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liable to be impeached by the House of Bepresentatives.

On the day following, upon motion, it was determined that —

The court is of the opinion that the matter alleged in the plea of the defendant
Is sufficient in law to show that this court ought not to hold )uiisdiction of the said
impeachment, and that the said impeachment is dismissed.

Teas 14, nays 11.

The plea was ^* that he, the said William Blount, is not now a Sen-
ator and is not an officer of the United States/' &Ai,

If the name of William W. Belknap should be substituted for that
of William Blount, in the resolution voted upon on the 10th of Janu-
ary, 1799, and a majoritv of the present court should vote against it,
as in that case, we should decide against jurisdiction, and that would
end this case. Precisely the same reason exists in this case, for the
want of jurisdiction, that existed in the Blount case ; namely : that
Belknap is not. and icas not at the time of his impeachment, a " civil
officer of the United States, within the meaning of the Constitution
of the United States," and for this reason the case should be dis-
missed, for want of jurisdiction. Did anv harm come to the Republic
because William Blount was not disqualified to hold office under the
United States f He was expelled from the Senate and never returned,
and never afterward held any office under the United States.

If Belknap had committed suicide at the same time he resigned the
office of Secretary of War he would not be more politically dead than
he is at this moment.

It will be a vain exercise of power to disqualify him to ever here-
after hold office under the United States. The people have convicted
and disqualified him, and from their verdict there is no appeaL I do
not know of anything that will scorch and wither a public man more
than the condemnation of an aroused and indignant people.

Thomas Jefferson was Vice-President dnrins the trial of William
Blount, and on the 8th of February, 1798, the day after the articles of

impeachment were presented to the Senate, he wrote a letter to James
Madison, from which the following is an extract :

Articles of impeachment were yesterday given in minst Blount. But many great
*' ■ »t a formallaw settle the oath "
pear by attorney f Must he not be tried By a Js ^ ^

Is an ex-Senator impeachable ? Yon will readil^' conceive that these questions, to

preliminary questions will arise. Must nol
ators, form of pleadings, process against persoi

\T by attorney t MnaX he not be tried Dy a Jury t" Is a Senator impeachable t

»n or goods, &o.t May he not ap-

be settled by twenty-nine Ukwyers, are not kkely to come to a speedy issue.

On the 1.5th^of February, the same year, he wrote to Mr. Madison
again, and the following is what he says on the subject of impeach-

This day the question of the jury in cases of impeachment comes on. There is
no doubt how it will go. The general division of the Senate is S3 and 10 ; and un*
der the probable prospect of what it will forever be, I see nothing in the mode of

Srooeeding by impeaonment but the most formidaUe weiH>on for the purposes of
ominant faction that ever was contrived. It would be the most effectual one of
getting rid of any man whom they consider as dangerous to their views, and I do
not know that we could count on one-third in an emergency. All depends, then, on
the House of Representatives, who are the impeachers; and there the nu^jorities
are of ono, two, or three only, and these sometimes one way and sometimes another.
In a question of pure party they have the minority, and we do not know what cir-
cumstances may turn up to increase that majority temporarily, if not permanently.
I know of no solid purpose of punishment wmoh the courts ox law are not equal to,
and history shows thai in Sngtand impMohment has bem an engine more of pastUm

Again, on the 22d of February, Jefferson writes to Mr. Madison as
follows :

You will see in the papers the ground on which the introduction of the Jury into
the trial by impeachment was advocated by Mr. Tazewell and the fate of the ques-
tion. Keatler's motion, which I inclose you, will probably be amended and estab-
lished, so as to declare a Senator unimpeachable, absolutdy; and yesterday an opinion
was declared that not only ojicertqf the State govemmente, but every private citizen
qf the United States are impeaehable. Whether they will think this the time to make
the declaration I know not but if they bring it on I think there will not be more
than two votes north of the Potomac against meuntversaUtif of the impeaching power,

I would here state that there was not a single vote south of the
Potomac in favor of Jurisdiction in the Blount case.

