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ators present and voting. Suppose a case in the Supreme Court, where
only a majority of the judges need concur in the judgment ; and sup-
pose the record to show that only four judges concurred in the judg-
ment while five dissented, but the minority directed the clerk to enter
•4- tlie judgment or order as the act of the court and he should do so
and certify it as such under the seal of the court. It is manifest, I
think, that such judgment, if the dissent of the majority appeared of
record, would be absolutely void ; and would be so declared by any
court where the Jud^ent should come in question collaterally. I
think this Judgment is in the same category.

But whether it is better for the respondent to move to vacate the
order for this reason, or demur to the articles, and if the demurrer
shall be overruled go through the form of a trial and give to the
conntiy the evidence on his behalf, is a (]^nestion so important to the
respondent that I do not wish to determine it without consultation
with my colleagues. If this was the trial of an ordinary cause, I
should have no hesitation. I should stop here. And if I was on trial
myself, in this cause, 1 should stop here, confident that no Senator
would vote for my conviction who believed that the court had no

Now the question whether we shall plead further is one as to which

I wish opportunity to consult with my colleagues : and I hope no
order will be passed to-day wliich will preclude us from taking such
course as, on consultation, we may deem advisable.

The question of the sufficiency in law of the articles themselves has
not been raised by a demurrer thereto, has not been argued by cither
side, nor submitted to the court. The only question raised, argued,
or submitted was the question of jurisdiction of the defendant; that
is, whether the court had power to pass upon the sufficiency of the
articles, or take any other step whatever in the cause. Had the
court affinned jurisdiction, (as I claim it has not,) then we could havo
moved to quash the articles, or demurred to them, or joined issue for
trial. I do not hesitate to affirm that none of these articles, with pos-
sibly one exception, state the necessary facts to constitute a good in-
dictment Mere rhetoric and denunciation will not do. It is not
enough to say that the defendant has been guilty of high crimes and
misdemeanors; but the articles must state every fact which is an ele-
ment of crime. And although the same strictness of pleading has not
been required in cases of impeachment as in ordinary criming causes,
yet every fact relied upon to constitute the crime must be stated;
and on the trial the proof cannot go beyond the averments of the
articles. In the several impeachment trials in this country defend-
ants have not resorted to formal pleadings. In Blount's case his re-
sponse was more like an answer to a bill in chancery than a pleading
in a criminal cause. It was a plea to the Jurisdiction, a demurrer, and
answer, all in one.

But I assume that where the respondent chooses to avail himself of
formal and particular pleading, wnich the experience of a thousand
years has shown to be essentisd to the protection of innocence, this
court will not deny the right, at least without a hearing.

I, therefore, assume that the court, on its attention bein^ called to
the very sweeping terms of this order, will of its own motion vacate
so much of it as holds that the articles of impeachment are sufficient

The sufficiency in law of the articles is as material to the convic-
tion of the respondent as is the truth in point of fact of the matters
therein charged. Before there can be a conviction several things
must be established.

First. That the defendant, in fact, has done, or omitted to do, cer-
tain things ;

Second. That the things he has done or omitted constitute a crime ;

Third. And not merely a crime, but a high crime or misdemeanor,
meriting impeachment ; and

Fourth. That the respondent is subject to impeachment, and this
court has jurisdiction over him for the hearing and determination of
this cause.

If any one of these elements be wanting, there can be no convic-
tion. And of course, as soon as any one of these propositions is estali-
lished in favor of the respondent, he is entitled to an acquittaL I
think the point as to jurisdiction has been detiermined in his favor,
inasmuch as more than one-third of the Senate has declared against
jurisdiction. But what course we ought to take as a matter of ex-
pediency ; whether we should move to vacate the order altogether
and that the respondent be dismissed; or demur to the articles: and
if demurrer is overruled, answer to the merits and go to trial, should
only be determined after consultation of the respondent's counsel.

