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a month later than that, we will be hard pressed for time. We can-
not know what particular witness we need or how many of them un-
less we are informed of theirs and understand what facts they mean
to prove or try to prove.

I maintain, as to every public accuser, a manager of the House of
Representatives, an attorney-general, or district attorney, if he has a
criminal case which he intends to prosecute against a citizen, that he
is bound by his duty and as a lover of justice to disclose the whole
case to the defendant as fully as possible and at the earliest moment.

The gentlemen say, when we ask them for this list, that it is a
secret which they have the right to keep and they will keep it until
the moment of the trial and then spring it upon us, so that we shall
be unable to meet it by contradiction or explanation. They wish to
take us by surprise as much as possible, and convict the defendant,
if they can, without giving him a chance to show his innocence.
They say there is no precedent for such a call as we make upon them
now. Nothing like this is found in the common-law cases. I do not
know ho^ far back they want us to go for a precedent old enough
to suit them. In modem times it has never been refused. I admit
that by the common law, whose authority they invoke, a man on trial
in any criminal court had no chance at all for life or liberty. He
was not allowed counsel. He was not allowed to call witnesses.
He was not confronted with the witnesses against him. None of
those privileges -which are secured in our Constitution were given to
a party charged with a criminal offense by the ancient common law.
That common law was a bloody old beast.

Mr. Manager LORD. Will the gentleman allow me to ask him a
question f And that is, what was his practice in this regard as At-
tomey-Qeneral ; whether he gave instrnctions to the district attor-

neys throughout this country to furnish the evidence of the witnesses
for the prosecation to the other side or not f

Mr. BLACK. I never gavo instructions one way or the other ; but
I never had a secret in my life which I kept from a defendant in a
criminal case. No man should ask me in vain for any fact that ho
ought to know so that he might he prepared to meet it. I would
hold back nothing. I stand utterly amazed t hat there should be any
objection to the demand that we are making now.

But they could not convict men, they say, unless they could como
upon them secretly and suddenly, and catch them unawares ; and so
they lie in wait, concealed in ambush, to take them by surprise. That
is what the learned gentleman means that this man cannot be con-
victed, if he gets a fair trial, if he is notified beforehand what the
evidence is, so that he can answer it.

I am sure, just as perfectly sure as I can be of anv fact, that not
one of the gentlemen who compose this committee of managers has
the least intention to do anything wron^ or unfair, and when they
come to sleep upon it, whether this order is made now or made at an-
other time or not made at all, when they consult their pillows about it,
every one of them will say that it is a demand which ought to have
been listened to with pleasure andgranted without hesitation.

The PRESIDENT |>ro tempore. The Secretary will report the pio-
poseil order submitted by counsel for the respondent.

The Chief Clerk read as follows :

William W. Belknap, by his counsel, mores the coort that an order be made upon
the managers on the part of the House of BepreeentatlTos to fnmtah within twenty-
four hours to the accused or bis counsel a list of the witnesses whom they intond
to call, together with the particulars of the facts which they expect to prove by

The PRESIDENT pro tempore. The question is on concurring in
this proposed order.

The order was rejected.

Mr. SHERMAN. If there is no further motion on the part of the
counsel or managers, I move that the court adjourn until the 6th of
July at one o'clock.

Mr. Manager LORD. I would inquire whether sufficient provision
has been mt^e in regard to the answer f I call the attention of the
Senator to that. The answer is to be put in in ten days. 1 ask whether
sufficient provision has been made in regard to the answer and repli-
cation f I think some provision should be made in that regard.

Mr. SHERMAN. I will modify the motion at the suggestion of
Senators around me, who think we ought to meet on the tenth day
after this, that the Senate meet on the 16th of June at one o'clock.

Mr. EDMUNDS. You had better make it twelve o'clock. We can
finish it in five minutes and then have an uninterrupted day for legis-
lative business.

Mr. SHERMAN. I accept the suggestion and say twelve o'clock.

The PRESIDENT pro tempore. It is moved that the Senate sitting
in trial adjourn until Friday, the^Lfith of June, at twelve o'clock noon.

Mr. SARGENT. I ask that that be withdrawn that I may offer the
following :

Besolved, That the managers furnish to the defendant or his counsel within
twenty-four hours a list of witnesses that they intend to call in this case.