Mr. Madison, who is regarded as the father of the Constitution, re-
plies to Mr. Jefferson in a letter dated March 2, 1798. What he says
upon the subject of impeachment is as follows:

Mr. Tasewell's speech is really an able one In defense of his proposition to asso-
ciate juries with the Senate in cases of impeachment. His views of the subiect
are so new to me that I ought not to decide on them without more examination than
I have had time for. My impression has always been that impeachments were
somewhat eui generis and excluded the use of iuries. The terms of the amendment
to the Constitution are indeed strong, and Mr. T. has given them, as the French say.
all their luster. But it is at least questionable whether an application of that
amendment to the case of impeachmento would not push his doctrine farther than
he himself woidd be disposed to f oUow it.

It would seem also that tbe reservation of an ordinary trial by Jury must strongly
imply that an impeachmMit was not to be a trial by Jury. As removal and disqual-
ification, the punishmento within the impeaching Jurisdiction, were chiefly in-
tended for officers in the executive Hue, would it not also be difflonlt to exclude
executive influenoe from the choice of Juries f Or would Juries armed with the
impeaching power, and under the influence of an unimpeachable tribunal, be less
formidable than the power as hitherto understood to be moiUfied f The universality
of this power is the most extravagaut novelty that has been yet broached, espe-
cially coming from a quarter that denies the impeachability of^a Senator. Hardy
as these innovators are, I cannot believe they will venture yet to bold this incon-
sistent and insulting language to the public

In this extract Mr. Madison says that impeachments were " intended
chiefly for officers in the executive line.'' There is no doubt it was in-
tended exclusively for executive and Judicial "officers" of the United
States. It is well known that Mr. Madison was a leading member of
the convention that framed the Constitution, and no man knew bet-
ter than he did, ten years after the work was done, the intended mean-
ing of the Constitution. In commenting upon the power claimed in
the Blount case, which was precisely like that claimed in the present
one, Mr. Madison says :

TheuniversaUtif qf this power is the moH extravagant noveUy that has yet been

It is here implied that no such idea ever entered into the minds of
the framers of the Constitution, and that of all the novelties this is
the most extravagant. I place the opinion of James Madison against
that of all ^e S^^tors who believe in the universal power of impeach-

Bearing upon this subject, Mr. Jefferson, on the 18th day of August,
1799, wrote to Edward Randolph, a leading member of the constitu-
tional convention, as follows :

Of all the doctrines that have been broached by the Federal Qovemment, the
novel one, of the common law being in force and cognizable as an existing law in
their courts, is to me the most formMable. All their other assumptions of ungiven
powers have been in the detaiL The bank law, the treaty doctrine, the sedition
act, alien act, the undertaking to change the State laws of evidenoe in the State
courto by certain parte of the stamp act^ &c, have been aoUtory, unoonseqnen-
tial, timid things, in comparison with the audacious, bare-faced, and sweeping pre-
tension to a synem of lawfor the United States without the adoption of thidr Legis-
lature, and so infinitely beyond their power to adopt. I am happy you have ta^
up the sutject, andl have carefully perused and oooaideied the notes you inoloeed
tome. • * •

I think it will be of great importanoe when you come to the proper point to por-
tray at full length ihe consequences of the new doctrine that the common law is
the law of the united States, and that their oourte have, of ooutscl Jurisdiction co-
extensive with that Ukw; that is to say, general over all cases and persons. But
ed in 1789 that within ten y<

great heavens ! who could have conceive
have to combat such wind-mills t

I years we should

I have quoted from this letter of Jefferson's to show that the power
to pass the alien and sedition laws was claimed under the common
law of England, *' as the universality of the impeaching power ^ is
now claimed by those who hold that the Senate has Jurisdiction in

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ihis case, and to show that Jefferson thonght there was great danger
to the liberties of the people in snch unfounded ^issnmptions. Do
you say there can be no abuse of this power f I answer that in high

arty times, when the passions of men are aroused, there is great


Mr. Jefferson says, as before quoted :

I see notfaiDfc in the mode of prooeedinff by impeachment bat the most formid*
able weapon for the parposea oi dominant notion that ever was contrived.

