who has violated his official obligation and pros-
tituted his personal honor.

I have alluded to the action of the convention of the State of New
Jersey as affordinpr a precedent which should be entitled to great
weight in the consideration of this important question.

In 1849, the people of New Jersey, in convention, formed a new
constitution. A list of its members, which I hold in my hand, indi-
cates that several of the ablest citizens of that State were engaged
in the woA. The various committees had performed their labors,
and the result was before the convention.

The article on impeachment was identically the same as and was a
copy of the one in the old constitution of that State. I read from the
Journal of the convention, page 245, section 11 :

The governor and all other oivll officen under this State shall be liable to im
peaohment for mlBdemeanor in of&oe.

Upon the consideration of this article Chief Justice Homblower, a
man who enjoyed a national reputation as a lawyer and judffe of great
ability, moved to amend. I now read from an authorized report of
the proceedings of the convention, placed in my hands by the honor-
able Senator from New Jersey, Mr. Fbeunqhutsbn:

Mr. Homblower moved to amend so as to provide that public officen might be
impeaohed t^fUr the expiration of their tenn of office.

The amendment offered by Judge Homblower was in these words:
Baring their continaanoe in office and for two years thereafter.

The amendment was unanimously adopted, and, as amended, the
artide was unanimously adopted and now stands as the organic law
of New Jersey on this point.

I now read the article, section 11, article 5 :

The governor and aU other civil officers nnder this State, #i»^ii be liable to im-
peachment for misdemeanor in oSAeo during their oontinaanoeln office and fortwo
years thereafter.

While I admit, for the purpose of the argument, that the report of
the proceedings is meager and incomplete, I unhesitatingly assert
that but one meaning can be attached to the language used by the



chief justice in his amendment, that is^ to extend the time of im-
peachment two years after the termination of the office.

Theuy sir, we have upon this great and impcntant question the
opinion of many of the ablest jurists of New Jersey that previous
to the adoption of her constitution in 1849 a person must have been
in office in order to have been subjected, in that State, to the proce-
dure of impeachment.

For one, I value this precedent as of more importance than all
those which England can famish.

A ^[uestion was put to the honorable Senator from Indiana I think
six times, and my honorable friend answered it as many times as it
was put. The honorable Senator is quite able to answer all questions
and to meet all antagonists, but he will pardon me if I add to his
answer. The question was : ^' Would not the power of impeachment
be full and perfect if section 4 of article 2 had not been placed in the
Constitution f " I think the question an exceedingly improper one,
because no Senator has a right to suppose that any of tne sections
relating to impeachment could or would have been adopted by the
convention, except in the very shape in which they now are. The C<m-
stitution is a work of compromises, and men gave their adhesion to
matters to which they were opposed upon the condition that checks
in the shape of additional sections were accepted by other men.

The opinion of Judge Story, who is reg[arded bv many distinguished
Senators as one of the ablest of our constitutional lawyers, was clearly
in favor of the opinion that no person could be impeaohed unless actu-
ally in office.

In this opinion of Judee Story I have ihe more confidence from a
fact which will be conceded by all Senators, to wit: the bent of his
mind was favorable to a broad^ not to say unlimited, construction of
the powers granted in the Constitution.

I have in my mind a notable case to which I desire to call the at-
tention of the Senate, apprehending that it will have j^reat weight in
showing the opinions of gentlemen eminent for their ability upon
the point now under discussion. I allude to the impeachment of
President Johnson. I believe, and have satis£ftctory reasons for my
belief, that for days, ay weeks, the procedure against him halted be-
cause the gentlemen having the matter in charge knew that a mis-
description would be fatal and were uncertain whether to allege that
he was President or acting President of the United States. The idea
was scouted that he could be proceeded lurainst for acts perpetrated
when he was in the epjjoyment of the office of Vice-President, and
there were such acts wmch need not here be more particularly allu-
ded to. The astute and versatile Stevens of Pennsylvania was called
into the troubled council, and even he, reno^^ed among all the men
of these latter days as the man who had driven this damnable doc-
trine of necessity over and through the Constitution, even he, this
man of Duiton-like nerve and audacity, dared not place before the
Senate articles of impeachment against a person and describe him as
late Vice-President of the United Siates.