I repeat, if acting for myself, I should take no further step, but
abide final J udgment. Every j udgmen t implies a declaration that the
court has jurisaictlon to render it. In cases of impeachment, when a
Senator rises and votes guilty he thereby affirms the jurisdiction of
the court to pronounce final Judgment ; the commission by the re-
spondent of acts constituting a crime, and a high crime ; and the
regularity of all prior proceemngs in the cause. No Senator can vote
guilty, unless he believes there is not only guilt but Jurisdiction to
try and punish. I havo mentioned these propositions not to argue
them but to show that they arise fairly at this time, and are of such
importance as to justify us in asking a reasonable time to consider
them, before we are compelled to act.

Mr. Manager LORD. Mr. President and Senators, one question
which tlie learned counsel has discussed before you the managers do
not feel authorized to discuss while the order of this Senate remains.
By its order the demurrer to the replication of the House of Eepre-
sentatives is overruled, the plea of the defendant is overruled and
held for naught, and the articles of impeachment are held sufficient.
Now, apprehending that this order has been made upon due consid-
eration, that the Senators understood all these pleadings and made
this order in that view, we do not feel called upon, I repeat, to discuss
the questions pertaining thereto until some motion is made to change
the order ; and if such a motion should be made, if the Senate, after
this deliberation and after this carefully prepared order, takes into
consideration the question whether it will change its order, then the
managers will desire to be heard.

On the point which the counsel has suggested, practically, that a
two-thirds vote is necessary on the question of jurisdiction, that Sen-
ators who voted that this court had not Jurisdiction must therefore
on the final vote, when the question is put, " Did this defendant take
$1,500 on a given occasion and for such a purpose f " say " Not guilty,"
because of their views in regard to Jurisdiction— <m this point I say we
shall be prepared to show that there is nothing whatever in the sug-
gestion ; in fact, that the whole practice of courts of impeachment

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has been in contravention of it ; that the Constitntion itself pieyents
any such possibility. Therefore when this question is raised in some
proper form we shall desire to be heard upon it.

The counsel makes another suggestion, that if he stops here the
managers would be compelled to move, or could move for judgment.
This is not according to the rule of the Senate. The rule of the Sen-
ate provides exactly the contrary; that this point may be in the
tuinds of Senators who have not recently looked at the rule, I will
read a portion of it:

If the aocoaed, after service, shall foil to appear, either in person or by attorney,
on the day so fixed therefor as aforesaid, or, appeaiinf;:, shall fail to file his answer
to such articles of imi>eachnientk the trial shall proceed, nevertheless, as npon a
plea of not gnilty.

Mr. CARPENTER, Pardon the interruption ; but that is where
there is no pleading on the part of the defendant.

Mr. Manager LORD. There is now no pleading on the part of the
defendant ; by the order of the Senate not only is his demurrer to the
replication overruled, but his plea that he puts in to the articles is
enectually held for nauffht. It stands therefore precisely as if no
plea were in at all. Under the order of the Senate there is nothing
before this tribunal now excepting the articles of impeachment;
therefore there is no answer, actual or constructive. The defendant
appears in person and by counsel ; as there is no answer in this case
before the Senate, all that the managers can do, at the proper time, is
to move to proceed with the trial ** as upon the plea of not guilty."

One other suggestion. We apprehend that the true object of all
trials, civil or criminal, is to reacli the merits at the earliest moment.
The defendant here stands accused by impeachment, having been a
high officer of the Gk>vemment, of certain crimes and misdemeanors.
He has put in one dilatory plea, and that has occupied all this time.
He now proposes, after this Senate has so deliberately entered this
order, after it, having examined all the pleadings, has found these
articles of impeachment sufficient, to try again in that direction ; he
proposes to demur to the articles of impeachment ; and while I can-
not, perhaps, strictly call a demurrer a pleaj'yet, in a broader sense, it
is. The defendant proposes another dilatory proceeding ; I may call
it properly another dilatory plea. And how many shall he have f
It IS absolutely in the discretion of the Senate whether to give him
this privilege or not. It is in the discretion of any court of civil or
criminal jurisdiction, unless controlled by statutory law.