If the power is confined to persons in ofiSoe, the casto will be com-
paratively few, of a factious or partisan character : but if you take in
the leaders of parties, who are seeking office, or laboring for the suc-
cess of their party, the temptations to disqualify them oecome dan-
gerous in the extreme.

Let us look at a few cases that might have arisen in our histoiy, if
the power of impeachment, as now claimed, had been supposed to

Soon after Mr. Monroe became President hostilities broke out with
the Creek and Seminole Indians, occupying a part of Georgia And
Florida. As commander of the southern militaiy district, General
«Kackson was ordered to take the field against the hostile tribes ; and
as many of the number took refuge in Florida, where thev were be-
lieved to be countenanced if not aided by the Spaniards, the general
deemed it his duty to enter Florida with his Army, and take posses-
sion of Saint Mark's and Pensacola. He also seized and had tried by
court-martial, two Englishmen, Arbuthnot and Ambrister, who were
charged with aiding and inciting the Indians in their depredations
upon our people. They were both found guilty and hung.

These proceedings caused the President great anxiety. They were
considered in cabinet council and condemned and disavowed by every
member except Mr. Adams. A paper was drawn up and made public
that in entering Florida General Jackson had acted without authority,
and upon his own responsibility ; and it was decided that the places
taken should be immediately evacuated. This condemnation of Gen-
eral Jackson roused his fiery temper, and his friends took up his
cause. The subject was brought before Congress by Mr. Cobb, aper^
Bonal friend of Mr. Crawford, who introduced a resolution in the
House of Representatives condemning General Jackson's proceed-
ings, upon which a very acrimonious, irritating, and prolonged de-
bate arose.

It was referred to the Committee on Military Affairs, a majority of
whom made a report severely censuring General Jackson, while the
minority reported that he deserved the tnanks of the country. Upon
a final vote the general's conduct was aj^proved — 100 to 70.

The papers communicated by the President on this subject to the
Senate were referred to a committee of five. Three of this commit-
tee made a report severely condemning General Jackson's proceed-
ings, while the minority justified them. No vote was taken on the
report in the Senate.*

The debates in Congress on this subject caused great animosity
among members during the whole session. Now, suppose General
Jackson had been impeached for his conduct under ** the utUrer$dlity
of power,^* as Mr. Maoison calls it, what would have been the con-
sequences? Dangerous in the extreme. Civil discord unprecedented
would have been the result. Had he been disqualified from holding
office, he would never have been President, unless ho had reached that
position through revolution, which would not have been unlikely.

When John Quincy Adams was elected President, Henry Clay, who
favored him, was charged with bargain and corruption, a charge
which his enemies persisted in making as long as he liveci. He was
the great and f avonte leader of the whig party. Suppose that he had
been impeached, convicted, and disqualified, what would have been
the consequences f Discord, and possibly revolution. These were
possible cases, if there had been the necessary minorities. Many
others of less prominence might be cited.

We have in New Hampshire to-day a fiagrant ease, an ex-governor,
not one year out of his seat, usurpea authority and violated the con-
stitution of the State, so as to change the political character of the
State senate. He gave certificates to two men not elected, and stifled
the votes of the people. His action led almost to revolution. He
was censured severely by the house of representatives ; but under
this new doctrine of '' universalitv of impeachment" he can now be
impeached, and deservedly so, as far as his offense is concerned. But
I counsel no such procedure. We have the necessary majority in
each house to impeach and convict him, but the people have already
condemned him, and I would not invoke this doubtful and danger-
ous power, as it would inflame party passions and disturb the peace
of an orderly and law-abiding people.

We have recently had a civil war in this country. The proceeding
of impeachment was not invoked to reach any of the leaders of the
rebellion. If this **univer8ality of power" had prevailed, some Sen-
ators on this floor, and I speak it with no disrespect, might have been
disqualified from nolding office, and a two-thirds vote of each House
of Congress could not have relieved them.

This impeaching power might have been carried to a very great ex-
tent. The power as now claimed would have embraced all the officers
who deserted from the Army and Navy of the United States, all the
citizens who were officers in the confederate army, and all the soldiers
who enlisted to fisht against their country, for they had aJl committed
treason. By the lourteenth amendment those who had taken an oath
to support the Constitution of the United States, and aided the rebell-

ion, were disqualified to hold any office; but by a special provision
their disabilities might be removed, by a vote of two-thirds of each
House of Congress.