No, sir; no, not until the year 1876, the centennial year, was the
discovery made in our history that a person could beproceeded against
who was the late holder of an official poeiti<m. For nearly a hun-
dred years have this people, on this question, traveled the old, plain
political pathway marked down by the fathers. For one, answering
for myself alone, I shall pursue the same course, and follow not after
the new doctrines of strange gods.

As a sincere and honest believer in the doctrine of State-rights,
hnowinf that the true interest of forty millions of people who inhabit
now this broad land, and of the hunored millions whose coming foot-
steps we can almost hear, can only be maintained and conserved by
a strict adherence to the letter and spirit of the Constitution, and
believing, as I sincerely do, that the great danger to be apprehended
to our system of government is the centralization of power in the
various branches of the Federal head, I cannot, will not, and, before
God and the people, dare not consent to this departure from the well-
known principle which has heretofore universally obtained.

Therefore I say —

First. That the Constitution of the United States is the law which
should govern in this case, untrammeled by English precedents or En-
glish procedures.

Second. That no other persons than those who are in the enjoyment
of civil office nnder the Government of the United States at the time
when articles of impeachment are presented by the House of Bepre-
sentatives are proper subjects of tnaL

Third. That William W. Belknap, at the time of the presentment of
these articles of impeachment bv the House of Representatives, was
not in the enjoyment of any civil office under the United States, but
was a private citizen of the State of Iowa.

Fourth. Therefore these articlesof impeachment should bedismissed
by the Senate.



OpfadMi «f BIr. Allii«Bf

DeUvered May 24, 1876.



lir. ALLISON. The auestion now before the Senate for considera-
tion is whether or not the Senate has jurisdiction to try W. W. Bel*
knap for the offenses alleged in Hud articles of impeachment, which
offenses were committed by him while he was Secretary of War, he



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TItlAL OF WILLIAM W. BELKNAP.



117



haying resigned Ids position aa Sedetary, and having vaeated the
office before the proceedings for impea<diment were be^pn in the House
Off Bepresentatives, and heii^ at the time of snoh impeachment, a
private citizen, holding no office nnder the Government of the United
States. I have given this question such examination and study as I
conld within the time allowed, and I have listened with interest to
all the arguments that have been presented for and agiunst jurisdic-
tion in this case, and have endeavored in my own mind to settle
the question without reference to what may be involved in the case.

The question presented to us for decision is whether or not, nnder
the Constitution of the United States, a person not a civil officer can
be imx>eached, although at the time the alleged ofiGdnse was commit-
ted he held such office. In the present case it is admitted that the
alleged offense is an impeachable one, under the Constitution, if com-
mitted by a person subject to our jurisdiction at the time the impeach-
ment was presented.

The fact that Mr. Belkni^ was in office so recently before the im-
peachment, and that he resigned having in view his impeachment,
18, upon the facts alleged and admitted, the most extreme illustration
which could be presented to mark the line or boundary which excludes
our jurisdiction, if it can be excluded at alL

To take jurisdiction in this case it must be shown that, without
reference to the point of time, all persons may be impeached for public
offenses committed in office, although when impeached they are pri-
vate citizens. To exclude jurisdiction, on the other hand, it must be
shown that civil officers may be impeached while in office only, and
for crimes specified and declared in the Constitution, and for none
otiier.

There are four clauses in the Constitution that directly affect this
question : First, the last clause of section 2, article 1 :

The House of SepreseatetlTM * * * shall have tito sole power of iznpeaoh-



Second, clause 6, section 3, article 1 :

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

Third, clause 7, same section and article:

Jadgment in oases of Impeadmient shall not extend farther than to removal from
office, and disqnaliflcation to hold and eigoy any office of honor, trust, or profit
under the tTnited States t but the party conviotea shall nevertheless be liable and
sol^Ject to indictment, trial, Judgment and pnnishmwit, aooordlng to law.