This defendant accused of these high crimes, after having by his
dilatory plea occupied weeks of time, seeks further delay; anier this
court, under rules which are broader and more liberal than in other
courts in regard to pleadinsrs, has deliberately ov^flmled his demurrer,
deliberately held his plea fbr naught, and that the only pleading be-
fore this tribunal is the pleading called the *< articles of impeach-
ment," and after this court has solemnly adjudged that these articles
are sufficient, the defendant by his learned counsel asks yon to go
back into the courts of law, for rules not binding even there ; he
wants yon to adopt the rules which he sa^rs are held in criminal courts,
and give him the right, under all the circumstances of this case, to
put in this further dilatory plea, because he says what f That he
could go into a criminal court and take up these articles of impeach-
ment, and one by one satisfy the tribunal that the pleading would
not be good as an indictment. What if he could, and what if the
technical rule availed heref It nevertheless is in the discretion of
this court whether it will allow him again to stand on a technical
point instead of proceeding to the merits. I apprehend it is an ap-

Slication which will not be favored by the Senate. I apprehend this
enate sitting as a court of impeachment will hardly t&e the posi-
tion, after this deliberat<e order, that it will open the whole case
again, and for what f Not from a sense of Jnstice to the defendant :
not for the purpose of ascertaining the truth ; but simply that learned
counsel skilled in the criminal courts may stand in this august tri-
bunal and urge that these articles of impeachment have not all the
words and phraseolo^ which he thinks would be necessary in a court
of criminal jurisdiction to maintain an indictment.

I will not now discuss the question whether the articles of impeach-
ment are sufficient. The counsel himself has confessed the ruLd that
pleadings in this court are entirely distinct and separate as to mere
technical rules from pleadings in ordinary criminal proceedings.
This court has a broader range : it has an easier path in its high juns-
diction to reach the merits, and therefore I may say, with all respect
to this tribunal, that it would be a most extraordinary proceeding,
in the judgment of the managers, for this court, without claim of
any possible ii\)ustice to the defendant, to open this case for another
dilatory plea instead of requiring him to go to trial upon the merits.

My colleague, Mr. McMahon, desires to make a statement.

Mr. Manager McMAHON. Before the counsel resumes his argn-
ipent, I desire to call his attention to the fact that he has himself in-
vited the decision of the Senate as it has been made. In his argument,
to be found on page 64 of the Record, I find the following :

I shall endeavor to maintain the following propositions:

1. That articles of impeachment cannot be -entertained against a private citizen
in anycase whatever;

S. That wherever articles of impeachment are exhibited, they must set forth
every fact essenaal to oonstitate a high crime or misdemeanor, anaevery ^t neoes*
■ary to bring the case within the Jorisdiotion of the coart ; and

3. That the issues of facts arising npon the plea in abatement are immateriaL

After proceeding to discuss these questions, in finally summing up

the case I find on page 71 that the gentleman uses the following lan-

And I think it wonld have been safe for ns to demur to the articles ; bnt not
wishing to take risks npon a technical constmction, we thought it safer to plead
affirmatively the fact that the respondent was not holding any office at the time of
impeachment. ITndonbtedly, to any plea of the respondent in confession and avoid-
ance of the articles, the prosecution might have replied in confession and avoid-
ance ; bnt not so to a plea which in substance is a denial of any fact which should
have been stated in the articles to show jurisdiction. If the articles themselves are
deficient in not stating any fact necessary to entire Jurisdiction, Jurisdiction of the
oflbnse and the offender, then this court never acquired Jurisdiction.

It results from the fact that this court has only a special Jurisdiction, tliat the
first pleading most show a case within Jurisdiction.

I think that after having invited the court to that pi^cular ques-
tion and to the discussion not simply of the fact, it is fair to presume
that the Senate considered the facts which bear npon the question of
jurisdiction^ and also the facts which bear upon the character of the
crime therein alleged.

Mr. CARPENTER. Mr. President

Mr. THURMAN. I should like to know what is to be the rule of
the Senate in regard to the discussion of each matter. The Senator
from Maryland [Mr. Whytb] has offered an order—

The PRESIDENT pro tempore. The Chair will remind the Senator
that debate is not in order.