Let us not seek for dangerous and doubtful powers in the Constitu-
tion, for the sole purpose of disqualifying private citizens from hold-
ing office ; but if they have committed crimes, let us leave them to
the courts, which can punish them to the full extent of the magni-
tude of their offenses, in their persons, property, and also disqualify
them from ever holding office under the United States.

The courts can do more in the case of W. W. Belknap than the
Senate can do, and therefore there is no danger that he will escape

gunishment. The statute authorizes the court to disqualify him from
oldin^ office, and also to impose fine and imprisonment.
I think there is danger in the exercise of this doubtful power.
If the people of this country should ever fall upon turbulent and
revolutionary times, and party passions be hammered to whitest heat,
I do say, with Mr. Jefferson, that I see nothing in this kind of im-
peachment ''but the most formidable weapon for the purposes of
dominant faction that ever was contrived." ''It would oe the most
effectual one for getting rid of any man considered dangerous to their

Would it be well to have in this country ten, fifteen, or one hundred
powwf ul men, who have been leaders in their party, disqualified for
life to hold office f Would they be good citizens, would their friends
acquiesce in such judgment f We £d not think so when we removed
your disabilities, honored and respected Senators. [Referring to
Kansom, Gordon, and others whose disabilities have been removed.]
No ! Rather that every citizen should feel that this is his country,,
his flag ; that its interests are his interests, its glory his glory ; that
its Constitution and laws protect him in his eaual rights and privi-
leges ; that all together we may honor, love, and defend our country,

[Mr. CoNKUNO, Mr. Logan, Mr. Ekllt, and Mr. Stkysnson also
delivered opinions, which have not been furnished for publication.]

Thursday, June 1, 1876.

At one o'clock p. m. the managers on the part of the House of Rep-
resentatives (with the exception of Mr. Lapham and Mr. Hoab) ap-
peared and were conducted to the seats provided for them.

The respondent appeared with his counsel, Mr. Carpenter.

The PRESIDENT pro tempore. Pursuant to order, lef^islative and
executive business will be suspended^ and the Senate will proceed to
the consideration of the articles of impeachment exhibited by tho
House of Representatives against William W. Belknap, late Secretary
of War. The Secretary will notify the House of Representatives
that the Senate is ready to proceed in the trial, the managers being

The PRESIDENT jpro temporey (at one o'clock and ten minutes p. m.)
The Sergeant-at-Arms will make proclamation.

The usual proclamation was made by the Serjeant-at-Arms.

Tho Secretary read the journal of the proceedings of the Senate sit-
tingou Monday, May 29, for the trial of the impeachment of William
W. Belknap.

The PRESIDENT pro tempore. The Senate is now ready to proceed
with the trial. On the question of jurisdiction raised by the plead-
ings in this trial , it is ordered by the Senate sitting for the trial of the
articles of impeachment preferred by the House of Representatives
against William W. Belknap, late Secretai^ of War, that the demurrer
of said William W. Belknap to the replication of the House of Rep-
resentatives to the plea to the jurisdiction filed by said Belknap be, and
the same hereby is, overruled ; and, it being the opinion of the Senate
that said plea is insufficient in law and that said articles of impeach-
ment are sufficient in law, it is therefore further ordered and adjudged
that said plea be, and the same hereby is, overruled and held for
naught. The Secretary will make the proper entry upon the journal.

Mr. WHYTE. Mj:. President, I offer the order which I send to tho

The PRESIDENT pro tempore. The Secretary will read the order

The Chief Clerk read as follows :

Ordered, That W. W. Belknap is berebv ordered to plead farther or answer tho
articles of impeachment within ten days xrom this date.

Mr. CARPENTER. Mr. President and Senators: This court gave us
two days to prepare for the argument of the question of jurisdiction,
the decision of which occupied the court for about three weeks. I
am certain that our aigument did not perplex the court more than
the decision of the court has perplexea us. And under the circum-
stances I trust the court will give us some time for refiection. The
order offered by the Senator from Maryland is peremptory —

Ord^fMl That W. W. Belknap is hereby ordered to plead fiirth^r or answer the
articles of impeachment within ton days irom this dato.