Mr. SHERMAN. I withdraw my motion for the present.

The PRESIDENT pro tempore. The question is on the resolution of
the Senator from Calif omia, [Mr. Sarqekt.]

Mr. EDMUNDS. I move to amend that order by striking oat
" twenty-four hours" and inserting **four days."

Mr. SARGENT. I have no objection to the modification.

The PRESIDENT pro tempore. The Senator from California ac-
cepts the modification.

Mr. Manager McMAHON. I should like to understand one matter.
We may caU a good many witnesses whom we have not now in our
minds. We do not want any order that would preclude us from call-
ing any witnesses that we might at any future time deem important
in the case. I may state here, so far as that is concerned, that the
gentlemen have pretty full knowledge of all we expect to call, or
nearly all, for they have been under subpoena for these four weeks.

Mr. SARGENT. I should like consent to say about three words.

The PRESIDENT pro tempore. Is there objection f The Chair
hears none.

Mr. SARGENT. The practice in every State of the Union is to
indorse on the back of the indictment, as required by statutes, the
names of the witnesses called before the grand jury. It has never
been construed that any subsequent witnesses whom it is found neces-
sary to call should be ruled out ; any further witnesses that were
necessary in the trial of the case have always been admitted, notwith-
standing that statute. That I believe is the universal rule. I do not
propose if the managers find it necessary to introduce additional
witnesses that they shall be ruled out by the adoption of this order,
but that they sh&U furnish a list of the witnesses that they now in-
tend to call.

Mr. EDMUNDS. If I may ask unanimous consent of the Senate,
which I do not believe in at all myself, to say one word, I will do it.

The PRESIDENT |>ro tempore. Is there objection f The Chair hears

Mr. EDMUNDS. I should propose to modify the order of the Sen-
ator from California so as to say *' as far as at present known to the
managers." He is quite right, according to my opinion, in bis state-
ment of the law, that if we made a peremptory order, which on its

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face seemed to exclude every thing else, yet, if a witness wa« prodnoed
in good faith who was not known liefore, he would be received, we
at the saine time taking care that no injustice by way of surprise
should be done to the other party. But to make it entirely safe, so
that there shall be no misunderstanding, I move also besides the four
days, which my friend accepts, to say ** a list of the witnesses so far
as at present known to the managers,'' so that the^ shall in good faith

five to the other side all the names of all the witnesses wnom they
ave at present any intention to call.

Mr. SABGEKT. I accept the modification.

MnTHURMAN. Mr. President

The PRESIDENT jnv tempore, The Senator from Ohio. Debate is
not in order.

Mr. THURMAN. I ask leave to be heard as other Senators have

The PRESIDENT pro temjwre. Is there objection I The Chair hears

Mr. THURMAN. I must say that it is news to me that there is any
law anywhere which requires the prosecution to give a list of its wit-
nesses to the defendant ; but I am bound to admit that there must
be, because counsel say so. There is certainly none in my State ; I
never beard of such a tning before. But, if it is so, it ought to be re-
ciprocal. Tlie State has some rights as well as the defendimt ; and
therefore I move to add :

And that within fonr days thereafter the respondent shall famish the managorw
with a list of the witnesses he proposes to examine, so far as they shiUl be Imown.

Mr. BLACK. We have no objection.

Mr. BAYARD. Mr. President

The PRESIDENT pro tempore. Is there objection to hearing the
Senator from Delaware f The Chair hears none.

Mr. BAYARD. I cannot but remark that in the very nature of
things the list on either side most be incomijlete, and h«ing incom-
plete it will be absolutely without value to either party. Therefore
the request on either side, in my opinion, would be not only lacking
entirely in precedent, but lacking lu Judgment and sound logic.

Mr. WHYTE. I ask unanimous consent merely to say one word to
correct a misapprehension of the Senator from Ohio.

The PRESIDENT pro tempore. The Chair hears no objection.

Mr. WHYTE. There is an act of Congress on the subject. In all
cases of trial of treason and other capital offenses the party accused
shall have a list of the witnesses and the places of their abode.

Mr. SHERMAN. I want that to be read.