Mr. THURMAN. I do not wish to debate, but I want to know the
rule of the Senate on this subject. I want to know whether there is
to be an unlimited discussion of counsel and managers on every order
that is offered by a Senator. In my Judgment it is all irregular.

The PRESIDENT pro tempore. The Chair will

Mr. CARPENTER. If the court will hear me a moment on that

The PRESroENT pro tempore. The Chair will state in reply to the
Senator from Ohio that the Chair was holding under the rule that each
of the parties is entitled to one hour's debate on any motion or oider

Mr. THURMAN. What t Upon an order offered by a Senator f

The PRESIDENT pro tempore. The right of discussion is given to
the parties.

Mr. THURMAN. There is no order offered by the parties.

Mr. CARPENTER. Mr. President, can I proceed f

The PRESIDENT pro tempore. The counsel will proceed.

Mr. CARPENTER. Mr. President and Senators, this is the second
time that I have been reproached in this case with being a "criminal
lawyer.'' By this epithet I suppose the managers mean to accuse me
of more or less familiarity with the rules and practice which the ju-
dicial courts^ after centuries of experience, have established for the
protection of the innocent, and the separation of truth from false-
hood, in the administration of criminal justice. This I accept as a
compliment, though probably not so intended. The defending of per-
sons accused of crime (always entitled under our law to the presump-
tion that they are innocent until proved to be guilty) cannot be con-
sidered discreditable to any member of the pro&ssion, when we know
from history that from Socrates down, through iJl the ages, excellent
and upright men have been falsely convicted, because they had not
advocates versed in the law and familiar with the principles and rules
of evidence, and of the requisite nerve and force to stand up agaiupt
popular prejudice and clamor, or judicial corruption and tyranny, and
establish before the world their innocence. I understand the man-
agers to disclaim being criminal lawyers; and I might retort that no
one should be permitted to prosecute a citizen in a criminal court
who is not famUiar with and obedient to the rules and practice of such

The honorable manager [Mr. LoRDj claims that this court is ex-
empt from adherence to rules of pleadme and the methods of judicial
tribunals ; and that, in reaching its conclusions, it may proceed with
the freedom of the wind, " which bloweth where it listeth." So is a
mob on the Rocky Mountains, administering Lynch law upon a sup-
posed murderer ; and the mob could as fairly pretend to be exercising
judicial power, as could this august tribunal while denying the prin-
ciples and overstepping the limits of the law.

The manager who last spoke has referred to my remarks on a former
occasion, to show that I intended to submit the sufficiency in law of
the articles of impeachment. — a subject which I did not at all discuss.
If by saying that the articles must be sufficient in law to sustain a
conviction, I submitted the question of their sufficiency to the court
at that time, then by saying that not only must the articles be suf-
ficient in law, but must be proved true in fact, I submitted the ques-
tion of the guilt or innocence of the respondent at the same time.
If what I said authorized the court to pass upon the sufficiency of
the articles, — a question not argued on either side, — then the court
might as well have passed upon the question of guilt or innocence at
the same time. I was discussing nothing but the question of juris-
diction. It is true I did say that, inasmuch as the articles described
the respondent as late Secretary of War, perhaps we might safely
have demurred to them ; but, for reasons which I stated, we thought
it safer to plead affirmatively the fact that the respondent was not
holding any office when he was impeached. The manager says the
articles of impeachment were before the court. I deny that the ques-
tion of their leged sufficiency was before the court on the argument
of the single question whether the court had Jurisdiction to pass upon
their sufficiency. It was claimed by one of the managers on that

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argament, if I remember aright, that the tmth of the articles mnst
be assumed, for the purposes of that argument. In other words, the
question was, whether, conceding everything stated in the articles,
the court had jurisdiction to try the respondent.