Fourth, section 4, article 2 :

The President, Vioe-President and all dvil officers of the United States, shall be
removed from offioe on impeachment for, and conviction^ treason, bribery, or
other high crimes and misdemeanors.

It is claimed by those who favor jurisdiction in this case that the
first-quoted clause not only describes the body that shall originate
impeachments, and that it not onl^ confers the power to impeach or
prosecute, but that it is the jurisdictional clause in the Constitution
oonf errine in terms whatsoever was at the time understood in En-
gland to be the scope or boundary or extent of the jurisdiction to
impeach under the parliamentary law of impeachment in England,
and that here la found not only jurisdiction, but all jurisdiction ;
that under this clause and the following, granting to the Senate the
power to try, is conferred all the authonty to present Mid try all
cases of impeachment known at the time to the common law of Par-
liament, save only that the judgment is limited and the concurrence
of two-thirds of the Senate is required to convict, and that this grant
of power is not limited or circumscribed in any manner by the fourth
section of the second article either as to persons who may be im-
peached or as to offenses for which impeachments may be instituted
and tried ; that this latter section was inserted for no other or differ-
ent purpose than to prescribe the punishment which must be inflicted
in cases where the person impeached is still in the enjoyment of a
public office ; or, in other words, for the purpose of pointing out a
class of persons who shall be removed from office when impeached ;
that this section is not jurisdictional in its character; that it confers
no jurisdiction and limits no jurisdiction, but only prescribes a par-
ticular punishment in specified cases, and is not used to designate the
persons who may be impeached or to define or declare what are im-
peachable offenses.

If this claim be true, we are compelled to resort to the parlia-
mentary law of England to discover who may be impeached, and for
what offenses, and admit that the framers of the Constitution in-
tended to resort to parliamentary law for purposes of jurisdiction,
and did not intend to aefine jurisdiction incasesoi impeachment except
by reference to parliamentary law.

It thus becomes material to ascertain who could be impeached
under the parliamentary law of Ensland. Under this law the House
of Commons could proceed against the delinquent, of whatsoever de-
gree, and whatsoever might oe the nature of the offense. There was
no limit as to persons or offenses, except that the Lords could not by
the law try a commoner for a capital offense on the information of
the king or a private person, but with this exception, under the par-
liamentary law of England there was no limit as to the persons who
might be tried or as to the offenses (See Selden's Judicature in Par-
liament, 1263 : also 84 ; 4 Blackstone, 257 ; Hatsell's Precedents, vol-
ume 4, page 120 ; and McDonald's Manual, page 284 ; also M^'s Par-
liamentary Law; alBoStoivontheCon8titution,volume 1, $ 79.

That impeachment has this extent in England is clearly stated by



all the writers on parliamentary law. It has been claimed ii\ debate,
and with much force, that this power has only been applied in cases
of official misconduct or violation of public trusts. Assuming this
narrower view of jurisdiction to be the true one, it nevertheless leaves
open to the Senate to try all persons in the United States who at any
time may have committed any offense in office or violated any public
trust confided to them, and there is no limit of time during their lives,
as to such persons, when they may be impeached by the House or tried
by the Senate. This statement of the claim of those who invoke juris-
diction in this case shows the importance of the decision we are about
to make as affecting all the people who have held official position or
administered public trusts, or who may do so in the future.

It seems to me that such construction should not be given to our
Constitution unless it is clearly inferable from the words employed
or from the intent of the framers as drawn from the history of the
time or from the debates in the convention.