Mr. WHYTE. It is as foUows :

6bc. iocs When any person is Indicted of treason, a copy of the indictment and
a list of the Jnry and of the witnesses to be prodnoed on the trial for proving the
in<Uctment, stating the place of abode of each Jaror and witness, shall be delivered
to him at least three entire days before he is tried for the same.

Mr. GORDON. That is for treason.

Mr. WHYTE. Treason and any other capital offense.

When any
dictment and
entire days before the tnaL

Mr. Manager LORD. Mr. President, I will say that we make no
objection to the order after four days to furnish the list of witnesses.
It was the other part of the order asked for to which we made par-
ticular objection.

The PRESIDENT pro tempore. The Senator from Ohio [Mr. Thur-
UANj has moved an amendment, which will be read.

The Chief Clerk read as follows :

Insert at the end of the order :

And that within four days thereafter the respondent famish to the managers a
list of witnesses, as far as known, that he intends to smumon.

The PRESIDENT pro tempore. The question is on this amendment.
The amendment was agreed to.

The PRESIDENT pro tempore. The question is on the resolution
as amended, which tne Secretary will report.
The Chiui Clerk read as follows :

OrderecL, That the mana;;ers famish to the defendant, or hla oonnsol, within four
^vs, a list of witnesses, as far as at present Imogen to them, that they intend to
c^l m this case: and that, within four days thereafter, the respondent furnish to
Wm) managers a list of witnesses, as far as known, that he intends to sammon.

The resolution, as amended, was agreed to.

Mr. SHERMAN. I renew my motion that the Senate sitting for
the trial of the impeachment adjourn until the 16th instant at twelve

The motion was agreed to ; and (at four o'clock and forty-five min-
utes p. m.) the Senate sitting for the trial of the impeachment ad-
journed until the 16th instant.

is indicted of any other capital offense, snoh copy of the in*
of the Jurors and witnesses shall be deUvered to him at least two

Friday, June 16, 1876.

The PRESIDENT i>ro tempore having announced the arrival of the
hour fixed, the legislative and executive business was susnended, and
the Senate proceeded to the trial of the impeachment of William W.
Bolknap, late Secretary of War.

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

The managers on the part of the House of Representatives (with
the exception of Mr. Knott and Mr. Hoar, who were not present) ap-
peared and were conducted to the seats provided for them.

The respondent appeared with his counsel, Messrs. Blair and Black.

The Chief Clerk read the journal of the proceedings of the Senate
sittinsT on Tuesday, June 6, for the trial of the impeachment of Will-
iam W. Belknap.

The PRESIDENT pro tempore. The Senate is now ready to proceed
with the trial. The Secretary will read the (»rder made by the Sen-
ate respecting the trial.

The becretary read the following order, adopted June 6:

Ordermi^ That W, W. Belknap have leave to answer the articles of impeachment
within ten days from this date ; and that in defaalt of on answer to the merits within
ten days by respondent to the articles of impoaoliment, the trial shall proceed as
upon a plea of not guilty.

Mr. BLACK. Mr. President

The PRESIDENT jpro tempore. Senators will please give attention
to the answer of the accused.

Mr. BLACK. The paper which I am about to read will require per-
haps a little, but a very brief, explanation. The order maae by the
Senate at the last meeting was tnat we should plead to the merits,
which means of course to the merits of our case in law or in fact ;
that is, we should answer to the charges or else raise an issue of law.
For certain reasons, which you will find stated in the paper which I
now lay before you, we decline to put in any plea ; not uecause we "t~
do not expect to go to trial upon the legal merits as well as the facta
of the case, but l^anse any such answer as that which the Senate
exx>ect we should put in under that order would probably be construed
as an admission that we are not already acquitted substantially.

But this declination to put in a plea will be followed, as a matter
of course, by the course which the Senate expressed its determination
to take on a former occasion, namely, that you will order the trial to
proceed under a plea of not guilty, which the court itself will put in
for us. We expect you to put in the plea of not guilty for us, and
we hope very sincerely that you will be able to make it out, and we *»
shall be here aiding and assisting yon to the utmost of our power.