The question raised by our pleadings,— and submitted by our argu-
ment, — was, not whether the articles were true, or in point of form
and substance, sufficient to show an impeachable crime, — but whether
the respondent conld be impeached after he was out of office. The
tmth and sufficiency of our plea was conceded by the managers when
thev filed a replication. To their replication we demurred. That
undoubtedly submitted to the court the sufficiency of the plea as well
as the replication. And if the court had held the replication bad,
then, going back, thev might have hold the plea bad. But if the
court, as appears by the order entered, held the replication good, by
overruling our demurrer to it, then it was wholly immaterial whether
the plea was good or bad, because it was disposed of by a good repli-
cation. As I understand the rule, it is only m case the party demur-
ring is entitled to judgment on the particular point raised by his de-
murrer, that the court look back to see whether his former pleadings
have been defective.

Suppose an indictment in a criminal court, and the defendant at
the trial to plead to the array of the petit jury. This mijorht lead to
a succession of pleadings terminating in a demurrer. Would this
demurrer raise the question of the sufficiency in law of the indict-
ment, and the pleas in bar by the defendant, which had not been de-
murred to f Undoubtedly such demurrer would raise the question
of the sufficiency of all the pleadings relating to the particular sub-
ject—the qualiticatious of that jury. So, in this case, the demurrer
compelled the court to inspect all the pleadings touching the ques-
tion of the jurisdiction of the court; and nothing else. And this
question settled in favor of lurisdiction, the respondent should be
permitted to commence his defense as he would have done if the
Jurisdiction had not been disputed.

Mr. TUUBMAN. I wish to submit a question for counsel to answer.

The PRESIDENT pro tempore. The question will be road.

The Chief Clerk read as follows:

As upon a demurrer the court must go back to the first defect, how
conld the court overrule the demurrer without deciding that the arti-
cles are sufficient f

Mr. CARPENTER. The first defect was the demurrer to a good
replication ; the court held the replication good by overruling the
demurrer to it. If the replication was held eood, of course it disposed
of the plea, and ended the question of jurisaiction.

Now, if the court please, I do not wish to spend time unnecessarily.
I know the Senate is pressed wi th legislative business. Knowing such
wotdd be the case, we moved a continuance to the next session of the
Senate. But the court unanimously denied this motion, thus order-
ing the trial to proceed. We are therefore not responsible for the
embarrassment which this trial must necessarily cause to legislative
business. And I assume that no Senator will wish to deny us the
privilegejs necessaiy to a proper defense, and the time necessary for
preparation, but will accord us a full and patient hearing niton every
question involved in this case ; especially as most of tne questions
are now presented for tha first time, and by their determination
precedents will be made for all time, binding upon all men.

And now I ask that you will cive us until Monday next to deter-
mine, as counsel, what step ought next to be taken on behalf of the
respondent :— determine whether we will move to vacate the order
just entered, upon the ground that it was not passed with the con-
currence of two-thirds of the Senators present ; or whether we will
demur, and if the demurrer shall be overruled, answer, and go to final
hearing and raise there all the questions which enter into a final
judgment. That we can raise these questions on a final hearing, is
clear^ because it cannot be maintained that any question upon which
conviction depends can be eliminated from such final determination
by the action of less than the constitutional minority of two-thirds.
Otherwise a mere majority of the Senate might defeat the constitu-
tional provision.

In these cases of impeachment, if a mere majority c«i settle the
question of Jurisdiction, so a mere majority, by overruling a demur-
rer to the articles, can determine that the acts alleged to nave been
done or omitted by the respondent constitute in law a high crime or
misdemeanor within the meaning of the Constitution ; feaving the
final judgment to rest only upon questions of fact or at the finid
hearing, none of these questions having been disposed of, some mas-
ter tactician might first move a resolution declaring that the respond-
ent had done or omitted the acts charged, and if sustained by a mere
migority, might claim that the facts were settled, and that the final
judgment must rest upon the question of law whether such facts
amounted to a high crime or misdemeanor.

In briefer and plainer terms, no conviction can take place under
this provision of the Constitution, unless two-thirds of the Senators
concur in regard to every element necessary to conviction, and first
and conspicuous among these, must l>e the question of jurisdiction.

Mr. WRIGHT. Mr. President, I wish to inquire whether it would
be in order now to move to acyourn to a day certain, or whether the
•order should be properly that when the Senate sittmg as a court of

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 77 of 172)