This order assumes that Mr. Belknap is compellable to answer fur-
ther. Whether this be so or not deserves examination. By the old
common law an issue of fact found upon a plain abatement was final
in cases of misdemeanors. Whether this was so where the issue joined
was one of law merits examination.

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One of my associates, Mr. Blair, is necessarily out of town. The
other, Judge Black, is confined to liis room by illness. And before de-
termining what steps should next be taken on the part of the resi^oud-^
ent, I desire a consultation with my associates.

By way of showing the necessity for such consultation let me refer
to some of the questions which arise at the present time.

The defendant first pleaded to the jurisdiction of tiiis court. The
managers filed a replication, to whica the respondent demurred ; and
the managers Joined in the demurrer.

The rule is that each pleading must answer the preceding one. The
replication, if sufficient in law, was a valid answer to the plea. The
validity of the replication in matter of law was put in issue by our
demurrer. And had the court upon the demurrer held the replication
bad, then the court would have looked back to the plea itself to see
whether or not it was sufficient in law ; and if it had found the plea
to be bad, then the court would have held in favor of the prosecution ;
upon the principle that a bad replication is as good as the bad plea
to which it is a response. But in this case the court overruled our
demurrer to the replication, thus holding the replication a sufficient
answer to the plea. Was there therefore any necessity for the court
to go back through the record and pass upon the su£Qciency of prior
pleading f The plea to the jurisdiction having been answered by a
replication which the court held good by overruling our demurrer to
\ty what was the necessity for the court to go back through the rec-
ord r The only question raised by the plea was the jnrisdiotion of
this court over the respondent ; and whether or not the prosecution
was entitled to a final judgment, or whether the Judgment should be
respondeat ouster, is a question to be examined.

But I submit with great confidence that the question of sufficiency
in law of the articles of impeachment was not before the court ; and
that after judgment upon the question of jurisdiction, of respondeat
ousleTf the respondent was at liberty to begin his defense, as he might
have done without questioning the Jurisdiction.

In case on indictment, when the defendant challenges the jurisdic-
tion of the court, and fails to make good his objection, he is remitted
to every privilege he would have possessed if he had commenced his
defense with questioning the jurisdiction ; that is, he may move to
quash, or he may plead in bar, or plead the general issue.

If I were compelled alone to take the responsibility in this case I
+— should plead no further, but leave the managers to their own course :
and in that case would not the mana^rs be entitled to move for final
Judgment T This would be so, I think, had the issue been one of fact
only. But here there was an issue of law and several issues of fact,
all of which the court has disposed of by the order Just entered.

Wo have appeared and pleaded, and if the court have held our de-
fense insufficient, may we not stand upon it, without filing further
pleadings? My impression is that the next step to be taken is for the
managers to move for indcment, after which we coold move for leave
to plead further, which I nave no doubt the court would grant.

All this, of course, is upon the supposition that the court has over-
ruled the plea to the Jurisdiction. The order deciding the jurisdic-
tion was not concurred in by two-thirds of the Senators present. That
is less than two-thirds of the Senate think there is jurisdiction to con-
L^ • vict the respondent.

Manifestly a court which has not Jurisdiction to convict has no Juris-
diction to try the respondent ; and such pretended trial would be
wholly extrsgndicial. No witness could be indicted for false swear-

eing at such trial, nor punished for contempt for not obeying a sub-

It therefore becomes a very important question to be settled by the
respondent's counsel, whether any, and if any what, further steps
should be taken on the part of the respondent. An order has been
entered in the record, as an order of the court, overruling the plea to
the jurisdiction. But the journal of the proceedings sho ws that thirty-
five Senators concurred in the order, and twenty-two dissented.

Speaking for myself only, (not having consulted with my col-
leagues,) I maintain that upon the whole record the order is void, for
the reason that it was not concurred in by two-thirds of the Sen-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 76 of 172)