But we are in an extremely singular predicament. The sense of
the §enate upon the question which was submitted to them could be
expressed only against us by a vote of two-thirds. One-third and
more than one-third of the Senate have decided in our favor. The
others, less than two-thirds, are powerless, of course, to find a^lnst
us any fact which is an essential element in any legal conviction
which yon may be able at any time hereafter to pronounce. The fact
alleged against us, that General Belknap was a public officer within
the meaning of the Constitution, has been found in our favor, but ■
then a majority of the Senate say that judgment shall be pronounced
upon that vote as if it had been a vote of two-thirds. The majority
can do as they please ; they can pat whatever they please upon the
record. While they are legally incapable of convicting him without
the concurrence of two-thirds, the majority can say that we are con-
victed, although by them. We can do nothing but appeal to your
reason and sense of justice and love of the Constitution, which we
think will prevail at some time or other. That the question will be
raised continually at every step in the progress of this affair, until
we are finally acquitted and allowed to go hence without day, is very

I now propose to read this paper, which contains our reasons for
declining to plead to the merits, whatever that may mean, to put in
any plea at all other than this, which is an allegation that we have been
already acquitted ; that there can legally be no further proceeding
against us ; and that we are entitled to a judgmeut which will allow
us to go hence sine die, I proceed to read the paper :

In the Senate of the United States sitting as a conrt of imi>eacliment.
The UxrrsD Statbs of Ambbica )


And now, to wit, this I6th day of Jane, 1876, the said TVilllam W. Belknap comes
into ooort, and being called upon to plead farther to the said articles of impeach-
* ... tothia

mont doth most hnmbly and with profonndest respect represent and show 1
honorable conrt that on the 17th day of April last past ne did plead to thesaia
articles of impeachment^ and in his siaid plea did aUege that at the time when the
House of Representatives of the United States ordered the aaid impiniohroent, and
at the time when the said articles of impeachment were exhibited at the bar of the
Senate against him, the said Belluinp, he, the said Belknap, was and ever thereafter
had been not a public officer of the United States, but a private citizen of the United
States and of the State of Iowa; and that the nlea aforesaid and aU the matters and
things therein contained were by him, said Belluiap. fuUy verified by proofs,
namely, by admissions of the said uoase of Representatives before said ooart : and
the said Iklknap further represents and shows to the conrt here that the tratn and
soffldency of the pica pleaded by him as aforesaid were thereupon debated by the
managers of the said House of Representatives and the counsel of this respondent,
and thereupon submitted to this court f9r its determination and Judgment thereon ;
and that such proceedings were thereupon had in this court on that behalf in this
canse ; that afterward, to wit, on the 33th day of May last past, the members of this
court, to wit, the Senators of the United States sitting as a conrt of impeachment as
aforesaid, did severally deliver their several Judgments, opinions, and votes on the
truth and snffidenoy in law of the said plea, when and whereby it was made duly
to appear that only thirty-seven Senators concurred in pronouncing said plea in*
sufficient or untrue; whereas twenty-nine Senators sitting in said ooart. by their
opinions and votes, affirmed and declared their opinion to be that said plea was
sufficient in law and true in point of fact ; so that the said Belknap in fact saith
that, on the day and year last aforesaid, twenty-nine Senators sitting in said conrt
declared therem that the said Belknap navinz ceased to be a public officer of the
United States by reason of his resignation of tho offloe of Secretary of War of the
United States before proceedings in impeachment were oommen<M9d against him
by the House of Representatives of the United States, the Senate cannot take Ju-
nsdtction of tliis cause ; and that seven S^iators did not vote upon said question,
and only thirty-seven Senators, by their rotes, declared their opinion to be that
the Senate conid take Jurisdiction of said cause. And afterward thirty-seven Sen-
ators sitting in said court, and no more, concurred in a resolution declaring that
" in the opinion of the Senate William W. Belknap is amenable to trial on impeach-
ment for acts done as Secretary of War, notwithstanding his resignation of said

office," and that twenty-nine of said Senators sitting in said court> oy their votes.