It seems to me, from the letter of the Constitution itself, and from
the history of the time, and ^m the debates in the convention, that
the Constitution itself intended to include impeachment as a remedy,
and also intended to definitely prescribe its limits and boundaries,
prescribing a body to accuse, a tribunal to tiy, the extent of the pun-
ishment, the persons who may be tried, and the offenses for which
they are triable, leaving nothing, either Jurisdictional or remedial, to
be drawn from the parliamenta^ law.

All writers agree that it was the intention of the framers of the
Constitution to provide a government in all its parts of limited and
specified powers. Story says:

TheCkmstltation was from its very origin oointem]dated to be the frame work of
national Government of special and ennmerated powers, and not of general and a
unlimited powers.

In order that there miffht be no mistake u^n this subject, cont^n-
poraneously with the adoption of the Constitution, among the early
amendments proposed and agreed to was the tenth article of amend-
mentB^ which declares that —

The powers not delegated to the United States by the Ckmstitntlon. nor pro-
hibited oy it to the States, are reserved to the States respectively or to the pec^e.

If we are to resort, therefore, to the common law of Parliament for
jurisdiction in cases of impeachment, it is the only instance that can
be suggested where the Constitution has such resource. It does not
seem probable that^ with the history of impeachments in England
fresh m the memories of those who framed our Constitution, they
would have selected this as the special and particular good that
should be transplanted into our frame-work of government without
limitation, save only as to judgments. Section 1 of article 2 decUures
that "the executive power slmll be vested in the President of the
United States of America;" yet it has never been claimed that any
other or different power was here invested than that prescribed in the
second article. So the judicial power under article 3 was vested in
one Supreme Court and such inferior courts as Congress might from
time to time ordain and establish. Under article 3 the Supreme Court
decided at an early day that the United States courts had no juris-
diction over offenses at common law and that they could only ta^e
cognizance of such offenses as were created by statute, and it is now
settled beyond dispute that the Federal courts wiU not take jurisdic-
tion over any crimes which have not been placed directly under their
control by act of Congross. It would seem that here, if anywhere,
the common law should apply.

Looking first to the letter of the Constitution, and applying to it
the ordinary modes of interpretation, it would seem that the framers
of the Constitution meant to provide that impeachment as a remedy
should be resorted to with the same distinctness and brevity with
which they provided for other essential powers of government ; that,
in order to make this provision, they provided that the proceeding
should be initiated only in the House of Bepresentatives, that body
nearest to and directly responsible to the people. They had observed
that in England the king or a private person could initiate these pro-
ceedings. They also observed that in the States several modes of in-
augurating impeachments were resorted to, as, for example, in Penn-
sylvania the Ceneral Assembly could impeach and the council of cen-
sors could inaugurate the proceedings ; and in North Carolina the
General Assembly or any grand jury could impeach. They there-
fore resolved that only one body, and that " the House of Repre-
sentatives shall have the sole power of impeachment."

They next sought to provide a tribunal to try impeachments. Here
also they found great diversity in the constitutions of the several
States. In some of them, as in Massachusetts, the senate had the
power. In others, as in New York, the senators, chancellors, and
judges of the Supreme Court ; in Pennsylvania, the president and
the council of twelve, taking to their assistance, for advice only, the
justices of the supreme coim; ; and in Virginia the general court.
And after considerable debate, and after first provialng that the
Senate should only try justices of the Supreme Court, and the Supreme
Court all other officers, they finally adopted the provision that "the
Senate shall have the sole power to try all impeacmnents." Thus hav-
ing provided the body to prosecute, and the tribunal to try, they pro-
ceeded to the consideration of the jud^ent, and having the record of
punishments in England fresh in their memories, which record dis-
closed that there was no limit to punishments in England except
in the discretion of the House of Lords, they proceeded to limit the



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118



TRIAL OF WILLIAM W. JBELKNAP.



Jadgment, and provided that a concnrrence of two-thirds should be
required to oonvioty and provided that —

Judgment in eaaee of impeachment shall not extend farther than toremoYal from
office, and disqnidification to hold and eqjoy any office of honor, tnut, or profit under
the United States : hat the party convicted shall nevertheless be liable and subject
to indictment, trial, judgment and punishment, according to law.