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ftfflnned and declared their opinion to be to the conteary thereof. And afterward,
on the day and year latit aforesaid, it was proposed in sud court that the President
pro tempore of the said Senate should declare the judgmoufc of the said Senate, ait-
ting as aforesaid, to bo that said plea of said respondent should be held for naught,
and a vote was taken upon said proposition; and, as said vote showed, two-thirds
of the said Senators present did not concur therein ; but, on the contrary thereof,
only tiiirty-six jSenators did concur thorfsin. and twenty -seven Senators then and
there present, and voting on said proposition, did by their votes dissent from and
vote against 8ai<l proposition. All of which appears more fully and at largo upon
Ihe record of this court in this cause, to which record he, said Belknap, prays leave

Therefore the said Belknap, referrinff to the Constitntion of the United States,
article 1, section 3. clause 6, which provides that "no person shall be convicted with-
out the concurrence of two-thirds of the members present," (meaninc on trial on
impeachment,) avers that bis said plea has not been overruled or held for naught
by the Senate sitting as aforesaid, no such judgment having been concurred in oy
two-thirds of the Senators sitting in said court and voting thereon ; but, on the con-
trary thereof, as the vote aforesaid fully shows, the said plea of the said respondent
was sustainea, and its truth in fact anil sufficiency in law duly affirmed by the said
Senate sitting as aforesaid, more than one-third of the Senators of said Senate,
sitting as aforesaid, having by their votes so declared, to- wit, twenty-seven Sena*
tors as aforesaid, and saia twenty-seven Senators having by their votes declared
and affirmed their opinion to be that said plea of said rtspoudent was true in fact,
and was sufficient in law to prevent the Senate sitting as aforesaid from taking
further cognizance of said articles cf impeachment.
Wherefore the respondent aver^i that he has already been substantially acquitted
-^^ by the Senate sitting as aforesaid : and that he, the said respondeut, is not l>ound
further to answer said articles of imiieachmcnt ; the said order requiring this re-
spondent to answer over not having been made with the concurrence of two-thirds
of the said Senators sitting as aforesaid and voting upon the question of the passage
of said order; and said order having been passed with the concurrence only of less
than two-thirds of the said Senators sitting as aforesaid and voting on the question
of making and passing said order, the saidonler ought not to have been entered of
record as an oroer of said court of impeachment in this cause ; and said order ap-
pearing upon the whole record of said cause to be null and void, as an order of said

And the said respondent prays the court now here, as he has before formally
moved said court, to vacate said order ; and the said respondent hereby prays said
court that he may be hence dismissed.




Of Cowuel for taid ReepotidenL

The PRESIDENT pro tempore. The answer will be filed.

Mr. EDMUNDS. I do not wish that answer iiled antil there shall
be consideration of it. I ohject to its being filed at present.

Mr. Manager LORD. I rose to make the same objection that the
Senator has made, but it is now nnnecessary. I ask that the order be
made wiiich I send to the desk.

The PRESIDENT pro tempore. The order submitted by the man-
agers will be read.

The Chief Clerk read as follows :

Ordered, That the respondent, W. W. Belknap, shall not be allowed to make any
nrther plea or answer to the articles of impeacnment preferred against him on the
part of the Hoose of Representatives, but that the future proceedings proceed as

upon a general plea of not guilty.

Mr. EDMUNDS. Mr. President, I would ask the Chair whether
there is an amplication on the part of the respondent for subpcenas
for certain witnesses f -t

The PRESIDENT pro tempore. The Chair does not understand how
that is. The Chair has a communication bearing on that subject
which he will lay before the Senate. The Secretary will read it.
The Clerk read as follows :

Opficb Sbcretaby Ss!<atb United States.
Sib : On the 14th of Juno a list of witnesses to be summoned on the part of Will-
iam W. Belknap was transmitted to this office, which 1 respectfully lay before the
Senate for its action.


Oh^f Olerl Senate.
Hon. Thomas W. Fbbrt,

President (if the Smote.

Mr. EDMUNDS. What is the application f I do not care for a list
of the names, but the number of names and the application, what-
ever it is.

The PRESIDENT pro tempore. The Secretary will read the aocom-
panving paper.
The Chief Clerk read as follows:

In the Senate of the United States sitting as a court of impeachment
The Unitbd States )
w. V


Witnesses on the part of the respondent :
IHere follow the names.]

Mr. INQALLS. How many of them are there f

The Chief Clerk. One hundred and ninety-seven or one hun-
dred and ninety-nine. I think.

Mr. EDMUNDS. Mr. President, if the counsel or the managers do
not wish to be heard further upon any of the topics that are now be-

Online LibraryUnited States. CongressCongressional record : proceedings and debates of the ... Congress → online text (page 81 of 172)