This clause is the first intimation as to the extent of the contem-
plated jurisdiction, and the purpose to be reached by the remedy. It
IS here shown that the purpose was to get rid of anofQcer by removal,
and in extreme cases to disqualify him, as if he had committed treason
or other high crimes the safety of the state might require absolute
disqualification. It also appears from this clause that whatever of
punishment there was in the judgment was only incidental, as they
were careful to provide in the same clause for punishment in the
courts according to law. Beading this clause alone^ without connect-
ing it with the fourth section of the second article, it would seom that
the remedy was only intended to reach officers, and I cannot see how
a less judgment than removal under this clause alone could be efiect-
ively pronounced. It has been said an officer might be suspended,
but that is removal for a time, and a disqualification as to the par-
ticular officer for that time. The judgment could go further, and
disqualify as to every office. As before stated, this is tlie first inti-
mation as to the real purpose of the proceeding.

This brings us to the fourth section of the second article. Until
this section is reached no persons have been designated nor ofienses
described. The fourth section of article 2 provides that^ —

The President, Vice-President and all civil officers of the United States, shall
be removed from office on impeachment for, and conviction of, treason, bribery,
or other high crimes and misdemeanors.

This is a potential section, prescribing who may be impeached and
for what onenses, and when the judgment shall take enect and the
minimum penalty that shall be prescribed in all oases.

This section means to provide for all these,' or it is absolutely mean-
ingless and was wholly unnecessary, because if all jurisdiction was
conferred by the last clause of the second section of the first article,
it was not necessary to include the fourth section of the second article
at all, because this clause had already provided by reference to the
parliamentary law for everything save the extent of the punishment.
It was not necessary to include these persons here, because they were
already included. It was not necessary to prescribe the offenses, be-
cause all the offenses here described and many more were impeacha-
ble in England. The persons subject to impeachment and the offenses
impeachable mnst be found in this section or not at all, as neither are
mentioned in any other place. It is claimed that this section was
inserted solely and only for thepnrpose of compelling removal from
office in case the party held office. It would hardly seem that the
framers of the Constitution would have given such prominence to a
provision having only this object in view, especially when they had
already provided that removal from office must be a part of the judg-
ment. I therefore conclnde that in order to give any effect whatever
to this fourth section of the second article it is absolutely necessary
to ffive it the full effect above stated, namely, to ijrovide the persons
to be impeached, the offenses Impeachable, the minimum judgment,
and the time of its application, tnat is, upon conviction. If this con-
struction be the true one, it follows that removal from office must in
all cases be a part of the judgment, and this judgment cannot be
imposed unless the party holds an office at the time of impeachment.
HiarroBT of tbe clauses found in the constitution.

Admittinff that the lanffua^e employed in the Constitution is not
explicit^ ana that we are £ft m doubt as to its true construction, we
are at liberty to examine the history of the several clauses bearing
upon the subject, and to trace their progress in the Constitution, with
a view to ascertain the aim and purpose in view. In doing this we
must bear in mind the prime object of the Constitution as stated by
Stoiy, namely, that '' it was from its very origin contemplated to be
the frame work of a national government of special and enumerated

Sowers, and not of general and unlimited powers.^ On the 29th of
ay Mi. Randolph, of Virginia, opened tne main business of the
convention by presenting a plan tor a national government by stating
the defects in tne Articles oi Confederation, and proposing a remedy,
which was denominated Mr. Randolph's plan^ the ninth section of
which provided for the establidunent of a national judiciary, which
should nave amons other things jurisdiction to try 'Mmpeacnments
of any national officers,'' thus uiowing that in the very beginning it
was contemplated that impeachments should apply only to national
officers.

Mr. Pinckney, on the same day, presented a plan which provided
that '* the House of ]>Bleffates shsJl exclusively possess the power of
impeachment,'' that the Supreme Court should nave jurisuiction to



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